2021 IL App (1st) 180884-U

No. 1-18-0884 

Order filed January 26, 2021. 

Second Division 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

JOHN SMITH, 

 Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 12 CR 19771 

The Honorable 

Diane Cannon, 

Judge Presiding. 

JUSTICE LAVIN delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment. 

ORDER

¶ 1 Held: We affirm defendant’s conviction for armed robbery, concluding that his trial 

counsel was not ineffective for failing to investigate and present the affirmative 

defense of self-defense.

¶ 2 Following a bench trial, defendant John Smith was found guilty of five counts of armed 

robbery (720 ILCS 5/18-2(a)(2), (3), (4) (West 2012)), and not guilty of five counts of attempt first 

degree murder. The trial court merged the armed robbery counts and sentenced defendant to a 
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mandatory term of life imprisonment based on his criminal history. Defendant appeals, arguing 

his trial counsel was ineffective for failing to investigate and present the affirmative defense of 

self-defense based on an unreasonable assessment of the case. We affirm.

¶ 3 The State charged defendant and codefendant, Kelvin Christopher, with five counts of 

attempt first degree murder, one count of aggravated battery with a firearm, and five counts of 

armed robbery.1 The State alleged that, on October 2, 2012, defendant and Christopher shot the 

victim, Ian Zarco, causing great bodily harm to Zarco, and took from him a backpack. 

¶ 4 At trial, Zarco testified that, in October 2012, he was a full-time student who also sold 

marijuana. Around 1:30 p.m. on October 2, 2012, he planned to meet a mutual friend named Frank

near a pizza parlor at Pulaski Road and Barry Avenue and sell to Frank two pounds of marijuana 

for $8000. Before Zarco arrived, Frank called and told him he could not make it and that he was 

sending one of his friends, who Frank did not name but described as an older black man.

¶ 5 Zarco arrived at the pizza parlor and saw defendant. Zarco approached defendant, carrying 

his backpack, which contained two pounds of marijuana, and the two men “verbally confirmed 

that [they] were the people that were supposed to meet.”

¶ 6 The two men walked to the alley west of Pulaski, between Barry and Nelson Street “where 

it was less populated” to complete the transaction. The two made small talk while walking and, 

once in the alley, defendant pulled out a silver pistol with his right hand and put it in Zarco’s 

stomach, interrupting him midsentence. Zarco turned his body toward the right and tried to push 

the pistol away from him but defendant shot Zarco in the stomach, causing him to fall to the 

1

Christopher is not a party to this appeal.
No. 1-18-0884 

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ground. Defendant bent down and picked something up from the ground, which Zarco believed to 

be shell casings. 

¶ 7 While defendant was bent over, Zarco felt someone tugging on his backpack, which he was 

wearing on his back. Zarco did not see the second person in the alley when he and defendant 

entered. Zarco kept his arms down to prevent the person from taking the backpack but when 

defendant came to aid whoever was pulling the backpack, Zarco relinquished it because he did not 

want to get shot again. Defendant and the other “party in his company” took the backpack. After 

a woman stuck her head out of a window and yelled something, defendant and the other person 

ran away.

¶ 8 An ambulance arrived and transported Zarco to the hospital, where he had surgery and was 

placed into a medically induced coma for three to four weeks. He did not speak to police 

immediately after waking from his coma because he was “heavily medicated,” and it was not until 

five to six weeks after the incident that he met with police and identified defendant as the person 

who shot him. Zarco was never able to identify the second person in the alley.

¶ 9 On cross-examination, Zarco testified he was not armed. When asked whether it was true 

that he pulled out a gun to rob defendant and defendant turned the gun back on him, Zarco 

answered, “No.” Zarco also testified he told defendant the marijuana was on his person. 

¶ 10 The State also presented the testimony of three witnesses, Crystal Ortiz, Aide Gordillo, and 

Nancy Orozcko, all of whom saw defendant running with another man from the alley where Zarco 

was shot but none of whom witnessed the actual shooting. Ortiz testified that she walked behind 

defendant and Zarco on Pulaski for a couple of minutes but crossed the street when their loud 

talking made her nervous. She turned onto Nelson, heard a gunshot, and then saw defendant 
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running with a gun in his hand. Defendant tucked the gun into his waistband and ran into an alley 

with another man. Later that night, she viewed a physical lineup and identified defendant as the 

person she had seen with Zarco and later running out of the alley with a gun. 

¶ 11 Gordillo testified she was eating lunch in the dining room of her second-floor apartment in 

the 4000 block of West Nelson, when she heard a gunshot that sounded like it came from the alley. 

She opened the window, looked in the alley, and saw a young Hispanic man lying on the ground. 

