Docket No. 103777.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
MIGUEL DELEON, Appellant.
Opinion filed January 25, 2008.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
Following a bench trial, defendant, Miguel Deleon, was convicted
of first degree murder (720 ILCS 5/9–1(a)(1) (West 1996)) and
attempted first degree murder (720 ILCS 5/8–4, 9–1(a)(1) (West
1996)). The trial court sentenced him to a mandatory life term for the
first degree murder and a consecutive 30-year term for the attempted
first degree murder. Defendant appealed, and the appellate court
affirmed both the convictions and the sentences. People v. Deleon,
No. 1–99–0028 (2000) (unpublished order under Supreme Court Rule
23). Later, defendant filed a postconviction petition arguing that the
mandatory life term must be vacated because the statute authorizing
it was invalidated in People v. Wooters, 188 Ill. 2d 500 (1999). The
trial court summarily dismissed the petition. Defendant appealed, and
the appellate court vacated defendant’s life sentence and remanded for
a new sentencing hearing. People v. Deleon, No. 1–01–2469 (2003)
(unpublished order under Supreme Court Rule 23). At the
resentencing hearing, the trial court imposed a 100-year extended-
term sentence for the first degree murder and again imposed a
consecutive 30-year sentence for the attempted first degree murder.
Defendant appealed, and the appellate court affirmed the sentences.
No. 1–04–2934 (unpublished order under Supreme Court Rule 23).
We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.
315(a).
BACKGROUND
Defendant was a member of the Imperial Gangsters, a rival gang
of the Latin Kings. On the afternoon of April 4, 1997, defendant met
with some of his fellow gang members in “the Jungle,” a
neighborhood located near the intersection of Mannheim Road and
Crown Road in Franklin Park. Defendant was providing “security” for
the Imperial Gangsters that day, which means he carried a gun in the
event of an altercation with the Latin Kings. At some point, defendant
and his cohorts noticed a red Ford Mustang driving westward on
Crown Road. Because the car bore a Stone Park registration sticker
and contained a “crown air freshener,” the Imperial Gangsters
surmised that it belonged to a Latin King. When someone yelled
“flakes,” a term meaning “rival gang member,” defendant and another
Imperial Gangster ran through an apartment complex to intercept the
Mustang on Schiller Street. When the Mustang appeared on Schiller
Street, defendant and one of his fellow gang members stepped into the
street and stopped the car. An altercation ensued, and, from a distance
of three feet, defendant fired two shots through the driver’s side
windshield. One of those shots hit the driver, Jose Sanchez, in the
chest. Sanchez sped away toward Mannheim Road, passing an ice
cream truck surrounded by children. Defendant continued firing at
Sanchez, and seven-year-old Juana Nieto, who was standing beside
the ice cream truck, was shot and killed. A three-year-old boy and the
ice cream truck driver also sustained injuries.
At trial, Sanchez testified that, after hearing the initial gunshots,
he felt a “burning in [his] chest.” As he sped toward Mannheim Road,
Sanchez noticed an ice cream truck that was parked on Schiller Street
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and surrounded by children. When he reached Mannheim Road,
Sanchez drove to a gas station located at the corner of Mannheim
Road and Grand Avenue, a distance of approximately 1,500 feet from
the scene of the shooting.1 At the gas station, Sanchez continued to
feel the burning in his chest and “felt something running in the back.”
As he exited the Mustang, Sanchez recovered the bullet “from [his]
back.” When asked directly whether the bullet “went through” his
body, Sanchez answered “yes.” Similarly, Sanchez answered “yes”
when asked whether the bullet “exited” his body and when asked
whether the bullet “[came] out of” his back. After recovering the
bullet, Sanchez went inside the gas station and asked for help. When
the police arrived, Sanchez handed the bullet to an officer. Sanchez
was then taken by ambulance to Loyola University Hospital.
Photographs taken at the hospital depict a bullet wound in the left
center of Sanchez’s chest.
The trial court found defendant guilty of the first degree murder
of Juana Nieto and the attempted first degree murder of Jose Sanchez.
At the same time, the trial court acquitted defendant of the attempted
first degree murders of the three-year-old boy and the ice cream truck
driver, both of whom sustained wounds during the shooting.
