Opinion
No. 1-16-2287 No. 1-16-2288 (Cons.)
06-24-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMAL BARGHOUTI and EIAD BARGHOUTI, Defendants-Appellants.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court Of Cook County.
No. 02 CR 23680 (01) 02 CR 23680 (02)
The Honorable Stanley Sacks, Judge Presiding.
JUSTICE WALKER delivered the judgment of the court.
Presiding Justice Mikva and Justice Griffin concurred in the judgment.
ORDER
¶ 1 Held: Defendants' affidavits sufficiently supported their claim that counsel provided ineffective assistance by misinforming them, during plea negotiations, of the range of possible sentences. Impeaching the victim on collateral matters would not have affected the outcome of the trial. An allegation that the trial court imposed an excessive sentence within statutory limits did not raise an issue cognizable in postconviction proceedings. An attorney provides ineffective assistance by failing to interview and present to the court witnesses who would offer mitigation evidence.
¶ 2 Jamal and Eiad Barghouti appeal from the dismissals of their postconviction petitions, filed after the trial court found them guilty of the aggravated criminal sexual assault and
aggravated kidnapping of K.M., a 17-year-old girl. Jamal and Eiad both argue that their petitions make substantial showings that their attorneys provided ineffective assistance by giving them erroneous advice during plea negotiations, and by failing to interview and present testimony from witnesses who would impeach K.M. Jamal also argues that his petition makes a substantial showing that the trial court violated his constitutional rights by imposing a sentence of 35 years in prison without adequately considering his youth. Eiad argues that his counsel also provided ineffective assistance by failing to interview and present testimony from mitigation witnesses.
¶ 3 We hold that the petitions do not substantially show that the failure to interview some witnesses before trial affected the outcome of the trial. Jamal has not substantially shown that the trial court violated his constitutional rights in sentencing. We reverse and remand for evidentiary hearings on both defendants' claims that their attorneys gave erroneous advice in plea negotiations and on Eiad's claim that his attorney failed to interview and present available witnesses in mitigation.
¶ 4 I. BACKGROUND
¶ 5 Marcelle Garcia heard screams coming from an SUV parked in the alley near her home around 11 p.m. on August 17, 2002. She called 911. Officer Vincent Francone of the Chicago Police Department also heard screams coming from the SUV. He found K.M. naked in the SUV, and saw her jeans dangling from a telephone wire. Police arrested Jamal, Eiad, and Jose Garcia (no relation to Marcelle) at the scene after K.M. accused them of rape. Prosecutors charged the three men with aggravated criminal sexual assault and aggravated kidnapping.
¶ 6 A. Trial
¶ 7 The court held a joint trial on the charges against Jamal and Eiad. The witnesses agreed on some background facts. K.M. met Jamal in July 2002, and she gave him her phone number. He called her several times over the following weeks. On August 17, 2002, he invited her to come to a picnic. She did not tell her parents where she was going. A car with Jamal as a passenger came to her home to pick her up around 4 p.m. She stayed at the picnic until dusk. Some of the picnickers decided to go to a party. K.M. got into a car with Jamal, traveled some distance from the picnic, and entered into Jose's SUV with Jose and Eiad. Jose drove them to the alley where Marcelle and Officer Francone heard K.M. screaming.
¶ 8 The prosecution's witnesses disagreed with defense witnesses on some other details. K.M. testified that she did not drink or smoke at the picnic, and she did not kiss or engage in foreplay with Jamal. Around 7:30 p.m., she asked Jamal to take her home. They got into one car, and later they switched to the SUV Jose drove. Eiad, while laughing, pinched and slapped her, and Jamal kissed her neck. She told them to stop. Eiad and Jose got out of the SUV. Jamal pushed K.M. down on the back seat and pulled off her pants and underpants. Jamal passed the pants to Eiad, who threw them over the telephone wire. Jamal had intercourse with K.M., while she was crying and telling him to stop. Eiad pushed Jamal off and licked K.M.'s vulva, then pushed his penis into her vagina as she screamed and cried. Eiad told her that if she did not shut up he would shoot her. Then, Jose mounted K.M. while Eiad held her down. She kept crying and saying, "stop." Eiad got back on top of her shortly before police arrived.
