                                                                       First Division
                                                                       June 4, 2007


No. 1-06-0768

THE PEOPLE OF THE STATE OF ILLINOIS                              )    Appeal from the Circuit Court
                                                                 )    of Cook County
       Plaintiff-Appellee,                                       )
                                                                 )
                v.                                               )    98 CR 22970
                                                                 )
ANTHONY CLARK,                                                   )
                                                                 )    Honorable
       Defendant-Appellant.                                      )    Henry R. Simmons,
                                                                 )    Judge Presiding

       PRESIDING JUSTICE McBRIDE delivered the opinion of the court:

       In March 2000, defendant, Anthony Clark, was convicted of the June 1998 first-degree

murder of Isaac Soberon. The trial court sentenced defendant to a term of 46 years. On direct

appeal, this court affirmed defendant’s conviction and sentence. See People v. Clark, 1-00-2022

(March 29, 2002) (unpublished order pursuant to Supreme Court Rule 23).

       In November 2003, defendant filed his first amended postconviction petition alleging

that: (1) his right to representation by conflict-free counsel was violated; (2) the trial court was

required to conduct a hearing on defendant’s pretrial pro se motion for appointment of counsel

other than the public defender; (3) defendant was denied his constitutional right to effective

assistance of counsel at the sentencing hearing; and (4) defendant was denied effective assistance

of appellate counsel. The State filed a motion to dismiss defendant’s postconviction petition. In

May 2004, the trial court dismissed counts I, II and IV, but granted a hearing as to defendant’s

claim regarding effective assistance of counsel at the sentencing hearing. At the October 2004

hearing on that count, the trial court granted defendant a new sentencing hearing. The trial court
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conducted the new sentencing hearing in November 2005, at which defendant presented several

witnesses in mitigation. Following the hearing, the trial court sentenced defendant to a term of

44 years’ imprisonment. Defendant appeals the partial dismissal of his first amended

postconviction petition as well as his sentence.

       In August 1998, defendant was indicted for the first degree murder of Isaac Soberon.

Assistant Public Defender Patrick Moriarty from the Cook County public defender’s dffice was

appointed to represent defendant. Codefendants in the case were also represented by assistant

public defenders from the Cook County public defender’s office. Defendant was not tried jointly

with any of his codefendants.

       On June 29, 1999, Assistant Public Defender Marijane Placek successfully sought to

withdraw as counsel for codefendant Matthew Hamill. Placek told the trial court that there could

be a potential conflict if the State intended to call Jose Ahumada as a witness. Ahumada was

represented by another assistant public defender, Ann Collins, on unrelated charges. Placek

informed the court that Ahumada would testify that he accompanied Hamill’s brother in hiding

the vehicle involved in the shooting. Ahumada would also state that he had been told that

defendant fired the fatal shots. Additionally, Collins was listed as a potential witness. The trial

court found that the simultaneous representation of a defendant and a potential witness gave rise

to a potential conflict. A private attorney was appointed to represent Hamill in July 1999.

       In September 1999, defendant filed a pro se motion for appointment of counsel other than

the public defender, in which he contended that (1) he did not have any meaningful line of

communication with his attorney, (2) his calls to his attorney had not been accepted, (3) defense


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counsel did not return the calls from defendant’s family and friends, (4) defense counsel urged

defendant to accept a plea, (5) defense counsel failed to fully investigate the case, and (6) defense

counsel failed to contact potential witnesses. At the hearing on the motion, defendant admitted

his claim that his calls were not accepted by his attorney was false. Defense counsel stated that

he had given defendant his phone number, but had not received any calls. Defendant claimed

that he did not have the phone number. The trial court told defendant that his attorney did a

competent and commendable presentation at a Rule 402 conference a month earlier. 177 Ill. 2d

R. 402. The trial court found defendant’s motion to be without merit and frivolous and there was

no need to appoint a new attorney.

         The following evidence was presented at defendant’s March 2000 trial.

         Joseph DeClet testified that on the night of June 24 and into June 25, 1998, he was a

passenger in a car with Soberon, Michael Kowalski and Khaled El-Helo. El-Helo was driving a

1993 Cutlass Supreme convertible with the top down. Soberon was in the front passenger seat

and DeClet was behind Soberon and Kowalski behind El-Helo. They were driving to a friend’s

house near the 5400 block of Campbell Street in Chicago. When they got to the area of

Campbell and Balmoral, DeClet saw two or three men on the street. The men approached the car

and called out, “What’s up, folks?” DeClet stated that he told the men they were not in a gang

and to leave them alone. The car turned onto Balmoral and two more men came out of the

bushes. DeClet saw a flash and heard gunshots. He saw a person coming toward the car and

firing a gun at them. DeClet identified defendant as the shooter in a photo array, a lineup and in

court.


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        DeClet said they pulled into an alley to see who was hurt. DeClet said there was lots of

blood in the car and they soon realized Soberon had been shot in the head. They drove off and

found an ambulance at a nearby 7-11 convenience store. Soberon was taken to the hospital and

died later that day. Kowalski also testified to the same facts except he was unable to see the

gunman’s face, but he did identify Rafael Hernandez, one of defendant’s codefendants, as one of

the men he saw come out of the trees.

        Joseph Bembynista, a forensic investigator with the Chicago police department, testified

that he recovered five cartridge casings from a .25-caliber Winchester semiautomatic handgun at

the scene. Dr. Thamrong Chira performed the autopsy on Soberon. Dr. Chira said the death was

caused by a gunshot wound to the head and the manner of death was homicide. Dr. Chira

recovered a small copper-jacketed bullet from Soberon’s brain. The gunshot was not fired at

close range. The parties stipulated that a ballistics expert, if called to testify, would state that the

bullet recovered from Soberon was a .25-caliber bullet.

        Officer Paul Zucharias testified that he is a Chicago police officer and an expert on

Chicago street gangs. He explained that Latin Kings identify themselves as “people,” and the

Insane Popes classify themselves as “folks.” He also stated that sometimes gang members

engaged in “false flagging,” in which they would identify themselves as members of a rival gang

in order to get other gang members to reveal their affiliation.

        Detective Robert Ellmore testified that he is a detective in the Area 3 violent crimes unit

of the Chicago police department. Detective Ellmore stated that in July 1998, he had a

conversation with Christopher Hamill about the shooting death of Soberon. Hamill provided


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information that led to the arrest of Christopher’s brother Matthew and Rafael Hernandez. After

speaking with Matthew Hamill and Hernandez, Detective Ellmore began to look for Charlie Khio

and defendant.

       Detective Stephen Schorsch testified that he is a detective with Area 3 of the Chicago

police department. He stated that he learned from another police officer that defendant was

staying at the home of a family friend in East Chicago, Indiana. Detective Schorsch went there to

arrest defendant. Defendant agreed to surrender himself to the police. Defendant was held at the

police station in East Chicago, Indiana, until he could be extradited to Chicago.

