Find Legal Information

FIFTH DIVISION

September 27, 2002

JUSTICE QUINN delivered the opinion of the court:

Following a jury trial, Mark English was convicted of attempted murder and armedrobbery. English was sentenced to 25 years for the attempted murder of Officer Mashemier, 25years for the attempted murder of Detective Wojcik, and 20 years for armed robbery, all to runconcurrently. On direct appeal, this court held that English was not subject to the Illinois "truthin sentencing" law contained in Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), alsoknown as the "Safe Neighborhoods Law," because that public act violated the single subject ruleof the Illinois Constitution. People v. Cervantes, 189 Ill. 2d 80 (1999). People v. English, No.1-97-3511, (1999) (unpublished order under Supreme Court Rule 23).

English subsequently filed a pro se petition for postconviction relief on August 12, 1999. In that petition, English alleged his trial lawyer was ineffective for failing to investigate awitness, Dr. Hoffa, and for failing to present expert testimony that the gun defendant wascarrying was inoperable at the time of the crime. The petition also alleged that his appellatelawyer was ineffective for failing to raise reasonable doubt as an issue in the direct appeal. Thepro se petition for postconviction relief was summarily dismissed as frivolous and without merit. English now appeals from the order dismissing his petition for postconviction relief. For thefollowing reasons, we affirm in part, reverse in part and remand for further proceedings.

On July 14, 1997, Mark English and Thomas Jimenez were charged with two counts ofattempted first degree murder of a peace officer (720 ILCS 5/8-4, 9-1 (West 1996)), one count ofarmed robbery (720 ILCS 5/18-2 (West 1996)), one count of robbery (720 ILCS 5/18-1(a) (West1996)), one count of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 1996)), eightcounts of aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 1996)) and eight counts ofunlawful restraint (720 ILCS 5/10-3(a) (West 1996)). The two men were tried before the samejury.

The following evidence was adduced at trial. On October 5, 1995, at around 11 p.m., twoarmed men wearing women's nylons over their faces entered Armitage Liquors, which had a barin the rear of the store. The taller of the two men was carrying an "Uzi" machine gun and theshorter man was carrying a shiny handgun. The two men told the people in the store to get downon the floor or they would be shot. The men took Orlando Perez, the manager, into the office. They removed his wallet, bracelet and $600 cash from his pocket. Perez was then instructed toopen the safes in the office. Upon opening the smaller of the safes, it was discovered that it wasempty. Perez then informed the two armed men that he did not know how to open the larger ofthe safes. Learning this, according to Perez, the men hit him on the head with a gun. Pereztestified that he told the men that he had some money in his station wagon parked at the back. The two men then took 9 or 10 of the bar patrons into the basement. Once they were secured inthe basement, the men took Perez to the back exit of the liquor store, which was a door with alock and a metal burglar's gate behind it. When Perez opened the door, he heard peopleshouting, then heard gunshots. He testified he felt a bullet hit him in the right upper thigh. Perezstarted yelling "I'm the manager!" when he realized it was the police. He opened the door andthe police entered the bar. Perez was subsequently handcuffed and taken to Illinois MasonicHospital. At the hospital, the police showed him his chain and bracelet, which he identified ashis.

Elizabeth Ramirez testified that when she went to the store, the steel gates of the storewere partially closed. She looked through the window of Armitage Liquors and saw a manpointing a gun at the person behind the register. She also saw another man toward the back ofthe bar pointing a gun at a person on the floor. Ramirez testified that she got into a car with herfriend and drove three blocks to where there were uniformed police officers. Ramirez told theofficers that the liquor store was being robbed. The police put her into an unmarked police carand drove her back to the scene.

After the police got Ramirez to describe what she had seen, they approached the building. Detective Wojcik testified the front entrance was blocked by the steel shutters that were pulleddown. The steel door was locked. Detective McMurray covered the building on the KostnerAvenue side, while Officer Sineni covered the front door on Armitage Street. Detective Wojcikand Officer Mashemier went around to the back and climbed a gate to get into the courtyardbehind the store. Wojcik went down the external stairs leading to the basement and saw seven oreight people standing in the basement. When he came back up the stairs, the back door to theliquor store opened. Wojcik and Mashemier saw two men with nylons over their faces and gunsin their hands pointed at Perez. They later identified these two men as Mark English and ThomasJimenez. Wojcik and Mashemier testified that they identified themselves as police officers anddemanded that the two men drop their guns. Wojcik and Mashemier testified that, after they announced their office, the two offenders turned their guns on them. Wojcik and Mashemiertestified they both fired their weapons, Wojcik firing nine shots and Mashemier firing threeshots. Perez and three of the patrons of the liquor store testified that they did not hearidentifications or warnings before hearing shots fired. Detective McMurray and another officeron the scene testified that they heard the identifications and warnings prior to hearing the shots.

