People v. Myers ( 2020 )

NOTICE 2020 IL App (4th) 170915-U FILED
This order was filed under Supreme May 19, 2020
Court Rule 23 and may not be cited Carla Bender
as precedent by any party except in NO. 4-17-0915
the 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. ) De Witt County
JESSE J. MYERS, ) No. 13CF48
Defendant-Appellant. )
) Honorable
) Richard Lee Broch Jr.,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Knecht and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding (1) the trial court lacked jurisdiction to hear
defendant’s posttrial ineffective-assistance-of-counsel claims and (2) defendant
forfeited his excessive-sentence claim.
¶2 Defendant, Jesse J. Myers, was convicted of aggravated domestic battery and
domestic battery and sentenced to 15 years’ imprisonment. On appeal, he argues (1) the trial
court failed to comply with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), and
(2) his sentence is excessive. We affirm.
¶3 I. BACKGROUND
¶4 A. The Charges
¶5 In October 2013, defendant was indicted on two counts of aggravated domestic
battery (counts I and II) (720 ILCS 5/12-3.3(a-5) (West 2012)), a Class 2 felony with mandatory
Class X sentencing based on defendant’s criminal history, and three counts of domestic battery
(counts III-V) (720 ILCS 5/12-3.2(a)(1), (2) (West 2012)), a class A misdemeanor. The
indictments alleged that on September 14, 2013, defendant committed the following acts against
the victim—a family or household member: he (1) “impeded the normal breathing of [the victim]
by blocking her nose and/or throat with a pillow” (counts I and II); (2) “caused bodily harm, a
black eye, *** by punching her” (counts III and IV—the State dismissed count IV prior to trial);
and (3) “made physical contact of an insulting or provoking nature *** by biting her chest”
(count V).
¶6 B. Bench Trial
¶7 We limit our discussion of the evidence to that which is relevant to the issues on
appeal.
¶8 1. Brooke Wilson
¶9 Brooke Wilson testified that at the time of the alleged offense, she had been in a
relationship with defendant for several months and they were living together. On the night of
September 13, 2013, Wilson and defendant “met up with neighbors, had drinks at the apartment,
[and] went out to the bar with some of these neighbors ***.” Wilson testified that defendant and
the others went inside of the bar while she stayed outside to talk with the bouncer, who was “an
ex-boyfriend of mine.” Once the bar closed, a local police officer gave Wilson and defendant—
who were too intoxicated to drive—a ride to their apartment.
¶ 10 Upon returning to the apartment, Wilson testified defendant “started yelling and
screaming that he thought I was cheating on him, accused me of cheating on him with a guy,”
and then he pushed her to the ground. Wilson described the ensuing physical altercation in the
following colloquy:
-2-
“Q. When he was yelling those things at you, and you’re going into the
bedroom—now, what happened after he got you down?
A. Straddled me with one knee on each side of my waist, ended up with
my arms above my head, held one hand on my wrist. I started receiving blows to
my face, to my head, my sides, and whenever he wasn’t punching me, I was
getting bit on several different parts of my body. He grabbed a pillow off my bed,
stuck it over my face with each side of the pillow hitting the ground to where I
had no way of breathing whatsoever. Whenever the pillow was being taken from
my face, I would get blows again and again, repeated events over and over and
over again. I was clawing; I was kicking; I was trying everything I could do to get
off of the floor to get from underneath the pillow.
Q. What’s going through your mind at this time?
A. I was scared to death. I couldn’t breathe. I started blacking out. I
thought I was going to die.”
¶ 11 2. Verdict
¶ 12 The trial court found defendant guilty on counts I, III, and V. The court stated it
was “not going to find guilt as to Count II of the information charging the exact same offense [as
count I].”
¶ 13 C. Sentencing
¶ 14 On January 24, 2014, the trial court conducted the sentencing hearing. A
presentence investigative report (PSI) was prepared for the hearing. The PSI indicated that in
addition to the two felony convictions that served as the basis for his Class X sentencing,
defendant had been convicted of four misdemeanors as an adult. He was sentenced to probation
-3-
three times and was successfully discharged only once. The State introduced the victim’s impact
statement, in which she stated that she had suffered a “severe concussion” and developed “a
slight stutter” as a result of the attack. Defendant presented the testimony of several character
witnesses as evidence in mitigation.
