People v. Cathey

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by Reporter of
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Illinois Official Reports the accuracy and
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document
Appellate Court Date: 2020.06.18
12:51:21 -05'00'

People v. Cathey, 2019 IL App (1st) 153118

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ELRON CATHEY, Defendant-Appellant.

District & No. First District, Sixth Division
No. 1-15-3118

Filed October 11, 2019
Rehearing denied November 11, 2019

Decision Under Appeal from the Circuit Court of Cook County, Nos. 92-CR-5333, 02-
Review CR-6011; the Hon. Steven J. Goebel, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.

Counsel on James E. Chadd, Patricia Mysza, and Bradley Jarka, of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Matthew Connors, Assistant State’s Attorneys, of counsel), for the
People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Delort and Connors concurred in the judgment and opinion.
 OPINION

¶1 Defendant, Elron Cathey, appeals the order of the circuit court dismissing two petitions he
filed for relief from his convictions for attempted first degree murder, aggravated battery with
a firearm, and possession of a controlled substance. On appeal, defendant contends the court
erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-1401 (West 2014)), where his convictions for attempted murder and
aggravated battery with a firearm violate the one-act, one-crime rule. He also contends that his
petition “in nature of writ of error coram nobis” sufficiently stated a claim that his possession
conviction was based on planted drug evidence and that his guilty plea was obtained under
threat of physical harm to him and his family. For the following reasons, we affirm the
dismissal of defendant’s coram nobis petition but reverse the dismissal of his section 2-1401
petition and remand for further proceedings.

¶2 JURISDICTION
¶3 The trial court dismissed both of defendant’s petitions challenging his convictions on July
22, 2015. Defendant filed a motion for leave to file late notices of appeal in both cases, which
this court allowed, assigning both petitions to case No. 1-15-3118. Accordingly, this court has
jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art.
VI, § 6), and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), governing appeals in
postconviction proceedings.

¶4 NO. 92-CR-05333
¶5 I. Background
¶6 Defendant was charged in the shooting of Orlando Derrick. At trial, Tyrone Thomas
testified that on January 30, 1992, at approximately 10:45 p.m., he was in front of Tasha
Mead’s house talking to Derrick. He saw defendant coming from the gangway next to Mead’s
house, and he backed away when he noticed an expression on Derrick’s face as if there was
going to be a confrontation. He walked away and did not see a physical fight between defendant
and Derrick. As he walked around a corner, Thomas heard a whistle and then two gunshots.
Thomas came back, and defendant was gone. Derrick was lying facedown in the street. Thomas
knocked on Mead’s door, and when she appeared, he left. Thomas did not see Derrick with a
gun that evening.
¶7 Derrick testified that on January 30, 1992, he went to Mead’s house after she called and
asked him to come. At approximately 11 p.m., after speaking with Mead for about five minutes,
Derrick went outside to move his car. After parking his car, Derrick saw Thomas, and they
walked together toward Mead’s house. While they talked, Derrick saw defendant come out of
the gangway. Defendant asked Derrick what he was doing there, and he responded that he did
not want to start any trouble. Derrick backed up, and defendant reached behind his back and
pulled out a .22-caliber revolver. Derrick saw an unmarked police car, so he whistled.
Defendant fired one shot, turned around, and fired two more shots before running away.
Derrick was hit twice in the back as he turned away. When the police arrived, Derrick informed
them that defendant shot him. Derrick stated that he was not carrying a gun that evening.

