FIFTH DI VISI ON June 30, 2010 Nos. 1-08-1006, 1-08-1007 & 1-08-1013 (Cons.)
THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County , Illi nois. ) v. ) ) VICTOR RODRI GUEZ, ) ) Defend ant-App ellant. )

_________________________________________ ) ) THE PEOPL

E OF THE

STATE OFIL

LI NOI S, )

) Plaintiff-Appellee, ) ) No. 93 CR 22832 v. ) ) OMAR C HAIDEZ, ) ) Defend ant-App ellant. )

_________________________________________ ) ) THE PEOPL

E OF THE

STATE OFIL

LI NOI S, )

) Plaintiff-Appellee, ) ) v. ) ) FRANC ISCO MUN IZ, ) Honorab le ) Mary Mar

garet Brosnahan, Defend ant-App ellant. ) Judge Presi ding.
JUSTICE LAVI N deliver ed the opi nion of the

court: In this appeal, we consider the postconviction petitions of three codefendants who complain that their sentenc es are u

nconstitu tionally dispara te to the se

ntence r eceive d by

a fourth1-08-1006, 1-08-1007 & 1-08-1013

1 No substantive differences exist between the versions of the Act in ef fect when petitioners filed their respective petitions. For consistency , we cite only the 2000 ve rsion. 2 codefendant upon resentencing a fter his successful postconviction petition. Following an evidentia ry hear ing, the tr ial c ourt d

enie d the petit ions f iled by c odef

enda nts Vi ctor Rodri gue z, Omar Chaidez and Francisco Muniz for relief under the Post-Conviction Hearing Act (Act) (725 IL CS 5/122-1 et seq. (West 2000)). 1 For reasons that will be detailed below, we aff irm the dismissal o f their pe

titions. THE UND ER LYING TR IALS

In Oc tober 199 3, Victor

Salgad o, Victor Rodriguez, Omar Chaidez an d Franc isco Muniz were charged with two counts for the first degree murder of victim James Manzella, one count for the attempted murder of victim Jason Balthazar and one count for a ggravated discharge of a firearm as to Balthazar, which occurr ed on September 24, 1993. Ultimately, Salg ado was tried by j ury , simultane ously

with Rodrig

uez’s ben ch trial. Chaidez an

d Muniz wer

e tried by se

parate juries. Judge Shelvin Si

nger presided

over the four cod efenda nts’ tria ls. Follow

ing thei r respective tria

ls, Salga do was fo und guilt y a s the principal in the first de gree m urder of Manzella and the other three codefendants we re found guilty

of first degree murder on a the ory of
ac co un ta bi li ty. Salgado was also found guilty of attempted murder. Although the evidence presented at c odefendants’ respective trials differe d slightly, the evidence generally

showed that in the early

afternoon of September 24, 1993, Manzella was1-08-1006, 1-08-1007 & 1-08-1013

3

driving around with Balthazar when they observed occupants of a red car in front of them display gang signs. Rodrigue z was driving the red car, in which codefe ndants and three women were passengers. At that time, Rodriguez, Chaidez, Muniz and Salgado were , respectively , 18, 16, 16 and 17 yea

rs old. Some of the red car’s occupants also testified that af ter the victims displayed gang signs, codefe

ndants determined the victims were in a rival gang . When Balthazar suggested that Manzella avoid a confrontation with the red car’s occ upants, Manzella turned onto a different street. The red car then reversed its direction and followed the victims. After the victims were forced to stop for a fire truck ne ar the intersection of Belmont and Cicero, the four codefendants exited the red car. As codef endants approached the victims’ car, two of them shouted “ Cobra Kil ler” an d “Discip le Killer .” Rodrig uez broke the drive r’s side w indow and

hit Manzella. Chaidez attempted to break the side windows and either he or Rodriguez kicked in the windshield. The victims then crouched down in the front seat. After Muniz broke the re ar window with a baseball bat, Salgado fired two shots into the rear w indow, both of which struck and killed Manzella. On Dece mber 7, 19 94, the co

urt sente nced Salgado to 50 y

ears’ im prisonme nt for first degree murder and a c onsecutive 20-ye ar prison term for attempted murder. The court sente nced Rodriguez on the same day to 40 years’ imprisonment for murder. On January 5, 1995, the court sentenc ed Muniz to 4 8 ye ars’ impr isonment a

nd subseq uently sentenc ed Chaide z 40 years’ imprisonment four days later
. In sentencing c odefendants, the court stated, “[i]f ever there was a hierarchy of responsibility, it’s here. First I point out the most obvious, Victor Salgado was convicted of 21-08-1006, 1-08-1007 & 1-08-1013

