People v. Pellegrini

2019 IL App (3d) 170827Opinion filed August 23, 2019
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2019
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois.
Plaintiff-Appellee, )
)
v. ) Appeal No. 3-17-0827
) Circuit No. 13-CF-183
KENTON PELLEGRINI, )
) Honorable Robert C. Marsaglia,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Lytton and McDade concurred in the judgment and opinion.
OPINION
¶1 The State charged defendant, Kenton Pellegrini, by indictment with aggravated criminal
sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2012)), criminal sexual assault (id. § 11-
1.20(a)(1)), and aggravated domestic battery (id. § 12-3.3(a)). The charges stem from
allegations defendant forcefully inserted his fingers or hand into the vagina of the victim
without her consent, thereby causing harm. A bench trial ensued with Judge Robert C.
Marsaglia presiding.
¶2 The trial court found defendant guilty on all three counts. After exhausting posttrial
motion practice, the defendant filed a direct appeal renewing arguments presented in his
posttrial motions. This court affirmed defendant’s conviction. People v. Pellegrini, 2016 IL
App (3d) 150802-U.
¶3 Defendant then filed a petition pursuant to the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2016)), which advanced to a third-stage evidentiary hearing. The
petition alleged ineffective assistance of counsel for failure to present expert testimony. In
dismissing the petition, Judge Marsaglia found that defendant was not prejudiced by the lack
of expert testimony. Defendant appeals, arguing, inter alia, the dismissal was manifestly
erroneous. We affirm.
¶4 I. BACKGROUND
¶5 A. Bench Trial
¶6 This is the second appeal in this matter and, as such, we borrow from the statement of
facts in the direct appeal. See Pellegrini, 2016 IL App (3d) 150802-U, ¶¶ 4-45.
¶7 The victim testified at trial that she and defendant married in July 2001. The couple
discussed a divorce in late 2011 and by September 2013, the marriage was “rocky.” The
victim described the couple’s sex life in 2013 as “[n]ot good. Very infrequent.” Elaborating,
the victim stated, “I had basically just lost interest. I lost my feelings of love for him. Just the
way he treated me I thought was terrible and basically treated me like a tool, not even like a
person, no compassion. Just a rough marriage.” Defendant, however, had a high interest in
sexual intercourse and would pressure the victim daily.
¶8 On September 27, 2013, the victim and defendant attended a festival in Morris with their
neighbors, Richard and Kelly Mote. The victim did not plan on having sexual relations with
defendant that night. According to the victim, she had one beer around 8 p.m. before
defendant drove the group to the festival. She believed she consumed approximately six
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beers at the festival from 9 p.m. to 1 a.m. Defendant then drove the victim and the Motes
back to the Pellegrinis’ residence around 1 a.m. Around this time the victim began to feel
dizzy, nauseous, and was experiencing the effects of the alcohol.
¶9 The victim recalled vomiting in the backyard and being in a bathroom inside the house.
She did not remember leaving the bathroom. The next thing she could recall was being on
her bed alone with the lights on, wearing her clothes. After that, the victim remembered
defendant standing next to the bed, hovering over her, as he told her he wanted to have
sexual intercourse. The victim replied, “just leave me alone.” However, defendant removed
the victim’s pants and underwear. The victim told defendant, “No. Stop.” She began kicking
defendant and telling him to leave her alone. The victim pulled away and defendant pulled
her back several times. Defendant pushed and held the victim down on the bed. The victim
continued to kick and push defendant while he held her down. Defendant had his hands
cupped in such a way that the victim could not tell if he had something in his hands.
Defendant was “jabbing and pushing and poking his hands into [her].” The victim described
defendant’s action felt “like a stabbing or a punching, just a full force thrust with his hands,
both sides of [her] vagina, [while] saying to [her], ‘Here, take that. How does that feel? I’ll
do what I want to you tonight.’ ” The victim began screaming “Stop. Stop. What are you
doing? Why won’t you stop? Why won’t you stop?” The victim testified that she did not
consent to defendant’s actions.
¶ 10 While defendant continued to force his hand into the victim’s vagina, she became
nauseous and blood began “gushing” from the region. The victim felt like she had a bowel
movement and then began to vomit. Once the victim started bleeding, defendant left the
bedroom, grabbed towels, and started cleaning up the blood. Defendant did not call for help.
