People v. Mendoza

FIRST DIVISION
June 7, 2010

No. 1-08-3411

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 6555
)
JIMMIE MENDOZA, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The defendant Jimmie Mendoza appeals from the second-stage

dismissal of his amended petition for relief under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2008)). The defendant contends that a remand is in order because

postconviction counsel rendered "unreasonable, substandard, level

of assistance in attempting to shape petitioner's pro se claims

into an Amended Petition" and the circuit court erred in

dismissing his amended petition, which alleged ineffective

assistance of trial counsel, among other claims.

We reject the defendant's first contention that

postconviction counsel violated Supreme Court 651(c) because he

makes no showing that postconviction counsel contravened any of

the specific duties imposed by the rule. 134 Ill. 2d R. 651(c).
No. 1-08-3411

We affirm the circuit court's determination that the defendant's

claim of ineffective assistance of trial counsel is subject to

dismissal.

BACKGROUND

Following a jury trial, the defendant was convicted of

attempt (murder) and aggravated battery with a firearm in the

September 2000 shooting of Ruben Castruita. At trial, the

defendant was represented by private counsel, Robert Callahan.

During posttrial proceedings, the trial judge vacated the

aggravated battery conviction and sentenced the defendant to 25

years in prison on attempt, to be followed by an enhanced

sentence of 25 years for inflicting great bodily harm with a

firearm pursuant to section 8-4(c)(1)(D) of the Criminal Code of

1961 (720 ILCS 5/8-4(c)(1)(D) (West 2002)).

The evidence at trial established that following an

altercation between Castruita and the defendant's girlfriend in

the early evening on September 17, 2000, the defendant drove to

Castruita's house around 10 p.m. While exiting the vehicle, the

defendant fired a handgun at Castruita, striking him in the leg.

As the defendant approached Castruita, according to witnesses he

shouted, "Don't f--k with [my] family." Castruita threw a beer

bottle at the defendant. The defendant fired three more shots,

striking Castruita in the leg and torso.

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No. 1-08-3411

Castruita lost consciousness and awoke in Mount Sinai

Hospital, where he remained for two months. He lost a kidney,

his spleen, and a portion of his pancreas and was unable to walk

for approximately six months. In February 2001, Castruita viewed

a lineup at the police station and identified the defendant as

the shooter.

At trial, five eyewitnesses identified the defendant as the

shooter. The witnesses detailed the events of the evening. The

defense stipulated to the testimony of Dr. Zarat, Castruita's

treating physician at Mount Sinai Hospital, concerning the extent

of Castruita's injuries.

The defense presented only one witness, the defendant's

mother. She testified that on the evening of the altercation

Castruita was "very intoxicated," staggering and yelling loudly.

She claimed she could smell the drug PCP on his breath.

It was uncontested before the jury that the defendant fired

the shots that struck Castruita. The question for the jury was

whether the defendant shot Castruita with the specific intent to

kill. Defense counsel argued to the jury that the defendant only

shot at Castruita's legs. He argued: the defendant did not aim

at Castruita's torso when he fired the shot that caused the

extensive internal injuries, the shot to the torso was not

intentional, and the defendant did not have the specific intent

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No. 1-08-3411

to kill Castruita. The jury convicted the defendant of attempted

murder and aggravated battery. The defendant dismissed trial

counsel and retained attorney Thomas Moore for posttrial

proceedings.

On direct appeal, the defendant, represented by Moore and

Travis Richardson, raised numerous issues, only one of which we

found meritorious. The defendant asserted that his enhanced

sentence was improper because the enabling section had been

declared unconstitutional by the Illinois Supreme Court in People

v. Morgan, 203 Ill. 2d 470, 492, 786 N.E.2d 994 (2003) (overruled

two years later by People v. Sharpe, 216 Ill. 2d 481, 839 N.E.2d

492 (2005)). The State agreed. We affirmed the defendant's

conviction and modified the sentence accordingly. People v.

Mendoza, No. 1-03-0704 (2004) (unpublished order under Supreme

Court Rule 23). The supreme court denied the defendant leave to

appeal. People v. Mendoza, 212 Ill. 2d 546, 824 N.E.2d 289

(2004).

