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No. 3--02--0309

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

FACTS

The defendant, Armando Manrique, was a passenger in a motorhome traveling on Interstate 80 on November 6, 1995. Also in themotor home were the driver, Andres Elken Montoya, and passengersGuillermo Carvajal, Miguel Londono, Iriada Sanchez and NiurcaTorres. The vehicle was pulled over for speeding by the IllinoisState Police. After issuing a written warning, the officer askedMontoya for permission to search the home, which was granted. During the subsequent search, the police found several blackplastic storage bags containing bricks of cocaine. The cocainewas hidden in storage cabinets and under several bunk beds. Theofficers stated that it was impossible to determine what was inthe bags without opening them and that they did not smell likecocaine.

Manrique denied any knowledge of the cocaine and stated thathe had encountered his friend Montoya in Los Angeles and thatMontoya had invited him on a road trip in the motor home.

Manrique was convicted in the circuit court of Henry Countyof controlled substance trafficking (720 ILCS 570/401.1 (West2002)), unlawful possession with intent to deliver a controlledsubstance (720 ILCS 520/401(a)(2)(D) (West 2002)), and possessionof a controlled substance (720 ILCS 570/402(a)(2)(D) (West2002)), and was sentenced to 56 years in prison.

On direct appeal, the defendant argued that it was error forthe trial court to deny his pretrial motion seeking thesuppression of the cocaine. People v. Manrique, (August 21,1997) (Unpublished order under Supreme Court Rule 23). Theappeal was denied and the defendant's conviction was affirmed.

The defendant, in 1998, filed a pro se petition forpostconviction relief in which he alleged ineffective assistanceof counsel because of his attorney's failure to call Montoya as awitness at the suppression hearing and at trial to testify thatthe defendant did not know about the cocaine. The State filed awritten response to the petition which contained an affidavitfrom the defendant's original attorney. The affidavit statedthat defense counsel had attempted to call Montoya as a witness,but that Montoya's lawyer would not allow her client to testifyand that he would have pled his fifth amendment right againstself-incrimination if called as a witness.

At an evidentiary hearing on the petition, on January 18,2001, the trial court found that the defendant did not receiveineffective assistance of counsel for failure to call Montoya,because Montoya was not available as a witness. The court deniedthe defendant relief.

On February 15, 2002, the defendant filed a secondpostconviction petition alleging a claim of actual innocence. The petition contained affidavits from both the defendant andMontoya stating that Montoya was willing to testify that thedefendant had no knowledge of the cocaine. The dismissal of thatpetition resulted in this appeal.

ANALYSIS

The key question is whether the trial court may summarilydismiss a successive, untimely post-conviction motion that raisesissues that have been previously litigated. The parties haveeach cited a case in support of their position, People v.Morales, 339 Ill. App. 3d 554, 791 N.E.2d 1122 (2003), and Peoplev. Smith, 341 Ill. App. 3d 530, 794 N.E.2d 367 (2003).

In Morales, the court stated in dicta that it would beimproper for the court to summarily dismiss a successivepostconviction petition on the basis of untimeliness or resjudicata. Morales, 339 Ill. App. 3d at 560-61, 791 N.E.2d at1128. However, the court found that the trial judge had properlydismissed the petition for being patently without merit. Morales, 339 Ill. App. 3d at 561, 791 N.E.2d at 1128-29.

In Smith, the court found that the trial court properlydismissed a petition in the first stage of the process when thepetition was successive and raised issues that could have beenraised in the first petition. In so deciding, the court appliedthe "cause and prejudice "test" of People v. Britt-el, 206 Ill.2d 331, 794 N.E.2d 204 (2002), which requires the defendant toshow that an objective factor, external to the defense, impededthe defendant's ability to raise the claim in the first petition,and that the claimed error "so infected the entire trial that theresulting conviction violates due process." Britt-el, 206 Ill.2d at 339, 794 N.E.2d at 209.

While we agree with Smith that the "cause and prejudice"test is appropriate in determining whether a successive petitionwill be allowed when there has been a procedural error in priorproceedings on the case, we do not believe that the test isappropriate here. In this case, the defendant has not allegederror below but, rather, raises an independent claim of actualinnocence.