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While defendant was cleaning up the blood, the victim was screaming and crying. Defendant
then left the room.
¶ 11 When defendant was gone, the victim’s “flight or fight response kicked in.” She grabbed
a towel, wrapped it around her body, and ran out the front door of the house. She ran across
the street to the Motes’ residence, knocked on the front door, and began yelling for help.
However, the Motes did not answer the door before defendant came, grabbed the victim, and
carried her home. Defendant told her to “shut up, stop making a scene, come home, come
home.” The victim left blood on the Motes’ front doorstep. Defendant brought the victim
back to their front porch. The victim continued to fight off defendant, leaving blood and
feces on their front porch. Defendant brought the victim inside the house, placed her on an
ottoman in the entryway but did not call for emergency services. The victim continued to
scream because she was in pain and bleeding.
¶ 12 Subsequently, police and paramedics arrived. According to the victim, while the first
responders attended to her, she was hysterical and “kind of starting to black out a little bit[.]”
The victim spent four days in the hospital.
¶ 13 The victim testified that she spoke to Detective Alicia Steffes when she was released
from the hospital. She acknowledged telling Steffes that she did not recall how she returned
to the house from the Motes’ because she was getting to the point of “blacking out.”
¶ 14 On cross-examination, the victim admitted she did not remember many of the events
from that evening. For example, she acknowledged that she could not recall speaking to
Officer Jessica Smith (who was one of the first responders) and telling Officer Smith that
defendant was “too big” and “got stuck.” The victim also acknowledged she was unable to
recall some of the details of the festival or how she got to the backyard pool. However, she
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specifically remembered the time frame during the attack. According to the victim, “[f]rom
the time of the attack, the time I went to the hospital, I was 100 percent alert.”
¶ 15 Richard Mote testified that he and his wife attended the festival with the Pellegrinis. On
their way home from the festival, the victim mentioned going for a swim and went to the
backyard to turn on the pool heater. When the victim did not return, defendant and Richard
went outside to search for her. A video recording taken by Richard with his cellular phone
showed the victim sitting beside the pool. The video also showed defendant assisting the
victim into the home.
¶ 16 According to Richard, once inside, the victim went into the hallway bathroom. Sometime
later, Richard helped defendant open the bathroom door that was locked from the inside. The
men popped open the locked door and observed the victim was awake, sitting on the toilet
with her elbows on her knees and hands on her forehead. Defendant then led the victim into
the bedroom. Around 1:45 a.m., the Motes left the Pellegrinis’ residence.
¶ 17 Richard fell asleep at his home and was later awoken by a loud scream. He went outside
and heard a voice say, “get back in the house.” About five minutes after he heard the
screams, an ambulance arrived in the neighborhood.
¶ 18 Two neighbors that lived on the same street as the Pellegrinis also testified. Their sleep
was also interrupted by a female screaming in the middle of the night. They both called the
police.
¶ 19 Monty Allbert, a Morris police department sergeant, testified that he responded to a call
at 3 a.m. regarding a report of a female screaming. When Allbert arrived at the Pellegrinis’
residence, he made contact with defendant through the screen door and asked what was going
on. Defendant told Allbert that his wife was “wasted.” Allbert observed blood and feces on
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the front step of the porch and heard moaning from inside the home. Defendant asked Allbert
to call an ambulance but said Allbert could not come inside because his wife was naked.
¶ 20 Allbert asked defendant to step outside and questioned him about what happened.
Defendant explained they had gone out that night and that the victim “got drunk, and they
came home and bam, she started bleeding.” Allbert entered the home and spoke to the victim.
She told him, “[defendant] did this to me.” When Allbert asked what defendant had done, the
victim stated she did not know.
¶ 21 Officer Jessica Smith arrived and entered the house. Smith observed the victim bleeding
profusely. The victim repeated that “[defendant] did this to me.” According to Smith,
defendant tried to enter the house and comfort the victim, but the victim told Smith to keep
defendant away from her. Smith also overheard the victim tell the paramedics who had
arrived, “he was too big and he got stuck.”