¶ 15 The trial court sentenced defendant to concurrent terms of 15 years’ imprisonment
on count I and 364 days in jail on counts III and V. In doing so, the court found no mitigating
factors applied while three aggravating factors did: (1) defendant’s “actions caused, or
threatened, serious harm”; (2) defendant’s “prior criminal history”; and (3) the “necessity for a
deterrence in this case.”
¶ 16 D. Postsentencing Proceedings
¶ 17 On February 11, 2014, defendant pro se filed a document that was captioned:
“Notice of Appeal.” In it, defendant stated, “I *** am filing this notice asking the courts to
appeal the conviction and sentence of case [No.] 13CF48 (Aggravated Domestic Battery). The
reasons I am asking for an appeal are as follows.” The “reasons” for defendant’s “Notice of
Appeal” consisted of multiple complaints about trial counsel’s performance.
¶ 18 A docket entry, entered on February 13, 2014, reads: “Court reviews
[defendant’s] pro se Notice of Appeal. On Court’s own [motion], cause set for Krankel hearing
***.” The court conducted a Krankel hearing the following month. There is no transcript of the
proceeding, but the relevant docket entry states, in part:
“Cause called for Krankel hearing on [defendant’s] pro se post-
trial [motion] filed in this cause claiming among other things
ineffective assistance of counsel. Pursuant to case law, the Court is
-4-
going to appoint [attorney] Kevin Hammer to [represent defendant]
for 2nd stage of non-evidentiary hearing in this cause.”
The next day, defense counsel withdrew his representation, and appointed counsel entered his
appearance. After requesting certain transcripts of proceedings, appointed counsel made the
following statement to the court: “Judge, in this case I was appointed by the Court. [Defendant]
has filed some motions. They may be post-conviction. I’m not sure exactly the nature [of the
motions].”
¶ 19 In June 2014, the trial court conducted what it termed a “2nd stage *** non-
evidentiary hearing” on defendant’s “Notice of Appeal.” The court characterized the proceeding
as a “second stage hearing on Defendant’s post trial motion seeking relief due to ineffective
assistance of counsel.” The court asked the State if it was “objecting to the Defendant’s motion
and claim[,]” and then asked appointed counsel whether he had “any argument as to why this
matter should proceed onto a third stage evidentiary proceeding[.]” After listening to the
arguments of the parties, the trial court dismissed “[d]efendant’s post trial motion.”
¶ 20 In March 2017, defendant filed a “petition for leave to file a late postconviction
[petition.]” The trial court granted defendant’s request, and, in September 2017, defendant filed a
postconviction petition. In it, he alleged that his right to appeal had been denied because he filed
a timely notice of appeal on February 11, 2014, which, he noted, was “actually headed ‘Notice of
Appeal,’ ” but the trial court “improperly mistook the motion for something other than what it
was labeled.” The court appointed postconviction counsel, and, at a status hearing on defendant’s
postconviction petition, counsel requested that defendant’s pro se “Notice of Appeal” filed on
February 11, 2014, “be considered a Notice of Appeal and that the appellate process start in the
normal, normal sense of what it would otherwise be even though we’re now several years later in
-5-
that regard.” The State did not object to counsel’s request, and the trial court ordered a late notice
of appeal be filed on defendant’s behalf.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant argues (1) the trial court failed to comply with the
requirements of Krankel and (2) his sentence is excessive.
¶ 24 A. The Trial Court Lacked
Jurisdiction to Conduct a Krankel Inquiry
¶ 25 Defendant argues the trial court failed to comply with the requirements of
Krankel. Specifically, defendant asserts the court conducted a proceeding that was more akin to a
second-stage dismissal hearing under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2016)), than the type of hearing required by Krankel.
