People v. McGath , 2017 IL App (4th) 150608 ( 2017 )

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Appellate Court Date: 2017.10.19
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People v. McGath, 2017 IL App (4th) 150608Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARCUS E. McGATH, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-15-0608
Filed September 21, 2017
Decision Under Appeal from the Circuit Court of Livingston County, No. 15-CF-25;
Review the Hon. Jennifer H. Bauknecht, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Salome
Appeal Kiwara-Wilson, of State Appellate Defender’s Office, of Springfield,
for appellant.
Randy Yedinak, State’s Attorney, of Pontiac (Patrick Delfino, David
J. Robinson, and Luke McNeill, State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
¶1 Following a May 2015 trial, a jury convicted defendant, Marcus E. McGath, of unlawful
delivery of a controlled substance (720 ILCS 570/401(d) (West 2014)). In July 2015, the trial
court sentenced him to 25 years in prison.
¶2 Defendant appeals and raises several arguments: (1) the State failed to prove him guilty
beyond a reasonable doubt, (2) he received ineffective assistance of counsel when his trial
counsel failed to subpoena a key witness, (3) the trial court erred when it failed to conduct a
hearing in accordance with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), (4) the
court erred when it denied trial counsel’s request to make an offer of proof to explain a key
witness’ absence at trial, and (5) the court subjected him to double enhancement at sentencing
when it considered a factor in aggravation that was inherent in the offense. For the reasons that
follow, we disagree and affirm.
¶3 I. BACKGROUND
¶4 In February 2015, the State charged defendant with unlawful delivery of a controlled
substance (720 ILCS 570/401(e) (West 2014)), which was later amended to subsection (d)
(720 ILCS 570/401(d) (West 2014)). The charge alleged that, on or about November 4, 2014,
defendant knowingly delivered less than one gram of a substance containing cocaine to
Coartney Barton, a police confidential source.
¶5 A. Pretrial Proceedings
¶6 In May 2015, the day before trial, defendant tendered a witness list that contained only the
name of Katrina Ross, his girlfriend. (Defendant’s theory throughout trial was that the
evidence was unclear as to who delivered the cocaine to Barton—him or Ross.)
¶7 On the day of trial, the trial court asked the parties, outside of the presence of the jury,
whether any matters needed to be resolved before the court brought the jury back in. The
following conversation took place regarding whether Ross would testify:
“MR. REGNIER [Assistant State’s Attorney]: There is, Judge. It is regarding
disclosure of a witness yesterday regarding what she was going to say today.
THE COURT: Who?
MR. REGNIER: Katrina Ross.
THE COURT: Okay.
MR. REGNIER: And *** what—I would proffer based off talking to her today, she
is planning on using her Fifth Amendment right.
THE COURT: Okay.
MR. REGNIER: There has [sic] been some discussions over what she can testify to
before using that right or not. And if Your Honor does allow her to use that right, the
State would probably pursue some kind of immunity, either use or qualified immunity
for her.
THE COURT: She is not listed as your witness.
MR. REGNIER: Judge, we were aware of what she was going to say today as far as
a summary of what her statements were going to be.
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THE COURT: Well, I—
MR. REGNIER: And that is when we found out about the Fifth Amendment.
THE COURT: Okay. But you have not listed her as a witness. And if you are not
planning on calling her, I don’t see it being an issue for the State.
MR. REGNIER: Regarding her *** using use immunity or regarding her invoking
her Fifth Amendment right while she is on the stand.
THE COURT: She can do that.
MR. REGNIER: The State’s belief is that if she is going to testify about a
transaction—she can’t testify about that partially and then invoke her Fifth
Amendment right and the State, now that we are aware of what she intends to testify to
generally, a summary from speaking with her this morning, believes it would be the
case.
THE COURT: Well, we will have to get into that when she starts testifying.
MR. REGNIER: Okay. Well—
THE COURT: I got to get the case going.”
¶8 B. The Trial
¶9 The following evidence was presented at defendant’s May 2015 jury trial. In November
2014, Barton conducted a controlled buy for the proactive unit in Livingston County. Barton
arranged the buy through text messages with a contact in her phone listed as “Katrina.” Katrina
Ross had been Barton’s friend for many years and was in a relationship with defendant. Barton
used this telephone number to contact defendant because it was how she communicated with
him in the past. Barton sent a text message that asked if defendant “was good,” meaning if he
had any drugs. She received a positive response, and she told him that she would come by in
the early afternoon. Barton believed Inspector Leland Brooke was present while she made the
arrangements and that Brooke saw the text messages. (However, Brooke later testified that he
was not present and did not see the messages.)
¶ 10 The police searched Barton’s person and vehicle before she went to defendant’s residence
and found no contraband. The police gave her $40 of prerecorded money and an
audio-recording device inside a cigarette pack, which she placed in her pocket. The police then
followed her to defendant’s residence.