¶ 22 Nurse Savannah Jones treated the victim at Morris Hospital. When the victim arrived at
the hospital, she was conscious, alert, and talking. However, Jones stated that the victim’s
condition was serious and became critical due to the amount of bleeding. Jones asked the
victim what had happened. The victim stated she and defendant had been drinking at a
festival and then returned home. Defendant wanted to have sexual intercourse with the
victim, but the victim did not. Defendant then tried to “jam” something into her vagina. The
victim was not certain what defendant had tried to force into her.
¶ 23 Dr. Sean Atchinson treated the victim in the emergency room. Initially, Atchinson could
not stop the victim’s bleeding. He explained, “I essentially had a patient that I thought was
potentially bleeding to death in front of me.” On cross-examination, Atchinson stated that
based on the blood alcohol test he ordered, the victim’s blood alcohol content was .15 and
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would be considered an “elevated level.” On redirect, the prosecution clarified that the
hospital conducts blood serum testing for alcohol content and not whole blood testing; as is
done for compliance with the driving under the influence (DUI) standard of .08. In
comparing the two, Atchinson noted the blood serum amount would have to be reduced
anywhere from 12 to 22% to be used as a whole blood result for placement on the commonly
recognized DUI scale. The prosecution averred that such a conversion would result in a
whole blood alcohol content of .11 to .12; Atchinson agreed.
¶ 24 Dr. Leticia Setrini-Best (Best) performed surgery on the victim. Best observed tears on
both sides of the victim’s vagina approximately eight centimeters long and about two
centimeters deep. According to the doctor, no normally occurring medical condition would
explain the injuries observed. Best described the victim’s injuries as life threatening and
believed that a large fist could have caused the injuries. She had observed similar injuries in a
difficult, instrumented vaginal delivery. However, she opined the victim’s injury was not
caused by a sex toy or “rough sex.” Further, Best stated the victim’s injuries were not the
result of routine sexual acts. Instead, the victim’s injuries were caused by a tremendous
amount of force.
¶ 25 Best also testified she was aware of, and disagreed with the opinion from medical defense
expert, Dr. Brian Locker, that due to the victim’s perimenopausal state, she was more
susceptible to vaginal injury. According to Best, based on her observations of the tissues in
question, she believed the victim was healthy, well estrogenized, and showed no signs of
atrophic vaginitis.
¶ 26 Allbert interviewed defendant at the Morris police station. Defendant initially told Allbert
he had carried the victim to their bed when she began bleeding. Later in the interview,
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however, defendant claimed he had used a sex toy and his fingers to initiate foreplay with the
victim. A video recording of the interview was admitted into evidence and presented at trial.
¶ 27 Defendant testified at trial. According to defendant, when he entered the bedroom on the
night of the incident, he observed the victim leaning back against the headboard of the bed.
Defendant began rubbing her back and legs and fondling her vagina. The victim did not tell
defendant to stop or state that she was feeling ill. Defendant and the victim kept a sex toy on
either side of the bed in a drawer. Defendant began using the sex toy on the victim for
approximately 30 seconds. He stopped when the victim pushed his hand away. He interpreted
the victim’s action as her wanting him to use his hand, rather than the sex toy. Defendant
then lubricated his fingers with A+D ointment and “slowly” inserted his fingers into the
victim’s vagina. Defendant denied that he forcefully inserted his fingers into the victim and
denied that she screamed, told him to stop, kicked, punched, or pushed him.
¶ 28 Defendant claimed that when the victim pushed back against him, she lunged forward,
and he saw two “chunks” of blood come out of the victim’s vagina and onto his hand. He
grabbed a towel from the bathroom and used it to stop the bleeding. Defendant thought the
bleeding had stopped and went back to the bathroom. When he returned to the bedroom, the
victim was gone.
¶ 29 Defendant found the victim running toward the Motes’ residence without a shirt or pants.
He saw her holding onto the door handle of the Motes’ home with one hand and banging on
the door with the other hand. Defendant carried the victim over his shoulder and returned to
their home. He noticed the victim was still bleeding.
¶ 30 Dr. Brian Locker testified for the defense. Locker reviewed the victim’s treatment records
at Morris Hospital and all the police reports. Locker had observed injuries like the victim’s
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on hundreds of occasions, usually in situations of natural child birth. Locker stated the
victim’s injuries could occur in a nonvaginal birth situation. He gave two specific examples
of such situations: a woman falling into a manhole cover and a jet ski accident.
