                                Illinois Official Reports

                                       Appellate Court



                           People v. Orasco, 2014 IL App (3d) 120633



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   JASON ORASCO, Defendant-Appellant.


District & No.            Third District
                          Docket No. 3-12-0633


Filed                     June 23, 2014
Rehearing denied          July 9, 2014


Held                       Defendant’s convictions for multiple offenses, including first degree
(Note: This syllabus murder, attempted first degree murder, armed robbery, and home
constitutes no part of the invasion, were upheld over defendant’s contention that his counsel
opinion of the court but was ineffective in failing to tender an instruction on compulsion, since
has been prepared by the defendant suggested the armed robbery and gave directions in
Reporter of Decisions connection with committing the crime, there was no evidence
for the convenience of defendant acted under a threat of great bodily harm or death, one
the reader.)               victim testified that defendant encouraged his companion to shoot the
                           victims, he did not take advantage of opportunities to withdraw, and
                           there was no reasonable probability the instruction would have been
                           given, even if tendered, but the cause was remanded for resentencing
                           in light of the statutory requirement that the consecutive sentences for
                           first degree murder and attempted first degree murder be served
                           consecutively with the sentences for home invasion and armed
                           robbery.


Decision Under            Appeal from the Circuit Court of Will County, No. 09-CF-1536; the
Review                    Hon. Amy Bertani-Tomczak, Judge, presiding.



Judgment                  Affirmed in part and vacated in part; cause remanded.
     Counsel on              John M. McCarthy, of State Appellate Defender’s Office, of
     Appeal                  Springfield, for appellant.

                             James Glasgow, State’s Attorney, of Joliet (Laura E. DeMichael, of
                             State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                             People.

     Panel                   JUSTICE SCHMIDT delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Lytton and Justice Holdridge concurred in the
                             judgment and opinion.


                                              OPINION

¶1          A Will County jury found defendant, Jason Orasco, guilty of three counts of first degree
       murder (720 ILCS 5/9-1(a)(1)-(3) (West 2008)), one count of attempted first degree murder
       (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), one count of home invasion (720 ILCS
       5/12-11(a)(2) (West 2008)), one count of aggravated battery with a firearm (720 ILCS
       5/12-4.2(a)(1) (West 2008)), and one count of armed robbery (720 ILCS 5/18-2(a)(2) (West
       2008)). The three first degree murder counts merged together, and the aggravated battery
       merged with the attempted first degree murder. The court sentenced defendant to consecutive
       sentences of 50 years’ imprisonment for first degree murder and 25 years for attempted first
       degree murder, to be served concurrently with sentences of 20 years for home invasion and 25
       years for armed robbery. Defendant appeals, arguing that his trial counsel was ineffective for
       failing to instruct the jury on the affirmative defense of compulsion. The State argues that
       counsel’s decision was strategic and, alternatively, that it did not prejudice defendant’s
       defense. In addition, the State claims that defendant’s sentence is void because all of
       defendant’s sentences must be served consecutively under section 5-8-4(d)(1) of the Unified
       Code of Corrections (Code) (730 ILCS 5/5-8-4(d)(1) (West 2008)). We affirm defendant’s
       convictions, vacate his sentences, and remand for resentencing.

¶2                                                  FACTS
¶3         Defendant was indicted on three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3)
       (West 2008)) (counts I, II, and III); one count of attempted first degree murder (720 ILCS
       5/8-4(a), 9-1(a)(1) (West 2008)) (count IV); one count of aggravated battery with a firearm
       (720 ILCS 5/12-4.2(a)(1) (West 2008)) (count V); two counts of home invasion (720 ILCS
       5/12-11(a)(2), (5) (West 2008)) (counts VI and VII); and one count of armed robbery (720
       ILCS 5/18-2(a)(2) (West 2008)) (count VIII). The cause proceeded to a jury trial.
¶4         At trial, Ashley Hill testified that she, defendant, Matthew Edwards, and Mary Vetor were
       at Vetor’s house on the night of July 6, 2009. Edwards commented that the group should rob
       somebody to earn some money. Defendant said he knew someone they could rob, a man named
       Josh Terdic, whom defendant had known for several years. Defendant explained that Terdic
       had money and drugs at an apartment he shared with his girlfriend in Channahon. Defendant

