{ "id": 256319, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR MARQUEZ, Defendant-Appellant", "name_abbreviation": "People v. Marquez", "decision_date": "2001-08-27", "docket_number": "No. 1 \u2014 00\u20140219", "first_page": "711", "last_page": "728", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 711" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "195 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725352 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "163" }, { "page": "163-64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0142-01" ] }, { "cite": "209 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541835 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "269" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0265-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" }, { "page": "697" }, { "page": "699" }, { "page": "2069" }, { "page": "689" }, { "page": "694-95" }, { "page": "2065" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "189 Ill. 2d 521", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224773 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "544", "parenthetical": "refusing to consider and expressing no opinion as to the merits of a claim defendant first raised on appeal from the dismissal of his postconviction petition" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0521-01" ] }, { "cite": "110 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2998956 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "828-29" }, { "page": "828" }, { "page": "829" }, { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0821-01" ] }, { "cite": "287 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520962 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "991, 995-96" }, { "page": "996" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0988-01" ] }, { "cite": "24 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308282 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "450" }, { "page": "451-53" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0449-01" ] }, { "cite": "13 Cal. Rptr. 466", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1961, "pin_cites": [ { "page": "467" }, { "page": "467" } ], "opinion_index": 0 }, { "cite": "192 Cal. App. 2d 604", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2332148 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "605" }, { "page": "605-06" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/192/0604-01" ] }, { "cite": "292 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725078 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0193-01" ] }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "year": 1985, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0327-01" ] }, { "cite": "43 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2843220 ], "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0256-01" ] }, { "cite": "208 Ill. App. 3d 979", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548536 ], "year": 1991, "pin_cites": [ { "page": "982" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0979-01" ] }, { "cite": "296 Ill. App. 3d 271", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222583 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "276" }, { "page": "277" }, { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0271-01" ] }, { "cite": "103 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152474 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "332" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0327-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "149" }, { "page": "496" }, { "page": "1447" } ], "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "177 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317108 ], "year": 1997, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0462-01" ] }, { "cite": "279 Ill. App. 3d 575", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75236 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "580" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0575-01" ] }, { "cite": "167 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222767 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "9" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0001-01" ] }, { "cite": "262 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850557 ], "year": 1994, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0079-01" ] }, { "cite": "242 Ill. App. 3d 941", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120240 ], "year": 1993, "pin_cites": [ { "page": "946" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0941-01" ] }, { "cite": "245 Ill. App. 3d 1037", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384893 ], "year": 1993, "pin_cites": [ { "page": "1040" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/1037-01" ] }, { "cite": "268 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381860 ], "year": 1994, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0574-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "385" }, { "page": "380-81, 388-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "283 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182783 ], "year": 1996, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0312-01" ] } ], "analysis": { "cardinality": 1157, "char_count": 38903, "ocr_confidence": 0.772, "pagerank": { "raw": 7.276253700089184e-08, "percentile": 0.4332748743266499 }, "sha256": "3b4dff56bcfe77ebdf52714609a60cfe3cc72fec60f2f6ffbb1f3da8440b82d1", "simhash": "1:a3faf4aa757fa9cb", "word_count": 6352 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR MARQUEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Hector Marquez was convicted of criminal drug conspiracy and sentenced to a 15-year prison term. The judgment was affirmed on direct appeal. People v. Marquez, No. 1 \u2014 97\u20144013 (1999) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition for postconviction relief, which the trial court summarily dismissed as frivolous and patently without merit. Defendant contends on appeal that his petition stated the gist of several meritorious claims: (1) that he did not voluntarily and intelligently waive his right to a jury trial; (2) that he was deprived his right to confront his accusers and be present at every stage of the trial; and (3) that he received ineffective assistance of counsel.