In addition to shooting Perez, the manager of the liquor store, the police also shotEnglish, who fell to the ground approximately 12 feet back from the door. Wojcik andMashemier testified that, before Perez could unlock the gate, they observed English on theground feeling around for his gun. English retrieved his gun, lifted his arm and pointed the Uziat the officers. They ordered English to leave the weapon alone. When he would not comply,Wojcik fired three more shots at English. Wojcik testified he stopped firing when he sawEnglish's arm fall and the gun hit the ground. Perez opened the gate after the second round ofgunfire.

Once Wojcik and Mashemier were let into the building, Wojcik stepped on English'shand and picked up the fallen weapon. In case he needed another weapon when he tried toapprehend Jimenez, Wojcik testified, he pointed the gun at the ceiling, tried to fire it, but thetrigger would not pull. He tried the safety on both sides of the weapon and tried pulling the boltback to clear the gun, but to no avail. English's gun contained 13 bullets. Wojcik gave the gunto Mashemier and handcuffed English, who had been shot a total of nine times.

Wojcik then moved to apprehend Jimenez, who was lying on his back in the store, havingbeen shot in the leg. Wojcik recognized him as the man with the chrome pistol. Jimenez said"don't shoot, you got me." Wojcik recovered a chrome pistol from underneath the bar. Whenparamedics arrived on the scene, they removed the nylons from the offenders' faces. DetectiveJames Gilger rode in the ambulance with Jimenez. He searched Jimenez' person during the rideto the hospital. Gilger recovered dark blue gloves and the panties that had been cut from thenylon stocking Jimenez wore. Detective Thomas Finnelly rode in the ambulance with English. Finnelly searched English and recovered a gold chain, bracelet, a gold earing and a wad of $20bills. Perez subsequently identified the chain and bracelet as his property.

Officer Peter Mashemier's testimony corroborated that of Detective Wojcik. Mashemiertestified he clearly heard Wojcik yell "police" and saw the pointing of weapons by the offendersbefore the shooting started. Mashemier testified he thought they would be killed if they did notstop the offenders. Testimony of Detectives John McMurray and Thomas Finnelly was similarlycorroborative of Wojcik's version of the events.

English did not testify in his own behalf. The trial court explained his rights to him andhe waived his right to testify in open court.

Jimenez presented one witness, Juan Delgado, the bartender at Armitage Liquors. Delgado testified that he knew Jimenez, who was sitting at the bar when two masked gunmenentered. Delgado testified that Jimenez hid between the dart machine and jukebox when theshooting started. In rebuttal, the State called Detective Michael Mason, the police detective whointerviewed Delgado at the time. According to Mason, Delgado did not know Jimenez and didnot exonerate Jimenez in his initial statement.

The jury found Mark English guilty of the attempted murder of Officer Mashemier andDetective Wojcik. The jury also found him guilty of armed robbery. Jimenez was found guiltyof the armed robbery, but not attempted murder. English was sentenced to 25 years for theattempted murder of Officer Mashemier, 25 years for the attempted murder of Detective Wojcik,and 20 years for armed robbery. All of the sentences were entered so as to run concurrently.

On direct appeal, this court held that English was not subject to the Illinois "truth insentencing" law contained in Public Act 88-680 (Pub. Act 88-860, eff. January 1, 1995) becausethat public act violated the single subject rule of the Illinois Constitution. This court also heldthat English was eligible for day-for-day good-conduct credit. People v. English, No. 1-97-3511(1999) (unpublished order under Supreme Court Rule 23).

On August 12, 1999, English filed a pro se petition for postconviction relief. In thatpetition, English claimed his trial lawyer was ineffective for: (1) failing to investigate a witness,Dr. Hoffa; (2) failing to present expert testimony that the gun English was carrying wasinoperable at the time of the crime; (3) failing to allow English to testify; and (4) failing to objectto hearsay during the trial. English claimed his appellate lawyer was ineffective for not raisinghis trial counsel's effectiveness on appeal and for not raising reasonable doubt as an issue onappeal. In his postconviction petition, defendant averred that he had gone to Armitage Liquors"to take money from Orlando Perez." English admitted he was armed but asserted that the gunwas a "a 'tool' used to frighten and intimidate Orlando Perez." As to the patrons in the store,defendant asserted he "took them into the basement out of harm's way." He also admitted that ashe exited the rear door, he saw police officers. Further, he "knew he was caught. He slammedthe door in their faces to prevent them from entering the establishment. To buy some time. Todistance his gun and mask from his person." English alleged that the police shot him as he lay onthe floor after he "surrendered." The pro se petition for postconviction relief was summarilydismissed as frivolous and without merit. In this appeal, new appellate counsel argues that trialcounsel was ineffective for failing to investigate a potential witness, Dr. Hoffa, and for failing topresent expert testimony that defendant's gun was inoperable and that appellate counsel wasineffective for not raising reasonable doubt as an issue in the appeal of defendant's convictionsfor attempted murder.