4

offenses. First degree mur der and attempt first degree murde r. The other 3 were not.” The court found tha t Salgad o, as the c odefend

ant who in flicted t

he fata l wounds, was the mos t respons ible and Muniz, a s the individual who broke the window ou

t with the b at, was the next most responsible because he provided Salgado w ith an unobstructed view into the car so he could fire at close range. I

n addition, Rodriguez, the driver, was the third most culpable and Chaidez was the least culpable. Although the court acknowledg ed that codefendants had no prior convictions and were y

oung, it found that the crime occurred in a busy area, was gang -related, involved a chase, a violent assault and a shooting. Further more, the court considered the need to deter othe r individuals from gang activity
. This court affirmed codefendants’ convictions on direc t appeal. People v. Salgado , 287 Ill. A pp. 3d 432 ( 1997); People v. Rodriguez , No. 1-95-0339 (1997) (unpublished order pursuant to Supreme

Court Rule

23); People v. Muniz , No. 1-95-0783 (1997) (unpublished order pursuant to Supreme

Court Rule

23); People v. Chaidez , No. 1-95-0308 (1996) (unpublished order pursuant to Supreme Court Rule 23(c)). In a ddition, we rejected the assertions of Salgado, Muniz and Chaidez that their respective sentences were an a buse of discretion.

SALGADO’S POSTCONVI CTION PETI TION
On March 23, 1998, Salgado filed a pro se postconviction petition under the Act, raising various claims for ineffective assistance of tria l and appellate counsel, including his claim that appella te counse l should ha

ve chall enged

the exces sive and c onsecuti ve natur e of his se ntences
.1-08-1006, 1-08-1007 & 1-08-1013

5

It appears that on Marc

h 10, 2000, Salgado’s appointed counsel filed a supplemental postconvi ction pet

ition, alle ging that trial a

nd appell ate coun sel were ineffe ctive for failing

to challenge Salgado’s conse cutive sentences and the State’s submission of an attempted murder instruction. Judge James Epstein granted Salgado’s postconviction petition on October 13, 2000, finding that appellate counsel was ineffec tive for failing to challenge the suff iciency of the evidence to sustain Salgado’s attempted murder conviction and for failing to challenge the submission of the attempted murder instruction to the jury. As a result of Judge Epstein’s decision to vacate the attempted murder conviction, he found it unnec essary to conside r whether consecutive sentences were prope rly imposed. Judge Epstein found that in sentenc ing Salgado for murder, Judge Singer had considere d in aggravation that Salgado ha d also been convicted of attempted murder. Accordingly , Judge Epstein found he was required to vacate Salg ado’s murder sentence and conduct a new se ntencing hearing in the absenc e of the attempted murder conviction. The State did not appeal this order. On D ece mb er 1 , 20 00, Sal gad o wa s re sen ten ced to 28 ye ars in pri son for mu rde r. In addition to

the mitig ating e

vidence present ed at Salg ado’s or

iginal s entenci

ng hea ring, pr imarily his youth and lack of prior convictions, defense counsel argued tha t Salgado was try

ing to make something of his life while in prison and presented extensive evidence re garding Salgado’s accomplishments in prison. Judge Epstein considered the horrible impact of Salga do’s action but found that w hen J udge Si nger ori ginall y sentence d Sal gado to 50 years’ i mpris onmen t, J udge Singer d id not have

evidenc e of how Sa

lgado u sed his time

in prison. Thus, Judg e Epstein1-08-1006, 1-08-1007 & 1-08-1013

6

believed he had a better picture of Salg ado’s rehabilitative potential than Judge Singer did. Judge Epstein further found that although many inmates waste their time in prison, Salgado had not done so.

