2023 IL App (1st) 200217-U
FOURTH DIVISION
September 1, 2023
No. 1-20-0217
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Respondent-Appellee, )
)
v. ) No. 10 CR 1857
)
SERGIO MARTINEZ, ) Honorable Ramon Ocasio, III,
) Judge Presiding.
Petitioner-Appellant. )
JUSTICE DELORT delivered the judgment of the court.
Justices Mitchell and Lyle concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s dismissal of certain claims in petitioner’s
postconviction petition at the second stage because his petition did not make a substantial
showing of a constitutional violation for ineffective assistance of counsel.
¶2 Petitioner Sergio Martinez appeals the circuit court’s dismissal of his petition under the
Postconviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2018)) at the second stage,
No. 1-20-0217
arguing the court should not have dismissed the petition because it demonstrated substantial
constitutional violations. We affirm.
¶3 BACKGROUND
¶4 We discuss only the facts necessary for the disposition of the issues in this appeal. A
thorough recitation of the facts is included in our order affirming petitioner’s conviction and
sentence on direct appeal. See People v. Martinez, 2014 IL App (1st) 120002-U.
¶5 In sum, a jury found Martinez guilty of first-degree murder, and the circuit court sentenced
him to 60 years in prison. At trial, Martinez’s defense strategy was entirely centered on a self-
defense theory. He testified in his own behalf at the trial. Although not required to do so, the circuit
court engaged in a lengthy colloquy with Martinez on the record to ensure that he did not wish the
jury to consider a second-degree murder instruction.
¶6 On direct appeal, Martinez contended that: (1) the State failed to disprove his claim of self-
defense; (2) the circuit court erred in instructing the jury about limitations on the use of force in
self-defense by an initial aggressor; (3) the circuit court erred in failing to instruct the jury that a
non-aggressor has no duty to retreat before using force in self-defense; (4) the State made certain
remarks in closing argument which were not based on evidence; and (5) the circuit court abused
its sentencing discretion. Martinez, 2014 IL App (1st) 120002-U, ¶¶ 47-72.
¶7 This court affirmed, finding that: (1) a rational jury could have found, beyond a reasonable
doubt, that Martinez did not act in self-defense; (2) the jury instructions were proper; (3) the circuit
court had no duty to give instructions on its own initiative concerning Martinez’s theory of the
case; (4) Martinez did not suffer significant prejudice as a result of the State’s closing-argument
remarks; and (5) the trial court did not abuse its discretion by sentencing Martinez to 60 years for
first-degree murder. Id. This court also declined to reduce petitioner’s conviction from first-degree
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murder to second-degree murder, noting that since he himself rejected a second-degree murder
instruction, granting his appeal on that point “would offend all notions of fair play.” Id. ¶ 50.
¶8 In 2015, Martinez filed the postconviction petition at issue in this appeal. The petition
alleged that: (1) his trial counsel was ineffective; (2) his appellate counsel was ineffective; (3) he
was the victim of prosecutorial misconduct; and (4) he was actually innocent of the crime charged.
¶9 The circuit court advanced the petition to the second stage and appointed counsel. The
State moved to dismiss the petition. After briefing and argument, the circuit court dismissed almost
all claims. The court found that Martinez failed to state a valid claim that appellate counsel was
ineffective; that he failed to state a claim for prosecutorial misconduct; and that he failed to provide
new evidence for the court’s consideration and thus, failed to make a substantial showing of actual
innocence. However, the court advanced one of Martinez’s claims regarding his trial counsel’s
ineffectiveness for a third-stage evidentiary hearing. That claim was based on trial counsel’s
alleged failure to adequately communicate with petitioner and prepare him for his trial testimony.
¶ 10 Both petitioner and his trial counsel testified at the third-stage evidentiary hearing on the
ineffectiveness of counsel claim. After considering that testimony, the circuit court rejected
petitioner’s claim for relief, explaining: “[T]here was adequate pretrial communication between
Petitioner and [trial counsel]. Moreover, Petitioner’s testimony describing and demarcating the
scene in addition to explaining the facts to his counsel undermines his argument that he was
unprepared to testify. Therefore, Petitioner cannot show that further pretrial communication would
have altered the outcome of the case.” This appeal followed.
