People v. Porcayo-Bahena

2023 IL App (2d) 210393-U No. 2-21-0393 Order filed May 22, 2023 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 Lake County. ) Respondent-Appellee, ) ) v. ) No. 10 CF 3014 ) CARLOS PORCAYO-BAHENA, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE HUTCHINSON delivered the judgment of the court. Justices Birkett and Kennedy concurred in the judgment. ORDER ¶1 Held: Trial and appellate counsel were not ineffective for failing to challenge trial court’s ruling that witness could invoke her privilege against self-incrimination; postconviction counsel was presumed to have made a reasonable effort to obtain evidence supporting the amended postconviction petition. ¶2 Defendant, Carlos Porcayo-Bahena, appeals an order of the circuit court of Lake County dismissing his postconviction petition (see 725 ILCS 5/122-1 et seq. (West 2016)) after second- stage proceedings. He raises two main issues. First, defendant contends that trial counsel and appellate counsel were ineffective for failing to properly challenge the trial court’s ruling that a 2023 IL App (2d) 210393-U witness (Maria Porcayo, hereinafter “Maria”) could invoke her fifth-amendment privileges (see U.S. Const., amend. V). Defendant also contends that postconviction counsel did not provide reasonable assistance because counsel failed to attach certain evidence to defendant’s postconviction petition. For the reasons that follow, we affirm. ¶3 I. BACKGROUND ¶4 In resolving defendant’s direct appeal in this matter, we set forth the facts of this case. See People v. Porcayo-Bahena, 2014 IL App (2d) 121379-U, ¶ 3. We will not reiterate them here; rather, we limit our discussion to the facts pertinent to this appeal. ¶5 Defendant stands convicted of one count of predatory criminal sexual assault and six counts of aggravated criminal sexual abuse. Two victims were involved, L.O. and A.O. Both testified regarding the details of the offenses. See Porcayo-Bahena, 2014 IL App (2d) 121379-U, ¶¶ 4-8. At issue in this appeal are the trial court’s rulings concerning certain impeachment evidence that defendant was unable to offer against the two victims. Defendant points to evidence that he asserts established a motive for these witnesses to fabricate the charges against him. He alleged that his trial counsel and his appellate counsel were ineffective for failing to raise this issue on direct appeal. ¶6 Regarding the alleged motive of these witnesses, defendant sought to call Maria (the victims’ mother) and question her about, inter alia, her immigration status and that of L.O. and A.O. The trial court found that Maria could invoke her fifth-amendment rights and decline to answer questions about her immigration status. Defendant wanted to introduce this testimony to establish the relevance of additional evidence regarding how fabricating charges against defendant would have allowed Maria or her children to obtain a U-Visa. A U-Visa allows certain victims of criminal activity to remain in …

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