In cases where the "cause and prejudice" test does notapply, the court will allow a successive petition when the denialof the petition would result in a fundamental miscarriage ofjustice. People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). The defendant may show a miscarriage byalleging a claim of actual innocence. Pitsonbarger, 205 Ill.2dat 459, 793 N.E.2d at 621. To show actual innocence, thedefendant must "show with a fair probability that, in light ofall the evidence, including that * * * available only after thetrial, the trier of facts would have entertained a reasonabledoubt of [the defendant's] guilt.'" Sawyer v. Whitley, 505 U.S.333, 339 n.5, 120 L.Ed. 2d 269, 280 n.5, 112 S. Ct. 2514, 2519n.5, (1992).

In this case, the defendant has alleged actual innocence. The potentially exculpatory testimony of Andres Elken Montoya wasnot previously available to the defendant. Montoya was notcalled as a witness at the defendant's trial. According to thedefendant's original trial counsel, this was because Montoya'sattorney maintained that Montoya would exercise his fifthamendment right if called as a witness. At that time and at thetime of the first petition, Montoya's testimony was unavailableto the defendant. Now, however, Montoya has stated that he wouldtestify to the defendant's lack of knowledge of the cocaine. The defendant had no control over Montoya's willingness totestify. Even the trial court, ruling on the defendant's initialpostconviction petition, found that the testimony was notavailable. Only when Montoya changed his position was thedefendant able to use the evidence to raise a claim of actualinnocence.

The State argues that the evidence does not establish thedefendant's actual innocence and that its use would not havechanged the outcome of the trial. The assertion is clearlyspecious. The evidence against the defendant was circumstantialand rested on the inference that the defendant must have knownabout the bales of cocaine hidden in the mobile home. Thetestimony from the driver of the van that the defendant was nottold about the cocaine would seriously undercut the State's case. The jury easily could have concluded that, absent being told thatthe cocaine was there, the defendant would not have known aboutit, especially in light of the fact that the cocaine was not observable by sight or smell but rather wrapped in black plasticand hidden. In any event, the State's objection is premature,since all the defendant must do at this point is allege the gistof a claim. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d102, 106 (1996).

The absence of Montoya's testimony calls into question theaccuracy of the defendant's conviction. Given the circumstantialnature of the State's case, the omission of the testimony issufficiently prejudicial to violate due process and raiseconcerns about a miscarriage of justice.

CONCLUSION

Clearly, Montoya's evidence is potentially exculpatory. Itsupports a claim of actual innocence that may be brought in apostconviction proceeding. The defendant has presented the gistof a claim of actual innocence that implicates a fundamentalmiscarriage of justice. For these reasons, the ruling of theHenry County circuit court is reversed and the case remanded forfurther proceedings consistent with this opinion.

Reversed and remanded.

SLATER, J., concurs.

SCHMIDT, J., dissents.

JUSTICE SCHMIDT, dissenting:

I dissent. The testimony at trial established thatdefendant's shoulder bag was sitting on and concealing one of thebags of cocaine. There was approximately 900 pounds of cocainein the motor home. Defendant testified that he did not knowabout the cocaine in the motor home. In his first postconvictionpetition, defendant alleged ineffective assistance of counselbecause of his attorney's failure to call Montoya as a witness. After an evidentiary hearing, the trial court found thatdefendant did not receive ineffective assistance of counsel forfailure to call Montoya.

In his second postconviction petition, defendant raises thesame issue, that of Montoya's testimony, only couched as a claimof actual innocence.

A successive postconviction petition may be dismissed at thefirst stage of review on the basis of waiver or res judicata. People v. Britt-El, 206 Ill. 2d 331, 794 N.E.2d 204 (2002);People v. Smith, 341 Ill. App. 3d 530, 794 N.E.2d 367 (2003).

I believe that the issues raised in defendant's successivepostconviction petition are the same issues he raised in theinitial postconviction petition, simply couched in a differentmanner. Therefore, the claim is barred by res judicata. Even ifit is not the identical issue, it is certainly an issue thatcould have been raised in the initial postconviction petition andtherefore, the successive petition is barred by waiver. Even theinitial postconviction petition is not intended to provide thedefendant with a retrial of issues that could have been raisedduring a previous proceeding. People v. Kitchen, 189 Ill. 2d424, 727 N.E.2d 189 (1999). Certainly, a successive petitionshould not be used to relitigate those issues.