¶ 31 Locker asserted that in his opinion, the victim’s injury was the result of the combination
of defendant inserting his three fingers beyond the knuckles into the victim’s vagina and her
vagina being less elastic. He believed the victim was more susceptible to vaginal injury
because she was premenopausal or perimenopausal and from dehydration caused by alcohol
consumption.
¶ 32 Ultimately, the trial court found defendant guilty of all charges. Defendant filed a motion
for judgment of acquittal or, in the alternative, a new trial. After hearing arguments, the trial
court first rejected defendant’s argument that the evidence was insufficient to prove his guilt.
The trial court then rejected defendant’s alternative argument that trial counsel was
ineffective for failing to support Locker’s trial testimony by way of medical records. In
particular, the trial court found defendant was not prejudiced by counsel’s performance. The
trial court sentenced defendant to a term of eight years’ imprisonment.
¶ 33 B. Direct Appeal
¶ 34 On direct appeal, defendant renewed his arguments that the evidence provided at trial was
insufficient to prove him guilty beyond a reasonable doubt and he received ineffective
assistance of counsel. Pellegrini, 2016 IL App (3d) 150802-U, ¶ 2. In affirming defendant’s
sentence, a panel of this court found that the evidence was sufficient to prove defendant had
committed the offense convicted of and that defendant was not prejudiced by the lack of
corroborating records. Id. ¶¶ 58, 63. In a footnote, the court noted that neither party had
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addressed whether the victim’s level of intoxication impacted the issue of consent. Id. ¶ 49 n.
2.
¶ 35 C. Postconviction Proceedings
¶ 36 Thereafter, defendant filed a postconviction petition. Defendant, in his petition, alleged
that the victim’s whole blood alcohol level was much higher than the State had suggested at
the time of the incident. He also argued that trial counsel was ineffective for failing to retain
expert testimony regarding his wife’s intoxication and her correlating ability to accurately
and/or reliably testify about the incident.
¶ 37 The proceedings advanced to a third-stage evidentiary hearing. Judge Marsaglia, again,
presided. At the hearing, Dr. Patrick Lank, a board-certified physician in medical toxicology,
testified that based on his calculations, taking all relevant circumstances into account, the
victim’s whole blood alcohol range was equivalent to .193 to .230 between 2:40 and 3 a.m.
on the morning of the incident—not .11 to .12 as previously thought.
¶ 38 Dr. Kim Fromme, a professor of clinical psychology, testified as an expert witness for
defendant in the field of alcohol intoxication and its effects on various processes including
memory. Fromme testified that alcohol impacts the transfer of short-term memory into long-
term memory. She further explained that when an alcohol-induced blackout occurs, subjects
will create a narrative in an attempt to fill gaps in their memory. She stated that a subject can
fill gaps by referring to things that they have read about, experienced in the past, or been told
about. She admitted that a third party cannot tell if someone else is suffering an alcohol-
induced blackout because one cannot see into another’s mind. However, in Fromme’s
opinion, the victim experienced alcohol-induced blackouts on the evening and early morning
in question. This opinion was based on the victim not being able to remember which
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bathroom she had locked herself in, why she was there, or how she got out of the bathroom.
Fromme then pointed to specific examples of what she believed was the victim filling gaps in
her memory by borrowing from statements of others. She further opined, “consistent with the
science of alcohol-induced blackout, gaps in memory, efforts to construct a narrative based
on past experience, what people have told you, how you think about yourself and others, and
the evolution we saw of her description of the events of the night[,] *** [the victim’s]
recollections are unreliable.”
¶ 39 Dr. David Hartman, a clinical and forensic neuropsychologist, testified for the State in
rebuttal. He opined that Fromme’s training was academic in nature and not in any area
related to clinical diagnosis. Thus, since Fromme was not licensed as a clinical psychologist,
she was unable to make a clinical or medical diagnosis. He claimed there were fatal errors in
Fromme’s logical reasoning and potential ethical violations due to her diagnosis of the victim
without a license. Hartman disagreed that the victim had constructed her memory of the
incident from other memories. He stated that Fromme’s own published research contradicted
the testimony she had given and that it was error for Fromme not to consider that the victim
had gaps in her memory due to massive blood loss and the sexual assault. Essentially,
Hartman’s testimony was that “there was virtually nothing in [Dr. Fromme’s report] that was
correct from a scientific and clinical standpoint[.]”
