No. 1-14-1740 Opinion filed November 22, 2016 Second Division ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 08 CR 3180 ) DANIEL ROMAN, ) The Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion.

OPINION

¶1 After his conviction for first degree murder and robbery was affirmed, Roman filed a pro

se postconviction petition. He alleged that the State violated his due process rights under Brady

v. Maryland,

(1963), by failing to disclose evidence showing the State allegedly

assisted two witnesses obtain citizenship and disability benefits in exchange for their testimony.

The trial court dismissed the petition finding no Brady violation. We determine Roman failed to

present the gist of a constitutional claim as he has not shown that the State suppressed evidence

material to the finding of his guilt or to the punishment imposed on him. No. 1-14-1740

¶2 BACKGROUND

¶3 The underlying facts are recounted in the opinion disposing of Roman’s appeal from

conviction. People v. Roman,

. Here, we state only those facts

necessary to address the issues raised in this appeal.

¶4 Roman, his brother Martin, Adolfo Zuniga, and Carlos Lopez, along with Roman’s

cousins Ismael and Omar Morales, were charged with murder and robbery. The victim, a forklift

operator at a tortilla factory, was fatally beaten. Roman elected a bench trial and was tried

simultaneously with codefendant Ismael Morales, whose case was heard by a jury. Fernando

Garcia and his girlfriend, Sylvia Ortiz, who lived in an apartment near the tortilla factory,

witnessed the incident from their apartment window. Initially reluctant to talk to the police,

Garcia and Ortiz went to the police station a few days later, explained what they saw, and

identified Roman and his codefendants in photo arrays and in a lineup. At trial, Garcia and Ortiz

testified that they saw the men pull the victim off the forklift and kick and punch him, take his

wallet, and drop a concrete rock on his head. The State presented several other witnesses,

including the responding police officers, detectives who investigated the murder, a forensic

scientist, and the medical examiner.

¶5 The trial court found Roman guilty of first degree murder and robbery and sentenced him

to 35 years and 7 years respectively, to be served concurrently. After this court affirmed on direct

review, Roman filed a pro se postconviction petition alleging, in part, that the State violated his

due process by committing a Brady violation. Specifically, Roman alleged that the State failed to

disclose a promise to help Garcia with immigration and disability benefits issues in exchange for

his and Ortiz’s cooperation. Roman attached to the petition a letter from Assistant State’s

Attorney (ASA) Andrew Varga to the Immigration and Naturalization Service (INS) dated July

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10, 2010. In the letter, ASA Varga wrote, “I am writing to you in connection with Mr. Garcia’s

citizenship application.” ASA Varga explained that he became acquainted with Garcia during the

prosecution of five men for first degree murder because Garcia was an eyewitness to the murder.

Varga wrote:

“Mr. Garcia’s cooperation with the Chicago Police Department and Cook County

State’s Attorney’s Office personnel investigating the case was instrumental in the

arrest and eventual charging of the offenders. Subsequently, Mr. Garcia has testified

in the jury trials of the juvenile offender, two of the adult offenders and in a bench

trial of a third adult offender. All four were convicted of First Degree Murder. It is

anticipated that Mr. Garcia will be called to testify at the trial of the remaining two

adult offenders. It is our expectation that those offenders will go to trial by early

2011.”

¶6 In response to an impound order filed by Roman’s appellate attorney, the letter was

impounded on April 27, 2011, and was part of the record on appeal from the conviction.

¶7 Roman also attached a document entitled “supplemental answer to discovery” that the

State filed in the cases of codefendants Martin Roman and Adolfo Zuniga. In that document, the

State disclosed that on January 31, 2011, the day before the codefendants’ trial began, Garcia left

a voicemail message for Patricia Gonzalez, a Cook County State’s Attorney, stating, “[i]f you

don’t help me with immigration or disability I’m going to deny everything and I’m going to say

that you forced me to say everything I’ve already said ***.” The transcript of the call, which was

made after Roman’s conviction and before the appeal from his conviction, was not a part of the

record on direct review.

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¶8 Roman argued that the State violated his due process rights and committed a Brady

violation by failing to disclose the transcript of Garcia’s voicemail, which he contended was

evidence the State promised to help Garcia and Ortiz with their immigration and disability issues

in exchange for their testimony and that the State knew Garcia’s testimony was perjured. Roman

argued that if the State had disclosed this document, there is a reasonable probability that the trial

court would have viewed Garcia’s and Ortiz’s testimony with more scrutiny. Roman also argued

that his trial counsel was ineffective for failing to uncover evidence of a deal and that his

appellate counsel was ineffective for failing to raise the Brady violation on direct review.

