                                     2015 IL App (1st) 140205


                                                                             FIRST DIVISION
                                                                             JUNE 22, 2015



No. 1-14-0205

THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                      )       Circuit Court of
        Plaintiff-Appellee,                           )       Cook County.
                                                      )
                v.                                    )       No. 09 CR 1004
                                                      )
JUAN ROMERO,                                          )       Honorable
                                                      )       Stanley J. Sacks,
        Defendant-Appellant.                          )       Judge Presiding.

        JUSTICE HARRIS delivered the judgment of the court, with opinion.
        Justice Cunningham concurred in the judgment and opinion.
        Presiding Justice Delort dissented, with opinion.


                                             OPINION

¶1      Defendant, Juan Romero, went to trial on charges of attempted first degree murder of a

peace officer, aggravated battery with a firearm against a peace officer, and aggravated discharge

of a firearm against a peace officer in connection with a shooting that occurred on December 4,

2008.    Defendant attempted to flee from two Chicago police officers and fired two gunshots in

the process.   One of those gunshots hit one of the officers in his clavicle.      The other police

officer pursued defendant, shot him, and arrested him. Defendant maintained that he only fired

the shots in an attempt to scare the officers and to aid his escape.   A jury acquitted defendant of

attempted first degree murder, but convicted him of aggravated discharge of a firearm and

aggravated battery with a firearm.    The circuit court sentenced defendant to a total of 42 years'

imprisonment based on the imposition of consecutive sentences of 12 years' imprisonment for
No. 1-14-0205


aggravated discharge of a firearm and 30 years' imprisonment for aggravated battery with a

firearm.   This court affirmed defendant's conviction and sentence on direct appeal.       People v.

Romero, 2012 IL App (1st) 103363-U.

¶2     In September of 2013, defendant filed a postconviction petition pursuant to the

Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)), alleging his constitutional

rights were substantially violated by errors committed by his trial and appellate counsel.

Relevant here, defendant argued that his trial and appellate counsel failed to argue that the circuit

court considered an improper factor in aggravation in crafting his sentence. 1          Specifically,

defendant argues that the circuit court's statement during sentencing that "defendant was a little

worse shot than he thought he would have been" resulted in the circuit court relying on its own

subjective assessment of defendant's intent despite the jury's finding that defendant was not

guilty of attempted murder.    After reviewing the record and construing defendant's allegations

in his favor, we hold that defendant presented an arguable basis for his claim of ineffective

assistance of counsel based on the circuit court's consideration of an improper factor in

aggravation.    Therefore, we hold that the circuit court erred when it summarily dismissed

defendant's petition as frivolous and patently without merit.

¶3                                        JURISDICTION

¶4     On December 20, 2013, the circuit court summarily dismissed defendant's postconviction

petition. Defendant timely filed his notice of appeal on January 8, 2014. Accordingly, this court




       1
         Due to our conclusion in this matter, we need not address defendant's remaining
arguments from his petition or his brief before this court. See People v. Rivera, 198 Ill. 2d 364,
370-71 (2002) (holding that a defendant's entire postconviction petition must be docketed for
second-stage proceedings where at least one allegation is not frivolous or patently without merit).

                                                -2-
No. 1-14-0205


has jurisdiction pursuant to Illinois Supreme Court Rule 651(a). Ill. S. Ct. R. 651(a) (eff. Feb. 6,

2013).

¶5                                        BACKGROUND

¶6       In 2009, defendant was indicted with multiple counts of attempted first degree murder,

aggravated discharge of a firearm, and aggravated battery with a firearm.           A jury convicted

defendant of aggravated battery, and aggravated discharge of a firearm.         Defendant was found

not guilty of attempted murder.

¶7                                  Defendant's Trial and Initial Appeal

¶8       A detailed account of defendant's trial and initial appeal is well stated in this court's 2012

unpublished order filed pursuant to Illinois Supreme Court Rule 23 (eff. July 1, 2011).        People

v. Romero, 2012 IL App (1st) 103363-U.         Below we will discuss those details from defendant's

trial and initial appeal as they pertain to his postconviction petition.   On December 4, 2008, two

Chicago police officers, Officers Ryan Delaney and Tom Olson, spotted defendant as he walked

home from his girlfriend's house.     The police decided to stop defendant to speak with him about

a prior incident.   The police followed defendant in an unmarked squad car.        When they opened

their door, defendant turned around and fired two shots from a gun.           One of the shots fired

struck Officer Olson near his clavicle.       Defendant fled, but Officer Delaney shot defendant

before apprehending and arresting him.       According to defendant, he only fired the gunshots in

an attempt to scare the officers so that he could escape.           A jury convicted defendant of

aggravated battery with a firearm and aggravated discharge of a firearm.              The jury found

defendant not guilty of attempted murder.