¶ 11 ANALYSIS
¶ 12 On appeal, Martinez presents no argument regarding the disposition of the particular
ineffective assistance of counsel claim which the circuit court denied after the third-stage
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evidentiary hearing. He has forfeited any claim of error regarding the third-stage evidentiary
hearing for failure to cite relevant authority. See Vancura v. Katris, 238 Ill. 2d 352, 369 (2010)
(failure to argue a point in the appellant’s opening brief results in forfeiture of the issue).
¶ 13 Instead, he argues only that the circuit court should not have dismissed two particular
claims at the second stage. These claims are that his trial counsel was ineffective for: (1)
misadvising him about the sentencing range for second-degree murder and thus causing him to
forego a second-degree murder instruction when given the choice; and (2) failing to object to
alleged outbursts in front of the jury by the victim’s mother during trial.
¶ 14 The Act provides a mechanism for criminal defendants to challenge a conviction on the
basis that it violates their state or federal constitutional rights. People v. Pendleton, 223 Ill. 2d 458,
471 (2006). “The purpose of a postconviction proceeding is to permit inquiry into constitutional
issues involved in the original conviction and sentences that were not, and could not have been,
adjudicated previously on direct appeal.” People v. English, 2013 IL 112890, ¶ 22.
¶ 15 A petition filed pursuant to the Act is subject to three stages of review. People v. Smith,
2015 IL 116572, ¶ 9. During the first stage of review, the circuit court must determine whether the
petition is “frivolous or patently without merit.” 725 ILCS 5/122–2.1(a)(2) (West 2018). If the
petition is not dismissed at the first stage, it will proceed to second-stage proceedings. People v.
Hommerson, 2014 IL 115638, ¶ 7.
¶ 16 The circuit court dismissed defendant’s petition at the second stage. At this stage, the
circuit court must accept the defendant’s well-pleaded allegations as true and determine whether
the petition makes a substantial showing of a constitutional violation. People v. Domagala, 2013
IL 113688, ¶ 35. A defendant makes a substantial showing when he demonstrates he will be
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entitled to relief if he can prove his allegations at the third-stage evidentiary hearing. Domagala,
2013 IL 113688, ¶ 35.
¶ 17 When evaluating an ineffective assistance of counsel claim, this court applies the two-part
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93
(1999). Under Strickland, a defendant claiming ineffective assistance “must show that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687.
¶ 18 “Strickland’s first prong sets a high bar.” (Internal quotation marks omitted.) Buck v. Davis,
580 U.S. 100, 118 (2017). To meet it, “the defendant must prove that counsel made errors so
serious, and that counsel’s performance was so deficient, that counsel was not functioning as the
‘counsel’ guaranteed by the sixth amendment.” Evans, 186 Ill. 2d at 93. In so doing, “ ‘the
defendant must overcome the strong presumption that the challenged action or inaction may have
been the product of sound trial strategy.’ ” People v. Manning, 241 Ill. 2d 319, 327 (2011) (quoting
People v. Smith, 195 Ill. 2d 179, 188 (2000)). “Because effective assistance refers to competent
and not perfect representation, mistakes in trial strategy or judgment will not, of themselves, render
the representation incompetent.” People v. Moore, 2012 IL App (1st) 100857, ¶ 43.
¶ 19 To demonstrate prejudice, the petitioner 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. “The fundamental concern underlying this test is ‘whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.’ ” People v. Potthast, 219 Ill. App. 3d 714,
720 (1991) (quoting Strickland, 466 U.S. at 686). We review the circuit court’s dismissal of a
postconviction petition at the second stage de novo. Pendleton, 223 Ill. 2d at 473.