¶ 11 Barton arrived at defendant’s residence, knocked on the door, and Ross answered it. Barton
walked into the living room and did not see defendant. Barton asked Ross if defendant had
something for her, and Ross replied affirmatively and stated that defendant was in the
bedroom. Barton knocked on the bedroom door, and defendant opened it. She handed him $40,
and he gave her a small amount of crack cocaine. Defendant asked Barton for a ride to the
pawnshop. She told him that she could give him a ride but needed to drop off the cocaine first.
¶ 12 Barton left and drove to the jail, and the police followed close behind. At the jail, Barton
gave the police the purported crack cocaine, and they searched her again and found no
contraband. The police transferred the white substance to a forensic scientist for testing, who,
after a series of tests, concluded that the 0.1 grams of white substance contained cocaine.
¶ 13 The prosecution played the audio recording of the transaction for the jury. The entire
conversation between Barton, Ross, and defendant lasted approximately one minute. When
Barton arrived at the residence, she knocked on the door and Ross greeted her. Barton said,
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“here,” and after a few seconds, she mentioned defendant. Ross yelled, “Oh! Babe!” Defendant
said something to Ross, but what he said is unclear from the recording. Ross responded, “Do
you have something for Cornelia?” (Cornelia is a nickname that Ross used for Barton.)
Defendant replied, “Yeah, but ask her if she can run me to the pawnshop real quick.” Ross
relayed the request to Barton, in which she said she could after she dropped off the drugs. Ross
suggested that defendant should just ride with Barton, but he interjected and said that he would
wait because he did not “want nobody seeing [his] face.”
¶ 14 In between testimony, the trial court held a recess. Outside the presence of the jury, the
court instructed the parties to read People v. Human, 331 Ill. App. 3d 809, 773 N.E.2d 4(2002), to determine whether a party may call a witness it believes will invoke the fifth
amendment privilege. When the parties returned from the recess, the court asked them if they
had any questions about Ross. The following conversation took place:
“MR. MASON [Defense counsel]: At this time, no. I have told her to go talk to Mr.
Morgan[, the public defender].
THE COURT: Okay. And we’ll take it up.
MR. MASON: I’ve reviewed the case that you gave me that you referred to earlier.
THE COURT: Yes, yes.
MR. MASON: Told her what I thought it meant.
THE COURT: Okay.
MR. MASON: And I believe she was going to talk to Mr. Morgan.
THE COURT: All right. Very good. Is she under subpoena?
MR. MASON: No. And I think that makes a difference, too.
THE COURT: Yes. I believe it does.”
¶ 15 The trial resumed without Ross being called to testify. The jury found defendant guilty of
unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2014)).
¶ 16 C. Posttrial Proceedings
¶ 17 In June 2015, defense counsel filed a motion for a new trial and argued, among other
things, (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) Barton’s
testimony was not supported by the audio recording, and (3) Ross was present for a portion of
the trial and “was not called as a defense witness although she could have provided testimony
contradicting testimony of *** Barton as shown by the notarized statement of *** Ross
attached hereto. Ms. Ros [sic] had been present at the trial during the morning but did not
return after lunch.” Ross’s notarized statement stated the following:
“I Katrina Pauline Ross being of sound mind and in a sober state am writing this to
claim responsibility for my actions. On November 4, 2014[,] I Katrina Ross exchanged
a $40 bag of cocaine for two $20 bags of heroin with Coartney Barton. When this was
done without [defendant] knowing. This is all supported by the audio. This transaction
was within the first 10 seconds of the audio when Ms. Barton enters my home. When
[defendant] was asked if he had something for “Cornelia” it was referring to $10 the
gas money she needed that evening to go to Lexington IL where she worked at
McDonald’s. I declare that this are [sic] true and correct.”
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¶ 18 In July 2015, the trial court held a hearing on the motion for a new trial. Defense counsel
asked the court to allow Ross to testify. The State objected, arguing that Ross’s testimony was
not newly discovered evidence. In response, defense counsel stated if the court would allow
her to testify, she would explain why she did not testify at trial. The court sustained the State’s
objection, recognizing that Ross was never subpoenaed or called to testify, and there was no
reason why Ross could not have testified earlier. Defense counsel asked to make an offer of
proof, and the following discussion took place:
“MR. MASON: May I make a proffer as to what [Ross’s] testimony would be
today?
THE COURT: You may. Yes.
MR. MASON: It would be that she—
THE COURT: Well, I’m sorry to interrupt. There is an affidavit attached. Would
she testify consistent with her affidavit?
MR. MASON: Yes, Your Honor.
THE COURT: Okay. So I’ll allow you to make that proffer for the record that her
testimony would be consistent.