¶9       The State presented three witnesses at defendant's sentencing hearing: Chicago police

officers Greg Sweeney, Michael Edens, and Tony Ramirez.               Officers Sweeney and Edens

                                                 -3-
No. 1-14-0205


described two prior incidents, which resulted in adjudications of juvenile delinquency, where

defendant was found to possess a weapon.      Officer Sweeney testified that on August 9, 2006, he

saw defendant "throwing up gang signs in the street" near the area of 2220 North Sawyer Avenue

in Chicago, Illinois.   When Officer Sweeney opened his car door, defendant pushed the door,

which knocked Officer Sweeney down.           Officer Sweeney's partner eventually apprehended

defendant and recovered a weapon.       Officer Edens testified that on February 12, 2007, he and

his partner apprehended defendant and recovered a handgun in the area of 3503 West Cortland

Avenue in Chicago, Illinois. Officer Ramirez described an incident that occurred at defendant's

trial.   Officer Ramirez testified he was present in the courtroom on July 1, 2010, when the jury

left the courtroom to deliberate.      Officer Ramirez observed defendant raising "his middle

finger" at the police officers present in court that day.     The State also presented two victim

impact statements, one from Officer Brian Delaney and one from Officer Thomas Olson.

¶ 10     Defendant did not present any witnesses in mitigation.    He apologized to Officer Olson,

stating that it was not his "intention to shoot him." Defendant presented documents showing

from September 27, 2004, until October 18, 2004, defendant had been treated for major

depression disorder, alcohol abuse disorder, and attention deficit disorder.   Defendant presented

a discharge summary from a hospital showing that from January 3, 2006, to January 20, 2006, he

was in the hospital for a diagnosis of bipolar disorder, alcohol abuse, attention deficit disorder,

obesity, and an allergy.   Defendant also submitted a document indicated he had earned his high

school diploma.     At the conclusion of the hearing, the State argued, in relevant part, that "it is

clear that this defendant shot at these two police officers intentionally."    The State asked that

the court find the police officer's injuries to be severe bodily injuries and that defendant be

subject to consecutive sentences.

                                                -4-
No. 1-14-0205


¶ 11   In announcing defendant's sentence, the circuit court noted defendant's young age and his

two prior delinquency adjudications which involved possession of a weapon.         The court found

that "defendant's version of events was rejected by the jury.   It doesn't make any sense anyway

that he was shooting up in the air or across the street or something and hit Officer Olson in the

collar bone where the bullet apparently is still at and shot in the direction of the other officer."

The circuit court later made the following statement:

                "The jurors found the defendant did not have the intent to kill

                Officer Olson, but nonetheless, the shot hit him right up in the

                collar bone not far away from the face or head and not far away

                from other places that could have caused a whole lot more damage.

                There was a lot of damage caused as it was, but it could have been

                a whole lot worse.    Fortunately for Olson the defendant was a

                little worse shot than he thought he would have been."

The circuit court found that defendant caused severe bodily injury which necessitated

consecutive sentences.    Accordingly, the circuit court sentenced defendant to a total of 42 years'

imprisonment: 30 years' imprisonment for aggravated battery with a firearm and 12 years'

imprisonment for aggravated discharge of a firearm.        Defendant's motion to reconsider his

sentence was denied.

¶ 12   On direct appeal, defendant raised three issues for review: (1) whether the circuit court

erred in denying his request to instruct the jury for reckless discharge of a firearm as a

lesser-included offense of aggravated discharge of a firearm; (2) whether the circuit court erred

in admitting evidence regarding how he obtained the weapon used in the crimes; and (3) whether

his sentence was excessive. People v. Romero, 2012 IL App (1st) 103363-U, ¶ 1.           This court

                                               -5-
No. 1-14-0205


rejected defendant's arguments, and affirmed his conviction and sentence.               Id. ¶¶ 1, 21.