ANALYSIS

The Illinois Postconviction Hearing Act (Act) (725 ILCS 5/122-1 (West 1996)) providesa mechanism by which those under criminal sentence in this state can assert that their convictionswere the result of a substantial denial of their rights under the United States Constitution or theIllinois Constitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998), citing 725ILCS 5/122-1 (West 1994). Proceedings under the Act are commenced by the filing of a petitionin the circuit court in which the original proceeding took place. The petition must clearly setforth the respects in which the petitioner's rights were violated. Coleman, 183 Ill. 2d at 379,citing 725 ILCS 5/122-2 (West 1994). Section 122-2 of the Act requires that affidavits, records,or other evidence supporting the petition's allegations be attached to the petition. Coleman, 183Ill. 2d at 379, citing 725 ILCS 5/122-2 (West 1994).

Under the Act, a postconviction proceeding not involving the death penalty consists of three stages. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001), citing People v. Gaultney, 174Ill. 2d 410, 418 (1996).

"At the first stage, the circuit court must independently review thepost-conviction petition within 90 days of its filing and determinewhether 'the petition is frivolous or is patently without merit.' 725ILCS 5/122-2.1(a)(2) (West 1998). If the court determines that thepetition is either frivolous or patently without merit, the court mustdismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2)(West 1998). A post-conviction petition is considered frivolous orpatently without merit only if the allegations in the petition, takenas true and liberally construed, fail to present the 'gist of aconstitutional claim.' Gaultney, 174 Ill. 2d at 418, citing People v.Porter, 122 Ill.2d 64, 74 (1988). The 'gist' standard is 'a lowthreshold.' Gaultney, 174 Ill. 2d at 418. To set forth the 'gist' of aconstitutional claim, the post-conviction petition 'need only presenta limited amount of detail' (Gaultney, 174 Ill. 2d at 418) and henceneed not set forth the claim in its entirety. Further, the petitionneed not include 'legal arguments or [citations] to legal authority.' Gaultney, 174 Ill. 2d at 418." Edwards, 197 Ill. 2d at 244.

Our review of the circuit court's summary dismissal of defendant's postconviction petition is denovo. " 'Due to the elimination of all factual issues at the dismissal stage of a postconvictionproceeding, the question is, essentially, a legal one, which requires the reviewing court to makeits own independent assessment of the allegations. Thus, a court of review [is] free to substituteits own judgment for that of the circuit court in order to formulate the legally correct answer.' " Edwards, 197 Ill. 2d at 247, quoting Coleman, 183 Ill. 2d at 388.

English argues that his postconviction petition should not have been dismissed asfrivolous or patently without merit by the circuit court because the petition raises a nonfrivolousclaim that his trial counsel was ineffective in failing to investigate a witness and failing topresent expert testimony that the weapon defendant carried was inoperable. Specifically, Englishclaims that trial counsel failed to contact English's doctor, Dr. Hoffa. According to English, Dr.Hoffa would have testified that all of English's injuries were consistent with someone who wasshot while lying on the ground. English also argues that his appellate counsel was ineffective forfailing to argue that the charges of attempted murder were not proven beyond a reasonable doubt. English claims that, because he was jointly tried with Jimenez on the same evidence, it waslogically inconsistent for the same jury to convict English and acquit Jimenez of the attemptedmurder charges. In both instances, because English's allegations of ineffective assistancepresented the gist of a meritorious constitutional claim, he argues, this court should reverse hisconvictions.

The People respond that English's claims of ineffective assistance on the part of trialcounsel are waived because he failed to raise the issues on direct appeal. See People v. Gaultney,174 Ill. 2d 410, 416 (1996). At the time of the direct appeal, they point out, English was awareof whether trial counsel was effective. They argue in addition thereto that even if this Court doesnot deem these issues waived, the claims cannot satisfy either prong of the test articulated inStrickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). As a result,they conclude it was proper for the trial court to dismiss English's petition. We reject thePeople's argument that the petition's allegations of the ineffectiveness of trial counsel are waived. The doctrine of waiver will be relaxed where the facts relating to the claim do not appear on theface of the original appellate record or where the alleged waiver stems from the incompetence ofappellate counsel. People v. Mahaffey, 194 Ill. 2d 154, 171 (2000). As both of these exceptionsarguably apply to the instant case, we will review defendant's claims.

"In order to succeed on a claim of ineffective assistance of trial counsel, a defendant mustsatisfy the two-pronged Strickland test: a defendant must allege facts which demonstrate thatcounsel's representation fell below an objective standard of reasonableness and that there is areasonable probability that, but for counsel's errors, the result of the trial would have beendifferent." People v. Enis, 194 Ill. 2d 361, 376 (2000), citing Strickland v. Washington, 466U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); People v.Wilson, 191 Ill. 2d 363, 370 (2000). A reasonable probability is a probability sufficient toundermine confidence in the outcome, namely, that counsel's deficient performance rendered theresult of the trial unreliable or the proceeding fundamentally unfair. Enis, 194 Ill. 2d at 376-77,citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186Ill. 2d 83, 93 (1999). Unless the defendant satisfies both prongs of the Strickland test, a court ofreview cannot conclude that his conviction resulted from a breakdown of the adversarial process. People v. Johnson, No. 85134, slip op. at 13-14, (April 18, 2002), citing People v. Munson, 171Ill. 2d 158, 184 (1996).

