People v. Richardson ( 2021 )

NOTICE 2021 IL App (4th) 190682-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-19-0682 October 8, 2021
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
JOSHUA RICHARDSON, ) No. 18CF142
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
¶1 Held: The trial court failed to inquire into defendant’s pro se posttrial claims of ineffective
assistance of counsel, requiring remand for a preliminary Krankel inquiry.
Additionally, defendant’s request that his case be reassigned to a different judge on
remand is granted.
¶2 Following a bench trial, the trial court found defendant, Joshua Richardson, guilty
of four counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West
2016)) and two counts of criminal sexual assault (id. § 11-1.20(a)(3)). The court sentenced him to
four consecutive natural life sentences and two consecutive 15-year prison terms. Defendant
appeals, arguing (1) he did not knowingly and voluntarily waive his right to a jury trial; (2) he was
denied his right to a fair trial because the trial judge, who presided over his previous bench trial,
was biased against him; (3) he was denied his right to a fair trial because the court relied on
“mis-remembered” evidence when finding him guilty of the charged offenses; (4) he was denied
his constitutional right to be present at all critical stages of his trial because the court viewed video
evidence in private; (5) he was denied his right to a fair trial because of the cumulative effect of
the alleged errors; and (6) the court erred by failing to conduct a Krankel inquiry (see People v.
Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)) into his pro se posttrial claims of ineffective
assistance of counsel. We remand for a preliminary Krankel inquiry and direct that the proceedings
on remand be assigned to a different judge.
¶3 I. BACKGROUND
¶4 In May 2018, the State charged defendant in the underlying cause of action—
Livingston County case No. 18-CF-142—with four counts of predatory criminal sexual assault of
a child (id. § 11-1.40(a)(1)) and two counts of criminal sexual assault (id. § 11-1.20(a)(3)). The
charges were based on allegations that defendant committed acts of sexual penetration with his
daughters, F.R. and D.R. While that case was pending, the State additionally charged defendant—
in Livingston County case No. 18-CF-161—with four counts of predatory criminal sexual assault
of a child based upon allegations that he sexually abused his sisters, S.W. and S.R., approximately
a decade before.
¶5 In October 2018, defendant waived his right to a jury trial in both cases. The
following month, Judge Jennifer H. Bauknecht presided over defendant’s bench trial in case No.
18-CF-161. She found him guilty of all four charged offenses in that case and sentenced him to
four consecutive terms of natural life in prison. Defendant appealed his convictions, arguing he
received ineffective assistance of counsel and Judge Bauknecht erred by failing to conduct an
initial Krankel inquiry into his pro se posttrial ineffective-assistance claims. People v. Richardson,
-2-
2021 IL App (4th) 190184-U, ¶ 2. This court agreed with defendant’s Krankel claim and remanded
to the trial court so that an inquiry could be made into the factual basis of his pro se allegations.
Id. ¶ 21. Additionally, we ordered that the case be remanded for a preliminary Krankel inquiry
before a different judge, noting defendant requested such relief on the basis that “Judge Bauknecht
‘has already developed firm beliefs about [his] credibility and has expressed a belief that he is
manipulative’ ” and the State “did not respond to defendant’s request.” Id.¶6 In April 2019, Judge Bauknecht presided over defendant’s bench trial in the
underlying case, case No. 18-CF-142. The State presented testimony from F.R. and D.R., ages 10
and 16, respectively, at the time of trial. Evidence showed F.R. and D.R. were defendant’s
daughters and half-siblings to one another. Both testified that over a period of years, defendant
engaged in sexual acts with them, including placing his penis inside their mouths and vaginas. F.R.
testified defendant began touching her inappropriately when she was six years old, and the abuse
did not end until she was nine. D.R. testified that defendant engaged in inappropriate sexual
conduct with her from the ages of 6 to 15. Additionally, both acknowledged being interviewed at
the Children’s Advocacy Center (CAC) and initially denying any sexual abuse. F.R. explained that
she did not report what defendant was doing because she was “scared that [defendant] was going
to hurt [her],” while D.R. testified she “was worried nothing was going to happen and when [she]
went home it was going to be bad.”