Relevant here, this court held that defendant's sentence was not excessive.            Id. ¶¶ 17-20.

This court noted that defendant failed to raise any argument claiming that his sentence was at

great variance with the spirit of the law or manifestly disproportionate to the nature of the

offense.   Id. ¶¶ 17-18.     Rather, defendant argued that his sentence did not account for his

rehabilitative potential and likened his sentence to a life sentence.   Id. ¶ 20.   In conclusion, this

court also addressed the circuit court's consideration of the factors in aggravation and mitigation.

Id.   Specifically, this court stated:

                "Defendant also points out the numerous mitigating factors in his

                favor: he is a young man, he is a high school graduate, he was

                gainfully employed at the time of the offense, he came from a

                loving, stable family and at the time of the crimes he was still

                saddened by the loss of his father two years earlier.       Defendant

                does not suggest that the trial court did not consider any of these

                factors, and in fact the record is quite clear that the trial court

                considered all of these factors.        However, the trial court also

                noted that the defendant had two juvenile adjudications for

                weapons violations, and in fact was on probation for the second

                violation at the time of the instant offense.    The court also noted

                that Officer Olson sustained a serious injury; namely being struck

                by a bullet.    These are all appropriate factors to consider when

                determining a sentence."    Id.



                                                  -6-
No. 1-14-0205


¶ 13      Accordingly, this court affirmed the judgment of the circuit court on June 6, 2012.   Id.

¶¶ 1, 21.    On March 27, 2013, our supreme court denied defendant's pro se petition for leave to

appeal.

¶ 14      On September 25, 2013, defendant filed his verified postconviction petition raising three

claims for relief.    Defendant first argued that his right to due process and a fair sentencing

hearing were violated when the circuit court improperly considered a level of intent and conduct

for which he was acquitted.      According to defendant, the circuit court clearly sentenced him

with the more severe charge of attempted murder despite acknowledging that the jury had

acquitted him of attempted murder.      Specifically, defendant relied on the following statements

made by the circuit court at sentencing:

                 "The jurors found the defendant did not have the intent to kill

                 Officer Olson, but nonetheless, the shot hit him right up in the

                 collar bone not far away from the face or head and not far away

                 from other places that could have caused a whole lot more damage.

                 There was a lot of damage caused as it was, but it could have been

                 a whole lot worse. Fortunately for Olson the defendant was a

                 little worse shot than he thought he would have been." (Emphasis

                 added.)

¶ 15      Defendant argued that if the court wanted to rely on acquitted or unconvicted conduct in

rendering his sentence, the State had to offer reliable and sufficient proof in the form of

witnesses who could be cross-examined.         The State, however, did not do so.     Accordingly,

defendant argued that the circuit court relied on acquitted conduct in crafting his sentence.



                                                -7-
No. 1-14-0205


Defendant argued that both his trial and appellate counsel were ineffective for failing to properly

raise this issue in prior proceedings.

¶ 16     Defendant next argued that his trial counsel was ineffective for failing to effectively

cross-examine the State's police officer eyewitnesses with the Chicago police department's

use-of-force model. According to defendant, the police officers' actions that eventually led to his

arrest were in direct contradiction of the procedures and training outlined in the use-of-force

model.       Defendant's final argument in his petition was that his trial counsel was ineffective for

failing to raise a self-defense instruction.     Defendant argued that his trial counsel effectively

argued a self-defense theory but failed to request such an instruction.

¶ 17     Defendant attached the following documents to his petition: his own affidavit; a map of

the area of the shooting; the transcript of the sentencing hearing; the Chicago police arrest report;

photographs of defendant in the hospital; this court's order adjudicating his initial appeal;

defendant's pro se petition for leave to appeal to the Illinois Supreme Court; the denial of his

petition for leave to appeal; an "Independent Police Review Authority" statement; the Chicago

police department supplementary report, dated March 5, 2009; a "Use of Force Model Graph";

General Order 03-02-02 from the Chicago police; and a compact disc recording of the Chicago

police dispatch. 2

¶ 18     Relevant here, defendant attested that when the police chased him on the day of his

arrest, they told him they would shoot and kill him if he did not stop running.     Defendant stated

he was scared of being shot, so he "let off 2-3 shots to scare them off."     Defendant attested that




         2
           The compact disc recording was not included in the record before this court, but was
listed as an exhibit in defendant's petition as "Exhibit M."