       Detective Schorsch gave defendant his Miranda rights, which defendant waived and

agreed to speak with Detective Schorsch. Defendant admitted that he was involved in the

shooting. He agreed to give a written statement to Assistant State’s Attorney (ASA) Carmen

Aguilar. Detective Schorsch further testified that defendant agreed to go with him to the crime

scene, where he pointed out his route on the night of the shooting. Defendant told Detective

Schorsch that the shooting occurred after he, Matthew Hamill, Khio and Hernandez, all members

of the Latin Kings, discussed avenging the death of a fellow gang member who was killed by the

Insane Popes. The men went to the area around Balmoral and Campbell, which was Insane

Popes territory, to find an Insane Popes member to kill. Hamill obtained a semiautomatic

handgun, gave it to defendant and told him to wait. Hamill and Khio waited on the street corner

while defendant hid between some bushes and a building.

       Eventually, defendant saw a white convertible driving on Campbell Street and Hernandez

shouted “we got some.” Defendant told Detective Schorsch that he fired three shots over the top


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of the car while defendant was crouched down. Hamill ordered defendant to keep shooting so

defendant ran down the street toward the convertible and fired three more shots. Defendant and

the others fled. Defendant told Detective Schorsch he hid the gun in some bushes, but when

defendant took Detective Schorsch to that location, the gun was not there.

       ASA Aguilar testified that she took defendant’s statement at the police station in East

Chicago, Indiana. She read defendant’s statement into the record, which contained essentially

the same facts as Detective Schorsch’s testimony. The statement also indicated that defendant

was 18 years old at the time of the shooting. Defendant also explained that Hamill was a

“cosinca” in the Latin Kings, which meant that he was second in command, and Hernandez was a

“chief enforcer,” who is someone authorized to give orders.

       The State rested after ASA Aguilar’s testimony. Defendant moved for a directed finding,

which the trial court denied.

       Defendant presented the testimony of Alma Perez and her sister Melissa Perez. Alma

stated that defendant was at her house the night of the shooting. She recalled this more than a

year after the shooting. She remembered those dates specifically because her son’s birthday was

a couple of days later and they had been preparing for a party. She admitted that she never came

forward to the court until that the day of her testimony. Alma also stated that she was very good

friends with the Latin Kings’ member who had been killed by the Insane Popes.

       Melissa stated that she is the mother of defendant’s child. She said she did not remember

that defendant was at her house on the night of the shooting until her sister refreshed her memory

in late 1999.


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       Following closing arguments, the jury found defendant guilty of the first degree murder of

Soberon. At a subsequent sentencing hearing, the trial court sentenced defendant to 46 years in

prison. Defense counsel did not present any witnesses in mitigation and only asked the court to

consider defendant’s age, lack of prior felony convictions and potential for rehabilitation.

       On direct appeal, defendant raised two issues: he claimed the State made improper

references to Soberon’s family during closing arguments and the trial court abused its discretion

in sentencing. This court affirmed defendant’s conviction and sentence.

       In November 2003, defendant filed his first amended postconviction petition. Defendant

argued that: (1) his right to representation by conflict-free counsel was violated; (2) the trial

court was required to conduct a hearing on defendant’s pretrial pro se motion for appointment of

counsel other than the public defender; (3) defendant was denied his constitutional right to

effective assistance of counsel at the sentencing hearing; and (4) defendant was denied effective

assistance of appellate counsel. As to the first claim, defendant contended that his trial counsel

should have filed a motion to withdraw because defense counsel was from the Cook County

public defender’s office and that the same conflict present in Matthew Hamill’s case existed in

his case. Defendant asserted that the conflict was even more profound in his case because the

Cook County public defender represented multiple codefendants and a witness who gave a

statement implicating defendant.

       The State filed a motion to dismiss, and after hearing arguments from both sides, the trial

court dismissed the claims relating to the conflict of interest, attorney negligence and ineffective

assistance of appellate counsel. The trial court noted that Placek and Collins were in the murder


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task force unit of the Cook County public defender’s office, whereas defendant’s trial counsel

was in the separate multiple defendant unit. The court concluded that there was no conflict in

defendant’s case.

       The trial court denied the State’s motion to dismiss on the claim of ineffective assistance

of trial counsel at sentencing and granted a hearing. Following the hearing, the trial court

ordered a new sentencing hearing because defense counsel failed to call several available

witnesses in mitigation.

       At the November 2005 sentencing hearing, the State presented an impact statement from

Soberon’s mother as well as presentence investigation reports. Defendant presented the

testimony of several family members and friends through live testimony and affidavits.

Defendant also called Dorothy Papchristos, a gang specialist who knew defendant, and Dr.

Ruben Gur, a neuropsychologist and professor at the University of Pennsylvania.

       Defendant’s family and friends testified that defendant was not a typical gang member.

They discussed his devotion to his family and his efforts to keep his younger siblings and friends

from joining a gang. They said that defendant regretted joining a gang, but feared leaving

because of the retaliation against himself and his family. Defendant left the neighborhood twice

in an effort to distance himself from the gang. Once he moved to Florida to live with his

grandmother, and then later he participated in the Lincoln’s Challenge, a program for troubled

youth. Defendant earned his GED while in the program. Papachristos testified about the

hierarchy of gangs and that it was a reasonable for defendant to fear retaliation. Papachristos also

stated that defendant could have been killed for violating a direct order from Hamill, a “cosinca.”


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Dr. Gur testified about adolescent brain development and that an adolescent is not as culpable for

his actions as an adult with a fully developed brain.

       The trial court found that Dr. Gur’s testimony had very little value because Dr. Gur never

examined defendant as an adolescent. Instead, the court said that Dr. Gur’s testimony was not

supported by the testimony of defendant’s friends and family, who described him as a mature,

responsible and respectful adolescent. The court found that defendant made the decision to join

the gang and to get tattoos to evidence his affiliation. The court considered the gang influence,

but noted that defendant did not experience any repercussions when he left to live with his

grandmother and to attend Lincoln’s Challenge. The court concluded that defendant needed a

structured environment for a long time. The trial court then sentenced defendant to 44 years’

imprisonment. The trial court denied defendant’s motion to reconsider sentencing.

       This appeal followed.

       On appeal, defendant argues that the trial court erred in dismissing his first amended

postconviction petition and failed to fully consider the mitigating evidence presented at

defendant’s sentencing hearing.

       Before we consider the merits of defendant’s appeal, we must consider our jurisdiction.

One week before oral argument, the State filed a motion contesting this court’s jurisdiction over

three of the four issues raised by defendant. The State contends that under Supreme Court Rule

606(b) (210 Ill. 2d R. 606(b)), defendant was required to file his notice of appeal within 30 days

of the trial court’s October 27, 2004, order granting a new sentencing hearing because that order

disposed of the final remaining issue on defendant’s postconviction petition. According to the


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State, defendant’s notice of appeal filed March 10, 2006, only preserves the appeal of the

February 10, 2006, sentencing order and we should dismiss the issues from defendant’s

dismissed postconviction claims.

       Section 122-7 of the Illinois Post-Conviction Hearing Act (Post-Conviction Act) states

that “[a]ny final judgment entered upon [a postconviction] petition shall be reviewed in a manner

pursuant to the rules of the Supreme Court.” 725 ILCS 5/122-7 (West 2004). This jurisdiction

question was addressed by the Second District in People v. Fikara, 345 Ill. App. 3d 144 (2003).

In Fikara, the trial court dismissed four allegations in the defendant’s postconviction petition and

granted a new sentencing hearing based on a claimed Apprendi violation. Fikara, 345 Ill. App.

