People v. Calderon

2022 IL App (2d) 190968-U
No. 2-19-0968
Order filed February 25, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-258
)
JUAN CALDERON, ) Honorable
) Charles E. Petersen,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court.
Presiding Justice Bridges and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: (1) Defendant raised in his postconviction petition, and thus did not forfeit, his
argument on appeal that his trial counsel was ineffective for failing to object to the
victim’s testimony on cross-examination that defendant abused her on occasions
besides the charged incident. (2) Defendant forfeited his argument in his reply brief
that the victim’s testimony about the other abuse was nonresponsive to trial
counsel’s questions and, thus, that counsel could have objected to it. (3) Regardless
of whether trial counsel’s performance was deficient, defendant has not shown that
the victim’s testimony about the other abuse prejudiced him.

¶2 Defendant, Juan Calderon, appeals the summary dismissal of his petition under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). He claims that his petition

asserted the gist of a claim that he was denied the effective assistance of counsel where his trial
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counsel failed to object to the victim’s testimony, which counsel himself elicited, that defendant

had struck the victim on prior occasions. We affirm, holding that defendant’s petition did not

present an arguable claim that defendant was prejudiced by counsel’s alleged omission.

¶3 I. BACKGROUND

¶4 An indictment charged defendant with multiple offenses against M.C. occurring on

February 15, 2014. Counts I and II charged aggravated criminal sexual assault (bodily harm) (720

ILCS 5/11-1.30(a)(2), 11-1.20(a)(1) (West 2014)). Count I alleged digital penetration of M.C.’s

vagina and count II alleged digital penetration of her rectum. Counts III, IV, and V charged

criminal sexual assault (use or threat of force) (720 ILCS 5/11-1.20(a)(1) (West 2014)). Counts

III and IV alleged the same acts of penetration as counts I and II, while count V alleged that

defendant “made M.C. perform an act of fellatio on him.” Count VI charged aggravated domestic

battery (strangulation) (720 ILCS 5/12-3.2, 3.3(a-5), (West 2014)). Counts VII, IX, and X charged

domestic battery (720 ILCS 5/12-3.2(a) (West 2014)). Count VIII charged unlawful restraint (720

ILCS 5/10-3(a) (West 2014)).

¶5 On the first day of defendant’s jury trial, the State dismissed counts III, IV, VIII, IX, and

X.

¶6 M.C., testifying through an interpreter, stated that she met defendant in June or July of

2013 and married him that September. The marriage was troubled from the start. On February

15, 2014, she decided to meet with defendant to talk about a divorce. Because he had threatened

her in the past, M.C. intended to meet defendant in a public place.

¶7 The two agreed that M.C. would pick defendant up in her truck at a convenience store.

When they met, defendant said that he wanted to go to a liquor store to cash a check. At the store,

he bought alcohol. He then insisted that he drive. They argued as defendant drove. They stopped

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at a park, where defendant grabbed M.C. by the hair and demanded oral sex. M.C. complied.

Defendant called her an “illegal whore” and told her that she was getting what illegals deserved.

Eventually, they left the park and drove to a gas station. They remained there for at least an hour

and continued to argue. At some point, defendant backhanded M.C. across her face. When she

tried to calm him, he repeatedly hit her in the face. When she tried to push him away, he bit her

left elbow. As they struggled, defendant placed his hands around her neck and squeezed. As she

was turned away from him, trying to escape the truck, he grabbed the back of her pants—she

described them as loose jeans—and pulled them down to her thighs. He then forced several of his

fingers into her rectum and at least one of his fingers into her vagina. She fled the truck and asked

a customer at the gas station to help her.

¶8 On cross-examination, defense counsel questioned M.C. about disparities between her

testimony and statements she made to the police on February 18, 2014. During that questioning,

the following exchange occurred:

“Q. *** [Y]ou arrived at the gas station, right?

A. Yes.

Q. You told the officers on February 18th that’s the first time he slapped you?

A. [Defendant] had already hit me before.

Q. When did he hit you before?

A. When we lived together he was hitting me constantly.

Q. I’m not asking questions about that.

[ASSISTANT STATE’S ATTORNEY]: I’m going to object. That was the question

he asked.

THE COURT: Sustained.

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[DEFENSE ATTORNEY]: For the last ten minutes I’ve been asking you questions

about your statement about February 18th.

A. Yes.

Q. And you testified already with the State asking you questions. Do you remember

that?