Following a sentencing hearing, the trial court imposed a mandatory
life term for the first degree murder conviction, based on the fact that
defendant was 17 years old at the time of the offense and the victim
was under the age of 12. See 730 ILCS 5/5–8–1(a)(1)(c)(ii) (West
1996). For the attempted first degree murder conviction, the trial
court imposed a consecutive sentence of 30 years in prison. See 730
ILCS 5/5–8–4(a) (West 1996). In the course of imposing these
sentences, the trial court specifically found that Sanchez “was struck
through the chest” and that “the bullet went through his chest and in
fact exited his back.” The court also noted that, as a result of
defendant’s conduct, “the individual who was driving the ice cream
truck was struck and injured” and “another child on the street was
struck in the neck and injured.”
1
Although this distance is not a part of the record on appeal, this court
may take judicial notice of the distances between two locations. See Dawdy
v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177-78 (2003).
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Defendant appealed, and the appellate court affirmed both the
convictions and the sentences. Deleon, No. 1–99–0028 (unpublished
order under Supreme Court Rule 23). Later, defendant filed a
postconviction petition arguing that his mandatory life term must be
vacated because Public Act 89–203, which enacted the relevant
mandatory sentencing provision, was invalidated in People v. Wooters,
188 Ill. 2d 500 (1999). The trial court summarily dismissed the
petition, and defendant appealed. Citing Wooters, the appellate court
vacated defendant’s life sentence and remanded for resentencing under
the law that was in effect prior to the enactment of Public Act 89–203.
Deleon, No. 1–01–2469 (unpublished order under Supreme Court
Rule 23).
Following the remand, defendant was appointed new counsel. In
hopes of ascertaining new mitigation evidence, defense counsel
subpoenaed defendant’s records from the Illinois Department of
Corrections (hereinafter, Corrections). Because such records “shall be
confidential” (730 ILCS 5/3–5–1(b) (West 1996)), the trial court
examined defendant’s Corrections file in camera. Following the
examination, the trial court offered the following summary in open
court:
“The positive part of the documents is one page which
would show that Mr. Deleon passed his G.E.D. test. The other
documents I think, unfortunately, well, I won’t go any further.
That’s the only document”
The trial court then offered to make that single page available to
defense counsel, and defense counsel responded, “That would be
sufficient, Judge.”
Defendant’s resentencing hearing was held several weeks later. At
the start, defense counsel acknowledged that he had received a copy
of defendant’s new presentencing investigation (PSI) report and that
he had reviewed that report with defendant. Among other things, the
PSI report noted that defendant had obtained his G.E.D. while
incarcerated, had been working steadily since arriving in prison and
even received a promotion, and was housed in the “very low
aggressive cell house.” The report also included a long statement of
remorse from defendant, in which he explained that he was “young at
the time,” that he “never intended to hurt her,” and that he “wish[ed]
he could take it all back.” Defendant also stated that Juana Nieto’s
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murder “haunts me every day” and “is something I have to live with
for the rest of my life.” Elsewhere in the PSI report, defendant asks
the court to understand that he “didn’t do it,” that he’s “still young,”
and that all he wants is the “chance to be young and free and with my
family.”
In aggravation, the State recounted the facts of the case. At one
point, the trial court interjected that it recalled the case well and
offered the following summary of the relevant facts:
“As I remember it, we had a [gang member] who was over
in Franklin Park who saw an individual who is driving through
what is called *** the jungle of Franklin Park. And he chased
the car, shot the individual. That individual received a shot in
the chest. And he drove to an emergency facility where the
bullet fell out of his back and he survived. But during that
same shooting, there were some children over by an ice cream
truck. And it was the shooting as he ran around the car [that]
affected the children there, killing the twelve year old,
wounding the three year old, and, in fact, I believe, striking the
driver of the ice cream truck.”
The State then asked the trial court once again to impose a
consecutive 30-year sentence for the attempted murder conviction. In
so doing, the State reminded the trial court of its previous finding that
the gunshot wound to Sanchez’s chest was a severe bodily injury. For
the first degree murder conviction, the State requested an extended-
term sentence of 100 years, based upon the victim’s age. See 730
ILCS 5/5–5–3.2(b)(4)(i), 5–8–2(a)(1) (West 1996).