                                                  -8-
No. 1-14-0205


he "did not intend to hit" the police officers.    Defendant claimed that he told the Independent

Police Review Authority about the officers' threat to shoot and kill him.

¶ 19    On December 20, 2013, the circuit court summarily dismissed defendant's postconviction

petition.   The court characterized defendant's contention that the circuit court considered an

inappropriate factor in determining his sentence to be an attempt to reformulate a claim that had

already been fully adjudicated on direct appeal.        Specifically, the circuit court noted that this

court on direct appeal "determined that the record clearly showed the trial court considered all

appropriate factors in determining [defendant's] sentence." Accordingly, the circuit court found

that plaintiff's claim that the circuit court considered an inappropriate factor in sentencing to be

barred by res judicata.

¶ 20    In addressing defendant's claim that his counsel was ineffective for failing to

cross-examine the police officers regarding the use-of-force model, the court first found that

defendant waived the issue because he could have raised it on direct appeal but did not. The

court further found the claim to be meritless because the line of questioning proposed by

defendant would have had no effect on the result of defendant's trial.      The court pointed out that

defendant admitted that he shot the gun at the police officers in an attempt to scare them so that

he could escape.    Accordingly, the court found that defense counsel was not ineffective because

it would not have affected the shooting itself.    The court also found defendant's third claim of

error, i.e., that his counsel was ineffective for failing to request a self-defense instruction, to be

meritless because there was no evidence in the record showing any allegations of self-defense.

In a footnote, the court stated:

                "Counsel alleges that [defendant's] trial counsel should have

                introduced a statement made by [defendant] to the Independent

                                                  -9-
No. 1-14-0205


                 Police Review Authority on 12/5/08.        The statement arguably

                 suggests self-defense.   The statement by [defendant] could not be

                 offered by the defense as it is clearly a self-serving hearsay

                 statement.    Significantly, both at trial and at sentencing,

                 [defendant] testified he fired into the air to scare the officers and

                 not because he was in fear as to claim self-defense."

Accordingly, the circuit court summarily dismissed defendant's petition as frivolous and patently

without merit.

¶ 21   On January 8, 2014, defendant timely filed his notice of appeal.

¶ 22                                         ANALYSIS

¶ 23   Before this court, defendant argues that he made an arguably meritorious claim that his

appellate counsel was ineffective for failing to argue that the circuit court improperly considered

conduct for which he was acquitted in crafting a sentence.               According to defendant, the

transcript of the sentencing hearing shows that there is a reasonable probability that his case

would have been remanded for resentencing had his appellate counsel raised the issue on direct

appeal because it shows the circuit court relied on an improper aggravating factor and its own

opinion of the crime despite his acquittal of attempted murder.      Accordingly, defendant argues

that the circuit court erred in finding his petition to be frivolous and patently without merit and

asks that we reverse the summary dismissal of his petition and remand the matter for

second-stage proceedings under the Post-Conviction Hearing Act. 3


       3
          Defendant also argues that his petition stated an arguably meritorious claim that his trial
counsel was ineffective for failing to properly cross-examine key State witnesses and because
trial counsel failed to request a self-defense instruction. Due to our conclusion in this matter,
we need not address these arguments. See Rivera, 198 Ill. 2d at 370-71.

                                                - 10 -
No. 1-14-0205


¶ 24      In response, the State argues that defendant's claim of ineffective assistance of counsel

has no basis in law or fact and maintains that the record shows that the circuit court considered

all relevant factors in aggravation and mitigation and imposed a sentence within the statutory

range.     The State disagrees with defendant's contention that the circuit court relied on an

improper sentencing factor, arguing that the circuit court's remarks were limited and does not

support defendant's argument.      The State characterizes defendant's argument as an attempt to

circumvent the doctrine of res judicata, arguing that this court already held that the circuit court

considered all the proper factors in aggravation and mitigation. Accordingly, the State asks that

we affirm the summary dismissal of defendant's postconviction petition.

¶ 25      The Post-Conviction Hearing Act allows a criminal defendant to collaterally attack his or

her conviction or sentence based on substantial constitutional violations that occurred at trial or

sentencing.     People v. Allen, 2015 IL 113135, ¶ 20.          "The purpose of a postconviction

proceeding is to permit inquiry into constitutional issues involved in the original conviction and

sentence that were not, and could not have been, adjudicated previously on direct appeal."