3d at 150. As in the instant case, the defendant did not file his notice of appeal until after his

new sentencing hearing. Fikara, 345 Ill. App. 3d at 151. The State argued that the reviewing

court did not have jurisdiction to consider the issues raised from the dismissed counts in the

postconviction petition because the notice of appeal was not timely filed. Fikara, 345 Ill. App.

3d at 151.

       The Fikara court, relying on People v. Scott, 194 Ill. 2d 268, 278-79 (2000), and People v.

Joyce, 1 Ill. 2d 225, 227 (1953), pointed out that “Illinois courts have held that an order that

disposes entirely of a postconviction petition is immediately appealable, even if the order does

not ultimately dispose of the criminal proceedings against the defendant.” Fikara, 345 Ill. App.

3d at 151. In Scott, the supreme court found that when the trial court grants a new sentencing

hearing from a postconviction petition, the State is allowed to immediately appeal that order.

Scott, 194 Ill. 2d at 278-79. The Scott court noted that if an appeal was not permitted until after


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the new sentencing hearing, then the State would be denied its right to seek review of the trial

court’s decision. Scott, 194 Ill. 2d at 279. The same analysis follows in cases like Fikara and the

present case, in that, if the State is permitted to appeal a final order, then the defendant should do

so as well. “Such an order, while not necessarily disposing of the criminal proceeding,

nonetheless is a final disposition of the petition under the Act.” Fikara, 345 Ill. App. 3d at 151-

52, citing Joyce, 1 Ill. 2d at 227. The reviewing court in Fikara found that the trial court’s order

dismissing the postconviction petition in part and granting a new sentencing hearing “resolved all

issues raised in the postconviction petition and was a final disposition of the petition under the

Act.” Fikara, 345 Ill. App. 3d at 152. Accordingly, that order was immediately appealable and

the defendant was required to file a notice of appeal within 30 days. Fikara, 345 Ill. App. 3d at

152. The court found the defendant’s failure to file a timely notice of appeal deprived it of

jurisdiction. Fikara, 345 Ill. App. 3d at 152.

       However, the Fikara court supplemented its opinion upon denial of rehearing. In the

supplemental opinion, the court considered the defendant’s assertion that the trial court failed to

order the clerk of the circuit court to provide the defendant with immediate notice of the adverse

judgment as required by Supreme Court Rule 651(b) (134 Ill. 2d R. 651(b)) and that this failure

should excuse his untimely notice of appeal. Fikara, 345 Ill. App. 3d at 157-58. “Supreme Court

Rule 651(b) requires that, upon the entry of a judgment adverse to a defendant in a

postconviction proceeding, the clerk of the trial court ‘shall at once mail or deliver’ to the

defendant a notice advising him of the entry of the order and advising him of his right to appeal.”

Fikara, 345 Ill. App. 3d at 158, quoting 134 Ill. 2d R. 651(b). The reviewing court reviewed the


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record and concluded that the clerk of the trial court failed to provide the defendant with the

required notice of the adverse judgment and the trial court also failed to admonish the defendant

about the finality of the order and the need to file a notice of appeal within 30 days. Fikara, 345

Ill. App. 3d at 158.

       The Second District noted that in cases where the requirements of Rule 651(b) have not

been satisfied, “the reviewing court must treat a defendant's untimely notice of appeal as a

petition for leave to file a late notice of appeal within the contemplation of Supreme Court Rule

606(c) (188 Ill.2d R. 606(c)).” Fikara, 345 Ill. App. 3d at 158. “The reviewing court must then

grant the petition and consider the merits raised in the defendant's appeal.” Fikara, 345 Ill. App.

3d at 158. “The reviewing court must allow the filing of a late notice of appeal even when the

six-month period for seeking leave to file a late notice of appeal provided in Rule 606(c) [188 Ill.

2d R. 606(c)] has already expired.” Fikara, 345 Ill. App. 3d at 158. The Fikara court held that in

light of the trial court’s failure to “ensure compliance” with Rule 651(b), the reviewing court

must treat the untimely notice of appeal as a petition to file a late notice of appeal and consider

the merits of the defendant’s postconviction claims. Fikara, 345 Ill. App. 3d at 158.

       We find the decision in Fikara to be well reasoned and agree with its analysis. Here, the

trial court initially dismissed three of the four claims in defendant’s postconviction petition and

ordered an evidentiary hearing on defendant’s sentencing claim. After the evidentiary hearing,

the trial court granted defendant a new sentencing hearing, thus resolving the final claim from the

postconviction petition. Defendant then failed to file a notice of appeal within 30 days of that

October 27, 2004, order in which the trial court disposed of all claims from the postconviction


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petition. However, based on our reading of the record on appeal, the clerk of the trial court failed

to comply with Rule 651(b). The clerk of the circuit court failed to give defendant the required

notice of an adverse judgment under Rule 651(b). Additionally, the trial court did not admonish

defendant about his right to appeal until its ruling at defendant’s sentencing hearing. As in

Fikara, we must treat defendant’s untimely notice of appeal as petition to file a late notice of

appeal and consider the issues defendant has raised from the dismissed portion of his

postconviction petition.

       The Post-Conviction Act (725 ILCS 5/122-1 through 122-8 (West 2000)) provides a tool

by which those under criminal sentence in this state can assert that their convictions were the

result of a substantial denial of their rights under the United States Constitution or the Illinois

Constitution or both. 725 ILCS 5/122-1(a) (West 2000); People v. Coleman, 183 Ill. 2d 366,

378-79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at the

original trial. Coleman, 183 Ill. 2d at 380. “A proceeding brought under the [Post-Conviction

Act] is not an appeal of a defendant's underlying judgment. Rather, it is a collateral attack on the

judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999). “ The purpose of [a postconviction]

proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that

were not, and could not have been, determined on direct appeal.” People v. Barrow, 195 Ill. 2d

506, 519 (2001). Thus, res judicata bars consideration of issues that were raised and decided on

direct appeal, and issues that could have been presented on direct appeal, but were not, are

considered waived. Barrow, 195 Ill. 2d at 519. However, the doctrine of waiver is relaxed where

the alleged waiver stems from the incompetence of appellate counsel. People v. Harris, 206 Ill.


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2d 1, 33 (2002). The standard of review for dismissal of a postconviction petition is de novo.

Coleman, 183 Ill. 2d at 389.

       At the first stage, the circuit court must independently review the postconviction petition

within 90 days of its filing and determine whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2002). If the court determines that the petition is either

frivolous or patently without merit, the court must dismiss the petition in a written order. 725

ILCS 5/122-2.1(a)(2) (West 2002). If the circuit court does not dismiss the postconviction

petition as frivolous or patently without merit, then the petition advances to the second stage.

Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4 (West 2002)),

and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West 2002)). At this

stage, the circuit court must determine whether the petition and any accompanying

documentation make a substantial showing of a constitutional violation. See Coleman, 183 Ill.

2d at 381. If no such showing is made, the petition is dismissed. If, however, a substantial

showing of a constitutional violation is set forth, then the petition is advanced to the third stage,

where the circuit court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2002).

       “A defendant is not entitled to an evidentiary hearing on a post[]conviction petition as a

matter of right.” Barrow, 195 Ill. 2d at 519. “An evidentiary hearing is warranted on a

postconviction petition only where the allegations of the petition, supported where appropriate by

the trial record or accompanying affidavits, make a substantial showing that a defendant’s

constitutional rights have been violated.” People v. Orange, 195 Ill. 2d 437, 448 (2001). “In

determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in


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accompanying affidavits are taken as true.” Orange, 195 Ill. 2d at 448.

