People v. Starks , 2024 IL App (4th) 230690-U ( 2024 )

NOTICE 2024 IL App (4th) 230690-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-23-0690 July 17, 2024
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. ) Peoria County
ERNEST D. STARKS, ) No. 16CF706
Defendant-Appellant. )
) Honorable
) Kevin W. Lyons,
) Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.
Justices Harris and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed as modified, finding (1) the trial court did not abuse
its discretion when it denied defendant’s request to proceed pro se, (2) the court
conducted an adequate preliminary Krankel inquiry (People v. Krankel, 102 Ill.
2d 181 (1984)), (3) defendant forfeited his claim for a substitution of judge for
cause, and (4) the court erred when it resentenced defendant to a more severe
sentence on remand.
¶2 Following a jury trial, defendant, Ernest D. Starks, was found guilty of child
pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2016)) and aggravated criminal sexual assault
(id. 11-1.30(a)(4)). The trial court sentenced defendant to 28 and 29 years’ imprisonment,
respectively, for each conviction. On appeal, defendant argues the court erred when it (1) denied
his clear and unambiguous request to proceed pro se, (2) failed to conduct an adequate
preliminary Krankel inquiry, (3) failed to grant his motion for substitution of judge for cause,
and (4) improperly added 12 aggregate years to his sentence following remand. We affirm as
modified.
¶3 I. BACKGROUND
¶4 In September 2016, defendant was charged by indictment with child pornography
for knowingly filming E.S., a person he knew to be under the age of 18, while she was engaged
in an act of sexual penetration with another person; aggravated criminal sexual assault for
committing an act of sexual penetration with E.S. by use or threat of force while committing the
above alleged offense of child pornography; and two counts of criminal sexual assault (720 ILCS
5/11-1.20(a)(3), (4) (West 2016)) for committing acts of sexual penetration with E.S.
¶5 A. Procedural Posture
¶6 In April 2017, defendant requested to represent himself, which the trial court
granted. Later that same month, defendant filed a handwritten pro se motion, requesting counsel
be appointed to represent him. The motion stated defendant “didn[’t] finish enough school to
creditably [sic] defend [himself]. Being only having [a general equivalency diploma],” he could
not read case law, and he did not have access to an “adequate” law library. Defendant concluded
he was not capable of representing himself in a “meaningful way.” In May 2017, the court
appointed counsel for defendant. That same month, defendant filed multiple pro se motions
requesting (1) different counsel be appointed to represent him and (2) a substitution of judge. In
July 2017, defendant withdrew the motions. Defendant subsequently, through counsel, filed a
motion in limine to suppress video and audio recordings purportedly showing him engaging in a
sexual act with E.S. Following a hearing, his motion was denied. A subsequent motion to
reconsider and dismiss the indictment was also denied.
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¶7 In January 2018, defendant waived his right to a jury and proceeded to a
stipulated bench trial. Defendant was found guilty of all counts. In February 2018, he filed a
motion to withdraw his agreement to a stipulated bench trial, claiming he was misinformed about
the sentencing range for his charges. The trial court denied his motion. For sentencing,
defendant’s criminal sexual assault convictions were merged into the aggravated criminal sexual
assault conviction. The court sentenced defendant to consecutive terms of 22 years’
imprisonment for the child pornography conviction and 23 years’ imprisonment for the
aggravated criminal sexual assault conviction. Defendant filed a motion for new trial, acquittal,
and to reconsider his sentence. The court denied defendant’s motion. He appealed.
¶8 On appeal, defendant argued the trial court erred when it (1) denied his motion to
suppress the video evidence and (2) failed to inform him he was subject to mandatory
consecutive sentencing. See People v. Starks, 2020 IL App (3d) 180147-U, ¶ 2. The appellate
court held “defendant’s cousin [Cassadia King] did not commit eavesdropping when she
retrieved the incriminating videos from the trash bin of defendant’s online account.” Id. ¶ 1.
However, the appellate court found the trial court incorrectly admonished defendant “repeatedly
concerning his potential sentencing range.” Id. ¶ 25. Because defendant “relied on that
misinformation when he waived his jury trial right and consented to the stipulated bench trial,”
the appellate court concluded the trial court abused its discretion when denying his motion to
withdraw his agreement to a stipulated bench trial. Id. ¶ 26. The appellate court reversed and
remanded for further proceedings. Id. ¶ 29.
¶9 B. Proceedings Following Remand
¶ 10 In September 2021, defendant filed a motion in limine to submit a certificate of
absence of business records from Google regarding his Gmail account, which the trial court later
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granted. Shortly thereafter, defendant filed a pro se motion for substitution of judge, arguing the
judge’s “personal comments” about him as a father and a “man” demonstrated bias and
prejudice. He also filed a pro se motion seeking substitution of his appointed counsel or to
permit him to represent himself. Defendant argued his appointed counsel was not answering or
returning his phone calls, was not filing motions he requested, and failed to call witnesses on his
behalf. On September 16, 2021, the matter was continued to permit defense counsel to pursue
further evidence in the matter.
¶ 11 In October and November 2021, defendant refiled his pro se motions. On January
24, 2022, a hearing was held on defendant’s motion to substitute judge before Chief Judge
Katherine Gorman. Judge Gorman denied defendant’s motion, finding he had not demonstrated
prejudice resulting from extrajudicial influence.
¶ 12 Judge Kevin Lyons presided over a hearing on defendant’s motion to substitute
appointed counsel or proceed pro se. The trial court informed defendant it would not substitute
his appointed counsel. Defendant withdrew his request to proceed pro se. In March 2022, the
matter was continued to allow defense counsel to follow up on defendant’s request to contact
“several witnesses.” In May 2022, the court granted defendant another continuance to “pursue
some witnesses.” The matter was continued by agreement in July 2022. After several
continuances, in October 2022, defendant sought another continuance because one of “four
potential witnesses” was in the hospital and another would be available “after the holidays.” The
State objected, arguing the case was more than six years old and defendant’s continuances were
“only for delay.” The court denied defendant’s motion to continue.
¶ 13 On November 7, 2022, the matter proceeded to a jury trial. Prior to commencing
voir dire, defendant requested a continuance because a witness was unavailable to attend due to
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being hospitalized. Defendant stated the unavailable witness was around defendant and the
victim when the alleged conduct occurred and would testify she had not observed any unusual
behavior. The State argued the witness was not an expert and could not testify as to how a sexual
assault victim should act and behave. The trial court denied defendant’s motion to continue.