MR. MASON: Okay. She would testify consistent with that.
THE COURT: Okay.
MR. MASON: Beyond that, she would have testified as to why she did not, why
she did leave rather than staying around to testify.
THE COURT: All right. Any other argument on the motion?
MR. MASON: No. I think the other elements were all argued at the closing at the
trial.”
¶ 19 The trial court denied defendant’s motion and proceeded to sentencing. The court
sentenced him to 25 years in prison, and in explaining its sentence, it stated in relevant part, as
follows:
“I think you recognize just the out of control epidemic in our community and across the
State and I think across the country with heroin addiction; and we are just losing the
battle big time. I think there’s been four or five overdoses in this county in the last
several months from drug addiction. People that I’ve set a bond on have bonded out and
overdosed and died. That bothers me tremendously as a person in this community.
And I’m saying that because I recognize that [defendant] and based upon the
information in the presentence investigation report [(PSI)] clearly has struggled forever
with substance abuse addictions and not just heroin. Cocaine, alcohol. You know, your
PSI is just a nightmare. It just, it’s really heartbreaking. And you were dealt with what I
would say is a really, really crappy hand.
***
But dealing drugs threatens serious harm within our community, not just to the
person that’s doing the drugs who very well could overdose but to the responders when
they are addressing people with overdoses. That it creates potential for accidents. They
are responding to an overdose, and that takes them away from other crimes. So, I
mean—or not crimes but other investigations or calls that they can be responding to. It
has a ripple effect in the community when you deal drugs.”
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¶ 20 In July 2015, defendant filed a motion to reconsider the sentence, arguing the trial court
should have given more consideration to his history of addiction and should have imposed a
lesser sentence. The court denied the motion.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Defendant raises several issues on appeal, and we address them in turn.
¶ 24 A. Sufficiency of the Evidence
¶ 25 Defendant argues the State failed to prove him guilty beyond a reasonable doubt because
(1) its key witness’s testimony contradicted the audio recording of the transaction and (2)
circumstantial evidence implicated another person who was present during the transaction. The
State counters that it presented sufficient evidence to prove defendant guilty beyond a
reasonable doubt. We agree with the State.
¶ 26 When a reviewing court considers a challenge to the sufficiency of the evidence, it must
determine whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the required elements of the offense proved beyond
a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, 1 N.E.3d 888. It is the
responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from the facts. People v. Siguenza-Brito, 235 Ill. 2d 213, 224, 920
N.E.2d 233, 240 (2009). Accordingly, a reviewing court will not substitute its judgment for
that of the fact finder on questions involving the weight of the evidence or the credibility of the
witnesses. People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112. “A conviction will be
reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67,
23 N.E.3d 325.
¶ 27 Defendant first argues the State’s evidence was insufficient because the State did not
introduce any evidence linking him to Ross’s telephone number (citing People v. Walker, 2016
IL App (2d) 140566, ¶¶ 11-12, 60 N.E.3d 101). In Walker, the defendant’s convictions
stemmed from four different transactions for the sale of cocaine to an undercover police
officer. Id. ¶ 1. On appeal, the defendant challenged the fourth transaction because it was the
only instance arranged solely through text messages. Id. The defendant argued that the State
did not meet its burden because it needed to prove that he owned the telephone associated with
the phone number. The Second District disagreed, finding that compelling circumstantial
evidence indicated that the defendant sent the text messages, such as the prior transactions that
he arranged using the same telephone number. Id. ¶ 12.
¶ 28 Walker hardly supports defendant’s contention in this case. Further, Walker is
distinguishable because the State prosecuted the defendant in that case on the theory of
accountability and the text messages were the sole evidence to identify that defendant.
¶ 29 In this case, the text messages were not the sole evidence that incriminated defendant.
Instead, the text messages corroborated the audio recording and Barton’s testimony.
Considering the circumstances of the transaction as a whole, the State did not need to provide
evidence directly linking defendant to the telephone.
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¶ 30 Defendant next argues that the State’s evidence was insufficient because Barton testified
she sent the text messages in Brooke’s presence, but Brooke denied that he was present when
Barton sent the messages. This discrepancy lacks the significance defendant claims. The jury
heard the evidence and was put on notice of any discrepancies in the State’s case. We reiterate
that the jury bore the responsibility to assess the credibility of the witnesses, to resolve any
discrepancies in the testimony, and to draw reasonable inferences from the evidence.
Siguenza-Brito, 235 Ill. 2d at 224, 920 N.E.2d at 240. This discrepancy of which defendant
complains was hardly a game-changer. The jury could simply have concluded that either
Barton or Brooke was innocently mistaken about whether Brooke was present when Barton
sent the text messages, and either way, it possessed no great significance.