¶ 40 The circuit court, in its written order, found that the defendant was not prejudiced by the
lack of “blackout” testimony. The testimony of the experts was thoroughly summarized in
the order. The court found that while defendant had shown the victim was more intoxicated
than initially thought, it was clearly established during the bench trial that the victim was
severely intoxicated. The court stated, “This Court, like all courts hears multiple cases and
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much testimony by and from witnesses who have drank alcohol to excess or observed others
who had drank alcohol to excess.” The victim’s testimony was found to be credible while
defendant’s was found to be incredible. The court went on to cite testimony that corroborated
the victim’s and stated, “[t]his Court has now heard the alcohol blackout testimony and finds
that it would not have changed the verdict.” It noted, “Dr. Fromme’s testimony that this
particular witness suffered an alcohol blackout is not consistent with the actions and
statements of the victim immediately after the incident in question.” (Emphasis in original.)
¶ 41 This appeal followed.
¶ 42 II. ANALYSIS
¶ 43 Defendant argues on appeal that: (1) the decision to dismiss his postconviction petition
after the third-stage evidentiary hearing was manifestly erroneous; (2) the circuit court
applied the wrong standard in analyzing his ineffective assistance of counsel claim; and (3)
he was denied due process of law when the trier of fact interjected personal knowledge into
the final determination.
¶ 44 A. Dismissal of Postconviction Petition
¶ 45 Defendant contends that the circuit court’s dismissal after the third-stage evidentiary
hearing was manifestly erroneous. The State argues defendant’s claims are barred by res
judicata and forfeiture. In the alternative, the State claims defendant was provided effective
assistance of counsel.
¶ 46 Initially, the State alleges that it has forfeited its res judicata and forfeiture arguments
because they are affirmative defenses that were not asserted below citing People v. Blair, 215
Ill. 2d 427, 440 (2005). The State then proceeds to claim that such forfeiture is only a bar on
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the parties and not a limitation on the court, citing In re Madison H., 215 Ill. 2d 364, 371
(2005). These assertions are fallacious.
¶ 47 In the arena of postconviction petitions, forfeiture and res judicata are not affirmative
defenses at the trial court level. See Blair, 215 Ill. 2d at 440 (“[forfeiture] and res judicata,
while generally deemed to be affirmative defenses like timeliness, can be characterized for
purposes of the Act as being integral to the substantive merits of the petition.”). Black’s Law
Dictionary defines “affirmative defense” as an “assertion raising new facts and arguments
that, if true, will defeat the [defendant’s] claim, even if all allegations in the [petition] are
true.” Black’s Law Dictionary 430 (7th ed. 1999). Blair makes it evident that the
aforementioned doctrines are substantive considerations the trial court must contemplate
when determining whether a defendant’s petition asserts the gravamen of a constitutional
claim—not assertions that must be advanced by the State. Blair, 215 Ill. 2d at 445. While the
doctrines can be asserted at the second stage as defenses, failure to do so does not constitute
forfeiture, nor does it preclude the assertion of the doctrines for the first time on appeal. See
id. at 450, 456 (noting the State had not indicated that it wished to forgo the defenses of res
judicata and forfeiture on appeal). The State has not forfeited these arguments.
¶ 48 Turning to the State’s averment that “forfeiture is a limitation on the parties and not the
courts.” The citation to Madison H. for this proposition shows a shallow understanding of
what our supreme court in that case actually said and what the court has pronounced since. In
Madison H., our supreme court found unique factual circumstances not present here that
allowed forfeiture to be overlooked in the interest of reaching a just result. Madison H., 215
Ill. 2d at 371. In Jackson v. Board of Election Commissioners of City of Chicago, the court
admonished reviewing courts that the oft-cited proposition does not abrogate standard waiver
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and forfeiture principals and “should not be a catchall that confers upon reviewing courts
unfettered authority to consider forfeited issues at will.” Jackson, 2012 IL 111928, ¶ 33. The
State’s overbroad assertion ignores this admonishment.
¶ 49 Finding no forfeiture, we now dispose of the State’s contention that res judicata and
forfeiture apply. Issues previously raised on direct appeal are barred from postconviction
consideration by the doctrine of res judicata, and those issues that could have been raised,
but were not, are considered forfeited. People v. Williams, 209 Ill. 2d 227, 233 (2004).