                                                  -2-
       said that Terdic worked construction and told the group his work schedule. The group decided
       to drive to Terdic’s apartment building and wait outside until he left for work, when they
       would beat him up and take whatever money he was carrying.
¶5         According to Hill, after the group decided to rob Terdic, Vetor gave Edwards a .22-caliber
       pistol to use for “protection.” Defendant saw Vetor give Edwards the gun. Defendant armed
       himself with a baseball bat. The four got in Vetor’s truck and drove to Terdic’s apartment
       building. Defendant gave Vetor directions along the way. Hill gave defendant and Edwards a
       prepaid cellular telephone to call for a ride after the robbery. Vetor dropped off defendant and
       Edwards to hide in a patch of trees down the street from Terdic’s building. Vetor and Hill
       stayed in the truck and smoked marijuana.
¶6         While Vetor and Hill were smoking in the truck, police arrived and ticketed them for
       possession of marijuana, but did not take them into custody. After the officers finished their
       investigation and left the scene, Vetor and Hill drove off and waited for a telephone call from
       defendant and Edwards. The next morning, Vetor received a phone call, and she and Hill
       picked up defendant and Edwards from a friend’s cabin in Channahon. Defendant appeared to
       be in shock.
¶7         The four drove to Vetor’s house. The men had obtained money, which they split four ways
       among them. They had also taken a PlayStation 2 and a Nintendo Wii. The group watched the
       television news and cheered when it showed a story about the robbery. Hill did not know if
       defendant was cheering. Police arrived at Vetor’s house that afternoon and arrested the four of
       them. Hill did not witness Edwards threaten defendant to participate in the robbery or witness
       defendant resist participating.
¶8         Lauren Vasilakis testified that on July 7, 2009, she was living with her boyfriend, Terdic.
       Early that morning she was awakened in their apartment by two men. One of them wore a
       mask; the other carried a gun. The masked man grabbed her from behind and put his arm
       around her neck. She could feel his heart “racing.” She recognized the masked man’s voice and
       knew he was defendant, whom she had known for more than 10 years and who was a friend of
       Terdic’s. The unmasked man, whom Vasilakis later identified as Edwards, left the bedroom to
       look for money and valuables. He gave defendant the gun to stand watch over Vasilakis and
       Terdic. When Edwards returned, defendant gave him back the gun.
¶9         Vasilakis heard Edwards threaten Terdic that if he did not give them more money, they
       would kill him. Edwards said that he had killed his own sister and had no remorse. When
       Terdic would not stop fidgeting, defendant pulled a bat out of his duffel bag and hit Terdic full
       force in the leg. Eventually, defendant and Edwards became convinced that they had recovered
       everything of value in the apartment. They discussed how to ensure that Terdic and Vasilakis
       did not call the police after they left. Vasilakis suggested that they could tie up her and Terdic.
       The men initially agreed, and Edwards gave the gun to defendant while Edwards tied them up.
¶ 10       Defendant then tried to choke Vasilakis into unconsciousness, but ended up only making
       her dizzy. Edwards and defendant conferred again, and Vasilakis heard defendant tell Edwards
       to “just do it.”
¶ 11       Vasilakis felt someone kneel over Terdic and heard a gunshot. Then someone kneeled over
       her, and she could feel a gun pointing at her head through a pillow. She heard two clicks and
       then a ringing sound and felt wetness around her ear. She played dead until the two men left.
       After they left, Vasilakis untied herself and called 911 from a neighbor’s apartment. Vasilakis