A. Yes.

Q. On the night of February 15, 2014, prior to the gas station, when did [defendant]

hit you?

A. When he let me go, after he made me have sex with him, that was the first hit,

on my chest.

Q. What about the time he hit you in the face?

A. That was when we got to the gas station.”

¶9 M.C. agreed on cross-examination that she was not a legal resident. She admitted that a

social worker had informed her of the “U visa” program. M.C. was aware that a U visa would

allow her to remain in the country. Asked if her purpose for testifying was to obtain a U visa,

M.C. answered, “I’m not looking for that. It’s just simply justice.”

¶ 10 South Elgin police officer Victor Wiacek testified that, on February 15, 2014, he was

dispatched to a gas station in South Elgin. Defendant was standing outside the station’s store. A

group inside the store was clustered around a crying woman. Her clothing was in disarray, her

mouth was bleeding, and her face was bruised. She also had a bite mark on her elbow. A bystander

told Wiacek that defendant had hurt the woman. Wiacek placed defendant in the squad car while

he investigated the incident. Wiacek noticed that defendant’s fly was fully unzipped.

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¶ 11 South Elgin police detective Brian Polkinghorn testified that he interviewed defendant in

the early morning of February 16, 2014. Defendant claimed that he and M.C. had argued while

she was driving and that she hit him. He hit her back in self-defense. As to the bite mark on

M.C.’s arm, defendant believed that M.C. had bitten herself to get him into trouble. Defendant

denied that he had any sexual contact with M.C. the previous night (February 15). Polkinghorn

testified that, as he and defendant exited the interview room, they encountered Wiacek, who asked

defendant why his fly was fully unzipped when he was at the gas station. Defendant then admitted

that M.C. had touched his penis, he had touched her vagina, and she had given him oral sex.

¶ 12 The jury found defendant guilty on counts I and II (aggravated criminal sexual assault—

digital penetration of vagina and rectum) and VII (domestic battery). The jury found him not

guilty on counts V (criminal sexual assault—penis in mouth) and VI (aggravated domestic

battery—strangulation).

¶ 13 On direct appeal, defendant argued three points: “(1) the prosecutor’s rebuttal argument

was improperly inflammatory and denied him a fair trial; (2) the State failed to prove a nexus

between the sexual assaults and [M.C.’s] injuries, such that his convictions should be reduced to

criminal sexual assault; and (3) the State argued only one form of bodily injury and thus under

one-act, one-crime principles, only one sexual assault could be aggravated.” People v. Calderon,

2018 IL App (2d) 160185-U, ¶ 2. We rejected all three points and affirmed. Calderon, 2018 IL

App (2d) 160185-U, ¶¶ 2, 51.

¶ 14 On July 26, 2019, defendant filed a pro se postconviction petition under the Act, raising

multiple claims of ineffective assistance of trial and appellate counsel. As relevant in this appeal,

defendant asserted that (1) his trial counsel “was ineffective for failing to object to evidence from

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[M.C.] that [defendant] had beaten her before” and (2) his appellate counsel was ineffective for

failing to argue that trial counsel was ineffective in that regard.

¶ 15 On October 22, 2019, the trial court summarily dismissed the petition at the first stage of

postconviction proceedings. See 725 ILCS 5/122-2.1(a)(2) (West 2018). Defendant filed a timely

notice of appeal.

¶ 16 II. ANALYSIS

¶ 17 Defendant argues that the trial court erred in dismissing his claim that (1) his trial counsel

was ineffective for failing to object to M.C.’s testimony that defendant had beaten her before

February 15, 2014, and (2) his appellate counsel was ineffective for failing to argue trial counsel’s

ineffectiveness. Defendant argues that trial counsel’s failure to object was unreasonable because

M.C.’s testimony constituted other-crimes evidence, which under Illinois law is inadmissible

except in narrow circumstances. See Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

¶ 18 The Act provides a three-stage process for the adjudication of a postconviction petition.

People v. Buffer, 2019 IL 122327, ¶ 45. At the first stage, the trial court determines whether the

petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018).