CODEFENDANTS’ POSTCONVICTION PETITI ONS
While Salgado’s postconviction proceedings were pending, on April 7, 1998, Rodriguez filed his f irst pro se postconviction petition, which the trial court dismissed on the State’s motion. On a

ppeal, w e gran

ted the pu blic def ender’ s motion to withdraw a s counsel pursuant to Pennsylvania v. Finley

, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), finding there were no issues of arguable mer it and affirmed the trial court’s judgment. People v. Rodriguez , No. 1-98-3367 (1999) (unpublished order pursuant to Supreme Court Rule 23). On May 2, 2001, Rodrig

uez filed a successive pro se postconviction petition and
memorandum of law , alleg ing, in pe rtinent pa rt, that hi s 40-y

ear sen tence w as dispro

portiona te to the 28-y ear sen tence r eceive d by

Salgad o, who wa s more cu

lpable th at Rodrig

uez. On Au

gust 27, 2001, Judge James Egan dismissed Rodriguez’s petition as frivolous and patently without merit. Rodriguez appealed and the State confessed e rror because the trial court had dismissed the petit ion mo re th an 90days after it was f iled ( see 7 25 ILCS 5/122 -2.1 (West 2000) ). We remanded for Rodriguez’s petition to be docketed for f urther consideration under the Act. People v. Rodriguez , No. 1-02-0057 (2002) (dispositional order). In June 2002 and January 2003, Chaidez and Muniz, respectively, filed their ow n pro se1-08-1006, 1-08-1007 & 1-08-1013

7

postconvi ction pet

itions, ch alleng ing the d

isparity betwee n Salga do’s 28-y ear sen tence a nd their considerably long er sentences. On April 25, 2006, appointed counsel for Rodrig uez, Chaidez and Muniz filed supplemental petitions, again asserting that an arbitrar y and unconstitutional disparity existed between their sente nces and Salgado’s 28-y

ear sentence. Appointed counsel also argued that petitioners had improved themselves while inca rcerated and attached documentation showing their accomplishments in prison. On April 17, 2007, Judge Egan de nied the State’s motions to dismiss the postconviction petitions and determined that the petitions should proceed to an evidentiary hearing. At the commencement of an evidentiary hearing before Judge Mar y Marg aret Brosnahan on November 7, 2007, argument was held re garding petitioners’ motion to bar the State from calling Judge Sing er to test

ify at the evidentiar

y he aring a

nd their a lternati ve motion to

limit Judge Singer’s testimony. Petitioners a rgued that the State failed to appeal from Judge E pstein’s order granting Salga

do’s postconviction petition and could not present Judge Singer’s testimony to challenge Judge Epstein’s determinations. They also argued that the existing trial record adequately

showed Judge Singer’s views and was more proba tive than any statements he made over 10 yea

rs later. In addition, petitioners arg ued that if Judge Singer testified, the trial court should not permit the State to question him regarding Judge Epstein’s decision to gr ant Salgado’s postconvi ction pet

ition, vac ate his a

ttempted m

urder c onviction

or rese ntence h im to 28 y

ears in prison for murder. In re sponse, the State did not challenge codefendants’ r elative levels of culpability as found by

Judge Singer but argued that Salga do’s 28-yea

r sentence was arbitrary and resulted from a chain of errors, notwithstanding the State’s failure to appeal Judge Epstein’s1-08-1006, 1-08-1007 & 1-08-1013

8

or de r g ra nt in g S al ga do po st co nv ic ti on re li ef . A ft er he ar in g J ud ge Si ng er ’s pr of fe re d t es ti mo ny, Judge Brosnahan found it was nearly impossible to determine whether Judge Singer’s testimony was appropriate without hearing the testimony . As a result, the court denied the motions but offered to consider additional argume nts following Judge Singer’s testimony
. Judge Singer testified, in pertinent part, that he would have submitted an attempted murder instruction to Salgado’s jury over his objection. Judge Singer also testified that at the original sentencing hearing , he pointed out that Salgado was convicted of two offense s, whereas th e ot her cod efe nda nt s we re n ot , t o ex pl ain why S alg ado was rec eiv in g tw o se nt enc es. In addition, Judge Singer testified that Salgado was the most culpable and he would not have imposed a

lesser se ntence on Salga

do due to h

is good prison con

duct aft er he wa s initially sentenced. Following Judge Singer’s testimony and further argument, Judge B rosnahan stated she would take under consideration the propriety of Judge Singer’s testimony and decide the extent of its relevance to the ultimate ruling on the postconviction petitions. Petitioners’ trial records were admitted into evidence, as well as cer tain evidence of petitioners’ achievements in prison. In addition, petitioners argue d that because they were similarly situated to Salg ado, aside from their relative levels of culpability , their sentences were impermissibly disparate to his 28-ye ar sentence. The State argued that pe titioners’ sentences were correc t, Salgado’s sentence resulted from Judge Epstein’s errors and petitioners’ rehabilitation was not to be re warded. At a hearing on Februar

y 7, 2008, Judge Br

osnahan presented a written order dismissing the three petitions. Regarding petitioners’ cha llenge to Judge Singer’s testimony , the trial court1-08-1006, 1-08-1007 & 1-08-1013