She also saw defendant standing next to some garbage cans and a third man standing next to the 

victim. Defendant had something in his hand, but Gordillo did not know if it was a backpack. 

Defendant and the third man ran through the alley in the same direction, one after the other, across 

the street, and into the alley on the other side. She later identified defendant in a physical lineup. 

¶ 12 Nancy Orozcko testified she was eating lunch with Gordillo when she too heard a gunshot. 

She looked out the window and saw a man lying on the ground and two other men running away 

from her toward an alley. She did not see either man’s face but saw one of the men had “a very 

shiny bald” head with “two dents in the back.” The bald man was holding the front of his pants as 

he ran and the other man was carrying a backpack. About 20 minutes later, a police officer drove 

Orozcko about two blocks south to look at two men who were in police custody. The police showed 

Orozcko the back of the men’s heads, and she recognized defendant as the man who had been 

holding the front of his pants because of his body shape, “very unique-shaped head,” and clothing. 

¶ 13 Detective Paul Peraino testified that, on October 2, 2012, he received an Office of 

Emergency Management and Communications (OEMC) message regarding a person who had 

been shot and a description of a fleeing offender. Around 2:10 p.m., “within minutes” of receiving 

the OEMC message, Peraino saw defendant sitting in the passenger seat of a sedan driven by Frank 
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Gladney, which was leaving the vicinity of the shooting. He pulled the vehicle over, and Orozcko 

was brought to the scene, where she identified defendant. Peraino searched defendant’s person and 

the sedan but did not find a gun, money, backpack, or drugs. 

¶ 14 The State rested. Defense counsel informed the trial court defendant had elected not to 

present any evidence. The court asked defendant whether he understood he had the right to testify 

and, while his attorney could give him advice, it was his choice whether to testify. Defendant stated 

he understood. The court also asked defendant whether he had been promised anything or 

threatened to keep him from testifying, and defendant indicated he had not. Finally, the court asked 

defendant whether he understood his attorney was resting without calling witnesses and whether 

he agreed with that decision, and defendant answered in the affirmative. 

¶ 15 In closing, defense counsel argued defendant had been misidentified as the offender. In 

announcing its findings, the trial court noted the witnesses had testified clearly and credibly and 

had no motive to lie. The court found defendant did not act with the intent to kill but “most certainly 

went there with the decision to rob,” and he, in fact, knowingly took the backpack from Zarco by 

the use of force, “that being shooting and personally dicharg[ing] the firearm” into Zarco’s 

stomach. The court also found defendant’s personal discharge of the firearm caused great bodily 

harm to Zarco. Accordingly, the court found defendant guilty of the armed robbery counts, not 

guilty of the attempt first degree murder counts.2

2

It is not clear whether the trial court found defendant guilty of the aggravated battery with a 

firearm count. The court stated “the great bodily harm takes care of the aggravated battery” but did not 

state whether there was a finding of guilt entered on that count. In any event, we find this discrepancy to 

be of no consequence where the court did not impose sentence on the count.
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¶ 16 Thereafter, at defendant’s request, the court granted trial counsel leave to withdraw, and 

defendant asked the court for a continuance to file a “Krankel motion” (People v. Krankel, 102 Ill. 

2d 181 (1984)). Instead, the court appointed a public defender to assist defendant with his posttrial 

motion. 

¶ 17 Defendant filed a supplemented motion for a new trial, which included, inter alia, a claim 

of ineffective assistance of trial counsel based on counsel’s failure to investigate and present the 

affirmative defense of self-defense. Defendant attached three affidavits to the motion. After a 

hearing, during which the State presented testimony from trial counsel, the trial court denied the 

motion. 

¶ 18 The trial court thereafter found defendant was eligible for a mandatory sentence of life 

imprisonment based on his criminal history and sentenced him accordingly. Defendant filed a 

motion to reconsider sentence, which the court denied. This appeal followed. 

¶ 19 On appeal, defendant contends that his trial counsel was ineffective for failing to 

investigate and present the affirmative defense of self-defense based on an unreasonable 

assessment of the case. 

¶ 20 Before addressing the merits of defendant’s argument, we note the parties dispute the 

applicable standard of review. Defendant, citing People v. Ortega, 2020 IL App (1st) 162516, ¶ 

24, argues we should apply a bifurcated standard of review, under which we defer to the trial 

court’s factual findings but review de novo its ultimate determination as to whether counsel’s 

actions supported an ineffective-assistance claim. The State, citing People v. Tolefree, 2011 IL 

App (1st) 100689, ¶ 25, argues that when a trial court reaches a determination on the merits of a 

defendant’s posttrial ineffective-assistance claim, we may reverse only if the trial court’s action 
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was manifestly erroneous. We need not resolve the parties’ dispute, however, because the result in 

this case would not change under either standard of review. 