In response, defense counsel focused primarily on the United
States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defense counsel
argued strenuously that Apprendi precluded the imposition of an
extended-term sentence for defendant’s first degree murder conviction
because the relevant statutory aggravating factor–that Juana Nieto
was under the age of 12 at the time of the offense–was neither pled in
the indictment nor proven beyond a reasonable doubt. In addition,
defense counsel asked the court to consider the information contained
in the PSI report, including “defendant’s statement in that report of
some remorse.”
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Before imposing sentence, the trial court stated that it had
reviewed “the transcripts and the facts of the case,” as well as the PSI
report. The trial court then imposed an extended-term sentence of 100
years in prison for the first degree murder conviction and a
consecutive sentence of 30 years in prison for the attempted first
degree murder conviction. Three weeks later, defense counsel filed a
motion to reconsider the sentence in which he reiterated his Apprendi
argument. Specifically, defense counsel argued that “the Court did
not, at the time of trial, specifically find that the age of the victim was
proven beyond a reasonable doubt.” Defense counsel also
acknowledged, however, that he was “working without the benefit of
a transcript of the Court’s original finding.” The trial court denied the
motion to reconsider sentence, and defendant appealed.
On appeal, defendant argued, inter alia, that (1) his new defense
counsel was ineffective because he neither obtained nor reviewed the
trial transcripts prior to the resentencing hearing; (2) the trial court
erred by not allowing defense counsel to examine the nonconfidential
portions of defendant’s Corrections records; and (3) the evidence did
not support the trial court’s finding that, for consecutive sentencing
purposes, Sanchez’s gunshot wound was a “severe bodily injury.” The
appellate court rejected each of these arguments and affirmed
defendant’s sentences. No. 1–04–2934 (unpublished under Supreme
Court Rule 23).
In addition to his brief, defendant filed a motion asking the
appellate court to conduct an independent review of defendant’s
Corrections file “to ascertain the correctness of the trial court’s ruling
regarding the existence of mitigation evidence.” At the conclusion of
that motion, defendant informed the court that, “[b]ecause the
[Corrections] file is in the hands of [Corrections], defendant cannot
obtain the record himself and have it certified as a supplemental
record.” Although the State advised the appellate court that it had no
objection to defendant’s request, the appellate court entered an order
denying defendant’s motion without comment.
We allowed defendant’s petition for leave to appeal. 210 Ill. 2d R.
315(a).
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DISCUSSION
Severe Bodily Injury
Defendant’s first argument is that the trial court erred in imposing
a consecutive sentence for the attempted first degree murder
conviction. The governing statute on this point is section 5–8–4(a) of
the Unified Code of Corrections, which at the relevant time stated:
“The court shall not impose consecutive sentences for offenses
which were committed as part of a single course of conduct
during which there was no substantial change in the nature of
the criminal objective, unless, one of the offenses for which
defendant was convicted was a Class X or Class 1 felony and
the defendant inflicted severe bodily injury *** in which
event the court shall enter sentences to run consecutively.”
(Emphasis added.) 730 ILCS 5/5–8–4(a) (West 1996).
According to defendant, the imposition of consecutive sentences in
this case is unwarranted because, although attempted first degree
murder is undeniably a Class X felony, the record does not support the
trial court’s finding that defendant inflicted “severe bodily injury”
upon Jose Sanchez.
As a preliminary matter, we must determine the appropriate
standard of review for a trial court’s determination that, for
consecutive sentencing purposes, a bodily injury is “severe.”
Defendant argues that such review requires interpreting the statutory
phrase “severe bodily injury” and that a de novo standard is therefore
warranted.2 The State responds that whether a particular injury is
“severe” is a question of fact and that a manifest weight standard is
therefore warranted. We agree with the State. In People v. Crespo,
203 Ill. 2d 335, 344 (2001), this court held that what constitutes
“great bodily harm” under the aggravated battery statute (see 720
ILCS 5/12–4(a) (West 2006)) is a question properly left to the fact
2
In his opening brief, defendant maintains that a de novo standard is
likewise warranted because “this case involves application of section
5–8–4(a) to undisputed facts in the record.” In his reply brief, however,
defendant concedes that one of the principal facts relevant to this
issue–whether the bullet fired into Sanchez’s chest exited through Sanchez’s
back–is in dispute.
