People v. Moore , 2023 IL App (4th) 210037-U ( 2023 )

NOTICE 2023 IL App (4th) 210037-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-21-0037 January 10, 2023
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
DEONTE T. MOORE, ) No. 18CF306
Defendant-Appellant. )
) Honorable
) James R. Glenn,
) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court.
Justices Zenoff and Knecht concurred in the judgment.
ORDER
¶1 Held: (1) It was not error for the trial court to consider defendant’s answers in a bond
report and to a pretrial services officer as aggravating despite the report not being
a source of information mentioned in section 5-4-1(a) the Unified Code of
Corrections (730 ILCS 5/5-4-1(a) (2020)); the court did not abuse its discretion by
treating the answers as an accurate source of information regarding defendant’s past
criminal activity.
(2) The trial court did not treat as aggravating defendant’s failure to assist in the
presentencing investigation or his failure to make a statement in allocution and thus
did not violate defendant’s fifth amendment rights (see U.S. Const., amend. V).
(3) The record does not show defense counsel provided ineffective assistance to
defendant by misstating the number of defendant’s children, by failing to seek the
application of a newly applicable form of a factor in mitigation, or by failing to
subpoena a witness to testify to defendant’s relationship with his children.
(4) No cumulative error or deprivation of rights occurred.
¶2 Defendant, Deonte T. Moore, pleaded guilty to one count of armed robbery (720
ILCS 5/18-2(a)(1) (West 2018)). The trial court sentenced him to a term of 12 years’ imprisonment
and 3 years’ mandatory supervised release.
¶3 On appeal, defendant argues he was deprived of a fair sentencing hearing for four
reasons. One, the trial court improperly considered in aggravation that he had a history of prior
criminality when, he contends, no reliable evidence existed he had been convicted of anything.
Two, as a matter of plain error, the trial court violated his fifth amendment rights (see U.S. Const.,
amend. V) by treating as aggravating his failure to participate in the presentencing investigation
and his failure to make a statement in allocution. Three, defense counsel was ineffective for
(a) failing to tell the court defendant had two children, not one; (b) failing to ask the court to apply
the newly applicable version of the factor in mitigation relating to the effect of incarceration on a
defendant’s children (see Pub. Act. 101-471, § 5 (eff. Jan.1, 2020) (amending 730 ILCS
5/5-5-3.1)); 730 ILCS 5/5-5-3.1(a)(18) (West 2020)); and (c) failing to present evidence a longer
sentence would adversely affect those children. Four, the cumulative effect of these flaws in the
sentencing process deprived defendant of a fair sentencing hearing. We affirm.
¶4 I. BACKGROUND
¶5 The Mattoon police arrested defendant on May 31, 2018. According to the affidavit
of the arresting officer, the police responded to a call to an apartment on 21st Street in Mattoon.
Occupants of the apartment reported, “[S]everal black males, all armed with firearms, unlawfully
entered the apartment and proceeded to beat the resident [(elsewhere identified as Anthony Sims)]
while demanding money and drugs.” The perpetrators took cash and cannabis. Sims “suffered
abrasions and bruising during the incident.” As the perpetrators left the apartment, one “turned and
fired two (2) rounds at a female who followed them out.”
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¶6 Approximately 12 hours after the incident, the police took defendant into custody.
After he received Miranda warnings (see Miranda v. Arizona, 384 U.S. 436 (1966)), defendant
told the interviewing officer he knew the other perpetrators were planning an armed robbery, and
he had agreed to drive them to the targeted apartment. He claimed he remained in the car during
the robbery and did nothing more until the other perpetrators reentered the vehicle. He further told
the officer he had seen one perpetrator fire shots at the female victim. He admitted he received
stolen cannabis for his role in the robbery.
¶7 On June 1, 2018, a pretrial services officer (PTSO) prepared a pretrial services
evaluation form. The form included a checklist of risk factors, one of which was, “Adult criminal
history includes at least one misdemeanor or felony conviction.” The PTSO placed a check next
to this this factor, adding a handwritten note: “([Defendant] Reports Cook Co Crim Trespass, poss
of cannabis[.)]”
¶8 Defendant completed a bond report form, which was appended to the evaluation
form. In a section of the form captioned “Prison,” defendant checked “Yes” in response to the
question, “Have you ever been to the Department of Corrections [(DOC)]?” He checked “No” to
the question, “As a juvenile?” and checked “Yes” to the question, “As an Adult?” He reported the
relevant “County/State” as “Cook County,” the “Date of Sentence” as “August,” and the “Offense”
as “Being in abanded [sic] building Trepassing [sic] and Smoking some weed.” Defendant, who
was born on September 27, 1996, and who was thus 21 years old on the day of the incident,
reported he began using “drugs/alcohol” at age 13. His last use of cannabis was on the day of the
incident. He reported being married to and living with Keywana Torry⸻who was a
codefendant⸻and supporting their son.
¶9 At defendant’s initial bond hearing, counsel represented:
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“[Defendant] resides in Charleston with his wife and one-year-old
child. He was about to begin a job at RuffaloCODY’s this coming
Monday. He has no current income. He last worked about two
months ago.”
The State argued for a high bond based on “the extreme danger to the public that [defendant]
represents,” given “the recent *** conviction out of Cook County” and defendant’s “minimal
connection with Coles County.” The court set bond at $200,000.
¶ 10 On June 29, 2018, defense counsel filed a motion to reduce defendant’s bond in
which counsel represented:
“3. Defendant has no prior felony convictions. Defense counsel has
not yet received discovery to confirm his criminal history through
LEADS [(Law Enforcement Agencies Data System)]. Defendant
reports he made a mistake while completing his pretrial evaluation
and incorrectly reported he had been to the Illinois [DOC].
***
6. Defendant has a one year old child and is expecting another child
with his girlfriend [sic].”
With the State’s agreement, the trial court reduced defendant’s bond to $50,000.
¶ 11 Defense counsel filed a motion for a further reduction of bond on August 10, 2018,
and, on October 11, 2018, a motion seeking a furlough to allow defendant to attend his
mother-in-law’s funeral. Both motions again noted defendant’s lack of felony convictions. The
first motion noted Torry’s pregnancy with the couple’s second child. The trial court denied both
motions.