¶ 26 Initially, we note the State contends it would be improper to reach the merits of
defendant’s argument because the trial court did not possess jurisdiction to consider his posttrial
claims, as those claims were contained within his notice of appeal, and the filing of the notice of
appeal divested the court of jurisdiction. In reply, defendant argues in the alternative either that
(1) the relevant document was not a notice of appeal, despite its caption and substance or (2) if it
was a notice of appeal, the trial court properly recharacterized it as a Krankel motion, thereby
retaining jurisdiction. We review jurisdictional questions, which are question of law, de novo.
See, e.g., People v. Richards, 394 Ill. App. 3d 706, 708, 916 N.E.2d 66, 68 (2009).
¶ 27 The supreme court, in Krankel and its progeny, developed a procedure intended
“to promote consideration of pro se ineffective assistance claims in the trial court and to limit
issues on appeal.” People v. Patrick, 2011 IL 111666, ¶ 41, 960 N.E.2d 1114. This procedure—
triggered by a defendant bringing a pro se posttrial claim of ineffective assistance to the court’s
-6-
attention—consists of two steps. People v. Moore, 207 Ill. 2d 68, 79, 797 N.E.2d 631, 638
(2003). First, the trial court must “conduct some type of inquiry into the underlying factual basis,
if any, of a defendant’s pro se posttrial claim of ineffective assistance of counsel.” Id. Then, “if
the allegations show possible neglect of the case, new counsel should be appointed.” Id. at 78.
“The new counsel would then represent the defendant at [a] hearing on the defendant’s pro se
claim of ineffective assistance.” Id.¶ 28 Because the Krankel procedure is a common law procedure, a trial court’s ability
to inquire into posttrial ineffective-assistance claims is not constrained by certain statutory
requirements, such as the 30-day filing deadline for a motion for a new trial. See Patrick, 2011
IL 111666, ¶ 30 (“[T]he State’s attempt to graft the statutory requirement in section 116-1(b) [of
the Code of Criminal Procedure of 1963 (725 ILCS 5/116-1(b) (West 2006))] onto a common
law remedy is fundamentally flawed.”). However, the supreme court has made it clear that a trial
court does not retain jurisdiction to entertain posttrial ineffective-assistance claims indefinitely,
noting “that once a notice of appeal has been filed, the trial court loses jurisdiction of the case
and may not entertain a Krankel motion ***.” Id. ¶ 39; see also People v. Bounds, 182 Ill. 2d 1,
3, 694 N.E.2d 560, 561 (1998) (“When the notice of appeal is filed, the appellate court’s
jurisdiction attaches instanter, and the cause is beyond the jurisdiction of the trial court.”).
¶ 29 In People v. Darr, 2018 IL App (3d) 150562, 95 N.E.3d 10, the issue was whether
a trial court retained jurisdiction to conduct a preliminary Krankel inquiry where its duty to do so
was triggered contemporaneously with the filing of a notice of appeal. There, the “defendant did
not raise his ineffectiveness claims before the notice of appeal was filed. In fact, he filed the two
contemporaneously, apparently as a single filing.” Id. ¶ 93. The trial court did not inquire into the
defendant’s claims, concluding that the notice of appeal divested it of jurisdiction. Id. ¶ 41. On
-7-
appeal, the defendant argued that the court had erred by not conducting a preliminary Krankel
inquiry. Id. ¶ 87. The Darr court disagreed, holding instead that “[w]hen [the] defendant filed his
notice of appeal, even contemporaneously with his ineffectiveness claims, he had perfected his
appeal and deprived the circuit court of jurisdiction.” (Emphasis added.) Id. ¶ 99. The Darr court
added that “[o]nce the notice of appeal was filed, the circuit court lost jurisdiction; had it
conducted any sort of Krankel inquiry at that point, any resulting ruling would be void.” Id. ¶ 93
(citing People v. Flowers, 208 Ill. 2d 291, 306, 802 N.E.2d 1174, 1183 (2003)).
¶ 30 Here, defendant filed, within 30 days of being sentenced, a single document,
captioned: “Notice of Appeal.” In the document, defendant stated, “I *** am filing this notice
asking the courts to appeal the conviction and sentence of case [No.] 13CF48 (Aggravated
Domestic Battery). The reasons I am asking for an appeal are as follows.” The “reasons”
consisted of multiple complaints about trial counsel’s performance. A docket entry, entered two
days after defendant filed this document, reads: “Court reviews Deft’s pro se Notice of Appeal.