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¶8 Mead testified that at approximately 11 p.m., on January 30, 1992, she called Derrick and
asked him to come to her house. He arrived, stayed briefly, then left. Five to ten minutes after
he left, Mead heard a whistle and then one gunshot. A couple seconds later, she heard two
more gunshots. Thomas knocked on her door and pointed at Derrick, who was lying in the
street.
¶9 The jury found defendant guilty of attempted first degree murder and aggravated battery
with a firearm. He was sentenced to 20 years’ imprisonment for both charges, to be served
concurrently.
¶ 10 Defendant appealed his convictions, arguing that his counsel was ineffective and that the
State violated his right to remain silent, his right to a fair trial, and his due process rights.
Defendant further argued that the prosecutor’s closing argument improperly shifted the burden
of proof and that the trial court erred in limiting his impeachment of a witness. This court
affirmed defendant’s convictions in People v. Cathey, No. 1-93-2502 (1996) (unpublished
order under Illinois Supreme Court Rule 23).
¶ 11 On October 11, 2013, defendant filed a pro se postconviction petition pursuant to the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). The record does not
contain defendant’s petition or the trial court’s order dismissing the petition. However, the trial
court’s order dismissing defendant’s subsequent section 2-1401 petition, the dismissal in this
appeal, stated that defendant alleged in his postconviction petition that his trial and appellate
counsel were ineffective and that his convictions violate the one-act, one-crime rule. The order
also stated that the court dismissed defendant’s postconviction petition on December 16, 2013,
because he was no longer incarcerated on those convictions.
¶ 12 On June 12, 2015, defendant filed his pro se section 2-1401 petition alleging a one-act,
one-crime violation. The State did not file a response. On July 22, 2015, the trial court
sua sponte dismissed defendant’s section 2-1401 petition. When the court dismissed the
petition, it stated, “Let the record reflect, the State’s Attorney is present.” The trial court did
not state for the record that defendant or a representative was also present. The court also did
not orally state its reasons for dismissing the petition. In its written order, however, the trial
court found that defendant’s petition was untimely since it was filed more than 20 years beyond
the limitations period. The court also found that defendant was not entitled to relief on his one-
act, one-crime claim “because aggravated discharge of a firearm and attempt murder are
separate convictions.” Defendant appeals from this order.

¶ 13 II. Analysis
¶ 14 Section 2-1401 sets forth a procedure by which the trial court may vacate final orders and
judgments more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2014). Generally a
civil remedy, the remedial powers of section 2-1401 also extend to criminal cases. People v.
Haynes, 192 Ill. 2d 437, 460-61 (2000). The State argues that we should affirm the trial court’s
dismissal of defendant’s petition because it was filed more than two years after entry of the
order or judgment. See 735 ILCS 5/2-1401(c) (West 2014) (a section 2-1401 petition “must be
filed not later than 2 years after the entry of the order or judgment”). We note, however, that
the State did not file a response to the petition and the trial court did not hold a hearing before
dismissing the petition. Therefore, the threshold issue we must address is whether the trial
court had the authority to dismiss defendant’s section 2-1401 petition sua sponte because it
was untimely filed where the timeliness issue was never raised by the parties.

