                                                                            FIFTH DIVISION
                                                                            June 30, 2010


Nos. 1-08-1006, 1-08-1007 & 1-08-1013 (Cons.)


THE PEOPLE OF THE STATE OF ILLINOIS,      )                  Appeal from the
                                          )                  Circuit Court of
            Plaintiff-Appellee,           )                  Cook County, Illinois.
                                          )
      v.                                  )
                                          )
VICTOR RODRIGUEZ,                         )
                                          )
            Defendant-Appellant.          )
_________________________________________ )
                                          )
THE PEOPLE OF THE STATE OF ILLINOIS,      )
                                          )
            Plaintiff-Appellee,           )
                                          )                  No. 93 CR 22832
      v.                                  )
                                          )
OMAR CHAIDEZ,                             )
                                          )
            Defendant-Appellant.          )
_________________________________________ )
                                          )
THE PEOPLE OF THE STATE OF ILLINOIS,      )
                                          )
            Plaintiff-Appellee,           )
                                          )
      v.                                  )
                                          )
FRANCISCO MUNIZ,                          )                  Honorable
                                          )                  Mary Margaret Brosnahan,
            Defendant-Appellant.          )                  Judge Presiding.


       JUSTICE LAVIN delivered the opinion of the court:

       In this appeal, we consider the postconviction petitions of three codefendants who

complain that their sentences are unconstitutionally disparate to the sentence received by a fourth
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codefendant upon resentencing after his successful postconviction petition. Following an

evidentiary hearing, the trial court denied the petitions filed by codefendants Victor Rodriguez,

Omar Chaidez and Francisco Muniz for relief under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2000)).1 For reasons that will be detailed below, we affirm the

dismissal of their petitions.

                                    THE UNDERLYING TRIALS



        In October 1993, Victor Salgado, Victor Rodriguez, Omar Chaidez and Francisco 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 aggravated discharge of a

firearm as to Balthazar, which occurred on September 24, 1993. Ultimately, Salgado was tried

by jury, simultaneously with Rodriguez’s bench trial. Chaidez and Muniz were tried by separate

juries. Judge Shelvin Singer presided over the four codefendants’ trials. Following their

respective trials, Salgado was found guilty as the principal in the first degree murder of Manzella

and the other three codefendants were found guilty of first degree murder on a theory of

accountability.

Salgado was also found guilty of attempted murder.

        Although the evidence presented at codefendants’ respective trials differed slightly, the

evidence generally showed that in the early afternoon of September 24, 1993, Manzella was


        1
            No substantive differences exist between the versions of the Act in effect when

petitioners filed their respective petitions. For consistency, we cite only the 2000 version.

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driving around with Balthazar when they observed occupants of a red car in front of them display

gang signs. Rodriguez was driving the red car, in which codefendants and three women were

passengers. At that time, Rodriguez, Chaidez, Muniz and Salgado were, respectively, 18, 16, 16

and 17 years old. Some of the red car’s occupants also testified that after the victims displayed

gang signs, codefendants determined the victims were in a rival gang. When Balthazar suggested

that Manzella avoid a confrontation with the red car’s occupants, 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 near the intersection of Belmont and Cicero, the four

codefendants exited the red car. As codefendants approached the victims’ car, two of them

shouted “Cobra Killer” and “Disciple Killer.” Rodriguez broke the driver’s side window 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 rear

window with a baseball bat, Salgado fired two shots into the rear window, both of which struck

and killed Manzella.

       On December 7, 1994, the court sentenced Salgado to 50 years’ imprisonment for first

degree murder and a consecutive 20-year prison term for attempted murder. The court sentenced

Rodriguez on the same day to 40 years’ imprisonment for murder. On January 5, 1995, the court

sentenced Muniz to 48 years’ imprisonment and subsequently sentenced Chaidez 40 years’

imprisonment four days later.

       In sentencing codefendants, 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 2


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offenses. First degree murder and attempt first degree murder. The other 3 were not.” The court

found that Salgado, as the codefendant who inflicted the fatal wounds, was the most responsible

and Muniz, as the individual who broke the window out with the bat, was the next most

responsible because he provided Salgado with an unobstructed view into the car so he could fire

at close range. In addition, Rodriguez, the driver, was the third most culpable and Chaidez was

the least culpable. Although the court acknowledged that codefendants had no prior convictions

and were young, it found that the crime occurred in a busy area, was gang-related, involved a

chase, a violent assault and a shooting. Furthermore, the court considered the need to deter other

individuals from gang activity.