¶ 14 Defense counsel informed the trial court: “Your [H]onor, [defendant] is asking
that he be first chair and I be second chair, that I assist and he be the lead counsel on this case
going forward.” The court denied defendant’s request. After a recess, the following exchange
occurred
“THE DEFENDANT: I’m saying that if I can’t [be first chair and
appointed counsel be second chair], I am asking can I go forward without delay
pro se?
THE COURT: No.
THE DEFENDANT: Can I know the reason why?
THE COURT: Because it’s for the purpose of delay, and I am not going to
do that. Do you have any other questions?
THE DEFENDANT: No. I said without delay. I’m competent enough to
go today.
THE COURT: I am not going to do that, no. All right. Let’s bring the jury
down.
THE DEFEDANT: I don’t believe that I’m being—this is fair to me, man.
THE COURT: It’s not my goal.
THE DEFENDANT: It is your call, Your Honor.
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THE COURT: It’s not my goal. My goal is not to satisfy you. My goal is
to follow the law, and we’re going to do that. Be quiet.”
¶ 15 Defendant filed a motion in limine to exclude the video purporting to show his
alleged sexual conduct with E.S., which the trial court denied.
¶ 16 C. Jury Trial and Posttrial Proceedings
¶ 17 Because defendant does not challenge the sufficiency of the evidence, we only
summarize the trial evidence as it pertains to his contentions on appeal. E.S. testified the
incidents occurred during the summer of 2016, when she was 15 years old. Defendant went
through her phone and found photographs she had sent to a boy. Defendant sought to punish her
for this and offered to “whoop her” or have her “sleep” with him. When E.S. chose to be
“whooped,” defendant raped her. She said defendant threatened to kill her “or somebody” if she
told anyone what had happened. E.S. stated there were more than 20 incidents of sexual abuse by
defendant, including oral, anal, and vaginal penetration. E.S. recalled defendant recording
several of the incidents. Defendant told her he was going to sell the videos to an online
pornographic website to make money for school clothes. E.S. stated she was scared of defendant
and did not tell anyone what was happening for several months. She stated three other people
lived in defendant’s home, but she did not believe anyone was aware of what defendant had been
doing to her and no one asked her if anything was wrong. She noted defendant would not engage
in sexual conduct with her when defendant’s girlfriend or his girlfriend’s daughters were there.
¶ 18 Eventually, she told her twin brother. He wanted them to leave defendant’s home
immediately. E.S. cited her fear of defendant, and they agreed to let their older brother know the
next day. E.S.’s older brother picked her and her twin brother up from school the next day and
took them to E.S.’s mother’s home in Calumet City, Illinois. E.S. and several other individuals
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recovered video recordings defendant had made of the abuse and burned them to a disc to give to
the police. At the close of the State’s evidence, defendant moved for a directed verdict, which
was denied.
¶ 19 Shannon Vaughn testified for defendant that she met him in May 2016. Vaughn
stated her and her daughters stayed at defendant’s home for extended periods of time that
summer and that E.S. appeared “normal to [her].” Both of Vaughn’s daughters also testified
similarly to Vaughn and noted nothing unusual about E.S.’s behavior during the summer of
2016.
¶ 20 The defense rested, and the jury found defendant guilty on all counts.
¶ 21 On December 9, 2022, defendant filed a motion for new trial, which the trial court
denied. Defendant also filed a pro se motion alleging ineffective assistance of counsel, claiming,
inter alia, his appointed counsel failed to interview four witnesses who would have aided in
proving his innocence. Additionally, defendant claimed his attorney failed to timely inform the
court of defendant’s desire to proceed “first chair” or pro se.
¶ 22 When the trial court began to address defendant’s pro se ineffective assistance
claims, the following exchange occurred between the court and the State:
“THE COURT: Okay. Okay. So, what do we want to have a pre-Krankel
thing? Is that what we’re talking about?
MS. SHELBY [(ASSISTANT STATE’S ATTORNEY)]: That’s what it
looks like. Most of the issues in that motion that were addressed and ruled on
either—
THE COURT: and raised many times?
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MS. SHELBY: Yes. Were raised many times. Some of them were even
addressed in the appellate court opinion from his last—from the reversal before.
THE COURT: Okay.
MS. SHELBY: He’s titled it, ‘Motion for ineffective assistance,’ but I
think most of this has already been ruled on.”
¶ 23 The trial court then permitted defendant to argue his pro se motion for ineffective
assistance. Defendant argued there were “multiple things that [he] felt should have been
investigated that didn’t get investigated. Witnesses that should have been called that didn’t get
called.” Defendant claimed he never received photographs used by the State during grand jury
testimony. He explained, “[W]hen I asked [my attorney] about them, he said that the State said
that they’re lost. So, I don’t understand how—” The court interrupted defendant and said, “You
think that was the lynchman of your case, huh?” Defendant responded, “No. I think it’s
everything that I written down was the lynchman in my case.” The court permitted defendant to
proceed with his argument:
“THE DEFENDANT: I said, like I said, that he didn’t raise—he didn’t
raise a lot of these issues in—it’s hard pulling these papers apart with these
handcuffs. But there was witnesses that could have testified to the fact that it was
inappropriate things that were in the phone from the beginning—videos and
pictures. And it stated that what happened in the phone and what you allowed into
evidence was actually of me. It was never asked what were the inappropriate
things that were in the phone. Where is the phone? Because in the letter it said
that it was supposedly—the phone was supposed to be mailed back to her. Where
are these materials? So, it could have been checked to see what were in there.
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And then [my cousin, King,] is one of the main culprits in this situation.
She’s the one that supposedly downloaded this from a Google account that they
said was mine saying Google—we had the papers that wasn’t even contested by
the State that Google said they have no record of the account. And that wasn’t
even presented into evidence. So, if it was downloaded from a Google account
and Google—the founders—saying that they don’t have no record of it, how can
they say it came from a Google account? It goes to the fact that where I said it
was already in the phone. So, I don’t understand how it was—the fact that it
still—[King] is the one that said she downloaded it from a Google account, but
she wasn’t even called as a witness. Well, over and over she was mentioned
throughout the trial of what she did and what part she played.
And not only that, like I said, the officer said that he took pictures of the
supposed room to corroborate it with the video, and those pictures have never
been presented at all.
And it’s just, like I say, it’s multiple things. It’s all these things that I
wrote in here. It’s what I feel, you know. And I would just be reading them over
and over. I’ve been reading them through to you when y’all have the motion of
everything I listed on here.
THE COURT: Anything else?
THE DEFENDANT: No, because no matter what I say, it’s irrelevant.
THE COURT: Anything else? All right. The defendant’s motion has been
considered. There’s no basis for his—to support his claim of ineffective
assistance.