\nI. BACKGROUND\nDefendant\u2019s conviction was the result of a 1996 Drug Enforcement Administration (DEA) investigation of several people believed to be involved in the sale of large amounts of cocaine in Chicago. The facts are set forth in this court\u2019s order on direct appeal and will be repeated here only as necessary. People v. Marquez, No. 1 \u2014 97\u20144013 (1999) (unpublished order under Supreme Court Rule 23).\nIn his pro se postconviction petition and supporting memorandum, defendant alleged that he is of Mexican descent, speaks a Spanish dialect that differs greatly from the \u201cnormal\u201d Spanish dialect spoken in the United States, speaks little English, and had a \u201cgrossly inadequate\u201d understanding of the American judicial system. Defendant asserted that at the time he waived his right to a jury, he did not understand what was happening in court and \u201cwas just told by his counsel to answer \u2018yes\u2019 \u201d to the trial court\u2019s questions. Defendant contended that because he did not have the aid of a certified interpreter, he did not voluntarily and intelligently waive his right to a jury trial, he was deprived of his right to confront his accusers, and he was deprived of his right to be present at trial. Defendant argued that his trial counsel was ineffective for failing to discredit testimony from the confidential informant by showing his interest, bias, and motive to testify falsely. In support of his petition, defendant attached portions of the trial transcript.\nII. ANALYSIS\n\u20221 The Post-Conviction Hearing Act (Act) establishes a three-step process for adjudicating petitions for postconviction relief. 725 ILCS 5/122 \u2014 1 et seq. (West 1998). A petition must clearly set forth sufficient facts demonstrating the way in which the petitioner\u2019s constitutional rights were violated. 725 ILCS 5/122 \u2014 2 (West 1998). At the first stage, the court is not to consider the petition on the merits. Instead, the court considers the petition, with no input from the State, in order to determine if it is frivolous and patently without merit. If the court determines within 90 days of its filing that the petition is frivolous or patently without merit, it must summarily dismiss the petition. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998). If the petition is not dismissed, the State is required at the second stage to answer the petition or file a motion to dismiss. 725 ILCS 5/122 \u2014 5 (West 1998). If the court does not dismiss the petition on the State\u2019s motion, then an evidentiary hearing is conducted at the third and final stage of the process. People v. Hernandez, 283 Ill. App. 3d 312, 316 (1996).\n\u20222 In this case, the proceeding was only in the first stage. \u201cAt the dismissal stage of a post-conviction proceeding, all well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true.\u201d People v. Coleman, 183 Ill. 2d 366, 385 (1998). The summary dismissal of a postconviction petition is subject to de nova review. Coleman, 183 Ill. 2d at 380-81, 388-89. A pro se petition is to be construed liberally. People v. Smith, 268 Ill. App. 3d 574, 580 (1994). A pro se petition is required to state the gist of a meritorious constitutional claim in order to survive summary dismissal. Coleman, 183 Ill. 2d at 380 n.2. However, the gist of a meritorious claim is not established by a bare allegation of a deprivation of a constitutional right. People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993). A pro se defendant must allege sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. People v. Lemons, 242 Ill. App. 3d 941, 946 (1993). The allegations in a pro se postconviction petition must be supported by the record or accompanying affidavits or other evidence. 725 ILCS 5/122 \u2014 2 (West 1998); People v. Seaberg, 262 Ill. App. 3d 79, 82 (1994). Alternatively, the petition must state why supporting affidavits, records, or other forms of evidence are not attached. 725 ILCS 5/122 \u2014 2 (West 1998).\n\u20223 A postconviction proceeding is a collateral attack on a judgment of conviction and is limited to constitutional issues that have not been, and could not have been, presented on direct appeal. People v. Franklin, 167 Ill. 2d 1, 9 (1995). Issues decided by a reviewing court on direct appeal are barred by res judicata, and any issue that could have been presented on direct review is considered waived for postconviction review. Franklin, 167 Ill. 2d at 9.