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¶ 20 We begin with petitioner’s first claim of ineffective assistance of counsel. Petitioner claims
that his trial counsel misadvised him that the potential sentence for a second-degree murder
conviction was 20-45 years’ imprisonment, when it was only 4-20 years’ imprisonment, served at
50 percent. He offers two alternative theories as to why this constituted ineffective assistance.
First, he relied on counsel’s mistake of the law when forgoing a second-degree murder instruction;
and second, even if that decision fell under trial strategy, the “all-or-nothing” defense theory was
unreasonable because it was based on counsel’s mistake of law.
¶ 21 A defendant bears the burden of overcoming the strong presumption that his counsel’s
decision was the product of sound trial strategy. People v. Gacy, 125 Ill. 2d 117, 125 (1988).
Second-degree murder is a lesser mitigated offense of first-degree murder—not a lesser included
offense. People v. Wilmington, 2013 IL 112938, ¶ 48; see also People v. Newbern, 219 Ill. App.
3d 333, 352-53 (1991) (second-degree murder is a lesser offense because its penalties upon
conviction are lesser, and it is a mitigated offense because it is first-degree murder plus defendant’s
proof by a preponderance of the evidence that a mitigating factor is present). In Neasom, trial
counsel presented an all-or-nothing defense for first-degree murder which did not include a request
for a jury instruction on second-degree murder. There, the court ruled that advancing an all-or-
nothing defense “[h]as been recognized as a valid trial strategy and is generally not unreasonable
unless that strategy is based on counsel’s misapprehension of the law.” (Internal quotations
omitted.) People v. Neasom, 2017 IL App (1st) 143875, ¶ 43 (quoting People v. Spiller, 2016 IL
App (1st) 133389, ¶ 39, and People v. Walton, 378 Ill. App. 3d 580, 589 (2007)).
¶ 22 Here, the record indicates that the circuit court went to great lengths to ensure the defense
theory was the product of an informed choice. The court engaged in a lengthy and careful exchange
with petitioner, wherein petitioner specifically acknowledged and rejected the opportunity to
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instruct the jury on second-degree murder. Even so, as the State correctly argues, because second-
degree murder is not a lesser included offense of first-degree murder, the decision on whether to
instruct the jury on second-degree murder belongs to trial counsel as a matter of strategy, not to
the petitioner. In addressing a virtually identical argument in a case involving dismissal of a post-
conviction petition at the second stage, this court relied on Wilmington to explain: “Since [the
petitioner] did not have a personal right to decide whether he wanted a second-degree murder
instruction, he was not actually ‘waiving’ any right, there was no ‘unknowing waiver,’ and his trial
counsel did not provide ineffective assistance in advising him on the sentencing ranges (whatever
that advice may have been).” People v. Zareski, 2017 IL App (1st) 150836, ¶ 80.
¶ 23 At trial, petitioner pursued an all-or-nothing strategy centered around the affirmative
defense of self-defense. Martinez, 2014 IL App (1st) 120002-U, ¶¶ 3, 63. This was entirely
reasonable under the circumstances. The evidence was overwhelming that petitioner fired the shot
which killed the victim, and he admitted as much in his own testimony. Id. ¶ 41. Even if trial counsel
provided petitioner with the incorrect sentencing range for second-degree murder, that statement was
nothing more than an erroneous remark. The trial record, along with the allegations in the petition and
affidavit, show counsel understood that second-degree murder was a lesser offense that was punishable
by a lesser sentence than first-degree murder. Based on the applicable case law which instructs that
whether to pursue a second-degree murder instruction is an aspect of trial strategy, we cannot say
that petitioner has made a substantial showing of a constitutional violation on this issue.
¶ 24 We now address petitioner’s second ineffective assistance of counsel claim. He argues that
he made a substantial showing that trial counsel was ineffective for failing to object to emotional
outbursts from the victim’s mother, Mivian Sanchez, during trial. In support of this claim,
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petitioner submitted an affidavit from his own mother, Angela Martinez. We quote the affidavit in
full. Angela Martinez stated that she witnessed Mivian Sanchez:
“crying uncontrollably, and muttering the words ‘He killed my son he did it’ and his lawyer
is even saying it numerous times throughout trial. I leaned over to tell my husband and we
both after every day that trial was ending for the day would tell his lawyer. His lawyer told
us he would [be] sure to tell the judge but never did so.”
