People v. Bardo ( 2019 )

NOTICE
2019 IL App (5th) 160511-U NOTICE
Decision filed 11/08/19. The This order was filed under
text of this decision may be NO. 5-16-0511 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Peti ion for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 13-CF-109
)
CLIFTON L. BARDO, ) Honorable
) Richard A. Brown,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Presiding Justice Overstreet and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Because the trial court did not, in response to the defendant’s pro se posttrial
assertion of ineffective assistance of counsel, conduct an inquiry into such
allegations pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), and its
progeny, we remand with directions for the circuit court to conduct further
proceedings.
¶2 At a jury trial in October 2013, the defendant, Clifton L. Bardo, was convicted of
two counts of unlawful delivery of a controlled substance within 1000 feet of a place of
worship. The defendant was sentenced to 24 years’ imprisonment followed by 3 years of
mandatory supervised release (MSR) as to count I and 24 years’ imprisonment followed
by 3 years of MSR as to count II, with the sentences to run concurrently. After the
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defendant’s initial appeal to this court, his enhanced convictions were reduced, and his case
was remanded for resentencing. See People v. Bardo, 2016 IL App (5th) 140031-U, ¶¶ 1,
36. On remand, the defendant was sentenced to 18 years’ imprisonment followed by 2
years of MSR as to count I and 5 years’ imprisonment followed by 1 year of MSR on count
II, with the sentences to run concurrently. On appeal, the defendant argues (1) that the trial
court erred by failing to conduct an inquiry into whether his allegations concerning his
defense counsel’s ineffectiveness with respect to his resentencing required the appointment
of new counsel, (2) that the court committed plain error by considering an improper factor
in aggravation, and (3) that the trial court erred in failing to consider mitigating factors
relevant to his sentence. For the reasons that follow, we remand with directions.
¶3 The defendant raises multiple issues on appeal that concern his convictions and
sentences. Because we find the first issue meritorious and dispositive, we need not address
the issues concerning the aggravating and mitigating factors considered by the trial court
in sentencing the defendant.
¶4 I. BACKGROUND
¶5 A. The Defendant’s Trial and First Appeal
¶6 The defendant’s charges stem from a 2012 investigation involving two separate
controlled drug buys. In June 2013, the State charged the defendant by information with
one count of unlawful delivery of 1 to 15 grams of a controlled substance within 1000 feet
of a place of worship in violation of section 407(b)(1) of the Criminal Code of 2012 (Code)
(720 ILCS 570/407(b)(1) (West 2012)) (count I). Thereafter, the State filed an amended
information charging the defendant with an additional count of unlawful delivery of less
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than one gram of a controlled substance within 1000 feet of a place of worship in violation
of section 407(b)(2) of the Code (id. § 407(b)(2)) (count II).
¶7 In October 2013, the defendant’s two-day jury trial commenced. The State
presented testimony from several police officers explaining how they facilitated the two
transactions in which the defendant sold cocaine to a confidential informant; both
encounters took place less than 1000 feet from an alleged church. The State then played
for the jury video recordings of the two transactions in conjunction with testimony from
the confidential informant about what the videos depicted. The confidential informant also
testified about her personal relationship with the defendant and the amount of money she
received for her work as an informant.
¶8 After the State rested its case, defense counsel filed a motion for directed verdict,
arguing that the State failed to prove that the alleged church was being used as a place of
worship on the dates of the offenses, which was denied. The defendant did not testify or
present any evidence in his defense.
¶9 The jury found the defendant guilty on both counts. The defendant subsequently
filed a motion for judgment notwithstanding the verdict, or, alternatively, for a new trial,
which the trial court denied. The court sentenced the defendant to 24 years’ imprisonment
followed by 3 years of MSR as to count I and 24 years’ imprisonment followed by 3 years
of MSR as to count II, with the sentences to run concurrently.
¶ 10 On direct appeal, the defendant argued, inter alia, that the State failed to prove that
his offenses were committed within 1000 feet of place of worship because it offered no
evidence showing the alleged church was being used as a place of worship on the dates of
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the offenses. Bardo, 2016 IL App (5th) 140031-U, ¶ 28. This court agreed, holding that
the State failed to prove, beyond a reasonable doubt, that the building in question operated
as a church on the dates of the defendant’s offenses. Id. ¶¶ 28-36. Accordingly, his
enhanced convictions were reduced to two counts of unlawful delivery of a controlled
substance, and the case was remanded for resentencing. Id. ¶¶ 1, 37.