\nA. Jury Waiver\nDefendant\u2019s first contention on appeal is that his petition stated the gist of a meritorious claim that he did not voluntarily and intelligently waive his right to a jury trial. He claims he did not have a sufficient command of the English language to understand the trial court\u2019s admonitions. He contends that the record demonstrates that he was deprived of an interpreter even after the assistant State\u2019s Attorney questioned his ability to understand English on two separate occasions. Defendant alleged that he speaks an unusual Spanish dialect, speaks little English, and had a \u201cgrossly inadequate\u201d understanding of the American judicial system at the time of his trial. He also asserted that at the time he waived his right to a jury, he did not understand what was transpiring in the court and \u201cwas just told by his counsel to answer \u2018yes\u2019 \u201d to the trial court\u2019s questions.\n\u20224 The State argues that because defendant did not raise this issue on direct appeal, it is waived. However, the waiver rule may be relaxed where the facts relating to the claim do not appear in the original appellate record, where the defendant\u2019s arguments stem from the incompetency of the original appellate counsel, or where fundamental fairness so requires. People v. Hayes, 279 Ill. App. 3d 575, 580 (1996). We are mindful of the importance of the right to a jury trial, and we review defendant\u2019s claim that his jury waiver was invalid based on the third exception, fundamental fairness. People v. Tooles, 177 Ill. 2d 462, 465 (1997).\n\u20225 The right to trial by jury is fundamental to the American criminal justice system. Duncan v. Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 496, 88 S. Ct. 1444, 1447 (1968). Both the United States Constitution and the Illinois Constitution provide for jury trials in criminal cases. U.S. Const, amends. VI, XIV; Ill. Const. 1970, art. I, \u00a7\u00a7 8, 13. Section 103 \u2014 6 of the Code of Criminal Procedure provides that every person accused of a crime has the right to a jury trial unless that right is \u2018\u2018understanding^ waived by [the] defendant in open court.\u201d 725 ILCS 5/103 \u2014 6 (West 1998). To be valid, this waiver must be in writing. 725 ILCS 5/115 \u2014 1 (West 1998). The determination of whether this right has been validly waived does not rest on any precise formula but, rather, turns on the facts of each particular case. People v. Frey, 103 Ill. 2d 327, 332 (1984). A written and signed jury waiver \u201c \u2018lessens the probability that the waiver was not made knowingly.\u2019 \u201d People v. Dockery, 296 Ill. App. 3d 271, 276 (1998), quoting People v. Steiger, 208 Ill. App. 3d 979, 982 (1991). \u201cAll the trial judge has to do, at the bare minimum, is ask the defendant if he understands he is giving up his right to have a jury decide his case and if that is something he wants to do.\u201d Dockery, 296 Ill. App. 3d at 277. Of course, the trial judge should first determine whether the defendant understands what is meant by a jury trial.\n\u20226 The Illinois Supreme Court has indicated no requirement that the record \u201c \u2018affirmatively establish that the court advised defendant of his right to a jury trial and elicited his waiver of that right [citation], nor that the court or counsel advised defendant of the consequences of the waiver.\u2019 \u201d Dockery, 296 Ill. App. 3d at 275, quoting Frey, 103 Ill. 2d at 332. The supreme court has also concluded that if a defendant is present when the court and defense counsel discuss a jury trial waiver and the defendant does not object to the waiver, the defendant is deemed to have acquiesced in the waiver. People v. Sailor, 43 Ill. 2d 256, 260 (1969). However, the Illinois Supreme Court has also recognized the duty imposed on the circuit courts \u201cof ensuring that a defendant\u2019s waiver of his right to a jury trial be made expressly and under standingly. \u2019 \u2019 People v. Smith, 106 Ill. 2d 327, 334 (1985). We review defendant\u2019s jury waiver in this case in the context of whether the record reflects the waiver was made expressly and understandingly thereby positively rebutting defendant\u2019s postconviction claim that he did not voluntarily and intelligently waive jury trial.\nHere, the first time defendant spoke on the record was when he was informed of the possibility of trial in absentia:\n\u201cTHE COURT: Let me do this first. Mr. Garcia?\nMR. GARCIA [codefendant]: Yes.\nTHE COURT: Mr. Hector Marquez?\n[DEFENDANT]: Yes.\nTHE COURT: And Mr. Perez?\nMR. PEREZ [codefendant]: Yes.\nTHE COURT: I have to advise you, at this time, that you have to be in court on each and eveiy occasion that you are required to be there. If you don\u2019t this case could proceed to trial against you even if you aren\u2019t in court, if you don\u2019t show up. If that happens and if you\u2019re found guilty at that trial then you could be sentenced even though you\u2019re not there. Do you understand that?\nMR. GARCIA: Yes.\nMR. PEREZ: Yes.\nTHE COURT: And that applies to you as well, Mr. Marquez. In the event you make bond, you still have to come to court on each and every occasion. If you don\u2019t the case could go to trial against you without your being present. If you\u2019re found guilty at the trial, then you could be sentenced in your absence. Do you understand that?\nMR. MARQUEZ: Yes, sir.\u201d\nThe issue of defendant\u2019s ability to understand English was addressed for the first time when the case was called again the same day:\n\u201c[ASSISTANT STATE\u2019S ATTORNEY]: *** Also unaware \u2014 we weren\u2019t sure whether this defendant, Hector Marquez, understood English and he was admonished to trial in absentia rights this morning.\nTHE COURT: Do you understand what I told you this morning?\n[DEFENDANT]: Yes.\nTHE COURT: Earlier about having to be in court in the event you make bond?\n[DEFENDANT]: Yes.\nTHE COURT: Okay. So he understood that.\n[DEFENSE COUNSEL]: I have no problems with his knowledge of the English language.