9

found his t

estimony regar ding whe ther he t ook into ac count the

attempte d murder

convicti on in sentenc ing Salg ado for m urder w as rele

vant, nec essary

and could

not be obta

ined by other me ans, but struck Judge Singer’s testimony regarding the proprie

ty of submitting the attempted murder instruction to the jury and Judge Epstein’s de cision to resentence Salgado to 28 y ears in prison. In dismissing the petitions, Judge Brosnahan f ound Judge Epstein’s decision in the Salgado case had no effec t on her decision because it was not an appellate cour t decision and she disagreed with the reasoning a nd logic which led to the reduction of Salgado’s se ntence. Specifically, she f

ound Judge Epstein incorrectly determined that the evidence would not support an att empte d murd er ins truct ion, that t he St ate cou ld no t prov e atte mpted murde r and t hat J udge Singer t ook into ac count the

attempte d murder

charg e when se

ntencing Salgad o for mur der. As a result, she declined to use t he 28-y ear pri son term a s a standa rd of com parison f or petitioners’ sentenc es. Judge

Brosna han state d that she

could not b e persua

ded that w

hat happe ned in Salgad o’s case “mandat es a comp lete disma

ntling of the rema ining thr ee co-d efenda nts’ sentences which have already passed appellate scrutiny ,” and found that the sentences were consiste nt when in

itially entere d. Accor

dingly , the cour t found pe

titioners failed to demonstr

ate their sen tences w ere gr

ossly dispara te and dis missed the

petition. F ollowing

argume nts on Apr

il 3, 2008, the trial court denied petitioners’ motions to reconsider the dismissal of their petitions. Petitioner s now appe al. ANA LYSIS On appeal, petitioners assert the trial court erre d in dismissing their petitions following an evidentiary he aring under the Act because they demonstrated a

constitutional violation resulting1-08-1006, 1-08-1007 & 1-08-1013

10

from an arbitrary

disparity betwee

n their sentences and the lower sentence ultimately received by Salgado, who was similarly situated. This would appear to be a question of first impression under the Act, with these thr ee petiti oners contending

that they are ent itled to re lief bec ause the ir rights were violated when their more culpa ble codefendant got a reduc ed sentence by claiming that his rights were violated in the underly ing trial. On its face, therefore, this appe al suffers from an uncorrectable infirmity because it does not claim error in the procee ding in which the three were convicted. The Act provides a

remedy to crimina

l defend ants for substantia

l violation s of their constitutional rights that occurred in their original trial. People v. Taylor , No. 107701, slip op. at 12 (Marc h 18, 2010) . A postconviction proceed ing is co llatera

l to, rathe r than an appeal f rom, the underlying

judgment and permits the review of constitutional claims that could not have been adjudicated on direct appeal. Taylor , slip op. a t 12; People v. Ortiz , 235 Ill. 2d 319, 328-29 (2009). In noncapital ca ses, there are three stag es of proceedings under the Act, the third of which is an evidentiary

hearing. People v. Beaman , 229 Ill. 2d 56, 71-72 (2008). During the third stage, the defendant carr ies the burden of presenting a substantial showing of a constitutional violation. People v. Pendleton , 223 Ill. 2d 458, 473 (2006). We generally

review the trial court’s denial of a postconviction petition following an evidentiary he aring to determine whether it was manifestly erroneous, which occurs when an error is clearly

plain, evident and indisputable. Ortiz , 235 I ll. 2d at 33 3. If no credi bility determinations are necessary , i.e. , no new evidence is presented and the issues are purely leg al questions , we review the tr ial cour t’s judg ment de novo , unless th e presid ing judg e has some1-08-1006, 1-08-1007 & 1-08-1013

