First District reverses dismissal of post-conviction petition based on Brady violation allegation

In People v. Morales, 2019 IL App (1st) 160225, the First District Appellate Court reviewed and ultimately reversed the decision of the Circuit Court of Cook County dismissing Morales’ post-conviction petition at the first stage of proceedings, and remanded for second-stage proceedings consistent with the Post-Conviction Hearing Act.

Appellant Ismael Morales was convicted at trial, along with five codefendants, of the 2007 robbery and murder of Francisco Reyes. The decisions in Morales’ (and codefendants’) case have been the subject of numerous appeals before the court, a number of which have resulted in remands for new trial. The subject of the appeal before the First District concerning Ismael Morales was that of the first-stage dismissal of his post-conviction petition. The petition alleged that the State, at trial, violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose the existence of an agreement between the State and its main witness, Francisco Garcia, for the State’s assistance in the witness’ immigration matters in exchange for his testimony. Id. at ¶ 2. Of secondary concern for the court was the claim of actual innocence based on the affidavit of Victor Redding, who claimed to have witnessed the attack on Reyes, who maintained that Morales was not one of the participants. Id. at ¶ 2. Redding’s affidavit directly contradicted testimony by Garcia and his wife, Sylvia Ortiz, at trial, who claimed to have seen Morales present during the attack and saw him strike Reyes with a rock. Id at ¶ 7-8.

Following conviction at trial, in November 2015, Morales filed a post-conviction petition, claiming a violation of Brady v. Maryland for the State’s failure to disclose their agreement with Garcia related to the exchange of testimony at trial for immigration matter assistance. Id. at ¶ 9. Morales produced a letter from the State’s Attorney’s office to INS (Immigration and Nationality Service) and a transcribed voicemail from Garcia to the State’s Attorney’s office in support of his petition. Additionally, the petition contained a claim of actual innocence, supported by an affidavit from Victor Redding, a witness to the robbery and murder of Reyes who asserted he was “sure that Mr. Ismael Morales was not involved.” Id. at ¶ 12. The circuit court summarily dismissed the petition, claiming that the Brady violation was frivolous because the jury “knew that these people were in the country illegally.” Id. at ¶ 13. The court found the claim of actual innocence to be “not in any way compelling” and lacking credibility. Id. at ¶ 13.

The Appellate Court’s analysis of Morales’ petition (and the court’s decision to dismiss it) focused exclusively on the evaluation criteria set out by the Post-Conviction Hearing Act for first-stage proceedings. As noted by the Appellate Court, under the Act, petitions may only be dismissed at the first stage of proceedings if they have “no arguable basis either in law or fact” and are based on an “indisputably meritless legal theory or a fanciful factual allegation.” Id. at ¶ 18. In the Court’s de novo review of the first-stage dismissal, they took the allegations in the petition as true and construed them liberally in favor of the petitioner. Id. at ¶ 18.

The United States Supreme Court held in Brady that due process requires the State to disclose “evidence favorable to the accused and material to guilt or punishment.” Id. at ¶ 20. The Appellate Court noted when a defendant alleges a violation of due process based on a violation of Brady, they must demonstrate three things: (i) the allegedly withheld evidence was favorable as either exculpatory or impeachment evidence, (ii) the prosecutor either willfully or inadvertently suppressed evidence, and (iii) the evidence was material to guilt or punishment. Id. at ¶ 20.

Morales alleged  that the withheld evidence of the agreement between the State and Garcia (and Ortiz) was material to his conviction because the State’s case hinged on that eyewitness testimony and was favorable to him because it had impeachment value. Id. at ¶ 21. The Appellate Court agreed with Morales that the evidence provided (INS letter and voicemail) constituted evidence of a pre-existing agreement that the State failed to disclose. Id. at ¶ 24. Moreover, the court held that while there exists the possibility for more than one interpretation of the information contained within the INS letter and voicemail, it is not the court’s responsibility to weigh competing interpretations, but rather to construe them liberally in Morales’ favor. Doing so lead to the conclusion that there was arguably an agreement between the State and Garcia that he would receive assistance in exchange for his testimony at trial. Id. at ¶ 26.

The court asserted that the State may be able to challenge the actual existence of a deal between both parties in later stages of proceedings, but under standards for first-stage review and the liberal construction afforded to Morales, the court found sufficient evidence in support of Morales’ claims regarding the State’s failure to disclose a pre-trial agreement. Id. at ¶ 29.

The State conceded Morales’ favorability argument regarding the impeachment value of the alleged agreement between the State and Garcia, acknowledging that it would have had the obligation to disclose any immigration deal it had with Morales. Id. at ¶ 31. The Appellate Court agreed with Morales that the disclosures of the discussions and alleged deal with Garcia would arguably have been favorable to Morales. Id. at ¶ 33. Moreover, in the context of materiality, the court held that it is “at least arguable that evidence of an agreement for immigration assistance between Garcia and the State would have been material” under the standards for materiality applied in ineffective assistance of counsel cases (Kyles v. Whitley, 514 U.S. 419, 434 (1995) and Strickland v. Washington, 466 U.S. 668, 694 (1984)). Id. at ¶ 35-36.

Under the Kyles standard, the court asserted in response to the State’s argument that Morales must only establish that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at ¶ 36. Ultimately, the court concluded that the information Morales identified was material as the truthfulness and memory of Garcia, whose testimony was “critical” to the State’s case. Id. at ¶ 37. The court rejected all arguments extending the Brady analysis to Ortiz. Id. at ¶ 38. The court did not evaluate any claims of actual innocence, as they are not necessitated nor permitted by the Act. Id. at ¶ 42.