People v. English, 2013 IL 112890, ¶ 22.         Accordingly, res judicata bars issues raised and

decided on direct appeal. Id.      Similarly, issues not raised on direct appeal, even though they

could have been raised, are deemed forfeited.       Id.   Where the forfeiture at issue is due to the

ineffective assistance counsel, however, the doctrines of res judicata and forfeiture are relaxed.

Id.

¶ 26      A petition filed pursuant to the Post-Conviction Hearing Act is subject to three stages of

review.     People v. Smith, 2015 IL 116572, ¶ 9.     During the first stage of review, at issue here,

the circuit court must determine whether the petition is "frivolous or patently without merit."

725 ILCS 5/122-2.1(a)(2) (West 2012). "The court makes an independent assessment as to

                                                - 11 -
No. 1-14-0205


whether the allegations in the petition, liberally construed and taken as true, set forth a

constitutional claim for relief."   People v. Hommerson, 2014 IL 115638, ¶ 7.        A petition will

only be considered frivolous or patently without merit where it "has no arguable basis either in

law or in fact." People v. Tate, 2012 IL 112214, ¶ 9.        Indisputably meritless legal theories,

such an allegation rebutted by the record, and fanciful, or delusional factual allegations, are

examples of allegations that are frivolous or patently without merit. People v. Hodges, 234 Ill.

2d 1, 16 (2009).   Our supreme court has described the circuit court's role during the first stage

of review as acting "strictly in an administrative capacity by screening out those petitions which

are without legal substance or are obviously without merit." Rivera, 198 Ill. 2d at 373.

¶ 27   If the circuit court finds that a petition is frivolous or patently without merit, it must

summarily dismiss the petition with a written order containing its factual findings and legal

conclusions.    725 ILCS 5/122-2.1(a)(2) (West 2012).      A petition will proceed to second-stage

proceedings if the petition is not dismissed. Hommerson, 2014 IL 115638, ¶ 7.         The summary

dismissal of a postconviction petition is a final order, which we review de novo. 725 ILCS

5/122-2.1(a)(2) (West 2012); Hommerson, 2014 IL 115638, ¶ 6.               If a single claim in a

multiple-claim postconviction petition survives the summary dismissal stage of proceedings

under the Post-Conviction Hearing Act, then the entire petition must be docketed for

second-stage proceedings regardless of the merits of the remaining claims in the petition.

Rivera, 198 Ill. 2d at 371.

¶ 28   A criminal defendant's right to the effective assistance of counsel is a constitutional right,

which we review pursuant to the standards set forth in Strickland v. Washington, 466 U.S. 668

(1984), as adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984).       People

v. Domagala, 2013 IL 113688, ¶ 36.         To demonstrate ineffective assistance of counsel, a

                                               - 12 -
No. 1-14-0205


defendant must show that his counsel's performance was deficient and that he was prejudiced by

the deficient performance of his counsel.         Id.     In the context of a claim of ineffective

assistance of counsel under the first stage of the Post-Conviction Hearing Act, our supreme court

has held that "a petition alleging ineffective assistance may not be summarily dismissed if (i) it is

arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it

is arguable that the defendant was prejudiced."      (Emphases added.) People v. Hodges, 234 Ill.

2d 1, 17 (2009); see also Tate, 2012 IL 112214, ¶ 22.

¶ 29   We initially must address the circuit court's finding in which it characterizes defendant's

claim that the circuit court considered an improper aggravating factor in crafting his sentence as

an attempt to reformulate a claim already decided on direct appeal.      The State makes a similar

argument in its brief before this court. After reviewing the record, we disagree with the circuit

court and the State.    In his initial appeal, defendant argued that his sentence was excessive

based on his age and rehabilitative potential.    He did not argue that the circuit court considered

an improper factor in aggravation.    In defendant's initial appeal, this court noted that the record

showed that the circuit court considered all of the factors in mitigation that defendant relied on to

argue that his sentence was excessive.   Specifically, this court reasoned as follows:

                "Defendant also points out the numerous mitigating factors in his

                favor: he is a young man, he is a high school graduate, he was

                gainfully employed at the time of the offense, he came from a

                loving, stable family and at the time of the crimes he was still

                saddened by the loss of his father two years earlier.     Defendant

                does not suggest that the trial court did not consider any of these

                factors, and in fact the record is quite clear that the trial court

                                                 - 13 -
No. 1-14-0205


                considered all of these factors."        Romero, 2012 IL App (1st)

                103363-U, ¶ 20.