¶ 31 Defendant also contends that the State’s evidence was insufficient because there was no
visual surveillance of the controlled buy. However, defendant fails to cite any authority to
support this contention or further develop this argument, and we conclude it lacks any merit.
¶ 32 Defendant last argues that the State’s evidence was insufficient because Barton’s
testimony was inconsistent with the audio recording. Both parties contend that the recording
supports their respective positions. For example, defendant suggests that when Barton asked to
speak with defendant, Ross’s response of “oh” indicates that a meeting between defendant and
Barton was an afterthought and not the main purpose of Barton’s visit. The State argues that
defendant’s voice becomes clearer on the audio recording (indicating he was getting closer to
Barton), which establishes that the exchange occurred at that time. In response to these
arguments, we note that it is the jury, not this court, who is called upon to draw such inferences.
¶ 33 This court’s decision in People v. Hadden, 2015 IL App (4th) 140226, ¶¶ 28-29, 44 N.E.3d
681, is instructive. In Hadden, this court stated, in relevant part, as follows:
“We note that deferring to the jury is particularly important when the jury is
considering an audio-recorded statement as opposed to a written transcript. Spoken
language contains more communicative information than the mere words because
spoken language contains ‘paralanguage’—that is, the ‘vocal signs perceptible to the
human ear that are not actual words.’ Keith A. Gorgos, Lost in Transcription: Why the
Video Record Is Actually Verbatim, 57 Buff. L. Rev. 1057, 1107 (2009). Paralanguage
includes ‘quality of voice (shrill, smooth, shaky, gravely, whiny, giggling), variations
in pitch, intonation, stress, emphasis, breathiness, volume, extent (how drawn out or
clipped speech is), hesitations or silent pauses, filled pauses or speech fillers (e.g.,
“um/uhm,” “hmm,” “er”), the rate of speech, and extra-speech sounds such as hissing,
shushing, whistling, and imitations sounds.’ [Id.] at 1108. The information expressed
through paralanguage is rarely included in the transcript, as there is generally no
written counterpart for these features of speech. [Id.] at 1109.
The jury has the responsibility to interpret the paralanguage and draw the
appropriate inferences therefrom. In this case, the jury and this court both have had
access to the same recordings of defendant’s conversations with Lyons and Luster.
However, we might reach different conclusions about the meaning of the conversations
based on differing interpretations of the paralanguage involved. *** [T]his court is
obliged to defer to the jury’s interpretations.” Id.¶ 34 Thus, based upon both Barton’s testimony and the audio recording, we conclude that the
State presented sufficient evidence for the jury to find beyond a reasonable doubt that
defendant sold Barton the cocaine. In support of our conclusion, we note that whether the
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paralanguage of the audio recording was consistent with Barton’s testimony was for the jury to
decide.
¶ 35 B. Effective Assistance of Counsel
¶ 36 Defendant argues he received ineffective assistance of counsel when his trial counsel failed
to subpoena Ross, who would have provided exculpatory testimony. The State argues that
defendant’s trial counsel acted reasonably by deciding not to call Ross to testify because Ross
planned to invoke her fifth amendment right against self-incrimination. Alternatively, the State
argues the record is insufficient to resolve this claim on direct review.
¶ 37 A criminal defendant has a constitutional right to the effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish a claim of ineffective
assistance of counsel, a defendant has the burden to show that his contention satisfies the
two-pronged test under Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel’s
performance fell below an objective standard of reasonableness and (2) the deficient
performance resulted in prejudice to the defendant. More specifically, a defendant must show
that counsel’s performance was objectively unreasonable under prevailing professional norms
and that a reasonable probability exists that, but for counsel’s deficient performance, the result
of the proceedings would have been different. People v. Domagala, 2013 IL 113688, ¶ 36, 987
N.E.2d 767. Failure to satisfy either prong of the Strickland test precludes a finding of
ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 38 “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. at 689. The Illinois Supreme Court has “made it clear that a reviewing
court will be highly deferential to trial counsel on matters of trial strategy, making every effort
to evaluate counsel’s performance from his perspective at the time, rather than through the lens
of hindsight.” People v. Perry, 224 Ill. 2d 312, 344, 864 N.E.2d 196, 216 (2007). Further, “a
court must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”
(Internal quotation marks omitted.) People v. Manning, 241 Ill. 2d 319, 334, 948 N.E.2d 542,
551 (2011) (quoting Strickland, 466 U.S. at 689). Counsel’s strategic decisions “are virtually
unchallengeable.” Id. at 333.