On May 25, 2005, the defendant filed a pro se petition for

postconviction relief. On October 17, 2007, the defendant's

retained counsel, Angela Lockett, filed an amended postconviction

petition. The amended petition alleged four claims: (1) the

defendant was denied his counsel of choice when, on the day his

case was set for trial, he informed the court he was unhappy with

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No. 1-08-3411

Callahan and wished to be represented by different counsel; (2)

he was denied his right to be present when the jury returned two

questions during deliberations; (3) actual innocence; and (4)

ineffective assistance of both trial and appellate counsel. The

amended petition alleged trial counsel rendered ineffective

assistance in a variety of ways. The allegations included trial

counsel's failure to introduce evidence of the "inner workings of

gang rules," which required retaliation only for the death of a

fellow gang member and therefore supported the defendant's lack

of intent to kill; counsel's failure to produce evidence that the

defendant was angry and under the influence of drugs and alcohol

at the time he shot Castruita; counsel's failure to tender a

reckless conduct instruction; counsel's failure to call the

defendant's sister to testify that Castruita had offered to drop

the charges in exchange for money; and counsel's decision to

stipulate to medical testimony instead of calling a medical

expert that would have supported the defendant's claim that he

did not aim at any vital organ when Castruita was shot in the

torso.

On October 29, 2008, Judge Joseph Claps, in a written order,

granted the State's motion to dismiss, rejecting each

constitutional claim asserted in the amended petition. Judge

Claps specifically held the defendant failed to show either

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No. 1-08-3411

deficient performance by trial counsel or that the defendant

suffered actual prejudice by the alleged omissions of counsel.

Judge Claps found the defendant's other claims to be entirely

conclusory, holding such claims, by their very nature, do not

establish a substantial violation of constitutional rights.

The State Appellate Defender's Office was appointed to

represent the defendant on appeal. The defendant, through

appellate counsel, now contends postconviction counsel provided

an unreasonable and substandard level of assistance. He points

to counsel's failure to attach affidavits in support of the

petition and have verified the affidavits of the defendant and

his sister accompanying the petition. The defendant contends

"post-conviction counsel watered down the factual argument that

was the key argument supporting the claim of ineffective

assistance of trial counsel. Post-conviction counsel rendered

unreasonable assistance in violation of Rule 651(c)." The

defendant asserts this cause should be remanded for further

postconviction proceedings in the circuit court, with the

appointment of new counsel, if necessary. Notwithstanding his

contention that postconviction counsel's assistance was

unreasonable, in his second issue the defendant claims the

amended petition presented sufficient allegations of trial

counsel's ineffectiveness to make a substantial showing under the

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No. 1-08-3411

Act to entitle him to proceed further in postconviction

proceedings.

ANALYSIS

We begin with the observation that the defendant's first

issue fails to expressly claim that postconviction counsel

violated any of the specific duties mandated by Supreme Court

Rule 651(c). Instead, the defendant attacks postconviction

counsel for failing to attach signed affidavits of the defendant

or his sister, failing to attach an affidavit of the treating

physician, and failing to provide evidentiary support for the

defendant's pro se claim that Castruita's internal injuries were

caused by one of the shots he fired "because the victim 'fell-

into-the bullet,' " all of which he contends amount to

unreasonable assistance under Rule 651(c).

In response to this general challenge by the defendant to

the reasonableness of the assistance provided by postconviction

counsel, the State asserts "that a petitioner's claim of

unreasonable assistance of post-conviction counsel is not

cognizable as a free-standing claim in post-conviction

proceedings." As authority the State quotes from People v.

Rossi, 387 Ill. App. 3d 1054, 1059, 902 N.E.2d 158 (2009), "When

considering an appeal from the dismissal of a petitioner's

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No. 1-08-3411

postconviction petition, the appellate court is limited to

considering matters that are of constitutional dimension." The

defendant makes no reply to the State's point of law. While we

find Rossi does not dictate the outcome here, it does provide

guidance in assessing whether a proper claim under Rule 651(c)

has been made before us.

In Rossi, the postconviction proceedings before the circuit

court followed the dismissal of his direct appeal for lack of

jurisdiction. Rossi, 387 Ill. App. 3d at 1055. The circuit

court allowed the defendant the opportunity to challenge his

pleas of guilty and appointed counsel to assist the defendant in

his motion to withdraw his guilty pleas. Rossi, 387 Ill. App. 3d

at 1055. The circuit court determined that the defendant's pleas

of guilty were voluntary and the Third District affirmed. Rossi,

387 Ill. App. 3d at 1055, citing People v. Rossi, No. 3-99-0629

(2001) (unpublished order pursuant to Supreme Court Rule 23) (166

Ill. 2d R. 23).

