People v. Montes, 2014 IL App (2d) 140485 (February 6, 2015) Kane Co. Affirmed. Defendant Augustine Montes was convicted of attempted first-degree murder and aggravated battery following a jury trial in absentia. He received concurrent sentences of 26 years on the attempted murder charge and 10 years on the aggravated battery charge. His convictions and sentences were affirmed on direct appeal. Montes then filed a post-conviction petition alleging actual innocence based on a theory of entrapment and ineffective assistance of counsel.

Montes’ post-conviction petition alleged that he obtained evidence after trial that would have supported an entrapment defense in the form of an affidavit from a man who indicated that, contrary to his trial testimony, another man “‘induced and incited” the incident by possessing a firearm and putting everyone in a position to commit a crime.” ¶ 12. An additional affidavit from defendant’s trial attorney was attached to the petition indicating that it was defense counsel’s understanding that the affiant who would testify to these events was unavailable to be interviewed or called as a witness because he had several pending criminal cases.

Montes also argued that his trial counsel was ineffective for failing to discuss with him tendering a jury instruction on the lesser-included offense of reckless discharge of a firearm. An affidavit from trial counsel was attached indicating that trial counsel did not discuss this jury instruction with defendant and that defendant was not advised of the possibility of asking for it. Montes also argued that trial counsel was ineffective for not seeking a plea deal from the State.

The trial court summarily dismissed the defendant’s petition, finding that the affidavit from the witness was not “newly discovered evidence,” nor was it non-cumulative or so conclusive that it was likely to change the result on retrial. The court also found that defendant’s ineffective assistance claim was forfeited by failing to raise it on direct appeal and that the claim was factually insufficient because defendant did not attach an affidavit asserting that he would have demanded the submission of the lesser-included-offense instruction. ¶ 16. Montes appealed.

The appellate court affirmed the trial court’s dismissal of the petition, holding that defendant forfeited his entrapment defense because he failed to raise it at trial, he never complained that counsel failed to raise that defense, he did not raise the defense on direct appeal, and he did not complain of ineffective assistance of counsel on appeal for his appellate lawyer’s failure to raise it there. Accordingly, this claim was forfeited. ¶ 19, citing People v. Davis, 2014 IL 115595, ¶ 13 (in a postconviction setting, issues that were raised and decided on direct appeal are barred by res judicata, while issues that could have been raised on direct appeal, but were not, are forfeited).

On the issue of whether the information from the witness was considered “newly discovered,” the court explained that “‘Usually, to qualify as new evidence, it is the facts comprising that evidence which must be new and undiscovered as of trial, in spite of the exercise of due diligence. Generally, evidence is not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative.” (Emphases added.) ¶24, quoting People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). The affidavit from the witness was therefore not “newly discovered” because the defendant knew of the existence of these facts prior to trial, but did not raise them at trial. The court acknowledged that defendant may counter that even if he knew these facts, the witness who would testify to them was unavailable because he would be unwilling to testify. However, the court noted, defendant could have testified to these facts himself at trial, but he chose not to even be present at the trial.

Related to that is defendant’s second claim that defense counsel failed “to discuss with defendant whether to submit to the jury a lesser-included-offense instruction, but defendant was not present at trial for counsel to do so. Counsel could not submit a lesser-included-offense instruction without the opportunity to discuss it with defendant and without defendant’s consent. Id. at 230. Thus, by absenting himself from trial, defendant precluded counsel from fulfilling the obligation to discuss with him the availability of a lesser-included-offense instruction.” Dismissal of the petition was therefore affirmed.

The somewhat unique aspect of this case is that the defendant was tried for this serious charge in abensentia. That severely impacted his ability to argue that certain evidence that he knew existed should have been presented and to argue that defense counsel failed to consult with him about tendering a lesser-included instruction. If the defendant had been present for his trial, he could have asked his attorney to go into certain lines of questioning, and the defense attorney would have then had an obligation to discuss with him the possibility of tendering a lesser-included instruction. The defendant just being present could have positively impacted the result of the trial.