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finder. We see no reason to treat the question of what constitutes
“severe bodily injury” any differently. If the fact finder can be trusted
to sort out which bodily harms are “great,” it can certainly be trusted
to sort out which bodily injuries are “severe.” Accordingly, we hold
that a trial court’s determination that a bodily injury is “severe” for
purposes of consecutive sentencing may be reversed only if it is
against the manifest weight of the evidence.
A finding is against the manifest weight of the evidence only if the
opposite conclusion is clearly evident or if the finding itself is
unreasonable, arbitrary, or not based on the evidence presented. In re
D.F., 201 Ill. 2d 476, 498 (2002). Under the manifest weight
standard, we give deference to the trial court as the finder of fact
because it is in the best position to observe the conduct and demeanor
of the parties and witnesses. D.F., 201 Ill. 2d at 498-99. A reviewing
court will not substitute its judgment for that of the trial court
regarding the credibility of witnesses, the weight to be given to the
evidence, or the inferences to be drawn. D.F., 201 Ill. 2d at 499.
Here, the evidence is more than sufficient to support the trial
court’s finding that Sanchez sustained a “severe bodily injury.” One
of defendant’s fellow gang members testified that defendant shot
Sanchez in the chest from a distance of approximately three feet. The
photographs introduced by the State reveal a bullet wound to the left
center of Sanchez’s chest. Sanchez testified that, after being shot, he
felt a “burning in [his] chest.” And while the photographs do not
depict an exit wound, the State asked Sanchez three different times,
and in three different ways, whether the bullet passed through his body
and exited through his back. Each time, he responded “yes.” Given
this evidence, the trial court was entirely justified in concluding that
Sanchez “was struck through the chest,” that “the bullet went through
his chest and in fact exited his back,” and that such an injury is
sufficiently “severe” to justify a consecutive sentence.
In opposition to this result, defendant makes two arguments. First,
defendant points to the following exchange between the prosecutor
and Sanchez:
“Q. Where did the bullet go through your body? At what
point did it come out?
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A. It came out–it didn’t go all the way through because I
had a sweater. When I got out on the street, it started running
down. I got it in my hand when I got out of the car.”
According to defendant, Sanchez’s statement that “it didn’t go all the
way through because I had a sweater” confirms that the bullet did not
pass through Sanchez’s body but instead only “graz[ed] his chest.”
Consequently, defendant argues, the trial court’s findings that Sanchez
“was struck through the chest” and that “the bullet went through his
chest and in fact exited his back” are not supported by the evidence.
Defendant reads too much into this isolated, and at best
ambiguous, piece of testimony. According to defendant, when
Sanchez stated that “it didn’t go all the way through because I had a
sweater,” Sanchez must have meant that the bullet did not go all the
way through his body. But it is also possible that Sanchez meant that
the bullet did not pass through his sweater. Indeed, Sanchez was
asked not only where the bullet had passed through his body, but also
where the bullet had “come out.” Sanchez’s response begins with the
statement “It came out.” Only then does Sanchez add that “it didn’t
go all the way through because I had a sweater.” It is certainly
reasonable to read this answer as saying “it came out of my body but
was caught by my sweater,” which, after all, comports with Sanchez’s
three unequivocal affirmations that the bullet did in fact pass through
his body and exit his back. At the very least, we cannot say that the
foregoing exchange renders the trial court’s understanding of
Sanchez’s testimony “unreasonable, arbitrary, or not based on the
evidence presented.”
Second, defendant argues that Sanchez’s behavior after being shot
confirms that he did not sustain a “severe bodily injury.” Specifically,
defendant points out that, despite his gunshot wound, Sanchez was
able to drive away from the scene, notice an ice cream truck
surrounded by children, get himself to a nearby gas station, collect the
bullet from his sweater, enter the gas station and ask for help, and wait
for the police to arrive. Moreover, defendant notes that, although
Sanchez was taken to the hospital for the treatment of his gunshot
wound, the State presented no evidence concerning the length of his
hospital stay, the nature of his treatment, or the intensity of his pain.
According to defendant, these facts confirm that Sanchez’s injury was
“not the type of debilitating or extreme injury contemplated by the
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legislature that warrants the mandatory imposition of consecutive
sentences.”