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The short answer to a trial that answers everything that he’s raised is that
the victim, herself, came and testified. And as awkward as it was and as
embarrassing as I’m assuming it was, as demeaning as I’m assuming it was, the
victim, herself, the defendant’s daughter, sat in this witness chair and in front of
12 strangers and alternates had to point to a film, a video and say, that is me and
that is my father. And not only is that a video of what he’s doing to me, I was
there.
So, while the defendant makes claims and wants to be self-pitied for what
some lawyer may have done, could have done, should have done, didn’t do,
should’ve done when in his presence or not, the defendant needs to be afraid of
the facts because the facts told on him. The motion is respectfully denied.”
¶ 24 The trial court then addressed defendant’s motion for a new trial. Defendant’s
appointed counsel stood on the written motion, and the court denied that motion as well. The
matter proceeded to sentencing.
¶ 25 D. Sentencing
¶ 26 The only addition to the original presentence investigation report (PSI) was an
additional victim impact statement provided by E.S. Neither of the parties presented any
additional evidence in aggravation or mitigation. The State argued that, while defendant was
entitled to continue denying his guilt, he had become “a bigger monster than he was before” by
putting E.S. through a trial. The State also noted the multiple continuances following remand
were aggravating, and that the trial court had “wiggle room” to increase his sentence due to
“defendant’s behavior, these constant games.” Defendant argued he had done nothing to warrant
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a harsher sentence and that he had only exercised his due process rights by having a trial. The
court then interrupted to state:
“THE COURT: What about the impact it would have on [E.S.] who says
she doesn’t even want to have his name. And she says in her letter—and it doesn’t
get much more direct than this—I am damaged mentally, physically[,] and
emotionally. And then she says, six years, why are we here? You did it and you
know you did. If you’re a real man who cared, you wouldn’t be putting me
through this.
So, since we last met or since he was last sentenced, she has been put
through this. And he’s not to be punished for exercising his right to trial. But if
the Court recognized that the defendant has been flippant, demanding[,] strident[,]
and has actually extracted some sort of satisfaction from having his daughter
and/or any relatives appear to prove he did what he did, would that be a factor?
Would that allow for an increase in his sentence?”
¶ 27 Defendant argued his motion filing and jury trial demand, “without more,” were
not sufficient to justify an increase his sentence. The trial court then stated:
“THE COURT: Just so that the record reflects that when we last had a
sentence to—if we’re going to use as a benchmark that the defendant got 22 and
23 years, respectively, and if he argues for less than that, which I understand that
you do. But if there’s a distinction or a difference to be noted for a record reader,
the difference would be that we had a trial; that videos that were clear and distinct
and graphic and forceful were presented one after the other after the other after
the other in the presence of the defendant’s own daughter while the defendant
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stayed seated and has not expressed one ounce of contrition. In fact, if anything,
by his accusations toward everyone else but himself seems to be a little bit more
than just acquiescence in having his trial because the difference between the last
sentence hearing and this sentencing hearing are the videos and the direct
innuendo and the crush and the grasp and the twist that it has taken upon the
victim to identify herself and to explain her father’s behavior and—to strangers.
That there is a difference.
Now, whether that would be a factor that would rise to the level of a
different sentence, I just want to make those observations.”
¶ 28 Defendant contended his jury trial demand was not intended to hurt E.S. and
nothing in the record warranted increasing his sentence beyond the original sentence that was
previously imposed. Defendant further argued he had a difficult childhood without his father
being present and his mother, who abused drugs, was also potentially a prostitute. Defendant
noted his positive relationship with his fiancée, to which the trial court said, “The lady he met
online that bogged down his two daughters either for a week or two weeks for the summer
depending on who you believe, that lady?” Defendant confirmed the fiancée was Vaughn, who
had testified at trial, and argued Vaughn’s daughters testified that defendant had a positive
influence on their lives. The court then remarked, “Well, I guess there’s that viewpoint.”
Defendant additionally noted he had earned 17 college credit hours while incarcerated and
requested his sentence be reduced.
¶ 29 Defendant made a statement in allocution where he apologized to E.S. but denied
his guilt. When addressing the State’s claim that he had “played with the Court,” defendant
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stated there were a number of reasons the case went on as long as it did. Defendant denied he
was the individual in the video. The trial court interrupted, and the following exchange occurred:
“THE COURT: So, that wasn’t you?
THE DEFENDANT: No, it was not me.
THE COURT: Oh, I see.
THE DEFENDANT: But that’s what it—it’s being sarcasm and stuff like
it—all these times, you know what I’m saying? I always respect you. I never said
anything out of line or anything.
It was—in that video, I’ve been saying from the get-go it was videos in
that phone, and it was not me in that phone, period.
And then, like I said, it said it was from a Google account. If it was, I—if
it was and I done something, I never had a problem in any of my life accepting
what I had coming and admitting to anything that I done wrong.
THE COURT: What did you do wrong?
THE DEFENDANT: I done a lot of wrong in my life.
THE COURT: Well, you just said it, so tell me what it was.
THE DEFENDANT: A lot.
THE COURT: Start with a few.
THE DEFENDANT: Start with a few? In the streets I—
THE COURT: You had sex with your daughter?
THE DEFENDANT: No, that is not one.
THE COURT: Didn’t do that.
THE DEFENDANT: No, I did not.
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THE COURT: So, she’s lying about that.
THE DEFENDANT: You’re going to try to make me say something or get
into a verbal situation with you, and I’m not going to do it—
THE COURT: No. You said that you—
THE DEFENDANT:—I already stated what I had to say. So I’m through.
No matter what you—whatever I say is irrelevant like I said to you.
THE COURT: When you get to the hard part, you have nothing to say.
THE DEFENDANT: No. It’s not a hard part. You made it hard.
THE COURT: Yeah, I sure did.
THE DEFENDANT: You right.
THE COURT: Here’s the mirror.
THE DEFENDANT: Yep.
THE COURT: Well, you’ve made it a little easier here for me,
[defendant]. I’ve considered the [PSI], the evidence and arguments of the lawyers,
the statement of allocution, such as it was presented by the defendant, and I’ve
considered the statutory matters in aggravation, mitigation, history and character
of the defendant, and I’ve given due regard for the circumstances and nature of
the offense—horrendous as it is—and I make the following observations and
findings: the defendant today is a different person than he was when he was
sentenced before. He is callous. He’s abrasive. He’s confrontational. He wants to
blame everyone else but himself. He wants to pretend and announce that he’s a
person that’s willing to assume responsibility, to take responsibility for those
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things he’s done wrong as though all of this happening in the courtroom is some
third thing.