¶7 In addition to F.R. and D.R.’s testimony, the State presented testimony from
S.W.—one of defendant’s victims in case No. 18-CF-161—as propensity evidence under section
115-7.3 of Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/115-7.3 (West
2018)). S.W., who was 22 years old at the time of trial, testified defendant was her brother and that
-3-
he was approximately 17 years older than her. She recalled an incident that occurred when she was
about 11, when defendant called her into a bedroom, touched her vagina with his fingers and
tongue, and penetrated her vagina with his penis. Finally, a CAC interview with F.R., during which
she reported sexual abuse by defendant, was submitted by the State and admitted into evidence.
¶8 Defendant testified on his own behalf and denied the allegations against him.
Additionally, he presented testimony from Andy Rork, a Livingston County sheriff’s deputy. Rork
testified he interviewed D.R. at the Sheriff’s Department following her CAC interview, in which
she denied any sexual abuse by defendant. He acknowledged that when he interviewed D.R., she
did not report the occurrence of any sexual abuse by defendant until Rork lied to her by stating
that defendant “was in another room confessing.”
¶9 Following the presentation of evidence and the parties’ arguments, Judge
Bauknecht continued the matter for a ruling on defendant’s bench trial, stating she intended to
watch the recorded CAC interview with F.R. that was tendered by the State. In June 2019, Judge
Bauknecht announced her ruling in the case in open court, stating she had reviewed both F.R.’s
CAC interview and her notes in the case. She found defendant guilty of each charged offense,
stating F.R., D.R., and S.W. testified credibly while defendant lacked credibility in his own
testimony. Judge Bauknecht explained the rationale behind her credibility rulings. She noted F.R.
appeared emotional, did not embellish, gave straightforward answers, used words that would be
expected of a child her age, did not change her testimony on cross-examination, appeared confident
in her answers, and provided testimony that “was consistent overall” with her recorded CAC
interview. Additionally, Judge Bauknecht noted D.R. was emotional, consistent, “used her own
words,” and did not appear to embellish her testimony. Further, she stated S.W. was “a credible,
-4-
consistent witness.”
¶ 10 In finding defendant was not credible, Judge Bauknecht stated defendant had “no
affect” and “stared down” the victims as they testified. She also found defendant’s testimony
corroborated the victims’ statements in several respects with respect to ancillary details and his
“simple no I did not answers” lacked credibility. Further, Judge Bauknecht stated as follows:
“I take these allegations seriously. I hold the State to their burden of proof
on these charges beyond a reasonable doubt. That’s a high burden. It’s not a burden
that’s impossible to reach, but I absolutely would not want to be wrong on
something like this. It’s, you know, it’s an extremely difficult subject that affects
many people’s lives.
And so[,] I take the State’s burden very seriously. I think the State has met
their burden. In fact, they have gone above and beyond showing beyond a
reasonable doubt the [d]efendant’s guilt based upon the testimony that was
presented of [F.R.], [D.R.], and [S.W.].”
¶ 11 In July 2019, defendant’s sentencing hearing was conducted. The parties presented
argument to the trial court, and defendant made a statement in allocution. During his statement,
defendant maintained his innocence of the charged offenses and asserted as follows:
“It is the [c]ourt’s judgment that I am guilty though there is literally no
evidence of any kind against me to support such a judgment. There is, however,
physical evidence such as messages and medical exam records that were not
brought to the [c]ourt’s attention that would have proven my innocence; and both
prosecution and my public defender have this evidence within their possession and
-5-
yet it was not brought forth as I had requested it to be.
Along with that, yet again as with my previous case ***, though I submitted
multiple witness lists well in advance to trial and sentencing, not one witness was
called in my behalf. These witnesses had they been called as I requested would have
given testimony at trial that would have also proven my innocence.”