       This court affirmed codefendants’ convictions on direct appeal. People v. Salgado, 287

Ill. App. 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 addition, we rejected the assertions of Salgado,

Muniz and Chaidez that their respective sentences were an abuse of discretion.



                         SALGADO’S POSTCONVICTION PETITION



       On March 23, 1998, Salgado filed a pro se postconviction petition under the Act, raising

various claims for ineffective assistance of trial and appellate counsel, including his claim that

appellate counsel should have challenged the excessive and consecutive nature of his sentences.


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It appears that on March 10, 2000, Salgado’s appointed counsel filed a supplemental

postconviction petition, alleging that trial and appellate counsel were ineffective for failing to

challenge Salgado’s consecutive 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 ineffective for failing to challenge the sufficiency 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 unnecessary to consider whether

consecutive sentences were properly imposed. Judge Epstein found that in sentencing Salgado

for murder, Judge Singer had considered in aggravation that Salgado had also been convicted of

attempted murder. Accordingly, Judge Epstein found he was required to vacate Salgado’s

murder sentence and conduct a new sentencing hearing in the absence of the attempted murder

conviction. The State did not appeal this order.

       On December 1, 2000, Salgado was resentenced to 28 years in prison for murder. In

addition to the mitigating evidence presented at Salgado’s original sentencing hearing, primarily

his youth and lack of prior convictions, defense counsel argued that Salgado was trying to make

something of his life while in prison and presented extensive evidence regarding Salgado’s

accomplishments in prison. Judge Epstein considered the horrible impact of Salgado’s action but

found that when Judge Singer originally sentenced Salgado to 50 years’ imprisonment, Judge

Singer did not have evidence of how Salgado used his time in prison. Thus, Judge Epstein


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believed he had a better picture of Salgado’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 PETITIONS



       While Salgado’s postconviction proceedings were pending, on April 7, 1998, Rodriguez

filed his first pro se postconviction petition, which the trial court dismissed on the State’s

motion. On appeal, we granted the public defender’s motion to withdraw as 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 merit 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, Rodriguez filed a successive pro se postconviction petition and

memorandum of law, alleging, in pertinent part, that his 40-year sentence was disproportionate to

the 28-year sentence received by Salgado, who was more culpable that Rodriguez. On August

27, 2001, Judge James Egan dismissed Rodriguez’s petition as frivolous and patently without

merit. Rodriguez appealed and the State confessed error because the trial court had dismissed the

petition more than 90 days after it was filed (see 725 ILCS 5/122-2.1 (West 2000)). We

remanded for Rodriguez’s petition to be docketed for further 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 own pro se


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postconviction petitions, challenging the disparity between Salgado’s 28-year sentence and their

considerably longer sentences. On April 25, 2006, appointed counsel for Rodriguez, Chaidez

and Muniz filed supplemental petitions, again asserting that an arbitrary and unconstitutional

disparity existed between their sentences and Salgado’s 28-year sentence. Appointed counsel

also argued that petitioners had improved themselves while incarcerated and attached

documentation showing their accomplishments in prison. On April 17, 2007, Judge Egan denied

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 Mary Margaret Brosnahan

on November 7, 2007, argument was held regarding petitioners’ motion to bar the State from

calling Judge Singer to testify at the evidentiary hearing and their alternative motion to limit

Judge Singer’s testimony. Petitioners argued that the State failed to appeal from Judge Epstein’s

order granting Salgado’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 probative than any statements he made

over 10 years later. In addition, petitioners argued that if Judge Singer testified, the trial court

should not permit the State to question him regarding Judge Epstein’s decision to grant Salgado’s

postconviction petition, vacate his attempted murder conviction or resentence him to 28 years in

prison for murder. In response, the State did not challenge codefendants’ relative levels of

culpability as found by Judge Singer but argued that Salgado’s 28-year sentence was arbitrary

and resulted from a chain of errors, notwithstanding the State’s failure to appeal Judge Epstein’s


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order granting Salgado postconviction relief. After hearing Judge Singer’s proffered testimony,

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 arguments 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 offenses, whereas

the other codefendants were not, to explain why Salgado was receiving two sentences. In

addition, Judge Singer testified that Salgado was the most culpable and he would not have

imposed a lesser sentence on Salgado due to his good prison conduct after he was initially

sentenced.