I’ve done other things in my life he wants to say, but this stuff you’re
talking about here, Judge, and others, I wasn’t part of that. I didn’t have sex with
my daughter, he says. I didn’t do that.
Let the record reflect that this is the environment we have right here,
today, December 14th of 2022. The record should reflect that the environment in
this courtroom tone is this. A man, 48 years old, is seated in jail clothing,
handcuffed about 15 feet away from his daughter. A daughter that was required to
testify at the trial and sit 30 inches beneath a video depicting sexual conduct,
penetration repeatedly over and over on several occasions from him on to her
while she was a minor. And in this environment the record should show this 48-
year-old man—creature has the goal to be 30 feet, 15 feet from his daughter and
say by his actions and his conduct and his words, daughter, you’re a liar and I am
not.
Let the record reflect that the opposite is true. The defendant is the liar
here. The defendant is the instigator here. The defendant is the criminal here. The
defendant is the rapist here. It is the defendant who is the wrongdoer.
The rescuer are the police and the justice system. It has hobbled this case
through. But the heroine here is the daughter of this defendant.
There aren’t many people that could grow the backbone and the ability to
walk themselves into a courtroom and stare down this man who wants to stare at
everybody else thinking that his laser beam stares will knock them over. But this
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woman—and in a strange twist, I might add, that even though [defendant] didn’t
build her, he simply was the provider of her origin. But he didn’t build her
because if he shaped her, she wouldn’t be able to come into this courtroom.
He wanted to master over her, to lord over her, to be her owner. And for
him to say differently today is a lie. He knows it. I know it. And the world knows
it. I want his daughter to know that no reasonable person on this planet believes
your father, and that is the last time I will refer to him as that. He is the defendant.
He is a convicted predator. And he is to be sentenced to a prison because that’s
what prisons are for. They are built for you.
You are a man of many words, not good ones, [defendant]. You can’t put
a sentence together very well. You think like a child. If you just keep talking and
battling out phrases, it will in someway mesmerize the listener, and they will
think you have an argument. You have none. You have made it simple. You have
presented yourself far worse than you were before. You have confronted your
daughter in this courtroom and in construction and in fact told her and told me
that she is lying and that you are not.
The Court finds that you are the liar. The Court finds that you are the
assaulter. The court finds that your daughter has come to her own rescue when
you wouldn’t. You didn’t even rescue her from you. What a shame to have the
privilege of such a daughter and to turn yourself into such garbage while she
shines and lifts herself from the city dump that you are. Says a lot about her and a
lot more about you. It’s the daughter of this man who said, you damaged me and
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you don’t care. It’s bad enough that you damaged her, but it is so shameful of you
that you don’t care.
The record can reflect the defendant sits here with his lower lip pushed
out. If there was a bubble above his head it would say, I don’t care what you do.
Screw the rest of you. I’m [defendant].
And then I noticed that your daughter says, you are a monster. It’s all in
your eyes. Well, [defendant], it would be in your soul, but you don’t have one. It
would be in your heart, but you gave that away years ago.
It’s apparent why you’re making the claims that you’re making today; that
[appointed counsel] is deficient; that [previously appointed counsel] is deficient;
that somehow the scheduling of your case made things unfair to you. We all know
why you’re doing that so that from your prison cell in somewhere in a dark corner
of Illinois you’ll have something to while away the days away with, to write
letters about, to add to your brief and your pleadings.
Well, have at it because the Court does find that the defendant has
worsened himself then before. The Court does find that the daughter of the
defendant has done a marvelous job at presenting the truth while the defendant
has tried to present himself as a magic act, and magic is not the truth. You are a
real piece of work. And the Court finds that when the daughter said, this didn’t
have to happen, but you made me do this, that the defendant replied, this didn’t
have to come to this. And then trying to thread the needle between I didn’t do it
and you’re a liar. He said, I took advantage of the situation. Any reasonable soul
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would say that was code for, I had sex with my daughter, but I don’t want to tell
anybody about it. Well, consider that secret out.
This is not a close call. The defendant did what he did. He was guilty of
the elements of the offense of each count. The jury said so. It wasn’t difficult for
them, obviously, at all. And if there was a trophy to be given to courage and
justice, I would give it to [E.] last name whatever she wants it to be.”
¶ 30 The trial court sentenced defendant to 28 years’ imprisonment for the child
pornography conviction and 29 years’ imprisonment for the aggravated criminal sexual assault
conviction, to be served consecutively. The court added, “Right down to the wire the defendant
maintains he didn’t do it. Without having to define the word, ‘overwhelming,’ the evidence in
this case is overwhelming. The defendant did it. He’s guilty and he knows it.”
¶ 31 Defendant filed a motion to reconsider his sentence, wherein he argued the trial
court failed to account for several mitigating factors and improperly increased his sentence. The
court denied the motion.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 On appeal, defendant argues the trial court erred when it (1) denied his clear and
unambiguous request to proceed pro se; (2) failed to conduct an adequate preliminary Krankel
inquiry by accepting input from the State, not remaining neutral, and failing to ask meaningful
questions of defendant or his counsel; (3) failed to grant his motion for substitution of judge for
cause; and (4) improperly added 12 aggregate years to his sentence following remand. We
address each claim in turn.
¶ 35 A. Denial of Request to Proceed Pro Se Claim
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¶ 36 Defendant argues his request to proceed pro se on the first day of his jury trial
was clear and unambiguous. The trial court denied his request as a delay tactic. However,
defendant specifically stated he wanted to proceed pro se without delay and was prepared to
move forward with his jury trial. The State contends defendant forfeited this issue by not
properly objecting to the court’s denial of his request or raising the issue in a posttrial motion.
¶ 37 We disagree with the State that defendant has forfeited this issue. “To preserve a
purported error for consideration by a reviewing court, a defendant must object to the error at
trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445, ¶ 48. Defendant
raised this issue in his motion for a new trial. On the day of trial, defendant verbally requested to
proceed pro se after the trial court denied his request to be “first chair” in his own defense. When
the court denied his request, he asked the court the reason for the denial. The court stated
defendant’s request was “for purposes of delay.” Defendant said he was prepared to proceed
pro se without delay and argued the court’s denial was unfair to him. A contemporaneous
objection “should be sufficiently specific to inform the court of the ground for the objection.”
Obermeier v. Northwestern Memorial Hospital, 2019 IL App (1st) 170553, ¶ 131 (quoting
Carlson v. City Construction Co., 239 Ill. App. 3d 211, 239 (1992)). Here, defendant’s objection
was sufficiently specific and not merely a general objection. Thus, we find defendant did not
forfeit this claim.