11

relevant special expertise or familiarity with the trial or sentencing of the defendant. Beaman , 229 I ll. 2d at 72 ; Pendleton , 223 Ill. 2d at 473. I n addition, this court has held that where the trial court made credibility

determinations or factual findings that were unne cessary , so that our decision on review is not dependent on such findings, we re view the trial court’s decision de

novo . See People v. Lane , 398 Ill. App. 3d 287, 296 (2010). Although the parties agree tha t we are to review the trial court’s dec ision under the manifest weight of the ev idence s tandard , for re asons to be explained , our dispo sition in thi s case doe s no t d epe nd o n an y fact ual fin di ngs mad e by t he t ria l co urt in di sm is si ng t he p eti ti ons . In addition, Judge Br

osnahan did not hav e any

special expertise or famili arity

with petiti oners’ sentencing proceedings. Rathe r, the question of whether petitioners in this case demonstrated a substantia l constitut ional viola

tion base d on a sen

tencing disparity require s no cred

ibility determinations an

d presen ts a pure ly le gal issue. Thus, o ur standa rd of re view is de novo
. An arbitrary

and unreasonable disparity between sentences imposed on codefenda nts who are similarly situated is impermissible (People v. Godinez , 91 Ill. 2d 47, 55 (1982)), but a mere disparity in sentences is not

alone a v iolation of

fundame ntal fair ness ( People v. Martinez , 372 Ill. App. 3d 750, 759-60 (2007)). I t is not the disparity that counts, but the reason for the disparity. Martinez , 372 I ll. App. 3d at 760; People v. Foster , 199 Ill. App. 3d 372, 393 (1990). A difference in sentences may be justified by factors including the codefendants’ releva nt character and history, their degree of culpability, their criminal records or their rehabilitative potential. Martinez , 372 I ll. App. 3d at 760; Foster , 199 Ill. App. 3d at 393. I n addition, a defendant is not precluded from raising a dispa rate sentencing challeng e merely be cause he was1-08-1006, 1-08-1007 & 1-08-1013

12

sentenced prior to his codefendants by a different judge. People v. Banks , 241 Ill. App. 3d 966, 984 (1993). Our supreme court has also stated, albeit in a ca pital case, that a disparity between noncapital sentences presents a cog nizable claim under the Act. People v. Caballero , 179 Ill. 2d 205, 215 (1997), but see People v. Caballero , 206 Ill. 2d 65, 75 (2002) (the supreme c ourt stated it was required to ensure that capital cases ar e rationally distinguished f rom noncapital cases). Initially , we question whether this was an error occur ring in the original proceeding as required by

the Act. Pursuant to section 122-1(a) of the Act, “[a]ny person imprisoned in the penitent iary who asse rts that in the proceedings which resulted in his or her conviction there was a substan tial denia l of his or her rig

hts under the Constit

ution of th e United S tates or o f the State of Il linois or both may

institute a

procee ding und

er this ar ticle.” ( Emphasis a

dded.) 7 25 IL

CS 5/122-1(a) (West 2000); see also People v. Keller , 353 Ill. App. 3d 830, 832-33 (2004) (the defendant’s claim that the Department of Correc tions misinterpreted his sentence was not cognizable under the Act, because it did not pertain to any flaw in the proceedings that occurr ed before his conviction); People v. Jones , 321 Ill . App. 3d 515 , 519 ( 2001) , citi ng People v. Flores , 153 Ill. 2d 264, 276-77 (1992) (ineffe ctive assistance of postconviction counsel claims are beyond th e scop e of th e Act b ecause they are no t base d on an error t hat oc curred in pro ceedin gs resulting in a conviction). It is undisputed that the proc eedings which led to the imposition of codefendants’ sentences did not result in a sentencing disparity, but rather, the

disparity occurr

ed
severa l ye ars afte

r petitioners and Sa

lgado w ere ori ginally

convicte d and sen

tenced. Nonethe less, assuming this requirement is satisfied where a codef endant challenges his original sentenc e, we find no constitutional violation.1-08-1006, 1-08-1007 & 1-08-1013