Decisions concerning whether to call certain witnesses on a defendant's behalf are mattersof trial strategy, reserved to the discretion of trial counsel. Enis, 194 Ill. 2d at 378, citing Peoplev. West, 187 Ill. 2d 418, 432 (1999). Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather than incompetence, and are, therefore, generally immune fromclaims of ineffective assistance of counsel. Enis, 194 Ill. 2d at 378, citing People v. Reid, 179 Ill.2d 297, 310 (1997). This is not the case, however, where counsel's strategy was so unsound thatno meaningful adversarial testing was conducted. Enis, 194 Ill. 2d at 378. "Whether defensecounsel's failure to investigate amounts to ineffective assistance is determined by the value of theevidence that was not presented at trial and the closeness of the evidence***." People v.Montgomery, 327 Ill. App. 3d 180, 185 (2001); People v. Smith, 326 Ill. App. 3d 831, 856(2001).

We first address defendant's allegations regarding the failure to call Dr. Hoffa. In the

affidavit attached to his pro se postconviction petition, English stated, in relevant

part, as follows:

"5. While out on bond I sought the opinion of Dr. Hoffa atIllinois Masonic Hospital concerning the surgery recommended bydoctors at Cook County Hospital. During that consultation, Dr.Hoffa expressed an opinion that all of my injuries received as aresult of being shot were consistent with my claims that I was lyingdown at the time I was shot. I have no entrance wounds in mychest. All of my injuries traveled at an angled trajectory from thelower portion of my body towards the upper portion.

6. I asked Dr. Hoffa if he would be willing to testify to his remarksand observations in a court of law. He responded that if properlysubpoenaed he would testify.

7. I notified my attorney * * * about the conversation I hadwith Dr. Hoffa and stated that he was willing to testify. [English'sattorney] informed me that he would take care of that when thetime came. Subsequent conversations with my attorney revealedthat he believed the state could not meets its burden of proving meguilty of attempted murder and that Dr. Hoffa's testimony was notneeded and would do nothing to bolster my defense.

9. During this same period of time I informed my attorney of my intention of taking the stand in my own defense. Mr. Johnson and I argued about my decision and [he] repeatedly informed me that I would lose my case if I took the stand in my owndefense.

* * *

11. The testimony of Dr. Hoffa could have provided support to my defense in that I never pointed a gun at the two Chicago Police Officers or attempt [sic] to kill them. Furthermore, my testimony would have corroborated his testimony, if I had been allowed to testify by my attorney. Our combined testimonies [sic] would have contradicted and impeached the testimony ofthe police officers who claimed that I pointed my gun at them."

The record supports the fact that defendant's trial counsel's decision not to call Dr. Hoffawas a matter of strategy. Defendant's trial counsel had defendant exhibit his wounds to the juryduring his cross-examination of Detective Wojcik. Trial counsel cross-examined every witnessregarding whether they heard the police identify themselves and whether they heard sirens. Hebrought out that Wojcik was wearing civilian clothing. Clearly, trial counsel's strategy was toshow that defendant did not know that the victims were police officers, thus negating the lastelement in the charge of attempted murder of a police officer. See 720 ILCS 5/8-4, 9-1 (West1996).

Defendant's evidentiary affidavit attached to his postconviction petition sets out the factthat defendant advised his trial counsel of Dr. Hoffa's potential testimony. Trial counselexplained that he did not believe the State could prove defendant guilty of attempted murderbeyond a reasonable doubt and that Dr. Hoffa's testimony "would do nothing to bolster" hisdefense. This allegation demonstrates that trial counsel's failure to call Dr. Hoffa was a matter oftrial strategy. The fact that the police testified that Wojcik shot defendant while he lay on theground would also support trial counsel's belief that Dr. Hoffa's testimony would notsignificantly aid defendant. Further, calling Dr. Hoffa to testify that he believed the bulletstrajectories were consistent with defendant being on the ground would highlight the fact thatdefendant never testified that he was lying down when he was shot. The record demonstratesthat the trial court advised defendant that he had a right to testify in his own defense if he sodesired. Defendant declined the opportunity. It cannot seriously be argued that trial counsel'sstrategy in not calling Dr. Hoffa was so unsound that "no meaningful adversarial testing wasconducted." Enis, 194 Ill. 2d at 378. Consequently, defendant has not satisfied the first prong ofthe Strickland test and the trial court properly dismissed his claim as it relates to the failure tocall Dr. Hoffa.