¶ 38 We review a trial court’s denial of a defendant’s motion to represent himself for
an abuse of discretion. People v. Fisher, 407 Ill. App. 3d 585, 589 (2011). “This standard of
review is deferential. Our mere disagreement with the court’s decision would not make the
decision an abuse of discretion.” Id. A court abuses its discretion when its decision is arbitrary or
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clearly illogical, such that it “goes outside the range of reasonableness and disregards established
principles of law, thereby causing a party substantial prejudice.” Id.¶ 39 Ordinarily, “[a] defendant has a constitutional right to represent himself.” People
v. Baez, 241 Ill. 2d 44, 115 (2011). A defendant’s “waiver of counsel must be clear and
unequivocal, not ambiguous.” Id. at 116. “Although a court may consider a defendant’s decision
to represent himself unwise, if his decision is freely, knowingly, and intelligently made, it must
be accepted.” Id.¶ 40 The State argues the trial court did not err when denying defendant’s request to
proceed pro se because the request was disruptive to the proceedings. Defendant contends his
request was clear and unequivocal and cites People v. Davis, 169 Ill. App. 3d. 1 (1988) and
People v. Hunt, 2016 IL App (1st) 132979 in support.
¶ 41 In Davis, the defendant—on the morning his trial was to begin—filed a written
motion seeking to represent himself and discharge his appointed counsel. Davis, 169 Ill. App. 3d.
1, 3 (1988). The trial court inquired whether the defendant had discussed his desire to represent
himself with his attorney, and the defendant replied he had conflicts with his attorney regarding
trial strategy and which witnesses to call. Id. at 6. The court summarily dismissed the defendant’s
motion. Id. On appeal, the appellate court noted “the trial court never made a finding that [the]
defendant did not have the capacity to make an intelligent and knowing waiver of counsel.” Id.The Davis court considered the defendant’s age, education level, and familiarity with the
criminal justice system. Id. at 7-8. The court specially noted the defendant had “been represented
by the public defender, to his apparent dissatisfaction,” where he had been convicted in a closely
related case just prior to his instant case. Id. at 7. While the defendant had sought to represent
himself on the morning of his jury trial, the court noted he “did not wish to delay proceedings,”
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and the trial court did not consider delay in the proceedings as a determinative factor. Id. Thus,
the appellate court reversed the trial court’s denial of defendant’s motion and remanded his case
for a new trial. Id.¶ 42 In Hunt, the defendant’s counsel informed a substitute judge presiding over the
courtroom that the defendant wanted to represent himself. Hunt, 2016 IL App (1st) 132979, ¶ 6.
The defendant was admonished of the consequences of representing himself, but the substitute
judge did not rule on his request; rather, the substitute judge continued the matter for defendant
to “think about” the request and permit the trial judge to rule on the issue. Id. When the trial
judge returned, defendant’s request was denied as a “delay tactic” and the matter was set for jury
trial. On appeal, the appellate court found the trial court had abused its discretion because the
record did not support the finding the defendant’s request was made to delay his trial. Id. ¶ 21.
The Hunt court noted five of the six continuances were by agreement, with the last continuance
coming on the trial court’s own motion to permit defense counsel an opportunity to respond to
the State’s pretrial motion. Id. The appellate court also found the defendant had not engaged in
any “obstructionist” behavior. Id. ¶ 22. The court reversed and remanded the matter for a new
trial. Id. ¶ 27.
¶ 43 We find the case sub judice distinguishable from both Davis and Hunt primarily
due to defendant’s apparent delay tactics here. The courts in Davis and Hunt both found the
defendants were not seeking pro se status to delay the trial proceedings. In Davis, the appellate
court found the defendant had apparent complaints with his appointed counsel stemming from
his very recent trial that predicated his request to represent himself. Regarding Hunt, the
appellate court found the record did not support the finding defendant’s request to represent
himself was a delay tactic.
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¶ 44 Here, unlike Davis, defendant sought to “first chair” his own defense while
maintaining the services of his appointed counsel as “second chair.” While defendant had voiced
dissatisfaction with his previously appointed counsel, he clearly desired to keep his appointed
counsel nearby in some advisory role for his trial. Once the trial court denied that request, he
then pivoted to reasserting his request to represent himself. Additionally, unlike in Davis, the
trial court here considered delay as a determinative factor. While a court must honor a
defendant’s right to represent himself where waiver of counsel is knowingly and intelligently
made, this right is not absolute. This court has previously stated that a trial court may deny a
defendant’s request to proceed pro se when it comes “so late in the proceedings that to grant it
would be disruptive of the orderly schedule of proceedings.” People v. Ward, 208 Ill. App. 3d
1073, 1084 (1991). In Ward, we cautioned “that when a request to proceed pro se is made and
there is no request for additional time to prepare, a motion to proceed pro se should generally be
viewed as timely as long as it is made before trial.” Id. Defendant’s request to proceed pro se in
this instance cannot be viewed as timely and “before trial” in any reasonable sense because the
trial had essentially already begun, with potential jurors awaiting as voir dire was about to
commence.
¶ 45 Here, unlike Hunt, defendant sought and was granted multiple continuances of his
trial date. Only one continuance following remand was by agreement between the parties. In
October 2022, defendant sought yet another continuance of his trial, which was denied given the
case was six years old at the time. Unlike Hunt, defendant, in the instant case, demonstrated a
propensity to usurp his appointed counsel in many instances. In April 2017, he requested to
proceed pro se, which was granted. However, shortly thereafter, he immediately requested
counsel be appointed to his case. When his request was granted, he subsequently filed a motion
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to have a different attorney appointed to his case that he later withdrew. Following remand of his
case, defendant again sought to represent himself or get a different attorney appointed to his
case. He refiled his request to proceed pro se later in 2021 but withdrew that request. It appears,
upon recognizing that the trial court cannot simply appoint different attorneys to represent
defendant at his whim, he devised a plan to sit “first chair” in his own defense with his appointed
counsel taking an advisory role as “second chair.” When this idea failed, defendant renewed his
request to represent himself at the onset of his trial.
¶ 46 While defendant may claim he intended to proceed with his trial without delay,
his behavior up until trial following remand did not demonstrate he intended to comply with an
orderly schedule of proceedings. As we noted earlier, it is not enough for us to disagree with the
trial court whether defendant should have been granted his request to proceed pro se. The abuse
of discretion standard requires the court’s decision be arbitrary and clearly illogical. We cannot
say the court’s decision to deny defendant’s request to represent himself because it was a delay
tactic is either arbitrary or clearly illogical. The trial court is in a far better position than this
court to observe defendant’s conduct and behavior. See People v. Wiggins, 312 Ill. App. 3d
1113, 1116 (2000) (noting, in the pretrial context of a bona fide doubt of a defendant’s fitness,
the trial court is in a far better position than a reviewing court to “observe and evaluate the
defendant’s conduct”). Moreover, we must “indulge in every reasonable presumption against”
defendant’s waiver of counsel. Baez, 241 Ill. 2d at 116. Accordingly, we find the court did not
abuse its discretion when it denied defendant’s request to proceed pro se.
