People v. Alarcon

2022 IL App (2d) 210113-U No. 2-21-0113 Order filed July 26, 2022 NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-565 ) MODESTO ALARCON, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment. ORDER ¶1 Held: Trial court did not err in its second-stage dismissal of defendant’s postconviction petition claiming that defense counsel was ineffective for failing to introduce an English translation of the consent-to-search form where only the Spanish version signed by defendant was entered into evidence. Defendant’s petition failed to make a substantial showing of a constitutional violation because the allegations in the petition were insufficient to show prejudice occurred. Affirmed. ¶2 Defendant, Modesto Alarcon, was convicted of unlawful possession of a controlled substance (over 900 grams of heroin) (720 ILCS 570/401(A)(1)(D) (West 2014)) and money laundering (720 ILCS 5/29B-1 (West 2014)) following a bench trial in the circuit court of Kane County. On direct appeal, we affirmed. People v. Alarcon, 2018 IL App (2d) 170325-U 2022 IL App (2d) 210113-U (unpublished order pursuant to Supreme Court Rule 23). On October 31, 2019, defendant petitioned for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). The trial court advanced the petition to the second stage. The State filed a motion to dismiss the petition, which was granted. Defendant appealed. We affirm. ¶3 I. BACKGROUND ¶4 A. Trial Court Proceedings ¶5 The allegations in the indictment against defendant stem from an encounter with law enforcement which took place at defendant’s home on April 1, 2014. At about 4:25 p.m., law enforcement officers approached defendant in the front yard of his residence. The officers spoke to defendant in both English and Spanish. They did not have a warrant, and they did not have reasonable suspicion sufficient to justify a temporary detention. There was conflicting testimony in the record concerning whether the officers successfully obtained defendant’s permission to search his residence. Defendant and the police went into defendant’s house. While seated at the dining room table, defendant was given a consent-to-search form written in Spanish. Defendant signed the form. After the form was signed, the police executed a search of the premises. In a detached garage, they discovered approximately seven kilograms of heroin, currency, and a money counter. A handgun was discovered in the basement of the house, as was certain “packing material,” such as ziplock bags, a scale, and disposable respirator masks. ¶6 Defendant was taken to the police station in Aurora. Prior to waiving his Miranda rights, defendant was asked various personal questions, such as his name, his age, and the names of family members. …

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