¶ 39 In People v. Veach, 2017 IL 120649, ¶ 46, the Illinois Supreme Court wrote that ineffective
assistance of counsel claims may sometimes be better suited to collateral proceedings “but
only when the record is incomplete or inadequate for resolving the claim. The reason is that in
Illinois, defendants are required to raise ineffective assistance of counsel claims on direct
review if apparent on the record.” An example of a case in which the Illinois Supreme Court
deemed the record before it insufficient to address the issue of ineffective assistance of counsel
on direct appeal is People v. Bew, 228 Ill. 2d 122, 135, 886 N.E.2d 1002, 1010-11 (2008).
Citing Massaro v. United States, 538 U.S. 500, 504-05 (2003), the supreme court in Bew
concluded that even though the defendant in that case had, on the record before it, “failed to
prove ineffective assistance of counsel, we note that defendant may raise these alternative
grounds for suppression under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through
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122-8 (West 2002)). This disposition allows both defendant and the State an opportunity to
develop ‘a factual record bearing precisely on the issue.’ ” Bew, 228 Ill. 2d at 135, 886 N.E.2d
at 1009-10.
¶ 40 In this case, defendant’s claim of ineffective assistance of counsel is better suited for
resolution in a collateral proceeding—specifically, by defendant’s filing a petition for
postconviction relief. Defendant argues that if Ross had been called to testify, “it is not likely”
that she would have exercised her fifth amendment privilege because she signed a notarized
affidavit (weeks later, we note) claiming responsibility. Further, defendant suggests that even
if Ross planned to invoke her fifth amendment privilege, the State indicated it would grant her
immunity if she testified fully.
¶ 41 The State responds that defendant has not shown ineffective assistance because it would
have been improper for trial counsel to call Ross to testify when counsel knew Ross planned to
invoke her fifth amendment privilege (citing the case the trial court instructed the parties to
read, Human, 331 Ill. App. 3d at 819, 773 N.E.2d at 13 (“This court has repeatedly held that it
is improper for a party to call a witness whom it has reason to believe will invoke his fifth
amendment privilege before the jury ***.”)). The State also argues Ross’s affidavit does not
support defendant’s claim because the affidavit does not explain what she would have testified
to at trial.
¶ 42 The important point in this appeal is that the record does not indicate (1) what Ross told
defendant’s trial counsel during trial as to why she did not want to testify and (2) how counsel
evaluated what Ross told him and what options counsel thought he then had regarding whether
to call Ross. Although the parties speculate in their briefs on these matters, we will not because
doing so would be a disservice to both parties. They both deserve an adjudication based on a
record that is complete and adequate, not on judicial speculation. We reiterate that the focus of
any inquiry into whether defendant’s trial counsel was ineffective would be on what counsel
was told and believed during trial when the question of whether counsel should call Ross as a
defense witness became ripe. What Ross said after trial, including her affidavit, is not
pertinent.
¶ 43 Accordingly, we decline to address defendant’s claim of ineffective assistance of counsel
on direct review and note defendant may raise his claim pursuant to the Act. If defendant were
to take that course of action, then an opportunity to develop a factual record bearing precisely
on the issues in question would become available.
¶ 44 C. The Krankel Claim
¶ 45 Defendant argues the trial court erred by failing to conduct a Krankel hearing, noting that
trial counsel seemed to argue his own ineffectiveness in a posttrial motion.
¶ 46 In Krankel, 102 Ill. 2d at 187, 464 N.E.2d at 1048, the defendant filed a pro se posttrial
motion alleging his trial counsel was ineffective for failing to contact an alibi witness or
present an alibi defense at trial. The defendant argued his pro se motion, which the trial court
denied. Id. at 188-89, 464 N.E.2d at 1048-49. On appeal, the State conceded that the defendant
should have had new counsel represent him on the motion. Id. at 189, 464 N.E.2d at 1049. The
supreme court agreed and remanded the case for a new hearing on the motion with different
counsel to determine whether the defendant was denied the effective assistance of counsel. Id.-9-
¶ 47 In interpreting Krankel, the supreme court has stated, “[W]hen a defendant presents a
pro se posttrial claim of ineffective assistance of counsel, the trial court should first examine
the factual basis of the defendant’s claim. If the trial court determines that the claim lacks merit
or pertains only to matters of trial strategy, then the court need not appoint new counsel and
may deny the pro se motion. However, if the allegations show possible neglect of the case, new
counsel should be appointed.” People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637
(2003). On review, an appellate court must determine whether the trial court conducted an
adequate inquiry into the defendant’s pro se allegations. Id. at 78, 797 N.E.2d at 638.
¶ 48 In this case, defendant argues that when his trial counsel alleged his own ineffectiveness in
the motion for a new trial for failing to call Ross to testify, the trial court should have
conducted a Krankel inquiry sua sponte. The State maintains that the record does not reveal
strong evidence of trial counsel’s incompetence; therefore, the trial court was not required to
conduct a Krankel inquiry.