¶ 11 B. Remand
¶ 12 During the defendant’s resentencing hearing on August 31, 2016, the State and
defense counsel moved to amend the presentence investigation (PSI) report that was
submitted to the trial court during his first sentencing hearing. First, the State requested
that any references to the defendant’s offenses being committed within 1000 feet of a place
of worship be deleted. Second, defense counsel requested that the initial PSI be corrected
to reflect that count II was a charge of unlawful delivery of less than one gram of a
controlled substance, rather than a charge of unlawful delivery of 1 to 15 grams of a
controlled substance. Third, where the initial PSI reflected that the defendant never worked
at Jackson Pools and Spas, LLC, he requested that it be amended to show that he did work
there and supported his request with pay stubs evidencing such employment.
¶ 13 The State then certified to the trial court a copy of the defendant’s 2004 Class 1
felony conviction, noting that the conviction made him eligible for an extended-term
sentence on count I.
¶ 14 The defendant testified about his employment, the child support payments he paid
prior to his incarceration, and the change in attitude he experienced while he was
incarcerated. He testified that he took multiple classes while incarcerated and was enrolled
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in a drug counseling program at the time of the hearing. Defense counsel then read 13
letters into evidence from the defendant’s family members and friends, all attesting to his
good character. During his statement in allocution, the defendant expressed remorse for
his actions and said that he would never touch drugs again.
¶ 15 At the conclusion of the hearing, the trial court found that a lengthy sentence was
necessary to deter others from committing the same crimes and that the defendant had a
long history of prior criminal activity. It found no relevant or applicable factors in
mitigation. The court explicitly stated that it considered the nature and circumstances of
the defendant’s offenses; his history, character, and propensities; as well as his chances for
reform and the goal of restoring him to useful citizenship. However, the court concluded:
“Clifton, *** we can’t allow you out in the community because you sell these
drugs to your citizens of the other communities who become addicted, and we have
to deal with it. We have to deal with the—with the overdoses when we’re told. I
walked out of the courthouse a few weeks ago with a lady and the next day I got to
court and found out that she had overdosed on drugs the night after we had left the
courthouse. This is what we deal with day after day here in the Randolph County
Courthouse. And we’ve got to do everything we can to get the people that sell these
illegal substances that are so addictive and harmful away from the community so
our communities can be safe and that people don’t become addicted to these drugs
and all of the social consequences of their addiction. Now, it’s just as simple as
that.
Your problem, Mr. Bardo, is that you got a terrible prior record. We tried to
reform you in the Department of Corrections on four occasions, but even—we tried
to reform you from selling drugs before, but we can’t get through to you. At least
today as you appear in here, you say, well, Judge, this time you’ve gotten through
to me and I’m not going to do this anymore. I can only hope that that is correct.
***”
¶ 16 The trial court then sentenced the defendant to an extended-term sentence of 18
years’ imprisonment followed by 2 years of MSR on count I, a Class 1 felony, and 5 years’
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imprisonment followed by 1 year of MSR on count II, a Class 3 felony, with the sentences
to run concurrently.
¶ 17 On September 19, 2016, defense counsel filed a motion to reconsider sentence on
the defendant’s behalf. Defense counsel argued that, inter alia, the trial court should
reconsider the length of the sentence imposed as to each count because the court failed to
adequately consider the defendant’s rehabilitative potential, factors in mitigation, and
evidence he presented in the form of letters attesting to the work he completed for others
within his community prior to being incarcerated.
¶ 18 On September 30, 2016, the defendant filed a pro se motion to reconsider sentence.
The defendant alleged that he attempted to speak with defense counsel about a certain
statute pertaining to his resentencing and counsel declined to review it, saying he did not
have enough time. The defendant also attached three letters that he wrote to defense
counsel, one of which mentioned how defense counsel failed to set up a phone call with
the defendant after saying he would.
¶ 19 At a hearing on November 15, 2016, the trial court dismissed all relevant motions
regarding the defendant’s sentence. When the defendant attempted to address the court
about the issues he had with defense counsel with respect to his resentencing, the court said
he could “take it up with the appellate court.”
¶ 20 The defendant filed his notice of appeal on December 5, 2016.
¶ 21 II. ANALYSIS
¶ 22 On appeal, the defendant argues his cause should be remanded for further
proceedings in accordance with People v. Krankel, 102 Ill. 2d 181 (1984), because the trial
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court did not address his claims of ineffective assistance of counsel. The State concedes
error.