13

Here, the partie s primari ly d ispute whe

ther pet itioners’ sentenc es are t

o be compa

red with the 50-yea

r sentence Salgado initially received from Judge Singer, or the 28-year se ntence Salgad o ultimate ly r

eceive d from Judg e Epstein . Nonethe less, eve n assuming

that petit ioners’ sentences must be compared to Salgado’s 28-y ear sentence, this does not end our inquiry
. Rather, we must examine the reason for the disparity between the codefendants’ sentenc es. Althoug h petitione

rs arg ue they were le ss culpab le than Sa lgado a nd were similarly situated t o Salgad o in terms o f rehab ilitative p otential a nd their la

ck of cr iminal re cord, we

do not find

these factors to be exhaustive in examining the reason for a disparity between codefendants’ sentence s. We cannot

ignore that the d isparity betwee n their se ntences arose on ly w hen Judge

Epstein determined that hi s decisio n to vaca te Salga do’s atte mpted murd

er convi ction also

require d him to vacate Salagdo’s murder sentenc e. Absent Judge Epstein’s ruling, which we find to be erroneous, Salgado would not have been r esentenced to 28 y

ears in prison. Petitioners’ argument that the doctrines of collateral estoppel and laches preven t us fr om ex amini ng how J udge Epstein’ s ruling

contribu ted to the disparity betwee n codefe ndants’ s entence s is misplac ed. This would both ignore our duty to consider the reason for the sentencing disparity and misapply

the aforementioned

doctrine s. Application of the collateral estoppel doctrine requires that ( 1) the court entered a final ju dg me nt in th e p re vi ou s c as e; (2 ) t he pa rt y ag ai ns t w ho m e st op pe l i s a ss er te d w as ei th er a p ar ty, or in privity w

ith a par ty, in the pre

vious cas e; and (3 ) the issue determined in the previous c ase is identical with the issue presented in the instant case. People v. Tenner , 206 Ill. 2d 381, 396 (2002 ), cit ing People v. Frankli n , 167 I ll. 2d 1, 12 ( 1995). I n addition

to those th

reshold1-08-1006, 1-08-1007 & 1-08-1013

14

requirements, in criminal cases, the mutuality requirement is necessary for the application of collateral estoppel. Frankli n , 167 Ill. 2d at 12-13. Pursuant to that requirement, a c riminal defendant may

not use a prior judicial finding against the State unless the def endant himself was bound by the prior finding
. People v. Martinez , 389 Ill . App. 3d 413 , 418 ( 2009) , citi ng Frankli n , 167 Ill. 2d at 12. Reasons for requiring mutuality of parties in criminal ca ses include the State’s interest in a full and fair opportunity to litigate an issue and the important interest in the enforcement of the criminal law. Frankli n , 167 Ill. 2d at 13-14. The State’s burden a lso differs regarding eac

h individual defendant. Martinez , 389 Ill. App. 3d at 418. We first observe that although Judge Epstein’s order g ranting Salgado postconviction relief a nd Judge E

pstein’s s eparat

e order resente ncing Sa lgado to 28 years in prison wer

e both final, only the former

order was appealable by

the State. Compare People v. Scott , 194 Ill. 2d 268 (2000 ), citing

134 I ll. 2d R. 651 (a) (where a po stconvic tion trial judge d ecides t hat a defendant should receive a new sente ncing hearing, the State may appeal that determination before the new sentencing he aring is held), and People v. Joyce , 1 Ill. 2d 225, 227 (1953) (same), with People v. Cosby , 305 Ill. App. 3d 211, 232 (1999) (the State cannot a ppeal sentencing issues (155 Ill. 2d R. 604(a)), and a r eviewing court has no power to increa se a defendant’s sentence on appeal (155 Ill. 2d R. 615(b))). More impor tantl y, the mu tuali ty requ irem ent h as no t bee

n sati sfie d in th

is ca se. We categorically

reject petitioners’ assertion that they were bound by

Salgado’s postconviction proceedings or resentencing proceedings. Stating the obvious, it was not their postconviction petitions that were being ruled on by Judge Epstein, but Salgado’s. Similarly, the 22-year1-08-1006, 1-08-1007 & 1-08-1013

15

sentence reduction was given solely to Salgado. In addition, we find pe titioners’ suggestion that the mutuality requirement should not be applied be cause they are not trying

to use a judgment entered in favor of Salgado to their bene fit, to be entirely disinge nuous. Petitioners do not cite, and we do

not find, a

ny c ases gr

anting t his court discreti on reg arding

applica tion of the

mutuality requirement. Even if we had such discretion, petitioners ar e clearly asking us to give them the advanta ge of r ulings in Salgad o’s favor without q

uestionin g the re asons or propriety of those rulings. Put another way , one wrong under the Act does not give these three rights under the Act that they otherwise would not be entitled to. Because petitioners were not bound by Salgado’s postconviction proceedings or resentencing proceedings, the mutuality requirement has not been satisfie d and we w