\nTHE COURT: Okay. Just the other person. All right. Okay. Well, October 10th.\u201d\nThe next time defendant spoke on the record was at the hearing on the motion to suppress, when he responded \u201cyes\u201d to defense counsel\u2019s question whether he understood that he had the right to testify if he so desired. Later, after examining an arresting officer at the hearing on defendant\u2019s motion to suppress, defense counsel stated, \u201cYour Honor, I have no further questions at this time, nor does my client request me to ask any further questions. Although for purposes of the record, although my client does have an Hispanic last name, there is no need for an interpreter, and he has not requested one.\u201d\nThen, at the beginning of defendant\u2019s trial, the trial court, defense counsel, and defendant discussed defendant\u2019s jury waiver and defendant\u2019s ability to understand English:\n\u201cTHE CLERK: Hector Marquez.\n[ASSISTANT STATE\u2019S ATTORNEY]: Does your client use an interpreter.\n[DEFENSE COUNSEL]: No.\nTHE COURT: Do you have the jury waiver?\n[DEFENSE COUNSEL]: Yes, your Honor.\nTHE COURT: Mr. Marquez, your lawyer just handed me this document that I saw you sign. You just heard me explain to you what a jury trial is. Do you understand that a jury trial is where 12 people listen to the evidence and then they decide the question of innocence or guilt in your case?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Rather than to have a Judge decide the question of innocence or guilt, is that right?\nTHE DEFENDANT: Yes.\nTHE COURT: When you signed this document you\u2019re indicating that you wish to give up your right to have a jury decide your case and you want to have me decide the question of innocence or guilt in your case, do you understand that?\nTHE DEFENDANT: Yes.\nTHE COURT: Is that what you wish to do?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Okay. I\u2019ll accept the jury waiver.\n***\n[ASSISTANT STATE\u2019S ATTORNEY]: This is the Spanish interpreter we\u2019re going to utilize for our second witness.\nTHE COURT: Ready?\n[DEFENSE COUNSEL]: Yes.\nTHE COURT: Any opening remarks?\n[ASSISTANT STATE\u2019S ATTORNEY]: Yes, Judge.\nTHE COURT: State.\n[DEFENSE COUNSEL]: Excuse me, your Honor. Before we begin can I indicate also that although my client is of Hispanic origin, he does not have the need for an interpreter, is that correct?\nTHE DEFENDANT: Yes.\n[DEFENSE COUNSEL]: We have one available for you but you don\u2019t feel the need for it, is that right?\nTHE DEFENDANT: Right.\n[DEFENSE COUNSEL]: Thank you, your Honor, for allowing me.\u201d\nAfter the close of the State\u2019s case, defense counsel indicated to the trial court that defendant was fully aware of his right to testify, but chose to remain silent. Finally, at the sentencing hearing, defendant responded \u201cNo\u201d to the trial court\u2019s question as to whether there was anything he wished to say.\n\u20227 The Criminal Proceeding Interpreter Act provides the following regarding appointment of an interpreter:\n\u201cWhenever any person accused of committing a felony or misdemeanor is to be tried in any court of this State, the court shall upon its own motion or that of defense or prosecution determine whether the accused is capable of understanding the English language and is capable of expressing himself in the English language so as to be understood directly by counsel, court or jury. If the court finds the accused incapable of so understanding or so expressing himself, the court shall appoint an interpreter for the accused whom he can understand and who can understand him.\u201d 725 ILCS 140/1 (West 1996).\n\u20228 Defendant was given the opportunity to have an interpreter; however, both defendant and defense counsel indicated that an interpreter was not needed. Defendant noted in the memorandum supporting his petition that an interpreter who spoke \u201ca [S]panish dialect\u201d was available and \u201con stand-by.\u201d When the assistant State\u2019s Attorney specifically asked defense counsel, \u201cDoes your client use an interpreter?\u201d, defense counsel responded, \u201cNo.\u201d The trial court noted that he observed the defendant sign the written jury waiver. After the court accepted the written jury waiver, the assistant State\u2019s Attorney indicated, \u201cThis is the Spanish interpreter we\u2019re going to utilize for our second witness.\u201d The trial court asked if there would be any opening statements and at that point defense counsel said, \u201cExcuse me, your Honor, before we begin can I indicate also that although my client is of Hispanic origin, he does not have the need for an interpreter, is that correct?\u201d, to which defendant responded, \u201cYes.\u201d Defense counsel further explained, \u201cWe have one available for you, but you don\u2019t feel the need for it, is that right?\u201d, to which defendant answered, \u201cRight.\u201d\nThe record indicates that defendant signed a written jury waiver in court and did not object when his trial counsel and the trial court discussed the waiver. Moreover, the trial court questioned defendant regarding his understanding of the right to a jury trial, and defendant responded to the trial court\u2019s questions in English. Immediately before beginning trial defendant twice indicated that he had no need for an interpreter. In fact, the Spanish interpreter was used with the State\u2019s second witness. Although defendant did not say anything during the proceedings other than \u201cYes,\u201d \u201cYes, sir,\u201d \u201cRight,\u201d and \u201cNo,\u201d defense counsel indicated four separate times that defendant understood English and did not need to use a Spanish interpreter, even though one was available and present in the courtroom.