We next consider defendant's assertion that his trial counsel's failure to secure an expertto testify that his Uzi machine gun was inoperable constituted ineffective assistance of counsel. We first note that, unlike the potential testimony of Dr. Hoffa, defendant's petition does notcontain factual assertions that an expert would testify that the machine gun was inoperable. Evenif the petition contained such an allegation, defendant's claim would not meet the criteria ofineffective assistance as set forth in Strickland. If an expert had been retained by defensecounsel, the expert's report would have reflected one of two findings. First, the machine gun mayhave been operable. The fact that the police witnesses testified that they could not fire it does notlead to the conclusion that an expert would have a similar problem under all circumstances. Second, the expert could find that the machine gun was inoperable. This fact would be of noassistance to defendant. The People could argue that the defendant attempted to fire the weaponat the police and it was only due to the fortuitous fact that the weapon was broken that the policeofficers were not killed. Again, defendant's refusal to testify is of significance. The expert'sreport would not reflect whether defendant had knowledge that the machine gun was inoperable. Further, even if a forensic expert testified, defendant's argument that he could not be convicted ofattempted murder with an inoperable weapon is without merit. Section 8-4(b) of the CriminalCode of 1961 (720 ILCS 5/8-4(b)(West 1996)) provides that impossibility may not be a defenseto a charge of attempt and this court has rejected impossibility as a defense to attempted murder. See People v. Spiezio, 191 Ill. App. 3d 1067, 1073 (1989).

We note that all of the issues raised in defendant's postconviction petition that have beenraised in this appeal address defendant's convictions for attempted murder. None of theallegations relate in any way to the charge of armed robbery. Indeed, defendant's evidentiaryaffidavit attached to his postconviction petition contains admissions sufficient to convict thedefendant of armed robbery. A reading of defendant's version of events as contained in thisaffidavit amply demonstrates why defense counsel advised defendant not to testify.

We next address defendant's claims that his appellate counsel was ineffective for failingto argue the insufficiency of the evidence in support of defendant's convictions for attemptedmurder of a police officer. Claims of ineffective assistance of appellate counsel are alsoevaluated under the Strickland test. Enis, 194 Ill. 2d at 377, citing People v. Childress, 191 Ill.2d 168, 175 (2000). A defendant who claims that appellate counsel was ineffective for failing toraise an issue on appeal must allege facts demonstrating that such failure was objectivelyunreasonable and that counsel's decision prejudiced defendant. If the underlying issue is notmeritorious, then defendant has suffered no prejudice. Enis, 194 Ill. 2d at 377, citing Childress,191 Ill. 2d at 175. "Normally, appellate counsel's choices concerning which issues to pursue areentitled to substantial deference. People v. Mack, 167 Ill. 2d 525, 532-33 (1995). Appellatecounsel need not brief every conceivable issue and may refrain from developing nonmeritoriousissues without violating Strickland (People v. Simms, 192 Ill. 2d 348, 362 (2000)), because thedefendant suffered no prejudice unless the underlying issue is meritorious (People v. Easley, 192Ill. 2d 307, 329 (2000). Consequently, the prejudice inquiry requires us to examine the merits ofthe claims not raised by appellate counsel." People v. Johnson, No. 85134, slip op. at 19, (April18, 2002). In reviewing the sufficiency of the evidence, the court must determine whether, in thelight most favorable to the State, any rational trier of fact could have found the essential elementsof the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18, 61 L. Ed. 2d560, 572-73, 99 S. Ct. 2781, 2788-89 (1979).

Defendant's argument on appeal is that defendant's prior appellate counsel was ineffectivefor failure to raise the issue of the sufficiency of the evidence on the attempted murder chargebecause codefendant Jimenez was found not guilty by the same jury that convicted defendant. Defendant argues, "[W]here there is no plausible construction of the evidence which wouldfurnish a reasonable basis for the finding of guilty as to one defendant and not guilty as to theother, the conviction must be reversed." People v. Gonzales, 67 Ill. App. 3d 215, 222 (1978). However, the failure to convict one codefendant does not raise a reasonable doubt as to the guiltof the other codefendant unless it is demonstrated that the evidence against both defendants isidentical in all respects. People v. Johnson, 272 Ill. App. 3d 479, 486 (1995), citing People v.Vriner, 74 Ill. 2d 329, 343 (1978). " 'The slightest difference in the evidence can be sufficient tosupport different verdicts. [Citations.]' " People v. Morrow, 303 Ill. App. 3d 671, 679 (1999),quoting People v. Jak, 207 Ill. App. 3d 762, 767-68 (1990).

In the instant case, there were considerable differences as to the evidence presentedagainst each defendant. Detective Wojcik and Officer Mashemier testified that Jimenez ran awayand began firing when they announced their office. Defendant fell and picked up his machinegun again, pointing it at the officers until Wojcik shot him again. Wojcik recovered the machinegun from defendant's hand. When Jimenez was arrested, he was unarmed. Further, three of thecustomers in the bar identified Jimenez as being a customer in the bar. One witness testified thatboth armed robbers entered the bar together. This would exclude Jimenez as one of the armedrobbers. Finally, Juan Delgado testified for Jimenez that Jimenez hid upstairs during the armedrobbery. There was much more evidence against defendant than against Jimenez. Anexamination of the merits of defendant's claims of ineffective assistance of his appellate counselreveals that defendant suffered no prejudice by counsel's failure to raise the issue of reasonabledoubt on appeal. People v. Easley, 192 Ill. 2d at 329. Consequently, we affirm the trial court'sdismissal of defendant's claim of ineffective assistance on the part of this appellate counsel.