       Following Judge Singer’s testimony and further argument, Judge Brosnahan 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 certain evidence of petitioners’ achievements in prison.

In addition, petitioners argued that because they were similarly situated to Salgado, aside from

their relative levels of culpability, their sentences were impermissibly disparate to his 28-year

sentence. The State argued that petitioners’ sentences were correct, Salgado’s sentence resulted

from Judge Epstein’s errors and petitioners’ rehabilitation was not to be rewarded.

       At a hearing on February 7, 2008, Judge Brosnahan presented a written order dismissing

the three petitions. Regarding petitioners’ challenge to Judge Singer’s testimony, the trial court


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found his testimony regarding whether he took into account the attempted murder conviction in

sentencing Salgado for murder was relevant, necessary and could not be obtained by other means,

but struck Judge Singer’s testimony regarding the propriety of submitting the attempted murder

instruction to the jury and Judge Epstein’s decision to resentence Salgado to 28 years in prison.

       In dismissing the petitions, Judge Brosnahan found Judge Epstein’s decision in the

Salgado case had no effect on her decision because it was not an appellate court decision and she

disagreed with the reasoning and logic which led to the reduction of Salgado’s sentence.

Specifically, she found Judge Epstein incorrectly determined that the evidence would not support

an attempted murder instruction, that the State could not prove attempted murder and that Judge

Singer took into account the attempted murder charge when sentencing Salgado for murder. As a

result, she declined to use the 28-year prison term as a standard of comparison for petitioners’

sentences. Judge Brosnahan stated that she could not be persuaded that what happened in

Salgado’s case “mandates a complete dismantling of the remaining three co-defendants’

sentences which have already passed appellate scrutiny,” and found that the sentences were

consistent when initially entered. Accordingly, the court found petitioners failed to demonstrate

their sentences were grossly disparate and dismissed the petition. Following arguments on April

3, 2008, the trial court denied petitioners’ motions to reconsider the dismissal of their petitions.

Petitioners now appeal.

                                               ANALYSIS

       On appeal, petitioners assert the trial court erred in dismissing their petitions following an

evidentiary hearing under the Act because they demonstrated a constitutional violation resulting


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from an arbitrary disparity between 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 three petitioners contending that they are entitled to relief because their

rights were violated when their more culpable codefendant got a reduced sentence by claiming

that his rights were violated in the underlying trial. On its face, therefore, this appeal suffers

from an uncorrectable infirmity because it does not claim error in the proceeding in which the

three were convicted.

       The Act provides a remedy to criminal defendants for substantial violations of their

constitutional rights that occurred in their original trial. People v. Taylor, No. 107701, slip op. at

12 (March 18, 2010). A postconviction proceeding is collateral to, rather than an appeal from,

the underlying judgment and permits the review of constitutional claims that could not have been

adjudicated on direct appeal. Taylor, slip op. at 12; People v. Ortiz, 235 Ill. 2d 319, 328-29

(2009). In noncapital cases, there are three stages 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 carries 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 hearing to determine whether it was manifestly erroneous, which occurs when an

error is clearly plain, evident and indisputable. Ortiz, 235 Ill. 2d at 333. If no credibility

determinations are necessary, i.e., no new evidence is presented and the issues are purely legal

questions, we review the trial court’s judgment de novo, unless the presiding judge has some


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relevant special expertise or familiarity with the trial or sentencing of the defendant. Beaman,

229 Ill. 2d at 72; Pendleton, 223 Ill. 2d at 473. In addition, this court has held that where the trial

court made credibility determinations or factual findings that were unnecessary, so that our

decision on review is not dependent on such findings, we review the trial court’s decision de

novo. See People v. Lane, 398 Ill. App. 3d 287, 296 (2010).