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¶ 12 Defense counsel filed a third motion to reduce bond on February 13, 2019. Counsel
alleged:
“3. Defendant has a newborn baby that resides with [Torry,] his
wife[,] in Chicago, Illinois. [Torry] needs defendant’s assistance in
caring for the child.
4. Defendant will reside with his family at 10835 Wabash, Chicago,
Illinois.”
At a February 14, 2019, hearing on the motion, counsel represented:
“To my knowledge, my client has no prior felony history. He
would be residing in Chicago with [Torry] and [their] newborn
child. *** [Torry] needs him to care for that child.”
The trial court denied this motion in part because of defendant’s intention to live in Cook County.
¶ 13 On October 24, 2019, the State filed an amended information charging defendant
with two counts of home invasion (720 ILCS 5/19-6(a)(2), (a)(3) (West 2018)) and eight counts
of armed robbery (720 ILCS 5/18-2(a)(1), (a)(2) (West 2018)). The counts described an incident
in which defendant⸻or a person for whose conduct he was accountable⸻while armed with a
firearm, entered the home of Sims, struck Sims, took cell phones from Sims, Emily Peterson, and
Hilary Baker, and took cash from James Lawrence and Baker.
¶ 14 On November 15, 2019, defendant agreed to plead guilty to one count of armed
robbery (720 ILCS 5/18-2(a)(1) (West 2018)). The original count at issue alleged defendant, while
armed with a long gun, took Sims’s cell phone. The parties agreed to amend this count to remove
the reference to a long gun. The amended count thus alleged defendant was armed with a
“dangerous weapon,” not a firearm. The parties further noted they agreed the sentence would have
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a floor of nine years, but no cap. The factual basis the State presented paralleled the affidavit of
the arresting officer except for the omission of references to firearms. The State also represented
Torry told the police she had knocked on Sims’s apartment door, and, when a resident answered,
three armed perpetrators, among them defendant, entered the apartment. Further, police had
interviewed Chelsie Langenhorst, a codefendant, who admitted both she and defendant had
participated in planning the robbery. Finally, the police interviewed Cameron Scott, another
codefendant, who admitted he and defendant entered Sims’s apartment while armed with
dangerous weapons. The trial court accepted the parties’ agreement and directed defendant to
cooperate with the probation office in its preparation of the presentencing investigation report
(PSI). The trial court provided not only absentia warnings for defendant should he fail to appear,
but expressly referenced the fact that his failure to appear on time would not delay the hearing.
This was after defendant had appeared late at several previous hearings since being released on
bond.
¶ 15 According to the PSI, dated January 9, 2020, defendant posted bond and was
released on March 1, 2019. After entering his guilty plea, he “reported to pre-trial and was told to
report for an interview on December 10 at 2 p.m.” The officer preparing the report made repeated
attempts to remind defendant of the interview, but defendant appeared neither at the appointed
time nor at a rescheduled December 27, 2020, interview date. The PSI thus contained only the
information contained in the pretrial services evaluation. Notably, the PSI did not state defendant
had any prior convictions, juvenile adjudications, or other criminal adjudications.
¶ 16 Defendant did not appear at his January 24, 2020, sentencing hearing. The State
declined to present evidence. Neither party suggested relevant corrections to the PSI. Defendant
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offered in evidence cooperation agreements with codefendants Torry, Langenhorst, and Melvin
Galloway as indicators of potentially comparable sentences.
¶ 17 In its argument, the State contended three statutory factors in aggravation should
apply. First, defendant’s “conduct caused or threatened serious harm” (730 ILCS 5/5-5-3.2(a)(1)
(West 2020)). Second, defendant had “a history of prior delinquency or criminal activity” (730
ILCS 5/5-5-3.2(a)(3) (West 2020)). It asserted, “You can see that [history] *** in the pretrial
services evaluation *** where the defendant self-admitted to having previously been to the [DOC]
in Cook County for being in an abandoned building trespassing and smoking some weed.” Third,
it contended a sentence of more than nine years was “necessary to deter others from committing
the same crime” (730 ILCS 5/5-5-3.2(a)(7) (West 2020)). Based on these statutory factors in
aggravation, defendant’s failure to appear for the presentencing investigation interview or the
sentencing hearing, and what the State argued was a lack of mitigating factors, the State urged the
court to impose a 15-year sentence. Finally, it argued the situations of the codefendants who had
cooperation agreements were not comparable.
¶ 18 Defense counsel, disagreeing with the State, contended that the statutory mitigating
factor of “defendant [having] no history of prior delinquency or criminal activity or [having] led a
law-abiding life for a substantial period of time before the commission of the present crime” (730
ILCS 5/5-5-3.1(a)(7) (West 2020)) should apply. Counsel argued it was “unclear” if the incident
to which defendant admitted in the pretrial evaluation “was a juvenile offense or what, and nothing
else has been presented today.”
¶ 19 Defense counsel further argued the statutory factor in mitigation, “[t]he
imprisonment of the defendant would entail excessive hardship to his dependents [(730 ILCS
5/5-5-3.1(a)(11) (West 2018))]”, should apply. Counsel did not cite the then-newly applicable
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version of this factor in mitigation, which stated, “[Among] the grounds [which] shall be accorded
weight in favor of withholding or minimizing a sentence of imprisonment” is “defendant is the
parent of a child or infant whose well-being will be negatively affected by the parent’s absence,”
and which sets out six factors the court is to consider. Pub. Act. 101-471, § 5 (eff. Jan. 1, 2020)
(amending 730 ILCS 5/5-5-3.1); 730 ILCS 5/5-5-3.1(a)(18) (West 2020). Further, counsel
mentioned defendant’s “child, his dependent,” rather than referring to defendant’s two children.
¶ 20 Defense counsel also noted the cooperation agreements showed Galloway, who
was armed when he entered Sims’s apartment, was to receive a nine-year sentence. Counsel argued
Galloway’s circumstances were comparable to defendant’s.