Accordingly, the above recitation of this court's order on direct appeal shows that in rejecting

defendant's claim that his sentence was excessive, this court noted that the circuit court

considered "all of these factors," i.e., the factors in mitigation defendant relied upon to argue that

his sentence was excessive. Id.

¶ 30   In regard to the factors in aggravation, however, the record shows that this court's order

made the following statement regarding the factors in mitigation considered by the circuit court:

                "However, the trial court also noted that the defendant had two

                juvenile adjudications for weapons violations, and in fact was on

                probation for the second violation at the time of the instant offense.

                The court also noted that Officer Olson sustained a serious injury;

                namely being struck by a bullet.           These are all appropriate

                factors to consider when determining a sentence." (Emphasis

                added.) Id.

As the above recitation of this court's order adjudicating defendant's initial appeal shows, this

court did not hold that the circuit court considered only appropriate factors.         Rather, it shows

that this court noted that the defendant's prior weapons adjudications and Officer Olsen's injuries

were "all appropriate factors to consider when determining a sentence."          This court's statement

indicates that the listed factors were appropriate.      It does not indicate that all of the factors the

circuit court considered were appropriate.        Most importantly, this court made the above

comments addressing defendant's argument that his sentence was excessive.                  Accordingly,



                                                - 14 -
No. 1-14-0205


defendant's contention that the circuit court considered an improper aggravating factor was not

adjudicated on direct appeal.   Therefore, defendant's claim is not barred by res judicata.

¶ 31   After liberally construing defendant's allegations, we also agree with defendant's

contention that both his appellate and trial counsel were arguably ineffective for failing to argue

that the circuit court considered an improper factor in crafting his sentence.   Defendant points to

the following statement made by the circuit court in announcing his sentence:

                "The jurors found the defendant did not have the intent to kill

                Officer Olson, but nonetheless, the shot hit him right up in the

                collar bone not far away from the face or head and not far away

                from other places that could have caused a whole lot more damage.

                There was a lot of damage caused as it was, but it could have been

                a whole lot worse. Fortunately for Olson the defendant was a

                little worse shot than he thought he would have been." (Emphasis

                added.)

¶ 32   The circuit court's statement that "defendant was a little worse shot than he thought he

would have been" arguably supports defendant's argument that the circuit court improperly

considered a level of intent and conduct for which defendant was acquitted, i.e., attempted

murder.   The circuit court's comment demonstrates that it believed that, at the very least,

defendant intended that the bullet would hit the officer, if not kill him.        The jury's verdict

negates that.   It also arguably indicates that the circuit court relied on its own opinion of

attempted murder, despite the acquittal.     In sentencing a defendant, the circuit court may not

rely on an improper factor or its own opinion of the crime.       People v. Reed, 376 Ill. App. 3d

121, 128 (2007); People v. Henry, 254 Ill. App. 3d 899, 905 (1993).          Reliance on improper

                                               - 15 -
No. 1-14-0205


sentencing factors is amenable to plain error review because it affects a defendant's fundamental

right to liberty.   People v. Kopczick, 312 Ill. App. 3d 843, 852 (2000).    Furthermore, the State

did not offer any witnesses who could be cross-examined regarding the acquitted conduct.         See

People v. La Pointe, 88 Ill. 2d 482, 498-99 (1981).     Rather, the State put forth evidence of two

other prior incidents where defendant was found to possess a gun and an incident at trial where

defendant made a vulgar gesture to the police officers present in the courtroom.       Accordingly,

defendant presented an arguable basis to support his argument that the circuit court considered an

inappropriate factor in aggravation.

¶ 33    In the context of defendant's claim of ineffective assistance of appellate and trial counsel,

both counsel performance arguably fell below an objective standard of reasonableness because

the circuit court's reliance on defendant's acquitted conduct is readily available in the record.