In October 2001, the defendant filed a successive pro se

postconviction petition, in which he once again challenged the

effectiveness of trial counsel, but added that appointed counsel

on his motion to vacate provided deficient representation.

Rossi, 387 Ill. App. 3d at 1056. The circuit court appointed new

counsel to represent the defendant in the successive

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No. 1-08-3411

postconviction petition, but after hearing testimony from counsel

appointed to assist the defendant on his motion to vacate,

dismissed the successive petition. Rossi, 387 Ill. App. 3d at

1056.

Within 30 days of the dismissal order, the defendant "filed

several pro se motions, including a petition for rehearing which

included a prayer that petitioner be allowed to amend the

petition for rehearing and alleged among other things that

[appointed counsel's] representation was unreasonable for failing

to amend his successive postconviction petition to adequately

raise the issues of ineffective assistance of [counsel on his

motion to vacate,] trial counsel, and appellate counsel." Rossi,

387 Ill. App. 3d at 1056. The circuit court appointed other

counsel to represent the defendant on his petition for rehearing.

In its order, the court directed, " '[Appointed counsel] shall

examine the record and file a certificate pursuant to Rule

651.' " Rossi, 387 Ill. App. 3d at 1056. Following argument,

the circuit court denied the defendant's motion. Rossi, 387 Ill.

App. 3d at 1056-57.

Writing for the court, Justice McDade noted, at the start of

her analysis, "that petitioner does not contest the merits of his

successive postconviction petition or his pro se petition for

rehearing." Rossi, 387 Ill. App. 3d at 1057. Rather, the

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No. 1-08-3411

defendant sought a remand because counsel, appointed on what he

titled "petition for rehearing," did not file a certificate or

otherwise demonstrate compliance with Rule 651(c). Rossi, 387

Ill. App. 3d at 1057. The issue of first impression was whether

Rule 651(c) applies to counsel appointed on the defendant's

petition for rehearing when the "petition for rehearing ***

contains a new allegation of unreasonable assistance on the part

of original postconviction counsel." Rossi, 387 Ill. App. 3d at

1057.

In the course of her discussion of the application of Rule

651(c) in the context of the specific proceedings below, Justice

McDade made clear that a challenge to the "reasonableness" of

postconviction counsel's assistance is properly raised only when

the presumption of compliance with Rule 651(c) is overcome.

Where a certificate in accordance with Rule 651(c) is filed, "the

presumption exists that petitioner received the representation

Rule 651(c) requires a postconviction petitioner receive during

second-stage proceedings." Rossi, 387 Ill. App. 3d at 1060; see

also People v. Richardson, 382 Ill. App. 3d 248, 258, 888 N.E.2d

553 (2008) (postconviction counsel's "duty to amend under Rule

651(c) is limited by ' "the constitutional claims raised by the

petitioner" [Citation]' "), quoting People v. Pendleton, 223 Ill.

2d 458, 475-76, 861 N.E.2d 999 (2006), quoting People v. Davis,

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No. 1-08-3411

156 Ill. 2d 149, 164, 619 N.E.2d 750 (1993).

In the appeal before us, the defendant's contention against

postconviction counsel's efforts is best illustrated by his

argument that "post-conviction counsel failed to support

petitioner's claim *** with admissible evidence that the path of

the bullet showed Mr. Mendoza lacked an intent to kill." The

defendant raises no specific claim that the certificate filed by

postconviction counsel below is deficient in any manner. Nor

does he claim that postconviction counsel failed to comply with

any of the specific duties imposed by the rule. The analysis in

Rossi makes clear, review of the reasonableness of counsel's

effort is foreclosed if the presumption that Rule 651(c) was

satisfied exists. Rossi, 387 Ill. App. 3d at 1060; see People v.