The Appellate Court of Illinois First District reversed the first-stage dismissal or Morales’ post-conviction petition and remanded for second-stage proceedings consistent with the Act. Id. at ¶ 45.


Expunging your marijuana conviction under Illinois’ new Cannabis Regulation and Tax Act

On May 31, Illinois House Bill 1438, better known as the Cannabis Regulation and Tax Act, passed the Illinois House of Representatives by a vote of 66-47. The Act now awaits the signature of Governor J.B. Pritzker – a vocal supporter of the bill – prior to making Illinois the 11thstate in the United States to legalize marijuana for recreational purposes. Once the Act is signed, the sale, possession, production (through the licensure system) and recreational use of marijuana by persons 21 years or older will become legal in Illinois, effective January 1, 2020.

In addition to ending the prohibition on marijuana usage in Illinois, the Act also includes sweeping social justice provisions focused on expunging the criminal records of those arrested and/or convicted of non-violent marijuana related offenses. Whether or not an individual is eligible for expungement under the Act, or required to take action in order to have their record expunged, is largely dependent upon the type of crime they were originally arrested for and the date of that offense.

Can My Marijuana Conviction be Expunged?

The short answer to this question is (in most cases), yes.

However, while the Cannabis Regulation and Tax Act’s expungement provisions are expected to impact roughly 770,000 Illinois residents, not all offenses are eligible for expungement. Additionally, under the Act, certain offenses may be subject to automatic expungement while others may require individuals to petition the court in order to be considered for expungement.

Automatic Expungement

The Act mandates the review and automatic expungement (by local state’s attorneys, the state Prison Review Board and Governor’s office) of all “minor cannabis offenses,” so long as at least one calendar year has passed since the date of arrest and no subsequent criminal charges were filed related to the arrest.

The Act defines a “minor cannabis offense” as:

“a violation of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.”

Under this definition, a majority of non-violent offenses related to the possession, manufacture and distribution of less than 30 grams of marijuana will be eligible for automatic expungement.

The automatic expungement mandate does NOT apply to marijuana related arrests and convictions associated with arrests and/or convictions for:

  • Violent sexual offenses
  • Sexual offenses against a minor
  • Stalking offenses
  • Any offense resulting in a court order to register as a Sex Offender
  • Animal abuse offenses
  • Violations of local ordinances

The Act also provides a schedule (and deadlines) for law enforcement agencies to automatically expunge qualifying offenses and records based upon the initial date of arrest.

  • Records created prior to the effective date of the Act (January 1, 2020), but on or after January 1, 2013, shall be automatically expunged prior to January 1, 2020
  • Records created prior to January 1, 2013, but on or after January 1, 2020, shall be automatically expunged prior to January 1, 2023
  • Records created prior to January 1, 2000 shall be automatically expunged prior to January 1, 2025

All qualifying offenses are required to be automatically expunged no later than January 1, 2025, five years from the effective date of the Act.

Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged.

Expungement by Petition

All individuals with records of marijuana offenses related to possession of between 30 and 500 grams of cannabis (misdemeanors or Class 4 felony violations of Sections 4 or 5 of the Cannabis Control Act), while ineligible for automatic expungement, are provided the opportunity to petition the circuit court for expungement (and a vacated conviction) under the Act. Unlike records eligible for automatic expungement, these petitions are not guaranteed to result in expungement (or a vacated conviction), but do create the opportunity for such a result, which did not exist prior to the Act.

This process, as detailed by the Act, allows qualified “petitioners” (individuals seeking expungement) to petition the circuit court for expungement following “the completion of any sentence or condition imposed by the conviction.” This includes all instances of:

  • Acquittal, dismissal or release without charges
  • Vacated or reversed convictions
  • Successfully completed of orders of supervision
  • Successfully completed probation

The Act provides time frames (designated waiting periods) for filing a petition to expunge for each categories of petitioner:

  • For arrests resulting in acquittal, dismissal, release without charges, a vacated conviction or reversal, there is no waiting period to petition for expungement of those records
  • For arrests resulting in an order of supervision for any offenses not specifically outlined by the Act, petitioners must wait 2 years following the satisfactory termination of supervision to petition for expungement of those records
  • For arrests related to the listed violations of the Illinois Vehicle and Criminal Codes (Section 3-707, 3-708, 3-710, or 5-401.3 of the Illinois Vehicle Code, Section 11-1.50, 12-3.2, 12-15 of the Criminal Code of 1961 or 2012), petitioners must wait 5 years from the satisfactory termination of supervision to petition for expungement of those records.
  • For arrests resulting in an order of qualified probation, petitioners must wait 5 years following the satisfactory termination of probation to petition for expungement of those records

Because these petitions are not guaranteed to result in expungement, the court will take into account the reasons for law enforcement to maintain a petitioner’s records; the petitioner’s age; their age at the time of the offense; the time since conviction; and, the adverse consequences the petitioner would suffer if their petition was denied, prior to making a decision regarding expungement.

The Act also allows the state’s attorney offices of any Illinois country to file motions to expunge records on behalf of any convicted individual whose conviction the office has jurisdiction over.

Questions About Expungement?

For individuals seeking expungement under the Cannabis Regulation and Tax Act, we highly recommend contacting an attorney to discuss your options and eligibility. If you are in need of an attorney for assistance with expungement of marijuana-related offenses or any other criminal defense, post-conviction, or appeals issues, please call Nate Nieman at (309) 623-4831 or email to schedule a consultation at one of our convenient locations in the Quad Cities, Chicago, or Des Moines.