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¶ 15 It is well-established that when the State does not respond to a section 2-1401 petition, the
trial court may sua sponte dismiss the petition. People v. Vincent, 226 Ill. 2d 1, 9-10 (2007).
Our supreme court in Vincent reasoned that proceedings under section 2-1401 are subject to
the usual rules of civil practice, and thus such petitions are “subject to dismissal for want of
legal or factual sufficiency.” Id. at 8. Furthermore, “responsive pleadings are no more required
in section 2-1401 proceedings than they are in any other civil action.” Id. at 9. As in civil
proceedings on complaints, a respondent’s failure to answer the section 2-1401 petition
“constitutes an admission of all well-pleaded facts” and renders the petition ripe for
adjudication on the pleadings alone. Id. at 9-10. Our supreme court equated judgment on the
pleadings in this context with a dismissal for failure to state a cause of action. Id. at 14.
¶ 16 The trial court’s dismissal here, however, based on the petition’s untimeliness, was not a
dismissal on the pleadings for failure to state a cause of action. Rather, timeliness under section
2-1401 is an affirmative defense that a responding party may waive or forfeit by failing to raise
the issue below. See People v. Pinkonsly, 207 Ill. 2d 555, 562-63 (2003). In Pinkonsly, the
issue before the court was whether the State could raise the timeliness of defendant’s section
2-1401 petition for the first time on appeal. In making its determination, our supreme court
looked at People v. Wright, 189 Ill. 2d 1 (1999), in which the court considered the issue under
section 122-1 of the Act (725 ILCS 5/122-1 et seq. (West 1994)). The court noted that the
section’s limitations period allowed for exceptions if the late filing was not due to the
defendant’s culpable negligence. Pinkonsly, 207 Ill. 2d at 563-64. Although the defendant is
required under the statute to allege facts demonstrating a lack of culpable negligence, the State
is not permitted “ ‘to wait until an appeal to raise an affirmative defense that the defendant may
be able to avoid by amending his petition.’ ” Id. at 563 (quoting Wright, 189 Ill. 2d at 11). The
court reasoned that by not raising this issue below, “ ‘the State has effectively precluded
defendant from seeking to amend his petition to allege facts demonstrating that the late filing
was not caused by his culpable negligence.’ ” Id. (quoting Wright, 189 Ill. 2d at 11).
¶ 17 Our supreme court noted that like section 122-1 of the Act, section 2-1401 of the Code also
has an exception to its limitations period for delays attributable to disability, duress, or
fraudulent concealment. See 735 ILCS 5/2-1401(c) (West 2014). The court concluded “that
our statement in Wright applies with equal force” in the context of a section 2-1401 petition.
Pinkonsly, 207 Ill. 2d at 564. It held that the State waived its timeliness argument because it
should have raised the issue “before the trial court, where any amendments could have been
made and any factual disputes could have been resolved.” Id.
¶ 18 We find that pursuant to Vincent and Pinkonsly, the trial court cannot sua sponte dismiss a
section 2-1401 petition based on untimeliness if that issue was never raised before the court.
When the State does not answer a petition, its failure to respond constitutes an admission of all
well-pleaded facts and that no triable issue of fact exists. Vincent, 226 Ill. 2d at 9-10. Thus, the
trial court can sua sponte dismiss a section 2-1401 petition where the only issue before the
court is whether defendant is entitled to relief as a matter of law. Application of the limitations
period, however, requires a court to make fact determinations because exceptions are allowed
for delays attributable to disability, duress, or fraudulent concealment. Pinkonsly, 207 Ill. 2d
at 563-64; 735 ILCS 5/2-1401(c) (West 2014). Furthermore, where the State forfeits the
timeliness defense by not answering the petition, defendant has no opportunity to amend his
petition to allege facts showing a potential factual dispute. In this context, dismissal of
defendant’s petition on the pleadings as a matter of law would be improper.