Suarez, 224 Ill. 2d 37, 42, 862 N.E.2d 977 (2007) ("To ensure

that postconviction petitioners receive [the] *** assistance

[provided by the Act], Rule 651(c) imposes specific duties on

postconviction counsel"); People v. Moore, 189 Ill. 2d 521, 543,

727 N.E.2d 348 (2000) ("[W]e hold that post-conviction counsel

complied with the requirements of Rule 651(c) and thus rendered

reasonable assistance"); Richardson, 382 Ill. App. 3d at 253

(claim rejected that postconviction "counsel's certificate is

'incomplete and therefore insufficient to create a presumption of

compliance with Rule 651(c)' "); cf. People v. Bashaw, 361 Ill.

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No. 1-08-3411

App. 3d 963, 970, 838 N.E.2d 972 (2005) (dismissal of

postconviction petition reversed where certificate deficient and

cause remanded for compliance with Rule 651(c)).

The adequacy of the defendant's initial contention turns on

whether the defendant has made any showing that counsel failed to

comply with any of the specific duties mandated by Rule 651(c).

"Specifically, Rule 651(c) requires that the

record disclose that post-conviction trial

counsel: (1) consulted with the petitioner to

ascertain his contentions of constitutional

deprivation; (2) examined the record of the

proceeding of the original trial; and (3)

made any amendments to the pro se petition

necessary to adequately present the

petitioner's constitutional contentions."

People v. Johnson, 154 Ill. 2d 227, 238, 609

N.E.2d 304 (1993).

A certificate pursuant to Rule 651(c) was filed in the

proceedings below and present in the record before us. As we

noted, the defendant does not contend the certificate is

inadequate; nor do we find any deficiencies in the certificate.

In the absence of a specific claim that postconviction counsel

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No. 1-08-3411

violated any of the three duties mandated by Rule 651(c), we

question whether the defendant's first contention is subject to

review. The defendant's claim that his postconviction counsel

provided "unreasonable, substandard, level of assistance" in

amending his pro se postconviction petition appears barred by the

presumption that the defendant "received the representation Rule

651(c) requires a postconviction petitioner receive during

second-stage proceedings" when an unassailed certificate of

compliance exists in the record. Rossi, 387 Ill. App. 3d at

1060; Richardson, 382 Ill. App. 3d at 257-58.

The cases the defendant cites to support his contention that

postconviction counsel did not provide reasonable assistance do

not stand for the proposition that a general challenge to the

reasonableness of postconviction counsel's efforts is permitted

on appeal from the dismissal of a postconviction petition outside

the claim that at least one of the specific duties mandated by

Rule 651(c) was violated. Of the six cases cited by the

defendant as support that postconviction counsel rendered

unreasonable assistance in this case, only two cases found a

violation of Rule 651(c) and, in the context of a death penalty

case, each addresses a specific violation of a Rule 651(c) duty.

People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725 (1999); People

v. Johnson, 154 Ill. 2d 227, 609 N.E.2d (1993).

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No. 1-08-3411

The defendant in Turner expressly asserted claims that the

duties outlined in Rule 651(c) were not satisfied. The supreme

court rejected the defendant's claim that the first duty, "the

consultation requirement in Rule 651(c)," had not been satisfied.

Turner, 187 Ill. 2d at 411. The supreme court rejected the

defendant's claim that postconviction counsel violated the second

duty when he failed to examine the transcripts on specific dates

because nothing of relevance to the petitioner's claims

transpired. Turner, 187 Ill. 2d at 412. However, the supreme

court found the last contention concerning the third duty to have

merit: postconviction counsel failed "to make any amendments to

the pro se post-conviction petition." Turner, 187 Ill. 2d at

412. Postconviction counsel had elected to stand on the pro se

petition and, in doing so, failed to amend the petition to allege

ineffective assistance of appellate counsel to avoid the bar of

res judicata, which triggered the circuit court's dismissal.

Turner, 187 Ill. 2d at 412-13.

The supreme court also faulted postconviction counsel for

failing to allege that the defendant was prejudiced by trial

counsel's assistance and for failing to attach any affidavits to

support the claims in the postconviction petition based on

evidence outside the record on direct appeal. Turner, 187 Ill.

2d at 413-14. The supreme court held that "post-conviction

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No. 1-08-3411

counsel's performance was unreasonable and fell below the level

of assistance required by Rule 651(c)."

In Johnson, the defendant conceded "that the first two

requirements of Rule 651(c) were satisfied in this case."