       Defendant first contends that the trial court erred in dismissing his claim that his right to

conflict-free counsel was violated. Defendant asserts that his trial counsel labored under a

conflict of interest because his attorney was from the public defender’s office, which also

represented defendant’s codefendants and a potential witness. The trial court was made aware of

the potential conflict when the assistant public defender representing one of defendant’s

codefendants sought to withdraw due to a potential conflict of interest. Defendant later filed a

pro se motion seeking new counsel and included a claim that the continued representation would

evince “an absolute conflict of interest.” However, the pro se motion did not discuss the conflict

of interest in any detail. Defendant claims that the trial court was obligated to conduct an inquiry

as to any conflict in defendant’s case.

       A defendant's sixth amendment right to effective assistance of counsel includes the right

to conflict-free representation. People v. Hardin, 217 Ill. 2d 289, 299 (2005); People v. Morales,

209 Ill. 2d 340, 345 (2004). In People v. Spreitzer, 123 Ill. 2d 1, 14-17 (1988), the Illinois

Supreme Court outlined the framework for considering conflict of interest cases. Specifically,

the court noted the dichotomy between per se conflicts and alleged conflicts. A per se conflict

of interest exists where “certain facts about a defense attorney's status were held to engender, by

themselves, a disabling conflict.” (Emphasis in original.) Spreitzer, 123 Ill. 2d at 14. When a per

se conflict of interest is shown, a defendant is not required to show prejudice resulting from the

conflict in order to obtain relief. Spreitzer, 123 Ill. 2d at 15. A per se conflict is grounds for

reversal unless the defendant waived his right to conflict-free counsel. Spreitzer, 123 Ill. 2d at


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17. The supreme court has found a per se conflict when (1) defense counsel had a

contemporaneous relationship with the victim, the prosecution, or an entity assisting the

prosecution (People v. Lawson, 163 Ill. 2d 187, 211 (1994) (collecting cases)), (2) defense

counsel contemporaneously represented a prosecution witness (People v. Thomas, 131 Ill. 2d

104, 111 (1989)), and (3) defense counsel was a former prosecutor who had been personally

involved in the prosecution of the defendant (Lawson, 163 Ill. 2d at 217-18).

        In the second class of alleged conflicts, reversal is not automatic and sometimes courts

have refused to reverse a conviction without some showing that conflict actually affected the

attorney's performance. Spreitzer, 123 Ill. 2d at 17. These types of conflicts have often involved

joint or multiple representation of codefendants. Spreitzer, 123 Ill. 2d at 17. “Treating multiple

representation as creating a per se conflict would put an end to multiple representation altogether,

since a ‘possible conflict inheres in almost every instance of multiple representation,’ and a per

se rule would ‘preclude multiple representation even in cases where “[a] common defense ***

gives strength against a common attack.” ’ ” Spreitzer, 123 Ill. 2d at 17, quoting Cuyler v.

Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346, 100 S. Ct. 1708, 1718 (1980), quoting

Glasser v. United States, 315 U.S. 60, 92, 86 L. Ed. 680, 710-11, 62 S. Ct. 457, 475 (1942)

(Frankfurter, J., dissenting).

        The analysis of an alleged conflict depends on when the issue was raised before the trial

court. If the potential conflict is brought to the attention of the trial court by counsel at an early

stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate

steps to ascertain whether the risk of conflict was too remote to warrant separate counsel.


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Spreitzer, 123 Ill. 2d at 18; Holloway v. Arkansas, 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98

S. Ct. 1173, 1178 (1978). “While this rule is not per se (since it is the attorney's

contemporaneous allegations of a conflict and not the mere presence of multiple representation

which gives rise to the trial court's duty), reversal of a conviction under this rule does not require

a showing that the attorney's actual performance was in any way affected by the purported

conflict. In this sense, reversal for the trial court's failure to alleviate possible or potential

conflicts does not require a showing of ‘specific prejudice.’ ” Spreitzer, 123 Ill. 2d at 18; quoting

Holloway, 435 U.S. at 487, 55 L. Ed. 2d at 436, 98 S. Ct. at 1180.

        “However, if the trial court is not apprised of the potential conflict, then reversal of the

conviction will only be had upon a showing that ‘an actual conflict of interest adversely affected’

counsel's performance.” Spreitzer, 123 Ill. 2d at 18, quoting Cuyler, 446 U.S. at 350, 64 L. Ed.

2d at 348, 100 S. Ct. at 1719. “[T]he defendant must point to some specific defect in his

counsel's strategy, tactics, or decision making attributable to the conflict.” Spreitzer, 123 Ill. 2d

at 18. “While mere speculative or hypothetical conflicts are insufficient to demonstrate [an]

actual conflict of interest [citation], a defendant need not prove the conflict contributed to his

conviction [citation].” People v. White, 362 Ill. App. 3d 1056, 1060 (2005).

        Here, defendant claims that a per se conflict exists in this case because the public

defender’s office represented codefendants and Ahumada, a potential witness against defendant.

Ahumada’s public defender was also listed as a potential witness by the State.         Defendant also

asserts that a per se conflict exists when counsel represents multiple defendants who are pursuing

antagonistic defenses, but the case relied on for this contention, People v. Simmons, 67 Ill. App.


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3d 1045 (1978), predated the supreme court’s decision in Spreitzer, which clarified the situations

creating a per se conflict of interest, and the reviewing court in Simmons found the conflict issue

to be waived. Moreover, this case does not involve antagonistic defenses. “Defenses are

antagonistic when each codefendant implicates the other in the offense and professes his own

innocence.” People v. McCann, 348 Ill. App. 3d 328, 335 (2004). Here, codefendants gave

statements to the police that implicated defendant, but none of the codefendants were tried jointly

with defendant nor did they testify at defendant’s trial. These facts distinguish this case from

cases that successfully raised the presence of antagonistic defenses as the basis for a conflict of

interest. See White, 362 Ill. App. 3d at 1061 (actual conflict of interest was shown where

attorney represented codefendants tried together and cross-examined a witness to benefit one

codefendant at the expense of the other).

        Defendant argues that the representation of codefendants and a potential witness by the

public defender and the inclusion of an assistant public defender as a potential witness gave rise

to a per se conflict of interest. Defendant implies in his argument that because a conflict of

interest existed for codefendant Hamill, a conflict of interest existed for him as well. Defendant

further asserts that the trial court received notice of the conflict in defendant’s case when

codefendant Hamill’s public defender raised her conflict claims and was therefore required to

perform an inquiry as to how the conflict affected defendant. Defendant relies on Spreitzer and

Holloway, to support his assertion that the trial court was obligated to consider whether a conflict

of interest existed in his case.

        We find the supreme court’s decision in Morales to be instructive. In Morales, the court


                                                 18
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reversed the appellate court’s finding of a per se conflict of interest when the defendant’s

attorney also represented a prosecution witness. The reviewing court found that since the witness

represented by defendant’s attorney never testified at trial, defense counsel never assumed the

role of attorney for a prosecution witness and declined to find a per se conflict. Morales, 209 Ill.

2d at 346. The supreme court further explained that nothing in the record indicated that the

witness stood to gain anything in a verdict against the defendant. Morales, 209 Ill. 2d at 346-47.