\nAlthough we have found no case addressing the question of whether a trial court can rely on defense counsel\u2019s representations that his client had no need for an interpreter, we find People v. Straub, 292 Ill. App. 3d 193 (1997), instructive. In Straub, the defendant argued the court abused its discretion by not conducting a fitness hearing. In rejecting that argument, the appellate court recognized that defense counsel understood his obligation to raise fitness as an issue if warranted and concluded that the trial court could rely on defense counsel\u2019s representations that there were no fitness problems with his client. Here, similarly, defense counsel understood his obligation to request the interpreter\u2019s services if defendant did not understand English sufficiently, and the trial court was entitled to rely on defense counsel\u2019s representations that the interpreter was not needed. See Straub, 292 Ill. App. 3d at 200. Moreover, in addition to defense counsel\u2019s representations, the defendant himself twice indicated on the record that he had no need for an interpreter.\nFinally, the defendant has a prior conviction for possession of cocaine with intent to deliver, which indicates that he has had contact with the criminal justice system. Defendant in 1989 was sentenced to five years in federal prison with four years supervised release probation beginning on April 24, 1992. Defendant obtained his GED while incarcerated at the Big Spring Federal Correctional Center in Texas in 1990. Defendant was employed in the Chicago area as a construction worker in 1996 and worked for a welding corporation from 1994-96. At the time of his arrest he had resided in the Chicago area for approximately four years. Defendant\u2019s allegations that he did not voluntarily and intelligently waive his right to a jury trial because he did not have a sufficient command of the English language to understand the trial court\u2019s admonitions are positively rebutted by the record. Therefore, defendant\u2019s allegation of a deprivation of a constitutional right fails to state the gist of a meritorious claim.\nDefendant directs our attention to a habeas corpus case from California, In re Muraviov, 192 Cal. App. 2d 604, 13 Cal. Rptr. 466 (1961), for the proposition that a petitioner\u2019s answers of \u201cyes\u201d or \u201cno\u201d to a judge\u2019s questions, including the question \u201cDo you understand and speak English?\u201d, have no meaning when the petitioner does not understand English. Muraviov held that the petitioner\u2019s conviction was void because he was not accorded due process of law and his constitutional and statutory right to be represented by counsel was violated. Muraviov, 192 Cal. App. 2d at 605, 13 Cal. Rptr. at 467.\nMuraviov is distinguishable from this case. The petitioner in Mu-raviov was not represented by counsel at his arraignment or trial and was not offered the aid of an interpreter. Here, in contrast, defendant was represented by counsel at arraignment, during hearing on the pretrial motions and at trial. Moreover, an interpreter was available even though defense counsel repeatedly indicated that defendant understood English and defendant himself indicated more than once that he did not need an interpreter. An interpreter was available for use by the defendant and in fact was used with one of the witnesses for the State. The Muraviov court found that the record, together with its own observation and interrogation of the petitioner at the hearing, sufficiently established that the petitioner did not speak or understand English. Muraviov, 192 Cal. App. 2d at 605-06, 13 Cal. Rptr. at 467. In this case, nothing beyond defendant\u2019s own self-serving statements in his postconviction petition supports his claim that he does not understand English, and in fact, his trial counsel\u2019s repeated statements in the record positively rebut such a claim. Defendant\u2019s own answers regarding his need for an interpreter also positively rebut his claim. Given these circumstances, we are not persuaded by Muraviov.\nWe are also not persuaded by the three Illinois cases to which defendant compares his case. In People v. Ruiz, 24 Ill. App. 3d 449, 450 (1974), the defendant claimed in a postconviction petition that he did not have either a sufficient command of the English language or an adequate understanding of the United States judicial system to waive his right to trial by jury, alleged that the interpreter \u201cdid not speak good Spanish,\u201d and asserted that in explaining trial by jury to him, the interpreter merely told him that \u201ca jury was 12 people.\u201d The record did not show statements made by the defendant or colloquy between the defendant and the interpreter, but did include a statement by the trial court that \u201cdefendant waived trial by jury \u2018as.explained by the interpreter,\u2019 \u201d and indicated that defendant could not sign the jury waiver and was nervous. Ruiz, 24 Ill. App. 3d at 451-53.\nThe appellate court found that the factual allegations in the petition were supported by the transcript of proceedings and reversed the summary dismissal of the petition. Ruiz, 24 Ill. App. 3d at 453. Here, in contrast, the trial court addressed defendant directly and defendant answered the trial court\u2019s questions in English. Additionally, trial counsel repeatedly stated that defendant understood English and did not need to use an interpreter. Moreover, upon accepting defendant\u2019s written jury waiver, the trial court indicated that it had observed defendant sign the document waiving a jury trial. Thus, Ruiz is distinguishable.