Johnson, 154 Ill. 2d at 238. The defendant contended, however,

that postconviction counsel failed to "amend the pro se petition

in the manner necessary to adequately present the petitioner's

claims." Johnson, 154 Ill. 2d at 238-39. While postconviction

counsel filed an amended petition, the "amended petition

realleged, verbatim, every allegation in the pro se petition and

added two additional claims," but no supporting affidavits or

documents. (Emphasis in original.) Johnson, 154 Ill. 2d at 239.

Postconviction counsel did, however, file his own affidavit

detailing his efforts on behalf of the defendant.

"Post-conviction counsel filed an affidavit as a supplemental

record in this appeal, which unequivocally establishes that

counsel made no effort to investigate the claims raised in the

defendant's post-conviction petition or to obtain affidavits from

any of the witnesses specifically identified in the defendant's

pro se petition." Johnson, 154 Ill. 2d at 241.

The court noted that postconviction counsel had a duty "to

attempt to obtain affidavits from [witnesses identified by the

defendant in his pro se petition] for the purpose of shaping the

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No. 1-08-3411

allegations in the post-conviction petition into appropriate

legal form." Johnson, 154 Ill. 2d at 247. However,

postconviction counsel had "no obligation to actively search for

sources outside the record that might support general claims

raised in [the] post-conviction petition." Johnson, 154 Ill. 2d

at 247. Ultimately, the court ruled that the record failed "to

show that post-conviction counsel amended the defendant's post-

conviction petition in the manner necessary to adequately present

the defendant's claims, as required by Rule 651(c)." Johnson,

154 Ill. 2d at 248. The court ordered a remand so that

postconviction counsel "may comply, insofar as compliance is

possible, with Rule 651(c)." Johnson, 154 Ill. 2d at 249.

The efforts by postconviction counsel here are in marked

contrast to the efforts by postconviction counsel in both Turner

and Johnson. Postconviction counsel filed an amended

postconviction petition with supporting affidavits. The

defendant does not contend that the petition fails in legal form

or omits any of his pro se claims. See People v. Perkins, 229

Ill. 2d 34, 44, 890 N.E.2d 398 (2007) ("the purpose of Rule

651(c) is to ensure that counsel shapes the petitioner's claims

into proper legal form and presents those claims to the court").

One of the accompanying affidavits came from an expert witness

that appeared on its face to support the defendant's pro se

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No. 1-08-3411

theory of "falling-into-the bullet." Counsel also prepared

affidavits of the defendant and his sister consistent with the

allegations each had made to attack his conviction. That the

affidavits of the defendant and his sister were unverified is of

no moment when the unverified nature of the affidavits was not a

basis for the circuit court's dismissal of the amended petition.

See Johnson, 154 Ill. 2d at 245 ("While it is true that the trial

court might have found grounds, other than the absence of

supporting affidavits, to dismiss the defendant's claims, it is

not apparent from the record that the trial court did dismiss the

claims on such grounds" (emphasis in original)). The defendant

makes no claim that the allegations in each of the unverified

affidavits could be enhanced on remand. Rule 651(c) does not

require that we remand this case for purposes of verification

alone.

As we made clear, the defendant in the instant case makes no

specific claim that postconviction counsel's assistance fell

short of any of the duties outlined by Rule 651(c). Rather, the

defendant faults postconviction counsel in the assistance she

provided because the defendant's pro se claim regarding the path

of the bullet is inadequately supported by the affidavits

accompanying the petition. This claim amounts to no more than a

general claim that postconviction counsel provided unreasonable

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No. 1-08-3411

assistance, much as a defendant would attack the reasonableness

of assistance provided by trial counsel. We agree with the

State, the "petitioner's claim of unreasonable assistance of

post-conviction counsel is not cognizable as a free-standing

claim in post-conviction proceedings." Consequently, we reject

the defendant's first contention as an improper challenge to the

assistance provided by postconviction counsel in the absence of a

meritorious claim that counsel did not comply with a specific

duty outlined in Supreme Court Rule 651(c).

Even if we were to liberally construe this contention to

claim a violation of the duty "to make any amendments to the pro

se post-conviction petition" (Turner, 187 Ill. 2d at 412), the

defendant fails to persuade us that a remand for compliance with

Rule 651(c) is warranted. Rule 651(c) does not impose upon

postconviction counsel a legal duty "to actively search for

sources outside the record that might support general claims

raised in a post-conviction petition." Johnson, 154 Ill. 2d at

247. If it is the defendant's claim that "admissible evidence"

missing from his petition exists outside the record, there is no

duty on postconviction counsel to discover that evidence.