       In the instant case, none of defendant’s codefendants, Ahumada, or his attorney testified

at defendant’s trial. Nothing was presented at defendant’s trial that implicated the public

defender’s office as representing conflicting interests. Based on the supreme court’s decision in

Morales, we find that there was no per se conflict of interest since at defendant’s trial the only

interest represented by the public defender’s office was defendant’s.

       Additionally, in Morales, the supreme court clarified its holding in Spreitzer that a trial

court has a duty to either appoint separate counsel or take adequate steps to ascertain whether the

risk of conflict was too remote to apply only when defense counsel informs the court of the

potential conflict. Morales, 209 Ill. 2d at 347-48. The Morales court noted that the United States

Supreme Court confirmed that the rule in Holloway of automatic reversal applies only when a

trial court fails to respond appropriately to defense counsel's objection to a representation.

Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 302, 122 S. Ct. 1237, 1241-42 (2002).

The Morales court declined to apply Holloway in that instance because neither defense counsel

nor defendant raised the potential conflict. Morales, 209 Ill. 2d at 348.

       It is undisputed that defendant’s trial counsel did not raise a potential conflict of interest


                                                 19
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before the trial court, but defendant asserts that the trial court should have conducted an inquiry

in defendant’s case based on the conflict issue raised in codefendant Hamill’s case.

Additionally, defendant contends that he raised the issue before the trial court in his pro se

motion for appointment of counsel other than the public defender. The only mention of a conflict

of interest was:

                       “Defendant avers that his rights have been and shall

               continue to be substantially harmed and prejudiced by the

               continued representation of appointed counsel, evincing an

               absolute conflict of interest [citations omitted] in order to receive

               meaningful and effective assistance and zealous advocacy of

               counsel.”

Defendant did not assert any facts relating to a conflict of interest. The mere mention of “an

absolute conflict of interest” was not sufficient to make the trial court aware of any conflict as it

relates to defendant. In the context of a potential conflict between two public defenders, the

conflict issue will normally be raised by the defendant. Hardin, 217 Ill. 2d at 303. Consequently,

the defendant needs only to present the gist of such a conflict. “The defendant must sketch, in

limited detail, a picture of how the working relationship between the public defenders created an

appearance of impropriety.” Hardin, 217 Ill. 2d at 303. “Relevant factors include whether the

two public defenders were trial partners in the defendant's case [citations]; whether they were in

hierarchical positions where one supervised or was supervised by the other [citations]; or whether

the size, structure, and organization of the office in which they worked affected the closeness of


                                                  20
1-06-0768

any supervision [citations].” Hardin, 217 Ill. 2d at 303. Even though the threshold is low,

defendant’s pro se motion makes no mention of what conflict of interest existed and does not

discuss his codefendants or the public defender’s office’s multiple representations. Based upon

these facts, defendant did not raise the gist of a claim of a conflict of interest.

        Moreover, defendant has not cited any authority to support his assertion that the trial

court was obligated to conduct an inquiry in defendant’s case based on the conflict of interest

raised in codefendant Hamill’s case. Nothing in Holloway and Spreitzer requires a trial court to

sua sponte conduct an inquiry in a defendant’s case based on motions brought in a codefendant’s

case. In addition, the Illinois Supreme Court has held that “in determining whether a conflict of

interest exists, individual attorneys who comprise the staff of the public defender, unlike

members of a private law firm, are not members of an entity, ‘which should be subject to the rule

that if one attorney is disqualified by reason of a conflict of interest then no other member of the

entity may continue with the representation.’ ” People v. Brown, 172 Ill. 2d 1, 44 (1996),

quoting People v. Robinson, 79 Ill. 2d 147, 159 (1979). In cases involving the public defender’s

office, the trial court must conduct a case-by-case inquiry to determine whether the risk of a

conflict colored the defendant's representation, but only when the potential conflict is brought to

the court's attention. Hardin, 217 Ill. 2d at 302; see also People v. Banks, 121 Ill. 2d 36 (1987).

        Based on the foregoing analysis, we find that a potential conflict relating to defendant’s

representation by the public defender’s office was not brought to the attention of the trial court

before trial, and therefore, the trial court was not obligated to conduct an inquiry.

        Next, we look to see if defendant has alleged any defect in his representation attributable


                                                   21
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to the conflict. Under Spreitzer, reversal of the conviction will only be had upon a showing that

an actual conflict of interest adversely affected counsel's performance and defendant must point

to some specific defect in his counsel's strategy, tactics, or decision making attributable to the

conflict. Spreitzer, 123 Ill. 2d at 18. Here, defendant has not alleged any defect in his trial

counsel’s performance related to the potential conflict of interest. Accordingly, we find that

defendant has not shown that his trial counsel labored under an actual conflict of interest that

adversely affected his performance.

       Defendant next argues that the existing Illinois Supreme Court case law for examining

conflicts within the public defender’s office differently than a law firm violated defendant’s

equal protection. We need not review defendant’s equal protection argument because defendant

lacks standing to raise it. Standing in Illinois requires only some injury in fact to a legally

cognizable interest. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492

(1988). Since we have found that defendant was not deprived of his right to conflict-free

representation, he “ ‘is not aggrieved by the alleged deprivation of equal protection and

consequently lacks standing to raise this issue.’ ” People v. Campa, 217 Ill. 2d 243, 268 (2005);

quoting People v. Boykin, 94 Ill. 2d 138, 147 (1983).

       Next, defendant asserts that the trial court did not make an adequate inquiry into his pro

se claim that his trial counsel was neglecting his case. The State maintains that the trial court

conducted an adequate inquiry into defendant’s motion, and the trial court properly dismissed

this postconviction claim.

       The following discussion took place when the trial court considered defendant’s pro se


                                                  22
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motion:

                   “THE COURT: You’re telling me that your phone calls are

            not accepted at the Public Defender’s office?

                   THE DEFENDANT: Well–

                   THE COURT: That’s what this says. Number three says,

            the defendant’s phone calls have not been accepted by that office.

            Is that what you are saying?

                   THE DEFENDANT: Well, I– (inaudible)

                   THE COURT: So that’s not true, right?

                   THE DEFENDANT: No, sir.

                   THE COURT: So, point number three, part of it is not true.

            I’ll scratch it off. His phone number is available. Your phone

            number is available to him, is that correct? You have voice mail?

                   MR. MORIARTY [Defendant’s attorney]: Yes.

                   THE COURT: Has he ever called you?

                   MR. MORIARTY: No.

                   THE COURT: You gave him that phone number, right?

                   MR. MORIARTY: Yes, sir.

                   THE DEFENDANT: Sir, I never got a phone number from

            him to call him.

                   THE COURT: Did you call anyone in the Public


                                            23
1-06-0768

            Defender’s Office?

                   THE DEFENDANT: I never had a number.

                   THE COURT: I’m quite certain that his phone number is

            available in the County Jail, and it’s easily attainable, and you

            could have called if you needed to contact your lawyer.

                   You could have called the Public Defender’s office, and

            they would give you Mr. Moriarty’s phone number, if it is in fact

            true that you don’t have his phone number.

                   THE DEFENDANT: Out of all due respect to Mr.

            Moriarty, I need to find out what’s going on with my case, you

            know, and he really doesn’t tell me anything that I need to know,

            you know.