Moreover, the proposed evidence does not establishdefendant's actual innocence. Defendant claims that Montoyawould testify that defendant had no knowledge of the cocaine. Montoya would not be able to give such testimony, only that hedid not tell the defendant about the cocaine, since a lay witnessmay not express an opinion or draw inferences from the facts. See People v. Crump, 319 Ill. App. 3d 538, 745 N.E.2d 692 (2001).

Even if Montoya testifies that he did not tell defendantabout the cocaine, this is a far cry from proving that defendantdid not know about the cocaine. There were four other passengersin the van in addition to Montoya and defendant. Montoyapreviously reported to police that only he and two otherpassengers had knowledge of the drugs. Even if the jury believedMontoya's testimony that he did not tell the defendant about thedrugs, this would not rule out one of the other passengerstelling defendant about the drugs. Montoya could not testifyregarding any conversations between defendant and the otherpassengers.

Some factual background is also worth mentioning indetermining whether this proposed testimony is likely to changethe result of the trial. Defendant lived in Miami but oftenworked in New Jersey as a carpenter and asbestos remover. Inmid-October 1995, defendant took a trip with Montoya, Miguel Londono (one of the other passengers in the motor home at thetime of the arrest) and Londono's wife in the motor home. Theyallegedly dropped defendant off at defendant's temporaryresidence in New Jersey and then continued to drive west. Themotor home broke down in Pennsylvania and defendant drove fromNew Jersey to Pennsylvania to arrange for the vehicle to berepaired. Subsequently, defendant bought a one-way ticket andtraveled from New Jersey to Los Angeles. On November 3,defendant testified that he, by coincidence, ran into Montoya ina parking lot of a motel. Montoya invited defendant to join himand the others on a trip to Chicago or Niagra Falls with stops inLas Vegas, Salt Lake City and Aspen. Defendant accepted theinvitation, although those stops never materialized. The motorhome was stopped and defendant and the other passengers werearrested on Interstate 80 in Henry County, Illinois, on November6, 1995.

Examining defendant's own testimony, we have him meeting upwith Montoya and others in Miami less than one month before hisarrest and accepting a ride from Miami to New Jersey in the motorhome. Montoya and the others left defendant in New Jersey, butwhen the motor home broke down in Pennsylvania, Montoya calleddefendant to drive to Pennsylvania to assist in makingarrangements for the repair of the motor home. Defendant did so. Defendant returned to New Jersey while Montoya and the motor homeheaded west. Around the first of November, defendant decided totake a vacation to Los Angeles (without his wife and children)and bought a one-way ticket to Los Angeles, went to a motel wherehe just happened, by coincidence, to run into Montoya and themotor home, which is now, unknown to defendant, loaded with $62million worth of cocaine. Having nothing else to do, defendantaccepted Montoya's invitation to drive back east with variousplanned stops at Las Vegas, Salt Lake City and Aspen. It wasunclear whether the final destination for the motor home wasChicago or Niagra Falls. During the trip from Los Angeles toIllinois, the heater in the rear of the motor home did not workso defendant never went to the rear of the motor home.

Obviously, the jury did not buy this story the first time. I believe we have to suspend all credulity to believe that thereis any chance the result will be different if Montoya takes thestand and testifies that he did not tell defendant about thepresence of the 900 pounds of cocaine in the motor home.

The majority, labeling this argument as specious, ignoreshow defendant happened to be in the motor home. He was not ahitchhiker. The evidence is overwhelming that he flew from NewJersey to Los Angeles to meet with Montoya.

In conclusion, I believe that the proposed testimony ofMontoya was neither new, noncumulative, nor likely to produce adifferent result upon retrial. Certainly, the defendant'ssuccessive postconviction petition did not state the gist of aconstitutional claim. To deny this successive petition would notresult in a fundamental miscarriage of justice. See People v.Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609 (2002). I wouldaffirm the trial court's order dismissing defendant's successivepostconviction petition.