Finally, English argues that his sentences for attempted murder must be vacated and thecause remanded for resentencing because Public Act 88-680, which changed the sentencing rangefrom between 15 and 60 years to between 20 and 80 years for attempted murder of a policeofficer, was found unconstitutional. See People v. Cervantes, 189 Ill. 2d 80 (1999). Englishargues that the attempted murder statute under which he was convicted was enhanced because heattempted to murder a police officer. Other attempted murders did not have their sentencingschemes similarly enhanced. Since the Cervantes case held the legislative enactmentunconstitutional, and it is void ab initio, statutes created or amended by the enactment aresimilarly invalid. See People v. Young, 312 Ill. App. 3d 428, 433 (2000); People v. Dean, 175Ill. 2d 244, 257 (1997); People v. Gersch, 135 Ill. 2d 384, 390 (1990). English argues that,because he was sentenced pursuant to an unconstitutional sentencing scheme, the case needs tobe remanded for resentencing.

The People respond that the objection to the sentences imposed is waived because itcould have been raised on direct appeal but was not. The judgment of the reviewing court on aprevious appeal is res judicata as to all issues actually decided, and any claim that could havebeen presented to the reviewing court in the direct appeal is, if not presented, thereafter barredunder the doctrine of waiver. People v. Silagy, 116 Ill. 2d 357, 365 (1987). We find waiver tobe inapplicable in this case. Defendant could not have waived this issue as Cervantes was notdecided until after the conclusion of his direct appeal. Also, a party may challenge theconstitutionality of a statute at any time. People v. Wagener, 196 Ill. 2d 269, 279 (2001), citingPeople v. Wright, 194 Ill. 2d 1 (2000). The People alternatively argue that Cervantes does notrequire a remand for resentencing because English was not sentenced to the minimum applicableterm under the statute. The trial court's decision to sentence English to five years above theminimum was based on a review of the presentence investigation report, which revealed thatEnglish had a long history of prior convictions, including being found guilty of murder as ajuvenile. The trial court considered English's age and his potential for rehabilitation butconsidered him a threat to society. Therefore, according to the People, even though theamendment changed the minimum term for the crime for which he was convicted, his sentencewould not be impacted because the trial court never considered a minimum sentence.

The People urge us to follow the holding in People v. Cundiff, 322 Ill. App. 3d 426, 439(2001). There, the Fifth District of the Appellate Court similarly reviewed a sentence imposedupon a conviction for attempted murder of a police officer. As here, the defendant was sentencedprior to Cervantes, holding Public Act 88-680 to be unconstitutional, as it was passed in violationof the single subject rule. The defendant contended that his case should be remanded for a newsentencing hearing. The Fifth District court disagreed, citing People v. Reedy, 186 Ill. 2d 1, 16-17 (1999). In Reedy, the truth-in-sentencing law was found to be unconstitutional because it,too, was passed in violation of the single subject rule. The People argued that all sentencesimposed under the invalid amendments were void and that remands for resentencing would berequired.

The supreme court rejected this argument, stating as follows:

"Although the good-conduct credit scheme which may have been considered by the sentencing courts was invalid, thesentences imposed against defendants were nevertheless, proper. Furthermore, it would be sheer speculation on our part tosurmise the extent to which each sentencing court has ultimately factored in the truth-in-sentencing law's good-conduct creditscheme in imposing each sentence against every defendant before it." People v. Reedy, 186 Ill. 2d at 16-17. 

The court in Cundiff found this reasoning to be applicable in that case. As thedefendant's sentence of 30 years was well within the range of section 8-4(c)(1) before the voidamendment, he was not entitled to a new sentencing hearing.

In People v. Ruiz, 312 Ill. App. 3d 49 (2000), the First District of the Appellate Courtsimilarly addressed the impact of Cervantes on a defendant who was sentenced on a convictionof attempted murder of a police officer to a term of 55 years. As did the court in Cundiff, thiscourt pointed out, " 'The effect of enacting an unconstitutional amendment to a statute is to leavethe law in force as it was before the adoption of the amendment.' " Ruiz, 312 Ill. App. 3d at 58,quoting People v. Gersch, 135 Ill. 2d 384, 390 (1990). The court continued: "The 'record mustestablish the sentence is based upon a proper understanding of applicable law.' People v.Hausman, 287 Ill. App. 3d 1069, 1072, 679 N.E.2d 867, 869 (1997) (reversing for resentencingwhere the judge sentenced defendant to the 'minimum sentence of three (3) years but the actualminimum sentence for the defendant's offense was two years.") Ruiz, 312 Ill. App. 3d at 58.

As the trial court "incorrectly" believed that the proper sentencing range was 20 to 60years when it sentenced the defendant, the Ruiz court remanded the case for resentencing.