¶ 12 Following defendant’s statement, Judge Bauknecht entered judgments of
conviction on all six counts against him. She imposed mandatory natural life sentences for each of
defendant’s four predatory-criminal-sexual-assault-of-a-child convictions and consecutive 15-year
prison sentences for both criminal-sexual-assault convictions. In setting forth her decision, Judge
Bauknecht stated defendant was entitled to maintain his innocence but that she disagreed with his
assertion that there was no evidence to support his convictions. Rather, the judge found there was
“an abundance of evidence from the testimony of [F.R.] and [D.R.]” and that those victims’
statements “also corroborated each other.” She further noted case No. 18-CF-161, stating as
follows:
“And while not necessarily in this case but since [defendant] alluded to the other
case that involved his sisters, those were also corroborated with each other. But
most importantly I think it’s worth noting that they all corroborate each other.
I’ve got four victims. I have absolutely no doubt that there are more than
four victims of [defendant]. But I have four victims who had the strength and
courage to come forward and where [defendant] had physically and emotionally
abused them and sexually abused them from a very young age. And while
[defendant] is entitled to maintain his innocence, the fact that he does not accept
-6-
responsibility makes it extremely difficult to see how there would be any potential
for rehabilitation. Before I can consider rehabilitative potential, there certainly
would have to be an acknowledgment of one’s wrongdoings.
And in this case, [defendant] fails to acknowledge that. He doesn’t have to.
But then I certainly see no way for him to be rehabilitated. He is a monster. He is a
danger to this community. The State is absolutely correct that it is necessary for the
protection of these young ladies, his daughters, his sisters and I agree his
grandchildren someday need to be protected from him.
***
So[,] I agree with the State that life in prison is not only the statutorily
mandated sentence but it is also the appropriate sentence in this case. It is absolutely
necessary to protect the public in this case from a person who has been a predator
over his family starting with his sisters at a very young age moving into his own
daughters.”
¶ 13 In August 2019, defendant filed both a motion to reconsider his sentence and a
motion challenging the sufficiency of the evidence against him and asking the trial court to
reconsider its guilty findings or grant him a new trial. In October 2019, Judge Bauknecht conducted
a hearing and denied both motions.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant raises several issues. However, the State concedes that error
occurred with respect to defendant’s assertion that the trial court improperly failed to conduct a
-7-
preliminary Krankel inquiry into his pro se posttrial claims of ineffective assistance of counsel and
that remand for further proceedings is necessary. We accept the State’s concession and agree that
error occurred, and remand is required.
¶ 17 A Krankel inquiry “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.
Under Krankel and its progeny, the following procedure is required:
“[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).
¶ 18 “[A] pro se defendant is not required to do any more than bring his or her claim to
the trial court’s attention.” Id. at 79. The claim may be raised “orally or in writing, either by filing
a formal posttrial motion with the court or by informally providing a letter.” People v. Rhodes,
2019 IL App (4th) 160917, ¶ 13, 128 N.E.3d 1100. To prompt the court into making a preliminary
Krankel inquiry, “at a minimum, a defendant must say *** (1) he has a complaint about trial
proceedings and (2) that complaint involves something his attorney did or failed to do.” People v.
Schnoor, 2019 IL App (4th) 170571, ¶ 69, 145 N.E.3d 544.
¶ 19 On review, “[t]he operative concern *** is whether the trial court conducted an
adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.”
-8-
Moore, 207 Ill. 2d at 78. Whether the court properly conducted a preliminary Krankel inquiry is a
legal question that is subject to de novo review. Jolly, 2014 IL 117142, ¶ 28.
¶ 20 Here, during his statement in allocution at sentencing, defendant complained about
his trial attorney’s failure to present certain evidence in his case. Specifically, he alleged the
existence of physical evidence, including “messages” and medical records, “that would have
proven [his] innocence.” He asserted his attorney had that evidence in his possession but neglected
to have it “brought forth” at trial as defendant requested. Defendant further claimed that he
“submitted multiple witness lists” in advance of his trial. He maintained none of those witnesses
were called to testify on his behalf although they would have provided testimony that would also
have “proven [his] innocence.”