\nIn People v. Phuong, 287 Ill. App. 3d 988, 991, 995-96 (1997), this court found that the defendant did not knowingly and understandingly waive her right to a jury trial even though she signed a written jury waiver that had been translated by a Chinese interpreter and the trial court informed her, without elaboration, that she could be tried by either a judge or a jury. Phuong noted that the trial court did not inform the defendant that a jury trial meant that members of the community would serve as fact finders, and that nothing indicated the defendant had any prior experience with the American judicial system to warrant an understanding of a jury trial. Phuong, 287 Ill. App. 3d at 996. Here, in contrast, the trial court explained to defendant what was meant by a jury trial, and defendant\u2019s previous conviction demonstrated prior experience with the American judicial system. Therefore, Phuong is not persuasive.\nFinally, defendant contends that the trial court\u2019s inquiry as to his understanding of the nature and function of a jury and the ramifications of giving up the right to a jury trial was as perfunctory as the inquiry in People v. Sebag, 110 Ill. App. 3d 821, 828-29 (1982). Sebag recognized that \u201cit is the duty of the trial court to see that a waiver of right to jury trial is expressly and understandingly made, and such obligation is not to be perfunctorily discharged.\u201d Sebag, 110 Ill. App. 3d at 828. The trial court in Sebag addressed the defendant, who was without benefit of counsel and was not familiar with criminal proceedings, as follows:\n\u201cTHE COURT: You are entitled to have your case tried before a jury or a judge.\nDEFENDANT SEBAG: Judge.\nTHE COURT: Jury waiver. Do you understand that by waiving a jury at this time that you cannot reinstate it; do you understand that?\nDEFENDANT SEBAG: Yes.\u201d Sebag, 110 Ill. App. 3d at 829.\nThe appellate court concluded that this discussion did not advise defendant of the meaning of a trial by jury and further noted that defendant was without counsel and unfamiliar with criminal proceedings. Sebag, 110 Ill. App. 3d at 829.\nIn the instant case, defendant was represented by counsel, was familiar with criminal proceedings, was advised by the trial court of the meaning of a trial by jury, and was asked by the trial court whether he understood the meaning of a jury trial. The trial court further asked the defendant if he understood that he was giving up his right to a jury trial and whether that was what he wanted to do. Given these circumstances, the trial court\u2019s inquiry in the instant case cannot be characterized as perfunctory, and Sebag is clearly distinguishable.\nB. Right to Confront Accusers and Be Present at Trial\n\u20229 Defendant argues that his petition stated the gist of a meritorious claim in that because he did not understand the English language sufficiently and no interpreter was provided, he was deprived of his right to confront his accusers and be present at every stage of the trial. Defendant, however, did not allege in his postconviction petition or supporting memorandum that failure to provide an interpreter deprived him of his right to confront his accusers and be present at every stage of the trial. Accordingly, that argument is waived and we will not address it in this appeal. 725 ILCS 5/122 \u2014 3 (West 1998) (\u201cAny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived\u201d); People v. Moore, 189 Ill. 2d 521, 544 (2000) (refusing to consider and expressing no opinion as to the merits of a claim defendant first raised on appeal from the dismissal of his postconviction petition).\nHowever, defendant did allege in his postconviction petition that an interpreter was necessary because he did not understand the English language. That allegation was raised by defendant in the context of defendant\u2019s claim that he did not voluntarily and intelligently waive his constitutional rights to a trial by jury because no interpreter was provided. We note we have addressed that allegation, and for the reasons previously discussed, we find the record positively rebuts that claim.\nC. Ineffective Assistance of Counsel\n\u202210 On appeal defendant contends that his jury waiver was involuntary and unintelligent because he received ineffective assistance of counsel. However, neither defendant\u2019s postconviction petition nor his direct appeal raised this claim. Defendant now contends that his petition stated the gist of a meritorious claim that trial counsel was ineffective for instructing defendant to say \u201cyes\u201d to the trial court\u2019s ques-tians regarding whether he wished to waive his right to a jury, even though defendant \u201cin fact desired a jury trial.\u201d In his petition defendant claimed he was denied his right to a jury trial because his waiver was not made knowingly and intelligently, but he did not claim that his counsel rendered ineffective assistance in allowing him to waive his right to a jury trial. Therefore, this claim is waived because defendant did not raise it in his petition for postconviction relief. 725 ILCS 5/122 \u2014 3 (West 1998); Moore, 189 Ill. 2d at 544. We note we have previously addressed defendant\u2019s claims regarding whether defendant\u2019s jury waiver was made voluntarily and intelligently and have found the record positively rebuts those claims.