¶ 9 Marcelle testified that she was in her backyard near the alley, when she heard a woman sounding distressed, saying, "stop, stop," and a man forcefully said, "shut up, shut up." Marcelle ran into her home to call 911.
¶ 10 Francone testified that when he arrived in response to a call, he too heard a woman screaming, "stop, stop." He saw Jose get out of the driver's side of the SUV, frantically buttoning his shorts, wearing no shirt. Jamal pulled up his shorts as he got out of the passenger side of the SUV. When Francone opened the back door of the SUV, he found Eiad, naked, on top of K.M.
¶ 11 Jamal testified that at the picnic K.M. drank three beers and kissed him. K.M. wanted to go to the party after the picnic. She and Jamal got into a car another picnicker drove, and they stopped at a nearby store where they picked up more people headed to the party. K.M. sat on Jamal's lap in the car. At another stop, they got into a different car. K.M. kissed Jamal repeatedly as he caressed her breasts and put his finger into her vagina. At yet another stop they got into Jose's SUV with Eiad.
¶ 12 According to Jamal, when they got to the alley, he and K.M. smoked marijuana. Jose and Eiad left the SUV, and Jamal attempted to have intercourse with K.M. He got out of the SUV to urinate, and when he returned he found K.M. kissing Jose. Claiming to be embarrassed, Jamal went to talk to Eiad. K.M. screamed, "stop, stop," and Jose called K.M. a "stupid bitch." Jose got out of the SUV holding his penis and K.M.'s pants. He said K.M. cut his penis, and he threw her pants over the telephone wire. Jamal and Eiad went to the SUV to ask K.M. what happened. She said Jose "nutted" in her. As police arrived, K.M. cried, "I can't get caught like this; my dad will kill me."
¶ 13 Eiad largely echoed Jamal's testimony. He saw K.M. drinking beer at the picnic. In the SUV parked in the alley, K.M. said, "stop, stop," and Jose said, "you stupid bitch." Jose got out of the SUV holding his penis and K.M.'s pants, which Jose threw over the wire. Eiad testified that he had no sexual contact with K.M., and he did not hold her down for Jose. Eiad contradicted Francone's testimony on two points in particular. Eiad said that he had not taken off his pants, which remained on when police arrived. Police found him near, not in the SUV.
¶ 14 The court found Jamal and Eiad guilty as charged. Neither defendant called any witnesses at the sentencing hearing. The trial court sentenced Jamal to 35 years in prison and Eiad to 45 years in prison. Both appealed, and the appellate court affirmed both defendants' convictions and sentences. People v. Barghouti, Nos. 1-06-3448 and 1-06-3465 (consolidated) (2009) (unpublished order under Supreme Court Rule 23).
¶ 15 B. Postconviction Proceedings
¶ 16 Both defendants filed postconviction petitions which the trial court dismissed. The appellate court reversed both judgments and remanded to advance the petitions to the second stage of postconviction proceedings. People v. Jamal Barghouti, 2013 IL App (1st) 112373; People v. Eiad Barghouti, 2013 IL App (1st) 110584.
¶ 17 In the amended postconviction petitions, both defendants alleged that before trial, their attorneys told them the prosecutor offered to recommend sentences of 12 years in prison in exchange for guilty pleas. According to their affidavits, and the affidavit of their father, who took part in the plea negotiations, the trial attorneys advised them that if the court found Jamal and Eiad guilty, Jamal would be eligible for probation, and the court would probably
sentence Eiad to no more than 10 years in prison. Trial counsel did not tell Jamal that he faced a sentence of 6 to 60 years in prison if the court found him guilty as charged. Trial counsel did not tell Eiad that he faced a sentence of 6 to 120 years in prison if the court found him guilty as charged. In the postconviction petitions, Jamal and Eiad alleged that they rejected the plea bargain because they did not know the possible sentences the trial court could impose.