¶ 21 As argued by defendant and acknowledged by the State, defendant’s statements
amounted to pro se posttrial claims of ineffective assistance of counsel and were minimally
sufficient to trigger an inquiry into the factual basis for defendant’s allegations. Because no inquiry
was conducted in this case, we remand the matter to the trial court and direct that it conduct a
preliminary Krankel inquiry. See People v. Ayres, 2017 IL 120071, ¶ 26, 88 N.E.3d 732(remanding for a preliminary Krankel inquiry where the circuit court failed to conduct any inquiry
into the factual basis of the defendant’s ineffective-assistance allegations).
¶ 22 Although the parties agree that error occurred and remand is required, they disagree
on whether this court should address the remaining issues presented by defendant on appeal and
whether defendant’s case should be remanded for a Krankel inquiry before a different judge.
Defendant contends this court should address all of the issues he raises on appeal because doing
so would result in “[t]he most efficient use of judicial resources.” Further, he asks this court to
-9-
direct that the proceedings on remand be conducted by a different judge on the basis that Judge
Bauknecht has developed firm beliefs about his credibility and described him as “a monster.” The
State responds by arguing that we should decline to address defendant’s other claims because the
proceedings on remand “could make those issues moot.” Additionally, it contends that Judge
Bauknecht did not exhibit any bias or prejudice against defendant and that because she is familiar
with defendant’s case, she is in the best position to conduct a preliminary Krankel inquiry.
¶ 23 First, as asserted by the State, this court has declined to address any remaining
issues raised by a defendant on appeal when remand for failing to conduct a preliminary Krankel
inquiry is required. See People v. Bell, 2018 IL App (4th) 151016, ¶ 37, 100 N.E.3d 177; Rhodes,
2019 IL App (4th) 160917, ¶ 21. In particular, we have noted that “[d]epending on the result of
the preliminary Krankel inquiry, [the] defendant’s other claims may become moot.” Bell, 2018 IL
App (4th) 151016, ¶ 37. Contrary to defendant’s assertions on appeal, addressing issues that may
become moot after further proceedings is not the most efficient way to utilize judicial resources.
Additionally, we note that should the issues raised in this appeal not become moot following
remand and a Krankel hearing, defendant may reassert them if he elects to appeal from the
proceedings on remand. See People v. Lawson, 2019 IL App (4th) 180452, ¶¶ 32-35, 139 N.E.3d
663 (finding that when the defendant appeals following a remand for a Krankel hearing, a
reviewing court may consider claims that arise from the Krankel hearing, as well as claims brought
in the defendant’s first appeal even without this court explicitly having stated in the first appeal
that it was retaining jurisdiction).
¶ 24 Here, aside from his Krankel claim, defendant raises issues on appeal concerning
(1) his jury waiver, (2) judicial bias based on Judge Bauknecht presiding over his first bench trial
- 10 -
in case No. 18-CF-161, (3) the court “mis-remember[ing]” evidence, (4) the court viewing video
evidence in private, and (5) cumulative error. We decline to address the remaining issues in this
appeal because they could be rendered moot by further proceedings in the case. As set forth above,
defendant may raise those issues in a subsequent appeal from the Krankel hearing that is to occur
on remand.
¶ 25 Second, Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) “permits a
reviewing court, in its discretion, to make any order or grant any relief that a particular case may
require,” including “reassign[ing] a matter to a new judge on remand.” Eychaner v. Gross, 202 Ill.
2d 228, 279, 779 N.E.2d 1115, 1146 (2002). Here, as asserted by defendant, Judge Bauknecht’s
comments at sentencing in this case indicate that she has developed strong opinions about
defendant, for example, describing him as “a monster.” Because the proceedings on remand may
well require further assessments of defendant’s credibility, we find it appropriate to grant
defendant’s request that his case be reassigned. Accordingly, in the exercise of our discretion, we
direct the preliminary Krankel inquiry that is to occur on remand be before a different judge.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we remand the matter for a preliminary Krankel inquiry into
defendant’s pro se ineffective-assistance-of-counsel claims, and we direct that those further
proceedings on remand be reassigned to a new judge.
¶ 28 Remanded with directions.
- 11 -