¶ 21 The trial court accepted the State’s argument concerning defendant’s criminal
history. It further ruled it had insufficient information about defendant’s relationship with “the
child” to treat hardship to a dependent as an applicable factor. It sentenced defendant to 12 years’
imprisonment:
“With regard to various factors, I am considering perhaps *** that
the defendant’s criminal conduct was induced or facilitated by
someone other than the defendant [(730 ILCS 5/5-5-3.1(a)(5) (West
2020))]. I’m not giving great weight to it because *** I don’t have
[defendant] today to explain it ***. With regard to [the mitigating]
factor *** that the defendant has no history of prior delinquency or
criminal activity[,] I’m not able to find that based on the
representation made in the Pretrial Risk Assessment where he
checked the box yes for have you been in the [DOC], and it may
have been the *** evaluating officer that checked that, but he
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checked yes on [DOC]. No on as a juvenile. Yes as an adult. And it
was this offense in August of being in the abandoned building
trespassing or smoking some weed. Because I have that information,
and I realize that that’s not sworn testimony, I can’t find [the factor
of no criminal history] to exist, and with regard to Factor 11, and I
believe that’s now factor 18, regarding the dependent,*** the only
information I have is that he is married and has one child, but I don’t
have any information as to the relationship with the child or support
provided for the child, so I don’t find that [factor applies] either.
With regard to factors in aggravation, I do find *** the
defendant’s conduct either causing or threatening serious harm to
another. With regard to [the criminal history factor], I am going to
find that he has a history of prior criminal activity. It’s either
delinquency or criminal activity based on the limited information
that I’ve been provided with, and I also find *** the deterrent factor,
so I find those factors to exist in aggravation.
It is important to be consistent with other cases. None of
those cases have been concluded, but we do have Cooperation
Agreements which gives a roadmap as to where they may end up.
[Defendant] did have an opportunity to follow this Court’s order and
cooperate with the preparation of the [PSI], and he did not do so,
and he did have an opportunity to come here today and present
evidence or at least give a statement of allocution. Considering all
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of those factors and the items that I have reviewed I’m going to
sentence the defendant to 12 years in the Illinois [DOC] with
mandatory supervised release of 3 years and credit for 275 days
served.”
¶ 22 Defense counsel filed a motion to reconsider the sentence, which stated, in relevant
part:
“4. The sentence imposed is not in keeping with the
Defendant’s past history or criminality, age, mental history, medical
condition, family situation, economic status, education,
occupational or personal habits.
5. This court erred by finding [the] mitigat[ing] factor ***,
no history of prior delinquency or criminal activity, did not apply.
No criminal history was listed in the [PSI]. This court relied on the
pretrial services report. The record is unclear as to what prior
convictions, if any, defendant has.” (Emphasis added.)
By the time of the hearing on the motion, defendant was back in custody. Neither party offered
any argument on the motion. Defendant made no effort to explain his absence, correct the trial
court’s rendition of his criminal history, or further explain his family circumstances. The trial court
denied the motion, stating:
“I did not consider the mitigating factor of no prior history; instead,
I found that as a factor in aggravation and I did look at the pretrial
report which indicated that [defendant] had been incarcerated in the
[DOC] at a prior time.”
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This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Defendant argues on appeal he was deprived of his rights at sentencing in four
ways. One, he contends the trial court improperly considered unreliable evidence and statutorily
unacceptable evidence to conclude he had a history of criminal activity or delinquency. Two, he
contends, as a matter of plain error, the trial court violated his rights under the fifth amendment by
treating as aggravating his failure to participate in the PSI’s preparation and his failure to give a
statement in allocution. Three, he argues defense counsel was ineffective for (a) failing to tell the
court defendant had two children, not one; (b) failing to ask the court to apply the newly applicable
version of the factor in mitigation relating to the effect of incarceration on a defendant’s children;
and (c) failing to present evidence a longer sentence would adversely affect those children. Four,
he argues, “The cumulative effect of the trial court’s errors and counsel’s ineffectiveness deprived
[him] of a fair sentencing hearing.” We address defendant’s initial three claims in turn, concluding
each is meritless. We therefore necessarily conclude his fourth claim is without merit.
¶ 25 A. Use of Inaccurate Information to Show a History of Criminality
¶ 26 Defendant argues first the trial court erred in relying on the bond report to find
applicable the third statutory factor in aggravation: “the defendant has a history of prior
delinquency or criminal activity” (730 ILCS 5/5-5-3.2(a)(3) (West 2020)). He contends (1) “the
bond report was not a proper consideration in fashioning a sentence under the Illinois Unified Code
of Corrections [(Code)]” and (2) “the information in the bond report could not be considered in
aggravation because it merely listed a potential prior arrest without any demonstration of the
information’s accuracy or reliability.” We consider these arguments in turn.
¶ 27 1. Whether the Bond Report Was a Proper Source of Information Under the Code
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¶ 28 Defendant argues section 5-4-1(a) of the Code (730 ILCS 5/5-4-1(a) (2020)) lists
all sources of information the trial court may consider in imposing sentence. The version of the
sentence applicable in 2020 lists 12 sources the court was required to consider. Pub. Act 101-105,
§ 5 (eff. Jan. 1, 2020) (amending 730 ILCS 5/5-5-3/1); 730 ILCS 5/5-4-1(a) (West 2020).
Defendant contends only one could have applied to his statement in the bond report: the court is
to “consider evidence and information offered by the parties in aggravation and mitigation” (730
ILCS 5/5-4-1(a)(4) (2020)). Defendant argues the bond report was not offered by either party.
Quoting People v. Freddie Jackson, 103 Ill. App. 2d 209, 224, 243 N.E.2d 551, 558 (1968), he
states, “When evaluating [the] factors, ‘the sentencing judge is limited by what the parties present
for consideration.’ ” He asserts, “The State did not offer any evidence in aggravation at the
sentencing hearing, let alone evidence of past criminal activity.” (Emphasis in original.)
“Simply put, there was no statutory basis for the trial court to
consider information contained in the bond report at the sentencing
hearing⸻the bond report was not a [PSI one of the sources of
information section 5-4-1(a) requires the court to consider
regardless of whether a party raises it (see 730 ILCS 5/5-4-1(a)(2)
(2020))], and neither party presented [the report] at the sentencing
hearing.” (Emphasis added.)
Therefore, he asserts, the court erred in considering it.
¶ 29 Replying to the State’s contention his statement in the bond report was nonhearsay
under Illinois Rule of Evidence 801(d)(2) (eff. Oct. 15, 2015) (providing a statement is not hearsay
if it is “offered against a party and is *** the party’s own statement” (emphasis added)), defendant
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contends the State did not offer the report. He thus argues the nonhearsay status of the statement
was irrelevant to the court’s ability to consider it.