We choose to follow the holding in Ruiz. In Reedy, our supreme court was faced withthe daunting challenge of whether to remand many hundreds, if not thousands, of cases forresentencing. We are faced with a very small number of cases to reconsider. Also, the truth-in-sentencing law addressed in Reedy did not directly impact the number of years to which adefendant could be sentenced. It dealt with how much, if any, "good-time" credit a defendantcould accrue. In this case, the void amendment directly increased both the minimum and themaximum number of years to which a defendant could be sentenced. Consequently, we find thatdefendant's sentences for attempted murder of a police officer are void. We vacate thosesentences and remand the cause for resentencing.

For the foregoing reasons, we affirm the trial court's summary dismissal of defendant'spostconviction petition, we vacate defendant's sentences for attempted murder of a police officerand remand this case for resentencing on those counts.

Affirmed; sentence vacated in part and cause remanded.

CAMPBELL, P.J., concurs.

REID, J., concurring in part and dissenting in part.

JUSTICE REID, concurring in part and dissenting in part:

Although I concur in the majority's conclusion that we must vacate defendant'ssentences and remand this case, I cannot concur in the affirmance of the trial court's summarydismissal of defendant's post-conviction petition; therefore, I dissent. Contrary to the majorityopinion, I believe a review of the record in this case demonstrates that counsel's representationof English at trial did indeed fall below the standard articulated by the United Supreme Court inStrickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). As we haveseen, the standard of review of a post-conviction petition which is dismissed at the early stagebefore an evidentiary hearing is very low. Namely, English's burden was to demonstrate the gistof a constitutional claim. Ineffective assistance of counsel is such a constitutional claim. Infailing to call Dr. Hoffa as a witness, I believe the assistance of counsel dipped below Strickland.

"Although a post-conviction petitioner is not entitled to an evidentiary hearing as a matterof right, [the Illinois Supreme] court has repeatedly stressed that a hearing is required wheneverthe petitioner makes a substantial showing of a violation of constitutional rights." People v.Coleman, 183 Ill. 2d 366, 381 (1998); See e.g., People v. Hobley, 182 Ill. 2d 404, 428 (1998);People v. Gaines, 105 Ill. 2d 79, 91-92 (1984). "A post-conviction petition is consideredfrivolous or patently without merit only if the allegations in the petition, taken as true andliberally construed, fail to present the 'gist of a constitutional claim.'" People v. Edwards, 197Ill. 2d 239 (2001), quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996), citing People v.Porter, 122 Ill. 2d 64, 74 (1988). The "gist" standard is "a low threshold." Edwards, 197 Ill. 2dat 244, citing Gaultney, 174 Ill. 2d at 418. "To set forth the 'gist' of a constitutional claim, thepost-conviction petition 'need only present a limited amount of detail' (Gaultney, 174 Ill. 2d at418) and hence need not set forth the claim in its entirety. Further, the petition need not include'legal arguments or [citations] to legal authority." Edwards, 197 Ill. 2d at 244, quoting Gaultney,174 Ill. 2d at 418. A "gist" of a claim is something less than a completely pled or fully statedclaim. Edwards, 197 Ill. 2d at 245.

As the majority points out, in the affidavit attached to his pro se post-conviction petition,English sought the opinion of Dr. Hoffa concerning the surgery recommended by doctors at CookCounty Hospital. Slip Op. at 11. Dr. Hoffa expressed an opinion that English's gunshot-relatedinjuries were consistent with his theory that he was shot while lying down. Slip Op. at 11. Specifically, Dr. Hoffa indicated that English had no entrance wounds in his chest. From that,Dr. Hoffa deduced that all of English's injuries traveled at an angled trajectory from the lowerportion of his body towards the upper portion. Slip Op. at 11-12. Dr. Hoffa indicated awillingness to testify if he was properly subpoenaed. Slip Op. at 12. English claims he notifiedhis attorney about both the conversation with Dr. Hoffa and his willingness to testify. English'sattorney apparently believed the State could not meet its burden of proving English guilty ofattempted murder, so that Dr. Hoffa's testimony was unnecessary. Slip Op. at 12. He wasmistaken.

English, in his petition, claimed that the testimony of Dr. Hoffa could have providedsupport for English's defense that he neither pointed a gun at the Police Officers or attempted tokill them. In his petition, English argues that the combination of his own testimony along withthe testimony of Dr. Hoffa would have contradicted and impeached the testimony of the policeofficers who claimed that he pointed his gun at them while standing at the back door, facing theofficers.

Detective Wojcik testified that English was standing, pointing his gun in a threateningmanner when Wojcik fired the first volley of shots. Wojcik testified that he fired because hefeared for the life and safety of himself, his partner and Orlando Perez, the manager of ArmitageLiquors. Wojcik repeated several times that English was in a standing position, facing him, brandishing the gun when it became necessary to shoot him. In describing how his bullets hitEnglish's body, Wojcik repeatedly testified that most of the bullets entered English's chest. Wojcik also testified that, once English was on the ground but before Perez could open thesecurity gate, English reached for the gun and again pointed it at him in a threatening manner. Atthat point, Wojcik claimed English's conduct forced him to fire the second volley of bullets.