\n\u202211 Defendant\u2019s final contention is that his petition stated the gist of a meritorious claim that trial counsel was ineffective for not discrediting the confidential informant who testified for the State by showing his interest, bias, and motive to testify falsely. Defendant alleged that the confidential informant was biased because he was \u201cpresumed to be [codefendant\u2019s] long lost disliked brother who is attempting to set up [codefendant] as well as [defendant],\u201d and that the confidential informant had a motive to testify falsely, \u201ci.e., the dislike and hatred\u201d of codefendant and defendant. Defendant also claimed that it was \u201cobvious that a deal was met between the [confidential informant] and State[;] however, exactly what that deal was remains unknown to date. Assuming arguendo that no deal was met between the State and [the confidential informant], defense counsel still should have laid a foundation to examine [the confidential informant].\u201d Defendant notes that when the confidential informant\u2019s name was eventually revealed to counsel at trial, defense counsel stated that he would explore available information under that name. Defendant contends that counsel was ineffective because he did not conduct this investigation diligently and the lack of diligence resulted in a failure to discredit the confidential informant.\nThe State asserts that this claim of ineffective assistance is waived because defendant could have raised it on direct appeal. Defendant counters that trial counsel\u2019s failure to investigate the confidential informant\u2019s background was beyond the scope of the record on direct appeal and that, if the issue could have been raised on direct appeal, then appellate counsel was ineffective for failing to raise the issue of trial counsel\u2019s ineffectiveness. We address the defendant\u2019s claim of ineffective assistance because the waiver rule may be relaxed where the defendant\u2019s arguments relate to the alleged incompetency of the original appellate counsel. People v. Hayes, 279 Ill. App. 3d 575, 580 (1996).\nIneffective assistance of counsel is established when it is proven that counsel\u2019s representation fell below an objective standard of reasonableness and that, but for counsel\u2019s shortcomings, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). If the ineffectiveness claim can be disposed of because the defendant did not suffer sufficient prejudice, a court need not consider whether counsel\u2019s performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. The defendant must overcome a strong presumption that his counsel\u2019s conduct falls within the wide range of reasonable professional assistance and that the challenged conduct constitutes sound trial strategy. People v. Giles, 209 Ill. App. 3d 265, 269 (1991). To overcome these presumptions, defendant must demonstrate the outcome of the proceeding would have been different had it not been for counsel\u2019s ineffective representation. Giles, 209 Ill. App. 3d at 269.\nIn order to show ineffectiveness of appellate counsel, a defendant must establish both a deficiency in counsel\u2019s performance and prejudice resulting from that deficiency. People v. Edwards, 195 Ill. 2d 142, 163 (2001). However, there is no requirement that appellate counsel raise every conceivable issue on appeal, and appellate counsel is not ineffective for failing to raise issues that are without merit. Edwards, 195 Ill. 2d at 163-64.\nThe record reveals that, on direct examination, the confidential informant testified that in 1989 he had been convicted of burglary in Cook County and that in 1992, in federal court, he had been convicted of conspiracy to distribute cocaine. The confidential informant also testified on direct examination that he had been working as an informant for the DEA for six or seven years. On cross-examination, defense counsel followed up on this testimony by probing the confidential informant\u2019s criminal history and relationship with the DEA. Specifically, defense counsel elicited testimony from the confidential informant that he worked for the DEA while he was on federal probation; that he signed an agreement with the DEA that he would not use drugs, subsequently tested positive for drug use while on probation, yet continued to work for the DEA and did not have his probation revoked; that since 1992, the DEA had paid him about $330,000 in cash for his work in various cases; and that the DEA paid him about $2,200 for his work in this case.\nThe record also indicates that before the confidential informant\u2019s name was revealed to him, defense counsel objected to the withholding of the name several times and then informed the trial court that he had a standing objection to the continued withholding of the name. While discussing his standing objection, defense counsel mentioned that he had a copy of the confidential informant\u2019s criminal history or \u201cB. of I. sheet\u201d with his name and other identifying information redacted. Defense counsel indicated, \u201cThe confidential informant could be [codefendant\u2019s] long lost disliked brother who is attempting to set up [codefendant] as well as my client. There are things that need to be explored, your Honor and certainly one would normally want to start that expl[or]ation at the first logical step which is the name of the individual.\u201d Later, when the trial court decided to reveal the name of the confidential informant, both the trial court and defense counsel indicated that revealing the name was unlikely to change the outcome of the trial:\n\u201cTHE COURT: Counsel, couple of things. Number one, I want to correct or change a ruling I made last week with respect to the name of [the confidential] informant.