       Although the parties agree that we are to review the trial court’s decision under the

manifest weight of the evidence standard, for reasons to be explained, our disposition in this case

does not depend on any factual findings made by the trial court in dismissing the petitions. In

addition, Judge Brosnahan did not have any special expertise or familiarity with petitioners’

sentencing proceedings. Rather, the question of whether petitioners in this case demonstrated a

substantial constitutional violation based on a sentencing disparity requires no credibility

determinations and presents a purely legal issue. Thus, our standard of review is de novo.

       An arbitrary and unreasonable disparity between sentences imposed on codefendants 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 violation of fundamental fairness (People v. Martinez, 372

Ill. App. 3d 750, 759-60 (2007)). It is not the disparity that counts, but the reason for the

disparity. Martinez, 372 Ill. 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’ relevant

character and history, their degree of culpability, their criminal records or their rehabilitative

potential. Martinez, 372 Ill. App. 3d at 760; Foster, 199 Ill. App. 3d at 393. In addition, a

defendant is not precluded from raising a disparate sentencing challenge merely because he was


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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 capital case, that a disparity between

noncapital sentences presents a cognizable 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 court stated

it was required to ensure that capital cases are rationally distinguished from noncapital cases).

       Initially, we question whether this was an error occurring in the original proceeding as

required by the Act. Pursuant to section 122-1(a) of the Act, “[a]ny person imprisoned in the

penitentiary who asserts that in the proceedings which resulted in his or her conviction there was

a substantial denial of his or her rights under the Constitution of the United States or of the State

of Illinois or both may institute a proceeding under this article.” (Emphasis added.) 725 ILCS

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 Corrections misinterpreted his sentence was not

cognizable under the Act, because it did not pertain to any flaw in the proceedings that occurred

before his conviction); People v. Jones, 321 Ill. App. 3d 515, 519 (2001), citing People v. Flores,

153 Ill. 2d 264, 276-77 (1992) (ineffective assistance of postconviction counsel claims are

beyond the scope of the Act because they are not based on an error that occurred in proceedings

resulting in a conviction). It is undisputed that the proceedings which led to the imposition of

codefendants’ sentences did not result in a sentencing disparity, but rather, the disparity occurred

several years after petitioners and Salgado were originally convicted and sentenced. Nonetheless,

assuming this requirement is satisfied where a codefendant challenges his original sentence, we

find no constitutional violation.


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       Here, the parties primarily dispute whether petitioners’ sentences are to be compared with

the 50-year sentence Salgado initially received from Judge Singer, or the 28-year sentence

Salgado ultimately received from Judge Epstein. Nonetheless, even assuming that petitioners’

sentences must be compared to Salgado’s 28-year sentence, this does not end our inquiry.

Rather, we must examine the reason for the disparity between the codefendants’ sentences.

Although petitioners argue they were less culpable than Salgado and were similarly situated to

Salgado in terms of rehabilitative potential and their lack of criminal record, we do not find these

factors to be exhaustive in examining the reason for a disparity between codefendants’ sentences.

We cannot ignore that the disparity between their sentences arose only when Judge Epstein

determined that his decision to vacate Salgado’s attempted murder conviction also required him

to vacate Salagdo’s murder sentence. Absent Judge Epstein’s ruling, which we find to be

erroneous, Salgado would not have been resentenced to 28 years in prison. Petitioners’ argument

that the doctrines of collateral estoppel and laches prevent us from examining how Judge

Epstein’s ruling contributed to the disparity between codefendants’ sentences is misplaced. This

would both ignore our duty to consider the reason for the sentencing disparity and misapply the

aforementioned doctrines.

       Application of the collateral estoppel doctrine requires that (1) the court entered a final

judgment in the previous case; (2) the party against whom estoppel is asserted was either a party,

or in privity with a party, in the previous case; and (3) the issue determined in the previous case

is identical with the issue presented in the instant case. People v. Tenner, 206 Ill. 2d 381, 396

(2002), citing People v. Franklin, 167 Ill. 2d 1, 12 (1995). In addition to those threshold


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requirements, in criminal cases, the mutuality requirement is necessary for the application of

collateral estoppel. Franklin, 167 Ill. 2d at 12-13. Pursuant to that requirement, a criminal

defendant may not use a prior judicial finding against the State unless the defendant himself was

bound by the prior finding. People v. Martinez, 389 Ill. App. 3d 413, 418 (2009), citing Franklin,

167 Ill. 2d at 12. Reasons for requiring mutuality of parties in criminal cases 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. Franklin, 167 Ill. 2d at 13-14. The State’s burden also differs

regarding each individual defendant. Martinez, 389 Ill. App. 3d at 418.