                   THE COURT: Well, we had an extensive conference back

            in August, August 11th. I made an offer. And all I can tell you is

            that your attorney represented you during that conference, and

            spoke up on your behalf, and did a competent and commendable

            presentation during that conference.

                   THE DEFENDANT: I didn’t really want to go into the 402

            conference. It was a mistake.

                   THE COURT: Well, I asked you, and you said you did. So

            maybe now you are having afterthoughts about it, and I respect


                                              24
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                 that. But you never — I asked you particular questions, and you

                 said you wanted me to discuss the case.

                        In any event, I have read through your motion, and I find it

                 to be without merit and frivolous.

                        Mr. Moriarty has practiced before me many years. He’s

                 well experienced. He used to be a Chicago police officer. He’s

                 been a lawyer for many years and there’s nothing in here that tells

                 me that he’s not doing anything but his job. And he’s more than

                 happy to meet with you and discuss your case with you.

                        I’m not going to appoint anyone outside of the Public

                 Defender’s office to represent you. So now, if they want to change

                 the attorneys to the Multiple Defendants’ unit and give you a

                 different lawyer, that’s up to them, but I’m not going to appoint

                 somebody outside of the Public Defender’s office to represent you.

                 So, your motion is denied.”

        Defendant cites to the supreme court decision in People v. Moore, 207 Ill. 2d 68 (2003),

for support. In Moore, the defendant filed a pro se motion for appointment of new counsel with

the trial court during pretrial discovery and then after trial filed a second pro se motion seeking

new counsel. Moore, 207 Ill. 2d at 76-77. The trial court’s only response to the defendant’s

posttrial motion was to appoint the State Appellate Defender as counsel on appeal. Moore, 207

Ill. 2d at 77.


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       The supreme court held that when a defendant files a pro se posttrial claim of ineffective

assistance of counsel, the trial court must conduct an inquiry into the factual basis of the claim.

Moore, 207 Ill. 2d at 78. “If the trial court determines that the claim lacks merit or pertains only

to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se

motion.” Moore, 207 Ill. 2d at 78. “During this evaluation, some interchange between the trial

court and trial counsel regarding the facts and circumstances surrounding the allegedly

ineffective representation is permissible and usually necessary in assessing what further action, if

any, is warranted on a defendant's claim.” Moore, 207 Ill. 2d at 78. The evaluation can include

asking the trial counsel questions to explain the facts and circumstances of the motion and a brief

discussion between the trial court and the defendant. Moore, 207 Ill. 2d at 78. Also, the trial

court can base its evaluation of the ineffective assistance claims on its observations of the

defendant’s attorney at trial and the insufficiency of the defendant’s allegations on its face.

Moore, 207 Ill. 2d at 79.

       Here, we find that the trial court conducted a sufficient inquiry into the allegations in

defendant’s pro se motion. The trial court inquired into the preparation of the motion with

defendant and also asked about defendant’s claim that his trial counsel would not accept his calls.

Defendant then admitted that allegation was false. The trial court indicated on the record that it

found defendant’s motion to be without merit based in part on its observations of defense

counsel’s representation of defendant during the Rule 402 conference. These observations of

defendant’s attorney’s performance are part of a proper evaluation under Moore. Additionally, at

the hearing on defendant’s postconviction petition, the trial court further explained its


                                                 26
1-06-0768

considerations of defendant’s pro se motion. The court noted that “the most compelling part of

the inquiry” was that in response to the first question asked of defendant, defendant admitted that

he lied. The court also stated that defendant’s “claims basically were of a general nature, that his

attorney wouldn’t talk to him, he calls him, wouldn’t accept his phone calls and he only talked to

him in the bull pen.” The court said that defendant made those allegations and then later

admitted that petitioner never called his attorney, saying his attorney never gave defendant his

phone number. The trial court weighed defendant’s allegations, in which he admitted to

fabricating in part, against its knowledge of defense counsel’s performance in the case, and

concluded that the pro se motion was without merit. We find that the trial court properly

considered defendant’s pro se motion and made a decision based on its evaluations.

Accordingly, the trial court properly dismissed this issue in defendant’s postconviction petition.

       Defendant’s last argument on appeal is that the trial court abused its discretion in

sentencing defendant to 44 years’ imprisonment on his first degree murder conviction.

Defendant asserts that the trial court failed to give proper weight and consideration to the

mitigating evidence presented at his sentencing hearing. The State maintains that the trial court

did not abuse its discretion because defendant’s sentence is within the statutory limits and the

trial court properly considered the aggravating and mitigating factors in sentencing.

       “Although the legislature has prescribed the permissible ranges of sentences, great

discretion still resides in the trial judge in each case to fashion an appropriate sentence within the

statutory limits.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “The trial court must base its

sentencing determination on the particular circumstances of each case, considering such factors


                                                 27
1-06-0768

as the defendant's credibility, demeanor, general moral character, mentality, social environment,

habits, and age. Fern, 189 Ill. 2d at 53.” “The sentencing judge is to consider ‘all matters

reflecting upon the defendant's personality, propensities, purposes, tendencies, and indeed every

aspect of his life relevant to the sentencing proceeding.’ ” Fern, 189 Ill. 2d at 55, quoting People

v Barrow, 133 Ill. 2d 226, 281 (1989). “In reviewing a claim that a sentence within statutory

limits is excessive, the court must consider whether, given the particular facts of the case, the

sentence is greatly at variance with the spirit and purpose of the law or manifestly

disproportionate to the nature of the offense.” Fern,189 Ill. 2d at 55-56. Supreme Court Rule

615(b)(4) allows a reviewing court to reduce a sentence imposed by the trial court where the

record discloses that the trial court abused its discretion. 134 Ill. 2d R. 615(b)(4).

        Under section 5-8-1 of the Unified Code of Corrections, the sentencing range for first

degree murder is 20 to 60 years’ imprisonment. 730 ILCS 5/5-8-1(a)(1)(a) (West 2000).

Defendant received a sentence of 44 years, which is within the statutory range. The crux of his

argument is that the trial court did not consider the mitigating evidence because he only received

a sentence that was two years less than his previous sentence. Defendant presented the live

testimony of several family members and friends as well as two expert witnesses and several

affidavits.

        Mayra Ramos and her children Kristian Tellado and Jessica Flores testified on

defendant’s behalf. Tellado testified that he and defendant are like “brothers.” Tellado and

Flores met defendant when Tellado moved into the neighborhood. Flores stated that defendant

came by to help them move. Flores testified that she dated defendant for a while. Flores said


                                                  28
1-06-0768

that defendant asked her mother’s permission to date Flores. Defendant spent a lot of time at the

family’s house. Ramos said that defendant called her “Mom.” When defendant spent the night

at their house, defendant slept on the couch or in the boys’ room. Tellado and defendant worked

together at Wrigley Field concessions. All of them described defendant as respectful, especially

toward Ramos. Flores stated that defendant would help her babysit and would clean her house.

Ramos said that defendant treated her children like brothers and sisters. Flores would also help

defendant babysit his younger siblings. She said he took care of his younger siblings and made

sure they did not get into trouble.