¶ 23 The question of whether the trial court adequately inquired into a defendant’s claim
of ineffective assistance of counsel is a question of law that is reviewed de novo. People
v. Jolly, 2014 IL 117142, ¶ 28; see also People v. Moore, 207 Ill. 2d 68, 75 (2003). Where
defendant raises a pro se posttrial claim of ineffective assistance of counsel, the court
should examine the factual basis of the claim, and under certain circumstances, must
appoint new counsel to argue the claim. Moore, 207 Ill. 2d at 77-78. However, new
counsel is not automatically required merely because defendant presents a pro se posttrial
claim that his counsel was ineffective. Id. at 77. If the court finds that defendant’s claim
lacks merit or only pertains to matters of trial strategy, then the court need not appoint new
counsel and may deny defendant’s pro se motion. Id. at 78. If, however, defendant’s
allegations show possible neglect of the case, the court should appoint new counsel to argue
defendant’s claim of ineffective assistance. Id. The court’s inquiry can include any of the
following: (1) the court may simply ask trial counsel questions about the facts and
circumstances surrounding defendant’s allegations, (2) the court can engage in a brief
discussion with defendant, or (3) the court can base its evaluation on its personal
knowledge of defense counsel’s performance at the trial and the insufficiency of
defendant’s allegations on their face. Id. at 78-79.
¶ 24 With regard to triggering this process, the Illinois Supreme Court has examined the
question of how much detail a pro se defendant must provide to warrant a Krankel inquiry.
People v. Ayres, 2017 IL 120071, ¶¶ 9-18. The Ayres court concluded that “when a
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defendant brings a clear claim asserting ineffective assistance of counsel, either orally or
in writing, this is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.”
Id. ¶ 18. The Ayres court noted that, for a reviewing court, the operative concern is whether
the trial judge conducted an inquiry that was adequate. Id. ¶ 13. The goal of the inquiry
“is to facilitate the trial court’s full consideration of a defendant’s pro se claim and thereby
potentially limit issues on appeal.” Id. A proper inquiry will create the record necessary
to adjudicate any claims raised on appeal. Id. Likewise, the failure to conduct a proper
inquiry precludes appellate review. Id. The court reiterated that the purpose of the inquiry
by the trial judge “is to ascertain the underlying factual basis for the ineffective assistance
claim and to afford a defendant an opportunity to explain and support his claim.” Id. ¶ 24.
¶ 25 In the present case, the record indicates that the trial court refused to make any
inquiry into the defendant’s pro se claims that his counsel was ineffective with respect to
his resentencing. Instead, the court merely instructed the defendant to “take it up with the
appellate court.” Under these circumstances, we conclude that the court erred by failing to
conduct the necessary preliminary inquiry into the defendant’s pro se posttrial claims of
ineffective assistance of counsel. Where there is no inquiry, and there is no indication that
the court gave adequate consideration to the defendant’s pro se allegations, the only
appropriate action for the reviewing court is to remand the matter so that the court can
conduct a proper inquiry. See Moore, 207 Ill. 2d at 79. We want to emphasize that we are
not remanding for a full evidentiary hearing and the appointment of counsel on the
defendant’s claims. See id. at 81. Instead, we are only remanding for the limited purpose
of allowing the court to conduct the required preliminary inquiry. See id. “If the court
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determines that the claim of ineffectiveness is spurious or pertains only to trial strategy,
the court may then deny the motion and leave standing defendant’s convictions and
sentences. If the trial court denies the motion, defendant may still appeal his assertion of
ineffective assistance of counsel along with his other assignments of error.” Id. at 81-82.
¶ 26 Because this case must be remanded to allow the trial court to conduct proper
Krankel proceedings, we decline to address the defendant’s other allegations of error. See
Ayres, 2017 IL 120071, ¶ 13 (“[T]he goal of any Krankel proceeding is to facilitate the trial
court’s full consideration of a defendant’s pro se claim and thereby potentially limit issues
on appeal.”). Depending upon the results of the trial court’s proceedings on remand in this
case, the defendant’s other claims of error may become moot. We direct appellate counsel
to provide copies of their briefs to the trial attorneys and trial judge on remand. See People
v. Bell, 2018 IL App (4th) 151016, ¶ 37.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we remand the cause to the circuit court of Randolph
County with directions that the trial judge conduct a proper inquiry into the defendant’s
pro se posttrial claims of ineffective assistance of counsel.
¶ 29 Remanded with directions.
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