        We first observe that although Judge Epstein’s order granting Salgado postconviction

relief and Judge Epstein’s separate order resentencing Salgado to 28 years in prison were both

final, only the former order was appealable by the State. Compare People v. Scott, 194 Ill. 2d

268 (2000), citing 134 Ill. 2d R. 651(a) (where a postconviction trial judge decides that a

defendant should receive a new sentencing hearing, the State may appeal that determination

before the new sentencing hearing 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 appeal sentencing issues

(155 Ill. 2d R. 604(a)), and a reviewing court has no power to increase a defendant’s sentence on

appeal (155 Ill. 2d R. 615(b))).

        More importantly, the mutuality requirement has not been satisfied in this case. 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-year


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sentence reduction was given solely to Salgado. In addition, we find petitioners’ suggestion that

the mutuality requirement should not be applied because they are not trying to use a judgment

entered in favor of Salgado to their benefit, to be entirely disingenuous. Petitioners do not cite,

and we do not find, any cases granting this court discretion regarding application of the mutuality

requirement. Even if we had such discretion, petitioners are clearly asking us to give them the

advantage of rulings in Salgado’s favor without questioning the reasons 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

satisfied and we will not adopt the sophistry that petitioners would appear to be urging upon 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 parties. People v. McClure, 218 Ill. 2d 375, 389

(2006). The application of laches requires demonstrating a lack of due diligence by the party

asserting a claim and prejudice resulting to the party asserting 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 granting Salgado postconviction relief. As stated,

the order vacating Salgado’s 50-year sentence is separate from the order resentencing Salgado to

28 years in prison, an order which the State was not permitted to appeal. Petitioners assert they


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have been prejudiced by the State’s failure to appeal from the former order because “the

resolution of [the appeal] would have governed over the proceedings below, rather than Judge

Singer’s testimony and the circuit court’s own impressions of Judge Epstein’s ruling.” Any

alleged benefit that would have inured to petitioners would necessarily be speculative at best.

Had the State appealed, we very much doubt, for reasons we will explain, that any panel of this

court would have affirmed the vacating of the 50-year murder sentence. Although petitioners

also argue that the present appeal 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 demonstrated 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 offense may have been increased due to the existence of an additional

conviction, and that additional conviction is subsequently vacated, it may be appropriate to

vacate the first sentence and remand for resentencing. See People v. Johnson, 314 Ill. App. 3d

444, 451 (2000). Here, however, the record shows that Salgado’s attempted murder conviction

did not lead to an increased murder sentence. Petitioners and Judge Epstein have relied on the

following isolated statements made by Judge Singer at sentencing:

               “First I point out the most obvious, Victor Salgado was convicted of 2

       offenses. First degree murder and attempt first degree murder. The other 3 were

       not.”

When read in isolation, this may suggest the court considered Salgado’s additional conviction for

attempted murder as an aggravating factor as to his murder sentence. The facts of this case


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demonstrate the folly of such an isolated reading.

       It is undisputed that at sentencing, Judge Singer set forth the following hierarchy of

culpability: Salgado, Muniz, Rodriguez and Chaidez. Judge Singer sentenced Salgado and

Muniz, respectively, to 50 years’ imprisonment and 48 years’ imprisonment. 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 than Salgado’s

additional conviction for attempted murder. Had Judge Singer considered Salgado’s attempted

murder conviction in aggravation as to his murder sentence, Salgado would not have received a

mere two-year increase from Muniz’s sentence. Because the record shows that the attempted

murder conviction had no bearing on the sentence Judge Singer imposed on Salgado for murder,

Judge Epstein’s subsequent decision to vacate the attempted murder conviction had no

meaningful effect on Salgado’s murder sentence. Thus, we find Judge Epstein’s decision to

vacate Salgado’s murder sentence was unwarranted. Although the lenient 28-year sentence

subsequently imposed on Salgado may have been appropriate based on Salgado’s rehabilitation

in prison, we cannot ignore that Salgado should not have been placed in the position to be

resentenced. See 730 ILCS 5/5-5-3(d) (West 2000) (where an original sentence is vacated and

the case remanded to the trial court, evidence of the defendant’s life, occupation and moral

character “during the time since the original sentence was passed” may be presented).