¶9 On April 16, 2014, the trial court dismissed Roman’s petition, finding that his assertion

of a Brady violation to be a mischaracterization, stating, “His complaint is that his lawyer and

appellate lawyer didn’t properly point out that the witness on the case, the Government’s primary

witness, had called the State’s Attorney’s office demanding some help with immigration issues

he had. That happened after this man’s trial. We were proceeding on another trial with a

codefendant. The lawyer had ample opportunity to aggressively cross-examine the witness.” The

court concluded, “I don’t find that this pro se petition has merit at all in any of its claims. It is

accordingly denied.” Roman appeals, addressing only the trial court’s Brady finding and not the

merits of his ineffective assistance of counsel claims.

¶ 10 ANALYSIS

¶ 11 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) provides

a process by which a convicted defendant may assert a substantial denial of his or her

constitutional rights in the proceedings that led to the conviction. People v. Harris,

(2007). A proceeding under the Act does not constitute a continuation or substitute for

an appeal of the conviction. Rather, it serves as a collateral proceeding that is limited to claims

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that were not, but could have been, previously litigated. People v. Petrenko,

(2010). “Consequently, any issues that were decided on direct appeal are res judicata, and any

issues that could have been presented on direct appeal, but were not, are forfeited.” People v.

Reyes,

(2006). We review the summary dismissal of a postconviction

petition de novo. People v. Coleman,

(1998).

¶ 12 A postconviction proceeding has three distinct stages. People v. Boclair,

(2002). At the first stage of a postconviction proceeding, we focus on whether the petition sets

forth a “gist” of a constitutional claim.

. If the court determines that the defendant

satisfied the minimum pleading threshold, then the petition moves on to second-stage

proceedings. 725 ILCS 5/122-2.1(b) (West 2014). At the second stage, an indigent defendant has

a right to counsel, and the State may file an answer or a motion to dismiss the defendant’s

petition for postconviction relief. Id.; People v. Edwards,

(2001). During

this stage, the trial court reviews the petition and accompanying documents to determine whether

the defendant made a “substantial showing” that a constitutional violation occurred. Edwards,

. If the defendant fails to make the requisite showing, the petition will be

dismissed; otherwise, it proceeds to the third stage, an evidentiary hearing. 725 ILCS 5/122-6

(West 2014); People v. Childress,

(2000).

¶ 13 As indicated, the first stage requires a postconviction petition, among other things, to

“clearly set forth the respects in which petitioner’s constitutional rights were violated.” 725 ILCS

5/122-2 (West 2014); People v. Hodges,

(2009) (defendant must state “gist” of

a constitutional claim). A defendant need only present a limited amount of detail in the petition.

People v. Delton,

(2008); People v. Torres,

(2008).

Because at this stage the defendant drafts most petitions with little legal knowledge or training,

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we impose a low threshold for survival. Delton,

; Torres,

. The

petition need not contain legal argument or citation to legal authority. Hodges,

.

Nevertheless, broad conclusory allegations are never enough even under the low threshold of the

first stage. Delton,

.

¶ 14 The allegations in a postconviction petition have to be supported by affidavits, records, or

other evidence to demonstrate that the petition’s allegations are capable of “ ‘objective or

independent corroboration.’ ” Delton,

(quoting People v. Hall,

(2006) (citing People v. Collins,

(2002))); 725 ILCS 5/122-2 (West 2014).

The petition may be summarily dismissed as frivolous or patently without merit only if it has no

arguable basis in either law or in fact. People v. Tate,

.

¶ 15 The State insists that Roman’s postconviction claims could have been raised on direct

review, and thus are forfeited. Specifically, the State notes that the original appellate record

contains the letter from ASA Varga to the INS, rebutting Roman’s claim that he was unaware of

the letter’s existence and could not challenge the issue on direct review. Furthermore, the State

contends the letter does not show that the State’s Attorney’s Office helped Garcia and Ortiz with

the citizenship process or that assistance in that process was predicated on their testifying on the

State’s behalf. Roman argues that the letter, considered in conjunction with the transcript of

Garcia’s voicemail message, is evidence that Garcia and Ortiz testified falsely in exchange for

the State’s help on immigration and disability matters.

¶ 16 Although the State immediately disclosed the voicemail transcript in the codefendants’

case, it is absent from the record in Roman’s case. Thus, at the time of his direct review, based

on the INS letter alone, appellate counsel did not have a valid argument that there was evidence

showing the State agreed to assist Garcia and Ortiz in exchange for their cooperation.