\n[ASSISTANT STATE\u2019S ATTORNEY]: In what sense?\nTHE COURT: In the sense the name can be revealed for whatever it\u2019s worth at this point. I don\u2019t know if you want to call him back. I don\u2019t know. That will be changed.\n[DEFENSE COUNSEL]: And after the State provides me that I may want to take a very brief recess of course to see if there is any other information I can find basically under that name.\nTHE COURT: Right.\n[DEFENSE COUNSEL]: I don\u2019t believe it\u2019s going to significantly impact the conclusion of the case.\nTHE COURT: And frankly it won\u2019t impact the case that his name is revealed, just my personal opinion. After I\u2019ve done a summary search on it and reviewed the transcript, I was in error, that name should have been revealed.\u201d\nAfter the recess, defense counsel did not ask to recall the confidential informant.\n\u202212 Given these circumstances, we cannot find that the petition stated the gist of a meritorious constitutional claim. First, defendant has not overcome the strong presumption that defense counsel\u2019s approach regarding the confidential informant was the product of reasonable trial strategy. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. Without the benefit of knowing the confidential informant\u2019s name, defense counsel cross-examined him, questioned him about his criminal history, elicited testimony that he had been paid large sums of money for the information he provided to the DEA, and revealed that he had violated his agreement with the DEA not to use drugs while working as an informant and while on probation. Once the name was revealed, defense counsel requested a short recess \u201cto see if there is any other information I can find basically under that name.\u201d After returning from the recess specifically taken so defense counsel could further investigate the informant, defense counsel did not recall the informant for any further examination. Based on this record, it is reasonable to conclude that such a decision was the result of sound trial strategy.\nMoreover, defendant has not shown that the result of his trial would have been different had defense counsel further investigated or cross-examined the informant. Even before his name was revealed, both the trial court and defense counsel stated their belief that revealing the name would not impact the case. While defense counsel had suggested at one point that the informant may have been the long-lost, disliked brother of the codefendant, once the confidential informant\u2019s name was revealed, defense counsel did not mention this possibility again. We conclude defense counsel chose not to pursue that theory as a matter of sound trial strategy. Defendant alleges that it was \u201cobvious that a deal was met between the [confidential informant] and State[;] however, exactly what that deal was remains unknown to date. Assuming arguendo that no deal was met between the State and [the confidential informant], defense counsel still should have laid a foundation to examine [the confidential informant].\u201d Beyond pure speculation, defendant has not indicated how further investigation or additional foundation would have changed the outcome of his trial. Moreover, the record reflects that defense counsel competently explored the confidential informant\u2019s credibility during cross-examination.\nBased on this record, we conclude that defendant\u2019s claim that his trial counsel was ineffective failed to allege sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. We therefore find defendant suffered no prejudice from appellate counsel\u2019s failure to raise the issue of trial counsel\u2019s incompetence on direct appeal. The record positively rebuts defendant\u2019s claims that his trial counsel was ineffective for failing to thoroughly investigate and discredit the confidential informant and that appellate counsel was ineffective for failing to raise the issue of trial counsel\u2019s incompetence on direct appeal. Therefore, defendant failed to state the gist of a meritorious claim regarding ineffective assistance of counsel.\nIII. CONCLUSION\nWe find defendant failed to state the gist of a meritorious claim regarding his allegations that he did not voluntarily and intelligently waive his right to a jury trial. Defendant\u2019s allegations that he did not understand the English language and that no interpreter was provided are positively rebutted by the record. Defendant also failed to state the gist of a meritorious claim regarding his allegations of a deficiency in counsel\u2019s performance or prejudice resulting from that alleged deficiency. Defendant\u2019s allegations of ineffective assistance of trial counsel and appellate counsel are positively rebutted by the record. Regarding the issues of jury waiver and ineffective assistance of counsel defendant failed to allege sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right.\nAfter reviewing the record and considering the law applicable to the instant case, for the reasons previously discussed, we find the trial court properly summarily dismissed defendant\u2019s postconviction petition without an evidentiary hearing.\nThe judgment of the trial court is affirmed.\nAffirmed.\nMcNULTY, EJ., and COHEN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "James K. Leven, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR MARQUEZ, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 00\u20140219\nOpinion filed August 27, 2001.\nJames K. Leven, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0711-01", "first_page_order": 729, "last_page_order": 746 }