ill not adopt the sophi stry that petit ioners wo uld appea r to be ur ging u pon this court. We also find laches does not prohibit the State from arguing that Salgado’ s murder sentence should not have been vacated. The laches doctrine bars claims brought by parties who neglect their rights to the detriment of other pa rties. People v. McClure , 218 Ill. 2d 375, 389 (2006). The application of laches require s demonstr ating a lack of d ue dilig ence by

the part y asserting a claim and prejudice re sulting to the party a sserting the laches doctrine. People v. Wells , 182 Ill. 2d 471, 490 (1998). We find petitioners have failed to demonstrate that they were prejudiced as a result of the State’s failure to appeal Judge Epstein’s order g ranting Salgado postconviction relief. As stated, the orde r vacat ing Salg ado’s 50-ye ar sente nce is se parate from the o

rder re sentenc ing Salg ado to 28 years in prison, a

n order which the State was not permitted to appeal. Petitioners assert they1-08-1006, 1-08-1007 & 1-08-1013

16

have been prejudiced by

the State’s failure to appeal from the former or der because “the resol utio n of [ the ap peal] would have go verned over t he pro ceedin gs belo w, rat her th an Ju dge Singer’s testimony a

nd the circuit court’s own impressions of Judge Epstein’s ruling.” Any alleged benefit that would have inured to petitioners would ne cessarily be speculative at best. Had the St

ate appe aled, we

very much doub t, for re asons we will explain , that any

panel of this court would have affirmed the vacating of the 50-ye ar murder sentence. Although petitioners also argue that the present appea l would not exist if Salgado’s 50-year sentence had been reinstated on the State’s appeal, we do not see how that would have benefitted petitioners. Accordingly , they have not de monstrated the prejudice necessary for the application of laches
. Petitioners correctly

state that where the record suggests the length of a defendant’s sentence for a particular offe nse may have

been increased due to the existence of an additional convicti on, and th at additional convi ction is sub sequentl y va cated, i t may be appro priate to vacate the first sentence and rema nd for resentencing. See People v. Johnson , 314 Ill. App. 3d 444, 451 (2000). Here, however, the rec ord shows that Salgado’s attempted murder conviction did not lead to an increased murder sentence. Petitioners a nd Judge Epstein have relied on the follo wing i solat ed sta temen ts mad e by Judge Singe r at se ntenc ing:

“First I point out the most obvious, Victor Salgado wa s convicted of 2 offenses. First degree mur der and attempt first degree murde r. The other 3 were not.” When read in isolation, this may sugg est the court considered Salgado’s additional conviction for attempte d murder

as an aggrava

ting fa ctor as to his murde

r senten ce. The facts of this case1-08-1006, 1-08-1007 & 1-08-1013

17

demonstrate the folly of

such an isolated reading. It is undisputed that at sentencing, Judge Sing er set forth the following hierarchy of culpability: Salgado, Muniz, Rodriguez and Chaide z. Judge Singer sentenced Salgado and Muniz, res

pective ly, to 50 y

ears’ im prisonme nt and 48 y

ears’ im prisonme nt. Under

these circumstances, the record shows that the mere two-year discrepancy

between Salgado’s sentence and the sentence received by Muniz resulted from their varying culpability, rather tha

n Salgado’s additional conviction for attempted murder. Had Judge Singer c onsidered Salgado’s attempted murder conviction in aggrava tion as to his murder sentence, Salgado would not have rec eived a mere two-year increase from Muniz’s sentence. B ecause the record shows that the attempted murder conviction had no bearing on the sentenc e Judge Singer imposed on Salgado for murder , Judge Epstein’s subsequent decision to vacate the attempted murder c onviction had no meaning ful effe ct on Salg ado’s mur der sent ence. T hus, we f ind Judge E

pstein’s d ecision to vacate Salgado’s murder sentenc e was unwarranted. Although the lenient 28-year se ntence subsequently imposed on Salga do may have be en appropriate based on Salgado’s r ehabilitation in prison, we cannot ignore that Salgado should not have be en placed in the position to be resentenced. See 730 I