       Tellado and Flores described the neighborhood as having a strong gang presence. Tellado

saw gang members “all day, every day.” Tellado and Flores did not know defendant was in a

gang when they first met. Tellado later asked defendant if he was in a gang. Tellado was

surprised and disappointed because defendant was “outgoing” and had “a good spirit.” Tellado

testified that defendant was not a typical gang member and he was not proud of it. Tellado said

that defendant “knew it hurt him” and it “wasn’t who he was.” Defendant told Tellado he

wanted to leave the gang, but he was afraid of being hurt through a violation.

       Flores also asked defendant if he was in a gang after she saw a tattoo of two initials on his

arm. She was very surprised because defendant “didn’t carry himself as one.” Defendant did not

spend time with the gang because he was with Flores. Flores and defendant also discussed his

desire to leave the gang and his fear of consequences. None of them ever saw defendant conduct

gang business or bring a weapon into their home.

       Ramos stated that defendant came to her and told her about his gang membership. She


                                                29
1-06-0768

said she was very upset and lectured him. Defendant told her he wanted to leave the gang.

Ramos helped by keeping him occupied in the house. Ramos described defendant as “respectful,

“honorable,” and “would carry himself right.”

       Later, Tellado and his family moved to East Chicago, Indiana, and they invited defendant

to move with him. Defendant did not want to leave his family. Tellado stayed behind to finish

school and lived with defendant for a few months after Tellado’s family left Chicago. Flores said

that defendant would often visit her family in Indiana. Tellado stated that defendant was arrested

within five to seven months after Tellado moved to Indiana. Flores testified that she continued to

visit defendant while he was in prison and she said he has matured and that he “knows now there

is more to life to offer him and he can actually reach out and could have [taken] it.”

       Defendant’s mother, Aixa Martinez, also testified. She said that defendant’s biological

father was abusive and he left when defendant was two or three years old. Since then, she has

been in a relationship with Michael Vera and she had two children with Vera. Martinez testified

that she is epileptic and that defendant often helped her after her seizures by caring for his

younger siblings. She trusted defendant with his siblings because he was a responsible kid and

she knew he could handle it.

       When Martinez found out that defendant was in a gang, they discussed it. She said he

was not proud of being in a gang. It was hard for her to cope with it because defendant was not

like gang members, in that, he was responsible and helpful. She talked with defendant about

leaving the gang, but he was afraid of what might happen to his siblings and himself. Martinez

helped defendant avoid the gang members by saying he was not at home when they came to look


                                                 30
1-06-0768

for him. Defendant wanted to leave the neighborhood, but the family could not afford it.

       Martinez said that defendant left the neighborhood twice. Once he went to Florida to live

with Martinez’s mother, but he returned after a few months because he missed his family. Later,

defendant heard about the Lincoln’s Challenge program from Tellado, which defendant attended.

Defendant earned his GED there. Martinez said that it was defendant’s idea to attend the

program. Martinez also said that nothing happened to her family either time defendant left.

       Dorothy Papachristos testified as a gang expert and she also had personal contact with

defendant. Papachristos started a not-for-profit agency called Community Dare to Care, which

aims to take kids out of gangs and reconnect them with their families. One program the agency

offers is a gym program in which kids in gangs or at risk kids come in and play basketball two

evenings a week. She met defendant through this program.

       Papachristos also discussed the structure of the Latin Kings. She said that gang is very

structured with a defined hierarchy with a cosinca and sinca at the top. The low members, foot

soldiers, take instruction from higher-ranked members.

       Papachristos was impressed with defendant because he came to her, introduced himself

and shook her hand. Defendant seemed to be a peace maker. She said if a fight broke out at the

gym, defendant would try to help her calm it down. Papachristos found defendant’s behavior to

be different than typical gang members in the program. She said that other gang members were

“really aggressive” and “tried to, you know, conduct gang business in front of [her].” Defendant,

in contrast, never behaved that way. She discussed defendant’s desire to leave the gang with

him, but he was afraid for his family. Papachristos said that was a reasonable fear. She also


                                               31
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stated that defendant leaving to go to Florida for a few months and his participation in Lincoln’s

Challenge was not sufficient to leave the gang. She testified that defendant was not successful in

leaving the gang because he was not “strong enough.”

       Papachristos also saw defendant outside of the gym program. He befriended one of her

foster sons and he spent time at her house. She said defendant always made it a point to clean up

after himself and to help in whatever way he could.

       Papachristos has visited defendant in prison and said that he has matured. He left the

Latin Kings while in prison. She believed he could be rehabilitated. Papachristos admitted that

she had not discussed the specifics of the offense with defendant, but reiterated that she thinks he

can be rehabilitated.

       Dr. Ruben Gur testified that he is a neuropsychologist. He offered expert testimony about

how brain development impacts behavior. Dr. Gur discusses how parts of the brain develop at

different rates. According to Dr. Gur, the frontal lobe is responsible for integrating “all the

information in relation to the context.” When other parts of the brain react to an outside event,

the frontal lobe will put that initial reaction into the context of the situation. A process called

myelination occurs to enhance brain function by increasing the speed in which impulses travel

throughout the brain. Dr. Gur said that babies have no myelin in their brains and as a result the

signals for reaction dissipate and babies cannot control their responses. Myelination occurs

throughout all parts of the brain with the frontal lobe developing last.

       Dr. Gur testified about several studies that have been conducted to study myelination in

the brain. In the studies, it was shown that myelination is not completed in the frontal lobe until


                                                  32
1-06-0768

the “third decade of life,” or around age 22. Dr. Gur stated that in adolescents the result is that

they will act on impulse, but after their actions, they will be able to understand what was wrong

about their actions. The frontal lobe is not able to put the impulsive actions into context fast

enough.

          Dr. Gur admitted that he never studied defendant’s brain. He said that these findings

about brain development are generally accepted in his field with “very little disagreement, if

any.” Dr. Gur said that with adolescents, they have a hard time changing their course of action

because they are not able to understand the full context and the frontal lobe is not fully able to

provide that context. Dr. Gur stated that he gave a presentation on adolescent brain development

before the American Bar Association in Washington, D.C., and his opinion at trial was the same

as it was in the presentation.

          Additionally, defendant offered affidavits from nine other family members and friends.

These affidavits also described defendant as a respectful and polite teenager and not a typical

gang member. Defendant tried to keep his younger brother and other friends from joining a gang.

These family members and friends also stated that defendant wanted to leave the gang, but was

afraid.

          Finally, defendant gave the following statement of allocution.

                         “My reason for standing here today, You Honor, because I

                 want to take this opportunity which I think, I wish I had said a long

                 time ago. But honestly didn’t have the courage to. To Mrs.

                 Soberon, I told you how sorry I am for causing you and your family


                                                  33
1-06-0768

               so much pain through the years. I don’t want you to think the one

               reason I’m standing here pretending how I understand what it feels

               like to lose a child because I don’t. I wish I had sorry words to say

               to you. But I want you to know, I didn’t mean for this to happen.

               And I know that by me telling you how sorry I am isn’t enough to

               make you — not bring your son back to you. But I do hope from

               my words somehow play a part in helping you find a piece [sic.]

               within that you can lead because I am sorry. I’m so sorry for the

               trauma I gave you. I really am. I really am.

                      I’d like to apologize to my family and friends, especially

               my daughter.

                      I’m sorry, Your Honor, to Mrs. Soberon, I am so sorry. I

               wanted to tell you I’m sorry. Thank you.”