Neither counsel, however, raised the issue despite the opportunity to do so.           Furthermore,

appellate counsel could have raised the argument under the plain error doctrine because reliance

on improper sentencing factor affects a defendant's fundamental right to liberty. Kopczick, 312

Ill. App. 3d at 852.    Defendant was arguably prejudiced because reliance on such a factor in

aggravation arguably increased his sentence.       An argument can definitely be made that a

sentencing court's consideration of a level of intent consistent with attempted murder, despite

acquittal of such charges at trial, would lead to an increased sentence on a less violent

conviction.

¶ 34    Accordingly, we hold the circuit court erred when it summarily dismissed defendant's

petition because he presented an arguable claim of ineffective assistance of counsel based on

both his trial and appellate counsel's failure to argue that the circuit court considered an improper

aggravating factor in crafting his sentence.    Defendant's petition, therefore, is not frivolous or

                                               - 16 -
No. 1-14-0205


patently without merit and we reverse the judgment of the circuit court and remand the matter for

second-stage proceedings.

¶ 35                                      CONCLUSION

¶ 36   The judgment of the circuit court of Cook County is reversed and the cause is remanded.

¶ 37   Reversed and remanded.

¶ 38   PRESIDING JUSTICE DELORT, dissenting.

¶ 39   This case revolves around 17 words that the trial judge said when he explained his

sentencing determination, a statement that extends over 8 pages of transcript. The judge said:

“Fortunately for Olson the defendant was a little worse shot than he thought he would have been.”

Based on that fleeting and isolated comment, the majority finds that the trial judge relied on an

improper factor in sentencing and that trial and appellate counsel’s failure to argue to that effect

creates an arguable claim of ineffective assistance of counsel. I must respectfully disagree.

¶ 40   The evidence that the defendant shot somewhere in the direction of the officers was

undisputed. The only dispute was whether Romero did so with specific intent to kill the officers

or merely to frighten them. One of Romero’s bullets hit an officer and severely injured him. On

direct appeal, this court summarized the defendant’s own testimony thusly: “To the contrary, the

defendant testified that he did not aim at anything specific, and simply turned around while still

moving. He stated that he was trying to simply scare the officers to force them to duck so he

would have time to get away and that he was surprised that he actually hit anyone. He denied

aiming at either officer or pausing between firing the two shots.” People v. Romero, 2012 IL App

(1st) 103363-U, ¶ 9.

¶ 41   The jury apparently believed Romero’s explanation to the extent that it found there was

reasonable doubt regarding his criminal intent to actually kill an officer, and so it acquitted him of

                                                - 17 -
No. 1-14-0205


that most severe charge. A specific intent to kill is an element of attempted murder. An intent to

inflict great bodily harm does not suffice. People v. Jeter, 247 Ill. App. 3d 120, 125 (1993);

People v. Wagner, 189 Ill. App. 3d 1041, 1045 (1989).

¶ 42   Had the trial judge phrased his comment “thought he would have been” with words more

clearly demonstrating that Romero had an intent to kill the officer, I might be inclined to agree

with the majority. However, the judge’s comment did not do so and is, in fact, consistent with the

jury’s verdict and the evidence. The jury did find the defendant guilty of aggravated discharge of

a firearm against a peace officer and of aggravated battery with a firearm against a peace officer.

Accordingly, the jury found, beyond a reasonable doubt, that the defendant discharged his

“firearm in the direction of a *** peace officer *** while the officer *** is engaged in the

execution of any of his or her official duties, or to prevent the officer *** from performing his or

her official duties.” (Emphasis added.) 720 ILCS 5/24-1.2(a)(3) (West 2008). The judge’s

comment refers to the proximity of the wound to the officer’s face. It does not, either in isolation

or in context, demonstrate that the judge found that the defendant intended to kill the officers,

rather than to merely scare them away. Shooting a gun to scare an officer away necessarily

involves shooting toward the officer’s body with sufficient proximity that the officer would hear or

see the shot, become frightened, and retreat.           Retreating would prevent the officer from

performing his official duties. Romero admitted to having that specific intent. In that light, the

judge’s comment is not inconsistent with the jury’s verdict. Accordingly, I would find that, even

taking the allegations in the postconviction petition as true and liberally construing them, that the

petition did not demonstrate an arguable claim for ineffective assistance of counsel. I would

affirm the judgment below.



                                               - 18 -