¶ 49 Krankel and its progeny apply only to posttrial claims raised by a defendant pro se. See id.
at 78-79, 797 N.E.2d at 638. As the supreme court has noted, “[t]he common law procedure
developed from our decision in Krankel is triggered when a defendant raises a pro se posttrial
claim of ineffective assistance of trial counsel.” People v. Jolly, 2014 IL 117142, ¶ 29, 25
N.E.3d 1127; see also People v. Ayres, 2017 IL 120071, ¶ 11. Nevertheless, defendant argues
that the fact he did not raise a pro se claim of ineffectiveness does not bar the trial court from
conducting a Krankel inquiry (citing People v. Williams, 224 Ill. App. 3d 517, 586 N.E.2d 770(1992)). We disagree.
¶ 50 In Williams, the defendant’s trial counsel revealed in a posttrial motion that he had
additional witnesses who were not called at trial who could have provided critical support to
the defendant’s alibi defense. Id. at 524, 586 N.E.2d at 774. The First District noted that the
“[d]efendant did not file a pro se petition or write to the judge claiming ineffective assistance
of counsel. Nevertheless, the trial judge’s strong comments to counsel at the hearing indicate
that he was made aware of counsel’s possible neglect.” Id. The court remanded the case for a
Krankel hearing, holding, “Where there is a clear basis for an allegation of ineffectiveness of
counsel, a defendant’s failure in explicitly making such an allegation does not result in a
waiver of a Krankel problem.” Id.¶ 51 We decline to follow this loose and broad reading of Krankel. Instead, consistent with the
supreme court’s precedent, we hold that where a defendant fails to raise a pro se posttrial claim
of ineffective assistance of counsel, the trial court need not—and ought not—conduct a
Krankel hearing. We reiterate that a Krankel hearing is a term of art to describe the hearing the
court must conduct when a defendant pro se has raised a posttrial claim regarding his counsel’s
ineffective assistance. In that hearing, the court needs to determine whether the defendant’s
allegations “show possible neglect of the case.” Moore, 207 Ill. 2d at 78, 797 N.E.2d at 637. If
so, the court should appoint new counsel for the defendant. Id. It should be remembered that
this is the only issue to be resolved by a Krankel hearing. If the court determines that new
counsel need be appointed, then (depending upon what that new counsel may file) the court
may later need to conduct a hearing on a claim that defendant’s trial counsel was ineffective. If
the court determines that new counsel need not be appointed, then the court should proceed to
address the normal posttrial matters.
¶ 52 Because defendant did not raise a pro se posttrial claim of ineffective assistance of counsel,
there was no reason for the trial court to conduct a Krankel hearing. Further, we note it is
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inappropriate for trial counsel to argue his own ineffectiveness. See People v. Lawton, 212 Ill.
2d 285, 296, 818 N.E.2d 326, 333 (2004) (explaining that a lawyer faces an “inherent conflict
of interest” when he argues his own ineffectiveness).
¶ 53 D. The Offer of Proof
¶ 54 Defendant argues that the trial court erred when it denied defense counsel’s request to
make an offer of proof as to Ross’s testimony that would have explained her absence at trial.
The State argues (1) the issue is waived and, alternatively, (2) the court’s ruling was not error.
¶ 55 The right to make an offer of proof to show the relevancy of certain evidence affords the
trial court the opportunity to make an informed decision. People v. Pressley, 160 Ill. App. 3d
858, 864-65, 513 N.E.2d 921, 926 (1987). “Illinois courts of review have not hesitated to
remand cases for new trials where circuit judges have mishandled attempts by defendants to
make offers of proof on excluded evidence.” People v. Thompkins, 181 Ill. 2d 1, 10, 690
N.E.2d 984, 989 (1998). A trial court’s decision to deny an offer of proof will be reversed if the
court abused its discretion. Id. at 12, 690 N.E.2d at 989. “[A]n abuse of discretion occurs where
the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable
person would agree with it.” People v. McDonald, 2016 IL 118882, ¶ 32, 77 N.E.3d 26.
¶ 56 At defendant’s hearing on his motion for a new trial, trial counsel requested that Ross
testify to explain why she was absent at trial. The trial court denied this offer of proof because
it found such testimony would have been inappropriate and there was no reason why Ross
could not have testified earlier. (We note the court did allow trial counsel to make a proffer that
Ross would have testified consistently with her affidavit and she would have explained her
absence from the trial—which the court did not prohibit counsel from expanding on.)
¶ 57 The State responds that defendant waived this issue because he affirmatively acquiesced to
the trial court’s ultimate decision on the offer of proof when, after the trial court denied his
offer of proof, he stated that he did not have any additional arguments on the motion. See
People v. Dunlap, 2013 IL App (4th) 110892, ¶¶ 10-11, 992 N.E.2d 184 (holding that when
trial counsel fails to present argument in the trial court, defendant’s argument on appeal is
waived).