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¶ 19 Here, defendant’s petition was filed more than 20 years after judgment, well after the 2-
year period set forth in section 2-1401. However, the State forfeited its affirmative defense of
timeliness by not filing a response to the petition, and nothing in the record indicates that the
State objected to the petition as untimely before the trial court. Defendant’s petition does not
acknowledge that it was untimely, nor does it set forth facts alleging why the limitations period
should not apply. The record also does not show that the court orally informed the parties that
it considered the timeliness issue or that the defendant was even before the court when it
dismissed his petition. Since the issue was not raised by the parties below, defendant had no
opportunity to avoid dismissal by amending his petition to allege supporting facts. Pinkonsly,
207 Ill. 2d at 563-64. The trial court’s sua sponte dismissal of defendant’s section 2-1401
petition, based on untimeliness, was improper.
¶ 20 The trial court also determined that defendant’s petition should be dismissed because his
convictions for both aggravated battery with a firearm and attempted murder did not violate
the one-act, one-crime rule. Before reaching the merits, we address the State’s argument that
defendant’s section 2-1401 petition was the wrong vehicle for alleging his one-act, one-crime
claim because it is a purely legal issue. The State did not make this objection in the trial court,
and the court proceeded to address the merits of defendant’s petition. A party cannot complain
of error to which that party consented. In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).
In any event, our supreme court in People v. Thompson, 2015 IL 118151, ¶ 44, recognized that
section 2-1401 “permits either a legal or factual challenge to a final judgment.”
¶ 21 The State further contends that res judicata and forfeiture preclude consideration of
defendant’s one-act, one-crime claim. The purpose of section 2-1401 is not to provide a general
review of all trial errors or to substitute for direct appeal. People v. Berland, 74 Ill. 2d 286, 314
(1978). Therefore, points previously raised below or in other collateral proceedings cannot be
the basis of a section 2-1401 petition. Id. at 314-15. Res judicata, however, is an equitable
doctrine that “may be relaxed where justice requires.” (Internal quotation marks omitted.)
People v. Kines, 2015 IL App (2d) 140518, ¶ 21. Defendant previously raised the issue in his
postconviction petition, which the trial court dismissed because he was no longer incarcerated.
See People v. Farias, 187 Ill. App. 3d 879, 884 (1989) (finding that a defendant must actually
be deprived of his liberty as a result of serving a sentence at the time he filed for postconviction
relief). The trial court did not address the merits of this claim. Furthermore, since defendant
has served his sentence, proceedings under the Act are no longer available to him to raise the
one-act, one-crime issue. “[W]here fundamental fairness so requires, strict application of
procedural bars may be relaxed.” People v. Flores, 153 Ill. 2d 264, 274 (1992).
¶ 22 Defendant also could have raised this claim on direct appeal but did not, thus subjecting it
to forfeiture in a collateral proceeding. People v. Davis, 2014 IL 115595, ¶ 13. However, our
supreme court has determined that since one-act, one-crime violations affect the integrity of
the judicial process, a reviewing court may consider the issue as plain error notwithstanding
defendant’s forfeiture. People v. Harvey, 211 Ill. 2d 368, 389 (2004). For these reasons, we
proceed to the merits of defendant’s claim that his petition sufficiently alleged a one-act, one-
crime violation. Our standard of review is de novo. See Vincent, 226 Ill. 2d at 14.
¶ 23 Relief under section 2-1401 requires defendant to set forth specific factual allegations
showing (1) the existence of a meritorious claim, (2) due diligence in presenting the claim to
the circuit court, and (3) due diligence in filing the section 2-1401 petition. Smith v. Airoom,
Inc., 114 Ill. 2d 209, 220-21 (1986). Defendant contends a meritorious claim exists in that his

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 convictions for attempted murder and aggravated battery with a firearm were based on the
same physical act, the shooting of Derrick. Defendant “may not be convicted of multiple
offenses when those offenses are all based on precisely the same physical act.” Harvey, 211
Ill. 2d at 389. Prejudice results to the defendant where more than one offense is carved from
the same physical act. People v. King, 66 Ill. 2d 551, 566 (1977). In a King analysis, courts
first determine “whether the defendant’s conduct consisted of a single physical act or separate
acts.” Harvey, 211 Ill. 2d at 389. An “ ‘[a]ct’ ” means “any overt or outward manifestation
which will support a different offense.” King, 66 Ill. 2d at 566. We find People v. Crespo, 203
Ill. 2d 335 (2001), instructive.
¶ 24 In Crespo, the defendant and his partner, Maria Garcia, got into an argument, which
intensified as they moved into the kitchen. Id. at 338. Defendant reached into a drawer and
pulled out a knife. When Garcia tried to close the drawer, the defendant hit her in the head with
his fist. When her daughter, Arlene, tried to intervene, defendant “stabbed her three times in
rapid succession, once in the right arm, and twice in the left thigh.” Id. He then grabbed Garcia
by the hair and stabbed her. Id. Arlene survived, but Garcia died as a result of her injuries.
After a jury trial, defendant was found guilty of first degree murder, armed violence,
aggravated battery based on great bodily harm, and aggravated battery based on a deadly
weapon. Id. at 339. On appeal, this court merged the two aggravated battery convictions into
one conviction. Id. at 339-40. Defendant contended before the supreme court that the
remaining aggravated battery conviction must be vacated because it stemmed from the same
physical act on which his armed violence conviction was based: the stabbing of Arlene. The
State argued that since the defendant stabbed Arlene three times, each stabbing constituted a
separate offense. Id. at 340.
¶ 25 Our supreme court acknowledged, based on its holding in People v. Dixon, 91 Ill. 2d 346
(1982), that each stab wound could support a separate offense because each stabbing
constituted a separate act. Crespo, 203 Ill. 2d at 342. The court, however, examined the
indictment in the case and found that “the counts charging defendant with armed violence and
aggravated battery do not differentiate between the separate stab wounds. Rather, these counts
charge defendant with the same conduct under different theories of criminal culpability.” Id.
The court also noted that in closing argument, the State addressed both charges by referencing
evidence that defendant stabbed Arlene three times with a knife. Id. at 343-44. The State did
not apportion each offense to a particular stab wound in the charges or in arguing the case
before the jury. Id. at 345. A defendant has a “fundamental right” to be informed of the charges
against him, and if he did not know that the State considered each stab to be a separate offense,
he “would not have been able to defend the case accordingly.” Id. Therefore, “in cases such as
the one at bar, the indictment must indicate that the State intended to treat the conduct of
defendant as multiple acts in order for multiple convictions to be sustained.” Id.
¶ 26 Here, defendant was convicted of attempted first degree murder and aggravated battery
with a firearm based on his firing of at least two gunshots at Derrick. The shots happened in
quick succession, and there was no intervening act between the shots. The indictment charged
defendant with attempted first degree murder in that he “knowingly performed an act which
constituted a substantial step towards the commission of first degree murder, to wit: shooting
[Derrick] about the body with a gun.” The indictment for aggravated battery with a firearm
charged that defendant, in discharging a firearm, “knowingly caused injury and bodily harm to
[Derrick] by shooting him about the body with a gun.” Since the State did not apportion each