¶ 30 Defendant’s argument concerning the court’s ability to consider his statement rests
on interpretations of section 5-4-1(a)(4) of the Code and Rule 801(d)(2). Our review is therefore
de novo. See, e.g., People v. Wise, 2021 IL 125392, ¶ 23, 182 N.E.3d 656 (stating issues of
statutory interpretation are subject to de novo review).
¶ 31 Defendant’s interpretation of section 5-4-1(a) would prevent the trial court from
taking note of the court record (other than the PSI and any trial evidence (see 730 ILCS
5/5-4-1(a)(1) (2020)) unless a party formally seeks to have that part of the record admitted into
evidence. This interpretation is absurd. It would, for instance, prohibit a court from considering
the factual basis for a guilty plea, a source of information not mentioned in section 5-4-1(a), unless
a party somehow formally “offered” it. But parties are always free to raise matters in the record in
argument to the court without formally seeking admission of the record of the same proceeding.
See People v. Jackson, 182 Ill. 2d 30, 66, 695 N.E.2d 391, 409 (1998) (“[A] court will take judicial
notice of its own records.”). Therefore, either (1) section 5-4-1(a) is not an exclusive list of the
matters a court may consider at sentencing or (2) under section 5-4-1(a)(4), a party may “offer” a
section of the record by mentioning it in argument. We suggest the first alternative is clearly
correct. The court should not be limited by the parties’ arguments in considering the whole record
at sentencing. However, under either alternative, defendant’s argument fails.
¶ 32 The rule in Freddie Jackson, which held, under an earlier statutory scheme, “the
sentencing judge is limited by what the parties present for his consideration” (Freddie Jackson,
103 Ill. App. 2d at 224), would not have barred consideration of defendant’s statement in the bond
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report. The State presented the statement for the court’s consideration by taking note of it in its
argument.
¶ 33 2. Whether the Bond Report Was of Sufficient Accuracy for Use at Sentencing
¶ 34 Defendant next argues, “[t]he information in the bond report could not be
considered in aggravation because it merely listed a potential prior arrest without any
demonstration of the information’s accuracy or reliability.” He contends the bond report “merely
listed a prior arrest [which] was unsupported by any other evidence the parties presented at the
sentencing hearing.” He argues evidence of “bare arrests” may not be considered at a sentencing
hearing, and “a mere list of arrests and charges unsupported by live testimony or other evidence
does not meet the [accuracy] standard [for consideration at sentencing].” He concedes, under
People v. LaPointe, 88 Ill. 2d 482, 498 431 N.E.2d 344, 351 (1981), the “ ‘relevancy and accuracy
of the information submitted[,]’ [is] more important than ‘[w]hether a defendant had been
prosecuted and convicted for other misconduct[.]’ [Citation.]” But he argues the court erred in
considering the statement in the bond report because the court “had no basis on which to decide if
the offense was actually committed,” and because no other evidence supported the existence of a
conviction.
¶ 35 We note defendant concedes the Illinois Rules of Evidence do not apply at
sentencing hearings (see Ill. R. Evid. 1101(b)(3) (eff. Sept 17, 2019)) and, further, “ ‘[t]he source
and type of admissible information [at sentencing] is virtually without limits’ ” (quoting People v.
Sims, 403 Ill. App. 3d 9, 23, 931 N.E.2d 1220, 1233 (2010)).
¶ 36 In response, the State contends the bond report was proper evidence of a prior
conviction. It argues, although the Illinois Rules of Evidence do not apply at sentencing, the
statements to the PTSO and in the bond report would otherwise be admissible nonhearsay under
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Illinois Rule of Evidence 801(d)(2) (eff. Oct. 15, 2015). In other words, statements such as those
contained in the bond report would be admissible against defendant at trial under Rule 801(d)(2),
and thus, a fortiori should be admissible at the sentencing hearing.
¶ 37 The State further argues the pretrial services evaluation and the bond report contain
admissions of a conviction, not merely an arrest. It points to the handwritten note in the pretrial
services evaluation as an admission by defendant to the PTSO defendant had been convicted in
Cook County of trespass and possession of cannabis. It further points to defendant’s response to a
question in the bond report as an admission he had been to the DOC as an adult for being in an
abandoned building and smoking cannabis. According to the State, these statements, which
defendant “never denied,” “demonstrated an adult criminal history that included at least one
misdemeanor or felony conviction.” In particular, it contends defendant admitted in the bond report
he had received a “ ‘sentence’ ” and “had been to the [DOC],” and the statement was reliable
because it was an admission against his interest. Further, defendant did not dispute the existence
of his criminal record, but merely that it was not a felony.
¶ 38 In reply, defendant makes three arguments. First, he contends his statements do not
satisfy the relevancy and admissibility requirements of Illinois Rule of Evidence 401 (eff. Jan 1,
2011) (concerning relevance generally) and Illinois Rule of Evidence 404(b) (eff. Jan 1, 2011)
(concerning admissibility of evidence of other crimes, wrongs, or bad acts). He argues his
admission “would not have been relevant to establishing the charged conduct,” namely, the armed
robbery, “or any other fact of consequence.” Second, citing Rule 801(d)(2) , he reiterates his
contention the court’s consideration of his statement in the bond report was improper because
neither party offered the report in evidence. Third, he recapitulates his argument asserting the bond
report was evidence only of an arrest.
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¶ 39 We conclude defendant’s statements in the pretrial services evaluation and the bond
report were an accurate basis for the trial court to determine defendant had previously engaged in
criminal activity. “The determination of admissibility of evidence at the aggravation/mitigation
stage of sentencing lies within the discretion of the trial court.” People v. Terrell, 185 Ill. 2d 467,
505, 708 N.E. 2d 309, 328 (1998); see also LaPointe, 88 Ill. 2d at 498 (stating the “relevancy and
accuracy of the information submitted” at a sentencing hearing is “initially determined by the trial
judge in the exercise of an informed discretion”). Accordingly, our review of this part of
defendant’s claim is for an abuse of discretion.
¶ 40 Initially, we note the parties’ arguments contain two red herrings. One, the
discussion of the Illinois Rules of Evidence leads to a dead end. Defendant’s discussion of the
rules is in defiance of his previous admission the rules are inapplicable at sentencing. The State’s
discussion of Rule 801(d)(2) fairly points out admissions are typically treated as reliable, but it
does not answer defendant’s contention an admission of a conviction cannot be reliable in the
absence of the other expected evidence the conviction exists. Two, whether defendant had a
conviction based on his smoking cannabis in an abandoned building is not a dispositive issue.