       To the extent that a disparity exists between codefendants’ sentences, there is but one

arbitrary sentence, the 28-year 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 tied


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to the gratuitous sentence reduction as a result 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.

        Relying on the special witness doctrine, petitioners also assert Judge Brosnahan erred in

permitting Judge Singer to testify at the evidentiary hearing regarding 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 testimony to be elicited from the

witness; (2) state why the testimony is necessary and relevant to the party’s case; and (3) state

what efforts have been made to secure the same evidence through other means. People v. Willis,

349 Ill. App. 3d 1, 17 (2004). We review the court’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 abused her discretion in permitting Judge Singer

to testify because the trial transcript speaks for itself. As stated, we agree that the transcript

speaks for itself. It shows that Judge Singer did not consider Salgado’s attempted murder

conviction in fashioning Salgado’s murder sentence. 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 affects our review and we find the error was harmless. Cf. People v. Reynolds, 284 Ill. App.

3d 611, 613-15, 617 (1996) (where the defendant filed a postconviction petition alleging his trial


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judge made an improper ex parte comment to his trial counsel, the postconviction judge

improperly denied the defendant’s motion to subpoena the trial judge and reversal was required

for further proceedings on the defendant’s postconviction petition). Petitioners would gain

nothing from a second evidentiary hearing.

       For the foregoing reasons, we affirm the judgment of the trial court.

       Affirmed.

       FITZGERALD SMITH, and HOWSE, JJ., concur.




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

                                      REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Please Use
Following                                       (Front Sheet to be Attached to Each Case)
Form:
                            THE PEOPLE OF THE STATE OF ILLINOIS,
Comple te                          Plaintiff-Appellee,
TITLE
                                     v.
of Case
                             VICTOR RODRIGUEZ,
                                     Defendant-Appellant.
                     _________________________________________

                            THE PEOPLE OF THE STATE OF ILLINOIS,
                                   Plaintiff-Appellee,
                                   v.

                             OMAR CHAIDEZ,
                                     Defendant-Appellant.
                     _________________________________________

                            THE PEOPLE OF THE STATE OF ILLINOIS,
                                   Plaintiff-Appellee,

                            v.

                            FRANCISCO MUNIZ,
                                   Defendant-Appellant.

Docket No.
                                                                No. 1-08-1006, 1-08-1007, 1-08-1013 (Cons.)
COURT                                                                 Appellate Court of Illinois
                                                                    First District, FIFTH Division

Opinion                                                                     June 30, 2010
Filed                                                                 (Give month, day and year)

                                     JUSTICE LAVIN delivered the opinion of the court:

JUSTICES                             Fitzgerald Smith and Howse, JJ.,                                                                  concur




                            Lower Court and T rial Judge(s) in form indicated in the margin:
APPEAL from
the Circuit Ct. of                   The Honorable________________ Mary         Margaret Brosnahan,       Judge Presiding.
Cook County,
Criminal Div.

                                            Indicate if attorney represents APPELLANTS or APPELLEE S and include
                                                 attorneys of counsel. Indicate the word NONE if not represented.

                            Attorneys for Respondent-Appellee:            Anita A lvarez, State’s Attorney
                            The People                                    Alan J. Spellberg, Rimas F. Cernius, Nancy Colletti, Of Counsel
For
APPELLANTS,                                                               County of Cook
John Doe, of                                                              Room 309, Richard J. Daley Center
Chicago.                                                                  Chicago, IL 60602
                            Attorneys for Petitione rs-Ap pellants:       Michael Pelletier, State Appellate Defender
For                         Victor Rodriguez                              Rebecca I. Levy, Assistant Appellate Defender.
APPELLEES,                  Omar Chaidez                                  203 N. LaSalle St., 24th floor
Smith and Smith             Francisco Muniz                               Chicago, IL 60601
of Chicago,
                                                                          312.814.5472
Joseph Brown,
(of Counsel)

Also add
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