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 offense to a particular gunshot, the charging instruments evinced the State’s intent to treat
defendant’s conduct as a single act. See id. at 344. Further supporting our determination, the
State consistently referred to defendant’s act in closing argument as shooting “an unarmed man
twice in the back.” The State never tried to argue that one shot supported the attempted murder
offense and another supported the aggravated battery with a firearm offense.
¶ 27 Although we find that defendant’s petition sufficiently alleged a meritorious claim, to
obtain relief defendant must also allege facts supporting due diligence in presenting the claim
to the trial court, and due diligence in filing the section 2-1401 petition. Airoom, 114 Ill. 2d at
220-21. Convictions imposed in violation of the one-act, one-crime rule are merely voidable,
not void. See People v. Coady, 156 Ill. 2d 531, 537-38 (1993). Only allegations that a judgment
is void “negates the need to allege a meritorious defense and due diligence” in a section 2-1401
petition. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
¶ 28 Defendant alleged in his petition that he was not aware of the one-act, one-crime rule until
September 7, 2013, and that he relied on his attorney to conduct his defense. The State,
however, did not file a response, and the trial court made no finding as to whether defendant’s
petition sufficiently alleged due diligence. While we must take all well-pleaded allegations as
true, the issue of defendant’s diligence here raises questions of fact more suitable for
determination after an evidentiary hearing. See People v. Bumpers, 229 Ill. 2d 632-33 (2008)
(supervisory order) (the supreme court, in the exercise of its supervisory authority, vacated the
appellate court’s order where the trial court made no finding as to the defendant’s culpable
negligence in the untimely filing of his postconviction petition and directed the court to remand
the cause for an evidentiary hearing to allow the State an opportunity to refute defendant’s
allegations). Therefore, we reverse the dismissal of defendant’s petition and remand the cause
for an evidentiary hearing on the issue of defendant’s diligence.