However, the doctrines of res judicata and forfeiture will be relaxed when one of the
following three circumstances is present: (1) where fundamental fairness so requires; (2)
where the forfeiture stems from the ineffective assistance of appellate counsel; or (3) where
facts relating to the claim do not appear on the face of the original appellate record. People v.
English, 2013 IL 112890, ¶ 22; Blair, 215 Ill. 2d at 450-51.
¶ 50 Defendant’s postconviction petition was wholly based on information absent from the
original appellate record, and thus could not have been raised on direct appeal. For a
reviewing court to engage in a meaningful review of whether failing to call an expert witness
constituted ineffective assistance of counsel, the testimony of the expert would undoubtedly
prove helpful to the disposition of the claim. See People v. Veach, 2017 IL 120649, ¶¶ 46-47
(noting ineffective assistance of counsel claims may be better suited to collateral proceedings
when the record is incomplete or inadequate for resolving the claim). Three separate doctors
testified regarding matters that were not heard during the bench trial. Therefore, it was proper
to bring such a claim on collateral review rather than on direct appeal. See People v. Ligon,
239 Ill. 2d 94, 105 (2010) (where record is insufficiently developed to assess counsel’s
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effectiveness, an ineffective assistance claim is properly brought in collateral proceedings,
not direct appeal).
¶ 51 Next, we turn to defendant’s claim that the dismissal of his postconviction petition
alleging ineffective assistance of counsel was manifestly erroneous. The Act (725 ILCS
5/122-1 et seq. (West 2016)) provides a three-stage process for defendants who allege a
substantial deprivation of their constitutional rights. People v. Cotto, 2016 IL 119006, ¶ 26.
A postconviction proceeding is a collateral attack on the trial court proceedings. People v.
Johnson, 191 Ill. 2d 257, 268 (2000). In this case, the petition advanced to a third-stage
evidentiary hearing. See 725 ILCS 5/122-6 (West 2016). Following an evidentiary hearing
where fact-finding and credibility determinations are involved, the circuit court’s decision
will not be reversed unless it is manifestly erroneous. People v. Beaman, 229 Ill. 2d 56, 72
(2008). Here, the court heard witnesses and made credibility determinations at the third-stage
evidentiary hearing. Accordingly, the standard of review is whether the ruling was manifestly
erroneous. See People v. Ortiz, 235 Ill. 2d 319, 333 (2009) (stating manifest error exists
when the error is clearly evident, plain, and indisputable).
¶ 52 Claims of ineffective assistance of counsel presented in a postconviction petition are
judged under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668(1984), and adopted by People v. Albanese, 104 Ill. 2d 504 (1984). The petitioner must show
(1) counsel’s performance was deficient and (2) that the deficient performance prejudiced the
defendant. Strickland, 466 U.S. at 687-88; People v. Brown, 236 Ill. 2d 175, 185 (2010). A
reviewing court need not “determine whether counsel’s performance was deficient before
examining the prejudice suffered” by defendant. Strickland, 466 U.S. at 697.
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¶ 53 The circuit court, in the written order, found “[d]efendant was not prejudiced by the lack
of blackout intoxication evidence.” In establishing prejudice, a defendant must show there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. People v. Haynes, 192 Ill. 2d 437, 473 (2000). “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”
Id. (quoting Strickland, 466 U.S. at 694).
¶ 54 The court’s finding that the defendant could not satisfy the second prong of Strickland
was not manifestly erroneous. As the court stated, it was established at trial that the victim
“had drank to excess, had become woozy and dizzy, and vomited as a result of the excess
intake of alcohol.” This was memorialized in the credibility findings. Further, the victim’s
testimony was not the sole testimony weighed by the court during the bench trial. The circuit
court, in its written order, found that Dr. Best’s testimony supported the victim’s assertions.
Moreover, defendant’s testimony was found to be “inconsistent” and “incredible” based upon
contradictions by other witnesses.