Under LaPointe, a sentencing court may consider other offenses a defendant has committed,
including uncharged offenses, if the information is relevant and accurate. LaPointe, 88 Ill. 2d at
498. This usually means testimony of such an offense by a live witness with firsthand knowledge.
See People v. Thomas, 137 Ill. 2d 500, 547, 561 N.E.2d 57, 77 (1990), (stating evidence of
uncharged criminal conduct was admissible at a sentencing hearing when the evidence was
relevant and reliable and the witness was subject to cross-examination); see also People v.
Ramirez, 98 Ill. 2d 439, 460-61, 457 N.E.2d 31, 41-42 (1983) (stating evidence of prior offenses
met the standards of LaPointe when it was presented through witnesses and subject to
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cross-examination). However, defendant’s objection here to the use of his statements in the pretrial
services evaluation and the bond report is not based on the lack of live testimony, but rather is
based on the assertion they described a mere arrest.
¶ 41 We accept, for the purposes of argument, “the mere listing of prior arrests, not
resulting in convictions, in a [PSI] does not satisfy the accuracy requirement of LaPointe.” People
v. Robert Thomas, 111 Ill. App. 3d 451, 454, 444 N.E.2d 288, 290 (1983). But, as we discuss,
applying the rule in Robert Thomas would not make defendant’s admission he committed offenses
based on trespassing and possession of cannabis unreliable.
¶ 42 Based on these considerations, we take defendant’s actual claim to be, given the
lack of independent evidence of a conviction, the trial court abused its discretion in treating
defendant’s statements in the pretrial services evaluation and the bond report as accurate evidence
of previous criminal conduct. We conclude no abuse of discretion occurred. Defendant’s words on
the bond form⸻“Being in abanded [sic] building Trepassing [sic] and Smoking some weed”⸻are
not the language of someone describing a mistaken arrest. Defendant also checked boxes on the
form indicating he had been to the [DOC] as an adult but not as a juvenile (a fact he would later
deny, and which could easily have been due to his confusion over having been in jail). He identified
his “date of sentence” for the Cook County offense as “August.” Although defendant argues we
cannot necessarily rely on the accuracy of this information, at the same time, defendant clearly
indicated on the same form he had not been previously adjudicated a delinquent, was not then on
adult probation or parole, and had no criminal convictions from another state, all of which we
assume defendant would suggest were accurate. It was not an abuse of the trial court’s discretion
to rely on the accuracy of defendant’s own entries on the bond form, as well as the information
represented to the PTSO.
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¶ 43 Defendant suggests, because no independent evidence existed of any adjudication
or sentence associated with trespass or cannabis possession, his statement must have referred only
to an arrest. This does not follow. To be sure, the record strongly suggests defendant was mistaken
when he admitted he had been sentenced to the DOC as an adult. In his June 29, 2018, motion for
reduction of bond, defendant denied having been to the DOC. The State opposed the motion but
did not contest his claim he had not been in the DOC, something it could have easily disproved if
it were false. Moreover, no sentence to the DOC appeared in defendant’s PSI. The DOC has readily
available online records. Those records are treated as of sufficient accuracy to permit courts to take
judicial notice of them. People v. Johnson, 2021 IL 125738, ¶ 54, 182 N.E.3d 728. Given the
“missing” evidence of a sentence to DOC, we deem it probable defendant lacked a full grasp of
the legal outcome of the incident he was trying to describe in the bond report. But this confusion
does not turn defendant’s admission of what he did do⸻smoke cannabis in an abandoned
building⸻into a mere description of an arrest. Thus, regardless of the kind of adjudication (or
lack thereof) associated with the incident, it was within the court’s discretion to deem defendant’s
statement in the bond report to be an accurate admission of his possession of cannabis and his
possible commission of a criminal trespass. It thus did not err in treating the admission as
establishing defendant had “a history of prior delinquency or criminal activity” (730 ILCS 5/5-5-
3.2(a)(2) (West 2020)).
¶ 44 B. Violation of Defendant’s Fifth Amendment Rights
¶ 45 Defendant next argues, as a matter of second-prong plain error, the trial court
violated his fifth amendment rights by deeming as aggravating his “failure to assist in the
preparation of a [PSI] and failure to give an allocution statement.” He asks us to consider the
court’s comment:
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“[Defendant] did have an opportunity to follow this Court’s order
and cooperate with the preparation of the [PSI], and he did not do
so, and he did have an opportunity to come here and present
evidence or at least give a statement of allocution.”
He analogizes the court’s comments to those in People v. Maggio, 2017 IL App (4th) 150287, 80
N.E.3d 72, in which the court commented negatively on the defendant’s refusal to participate in
the presentencing investigation, and in People v. Matute, 2020 IL App (2d) 170786, 168 N.E.3d
673, in which the court deemed aggravating a defendant’s failure to use his opportunity to make a
statement in allocution to express remorse.
¶ 46 In response, the State contends the trial court “drew no negative inference from
defendant’s silence.” It argues the trial court was explaining, because it had not heard anything
from defendant and thus had no supporting evidence, it could not give much weight to the
mitigating factor of defendant’s “criminal conduct [being] induced or facilitated by others.” It
further argues the court’s reasoning was similar concerning the weight it gave the codefendants’
cooperation agreements: because defendant had not cooperated, it could not treat the cases
involving cooperation agreements as comparable to defendant’s.
¶ 47 In reply, defendant contends the structure of the court’s ruling shows it treated his
failure to assist with the PSI and failure to make a statement in allocution as aggravating. He breaks
the ruling down into three parts: (1) factors in mitigation, (2) factors in aggravation, and (3) “other
considerations and conclusion.” He contends the court’s placement of the comments at issue in the
final section after its discussion of the cooperation agreements shows the court was “not reverting
to its discussion of the factors in mitigation,” but rather was “discussing why it believed that [he]
did not deserve a minimized sentence like his codefendants,” namely, “he had refused to provide
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additional information at all turns, including during the pre-sentence investigation and at the
sentencing hearing.”