¶ 21 To prevail on a claim of ineffective assistance of counsel, the defendant must show his 

counsel’s performance fell below an objectively reasonable standard and the deficient performance 

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Caballero, 126 Ill. 

2d 248, 259-60 (1989). “More specifically, the defendant must demonstrate that counsel’s 

performance was objectively unreasonable under prevailing professional norms and that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings 

would have been different.” (Internal quotation marks omitted.) People v. Cherry, 2016 IL 118728, 

¶ 24. Because defendant must meet his burden on both the performance and prejudice prongs, 

courts may resolve ineffective assistance claims by deciding only the prejudice prong. See id.

¶ 22 The State argues counsel was not ineffective because the affirmative defense of selfdefense is not available as a defense to forcible felonies such as armed robbery. According to the 

State, self-defense was not a viable defense with respect to the armed robbery charges because the 

taking of the backpack from Zarco, who was lying wounded on the ground when it was taken, 

could not possibly have been justified by defendant’s purported need to defend himself from Zarco. 

We agree. 

¶ 23 Under Illinois law, the defense of self-defense is not available to a defendant who is 

committing, attempting to commit, or escaping after having committed a forcible felony such as 

armed robbery. 720 ILCS 5/7-4 (West 2012); 720 ILCS 5/2-8 (West 2012) (robbery is a forcible 

felony); see also People v. Gates, 47 Ill. App. 3d 109, 115 (1977) (the defense of self-defense was 
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unavailable to the defendant because he was accountable for the commission of an armed robbery).

On this point, People v. Graves, 133 Ill. App. 3d 546 (1985), is instructive. 

¶ 24 In Graves, the defendant was charged with armed robbery and unlawful restraint. At trial, 

the victim testified he went to the defendant’s apartment after meeting him at a bar in Chicago. At 

the apartment, the two began to struggle, during which the victim “was kicked and beaten, bound 

with neckties from the closet, threatened with knives from the kitchen[,] and asked for money.” 

Id. at 547. The defendant eventually took the victim’s college ring, his keys, and a dollar bill before 

leaving. Id. The defendant testified the victim invited him back to his apartment, sexually assaulted 

him, and grabbed a knife, after which the defendant struck, choked, and kneed the victim until he 

obtained possession of the knife. Id. The defendant also testified the victim retreated, asked not to 

be cut, and gave the defendant a dollar, which the defendant then threw back in the victim’s face. 

Id. During the jury instruction conference, the defendant tendered an instruction on the issue of 

self-defense, which the trial court refused pursuant to the State’s objection. Id. at 548. 

¶ 25 On appeal, the defendant argued the trial court’s refusal of his self-defense instruction was 

error. Id. The appellate court rejected the defendant’s argument, finding that, under Illinois law, a 

claim of self-defense is not available to a person who is attempting to commit, committing, or 

escaping after the commission of, a forcible felony. Id. at 549. The appellate court reasoned there 

was no evidence that either the taking of the victim’s property or the imposition of restraints upon 

him was the product of the defendant’s fear for his own safety. Id.

¶ 26 Here, the evidence at trial established that Zarco met with defendant in order for them to 

complete a narcotics transaction. Zarco’s backpack contained two pounds of marijuana, a fact 

defendant knew because Zarco told him it was on his person. As Zarco laid on the ground after 
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having sustained a gunshot wound, he felt another person tugging on his backpack. Zarco initially 

resisted the attempt to take the backpack but, when he observed defendant begin to assist the other 

person, he surrendered the backpack to avoid further harm. 

¶ 27 Even if we were to assume the gun belonged to Zarco, that he and defendant struggled over 

the weapon, and that defendant turned the gun back on Zarco at which point the gun fired, 

defendant and his accomplice’s taking of Zarco’s backpack could not have been justified. At that 

point, Zarco lay incapacitated on the ground, and defendant could not have reasonably believed 

the taking of the backpack containing marijuana was necessary to thwart Zarco’s use of force. See 

Graves, 133 Ill. App. 3d at 549. Accordingly, the self-defense claim defendant asserts his trial 

counsel should have investigated and presented was not a viable defense to the armed robbery 

charges. Therefore, defendant is unable to establish prejudice under Strickland, as the result at trial 

could not have been different had counsel pursued a self-defense theory. See Cherry, 2016 IL 

118728, ¶ 24. 

¶ 28 For the reasons stated, we affirm the trial court’s judgment.

¶ 29 Affirmed.