                                                    -3-
       was taken to the hospital and treated for a gunshot wound to the head. Doctors were unable to
       remove the bullet.
¶ 12        The State played for the jury a recorded interview with defendant conducted after his
       arrest. Throughout the interview, defendant states that Edwards was in charge and defendant
       participated because he was doing what he was told and had no choice but to participate.
       According to defendant, the plan to rob Terdic came about after Edwards browsed through the
       contacts listed in defendant’s cellular telephone. Upon seeing Terdic’s name, Edwards decided
       that the group should rob Terdic.
¶ 13        Defendant explained that Vetor gave him and Edwards a gun with instructions to kill
       Terdic and Terdic’s girlfriend. As defendant and Edwards waited in the trees near Terdic’s
       building, they witnessed the police investigating Vetor and Hill in the truck. According to
       defendant, Edwards said he was going to kill the officers if they arrested Vetor. After the police
       left, Edwards and defendant approached the building to find a way into Terdic’s apartment.
       Edwards found a way in, and defendant followed because he was scared.
¶ 14        Defendant stated that he and Edwards entered Terdic’s bedroom and woke Terdic and
       Vasilakis. Edwards told defendant to choke Vasilakis so that she could not move. Defendant
       did as he was told. Terdic told the men that he had money hidden in the apartment, but Edwards
       had already found the money in another room. Edwards instructed Terdic and Vasilakis to lie
       face down and put a pillow over each of their heads. Edwards gave defendant a bat and told
       him to hit Terdic with it if Terdic kept squirming. Terdic moved, and defendant hit him in the
       leg with the bat.
¶ 15        Edwards left the room to find some rope and gave defendant the gun to stand guard.
       Edwards returned and tied up Terdic and Vasilakis. Edwards and defendant were
       contemplating what to do with their captives. Defendant told Edwards that they needed to kill
       them to keep them from telling police. According to defendant’s statement, he did not really
       mean what he said and was only doing as he was told. Edwards then shot both Terdic and
       Vasilakis in the head. Defendant and Edwards left Terdic’s house and travelled to a friend’s
       cabin, where Edwards broke in. Edwards called Vetor and asked her to pick them up. When
       they split up the money, defendant received approximately $70. Defendant stated that Edwards
       had forced him to commit the robbery by pointing the gun at him and threatening to kill him if
       he tried to run or told police. Defendant did not explain when or where Edwards had made that
       threat.
¶ 16        During closing arguments, defense counsel argued that “[t]he facts don’t hold up the
       proposition of accountability.” According to counsel, defendant and Edwards were trying to
       determine what to do with their captives. At that point, defendant “heard a pop and turned, and
       then he saw [Edwards] shoot [Terdic]. This is far and above what [defendant] signed up for.
       There was no intent for all of this.” Then counsel changed approach, arguing that defendant
       was scared and his participation in the crime was merely “self-preservation” because he was
       scared that Edwards would kill him. Counsel focused on the facts that Vasilakis felt
       defendant’s heart racing and that defendant was in shock after the crime as evidence
       establishing that defendant was not a willing participant.
¶ 17        The jury was instructed on accountability but not on the affirmative defense of compulsion.
       Defense counsel never tendered an instruction on compulsion. The jury returned guilty
       verdicts on all counts.


                                                   -4-
¶ 18       At sentencing, the State informed the court of the sentencing ranges available on each
       count. The State asserted that counts I and IV (intentional murder and attempted murder) were
       required to run consecutively, but counts VII and VIII (home invasion and armed robbery)
       should run concurrently to each other and to counts I and IV. The court summarized, “the
       defense in the case is that you were terrified and there was nothing else you could do other than
       participate in this crime as far as it went.” The court then pronounced defendant’s sentences:
               “I agree with the State as far as the counts that Counts 2 and 3 would merge into Count
               1. There is the enhancement with the firearm. I will sentence you to 50 years in the
               Illinois Department of Corrections on that matter and that is at 100 percent.
                    Count 4 is the aggravated battery with a firearm.[1] I am going to sentence you
               consecutive because the law requires that it be consecutive to 25 years in the
               Department of Corrections at 85 percent.
                    Count 7, the home invasion, 20 years at 85 percent, that will be concurrent.
                    And the armed robbery, 25 years concurrent. There is a three-year mandatory
               supervised release period. You will be given credit for all time served that you’re
               entitled to, and I will enter judgment for any outstanding fines, costs, and fees.”
¶ 19       Defendant appeals.

