People v. Nunez , 2022 IL App (3d) 210044-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210044-UOrder filed October 19, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-21-0044
v. ) Circuit Nos. 16-CF-457 and
) 16-CF-488
)
JUAN D. NUNEZ, ) Honorable
) Daniel L. Kennedy,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Presiding Justice O’Brien and Justice Peterson concurred with the judgment.
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ORDER
¶1 Held: The circuit court did not err in dismissing defendant’s first-stage postconviction
petition.
¶2 Defendant, Juan D. Nunez, appeals from the first-stage dismissal of his postconviction
petition, arguing that he established the gist of an ineffective assistance of counsel claim because
counsel allowed him to plead guilty to a Class X felony offense of child pornography when the
evidence was sufficient to support a Class 1 felony offense. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with failure to register as a sex offender (730 ILCS
150/3(a) (West 2016)) in case No. 16-CF-457. Defendant was also charged by indictment with
three counts of child pornography (720 ILCS 5/11-20.1 (West 2016)) in case No. 16-CF-488.
Count I in case No. 16-CF-488, a Class X felony, alleged that
“defendant *** knowingly solicited a female child he knew or reasonably
should have known to be under the age of 18, to appear in a digital video
depiction, said depiction identified by file name on a computer hard drive
as ‘2015-08-27_19-49-20.mp4’, which depicts a partially nude female
child dancing and exposing her breasts and vagina.”
Defendant retained private counsel.
¶5 Defendant pled guilty to failure to register as a sex offender in exchange for two years’
imprisonment in case No. 16-CF-457. Defendant pled guilty to count I in exchange for eight
years’ imprisonment and the State’s dismissal of the remaining charges in case No. 16-CF-488.
The State provided the following factual basis:
“Your Honor, in 16 CF 488, if called to testify, witnesses would testify on
August 27, 2015, the defendant knowingly solicited a 13-year-old female
from out of state in order to create a digital video depiction of her nude or
partially nude, that he did have such a video depiction as listed in the Bill
of Indictment created, that an investigation by the Internet Crimes Against
Children Task Force did locate this and learn that information and was
later confirmed through what they learned through the defendant’s
computer and speaking to them.”
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The court sentenced defendant to two years’ imprisonment in case No. 16-CF-457 and eight
years’ imprisonment in case No. 16-CF-488 to be served consecutively. Defendant did not file a
direct appeal.
¶6 Defendant filed as a self-represented litigant a postconviction petition wherein he alleged
that counsel was ineffective for allowing him to plead guilty in case No. 16-CF-488 because the
evidence failed to support the charge. Defendant argued that there was no evidence of him
possessing any moving images, rather all the evidence collected was of still photographs.
¶7 The court dismissed defendant’s petition at the first stage of proceedings. Defendant filed
a motion to reconsider, which the court denied. Defendant appeals.
¶8 II. ANALYSIS
¶9 Defendant argues he established the gist of an ineffective assistance of counsel claim
because counsel allowed him to plead guilty to a Class X felony offense of child pornography
when the evidence of record was only sufficient to support a Class 1 offense.
¶ 10 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) sets out
a three-stage proceeding in which a criminal defendant may assert that his conviction resulted
from a substantial denial of his rights under the United States Constitution, the Illinois
Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage, the court must
accept as true and liberally construe all the allegations in the petition unless contradicted by the
record. People v. Edwards, 197 Ill. 2d 239, 244 (2001). A defendant need only allege sufficient
facts to state the “gist” of a constitutional claim for his petition to be moved to the second stage.
Hodges, 234 Ill. 2d at 9. The circuit court may summarily dismiss a first-stage petition as
frivolous or patently without merit where it has no arguable basis in law or fact. Id. at 16. “A
petition which lacks an arguable basis either in law or in fact is one which is based on an
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indisputably meritless legal theory or a fanciful factual allegation.” Id. “An example of an
indisputably meritless legal theory is one which is completely contradicted by the record.” Id.The dismissal of a postconviction petition is reviewed de novo. Id. at 9.
¶ 11 “To prevail on an ineffective-assistance claim, a defendant must show that: (1) counsel’s
performance was deficient, and (2) the deficient performance prejudiced the defendant such that
he was deprived of a fair trial.” People v. Patterson, 217 Ill. 2d 407, 438 (2005). However, the
standard at the first stage of the Act is more lenient. People v. Tate, 2012 IL 112214, ¶ 19. At
this stage, defendant prevails if it is arguable that: (1) counsel’s performance fell below an
objective standard of reasonableness, and (2) defendant was prejudiced. Hodges, 234 Ill. 2d at
17. Failure to satisfy either prong is fatal to the claim. Strickland v. Washington, 466 U.S. 668,
697 (1984).
¶ 12 Here, it is not arguable that counsel’s performance fell below an objective standard of
reasonableness. The difference between a Class 1 and Class X felony offense of child
pornography is whether the violation involved a film, videotape, or moving depiction. See 720
ILCS 5/11-20.1(c) (West 2016). A violation involving a film, videotape, or moving depiction is
Class X felony. Id. One not involving a film, videotape, or moving depiction is a Class 1 felony.
Defendant argues that there was insufficient evidence to support a Class X felony because only
still images were confiscated by law enforcement. However, this claim is clearly contradicted by
the factual basis for defendant’s guilty plea—to which he raised no objection—which states that
defendant had a video depiction, identified as “2015-08-27_19-49-20.mp4,” of a partially nude
female child dancing and exposing her breasts and vagina. Accordingly, defendant’s ineffective
assistance of counsel claim fails, and the petition was properly dismissed. See Hodges, 234 Ill.
2d at 16-17.
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¶ 13 III. CONCLUSION
¶ 14 The judgment of the circuit court of Will County is affirmed.
¶ 15 Affirmed.
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