¶ 18 Jamal and Eiad also alleged that their trial attorneys failed to interview six witnesses who could have refuted parts of K.M.'s testimony. They attached notarized affidavits from Edward Chavez, Luis Jaime, Juan Palma, Graciela Chavez, Laura Carillo, and Christopher Dewey. Edward Chavez said that K.M. drank beer and kissed Jamal at the picnic. Jaime and Palma said K.M. drank beer and she wanted to go to the party after the picnic. Graciela Chavez said she saw K.M. with Jamal at the store where they stopped after the picnic, and K.M. seemed to be happy with Jamal. Carillo, Eiad's wife, said she met Eiad after the picnic, and he was riding in a car in which K.M. was not a passenger. Carillo's affidavit conflicted with K.M.'s testimony about when and where Eiad joined Jamal in Jose's SUV.
¶ 19 Dewey said that in September 2002, a month after the picnic, he had a sexual relationship with K.M. He averred:
"My relationship with [K.M.] ended when [K.M.] asked me to give her some money. *** [K.M.] told me that if I did not provide her with money, she would make a sexual assault complaint against me to the police."
¶ 20 Jamal argued in his amended petition that the court violated his constitutional rights by imposing an extended sentence on him without sufficiently considering his youth. He was 18 years old on August 17, 2002.
¶ 21 Eiad claimed that his attorney provided ineffective assistance of counsel by failing to interview witnesses and present evidence in mitigation. Carillo said in her affidavit that Eiad is a loving and caring father who worked hard to support Carillo and their children. Eiad's mother also described Eiad as a loving person who worked to provide for his family. She added that Eiad "adapted to *** street life by becoming friends with the wrong kind of people," and she blamed herself "for allowing him to associate with those kind of people that bad influenced him." A co-worker, Edward Chavez, described Eiad as a person who worked hard to support his family. Eiad's aunts said he sometimes volunteered to help residents at a retirement home.
¶ 22 The trial court granted the State's motion to dismiss both postconviction petitions. Jamal and Eiad now appeal, and we consolidated the appeals.
¶ 23 II. ANALYSIS
¶ 24 On appeal defendants argue that their petitions make a substantial showing of ineffective assistance of counsel because counsel gave erroneous advice concerning the sentence defendants would face and failed to interview and present witnesses for trial. Jamal argues that the trial court violated the constitution by sentencing him to 35 years without considering his youth. We review the dismissals of the petitions de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
¶ 25 "The second stage of postconviction review tests the legal sufficiency of the petition. Unless the petitioner's allegations are affirmatively refuted by the record, they are taken as true, and the question is whether those allegations establish or 'show' a constitutional violation. In other words, the 'substantial showing' of a constitutional violation that must be made at the second stage (citation) is a measure of the legal sufficiency of the petition's well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to relief." (Emphasis omitted.) People v. Domagala 2013 IL 113688, ¶ 35. At the second stage of postconviction proceedings, the trial court may dismiss any individual claim for failure to make a substantial showing of a constitutional violation, while advancing other claims to an evidentiary hearing. People v. Lara, 317 Ill. App. 3d 905, 908 (2000). We review separately each of defendants' claims.
¶ 26 A. Pretrial Advice
¶ 27 The State contends that the defendants did not sufficiently support their claims that counsel advised them incorrectly in plea negotiations. Section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 (West 2016)) directs the petitioner to attach to his petition "affidavits, records, or other evidence supporting its allegations or *** state why the same are not attached." The evidence required depends on the nature of the allegations. People v. Hall, 217 Ill. 2d 324, 333 (2005).
¶ 28 In Hall, the defendant claimed that his attorney gave him erroneous advice about defenses and the sentence he would face if he went to trial. He attached only his own affidavit concerning the discussion with his attorney. The Hall court found that the evidence met the requirements of section 122-2. The court said, "the circumstances of this case permit
a reasonable inference that the only people present during this consultation were defendant and his attorney. Given these circumstances, the only affidavit defendant could have furnished to support his allegations, other than his own, was that of his attorney. As noted in Williams, the 'difficulty or impossibility of obtaining such an affidavit is self-apparent.' " Hall, 217 Ill. 2d at 333, (quoting People v. Williams, 47 Ill. 2d 1, 4 (1970).