¶ 47 B. Inadequate Preliminary Krankel Inquiry Claim
¶ 48 A pro se posttrial claim alleging ineffective assistance of counsel is governed by
the common-law procedure developed by our supreme court in Krankel and its progeny. People
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v. Roddis, 2020 IL 124352, ¶ 34. “The procedure encourages the trial court to fully address these
claims and thereby narrow the issues to be addressed on appeal.” Id. Under this procedure, the
trial court does not automatically appoint new counsel when a defendant alleges ineffective
assistance of counsel; rather, the court first examines the factual basis of the defendant’s claim.
Id. ¶ 35. “Specifically, the trial court must conduct an adequate inquiry ***, that is, inquiry
sufficient to determine the factual basis of the claim.” (Internal quotation marks omitted.) People
v. Ayers, 2017 IL 120071, ¶ 11. In doing so, the court considers the merits of the defendant’s
allegations in their entirety. Roddis, 2020 IL 124352, ¶ 61.
¶ 49 If the trial court determines the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the defendant’s pro se
claim. Id. ¶ 35. “However, if the allegations show possible neglect of the case, new counsel
should be appointed.” Id. This permits new counsel to independently evaluate the defendant’s
claim and avoid a conflict of interest trial counsel would otherwise have, and new counsel would
represent the defendant at a hearing on the pro se ineffective assistance of counsel claim. Id.
¶ 36. “The issue of whether the trial court properly conducted a preliminary Krankel inquiry
presents a legal question that we review de novo.” Id. ¶ 33.
¶ 50 Following his jury trial, defendant filed a pro se motion alleging his trial counsel
rendered ineffective assistance for, inter alia, failing to contact witnesses who would have
testified to viewing the video evidence at an earlier date, and thus calling into question the
State’s entire case. The trial court acknowledged a preliminary Krankel inquiry was appropriate.
Defendant argues the court’s inquiry erroneously permitted input from the State and consisted
only of a brief and hostile hearing before the court summarily dismissed his allegations. Because
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the court failed to conduct an adequate inquiry, defendant argues this court should remand the
matter for a proper preliminary Krankel inquiry.
¶ 51 Regarding its input, the State argues it was de minimis and does not require
reversal. Our supreme court explained that
“[b]ecause a defendant is not appointed new counsel at the preliminary Krankel
inquiry, it is critical that the State’s participation at that proceeding, if any, be
de minimis. Certainly, the State should never be permitted to take an adversarial
role against a pro se defendant at the preliminary Krankel inquiry.” People v.
Jolly, 2014 IL 117142, ¶ 38.
In Jolly, the trial court had permitted the State to question the defendant and his trial counsel
extensively. Id. ¶ 40. Furthermore, the State “presented evidence and arguments contrary to [the]
defendant’s claims and emphasized the experience of [the] defendant’s trial counsel.” Id. The
Jolly court reversed, concluding “the State and [the] defendant’s trial counsel effectively argued
against defendant” during the preliminary Krankel inquiry. Id.
¶ 52 In this case, the State provided input after the trial court queried whether to
conduct a preliminary Krankel inquiry. The State commented that many of the issues in
defendant’s pro se motion had been addressed during his previous appeal. The State then
relented that defendant was entitled to his motion and did not participate any further. Defendant
argues the State’s input framed the issues for the court and, thereby, made the proceedings
adversarial and nonneutral. We disagree. The State did not question defendant and only
addressed his claims generally rather than addressing any specific claim he made in his motion.
It did not address the substance of defendant’s claims and did not question defendant or discuss
his trial counsel at all. Furthermore, the court stated it had read defendant’s motion and gave him
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an opportunity to argue his claims fully. We find the State’s input was de minimis and did not
convert the preliminary Krankel inquiry into an adversarial proceeding.
¶ 53 Defendant next contends the trial court’s conduct during the inquiry was not
neutral, as the court interrupted defendant and was dismissive of his claims. Defendant focused
his claim on counsel’s failure to investigate and/or call to testify four alleged witnesses who
would have allegedly exonerated him. He cites People v. McKinney, 2023 IL App (4th)
220356-U, and People v. Lawson, 2019 IL App (4th) 180452, in support.
¶ 54 In McKinney, this court found the trial court’s preliminary Krankel inquiry was
inadequate because “it failed to ask either defendant or defense counsel any specific questions
regarding the factual basis of the [defendant’s] claims.” McKinney, 2023 IL App (4th) 220356-U,
¶ 36. We remanded the matter for the court to assign new counsel to the defendant and conduct a
Krankel hearing. Id. ¶ 50.
¶ 55 In Lawson, the State’s primary witness testified that he did not know the
defendant and had never seen him before the defendant robbed him. Lawson, 2019 IL App (4th)
180452, ¶ 50. Prior to trial, the defendant informed his attorney of a witness who would impeach
that witness’s testimony. However, trial counsel never called defendant’s witness. Id. ¶ 51-52.
Trial counsel gave a self-contradictory reason for not calling the defendant’s witness, which the
Lawson court concluded may have been an unreasonable trial strategy. Id. ¶ 53. The matter was
remanded for the trial court to appoint new counsel and conduct further proceedings. Id. ¶ 59.
¶ 56 We find McKinney and Lawson distinguishable from the instant case. First, the
record does not contradict the trial court’s findings. Trial counsel in May 2021, March 2022, and
May 2022, requested continuances in order to locate potential witnesses defendant had identified
as having information to discredit the video evidence. In September 2021, defendant filed a
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pro se motion seeking to substitute counsel or proceed pro se, stating counsel informed him the
witnesses “won’t answer the phone or respond to [counsel’s] message.” Defendant argued, “But
that not what im [sic] told by them.”
¶ 57 In October 2022, counsel again sought a continuance, claiming defendant had
“four potential witnesses”—one who was in the hospital and another who would “ha[ve] more
time available after the holidays.” On the day of trial, counsel again asked for a continuance,
noting one of the witnesses was unable to appear because she was in the hospital. When asked
about the nature of this witness’s testimony, counsel stated she would testify to being “around
both the victim and [defendant]” when the alleged incidents occurred and “didn’t sense anything
was off.”