On Court’s own mtn, cause set for Krankel hearing ***.”
¶ 31 Despite the document’s caption and substance, defendant appears to argue that his
filing on February 11, 2014, was not a notice of appeal. He makes the conclusory assertion that
“everyone’s understanding at the time” was “that the document was not a notice of appeal, but a
filing that triggered a Krankel inquiry ***.” Defendant’s assertion is not supported by the record.
First, the court’s docket entry states that it “review[ed] [defendant’s] pro se Notice of Appeal”; it
therefore appears that the court understood the document to be a notice of appeal but,
nonetheless, scheduled a Krankel hearing because the filing also raised posttrial claims of
ineffective assistance. In addition, appointed counsel stated to the court shortly after his
appointment, “[defendant] has filed some motions. They may be post-conviction. I’m not sure
-8-
exactly the nature [of the motions].” Finally, and importantly, defendant noted in his
postconviction petition—alleging he was denied his right to appeal—that the February 11, 2014,
filing was “actually headed ‘Notice of Appeal,’ ” but the court “improperly mistook the motion
for something other than what it was labeled.” (Emphasis added.) Thus, defendant previously
argued in the trial court that the document was in fact a notice of appeal. Now, however, he
contends “that the document was not a notice of appeal ***.” We reject defendant’s attempt to
change his argument on appeal and now characterize the relevant document as something other
than a notice of appeal. As explained in Darr, defendant, by raising his ineffective-assistance-of-
counsel claims in the notice of appeal, triggered Krankel at the exact moment—and not before—
he perfected his appeal, which consequently divested the trial court of jurisdiction to hear his
posttrial claims.
¶ 32 Defendant appears to argue in the alternative that even if he did raise his claims in
a notice of appeal, the trial court was empowered to recharacterize it as a Krankel motion
because doing so would have properly furthered Krankel’s purpose of limiting issues on appeal.
Defendant cites no authority in support of this proposition, and, while we agree that the trial
court’s actions were consistent with an intent to further Krankel’s purpose, trial courts do not
have the ability to circumvent jurisdictional limitations following the filing of a notice of appeal.
See, e.g., Keller v. Walker, 319 Ill. App. 3d 67, 70, 744 N.E.2d 381, 383 (2001) (“[S]ubject
matter jurisdiction cannot be waived, conferred by stipulation, or consented to by the parties.”).
Accordingly, because defendant failed to raise his posttrial claims of ineffective assistance prior
to filing a notice of appeal—raising them instead contemporaneously with his notice of appeal—
we conclude the trial court lacked jurisdiction to entertain them. See Patrick, 2011 IL 111666,
¶ 39 (“We note that once a notice of appeal has been filed, the trial court loses jurisdiction of the
-9-
case and may not entertain a Krankel motion raising a pro se claim of ineffective assistance of
counsel.”); Darr, 2018 IL App (3d) 150562, ¶ 99 (“When defendant filed his notice of appeal,
even contemporaneously with his ineffectiveness claims, he had perfected his appeal and
deprived the circuit court of jurisdiction.”).
¶ 33 B. Defendant Forfeited
His Excessive-Sentence Claim
¶ 34 Next, defendant contends his sentence is excessive because it was doubly
enhanced by the court’s improper reliance on a factor inherent in the offense. Defendant forfeited
this argument by failing to object at the sentencing hearing and raise the argument in a motion to
reconsider his sentence, but he asks us to review it under the second prong of the plain-error
doctrine because the court’s alleged error “impinged upon [his] fundamental right to liberty.”
¶ 35 “The plain-error doctrine is a narrow and limited exception.” People v. Hillier,
237 Ill. 2d 539, 545, 931 N.E.2d 1184, 1187 (2010). It allows us to consider a forfeited claim
when a defendant demonstrates, in the sentencing context, both that (1) “a clear or obvious error
occurred” and, in relevant part, (2) “the error was so egregious as to deny the defendant a fair
sentencing hearing.” Id. The defendant carries the burden of persuasion under both prongs of the
plain-error doctrine. Id. “If the defendant fails to meet his burden, the procedural default will be
honored.” Id. “The ultimate question of whether a forfeited claim is reviewable as plain error is a
question of law that is reviewed de novo.” People v. Johnson, 238 Ill. 2d 478, 485, 939 N.E.2d
475, 480 (2010).