¶ 29 Here, the attorneys spoke with Jamal, Eiad, and their father. Jamal, Eiad, and their father signed affidavits supporting the postconviction petition. Jamal and Eiad, like the defendant in Hall, had little chance of obtaining a supporting affidavit from the allegedly negligent attorneys. The State suggests that Jamal and Eiad needed to obtain an affidavit from an assistant State's Attorney about the offer. We find the likelihood of an assistant State's Attorney supplying such an affidavit quite as remote as the likelihood of defense counsel confessing incompetence in an affidavit. Following Hall, we find the documentation sufficient to meet the requirements of section 122-2 of the Act.
¶ 30 The State, relying on People v. Hale, 2013 IL 113140, argues that the defendants have not substantially shown ineffective assistance of counsel because defendants have not shown that they rejected the alleged offer because of counsel's erroneous advice. The Hale decision did not address the adequacy of the pleadings. After a third stage hearing on the defendant's postconviction petition in Hale, the trial court found the evidence insufficient to show that the defendant would have accepted the plea bargain. The Hale court held that the trial court's finding was not against the manifest weight of the evidence. Hale, 2013 IL 113140, ¶ 24.
¶ 31 Jamal and Eiad both stated in their affidavits that if counsel had advised them correctly of the sentencing ranges they faced if convicted, they would have accepted the plea bargain.
We do not resolve credibility issues at this stage of post-conviction proceedings. Domagala 2013 IL 113688, ¶ 35. Nothing in the record contradicts defendants' assertions of what they would have done. We find that the postconviction petitions include sufficient allegations that defendants would have accepted plea bargains had their attorneys advised them correctly about the range of possible sentences.
¶ 32 To show that the plea bargaining advice prejudiced them, the defendants must also show a reasonable probability that the court would not have rejected the proposal. People v. Williams, 2016 IL App (4th) 140502, ¶ 29. The trial judge here held that he would not have agreed to sentence Jamal and Eiad to 12 years in prison. Throughout most of the pretrial proceedings in this case, a different judge presided over the case. That judge may have put more weight on the advantage of saving the cost of a trial and of not subjecting K.M. to the trauma of reliving the incident. We find a reasonable probability that the trial court would not have rejected the proposed plea bargain. See Id., ¶¶ 43-44. Accordingly, we reverse the judgment of the trial court and remand for an evidentiary hearing on Jamal's and Eiad's claims that their attorneys provided ineffective assistance by advising them incorrectly, during plea negotiations, about the range of possible sentences.
¶ 33 B. Trial Witnesses
¶ 34 Jamal and Eiad claim that their attorneys provided ineffective assistance by failing to interview and present at trial six witnesses who would contradict parts of K.M.'s testimony. The witnesses would have testified that K.M. drank beer at the picnic, kissed Jamal, and wanted to go to the party later. Jamal and Eiad argue that the witnesses would have given the court reason to disbelieve K.M.'s assertions about what happened in the SUV. One potential
witness, Dewey, would cast doubt on K.M.'s testimony, as Dewey would testify that K.M. extorted money from him by threatening to accuse him, falsely, of sexual assault.
¶ 35 An attorney's "failure to interview witnesses may indicate incompetence, particularly when the witnesses are known to trial counsel and their testimony may be exonerating. [Citation.] Whether a failure to investigate amounts to incompetency depends upon the value of the evidence to the case." People v. Steidl, 177 Ill. 2d 239, 256 (1997). We find that the proposed evidence here had little value. Impeachment of K.M. on details about the picnic would have no effect on the credibility of Marcelle Garcia and Officer Francone. Marcelle testified that she heard screams of "stop, stop," coming from the SUV, and the screams led Marcelle to call 911. Officer Francone testified that when he arrived at the scene, minutes after being dispatched, he too heard screams of "stop, stop." He saw Jose and Jamal get out of the SUV, buttoning their shorts, and he found Eiad naked on top of K.M. The screams belie defendants' claim that K.M. consented to having sex with Jose and Jamal. Francone's testimony flatly contradicts Eiad's testimony that he had no sexual contact with K.M., and he had his pants on when police found him near the SUV. The failure of Eiad and Jamal to stop the assault between the time K.M. first screamed "stop, stop," and the time police arrived, contradicts their account of the assault. None of the proposed witnesses significantly affect the evidence that Jamal and Eiad committed aggravated criminal sexual assault.