¶ 58 Waiver aside, defendant’s argument is beside the point. Defendant argues the offer of proof
would have explained Ross’s absence at trial. However, this information is irrelevant. As
previously explained, Ross’s testimony weeks after the trial as to why she was absent from the
trial has no bearing on the issues defendant raises on appeal. The pertinent information would
come from what Ross told trial counsel during or before trial as to why she did not want to
testify.
¶ 59 Defendant’s argument regarding the offer of proof is really an extension of his claim that
his trial counsel was ineffective for not calling Ross to testify as a defense witness. We earlier
concluded that this argument is not appropriate for resolution on the record now before us and
suggested that defendant could pursue this claim by filing a postconviction petition, which (if a
hearing were to then occur) would provide an opportunity for Ross and defendant’s trial
counsel (and perhaps other witnesses, as well) to testify regarding why Ross was not called to
testify at defendant’s trial as a defense witness.
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¶ 60 Accordingly, we need not further address defendant’s argument regarding the offer of
proof. His filing of a postconviction petition would render this issue moot.
¶ 61 E. Defendant’s Claim of Double Enhancement
¶ 62 Last, defendant argues the trial court erred by subjecting him to double enhancement at
sentencing when it considered societal harm caused by drugs and those who deal drugs in the
community because the harm is already inherent in the offense. The State argues that (1)
defendant forfeited this issue and, alternatively, (2) the court properly sentenced him.
¶ 63 “A reasoned judgment as to the proper sentence to be imposed must be based upon the
particular circumstances of each individual case.” People v. Perruquet, 68 Ill. 2d 149, 154, 368
N.E.2d 882, 884 (1977). These circumstances include the defendant’s criminal history, the
defendant’s potential for reform, and the recognized interest in protecting the public and
providing a deterrent. People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326
(2005). However, a factor implicit in the offense of which the defendant has been convicted
cannot be used as an aggravating factor. Siguenza-Brito, 235 Ill. 2d at 232, 920 N.E.2d at 245;
see also People v. Phelps, 211 Ill. 2d 1, 11-12, 809 N.E.2d 1214, 1220 (2004) (“[A] single
factor cannot be used both as an element of an offense and as a basis for imposing a harsher
sentence than might otherwise have been imposed.” (Internal quotation marks omitted.)). Such
dual use of a single factor is a “double enhancement.” Phelps, 211 Ill. 2d at 12, 809 N.E.2d at
1220.
¶ 64 “The prohibition against double enhancements is based on the assumption that, in
designating the appropriate range of punishment for a criminal offense, the legislature
necessarily considered the factors inherent in the offense.” Id. However, “[t]here is a strong
presumption that the trial court based its sentencing determination on proper legal reasoning,
and a court of review should consider the record as a whole, rather than focusing on a few
words or statements by the trial court.” People v. Canizalez-Cardena, 2012 IL App (4th)
110720, ¶ 22, 979 N.E.2d 1014. Because double enhancement is a rule of statutory
construction, our review is de novo. People v. Raney, 2014 IL App (4th) 130551, ¶ 34, 8
N.E.3d 633.
¶ 65 Defendant argues the trial court erred by subjecting him to double enhancement at
sentencing when it used the societal harm caused by drugs and those who deal drugs in the
community as a factor in aggravation. Defendant contends such harm is inherent in the
unlawful delivery of a controlled substance charge.
¶ 66 The State responds that defendant forfeited this argument because he failed to raise it in the
trial court. See 730 ILCS 5/5-4.5-50(d) (West 2014) (“A defendant’s challenge to the
correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written
motion filed with the circuit court clerk within 30 days following the imposition of sentence.”);
People v. Heider, 231 Ill. 2d 1, 15, 896 N.E.2d 239, 247 (2008) (“[S]entencing issues must be
raised in a postsentencing motion in order to preserve them for appellate review.”). Defendant
concedes that he has forfeited the sentencing issue by failing to raise it in his motion to
reconsider the sentence or to object at the sentencing hearing. However, he argues for
plain-error review.
¶ 67 The plain-error doctrine allows a court to disregard a defendant’s forfeiture and consider
unpreserved error in two instances:
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“(1) where a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error and (2) where a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process ***.” Belknap, 2014 IL 117094,
¶ 48, 23 N.E.3d 325.
¶ 68 Defendant argues plain error applies to his case because the alleged error impinged on his
fundamental right to liberty. However, we decline to undertake such an analysis in this case. A
defendant’s claim that the trial court’s alleged error in imposing sentence impinged on his
“fundamental right to liberty” are not subject to plain-error review. People v. Rathbone, 345
Ill. App. 3d 305, 310-11, 802 N.E.2d 333 (2003).