¶ 48 Defendant concedes he has forfeited this argument by failing to make a
contemporaneous objection to the court’s comments and by failing to raise the issue in his
postsentencing motion. See People v. Hillier, 237 Ill. 2d 539, 544, 931 N.E.2d 1184, 1187 (2010)
(“It is well settled that, to preserve a claim of sentencing error, both a contemporaneous objection
and a written postsentencing motion raising the issue are required.”). However, he contends, under
the plain error rule, we may notice plain errors or defects affecting substantial rights although they
were not brought to the attention of the trial court. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).
¶ 49 The plain error doctrine serves as a “narrow and limited exception” to our standard
rules for preserving error. (Internal quotation marks omitted.) People v. Ahlers, 402 Ill. App. 3d
726, 733, 931 N.E.2d 1249, 1255 (2010). As our supreme court has explained in, among other
cases, People v. Moon, 2022 IL 125959, ¶ 20
“[T]he plain error rule allows reviewing courts discretion to review
forfeited errors under two alternative prongs: (1) when 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 [(first-prong
plain error)], or (2) when a clear or obvious error occurred and the
error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process, regardless of the
closeness of the evidence [(second-prong plain error)].”
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“Errors that fall within the purview of the second prong of the plain error rule are ‘presumptively
prejudicial errors—errors that may not have affected the outcome, but must still be remedied’
because the error ‘deprive[d] the defendant of a fair trial.’ ” Moon, 2022 IL 125959, ¶ 24 (quoting
People v. Herron, 215 Ill. 2d 167, 185, 830 N.E.2d 467, 479 (2005)). However, regardless of the
type of plain error a defendant claims, “[t]he first analytical step under the plain error rule is to
determine whether there was a clear or obvious error.” Moon, 2022 IL 125959, ¶ 22. Here, no clear
or obvious error occurred.
¶ 50 Whether a trial court relied on an improper factor in imposing a defendant’s
sentence is a question of law; when a defendant has preserved the issue, review is thus de novo.
People v. Williams, 2018 IL App (4th) 150759, ¶ 18, 99 N.E.3d 590. However, when an appellate
court reviews such a question, “[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. A defendant claiming the
use of an improper factor bears the burden to establish an improper factor affected the sentence.
Williams, 2018 IL App (4th) 150759, ¶ 18.
¶ 51 The fifth amendment to the United States Constitution⸻which is applicable to the
states by action of the fourteenth amendment (U.S. Const., amend. XIV; Allen v. Illinois, 478 U.S.
364, 368 (1986))⸻provides, in relevant part, “No person *** shall be compelled in any criminal
case to be a witness against himself.” U.S. Const., amend. V. The fifth amendment right against
self-incrimination applies during the sentencing phase. Maggio, 2017 IL App (4th) 150287, ¶ 48.
Defendants therefore have the right to remain silent during the presentence investigation, and
“invocation of the right cannot be used as an aggravating factor at sentencing.” Maggio, 2017 IL
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App (4th) 150287, ¶ 49. By the same reasoning, a court may not treat as aggravating a defendant’s
decision to forgo making a statement in allocution.
¶ 52 We find nothing in the trial court’s explanation of defendant’s sentence sufficient
to overcome the presumption it based its determination on proper reasoning. Defendant subjects
the court’s sentencing statement to a close reading more appropriate to statutory analysis than to
the interpretation of an oral ruling. This approach is inconsistent with the presumption the court
“based its sentencing determination on proper legal reasoning.” Canizalez-Cardena, 2012 IL App
(4th) 110720, ¶ 22.
¶ 53 In his reply brief, defendant summarizes his argument the court improperly used
his nonparticipation against him:
“To start, the court’s sentencing analysis can easily be
broken down into three parts, with each corresponding to a distinct
piece of the three-paragraph ruling: (1) factors in mitigation;
(2) factors in aggravation; and (3) other considerations and
conclusion. This compartmentalization is important because *** it
shows that the court was not explaining its application of mitigating
factors or a lack of evidence pertaining thereto when it faulted [him]
in violation of his Fifth Amendment rights.
***
The court then moved on to the factors in aggravation. ***
But, immediately after pointing to [the cooperation agreements], the
court stated:
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‘[Defendant] did have an
opportunity to follow this Court’s
order and cooperate with the
preparation of the Presentence
Investigation Report, and did not do
so, and he did have an opportunity to
come here today and present evidence
or at least give a statement of
allocution. Considering all of those
factors and the items that I have
reviewed I’m going to sentence
[defendant] to 12 years in the Illinois
[DOC][.]’ ([E]mphasis added[.])
Matching the overall structure of the analysis, this paragraph
demonstrates that the court separately considered ‘all of those
factors’ it had discussed in aggravation in mitigation, as well as ‘the
items’ it reviewed such as the failure to participate and present
evidence, before arriving at the 12-year sentence. Thus, as argued in
the opening brief, the trial court drew negative inferences in
violation of the Fifth Amendment.”
¶ 54 Defendant reads an excessively formal structure into the trial court’s ruling⸻a
structure which, we note, is created in part by the paragraph breaks inserted by the court reporter.
Defendant uses this somewhat arbitrary structure to suggest his lack of participation was at the
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core of the court’s sentencing decision. However, when we assume the court applied proper legal
reasoning, we cannot give the court’s comments the sort of close reading found in defendant’s
argument. We must read the court’s comments as a whole and without the implausible assumption
the court structured its comments as if in a formal essay. We recognize the trial court is ruling from
the bench, immediately after hearing arguments of counsel, and without the 20/20 editing hindsight
defendant presupposes. Properly read, the court’s statement defendant failed to use his
“opportunity to *** cooperate with the preparation of the [PSI]” and failed to use his opportunity
to “at least give a statement of allocution” relates to the court’s comments about its lack of
information about the possible mitigating factors of the influence of others and the effect on his
dependents as well as perhaps clear up, for purposes of mitigation as well, exactly what his criminal
record proved to be. We thus conclude defendant has not shown an improper consideration of his
decision to remain silent influenced the court’s sentencing decision.