¶ 20                                             ANALYSIS
¶ 21       On appeal, defendant claims that trial counsel provided ineffective assistance by failing to
       tender a jury instruction on the affirmative defense of compulsion (720 ILCS 5/7-11 (West
       2008)). The State responds that a compulsion defense was not supported by the evidence. In
       addition, the State claims that all of defendant’s sentences must be served consecutively under
       the mandate of section 5-8-4(d)(1) of the Code. 730 ILCS 5/5-8-4(d)(1) (West 2008).

¶ 22                               A. Ineffective Assistance of Counsel
¶ 23       Criminal defendants enjoy a constitutional right to effective counsel. U.S. Const., amends.
       VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668 (1984). To
       succeed upon a claim that counsel provided ineffective assistance, a defendant must show that:
       (1) counsel’s performance fell below an objective standard of reasonableness, and (2) but for
       counsel’s poor performance, there is a reasonable probability that the result of the proceedings
       would have been different. Strickland, 466 U.S. at 687. To establish deficient performance, a
       defendant must overcome a strong presumption that counsel’s actions were the product of
       sound trial strategy. People v. Manning, 241 Ill. 2d 319, 342-43 (2011). However, “[w]here
       defense counsel argues a theory of defense but then fails to offer an instruction on that theory
       of defense, the failure cannot be called trial strategy and is evidence of ineffective assistance of
       counsel.” People v. Serrano, 286 Ill. App. 3d 485, 492 (1997).
¶ 24       In the present case, defendant claims that counsel was ineffective for failing to tender a jury
       instruction on compulsion. The affirmative defense of compulsion is available when a

           1
            The court apparently misspoke, as count IV charged attempted first degree murder. The court’s
       written mittimus clarified that the court sentenced defendant to 25 years for attempted first degree
       murder, not aggravated battery. No sentence was imposed for aggravated battery as that count merged
       with the attempted murder count.

                                                    -5-
       defendant has committed criminal acts under a reasonable belief that death or great bodily
       harm would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/7-11 (West
       2008). The defense is not available if the compulsion arises from the negligence or fault of the
       defendant or if the defendant had any opportunity to withdraw from the criminal enterprise but
       failed to do so. People v. Humphries, 257 Ill. App. 3d 1034, 1044 (1994).
¶ 25        A defendant need only present some evidence of an affirmative defense–such as
       compulsion–in order to raise the defense and justify an instruction. People v. Pegram, 124 Ill.
       2d 166, 173 (1988). After a defendant raises a defense, the burden shifts to the State to prove
       beyond a reasonable doubt that defendant’s conduct was not justified by the offense. People v.
       Johns, 387 Ill. App. 3d 8, 13 (2008).
¶ 26        In the present case, defense counsel argued that defendant was compelled to commit the
       charged offense, but counsel failed to tender a jury instruction on compulsion. That error
       deprived the jurors of the ability to acquit defendant if they found that he acted under the threat
       of death or great bodily harm. However, defendant cannot succeed upon his claim of
       ineffective assistance, because counsel’s failure to tender an instruction did not prejudice
       defendant.
¶ 27        To establish prejudice in this case, defendant must show that, had counsel tendered a
       compulsion jury instruction, there is a reasonable probability that the court would have
       allowed the instruction and the jury would have acquitted defendant based on compulsion.
¶ 28        The evidence presented at trial was insufficient to support a jury instruction on
       compulsion. First, the evidence did not establish that defendant committed the acts constituting
       any of his offenses under threat of great bodily harm or death. Defendant’s repeated statements
       that he was just doing what he was told do not constitute compulsion, absent an impending
       threat of great bodily harm. People v. Scherzer, 179 Ill. App. 3d 624, 645 (1989). The only
       reference to a threat of any kind was defendant’s statement that “He [Edwards] pretty much
       pointed the gun at me. And then pretty much told me if I snitched or even tried to run off that he
       would kill me.” Defendant does not elaborate on when this alleged statement was made, nor
       was the statement confirmed by any other testimony. In fact, Vasilakis testified that defendant
       was the one encouraging Edwards to kill her and Terdic. Defendant himself said in his
       recorded statement that he encouraged Edwards to shoot Vasilakis and Terdic to prevent them
       from reporting the robbery.
¶ 29        Second, any potential compulsion arose from the fault of defendant. See Humphries, 257
       Ill. App. 3d at 1044. Hill testified that defendant suggested the idea to rob Terdic. Defendant
       then gave the group information about Terdic: that Terdic would have cash from his job in
       construction and that he lived in an apartment in Channahan with his girlfriend. Defendant then
       gave directions as Vetor drove the group to Terdic’s apartment.
¶ 30        Third, even assuming that defendant was acting under compulsion, he had opportunities to
       withdraw from the criminal enterprise but chose not to. See Scherzer, 179 Ill. App. 3d at
       645-46. In particular, while inside Terdic’s apartment, defendant on two separate occasions
       came into possession of the only firearm. Once in possession of the gun, defendant was no
       longer susceptible to any potential threats from Edwards. While defendant was the only one in
       the house armed with a handgun, he cannot credibly argue that he was acting out of fear of the
       unarmed Edwards. Defendant failed to withdraw from the criminal enterprise when he had the
       perfect opportunity to do so.