Johnson, 154 Ill. 2d at 247. On the other hand, if the defendant

claims more factual support that he did not have the specific

intent to kill exists in the record than presented in the amended

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No. 1-08-3411

petition, we reject such a claim out of hand. The defendant

fails to point to any such record evidence. In the absence of

such a showing, we find no basis to conclude that postconviction

counsel did not make "amendments to the petition[] filed pro se

that [were] necessary for an adequate presentation of [the

defendant's] contentions." 134 Ill. 2d R. 651(c). See People v.

Moore, 189 Ill. 2d 521, 543, 727 N.E.2d 348 (2000) (the record

shows "that post-conviction counsel complied with the

requirements of Rule 651(c) and thus rendered reasonable

assistance").

Ineffective Assistance of Trial Counsel

In an 11 page, highly detailed discussion of the defendant's

postconviction claims, the circuit court ruled the petition

"failed to make a substantial showing that [the defendant's]

constitutional rights were violated in *** the trial ***

proceedings." On de novo review of the dismissal of the

defendant's amended postconviction petition, we are unpersuaded

that the circuit court's assessment of the record evidence is at

odds with the original trial record.

A successful claim of ineffective assistance of counsel

requires a showing of both deficient representation and

prejudice. Strickland v. Washington, 466 U.S. 668, 694, 80 L.

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No. 1-08-3411

Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v.

Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). A

defendant is denied effective assistance of counsel when

counsel's performance falls "below an objective standard of

reasonableness and ***, but for this substandard performance,

there is a reasonable probability that the outcome of the

proceeding would have been different." People v. McPhee, 256

Ill. App. 3d 102, 106, 628 N.E.2d 523 (1993), citing Strickland,

466 U.S. at 687-94, 80 L. Ed. 2d at 693-98, 104 S. Ct. at 2064-

68, and Albanese, 104 Ill. 2d at 525. To prove counsel's

representation was deficient, the defendant must overcome a

strong presumption that counsel's performance fell within the

wide range of reasonable assistance. People v. Coleman, 183 Ill.

2d 366, 398, 701 N.E.2d 1063 (1998). In the context of a

postconviction petition, the defendant must make a "substantial

showing" that his right to effective assistance of counsel was

violated to warrant relief. 725 ILCS 5/122-1 (West 2008).

There is no dispute that the defendant shot at Castruita

four times. The defendant shot Castruita in the leg while the

defendant was exiting the vehicle that brought him to Castruita's

home. Had the defendant ended his assault then, his trial

counsel might have had a good claim of reasonable doubt as to the

defendant's intent to kill Castruita. But the defendant did not

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No. 1-08-3411

end his assault with a single shot. Rather, the "[d]efendant ***

exited the vehicle and approached Castruita, aiming the weapon at

his chest, saying, 'Don't f--k with [my] family.' *** Castruita

threw his beer bottle at defendant, but defendant continued to

approach Castruita and fired three more shots from about three

feet away, striking Castruita in the chest and both legs."

People v. Mendoza, No. 1-03-0704, slip op. at 3 (2004)

(unpublished order under Supreme Court Rule 23).

Based on this evidence, there is little wonder that the jury

found the defendant guilty of attempted murder. It is an

understatement to note that trial counsel could do little to cast

doubt on the State's case. Nor does the defendant point to any

deficiencies in counsel's performance before the jury. Rather,

the crux of the defendant's claim centers on trial counsel's

decision to stipulate to the testimony of Dr. Zarat, Castruita's

treating physician at Mount Sinai Hospital, and the affidavit of

Dr. William Manion, which the defendant contends supports his

theory that Castruita fell into the bullet that struck his torso.