¶ 29 NO. 02-CR-6011
¶ 30 I. Background
¶ 31 On July 1, 2003, defendant pled guilty to possession of a controlled substance. Prior to his
plea, defendant filed a motion to suppress evidence. The motion sought to suppress “certain
physical evidence illegally seized from [defendant’s] person.” Defendant alleged that he was
arrested at 7600 S. Colfax Avenue in Chicago, and “subsequent to his arrest certain police
officers had occasion to search the defendant’s person and possessions.” During the search, the
officers recovered cocaine. Defendant alleged that the stop, his arrest, and the search were
conducted without probable cause and without his consent.
¶ 32 At the hearing, defendant testified that around midnight on July 22, 2002, he and his cousin
were near 7600 S. Colfax Avenue in Chicago when officers jumped out of their car and asked
what they were doing. Defendant told the officers that they were “doing nothing, going home,”
but the officers patted him down. They went through his pockets and found two bags of
cocaine. Defendant denied that he had dropped the bags containing narcotics to the ground,
stating instead that he kept the bags in his pockets. Defendant did not give the officers
permission to search his pockets.
¶ 33 Officer Antonio Martinez testified that he and his partner, Officer Alex Guerrero,
responded to a call of someone selling narcotics at 7600 S. Colfax Avenue on July 22, 2002.
They received a description, and when they arrived at the location, they saw defendant standing
by himself. When they approached defendant, announcing themselves as officers, defendant

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 dropped two clear plastic knotted bags containing a white rock substance. Officer Martinez
recovered the bags, and defendant was taken into custody. Officer Guerrero’s testimony
corroborated Officer Martinez. The trial court determined that the officers did not search
defendant when they recovered the drugs and denied the motion to suppress. Defendant pled
guilty and was sentenced to two years in the Illinois Department of Corrections, with credit for
days served in presentence custody. He did not withdraw his guilty plea or file a direct appeal.
¶ 34 On November 19, 2013, defendant filed a pro se postconviction petition, alleging that he
pled guilty for a crime he did not commit. Defendant alleged that Officers Guerrero and
Martinez falsely arrested him due to his failure to locate drugs for them. Defendant alleged that
he was threatened by the officers and the Latin Kings to conceal the truth and, because he was
afraid for himself and his family, he “could not come forth with such claims” earlier. The trial
court found that defendant was “not entitled to relief because he has already served his
sentence.”
¶ 35 Defendant filed his pro se petition titled “Motion In Nature of Writ of Error Coram Nobis”
on June 12, 2015. In his petition, defendant alleged that his arrest “was made by two members,
and or associates of the Latin Kings street gang that were also working as Chicago Police
Officers.” Defendant alleged that Officers Guerrero and Martinez harassed him after the arrest
of Kevin Turner on February 21, 2001. Approximately a week later, the officers jumped out of
a police car, grabbed defendant, and told him that they were looking for 20 kilograms of
cocaine that was missing from the Turner case. Officer Martinez told defendant that they were
Latin Kings and threatened “that if he didn’t find out for them the whereabout[s] of the drugs
that they would put him away for a very long time.”
¶ 36 Defendant’s petition alleged that the officers arrested him on July 22, 2002, and took him
to an alley near the 9200 block of Saginaw Avenue in Chicago. There, they planted “a bag full
of clear knotted bags of what look[ed] to be crack cocaine” on defendant. They told defendant
“not to complain or tell anyone that they put narcotics on him and if he ever told about what
they were up to that they would cause hurt to him and someone close to him.” The officers
informed defendant that they knew where his girlfriend, his children, and other family
members lived and “they had people in the jail that could reach out and touch [defendant] if
needed.”
¶ 37 On August 12, 2013, defendant learned that Officers Guerrero and Martinez had been
arrested and that they pled guilty to conspiracy and racketeering charges. He stated that the
officers were “dirty cops who worked for the Latin Kings” and concealed their criminal
conduct in 2002. He alleged that any defense based on the officers’ behavior was unavailable
to him before due to fraud or duress. Defendant attached his affidavit to the petition.
¶ 38 Defendant also attached press releases from the United States Department of Justice. The
article described Officer Guerrero’s conviction on a “conspiracy to possess with intent to
distribute *** five kilograms or more of cocaine and 1,000 kilograms or more of marijuana,
interference with commerce by threats of violence, and use and carrying of a firearm during
and in relation to crimes of violence and drug trafficking.” Former Chicago Police Officer and
Two Members of Latin Kings Street Gang Sentenced in Indiana for Roles in Racketeering
Conspiracy, U.S. Dep’t of Justice (Jan. 11, 2013), https://www.justice.gov/opa/pr/former-
chicago-police-officer-and-two-members-latin-kings-street-gang-sentenced-indiana-roles
[https://perma.cc/U2RQ-7JW9]. Officer Guerrero admitted to being associated with the Latin
Kings and to participating in robberies at the direction of Latin Kings leader and coconspirator,