Because most petitions are drafted at the first stage by defendants with little legal knowledge or

training, the threshold for survival is low. People v. Hodges, 234 Ill. 2d 1, 9 (2009). “The

allegations of the petition, taken as true and liberally construed, must present the gist of a

constitutional claim.” People v. Hatter, 2021 IL 125981, ¶ 24. “[T]o survive summary dismissal,

a petitioner is only required to include a limited amount of detail and need not present formal legal

arguments or citations to legal authority.” Hatter, 2021 IL 125981, ¶ 24. We review de novo the

summary dismissal of a postconviction petition. Hatter, 2021 IL 125981, ¶ 24.

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¶ 19 We review ineffective-assistance-of-counsel claims under the familiar principles of

Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective assistance

under Strickland, a defendant must show both that counsel’s performance ‘fell below an objective

standard of reasonableness’ and that the deficient performance prejudiced the defense.” Hodges,

234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 688). To establish prejudice, “[t]he defendant

must show 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. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome” of the proceeding.

Strickland, 466 U.S. at 694. Strickland explained:

“It is not enough for the defendant to show that the errors had some conceivable

effect on the outcome of the proceeding. Virtually every act or omission of counsel would

meet that test, [citation] and not every error that conceivably could have influenced the

outcome undermines the reliability of the result of the proceeding.” Strickland, 466 U.S.

at 693.

¶ 20 Claims of ineffective assistance of appellate counsel are likewise evaluated under the

Strickland standard. People v. Enis, 194 Ill. 2d 361, 377 (2000).

“A defendant who claims that appellate counsel was ineffective for failing to raise an issue

on appeal must allege facts demonstrating that such failure was objectively unreasonable

and that counsel’s decision prejudiced defendant. If the underlying issue is not meritorious,

then [the] defendant has suffered no prejudice.” Enis, 194 Ill. 2d at 377.

¶ 21 In Hodges, the supreme court provided the following guidance for applying Strickland at

the first stage of postconviction proceedings under the Act:

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“a petition alleging ineffective assistance may not be summarily dismissed if (i) it is

arguable that counsel’s performance fell below an objective standard of reasonableness

and (ii) it is arguable that the defendant was prejudiced.” (Emphases added.) Hodges, 234

Ill. 2d at 17.

¶ 22 Notably, if a reviewing court can dispose of an ineffectiveness claim on the basis that the

defendant suffered no prejudice, it need not address whether counsel’s performance was deficient.

E.g., People v. Schnoor, 2019 IL App (4th) 170571, ¶ 57.

¶ 23 We begin by addressing the State’s claim that defendant has forfeited his ineffectiveness

argument because it is different from the ineffectiveness argument he raised in his petition. See

People v. Jones, 213 Ill. 2d 498, 505 (2004) (a defendant may not raise for the first time on appeal

a claim that was not brought in the postconviction petition). The State construes defendant’s

petition as claiming that trial counsel was ineffective for failing to object to M.C.’s testimony about

his prior abuse of her. Defendant departs from that position, according to the State, by arguing on

appeal that trial counsel was ineffective for eliciting M.C.’s testimony about the prior abuse.

¶ 24 We reject the State’s characterization. In our view, the thrust of defendant’s argument on

appeal is—consistent with his petition—that trial counsel was ineffective for failing to object to

M.C.’s testimony. In his opening brief, defendant quotes the pertinent section of defendant’s

cross-examination of M.C. (supra ¶ 8) and then states: “At no point did trial counsel object to the

admission of this testimony [from M.C.] ***. This was arguably unreasonable.” (Emphasis

added.) Proceeding to develop an argument for that conclusion, defendant first notes that “[t]he

rules of evidence prohibit the use of evidence that the defendant had committed other crimes when

its only relevance is to show the defendant’s propensity to commit the charged offense.” Applying

this principle, defendant contends that M.C.’s testimony to prior instances of abuse was

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inadmissible because it “was not probative of any issue in this case other than to prove

[defendant’s] bad character.” “As such,” defendant continues, “trial counsel should have

immediately asked the court to stricken [sic] this testimony and tell the jury to disregard it. Trial

counsel’s failure to do so was at least arguably deficient.” (Emphasis added.) Defendant continues

in the next paragraph:

“Likewise, it is at least arguable that appellate counsel should have raised this issue

on appeal. For the reasons just stated, by eliciting M.C.’s testimony regarding inadmissible

other crimes evidence, then failing to object or ask the court to strike that testimony, it was

at least arguable that trial counsel’s performance was objectively unreasonable.”

(Emphasis added.)