We disagree. We have already concluded that the evidence
adequately supports the trial court’s findings that Sanchez “was struck
through the chest” and that “the bullet went through his chest and in
fact exited his back.” Irrespective of the victim’s postshooting
behavior, we would have no difficulty affirming that a wound of that
nature constitutes “severe bodily injury.” That said, defendant’s
argument on this point is severely undermined by this court’s decision
in People v. Johnson, 149 Ill. 2d 118 (1992), which the State cites and
defendant does not address. In Johnson, this court found that “severe
bodily injury” was sufficiently proven where, after being shot once in
the shoulder, the victim walked out of the apartment where the
shooting occurred, flagged down a passing motorist, told the driver
there had been a robbery and a shooting, and had the motorist drive
him to a hospital. See Johnson, 149 Ill. 2d at 128-29, 159. Sanchez’s
postshooting behavior is not materially different from the Johnson
victim’s, and there is no reason to believe that Sanchez’s gunshot
wound was any less “severe” than the Johnson victim’s gunshot
wound. Accordingly, we reject any suggestion that Sanchez’s
postshooting conduct renders benign his through-and-through gunshot
wound to the chest.
Ineffective Assistance
Defendant next argues that defense counsel provided ineffective
assistance at the resentencing hearing. This argument takes two basic
forms, and we will address each in turn.
Failure to Read the Record and Transcripts
Defendant first argues that his resentencing counsel was per se
ineffective because the record establishes that counsel, who did not
represent defendant at the original trial and sentencing hearing, never
read the original trial and sentencing transcripts. In support of this
argument, defendant points to the following statement, which
appeared in the motion to reconsider sentence that counsel filed on
defendant’s behalf:
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“Counsel for defendant maintains, that the Court did not, at
the time of trial, specifically find that the age of the victim was
proven beyond a reasonable doubt, while acknowledging that
counsel is working without the benefit of a transcript of the
Court’s original finding.” (Emphasis added.)
According to defendant, this statement makes it “apparent that
[counsel] never read Deleon’s trial transcripts in preparation for the
[resentencing] hearing.” Moreover, given the gravity of such an
omission, defendant insists that he “should not be required to prove
the prejudicial effect of this error.”
The State responds that defendant’s argument rests on a faulty
factual premise. According to the State, the above statement in no
way proves that counsel “never read Deleon’s trial transcripts in
preparation for the [resentencing] hearing.” On the contrary, the
above statement appeared in counsel’s motion for reconsideration of
sentence, which was filed three weeks after both the resentencing
hearing and the imposition of sentence. Thus, the State maintains, the
most it proves is that counsel prepared that motion without the benefit
of a trial transcript. The State also notes that the original trial and
sentencing transcripts were available to counsel prior to the
resentencing hearing, and there are other comments from counsel that
suggest a working familiarity with the trial record.
We agree with the State. The record simply does not support
defendant’s claim. In relation to one of the factual assertions
contained in the motion to reconsider sentence, counsel conceded that
he was “working without the benefit of a transcript.” From this
concession, defendant asks this court to infer that counsel had been
“working without the benefit of a transcript” all along, even prior to
the resentencing hearing itself. Like the appellate court, we are
unwilling to draw such an inference, as it dramatically exceeds the
scope of counsel’s concession. All that reasonably can be inferred
from counsel’s concession is that he was “working without the benefit
of a transcript” at the time he prepared the motion to reconsider
sentence. The concession appears exclusively in that motion, and
nothing about it implicates counsel’s performance at or before the
resentencing hearing itself. Of course, this is no way proves that
counsel actually read the original trial and sentencing transcripts prior
to the resentencing hearing. On the record before us, as with most
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appellate records, we have no way of knowing one way or the other.
But that is sufficient to defeat defendant’s claim, as “[a] defendant
cannot rely on speculation or conjecture to justify his claim of
incompetent representation.” People v. Pecoraro, 175 Ill. 2d 294, 324
(1997).
Other Ineffectiveness Claims
Defendant’s second ineffectiveness claim is different but related.
Essentially, defendant argues that counsel’s failure to review the
original trial and sentencing transcripts caused counsel to commit a
series of prejudicial errors at the resentencing hearing. As we will
discuss more fully below, these alleged “errors” were not in fact
errors. Before getting to that, however, we wish to reiterate that the
record in no way supports defendant’s repeated assertion that counsel
failed to review the original trial record. Consequently, to the extent
that defendant attributes counsel’s alleged failings to a lack of
familiarity with the record, we reject his argument out of hand.