On cross examination, the issue of the position and condition of English's body came upin context of a series of questions regarding bullet trajectory. The following exchange tookplace:

"[ENGLISH'S COUNSEL] Q: Well you know what,Detective, then, you tell us, according to the way you shot Mr.English, where should those bullets be entering and how shouldthey be exiting?

[STATE]: Judge, I object.

THE COURT: Sustained as well.

[STATE]: He's not a doctor.

[ENGLISH'S COUNSEL] Q: Mr. English, get up. Judgemay he go into the courtroom.

THE COURT: Yes, he may. Let the record reflect thedefendant English is standing in the well of the courtroom.

[ENGLISH'S COUNSEL] Q: Left (sic) up your shirt, Mr.English, unbutton your shirt. Stand back so the prosecutors can seeyou too. Stand right there.

THE COURT: The State may approach the witness as wellas Mr. Murphy.

[STATE]: Thank you, Judge.

[ENGLISH'S COUNSEL] Q: Detective, do you know howmany of these entry wounds were caused by you discharging yourweapon into Mr. English?

[STATE]: Again Judge, Objection, asked and answered.

THE COURT: I'll let him answer that.

[ENGLISH'S COUNSEL] Q: Do you know?

[DETECTIVE WOJCIK] A: Do I know?

[ENGLISH'S COUNSEL] Q: How many of these entrywounds were caused by you discharging your weapon into -- turnsideways -- into Mr. English's body?

[STATE]: I'm going to object, those have not all beenidentified as bullet entrances and or bullet wounds, the defendantalso has a number of scars because of medical treatment that hereceived that day, so I object to counsel's question and his pointingto the defendant at this time.

THE COURT: Counsel, unless you're prepared to establishthat in fact those are entry wounds, I would sustain the objection.

[ENGLISH'S COUNSEL]: Let me make a record then."

At this point in the proceedings, it becomes clear just how important a witness Dr. Hoffawas. Had Dr. Hoffa testified as English's post-conviction petition asserts he would have, hecould have contested the story given by the police officers as to the first volley. Further, Dr.Hoffa's testimony would have been consistent with English's theory of defense, especially ifnone of the holes in English's chest turned out to be entrance wounds. The conviction forattempted murder turns on whether or not English had the requisite criminal intent at the time ofthe shooting which, in turn, turns on how the shooting actually took place. The petitioner isentitled to an evidentiary hearing only if he has made a substantial showing, based on the recordand supporting affidavits, that his constitutional rights were violated. People v. Turner, 187 Ill.2d 406 (1999). To fail to secure Dr. Hoffa as a witness amounts to ineffective assistance underthese facts and circumstances. For the trial court to have dismissed English's post-convictionpetition without an evidentiary hearing was error. The Post-Conviction Hearing Act authorizesthe appointment of counsel at the second stage who would have the opportunity to amend thepetition itself in contemplation of an evidentiary hearing. (725 ILCS 5/122-1 et seq. (West2000)). Any questions remaining as to the sufficiency of the evidence and the existence ofreasonable doubt would then be resolved at an evidentiary hearing.

The majority correctly identifies the general rules when it comes to the failure to callwitnesses. Slip Op. at 11. In sum, "[t]o prevail on a claim of ineffective assistance of counsel, adefendant must (1) show that his counsel's performance fell below an objective standard ofreasonableness and (2) demonstrate a reasonable probability that, but for the counsel's errors, theresult of the proceedings would have been different." People v. Reid, 179 Ill. 2d 297, 310(1997), citing Strickland. "Decisions concerning which witnesses to call at trial and whatevidence to present on defendant's behalf ultimately rests with trial counsel." Reid, 179 Ill. 2d at310, citing People v. Madej, 177 Ill. 2d 116, 148 (1997). "As matters of trial strategy, suchdecisions are generally immune from claims of ineffective assistance of counsel." Reid, 179 Ill.2d at 310, citing Madej, 177 Ill. 2d at 148. The only exception to this rule is when counsel'schosen trial strategy is so unsound that counsel entirely fails to conduct any meaningfuladversarial testing. Reid, 179 Ill. 2d at 310, citing Madej, 177 Ill. 2d at 149 (emphasis added). Irecognize that this is indeed a high standard and one that should not be treated lightly. But I alsorecognize that there are those cases where trial counsel, through inadvertence, carelessness, orjust plain incompetence, can make a strategic choice that is, quite frankly, too unprofessional toignore.

Assuming for the moment that English's version of the events was entirely correct and hewas shot while lying on the ground, that would contradict the State's interpretation of the threatposed by English to the police officers. Defendants make such claims all the time. They areevaluated by the trier of fact, whether a judge or a jury and either accepted or rejected as the casemay warrant. Here, however, the defendant presented his counsel with a witness whose experttestimony would seriously undermine both the credibility of the State's witnesses and its case-in-chief. When confronted by this potential expert witness, counsel indicated that English's casewas so strong in other areas that the medical expert witness was not necessary. English, from hisjail cell, argues otherwise and I find I must agree. Accordingly, I dissent.