¶ 58 The record clearly shows defense counsel diligently investigated and sought to
utilize the witnesses defendant now argues were ignored. The crux of defendant’s arguments at
trial both during opening statements and closing arguments was that the video evidence did not
depict defendant. Defendant claims these witnesses would have been integral to supporting his
innocence. However, one of these witnesses was a State’s witness, and another witness’s
purported testimony would have merely been duplicative of defendant’s three witnesses, who
each testified they had observed E.S. when the incidences occurred and did not perceive her to
behave abnormally.
¶ 59 Unlike McKinney, the record in this case does not contradict the trial court’s
findings. Unlike in Lawson, there is no showing of possible neglect of an alibi witness. The trial
court is “permitted to make its determination based on its knowledge of defense counsel’s
performance at trial and the insufficiency of the defendant’s allegations.” People v. Ayers, 2017
IL 120071, ¶ 12. The trial court gave defendant ample opportunities to emphasize his strongest
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arguments at the preliminary Krankel inquiry. Rather than focusing on counsel’s failure to
contact requested witnesses, defendant chose to focus on grand jury testimony that was never
utilized as evidence at trial. Nevertheless, the requested witnesses would not have testified to
anything equivalent to an alibi. Accordingly, we find the trial court conducted an adequate
preliminary Krankel inquiry.
¶ 60 C. Substitution of Judge for Cause Claim
¶ 61 Defendant next argues Judge Lyons demonstrated prejudice against him to the
extent he could not have received a fair trial. He concedes this issue was not raised in his
posttrial motion and asks that we review it under the plain-error doctrine. The plain-error
doctrine requires a defendant first establish a clear or obvious error. Sebby, 2017 IL 119445,
¶ 49. Second, the defendant must show either “(1) the evidence is close, regardless of the
seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”
People v. Herron, 215 Ill. 2d 167, 187 (2005). Here, defendant seeks review under the second
prong.
¶ 62 To prevail on a motion to substitute a judge for cause, a defendant must show
facts and circumstances indicating the judge is actually prejudiced against him. People v.
Patterson, 192 Ill. 2d 93, 131 (2000). “To meet this burden, the defendant must establish
animosity, hostility, ill will, or distrust towards this defendant.” Id. On review, we will not
disturb a finding on a motion for substitution of judge unless that finding is against the manifest
weight of the evidence. People v. Mercado, 244 Ill. App. 3d 1040, 1047 (1993).
¶ 63 Defendant highlights the trial court’s comments during his original sentencing. He
notes the court said, “I’d make the following findings and observations. [Defendant], you are a
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full can of nuts or something.” After defendant indicated he had difficulty finding employment
while having a prior sex offense conviction, the court stated:
“But here’s what’s interesting to me, and not in a good way: You seem to
imply that you didn’t have an economic opportunity, you didn’t get a job because
you had this scarlet letter on you from this sex offense. It’s because you have
some sort of illness. You’re allergic to work. Not only are you not a worker,
you’re whatever the opposite of worker would be. Whatever that term is, that
would be you.
But you do some things with great consistency. The defendant has
fathered a total of nine children with six different women. That they know of, I’m
guessing.”
Defendant contends the court’s comments are not supported by the record and merely constitute
an ad hominem attack. Specifically, the PSI showed he worked numerous jobs and was close to
five of his nine children. Defendant admitted “he could have been a better father,” and he did not
want his children to grow up “in a home with drugs and violence.” In support of his arguments,
defendant cites People v. Fisher, 2023 IL App (4th) 220717, and People v. Montgomery, 2023 IL
App (3d) 200389.
¶ 64 In Fisher, this court noted the judge—who was the same judge as in the case
sub judice— made “remarks toward [the] defendant, [which,] taken together, constitute a
tour de force of sarcasm and scorn establishing the trial court’s prejudice against [the]
defendant.” Fisher, 2023 IL App (4th) 220717, ¶ 40. In Fisher, we noted numerous incidents
where the court made improper derogatory and sarcastic remarks regarding the defendant’s
behavior in jail, his decision to have a jury trial, the sex offender evaluation, the defendant’s
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mother’s death, the fact that the defendant fathered many children, and the defendant’s limited
intellectual ability. Id. ¶¶ 36-39. Due to the court’s conduct, we remanded the matter for a new
sentencing hearing before a different judge. Id. ¶ 45.
¶ 65 In Montgomery, the appellate court also reversed and remanded the matter for a
new sentencing hearing before a different judge. Montgomery, 2023 IL App (3d) 200389, ¶ 35.
That case also involved the same judge as the instant case. The Montgomery court concluded the
trial court “failed to hide its animosity toward defendant” and explained:
“The court’s animosity was laid bare in the sentencing hearing when it
(1) mimicked defendant’s demands to the arresting officer, (2) referred
dismissively to defendant’s wife, (3) envisaged a hypothetical prison scenario
where it would personally discredit [the] defendant’s claims of mistreatment,
(4) criticized the arresting officer’s patience in dealing with [the] defendant,
(5) suggested the officer should have tased defendant upon noncompliance, and
(6) most disconcerting of all, stated it would have killed defendant if it were in the
store clerk’s shoes.” Id. ¶ 32.
¶ 66 We recognize that Fisher and Montgomery both concern the same judge and his
comments toward defendants, and we agree with both cases that a “judge should be patient,
dignified, and courteous to litigants, jurors and witnesses, lawyers and others with whom he
deals in his official capacity.” People v. Eckert, 194 Ill. App. 3d 667, 674 (1990). Indeed, we
admonish the trial court judge again here today that his choice of words and sarcastic demeanor
do not adhere to the high standards expected of judges. However, the judge’s comments in this
case were relatively reserved in comparison to the comments made in Fisher and Montgomery.
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¶ 67 Defendant carries the burden of showing prejudice, and that burden requires he
“establish not merely the possibility of prejudice, but also that prejudice tangibly exists.”
Mercado, 244 Ill. App. 3d at 1045. This court’s decision to disqualify a judge based on
“prejudice is a judgment not to be made lightly.” People v. Kluppelberg, 257 Ill. App. 3d 516,
535 (1993). At sentencing, a trial court is given great latitude, though not without limit. Fisher,
2023 IL App (4th) 220717, ¶ 40. Furthermore, the trial court, “having observed the defendant
and the proceedings, is in a far better position to consider such factors as the defendant’s
credibility, demeanor, general moral character, mentality, social environment, and habits than a
reviewing court, which must rely on a ‘cold’ record.” People v. Little, 2011 IL App (4th)
090787, ¶ 24. A “trial judge is not limited to considering statutory aggravating factors, and he
may consider any fact which would tend to aggravate the offense.” People v. Helm, 282 Ill. App.