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Accordingly, the issue is not waived on res judicata grounds and we must determine whether the

State committed a Brady violation as to either document.

¶ 17 Under Brady, the State violates a defendant’s right to due process by failing to disclose

evidence that is favorable to the accused and material to either guilt or punishment. People v.

Beaman,

(2008). A Brady claim requires a defendant demonstrate (i) the

undisclosed evidence favors the accused as exculpatory or for impeachment purposes; (ii) the

State willfully or inadvertently suppressed the evidence; and (iii) the accused was prejudiced

because the evidence was material to guilt or punishment.

; see also People v. Ellis,

(2000) (sentencing witness’s cooperation constitutes benefit which

State must disclose).

¶ 18 Evidence is material where a reasonable probability exists that disclosure of the evidence

would have resulted in a different outcome. Smith v. Cain,

,

(2012);

see also Strickler v. Greene,

(1999) (“[S]trictly speaking, there is never a real

‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability

that the suppressed evidence would have produced a different verdict.”). A reasonable

probability does not require it to be more likely than not that the defendant would have received

a different verdict with the additional evidence, but rather, the likelihood of a different result

must be great enough to undermine confidence in the verdict.

This is not a sufficiency of the

evidence test. People v. Coleman,

(1998). Nonetheless, impeachment

evidence may not be material where the State’s remaining evidence is strong enough to preserve

confidence in the verdict. Smith,

,

. Also, the cumulative effect of the

suppressed evidence informs the materiality determination. Coleman,

.

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¶ 19 The State denies that it promised to assist Garcia with immigration and disability benefits

issues in exchange for his testimony. The State concedes, however, that if it had done so, that

information could have been the subject of impeachment on cross-examination, satisfying the

first Brady requirement. Thus, we turn to whether, as the State argues, Roman falls short of

establishing the other two remaining Brady requirements.

¶ 20 Roman contends the State willfully suppressed evidence of a quid pro quo agreement

with Garcia by not disclosing the INS letter until after his trial and not disclosing to him Garcia’s

voicemail transcript. We need not determine whether the State actually delayed disclosure of the

letter or suppressed the transcript of the voicemail message willfully or inadvertently, in

violation of Brady, because Roman’s petition fails to make a sufficient showing that there is a

reasonable probability either document would have affected the outcome of his trial.

¶ 21 As to the letter, as already noted, it was dated July 10, 2010, after Roman was convicted

and before he was sentenced. It was part of the record on appeal and thus, should have been

raised on direct review, but was not. Roman contends the State should have turned the letter over

sooner so the issue could have been raised in his motion for a new trial. But based on the

substance of the letter, Roman cannot show that he was prejudiced by the State’s failure to turn

over the document until after the trial court ruled on his motion for a new trial. In the letter, ASA

Varga merely states that he is acquainted with Garcia, who was a witness in multiple

prosecutions. The letter neither indicates nor suggests the State assisted Garcia and Ortiz in their

immigration matter or that the State provided the letter in exchange for or in recognition of their

testimony in his case. Thus, the letter’s earlier disclosure would not have had an affect on the

outcome of Garcia’s trial or his motion for a new trial.

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¶ 22 Similarly, the transcribed voicemail message that Garcia left for an assistant State’s

Attorney almost five months after Roman’s sentencing hearing, is not material to Roman’s guilt

or innocence. It does not show that the State agreed to help Garcia in exchange for or in

recognition of his testimony or that any assistance was predicated on Garcia’s and Ortiz’s

testimony. According to the transcription, Garcia threatened that if the State’s assistance was not

forthcoming he was going to “deny everything” and would testify in the codefendants’ cases that

the State forced him to say what he already said. The message, though, neither refers nor alludes

to Garcia’s and Ortiz’s testimony offered in Roman’s case. And the timing of the message—the

day before the codefendants’ trial began—indicates that Garcia was only referring to his

testimony in that case and not Roman’s case, which as noted, concluded months earlier.

Moreover, the message does not lend support to Roman’s contention that they were lying when

they testified in his case; to the contrary, the message conveys that they told the truth in Roman’s

case and were making threats regarding their upcoming testimony in the codefendants’ cases.

Regardless, the message is probative of nothing material to Roman’s guilt or innocence.

¶ 23 CONCLUSION

¶ 24 Because the contents of the INS letter and the voicemail transcript were not material to

Roman’s guilt or his punishment, Roman’s postconviction petition fails to make a gist of a

constitutional claim of a Brady violation regarding either document. Therefore, we affirm the

trial court’s dismissal of the postconviction petition.

¶ 25 Affirmed.

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