¶ 55 In analyzing this issue, we find it intriguing defendant has decided to argue the victim
“blacked out” during the incident, especially when his defense during the bench trial was that
the victim had consented to the sexual conduct. While succeeding in proving the victim was
more intoxicated than initially assumed (.193 to .230 whole blood alcohol content compared
to .11 to .12), it is important to realize that such an argument is two-fold. A realization of the
gravity of such an argument would be informative as to why the panel in the direct appeal
included the footnote stating neither side had argued the impact intoxication had on the
victim’s ability to give consent. Pellegrini, 2016 IL App (3d) 150802-U, ¶ 49 n. 2. While
establishing a “blackout” may impact the credibility of the victim’s testimony, it would
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clearly prevent her from consenting to any sexual act perpetrated upon her by the defendant.
See People v. Brown, 2013 IL App (2d) 110303, ¶ 52 (finding criminal sexual assault statute
places no limitation on the reason for the victim’s inability to give knowing consent); cf.
People v. Roldan, 2015 IL App (1st) 131962, ¶¶ 21-23 (finding a lack of evidence that victim
was in a “blackout” state precluded the trial court from concluding she could not knowingly
consent). As the State points out, one of the main issues in the bench trial was whether the
victim consented to sexual conduct with defendant. Establishing the victim could not have
knowingly given consent to the sexual conduct in question by being so intoxicated she
“blacked out,” only solidifies the conclusion that there is no reasonable probability the result
of the proceedings would have been different. Such testimony at the original trial would have
only buttressed the conviction of defendant.
¶ 56 Defendant goes on to argue that the prosecution at the original trial was waiting for, and
was prepared to respond to, the expert testimony regarding the intoxication of the victim.
This is not remarkable. In presenting this testimony, defendant would have essentially
performed the function of the prosecution by showing the victim was incapable of consent,
undermining his own defense. At the very least, what the prosecution was likely lying in wait
with was an objection that Locker was not qualified to opine on the reliability of the victim’s
testimony. At most, the prosecution was prepared to present evidence of defendant’s
particular knowledge of the victim’s inability to give knowing consent. See Roldan, 2015 IL
App (1st) 131962, ¶ 19 (noting the focus is on what the defendant knew or reasonably should
have known regarding the victim’s willingness or ability to give knowing consent); see also
720 ILCS 5/4-5 (West 2012) (“Knowledge of a material fact includes awareness of the
substantial probability that the fact exists.”); People v. Ortiz, 196 Ill. 2d 236, 260 (2001)
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(stating knowledge is often proven by circumstantial evidence, but the State must present
sufficient evidence from which an inference of knowledge can be made).
¶ 57 Here, defendant knew his wife was extremely intoxicated or at least was aware of the
substantial probability that she was. This is laid bare by the facts presented during the bench
trial. The victim vomited in the backyard when the group returned home from the festival.
The victim then had to be assisted inside the home. Later, the victim locked herself in the
bathroom from which she had to be extricated and then assisted to the bedroom. In
explaining the situation to Sergeant Allbert, defendant stated the victim was “wasted” and
that she was “drunk” from when they went out that evening. The defendant had numerous
reasons to believe the victim was unable to give consent and should have abstained from
engaging in any sexual contact with her. See Roldan, 2015 IL App (1st) 131962, ¶ 19. Had
defendant’s trial counsel presented the “blackout” testimony, defendant would likely be
arguing that doing so was ineffective assistance of counsel. Accordingly, the circuit court’s
decision was not manifestly erroneous.
¶ 58 Defendant also avers the lower court misapplied Strickland in analyzing his ineffective
assistance of counsel claim. In addition to stating the defendant was not prejudiced by the
lack of “blackout” testimony, the court also stated, “[t]his Court has now heard the alcohol
blackout testimony and finds that it would not have changed the verdict.” As previously
discussed, the defendant need not convince the court that the verdict would have been
different but need only show a reasonable probability that the outcome would be different.
Supra ¶ 54. However, it is the judgment of the circuit court, not its reasoning that is on
appeal. We may affirm judgment “upon any ground warranted, regardless of whether the
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lower court relied on it” even if we conclude that the court’s reasoning was incorrect. People
v. Everette, 141 Ill. 2d 147, 158-59 (1990).
¶ 59 As described above, the absence of the “blackout” testimony was not prejudicial.
Moreover, the failure by defense counsel to introduce expert testimony that the victim
“blacked out” when defendant’s sole defense at trial was consent did not constitute deficient
performance. Because our review reveals defendant cannot meet either prong of Strickland, it
is of no consequence whether the court below misstated the standard.