In determining whether a defendant was denied the effective
assistance of counsel, we apply the familiar two-prong test set forth
in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052 (1984), and adopted by this court in People v. Albanese, 104
Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of
counsel, a defendant must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the defendant.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064
(1984). More specifically, the defendant must demonstrate that
counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,
104 S. Ct. at 2068. The failure to satisfy either prong of the Strickland
test precludes a finding of ineffective assistance of counsel. Strickland,
466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Defendant’s first claim is that counsel failed to correct the trial
court’s mistaken belief that an extended-term sentence was mandatory
in this case. In support of this claim, defendant points to the trial
court’s statement at the resentencing hearing that defendant was
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“entitled to” an extended-term sentence. According to defendant, the
use of the phrase “entitled to” suggests that the trial court “was not
aware that the imposition of an extended term was discretionary.” In
fact, the phrase “entitled to” suggests no such thing. As defined by
Webster’s, “entitle” means “to qualify (one) for something.”
Webster’s Third New International Dictionary 758 (1993). Similarly,
Black’s defines “entitle” as “to *** qualify for.” Black’s Law
Dictionary 573 (8th ed. 2004). Clearly, defendant was “qualified for”
an extended-term sentence, as he stood convicted of murdering a
seven-year-old girl. The trial court’s statement merely reflects this
obvious reality, and counsel therefore was under no obligation to say
otherwise.
Defendant’s second claim is that counsel was ineffective for failing
to argue defendant’s youth, remorse, and good prison behavior as
mitigating factors. Again, this claim is contradicted by the record. The
record shows that counsel specifically argued defendant’s remorse as
a mitigating factor, and defendant personally expressed his remorse to
the trial court just prior to sentencing. As for defendant’s age and
positive prison record, all of that was set forth in the PSI report,
which the trial court read and which counsel specifically asked the trial
court to take into account when arguing against an extended-term
sentence.3
Defendant’s third claim is that counsel was ineffective for failing
to argue that Jose Sanchez did not suffer a severe bodily injury and
that consecutive sentences were therefore impermissible. On this
point, there is an obvious lack of prejudice, as we have already
determined that the evidence more than supports the trial court’s
severe bodily injury finding. Moreover, counsel reasonably could have
concluded that any such argument was futile. The trial court
determined at the original sentencing hearing that Jose Sanchez
sustained a severe bodily injury, and the only reason for the remand
was that defendant’s other sentence was invalid. Under these
circumstances, counsel had little reason to expect that the trial court
3
Admittedly, counsel’s sentencing presentation focused far more on
Apprendi than it did on the mitigating evidence described above. But that is
not defendant’s argument. Defendant’s argument is that counsel “failed to
make any arguments in mitigation,” and that simply is not the case.
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would reverse itself, and his decision not to contest the severe bodily
injury finding therefore was reasonable.
Defendant’s final claim is that counsel was ineffective for failing
to correct the trial court’s “implication” that defendant was “adjudged
responsible for” shooting and wounding the three-year-old boy and
the ice cream truck driver. In support, defendant points to the trial
court’s observation at the resentencing hearing that, after shooting
Sanchez in the chest, defendant continued firing, “killing the twelve
year old [sic], wounding the three-year-old, and, in fact, I believe,
striking the driver of the ice cream truck.” According to defendant,
counsel should have reminded the trial court that defendant was
actually acquitted of the attempted murder charges that arose from
those two shootings, thereby ensuring that the trial court “did not
consider these findings in resentencing Deleon.”
Defendant’s argument is without merit. It is well established that
“evidence of criminal conduct can be considered at sentencing even if
the defendant previously had been acquitted of that conduct.” People
v. Jackson, 149 Ill. 2d 540, 549-50 (1992). Here, there is no dispute
that the trial court acquitted defendant of the attempted murder
charges arising from the shooting and wounding of the three-year-old
boy and the ice cream truck driver. Nevertheless, it is equally clear
that the trial court remained convinced that defendant did in fact shoot
and wound both the boy and the driver. At defendant’s original
sentencing hearing, which was held just 30 days after the trial court
acquitted defendant of the two attempted murder counts, the trial
court specifically found that, as a result of defendant’s conduct, “the
individual who was driving the ice cream truck was struck and
injured” and “another child on the street was struck in the neck and
injured.” The trial court then repeated these findings at the
resentencing hearing. Under Jackson, these findings were perfectly
proper, and the trial court was fully entitled to take them into account
when fashioning defendant’s sentences. Counsel had nothing to
correct and no basis to object.