                                                    -6-
¶ 31       Defendant did not receive ineffective assistance counsel. Had counsel tendered a jury
       instruction on compulsion, there is not a reasonable probability that the trial court would have
       given the instruction. Had the trial court given the instruction, there is not a reasonable
       probability that the jury would have acquitted.

¶ 32                                           B. Sentencing
¶ 33        The State claims that the sentencing judgment is void because all of defendant’s sentences
       must be served consecutively. Defendant concedes the issue, and the parties agree that we
       should vacate defendant’s sentence and remand for resentencing. We may correct a void
       sentence at any time. People v. Thompson, 209 Ill. 2d 19, 25 (2004).
¶ 34        Section 5-8-4(d) of the Code mandates consecutive sentences in certain situations. 730
       ILCS 5/5-8-4(d) (West 2008). The only situation applicable to the present case is described by
       section 5-8-4(d)(1), which mandates consecutive sentences when “[o]ne of the offenses for
       which the defendant was convicted was first degree murder or a Class X or Class 1 felony and
       the defendant inflicted severe bodily injury.” 730 ILCS 5/5-8-4(d)(1) (West 2008). We
       interpret that language to require consecutive sentences in two situations: (1) where the
       defendant was convicted of first degree murder; and (2) where the defendant was convicted of
       a Class X or Class 1 felony, and the defendant inflicted severe bodily injury during the
       commission of that felony. See People v. Whitney, 188 Ill. 2d 91, 98-99 (1999) (the severe
       bodily injury must result from the commission of the Class X or Class 1 felony). It seems
       absurd to refer to severe bodily injury in connection with a conviction for first degree murder;
       first degree murder necessarily results in the most severe bodily injury–death.
¶ 35        In the present case, counts I, IV, VII, and VIII were all triggering offenses mandating
       consecutive sentencing under section 5-8-4(d)(1). Count I was first degree murder. Count IV
       charged attempted first degree murder for the gunshot to Vasilakis’s head. Attempted first
       degree murder is a Class X felony, and a gunshot to the head constitutes a severe bodily injury,
       especially considering that the bullet remains lodged in the victim’s head. Count VII charged
       home invasion, a Class X felony. A gunshot to Vasilakis’s head was a severe bodily injury
       inflicted during the commission of the home invasion and armed robbery, both Class X
       felonies. Count VIII charged armed robbery, also a Class X felony. Likewise, Terdic’s death
       occurred during the commission of those Class X felonies. In sum, section 5-8-4(d)(1) required
       that all four sentences be served consecutively.
¶ 36        The sentencing order imposed by the court failed to comply with the requirements of
       section 5-8-4(d)(1). Therefore the order is void. See, e.g., People v. Arna, 168 Ill. 2d 107, 113
       (1995) (“A sentence which does not conform to a statutory requirement is void.”). We vacate
       the order and remand for resentencing.

¶ 37                                       CONCLUSION
¶ 38       The judgments of conviction of the circuit court of Will County are affirmed. The
       judgment of sentence is vacated, and the cause is remanded for resentencing consistent with
       this opinion.

¶ 39      Affirmed in part and vacated in part; cause remanded.



                                                   -7-