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 Sisto Bernal. Id. “Specifically, Guerrero acknowledged that in approximately December 2006,
he entered into the Hammond residence of James Walsh, a rival gang member. Guerrero and
his police partner and co-defendant Antonio Martinez physically restrained Walsh and others
while the home was searched and robbed.” Id.
¶ 39 Officer Martinez pled guilty to racketeering and conspiracy to distribute more than 5
kilograms of cocaine and more than 1000 kilograms of marijuana, robbery, and using a firearm
while committing these crimes. Former Chicago Police Officer Pleads Guilty to Racketeering
and Related Charges for Involvement With Latin Kings Gang, U.S. Dep’t of Justice (Dec. 2,
2011), https://www.justice.gov/opa/pr/former-chicago-police-officer-pleads-guilty-racketeering-
and-related-charges-involvement [https://perma.cc/P4YF-4A38]. Officer Martinez admitted
he “committed a series of robberies from 2004 to 2006 at the direction of the Latin Kings.” Id.
He admitted to participating in the armed robbery of a deceased Latin Dragon leader in Indiana
and “that he picked up and delivered packages of cocaine on multiple occasions for two Latin
Kings leaders.” Id.
¶ 40 Also attached was a Freedom of Information Act (FOIA) response from the Chicago Police
Department showing that a check for records of complaints against Officers Guerrero and
Martinez came up with no records. A FOIA response from the Illinois Attorney General’s
Office stated that defendant’s request for certain information pertaining to his July 22, 2002,
arrest was unfounded.
¶ 41 The court dismissed defendant’s coram nobis motion, although the order is not in the
record. This court allowed defendant to file late notices of appeal from the trial court’s July
22, 2015, orders.

¶ 42 II. Analysis
¶ 43 Defendant filed a “Motion in Nature of Writ of Error Coram Nobis.” The legislature long
ago replaced this common law writ with a statutory scheme that was the predecessor of section
2-1401 of the Code. Warren County Soil & Water Conservation District v. Walters, 2015 IL
117783, ¶ 33. Thus, we will treat defendant’s motion as a section 2-1401 petition for relief.
¶ 44 The State argues on appeal that we should affirm the dismissal due to the untimeliness of
defendant’s petition. The State, however, did not file a response to the petition and thus did not
raise the limitations period as a defense in the trial court below. For the reasons stated above,
we find that the State has forfeited this affirmative defense on appeal. See Pinkonsly, 207 Ill.
2d at 564.
¶ 45 Nor do we find that res judicata serves as an absolute bar to defendant’s claims. While
defendant did raise his claims against Officers Guerrero and Martinez in a previously filed
postconviction petition, the trial court dismissed that petition without considering the merits of
defendant’s claims because he had already served his sentence. Defendant further alleged that
he could not raise this claim earlier or on direct appeal because he was under threat of harm at
the time. Strict application of procedural bars may be relaxed where fundamental fairness so
requires. Flores, 153 Ill. 2d at 274. We will address the merits of defendant’s contentions.
¶ 46 Relief under section 2-1401 requires defendant to set forth specific factual allegations
showing (1) the existence of a meritorious claim, (2) due diligence in presenting the claim to
the circuit court, and (3) due diligence in filing the section 2-1401 petition. Airoom, 114 Ill. 2d
at 220-21. Defendant contends that his petition sufficiently set forth a meritorious claim where