¶ 25 Petitioner claims that the failure to abate these outbursts constituted ineffective assistance
of counsel because both Angela and her husband told the trial counsel about the outbursts, and trial
counsel never brought it to the attention of the judge. The State maintains that this argument is
without merit because the affidavits failed to articulate well-pleaded facts establishing Mivian’s
outbursts took place and impacted the jury, and the trial transcript does not show that any of these
outbursts took place.
¶ 26 We again analyze these issues under the Strickland test for ineffective assistance of counsel
to determine whether petitioner has shown “that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
¶ 27 First, we address whether counsel’s performance was deficient. A defendant bears the
burden of overcoming the strong presumption that his counsel’s decision was the product of sound
trial strategy. Gacy, 125 Ill. 2d at 125. We take these allegations as true and in the light most
favorable to the petitioner. Domagala, 2013 IL 113688, ¶ 35. We therefore assume that Mivian
did in fact make outbursts during the court proceedings in the presence of the jury, and that defense
counsel did not speak up to prevent them. Logically, this could not be a sound trial strategy.
Therefore, the first prong of Strickland is met, and we turn to the second prong to see if the
petitioner was prejudiced by this action.
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¶ 28 The affidavit on this issue is woefully deficient. The affidavit does not indicate Mivian’s
proximity to the jury, whether a juror could have heard the statements, or even whether the jury
was in the room when they were made. While it would not be a sound trial strategy to fail to object
to an outburst from a victim’s family member, the facts presented are insufficient to support a
claim of ineffective assistance of counsel. Unsupported conclusional allegations in the petition, or
in the petitioner’s own affidavit, are not sufficient under the Act. People v. Jackson, 213 Ill. App.
3d 806, 811 (1991); see People v. Pierce, 48 Ill. 2d 48, 50 (1971); People v. Norris, 147 Ill. App.
3d 178, 180 (1986); see also People v. Phillips, 183 Ill. App. 3d 417, 423-24 (1989). That means
even introduced and viewed in a light most favorable to the petitioner, this evidence is insufficient.
Further, a larger issue presents itself. The court did not note any outbursts; there are no objections
of record; and again, we are left with a vague unsupported statement. As our state’s supreme court
has found in the past, in the absence of a sufficient record, we presume that the circuit court acted
properly. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
¶ 29 More importantly, we cannot discern how an objection to these outbursts would have
changed the result of the trial. As we have explained, petitioner did not dispute that he killed the
victim, and he embraced a self-defense strategy at trial. Our supreme court confronted more
inflammatory behavior in Perry, where a prosecutor disparaged the defendant before the jury, and
defense counsel failed to object. People v. Perry, 224 Ill. 2d 312, 345-47 (2007). On appeal, our
supreme court found that the disparagements were not sufficient to rise to the level of prejudice
required to receive a new trial. Perry, 224 Ill. 2d at 347-51. In People v. Jackson, a prosecutor
made two mischaracterizations during closing arguments, and defense counsel failed to object.
People v. Jackson, 2020 IL 124112, ¶¶ 78-81. Even there, the court found that it was still
insufficient to rise to the level of prejudice required to meet the Strickland test. Jackson, 2020 IL
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124112, ¶ 91. When disparagements made directly to the jury and incorrect facts are not enough
to rise to the level necessary for prejudice, it is difficult for this court to find that “crying” and
“muttering” by a victim’s mother that are not shown in the record rise to that level. Therefore,
while the petitioner may meet the first prong of the Strickland test on this issue, he did not meet
the second prong and cannot show prejudice as required under Strickland.
¶ 30 Accordingly, the circuit court did not err by dismissing both of the postconviction claims
at the second stage.
¶ 31 CONCLUSION
¶ 32 We affirm the circuit court’s dismissal of the postconviction petition at the second stage.
¶ 33 Affirmed.
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