¶ 36 The proposed witnesses would have testified that K.M. agreed to go to the party, contradicting her testimony that she got in the SUV because Jamal told her he would take her home. None of the proposed witnesses would testify that K.M. asked to go to an alley for Jose, Jamal, and Eiad to have sex with her. If Jamal and Eiad deceived K.M. by telling her
they would take her to a party, they committed aggravated kidnapping just as much as if they deceived her by telling her they would take her home. See People v. Reeves, 385 Ill. App. 3d 716, 726 (2008). None of the proposed testimony substantially changes the credibility of the essential evidence concerning the charges. We find that Jamal and Eiad have not made a substantial showing that the failure to interview the six proposed witnesses made any difference to the outcome of the trial. The trial court need not hear evidence about the failure to interview trial witnesses on remand.
¶ 37 C. Jamal's Sentence
¶ 38 Jamal argues that the trial court violated the constitution by sentencing him to 35 years in prison without sufficiently taking into account his youth. The sentence falls within the range permitted by statute for the crimes charged. See 720 ILCS 5/12-14(a)(4), (d); 730 ILCS 5/5-8-1(a)(3); 730 ILCS 5/5-5-3.2(b)(5) (West 2002). The sentence does not amount to a de facto life sentence. People v. Buffer, 2019 IL 122327, ¶ 40. Jamal argues that the trial court imposed an excessive sentence. "[W]here the sentence imposed is within the statutory limits prescribed for the offense of which the defendant is convicted, the issue of sentence excessiveness does not involve a constitutional question." People v. Rife, 18 Ill. App. 3d 602, 610 (1974). "[T]he allegation of excessiveness raises no issue cognizable under the Post-Conviction Hearing Act." People v. Ballinger, 53 Ill. 2d 388, 390 (1973). The trial court need not consider evidence concerning Jamal's sentence on remand.
¶ 39 D. Eiad's Mitigation Witnesses
¶ 40 Finally, Eiad argues that he made a substantial showing that his attorneys provided ineffective assistance by failing to interview and present several witnesses in mitigation.
"[C]ounsel has a duty to investigate potential sources of mitigation evidence, or to have a reason not to make such an investigation. [Citation.] If mitigation evidence exists, counsel has the duty to introduce it in support of the defendant." People v. Griffin, 178 Ill. 2d 65, 86 (1997). "[J]udicial scrutiny of defense counsel's competency in decisions regarding presentation of mitigating evidence is highly deferential to counsel's judgment. [Citations.] However, such deference is not warranted where there is proof that the lack of mitigating evidence is due to counsel's failure to properly investigate and prepare the defense." People v. Orange, 168 Ill. 2d 138, 170 (1995).
¶ 41 Eiad averred in his affidavit that he named several witnesses for counsel to contact regarding mitigation evidence. The named witnesses signed affidavits stating that the attorney did not contact them, and the witnesses detailed the evidence they would have given if called to testify. Eiad's attorney presented no witnesses in mitigation.
¶ 42 The State compares this case to Griffin, 178 Ill. 2d 65, and People v. Franklin, 167 Ill. 2d 1 (1995). In Griffin, the trial court found the defendant guilty of murder, and defense counsel presented in mitigation only one witness other than the defendant. Counsel relied on the presentence investigation report for information about the defendant's childhood, mental health, and prior crimes. The Griffin court found, "counsel's performance was clearly a strategic decision." Griffin, 178 Ill. 2d at 86-87. The court held that the proposed mitigation had little value, especially because the defendant "committed the murder *** only two months after his parole from prison." Griffin, 178 Ill. 2d at 87. The court added, "The proffered additional testimony would have been cumulative and, further, not inherently
mitigating." Griffin, 178 Ill. 2d at 87-88. The Griffin court found that counsel strategically emphasized grounds for not imposing the death penalty. Griffin, 178 Ill. 2d at 87.
¶ 43 In Franklin, the defendant's seven children testified in mitigation. The defendant argued that his counsel provided ineffective assistance by failing to present more family members with more evidence about his mental illness and his educational achievements. Like the Griffin court, the Franklin court found a strategic purpose for the decision not to present additional mitigation witnesses. The court found:
"The proffered evidence regarding defendant's psychological problems and his family's violent and psychological history was not inherently mitigating. [Citation.] Although this evidence could have evoked compassion in the jurors, it could have also demonstrated defendant's potential for future dangerousness and the basis for defendant's past criminal acts. ***.