       The State did not present any live testimony at the sentencing hearing. The State offered

a victim impact statement from Soberon’s mother and the presentence investigation. According

to the presentence investigation, defendant’s only prior conviction was for disorderly conduct and

he was fined $71.

       In making its ruling, the trial court discussed defendant’s decision to join a gang and his

decision to participate in the shooting death of Soberon. The court noted that defendant had

supportive family and friends, and yet he still chose to be in a gang. The court recognized that

the mitigating evidence indicated that defendant wanted to leave, but feared repercussions.


                                                34
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However, the court considered it and found defendant did walk away from the gang and nothing

happened to him. The court stated that “[t]here was no hard evidence that he was in fear for his

life.” The court found that defendant did well in the structured environment of Lincoln’s

Challenge, but once outside of that environment he went back to the gang and committed murder.

The court concluded that defendant was someone who needed to be in a structured environment

for a long time.

       As for Dr. Gur’s testimony, the trial court found it to be “very fascinating,” but it had

“very little value here” because the study had nothing to do with defendant. The court noted that

the testimony of defendant’s friends and family was that he was a mature and respectful person,

which “really destroys any far fetched argument that he had a frontal lobe that wasn’t

developed.” The court also found that Papchristos’ “testimony wasn’t very helpful in any way”

other than the fact that defendant had a relationship with her and followed her rules. After

discussing its thoughts on the evidence, the trial court sentenced defendant to a term of 44 years’

imprisonment.

       In People v. Brown, 243 Ill. App. 3d 170, 171 (1993), the defendant was charged with the

first-degree murder in the shooting death of Stephen Anderson. One of the defendant’s

codefendants, Eric Langham, sold a car to the victim’s brother, Jonathan Anderson, but they got

into a dispute after the sale. Langham asked Jonathan to meet him to discuss the problem. The

victim and two others came with Jonathan to meet Langham. Langham grabbed Jonathan by his

neck and put a gun against his head. Brown, 243 Ill. App. 3d at 171-72. The victim began to

approach when “gunfire erupted from several different places.” Brown, 243 Ill. App. 3d at 172.


                                                35
1-06-0768

Multiple witnesses identified the defendant as one of the individuals seen firing a gun at the

scene. Brown, 243 Ill. App. 3d at 172. The defendant was sentenced to a 45-year term of

imprisonment. Brown, 243 Ill. App. 3d at 173. On appeal, the reviewing court reduced the 45-

year sentence to 20 years because the defendant was 20 years old at the time of the offense and

lacked any prior criminal history. The court found that for these reasons the defendant’s

“rehabilitative potential was not adequately considered.” Brown, 243 Ill. App. 3d at 176.

       Similarly, in People v. Maldonado, 240 Ill. App. 3d 470, 473 (1992), the defendant was

charged with the first-degree murder of Elizabeth Cooley. Cooley was a passenger in a car with

four others. As they were driving, the car encountered Efrain Nunez, who was standing in the

street. Nunez hit the roof of the car with his hand. The driver and two passengers got out of the

car. Maldonado, 240 Ill. App. 3d at 473. One of the passengers testified that Nunez yelled

something about the Latin Kings and then two individuals came out and joined Nunez.

Maldonado, 240 Ill. App. 3d at 473. Then, another car arrived at the scene and the occupants

joined the altercation on Nunez’s side. The defendant was identified as one of the occupants of

the car. Maldonado, 240 Ill. App. 3d at 474. The defendant pulled out a gun and confronted one

of the passengers of the car. The driver got back in the car and started to drive. Three to seven

gunshots were heard by various witnesses. According to witness testimony, the defendant was

the only person with a gun. Maldonado, 240 Ill. App. 3d at 474. The two passengers got back

into the car at stoplight and they noticed Cooley was bleeding. They took her to a hospital,

where she later died. Maldonado, 240 Ill. App. 3d at 474. The defendant was sentenced to the

maximum term of 40 years. Maldonado, 240 Ill. App. 3d at 474.


                                                36
1-06-0768

       The defendant argued on appeal that the trial court abused its discretion in sentencing him

to the statutory maximum. Maldonado, 240 Ill. App. 3d at 484. The defendant was 20 years old

at the time of the offense, the father of two small children, engaged to the children's mother, had

completed three years of high school, and had no prior felony convictions. Maldonado, 240 Ill.

App. 3d at 484. The Maldonado court stated that “[a] sentence imposed for the offense of

murder is as amenable to the scope of an appellate court's power of reduction as any other

offense” and then referenced several prior decisions in which a defendant’s sentence for murder

was reduced on appeal. Maldonado, 240 Ill. App. 3d at 485, citing People v. Crews, 42 Ill. 2d

60, 66 (1969) (after noting that society is outraged by the murder of a child, the Illinois Supreme

Court reversed the death penalty sentence and imposed a 20- to 35-year term of imprisonment on

the defendant); People v. Wilkins, 36 Ill. App. 3d 761, 767 (1976) (the court reduced the penalty

imposed by the trial court where the defendant was 17 years old, had no prior criminal record,

was attending high school, and had the possibility of rehabilitation); People v. Mitchell, 12 Ill.

App. 3d 960, 968 (1973) (after acknowledging that the defendant's “shooting the gun into the

crowd of people cannot be condoned,” the court reduced the defendant's sentence where he was

20 years old at the time of the offense and had a minimal prior criminal record); People v.

Adams, 8 Ill. App. 3d 8, 13-14 (1972) (the sentence of an 18-year-old defendant who had three

prior misdemeanor convictions was reduced after the court expressly “recognize[d] the heinous

nature of the crime committed”). The reviewing court then reduced the defendant’s sentence

from 40 years to 20 years after concluding that “the circumstances revealed in this record do not

justify the imposition of the maximum sentence allowed by statute.” Maldonado, 240 Ill. App.


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3d at 486.

       Here, defendant was 18 years old at the time of the offense, had received a GED, and had

no prior felony convictions. Defendant presented extensive evidence in both live testimony and

affidavits from family members, friends, and experts discussing his rehabilitative potential.

Defendant was described as a respectful and polite young man who made a bad decision in

joining a gang. Several people disclosed defendant’s desire to leave the gang, but his fear of

retribution from the gang against himself and his family kept him from leaving. Defendant

offered the expert testimony of Papachristos to illustrate both defendant’s atypical behavior for a

gang member and the structure and circumstances of Chicago gangs. Dr. Gur testified about

generally accepted studies involving the brain development in adolescents. Defendant also

offered his own apologies to Soberon’s family. The trial court dismissed the testimony of Dr.

Gur and found that Papachristos did not offer anything helpful.

       While we acknowledge that the 44-year sentence imposed was within the sentencing

ranged allowed and we acknowledge the trial court’s assessment that “[t]his was a cold-blooded

attack on innocent individuals riding in a car by self-admitted gang members who laid in the

weeds waiting for their prey to attack them,” we find that the trial court did not fully consider the

mitigating evidence presented at defendant’s sentencing hearing, particularly in light of

defendant’s age and lack of any significant criminal background at the time of the murder.

Accordingly, under the authority of Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we

reduce defendant's sentence for murder from 44 years to 36 years.

       For the foregoing reasons, the dismissal of counts I, II, and IV of defendant’s


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postconviction petition is affirmed and defendant’s sentence is reduced to 36 years.

       Affirmed as modified.

       GARCIA and R. GORDON, JJ., concur.




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