Regarding trial counsel's decision to stipulate, the

defendant fails to inform us of any benefit the defendant hoped

to gain through any cross-examination of Dr. Zarat. While the

defendant asserts "cross-examination of the victim's treating

physician [was necessary] to establish the crucial theory about

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No. 1-08-3411

the path of the bullet -- that the injury to the victim's left

kidney meant that the bullet entered the left lower chest - upper

abdomen while the victim was 'falling into the bullet,' " he

makes no showing that Dr. Zarat would have testified consistent

with the defendant's "crucial theory" on cross-examination. The

defendant concedes as much when he explains the need for an

expert witness. "[I]t would have been better for trial counsel

to have the medical expert witness prepared to testify because

the treating physician might disagree with the expert's

conclusions." We agree with the circuit court's finding, the

defendant's claim that trial counsel was ineffective for

stipulating to Dr. Zarat's testimony is conclusory. See People

v. Coleman, 183 Ill. 2d 366, 381, 701 N.E.2d 1063 (1998)

("Nonfactual and nonspecific assertions which merely amount to

conclusions are not sufficient to require a hearing under the

Act").

Recognizing the shortcomings of his claim that trial

counsel's decision to stipulate to the medical evidence amounted

to ineffective assistance, the defendant contends that

evidentiary support for his "crucial theory" is provided by the

affidavit of Dr. Manion. Dr. Manion averred:

"Mr. Mendoza, based on my findings, was

shooting downward when he fired at Mr.

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No. 1-08-3411

Castruita. The path of the shots indicates

that Mr. Mendoza was not aiming towards Mr.

Castruita's head, shoulder or upper chest

area. It is my opinion that there is no

evidence that Mr. Mendoza was aiming at Mr.

Castruita's chest or abdomen when he fired

the shots." (Emphasis added.)

But the evidence before the jury is contrary to Dr. Manion's

belief regarding the defendant's aim. Castruita testified the

defendant "was pointing [the gun] at my chest." Castruita told

the jury, the defendant "shot me in the chest." The State asked

James Jaramillo, "So when the defendant backed away and raised

his arms what part of [Castruita's] body was the gun pointed at

then?" James Jaramillo testified, "His, you know, stomach."

Briana Augustyn testified that the defendant raised his arm with

the gun in hand, "Maybe not a 90 degree angle, but it was pretty

much head on." She testified that when the defendant fired the

gun, "It was pointed in the trunk of [Castruita's] body."

Finally, Hayde Canales demonstrated to the jury how the defendant

held the gun pointed at Castruita. The State described the

demonstration, "Indicating for the record she's extended her

right arm at almost a 90 degree angle from her shoulder." The

trial judge concurred, "So noted."

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No. 1-08-3411

In its written decision, the circuit court rejected Dr.

Manion's opinion, or that of any other expert witness with the

same view of the medical records to challenge trial counsel's

performance, as nothing more than second-guessing:

"Indeed, to ruminate over the wisdom of

counsel's advice is precisely the kind of

retrospection proscribed by Strickland and

its progeny. See Strickland, 466 U.S. at

689[, 80 L. Ed. 2d at 695, 104 S. Ct. at

2065] ('[a] fair assessment of attorney

performance requires that every effort be

made to eliminate the distorting effects of

hindsight'); see also People v. Fuller, 205

Ill. 2d 308, 331, 793 N.E.2d 526 (2002)

(issues of trial strategy must be viewed, not

in hindsight, but from the time of counsel's

conduct, and with great deference accorded

counsel's decisions)."

We agree.

The assumption underlying Dr. Manion's expert opinion

regarding the trajectory of the shots, upon which the defendant's

claim of deficient performance by trial counsel is based, is

24
No. 1-08-3411

positively rebutted by the record. See People v. Rogers, 197

Ill. 2d 216, 222, 756 N.E.2d 831 (2001) (Illinois courts have

"consistently upheld the dismissal of a post-conviction petition

when the record from the original trial proceedings contradicts

the defendant's allegations"). We reject the defendant's

contention that trial counsel's failure to call an expert, such

as Dr. Manion, makes a substantial showing that counsel's

performance fell below an objective standard of reasonableness.

Cf. People v. Popoca, 245 Ill. App. 3d 948, 615 N.E.2d 778 (1993)

(dismissal of postconviction petition reversed where trial

counsel failed to consider how an expert witness would have

assisted the defense of voluntary intoxication given that, when

raised, "the State must show beyond reasonable doubt that the

existence of the mental state for the offense was not negated by

the defendant's intoxication").

Nor are we persuaded that the defendant suffered actual

prejudice by trial counsel's failure to call Dr. Manion or

another expert that might share his view of the medical records.