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 he presented new information that, if known to the trial court at the time, would have prevented
entry of a judgment against him. To set aside a judgment based on newly discovered evidence,
defendant must show that the new evidence was not known to him at the time of trial and could
not have been discovered with the exercise of due diligence. People v. Waters, 328 Ill. App.
3d 117, 127 (2002). Furthermore, “the new evidence must be so conclusive that it would
probably change the result if a new trial is granted, must be material to the issues, and must be
more than merely cumulative to the trial evidence.” Id.
¶ 47 Defendant alleged in his petition that Officer Guerrero and Officer Martinez planted
cocaine on him when he refused to give information about drugs from another case. He alleged
that they threatened to harm him and his family if he complained or “told [anyone] about what
they were up to.” The new evidence defendant relied on consisted of press releases detailing
the criminal activities engaged in by Officer Guerrero and Officer Martinez, and the officers’
subsequent convictions. These articles, dated 2011 and 2013, clearly were not available to
defendant at the time he pled guilty to possession of cocaine in 2003. This new evidence,
however, must also “be of such conclusive character that it will probably change the result
upon retrial.” People v. Patterson, 192 Ill. 2d 93, 139 (2000).
¶ 48 When new evidence is alleged to support a contention that police misconduct coerced
defendant to confess, courts consider several factors to determine whether it is of such
conclusive character to warrant an evidentiary hearing. In Patterson, our supreme court found
that the new evidence satisfied the conclusive character test where (1) the defendant
consistently claimed he was tortured, (2) his claims of torture were and always had been
“strikingly similar to other claims” depicted in the new evidence, (3) the officers identified in
the evidence were the same officers in the defendant’s case, and (4) the defendant’s allegations
were consistent with documented findings of torture against the officers. Id. at 145.
¶ 49 Here, the officers named in the press releases, Guerrero and Martinez, are the same officers
in defendant’s case. But unlike the defendant in Patterson, defendant here did not allege
coercion in his motion to suppress, at trial, or in a direct appeal. Defendant stated that he could
not allege coercion earlier because the officers threatened him and his family with harm if he
complained or told anyone that they had planted drugs on him. Defendant, however, had filed
a motion to suppress in which he alleged that the officers illegally searched him when they
found the drugs. Contrary to the allegations in his petition, defendant at that time had no
misgivings about alleging misconduct against the officers. Also, defendant alleged in his
petition that he possessed no narcotics until the officers retrieved a bag of cocaine from their
car and “put narcotics on him.” However, in his motion to suppress, defendant acknowledged
that he had the drugs in his pockets but the officers performed an illegal search of his person.
Defendant’s petition “is properly dismissed where the allegations contained therein are
contradicted by the record from the original trial proceedings.” See People v. Deloney, 341 Ill.
App. 3d 621, 629 (2003).
¶ 50 Further distinguishing this case from Patterson, the misconduct alleged by defendant was
not the same as the criminal activity detailed in the press releases. Those articles stated that
Officer Guerrero and Officer Martinez were convicted of racketeering, conspiracy to distribute
narcotics, and armed robbery at the direction of the Latin Kings. Specifically, Officer Guerrero
acknowledged that in December 2006, he entered into the Hammond residence of a rival gang
member and, along with Officer Martinez, physically restrained him and others while the home
was searched and robbed. Officer Martinez committed a series of robberies from 2004 to 2006.

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 Specifically, he admitted to participating in the armed robbery of a deceased Latin Dragon
leader in Indiana, and he picked up and delivered packages of cocaine on multiple occasions
for two Latin King leaders. Defendant did not allege that he was a rival gang member or a
victim of an armed robbery. Rather, he alleged that he was framed by the officers when he
refused to cooperate with them and was threatened with violence if he complained or told
anyone what the officers “were up to.” Moreover, there have been no other complaints filed
against the officers that are “strikingly similar” to defendant’s allegations. See Patterson, 192
Ill. 2d at 145. Defendant’s new evidence is not of such conclusive character that it would
change the result upon retrial. Therefore, the trial court properly dismissed defendant’s
petition.

¶ 51 CONCLUSION
¶ 52 For the foregoing reasons, the trial court’s dismissal of defendant’s coram nobis petition is
affirmed. However, we reverse the dismissal of defendant’s section 2-1401 petition and
remand for further proceedings consistent with this opinion.

¶ 53 Affirmed in part and reversed in part; cause remanded.

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