¶ 36 Here, even assuming, arguendo, defendant can establish that the trial court
committed clear or obvious error by relying on an improper aggravating factor—which, as
briefly discussed below, we believe he cannot—we still would not excuse his forfeiture, as he is
unable to demonstrate that the error “was so egregious as to deny [him] a fair sentencing
- 10 -
hearing.” Hillier, 237 Ill. 2d at 545. Defendant’s lone effort to meet his burden consists of a
single sentence in his brief: “The trial judge’s express reliance on this improper factor impinged
upon [defendant’s] fundamental right to liberty, making this Court’s review appropriate under
the second prong of plain error.”
¶ 37 This court has consistently declined to apply plain-error review to sentencing
errors involving a misapplication of law simply because a defendant alleges that “the right to be
sentenced lawfully is substantial in that it affects a defendant’s fundamental right to liberty.”
People v. Rathbone, 345 Ill. App. 3d 305, 310, 802 N.E.2d 333, 338 (2003); see also, e.g.,
People v. Ahlers, 402 Ill. App. 3d 726, 734, 931 N.E.2d 1249, 1256 (2010) (declining to review
for plain error the claim that the trial court considered multiple improper factors in aggravation).
To do otherwise, we have reasoned, would be to essentially allow the plain-error doctrine to
swallow the rule of forfeiture. See Rathbone, 345 Ill. App. 3d at 311 (“If all matters related to a
‘misapplication of law’ at sentencing affect a defendant’s fundamental right to liberty and are
thus reviewable as plain error, then the plain-error exception essentially swallows the forfeiture
rule ***.”) (Emphasis in original.). Accordingly, we find defendant has failed to meet his burden
of demonstrating—merely by stating the court’s “reliance on [an] improper factor impinged upon
[his] fundamental right to liberty”—that the court’s error “was so egregious as to deny [him] a
fair sentencing hearing[,]” and, as a result, we honor his forfeiture. Hillier, 237 Ill. 2d at 545.
¶ 38 In closing, we note that defendant alternatively argues that both trial counsel and
appointed counsel rendered ineffective assistance by failing to file a motion to reconsider his
sentence on the ground that the court improperly relied on a factor—causing or threatening
serious harm—inherent in the offense of aggravated domestic battery based on strangulation. We
find this argument meritless, as a trial court is not prohibited from considering the harm caused
- 11 -
or threatened, even when it is inherent in the charged offense, if the degree of harm caused by a
defendant was greater than the minimum amount necessary to commit the offense. See People v.
Hibbler, 2019 IL App (4th) 160897, ¶ 67, 129 N.E.3d 755 (when considering whether to find
“serious harm” an aggravating factor, “the sentencing court compares the conduct in the case
before it against the minimum conduct necessary to commit the offense”).
¶ 39 Here, the harmful action inherent in the relevant offense was strangulation. 720
ILCS 5/12-3.3(a-5) (West 2012) (“A person who, in committing a domestic battery, strangles
another individual commits aggravated domestic battery.”). “Strangle,” in this context, “means
intentionally impeding the normal breathing or circulation of the blood of an individual by
applying pressure on the throat or neck of that individual or by blocking the nose or mouth of
that individual.” Id. Defendant did more than merely block the victim’s nose or mouth. The
victim testified that in addition to smothering her face with a pillow “over and over again,”
defendant also repeatedly punched her in the side and face “[w]henever the pillow was being
taken from [her] face ***.” The victim further stated that as a result of the attack, she suffered a
“severe concussion” and developed a stutter. Here, not only did defendant cause harm that was
greater than what was inherent in the offense, he caused separate, serious physical harm as a
result of his beating the victim. Thus, it was not improper for the court to consider that
defendant’s conduct caused or threatened serious harm as a factor in aggravation, and a motion
challenging defendant’s sentence on this basis would have been unsuccessful.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we affirm the trial court’s judgment.
¶ 42 Affirmed.
- 12 -