There is little likelihood that the jury verdict would have

differed had a medical expert such as Dr. Manion testified to

support the defendant's lack of intent claim. It is reasonable

to infer that had such expert testimony been available to the

defendant at trial, the State would have proffered an expert of

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No. 1-08-3411

its own, holding the view that the eyewitnesses' testimony that

the defendant fired at the torso of Castruita was consistent with

the injuries Castruita suffered, a point that appears not to have

escaped the defendant when he acknowledges that "the treating

physician might disagree with the expert's conclusions." See

Popoca, 245 Ill. App. 3d at 958-59 ("The circuit court mentioned

that if defense counsel had called an expert the State would have

called one as well").

The question before the jury even with such expert testimony

would have remained the same. As trial counsel argued, "Ladies

and Gentlemen of the jury, one question did [the defendant]

intend to kill him? Did he mean to kill him?" The intent of the

defendant at the time he fired the shots was exclusively within

the province of the jury. No amount of expert testimony based

solely on medical records, which may be subject to different

interpretations, would have undermined the testimony of the four

prosecution witnesses, including the victim, that the defendant

fired the gun consistent with the internal injuries Castruita

suffered.

Appellate counsel's suggestion that it "would have been

better" had live testimony been heard by the jury regarding the

trajectory of the shots is nothing more than hindsight. We

decline to view trial counsel's performance through the distorted

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No. 1-08-3411

lens of hindsight. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d

at 694, 104 S. Ct. at 2065 ("It is all too tempting for a

defendant to second-guess counsel's assistance after conviction

*** and it is all too easy for a court, examining counsel's

defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable").

Under the facts of this case, the defendant is unable to

overcome the strong presumption that trial counsel's performance

was the product of reasonable trial strategy, not incompetence.

See Coleman, 183 Ill. 2d at 398. Accordingly, the defendant is

unable to satisfy the first prong of Strickland. That trial

counsel undertook an unsuccessful strategy or that another

attorney would have handled the defense differently adds little

to the claim that trial counsel rendered constitutionally

deficient assistance. See People v. Palmer, 162 Ill. 2d 465,

476, 643 N.E.2d 797 (1994)("counsel's strategic choices are

virtually unchallengeable").

Even assuming, arguendo, that counsel's performance was

objectively substandard, the defendant cannot show he was

prejudiced because we find no basis to call into question the

jury's verdict that the defendant was guilty of attempted murder

when he fired four shots at Castruita. See People v. Tabb, 374

Ill. App. 3d 680, 694, 870 N.E.2d 914 (2007) ("The fact that

27
No. 1-08-3411

defendant fired his gun three times at the victim alone supports

the jury's finding of an intent to kill under [People v.

Mitchell, 209 Ill. App. 3d 562, 569, 568 N.E.2d 292 (1991)]").

The circuit court properly dismissed, without an evidentiary

hearing, the defendant's amended postconviction petition, which

included his claim of ineffective assistance of trial counsel.

CONCLUSION

In the absence of a claim that a specific duty under Rule

651(c) was violated by postconviction counsel, the defendant's

claim asserting unreasonable assistance is foreclosed by the

certificate postconviction counsel filed pursuant to Supreme

Court Rule 651(c). Even if a liberal reading of the defendant's

claim on appeal supports such a contention, no showing has been

made that postconviction counsel violated any of the duties

mandated by the rule. In his amended petition, the defendant did

not make a substantial showing of ineffective assistance of trial

counsel, thus justifying the dismissal of the petition by the

circuit court.

Affirmed.

HALL, P.J., and LAMPKIN, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
__________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS
Plaintiff-Appellee,

v.

JIMMIE MENDOZA,
Defendant-Appellant.
________________________________________________________________

No. 1-08-3411

Appellate Court of Illinois
First District, First Division

Filed: June 7, 2010
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

HALL, P. J., and LAMPKIN, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Joseph M. Claps, Judge Presiding
_________________________________________________________________

For PLAINTIFF- Anita Alvarez, State's Attorney, County of Cook
APPELLEE Alan J. Spellberg

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Sally L. Dilgart
Assistant State's Attorneys
Richard J. Daley Center, Room 309
Chicago, IL 60602

For DEFENDANT- Michael J. Pelletier, State Appellate Defender
APPELLANT Charles M. Schiedel, Deputy Defender
Kim Robert Fawcett
Assistant Appellate Defender
Office of the State Appellate Defender
Supreme Court Unit
20 N. Clark Street, 28th Floor
Chicago, IL 60602

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