¶ 69 Similarly, in People v. Ahlers, 402 Ill. App. 3d 726, 733, 931 N.E.2d 1249, 1254 (2010),
the defendant argued the plain-error doctrine applied to his case because the challenged error
interfered with his fundamental right to liberty. This court rejected this argument, explaining,
as follows:
“[T]he plain-error doctrine is not a general savings clause, to be used as a means by
which to preserve all errors affecting substantial rights that have not been brought to
the trial court’s attention. [Citation.] And we note that defendant’s contention here is
essentially the same contention this court rejected in Rathbone. Rathbone, 345 Ill. App.
3d at 311, 802 N.E.2d at 338 (holding that it is not sufficient to ‘simply state that
because sentencing affects the defendant’s fundamental right to liberty, any error
committed at that stage is reviewable as plain error’). Nonetheless, as previously stated,
sentencing errors raised for the first time on appeal are reviewable as plain error if (1)
the evidence was closely balanced or (2) the error was sufficiently grave that it
deprived the defendant of a fair sentencing hearing.” Id. at 734, 931 N.E.2d at 1256.
See also People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 27-29, 25 N.E.3d 1.
¶ 70 Defendant asserts that plain-error review is appropriate in this case because the evidence at
the sentencing hearing was “closely balanced.” We disagree, noting that the trial court
sentenced defendant as a Class X offender because of his extensive record of convictions of
serious offenses. The presentence report the court considered at the sentencing hearing
revealed that defendant, who was then 42 years old, had eight prior felony convictions,
including separate convictions for armed robbery, residential burglary, and manufacturing and
delivery of a controlled substance. He had also served four prior, separate prison sentences,
and Department of Corrections records showed that, during one of his prison sentences,
defendant was cited for 56 disciplinary reports, 10 of which were major.
¶ 71 Additionally, we agree with the State that the trial court’s comments, when placed in
context, were clearly in response to defense counsel’s argument that (1) defendant’s conduct
neither caused nor threatened serious physical harm and (2) defendant did not contemplate that
his criminal conduct would cause or threaten serious physical harm to another.
¶ 72 Accordingly, defendant’s forfeited claim is not subject to plain-error review. In so
concluding, we note this decision does not conflict with People v. Lewis, 234 Ill. 2d 32, 36, 912
N.E.2d 1220, 1223 (2009), in which the supreme court reversed this court’s decision that the
defendant’s $100 street-value fine in that case was de minimis and, therefore, not subject to
plain-error review. Id. at 36, 912 N.E.2d at 1223. The supreme court rejected this court’s
de minimis exception because the supreme court concluded that such an exception would be
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difficult to implement and was inconsistent with the fundamental fairness concerns of the
plain-error doctrine. Id. at 48, 912 N.E.2d at 1230. However, defendant’s argument in this case
does not involve a de minimis matter, and we conclude that a finding that he forfeited this
argument is consistent with Lewis.
¶ 73 Even if defendant’s claim were not forfeited, it is without merit. Defendant relies on this
court’s decision in People v. Atwood, 193 Ill. App. 3d 580, 549 N.E.2d 1362 (1990), to support
his contention that societal harm is a factor inherent in the offense of unlawful delivery of a
controlled substance. However, this court has since held that factors inherent in the offense can
sometimes be considered, along with other factors in aggravation and mitigation, as part of the
nature and circumstances of the case. See People v. Winchester, 2016 IL App (4th) 140781,
¶ 81, 66 N.E.3d 601; see also Raney, 2014 IL App (4th) 130551, ¶ 35, 8 N.E.3d 633. Thus, a
trial court may discuss the impact a drug offense has on the community without subjecting the
defendant to double enhancement. We agree with the Second District Appellate Court where it
wrote the following:
“It is not improper per se for a sentencing court to refer to the significant harm
inflicted upon society by drug trafficking. It is important that defendants understand
why they are subject to the penalties provided by law and why they have received their
particular sentences. The harm that the crime causes society is an inherent
consideration which underlies the basic range of penalties specified by the legislature.
Commenting on the problems caused by drug-related crime encourages rehabilitation
by providing a context in which a defendant may develop feelings of remorse. We do
not wish to discourage courts from addressing such relevant considerations, but we
suggest that sentencing courts attempt to segregate such general commentary from the
balancing of sentencing factors.” People v. McCain, 248 Ill. App. 3d 844, 852, 617
N.E.2d 1294, 1300 (1993).
¶ 74 In conclusion, defendant’s double-enhancement argument is not subject to plain-error
review, and even if it were, it lacks merit.
¶ 75 III. CONCLUSION
¶ 76 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal.
¶ 77 Affirmed.
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