People v. Simon

Defendant was convicted, after bench trial, of first-degree murder and sentenced to 50 years. Court did not err in denying Defendant leave to file successive postconviction petition, as petition did not present a colorable claim of actual innocence. Even when examining petition under more lenient standard of initial postconviction petition, there is no basis for ineffective assistance of counsel claims. Counsel was not ineffective for failing to present evidence in mitigation, at sentencing, when evidence was cumulative of pre-sentence investigation report, and court placed most weight on fact that victim was shot to death during middle of day in front of grocery store and numerous gunshots were fired. No ineffective assistance of counsel in counsel's recommendation to take bench trial, as counsel knew the judge; recommendation was a matter of strategy, and decision to waive jury was Defendant's, not counsel's, decision. No ineffective assistance of counsel in allegation that counsel came to court intoxicated and smelled of liquor on at least one occasion before trial; even if accepted as true, no allegation of prejudice. (McBRIDE and REYES, concurring.)