¶ 55 The trial court’s comments here were distinguishable from those in Maggio and
Matute, on which defendant relies. In Maggio, the trial court explicitly considered the defendant’s
refusal to answer the questions of the court services officer [CSO] as a sign of poor rehabilitative
potential:
“ ‘It is significant to this court and troubling that when [the CSO] went out
to interview the defendant in jail, he refused to cooperate with the interview
and refused to fill out the social form and the history that was necessary,
*** knowing [the CSO] *** was an arm of the court, and he still refused
twice to be interviewed and did not fill out the social history form. ***
[T]hat certainly speaks volumes about his attitude, and is something the
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court takes into consideration in measuring rehabilitative potential.’ ”
Maggio, 2017 IL App (4th) 150287, ¶ 49.
This was the comment the Maggio court “conclude[d] ***[was] an improper comment on
defendant’s fifth amendment right to remain silent during the presentence investigation.” Maggio,
2017 IL App (4th) 150287, ¶ 49. Here, by contrast, rather than considering defendant’s
nonparticipation as aggravating, the court merely noted his nonparticipation as the basis for the
lack of information preventing it from potentially applying factors in mitigation.
¶ 56 An error akin to the one in Maggio occurred in Matute. The trial court in Matute
commented:
“ ‘I find [it] a little bit disturbing that the defendant has not
offered any allocution whatsoever and even changed the story when
[it] came to statements [that defendant] made to the probation officer
which [vary] significant[ly] from the video confession that this
defendant has given.’ ” Matute, 2020 IL App (2d) 170786, ¶ 56.
The trial court also added, “ ‘I also considered heavily the defendant’s lack of remorse and the
defendant’s now recent denial.; ” Matute, 2020 IL App (2d) 170786, ¶ 57. The Matute court held
the trial court violated defendant’s fifth amendment rights when it used the defendant’s silence to
infer a lack of remorse. Matute, 2020 IL App (2d) 170786, ¶ 59. Again, no such improper inference
occurred here; the court merely explained defendant’s silence deprived it of evidence to support
two potentially applicable factors in mitigation.
¶ 57 As defendant has not shown error, a fortiori, he has not shown clear or obvious
error. We therefore need not proceed further in the plain error analysis. See Moon, 2022 IL 125959,
¶ 22.
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¶ 58 C. Ineffective Assistance of Counsel
¶ 59 Defendant argues defense counsel was ineffective for (a) failing to tell the court
defendant had two children, not one; (b) failing to ask the court to apply the version of section
5-5-3.1(a) of the Code effective on January 1, 2020, which would have allowed the court to give
deeper consideration of the effect of his incarceration on his dependent children; and (c) failing to
present evidence a longer sentence would adversely affect those children. He contends, given the
representations counsel previously made to the court concerning defendant’s family, the record
shows counsel could have presented evidence sufficient to allow the court to treat defendant’s
relationship with his two children as mitigating and certainly could have avoided telling the court
defendant had one, not two, children.
¶ 60 In response, the State contends defendant’s argument is unsupported by the record
and thus based on mere conjecture. It notes the court declined to deem mitigating defendant’s
status as a father on the basis it lacked evidence of the nature of the parent-child relationship. It
further argues, given defendant’s absence, defense counsel had no way to offer appropriate
evidence. Finally, it points out the court explicitly noted the applicability of the newly effective
version of section 5-5-3.1(a) of the Code. It thus contends defendant could not have been
prejudiced by counsel’s failure to advocate for the applicability of the amendment.
¶ 61 Replying, defendant first contends the number of a defendant’s children is
necessarily relevant to the hardship that defendant’s incarceration will impose on those children.
He next argues the record shows defense counsel could have presented evidence of defendant’s
relationship with his children. He points to filings in which defense counsel noted the birth of
defendant’s second child, his desire to attend his mother-in-law’s funeral, and his stated intention
to live with his wife and children when released on bond. Further, he suggests, despite his absence
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from the sentencing hearing, defense counsel could have established the strength of his relationship
with his children by subpoenaing Torry as a witness in mitigation. It takes a special level of
audacity for a defendant to fail to appear for his own sentencing, after failing to cooperate at all
with his own presentence investigation, and then claim trial counsel could have done more on his
behalf.
¶ 62 The sixth amendment guarantees a defendant the right to effective assistance of
counsel at all critical stages of a criminal proceeding (U.S. Const., amend. VI; People v. Hughes,
2012 IL 112817, ¶ 44, 983 N.E.2d 439), including sentencing (People v. Lawrence Jackson, 205
Ill. 2d 247, 258-59, 793 N.E.2d 1, 9 (2001)). A defendant may properly raise a claim of
ineffectiveness of counsel for the first time on appeal. People v. Jefferson, 2021 IL App (2d)
190179, ¶ 26, 190 N.E.3d 323. In such appeals, our review is equivalent to de novo review. People
v. Hibbler, 2019 IL App (4th) 160897, ¶ 88, 129 N.E.3d 755.
¶ 63 We analyze a defendant’s claim of ineffective assistance of counsel under the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach,
2017 IL 120649, ¶ 29, 89 N.E.3d 366. To prevail on such a claim, “a defendant must establish that
his counsel’s performance fell below an objective standard of reasonableness and that he was
prejudiced by counsel’s deficient performance.” People v. Brown, 2017 IL 121681, ¶ 25, 102
N.E.3d 205. The reasonableness of counsel’s performance is measured by “an objective standard
of competence under prevailing professional norms.” People v. Evans, 186 Ill. 2d 83, 93, 708
N.E.2d 1158, 1163 (1999). A reviewing court applies a strong presumption “counsel’s conduct
falls within the wide range of reasonable professional assistance”; a reviewing court must presume
a purportedly unreasonable action was the product of sound trial strategy. People v. Manning, 241
Ill. 2d 319, 334, 948 N.E.2d 542, 547 (2011). Concerning prejudice, “[t]he defendant must show
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that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different; a “reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
¶ 64 A claim of ineffective assistance fails unless the defendant satisfies both prongs of
the Strickland test. Hibbler, 2019 IL App (4th) 160897, ¶ 88. Consequently, if a defendant fails to
show prejudice, a reviewing court need not decide whether counsel’s performance was deficient.
Evans, 186 Ill. 2d at 94.
¶ 65 Defendant fails to show prejudice. First, the parties do not dispute the court’s
acknowledgment of the applicability of the new amendments to section 5-5-3.1(a). Therefore, it
requires no further discussion to conclude defense counsel’s failure to ask the court to apply the
amended section had no effect on the proceeding’s outcome. Second, as we will discuss, defendant
cannot show defense counsel could have presented evidence which would have had a reasonable
probability of changing the outcome at sentencing.