Defendant did earn an associate's degree while in Federal prison ***. *** [H]e subsequently committed several crimes while on parole from Federal prison. While the jurors could have applauded defendant for bettering his education, the jurors could have discounted this evidence because of the defendant's criminal acts after obtaining the degrees. The defendant's children testified in mitigation about how their father stressed the importance of education and believed that he was forced to commit crimes since he was not well educated. Yet after obtaining an associates degree and being released on parole, the defendant committed several crimes, including two murders. The jury may have thought that defendant's schooling was contradictory to his
subsequent criminal acts. Thus, the evidence of defendant's education while in prison was not necessarily mitigating." Franklin, 167 Ill. 2d at 27-28.
¶ 44 Here, as in Orange, "the record indicates defense counsel did not investigate any possible mitigating evidence." Orange, 168 Ill. 2d at 170-71. Like the Orange court, "we reject the contention that defense counsel's failure to present mitigation testimony was a competent strategic decision." Orange, 168 Ill. 2d at 171. Evidence of Eiad's work history, character, and good conduct qualify unambiguously as mitigating. Griffin and Franklin do not justify dismissal of Eiad's claim for ineffective assistance of counsel at sentencing.
¶ 45 The State argues that the proposed testimony of the mitigation witnesses would largely duplicate information the court obtained from the presentence investigation report. Some of the proposed mitigation testimony in People v. Thompkins, 161 Ill. 2d 148 (1994), similarly would have echoed written information already available to the court. The Thompkins court found:
"we are not sure, however, that live testimony, whether from that individual or from others who knew the defendant equally well, if not better, would not have provided the sentencing judge with a more complete portrayal of the defendant.
Given the paramount importance of evidence of this nature and the allegations raised in the defendant's post-conviction petition, we believe that it is appropriate here to remand the matter to the circuit court for an evidentiary hearing on this aspect of the defendant's ineffectiveness claim." Thompkins, 161 Ill. 2d at 167-68.
¶ 46 We find that Eiad has made a substantial showing that his attorney provided ineffective assistance by failing to investigate and present witnesses in mitigation. We reverse the dismissal of that claim and remand for an evidentiary hearing on the claim of ineffective assistance of counsel at sentencing.
¶ 47 Jamal requests that a judge other than Judge Sacks preside over the third stage hearing. He argues that Judge Sacks has displayed hostility and "obvious preconceptions as to the weight to be given to new evidence from new witnesses despite the fact that he never heard from those witnesses and thus had no basis upon which to assess their credibility." Supreme Court Rule 366(a)(5) permits a reviewing court, in its discretion, to make any order or grant any relief that a particular case may require. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994). "This authority includes the power to reassign a matter to a new judge on remand." Eychaner v. Gross, 202 Ill. 2d 228, 279 (2002). Out of an abundance of caution, we order both cases to be reassigned to a different judge on remand.
¶ 48 III. CONCLUSION
¶ 49 Jamal and Eiad's affidavits suffice to require an evidentiary hearing on the claims that their attorneys provided ineffective assistance by misinforming Jamal and Eiad regarding the range of possible sentences they faced if the trial court found them guilty as charged. Jamal and Eiad have not substantially shown that the failure to interview some witnesses before trial affected the outcome of the trial. Jamal has not substantially shown that the trial court violated his constitutional rights in imposing a sentence of 35 years. Eiad has substantially shown that his counsel provided ineffective assistance by failing to interview and present to the court several mitigation witnesses. We reverse the dismissals of the postconviction
petitions and we remand for evidentiary hearings on the claims of ineffective assistance of counsel in plea negotiations, and on Eiad's claim for ineffective assistance of counsel in the investigation and presentation of mitigation evidence. We remand both cases to the Presiding Judge of the Criminal Division of the Cook County Circuit Court for reassignment to a different judge to adjudicate the third-stage postconviction proceedings.
¶ 50 1-16-2287: Affirmed in part, reversed and remanded in part.
¶ 51 1-16-2288: Affirmed in part, reversed and remanded in part.