Defendant’s Corrections File
Defendant’s final argument is that the appellate court erred in
refusing to conduct an independent review of defendant’s Corrections
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file and “ascertain the correctness of the trial court’s ruling regarding
the existence of mitigation evidence.” According to defendant, that
refusal “effectively denied Deleon review of the trial court’s ruling,
thereby infringing his *** constitutional right to appeal.” By way of
remedy, defendant asks this court to conduct its own review of
defendant’s Corrections records and to remand the cause for a new
sentencing hearing if the file contains additional potentially mitigating
evidence.
There is a fatal problem with defendant’s argument, and it relates
to the concession that defendant made in his appellate court motion:
defendant’s Corrections file is not part of the record on appeal.
Rather, the file was returned to the Department of Corrections after
the resentencing hearing, and with Corrections it remains. Though the
appellate court did not give a reason for denying defendant’s motion,
this is almost certainly it. The relevant records were not part of the
record, and the appellate court therefore had nothing to review, even
if it were so inclined.
In this court, the State directs our attention to Supreme Court
Rules 415(e) and 415(f) (134 Ill. 2d Rs. 415(e), (f)). In relevant part,
Rule 415(e) states that “[m]aterial excised pursuant to judicial order
shall be sealed, impounded and preserved in the records of the court,
to be made available to the reviewing court in the event of an
appeal.”134 Ill. 2d R. 415(e). Similarly, Rule 415(f) states that, “[i]f
the court enters an order granting relief following a showing in
camera, the entire record of such showing shall be sealed, impounded,
and preserved in the records of the court, to be made available to the
reviewing court in the event of an appeal.” 134 Ill. 2d R. 415(f). The
State argues that, having failed to ensure that the undisclosed portion
of his Corrections file was “sealed, impounded, and preserved in the
records of the court,” defendant has waived any right to review of the
trial court’s reading of that file. Defendant responds that “nothing in
the language of these rules puts the burden on the defendant to assure
compliance with this procedure.” Rather, “[a]s only the trial court had
access to the documents, it was its burden to comply with Supreme
Court Rule 415.”
Defendant’s argument is precluded by this court’s decision in
People v. Coates, 109 Ill. 2d 431 (1985). In that case, the defendant
sought to subpoena certain records from the Department of Children
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and Family Services for purposes of impeachment. Because such
records ordinarily are kept confidential, the trial court conducted an
in camera inspection of the records. As in this case, neither the State
nor defense counsel was present for the inspection. Following the
inspection, the trial court allowed the defendant to use only certain
portions of the Department’s records, keeping the remainder under
seal. On appeal, the defendant argued, inter alia, that the trial court
erred in failing to comply with Rule 415(f), “in that it made no record
of the proceedings in camera and failed to seal, impound and preserve
the records involved.” Coates, 109 Ill. 2d at 438. This court rejected
that argument, stating that “[t]he record fails to show that defendant
requested any such action, and under the circumstances, there is
nothing before us for review.” Coates, 109 Ill. 2d at 438. In other
words, and contrary to defendant’s argument, the burden “to assure
compliance with this procedure” does rest with the complaining party,
at least in the first instance. And absent a request for such compliance,
any deficiency in the record will be attributable that party.
The bottom line is that it is the appellant’s burden to present a
sufficiently complete record of the proceedings below to support a
claim of error and, in the absence of a complete record on appeal, it
will be presumed that the order entered by the circuit court was in
conformity with the law and had a sufficient factual basis. People v.
Fair, 193 Ill. 2d 256, 264 (2000). Here, defendant is asking this court
to review the accuracy of the trial court’s reading of defendant’s
Corrections file. However, that file is not part of the record, and
defendant never requested that it be made part of the record.
Consequently, as in Coates, “there is nothing before us for review.”
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed.
Affirmed.
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