¶ 66 Initially, we agree with defendant’s assertion defense counsel missed several
opportunities at sentencing to present information relevant to defendant’s importance to his family.
A sentencing court “ ‘may search anywhere, within reasonable bounds, for other facts which tend
to aggravate or mitigate the offense’ ” provided it “exercise[s] care to insure the accuracy of
information considered’ ” LaPointe, 88 Ill. 2d at 494-95 (quoting People v. Adkins, 41 Ill. 2d 297,
300-01, 242 N.E.2d 258, 260 (1968)). As defendant notes, under Illinois Supreme Court Rule
137(a) (eff. Jan. 1, 2018), “The signature of an attorney *** constitutes a certificate by him that he
has read the *** motion***; that to the best of his knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact.” Thus, motions filed by defense counsel bear some
presumption of accuracy. Further, “a court will take judicial notice of its own records.” Jackson,
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182 Ill. 2d at 66. Therefore, we think it was within the court’s discretion to consider attorney
representations in defense motions as bearing on factors in mitigation. Defense counsel thus could
have pointed to his (1) August 18, 2018, motion seeking a bond reduction in which he noted,
“Defendant will reside [in Chicago] with his grandmother, aunt, wife and child,” and, “His wife is
also pregnant”; (2) October 9, 2018, motion in which he sought a furlough for defendant to attend
his mother-in-law’s funeral; or (3) February 13, 2019, motion for reduction of bond in which he
stated, “Defendant has a newborn baby that resides with his wife in Chicago, Illinois,” and, “His
wife needs [his] assistance in caring for the child.” Certainly, the record shows defense counsel
knew defendant had two children, not one. Counsel could and should have said so to the court.
¶ 67 Nevertheless, the record does not establish enough about defendant’s relationship
to his children to have allowed the court to treat possible harm to them from defendant’s
incarceration as mitigating. The relevant portion of the then-applicable version of section 5-5-3.1
provides, among the “grounds [to be] *** be accorded weight in favor of withholding or
minimizing a sentence of imprisonment” (730 ILCS 5/5-5-3.1(a) (West 2020)), are:
“(18) The defendant is the parent of a child or infant whose
well-being will be negatively affected by the parent’s absence.
Circumstances to be considered in assessing this factor in mitigation
include:
(A) that the parent is
breastfeeding the child;
(B) the age of the child, with
strong consideration given to avoid
disruption of the caregiving of an
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infant, pre-school or school-age child
by a parent;
(C) the role of the parent in
the day-to-day educational and
medical needs of the child;
(D) the relationship of the
parent and the child;
(E) any special medical,
educational, or psychological needs
of the child;
(F) the role of the parent in the
financial support of the child.
Under this Section, the defendant shall have the right to
present a Family Impact Statement at sentencing, which the court
shall consider prior to imposing any sentence *** Unless the court
finds that the parent poses a significant risk to the community that
outweighs the risk of harm from the parent’s removal from the
family, the court shall impose a sentence in accordance with
subsection (b) that allows the parent to continue to care for the child
or children.” 730 ILCS 5/5-5-3.1(a)(18) (West 2020).
¶ 68 None of the information defense counsel might have presented to the trial court
would have established any of the six circumstances in section 5-5-3.1(a)(18) as mitigating.
Breastfeeding obviously is not a consideration. Nothing in the record establishes defendant had a
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role in caregiving. To be sure, defendant expressed a desire to be a caregiver when he was seeking
release on bond. However, the record is devoid of anything to show the nature and extent of his
relationship to his children after his March 1, 2019, release. Given the absence of evidence
defendant would in fact act as a caregiver, that he had two children, not one, is immaterial to the
harm his children would suffer from his incarceration. Next, nothing in the record established
defendant had had any day-to-day role in the education of his children or in meeting their medical
needs. Nothing suggests either child had any special needs. Moreover, nothing in the record
suggests defendant had any role in the financial support of his children. The closest the record has
to such an indication is defense counsel’s representation about defendant’s employment at the
original bond hearing: “[Defendant] was about to begin a job at RuffaloCODY’s this coming
Monday. He has no current income. He last worked about two months ago.” This representation
does not suggest defendant was a reliable source of financial support for his family. Given the lack
of evidence defendant was providing financial support for one child, his role in providing financial
support for a second child was not established. Therefore, although defense counsel certainly
should have given the trial court correct information about the number of defendant’s children,
and although defense counsel could have asked the court to note portions of the record suggesting
some relationship between defendant and his family, neither of those actions would have changed
the outcome at sentencing. Defendant’s argument conveniently ignores the fact that, under any
circumstance, defendant was going to be incarcerated for at least 9 years under the terms of the
plea and wound up with a sentence only 3 years higher than the minimum and 3 years lower than
recommended by the State. Measuring the impact of the last 3 years of incarceration after serving
the required 9 seems an exercise in futility. The record thus does not allow defendant to make the
showing of prejudice Strickland requires. Defendant argues counsel should have subpoenaed Torry
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to testify to the relationship between defendant and his children. Defendant incorrectly expects us
to presume such testimony would be mitigating and ignores the reality of his required sentence in
the first place. He presumes such testimony would establish the applicability of at least one of the
factors in section 5-5-3.1(a)(18). A claim defense counsel was ineffective for failing to call a
witness typically must be supported by an affidavit (or equivalent evidence) from the proposed
witness setting out what his or her testimony would have been. See, e.g., People v. Harris, 2019
IL App (4th) 170261, ¶ 14, 141 N.E.3d 1 (stating the affidavit of a proposed witness is necessary
to support a claim in a postconviction petition that counsel was ineffective for failing to call that
witness). The record contains no such affidavit or any evidence which could substitute for such an
affidavit. Defendant thus cannot demonstrate prejudice based on counsel’s failure to call Torry as
a witness. The same applies to any other nonrecord evidence defendant might suggest counsel
could have presented.
¶ 69 D. Cumulative Error
¶ 70 Finally, defendant asserts the cumulative effect of the trial court’s errors and of
defense counsel’s ineffectiveness deprived him of a fair sentencing hearing. As we have held
defendant has shown neither error by the trial court nor ineffectiveness by counsel, we necessarily
conclude no such cumulative effect occurred.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we affirm the trial court’s judgment.
¶ 73 Affirmed.
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