LCS 5/5-5-3(d) (West 2000) (where a n original sentence is vacated and the case remanded to the trial court, evidenc e of the defendant’s life, occupation and mora l character “during the time since the original sentence was passed” ma y be prese

nted). To the extent that a disparity exists between codef endants’ sentences, there is but one arbitrary sentence, the 28-y

ear sentence received by

Salgado. It is not within this court’s power to correct the error leading to that sentence. Petitioners’ sole claim to relief is impermissibly tied1-08-1006, 1-08-1007 & 1-08-1013

18

to the gratuitous sentence reduction as a re sult of Judge Epstein’s error. This falls short of showing a constitutional violation and no just cause would be furthered by the compounded error petitioners seek. Judge Brosnahan properly denied their petitions. Rely ing on the special witness do ctrine, petitione rs also a ssert Judg e Brosnahan er red in permitting Judge Singer to testify at the evidentiary

hearing regar

ding whether he considered Salgado’s attempted murder conviction in fashioning his murder sentence. Pursuant to the special witness doctrine, when a party in a criminal case requests the testimony of a special witness, including a judge, that party must (1) specify the te stimony to be elicited from the witness; (2) state w

hy t he testimony i s necess ary and rele vant to the

party ’s case ; and (3)state what efforts have been made to secur e the same evidence through other me ans. People v. Willis , 349 Ill. App. 3d 1, 17 (2004). We review the c ourt’s decision whether to permit a special witness’s testimony for an abuse of discretion. People v. Palacio , 240 Ill. App. 3d 1078, 1095-96, 1102 (1993). Petitioners argue that Judge Brosnahan a bused her discretion in permitting Judge Singer to testify because

the trial transcript speaks for itself. As stated, we ag ree that the transcript speaks for itself. It shows that Judge Singe r did not consider Salgado’s attempted murder conviction in fashioning Salgado’s murder sentenc e. Thus, Judge Singer’s testimony was not necessary to the State’s case and did not satisfy the special witness doctrine. Nonetheless, the evidence improperly

admitted here merely

duplicates evidence already in the record and in no way af fects our review and we find the er ror was harmless. Cf. People v. Reynolds , 284 Ill. App. 3d 611, 613-15, 617 (1996) (where the defenda nt filed a postconviction petition alleging his trial1-08-1006, 1-08-1007 & 1-08-1013

19

judge made an improper ex parte comme nt to his t rial c ounse l, th e post convi ction judge improperly denied the

defendant’s motion to subpoena the trial judge and reve rsal was required for fur ther pro ceeding s on the de fendant ’s postconviction p etition). Petitioner s would g ain noth ing fro m a seco nd evi denti ary hearin g. For the f orego ing rea sons, we a

ffirm the judgmen t of the tr ial cour t. Affirmed. FITZG ERALD SMITH, and HOWSE, JJ., concur.1-08-1006, 1-08-1007 & 1-08-1013

20 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THE PEOPLE OF THE ST ATE OF ILLIN

OIS, Plaintiff-Appellee,
v. VICTOR RODRIGUE

Z, Defenda nt-Appella

nt.

_________________________________________

THE PEOPLE OF THE ST ATE OF ILLIN

OIS, Plaintiff-Appellee, v. OMAR CH

AIDEZ, Defenda nt-Appella

nt.

_________________________________________

THE PEOPLE OF THE ST ATE OF ILLIN

OIS, Plaintiff-Appellee,
v. FRANCIS CO MUNIZ,

Defenda nt-Appella

nt.
No. 1-08-1006, 1-08-1007, 1- 08-1013 (Cons.)

Appellat e Court of Illinois First Dist rict, FIFT H Divisi on June 30, 2010 (Give month, day

and yea r) JUSTIC E LAVI

N deliv ered the opinio n of the

court: Fitzgerald Sm

ith and Howse, JJ., concur

Lower Court and T rial Judge(s) i n form indicated in t he margin: The Honorabl e________________ Mary Mar garet Brosnahan , Judge Presiding.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorneys for Respondent-Appellee : Anita A lvarez , State’s A ttorney Th e Pe ople Alan J. Spellberg , Rimas F. Cernius , Nancy Coll etti , Of Counsel County of Cook Room 309, Richard J. Daley Center Chica go, I L 60602 Attorneys for Petitione rs-Ap pellants: Michael Pell etie r, St ate Appell ate Defender Victor Rodrig uez Rebecca I. Levy, Assistant Appellate Defender. Omar Chaidez 203 N. LaSal le St ., 24th f loor Fran cisco M uniz Chica go, I L 60601 312.814. 5472 Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Criminal Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add