3d 32, 34 (1996).
¶ 68 We note the context of the trial court’s statements at issue on this appeal occurred
during the first sentencing hearing. At a sentencing hearing, the court is generally expected to
articulate its reasons regarding a defendant’s credibility, demeanor, general moral character,
mentality, social environment, and habits when imposing sentence. We find defendant has failed
to show prejudice from the court’s comments at his original sentencing hearing. We also observe
that where a defendant’s case is remanded for error following a sentencing hearing, a reviewing
court should be cautious to permit a defendant to weaponize a judge’s findings at a vacated
sentencing hearing as casting a pall of prejudice on future proceedings.
¶ 69 Following remand, the trial judge did not display any of the behaviors or make
comments remotely approaching those which were discussed in either Fisher or Montgomery.
Defendant does not point to any comments by the judge that show tangible prejudice existed
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following remand. The record demonstrates that on remand, the judge was patient and
accommodating to defendant’s requests for continuances and pro se filings. Defendant’s motion
for substitution of judge for cause was held before a different judge, who reviewed the entire
record along with defendant’s motion. Because Judge Gorman’s decision to deny defendant’s
motion was not against the manifest weight of the evidence, we find no clear error occurred and
honor defendant’s forfeiture of this issue.
¶ 70 D. Improper Increase of Sentence Claim
¶ 71 Defendant argues the trial court imposed a harsher sentence following remand
because he chose to exercise his right to a jury trial. The State argues this issue was forfeited. We
disagree with the State that this issue was forfeited. Recall, “[t]o preserve a purported error for
consideration by a reviewing court, a defendant must object to the error at trial and raise the error
in a posttrial motion.” Sebby, 2017 IL 119445, ¶ 48. Defendant clearly articulated at sentencing
that he had done nothing to warrant an increased sentence other than exercise his due process
rights and raised the issue again in his motion to reconsider sentence. As such, defendant has not
forfeited this claim.
¶ 72 “The legislature sets forth by statute the range of permissible sentences for each
class of criminal offense.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “A sentence within statutory
limits will not be deemed excessive and an abuse of the court’s discretion unless it is ‘greatly at
variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the
offense.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54). A
reviewing court affords great deference to a trial court’s sentencing judgment because, “having
observed the defendant and the proceedings, [it] is in a far better position to consider such factors
as the defendant’s credibility, demeanor, general moral character, mentality, social environment,
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and habits than a reviewing court, which must rely on a ‘cold’ record.” Little, 2011 IL App (4th)
090787, ¶ 24. A sentence that falls within the applicable statutory limits is reviewed for an abuse
of discretion. People v. Price, 2011 IL App (4th) 100311, ¶ 36.
¶ 73 However, a trial court on resentencing is limited by section 5-5-4 of the Unified
Code of Corrections (Code). 730 ILCS 5/5-5-4 (West 2022). “[T]he purpose of section 5-5-4 of
the Code is to ensure the due process rights” of a defendant and prevent “vindictiveness in
resentencing a defendant for having exercised his appeal rights.” People v. Woolsey, 278 Ill.
App. 3d 708, 710 (1996). The Code provides in relevant part that the resentencing court “shall
not impose a new sentence for the same offense *** which is more severe than the prior sentence
*** unless the more severe sentence is based upon conduct on the part of the defendant occurring
after the original sentencing.” 730 ILCS 5/5-5-4(a) (West 2022); People v. Moore, 359 Ill. App.
3d 1090, 1092 (2005). Whether due process has been violated is a question of law reviewed
de novo. People v. Totzke, 2012 IL App (2d) 110823, ¶ 17.
¶ 74 The State argues the trial court did not err because defendant had become more
callous, abrasive, and confrontational following remand, thereby permitting the court to impose a
harsher sentence. Defendant contends the record supports his argument that the only difference
following remand was his jury trial demand. He claims the record does not support a finding that
his conduct warranted a harsher sentence. He cites People v. Strawbridge, 404 Ill. App. 3d 460(2010) in support.
¶ 75 In Strawbridge, the defendant was originally sentenced to 9 years’ imprisonment
and, following remand, he was resentenced to 12 years’ imprisonment. Id. at 470. The appellate
court construed the plain meaning of “conduct” from the Code to require a defendant
demonstrate a “behavior” or “some type of act on [a] defendant’s part” warranting a more severe
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sentence and not merely displaying “a certain attitude toward one’s crime or a belief about one’s
past.” Id. at 471. In that case, the trial court noted the defendant’s statement in allocution failed
to indicate any remorse and the testimony of a caseworker indicated the defendant was more
likely to recidivate due to his denial of “his own victimization.” Id. at 470. The court found these
reasons did not meet the definition of conduct and modified his sentence to the original sentence
that was imposed prior to remand. Id. at 471.
¶ 76 In this case, the trial court followed its comments that defendant was a “different
person” following remand by stating he was callous, abrasive, and confrontational. The court
went on to state defendant was unwilling to take responsibility for his actions and sought to
blame others. The court stated defendant was essentially—while not literally—calling E.S. a liar.
However, the court’s reasons that defendant was different following remand all go toward how
the court perceived defendant’s attitude regarding his guilt. While we do not diminish those
reasons for the court’s decision to impose a harsher sentence, they do not identify any conduct on
the part of defendant that would warrant a harsher sentence. We reiterate the sentiments of the
special concurrence from Strawbridge noting a defendant has no incentive to plead guilty to get
leniency at sentencing; “[t]hat is, he has nothing to lose by going to trial after the first conviction
is vacated by the appellate court regardless of the reasons—he might get acquitted, but even if he
is convicted, he is guaranteed to come out no worse than he did” prior to remand. Id. at 473(Zenoff, J., concurring).
¶ 77 Accordingly, we agree with defendant that the trial court erred when it
resentenced him to a more severe sentence. Defendant asks that we exercise our powers under
Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967) and reimpose the original sentence. We agree
and, accordingly, reduce defendant’s sentence for the child pornography conviction to 22 year’s
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imprisonment and for the aggravated criminal sexual assault conviction to 23 years’
imprisonment. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). All other aspects of defendant’s
sentences will remain as imposed by the trial court, including that they run consecutively.
¶ 78 III. CONCLUSION
¶ 79 For the reasons stated, we reduce defendant’s sentence for each conviction
entered to 22 and 23 years’ imprisonment, respectively. We otherwise affirm the judgment of the
trial court.
¶ 80 Affirmed as modified.
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