¶ 25 In his reply brief, defendant remarks that, in his opening brief, he “argued that his post-

conviction claim that his appellate counsel was ineffective for failing to raise trial counsel’s

ineffectiveness for failing to object to other crimes evidence had an arguable basis in both law and

fact, so his petition should have advanced to second-stage proceedings.” (Emphasis added.)

Responding to the State’s forfeiture argument, defendant states: “To be clear, it is [defendant’s]

position that by eliciting M.C.’s testimony regarding inadmissible other crimes evidence, then

failing to object and ask the court to strike that testimony, trial counsel’s performance was at least

arguably objectively unreasonable.” (Emphasis added.)

¶ 26 From this review of his briefs, we conclude that defendant’s argument on appeal is that

trial counsel was ineffective for failing to object to M.C.’s testimony, not that trial counsel was

ineffective for asking the questions that elicited M.C.’s testimony. Thus, we reject the State’s

claim of forfeiture.

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¶ 27 Moving to the merits of defendant’s argument, we note that defendant’s reply brief

evidently seeks to fill a fatal gap in his opening argument. That argument, as shown, is that trial

counsel should have objected to M.C.’s testimony that defendant struck her on prior occasions.

The difficulty with this contention, however, is that the testimony was elicited during trial

counsel’s own examination of M.C. “A defendant can neither complain of the admission of

testimony which was invited by his own tactics at trial [citations], nor object to evidence of another

crime where he himself has introduced evidence of that other crime [citations].” People v. Owens,

46 Ill. App. 3d 978, 994 (1977). “If a defendant procures, invites, or acquiesces in the admission

of evidence, even though it be improper, he cannot complain.” Owens, 46 Ill. App. 3d at 994.

Presumably to avoid the application of these principles, defendant’s reply brief characterizes

M.C.’s testimony of past abuse as “non-responsive,” implying that trial counsel was not

responsible for that testimony. Based on the whole of trial counsel’s exchange with M.C. (supra

¶ 8), when counsel asked, “When did [defendant] hit you before?”, counsel meant, “When, during

the February 15th incident, did defendant hit you before he slapped you at the gas station?” Thus,

defendant asserts that M.C.’s answer, alluding to prior occasions of abuse, did not fit the question

asked. However, this argument, because it was raised for the first time in defendant’s reply brief,

is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Forfeiture aside, M.C.’s answer was

responsive; she reasonably interpreted trial counsel as asking about abuse on prior occasions.

¶ 28 In any event, we need not determine whether trial counsel was arguably ineffective either

for eliciting the testimony of past abuse or for failing to object to it, because there was no arguable

prejudice to defendant. Defendant suggests that M.C.’s testimony that defendant struck her on

prior occasions bolstered M.C.’s questionable credibility:

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“As evidenced by the acquittals [on some counts], the jury did not believe all of M.C.’s

testimony. The jury did not believe M.C. when she testified that she was choked, or when

she alleged that she was forced to perform oral sex. The jurors also asked questions about

the U-Visa program, indicating they were considering M.C.’s motives. With regard to the

most severe charges, M.C.’s allegations have an air of the incredible about them, where

she describes having her pants pulled down far enough for digital penetration of both her

anus and vagina while she is moving away from the defendant. It is at least arguable that,

in the absence of the improper other crimes evidence, the jurors would have acquitted

[defendant] of all the charges.”

This argument is unpersuasive. If the jury had a concern that M.C. was exaggerating the charged

incident with the hope of improving her chances for a U visa or was generally unreliable, her

testimony that defendant hit her on prior occasions could not buttress her credibility or make her

more sympathetic. Her claim of prior abuse was not inherently more credible than any other part

of her testimony. Indeed, if the jury was inclined to believe that she was exaggerating about the

incident itself, her allegation of prior abuse would have only increased that impression. To be

sure, if someone else had testified to the prior abuse, such testimony could have been highly

prejudicial, but that is not what happened here. M.C.’s testimony about prior abuse did not

undermine confidence in the outcome of the trial.

¶ 29 Since defendant has not shown that trial counsel was arguably ineffective, he has

necessarily failed to show that appellate counsel was arguably ineffective for neglecting to argue

trial counsel’s ineffectiveness. Thus, the trial court did not err in dismissing defendant’s petition

as frivolous and patently without merit.

¶ 30 III. CONCLUSION

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¶ 31 For the reasons stated, we affirm the circuit court of Kane County’s dismissal of

defendant’s postconviction petition.

¶ 32 Affirmed.

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