¶ 60 In relation to this argument, defendant also argues the trial court erred in assuming that it
would act as the future finder of fact when applying the Strickland standard. Conspicuously,
defendant cites no authority in support.
¶ 61 At a third-stage evidentiary hearing, the court serves as the finder of fact. People v.
Domagala, 2013 IL 113688, ¶ 34. “[T]herefore, it is the court’s function to determine witness
credibility, decide the weight to be given testimony and evidence, and resolve any
evidentiary conflicts.” Id. “[T]he circuit court must determine whether the evidence
introduced demonstrates that the petitioner is, in fact, entitled to relief.” Id. Defendant’s
argument on this point is without merit. The trial court did not err in dismissing defendant’s
postconviction petition.
¶ 62 B. Due Process of Law
¶ 63 Defendant argues that he was denied due process of law when the circuit court interjected
personal knowledge into the final determination of his postconviction petition. The State
argues the record belies this assertion.
¶ 64 A determination made by a trial judge based upon private investigation or private
knowledge, untested by cross-examination or the rules of evidence, may result in the
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deprivation of due process of law. People v. Wallenberg, 24 Ill. 2d 350, 354 (1962); People
v. Cunningham, 2012 IL App (3d) 100013, ¶ 14. “Due process does not permit [a trial judge]
to go outside the record, except for matters of which a court may take judicial notice, or
conduct a private investigation in a search for aids to help him make up his mind about the
sufficiency of the evidence.” People v. Yarbrough, 93 Ill. 2d 421, 429 (1982). “A trial judge
does not operate in a bubble; [he] may take into account [his] own life and experience in
ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963 (2007). Reversal is only
necessary when a trial court’s reliance on matters outside the record is prejudicial to one of
the parties. People v. Banks, 102 Ill. App. 3d 877, 882 (1981). Consequently, “[r]eliance on
information found [outside] the record is not reversible error where there is no evidence that
it either misled or entered into the trial court’s determination.” Id. A trial court will be
accorded every presumption it considered only admissible evidence in reaching a conclusion.
Wallenberg, 24 Ill. 2d at 354. “This assumption will be overcome only if the record
affirmatively demonstrates the contrary, as where it is established that the court’s finding
rests on a private investigation of the evidence, or on other private knowledge about the facts
in the case.” People v. Tye, 141 Ill. 2d 1, 26 (1990). Whether a defendant’s due process rights
were violated is reviewed de novo. People v. Guzman, 2015 IL 118749, ¶ 13.
¶ 65 Defendant contends that when the court stated, “This Court, like all courts hears multiple
cases and much testimony by and from witnesses who have drank alcohol to excess or
observed others who had drank alcohol to excess[,]” it relied on its own personal opinion and
matters outside the record. Defendant analogizes his situation to People v. Wallenberg, 24 Ill.
2d 350.
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¶ 66 In Wallenberg, the defendant testified his truck had a flat tire. Id. at 352. As he traveled
down a stretch of road, he was unable to find a gas station. Id. at 353. The trial court, in
declaring its judgment, remarked that, although the defendant stated that he found no gas
stations along that stretch, “I happen to know different. I don’t believe his story.” Id. at 354.
However, no evidence contradicting the defendant’s testimony was in the record. Id. Our
supreme court found the trial court improperly made a determination based upon its private
knowledge instead of on the record before it. Id. Therefore, the presumption that the trial
court considered only admissible evidence was rebutted. Id.¶ 67 The instant case is distinguishable from Wallenberg. Unlike Wallenberg, the comment
here was innocuous and did not form the basis of the court’s finding. When the remark is
viewed within the context of the entire opinion, it takes on the character of a benign comment
which did not form the basis of the court’s conclusion. We agree with the State that
defendant’s argument finds no support in the record. The circuit court’s written order showed
that it thoroughly analyzed Fromme’s testimony about the victim’s intoxication and mental
capacity, as well as Lank’s testimony about the extrapolation of the victim’s blood alcohol
content. While defendant established the victim’s whole blood alcohol level was higher than
what was posited during the bench trial, the circuit court reiterated it was aware the victim
had consumed alcohol to excess and exhibited certain symptoms as a result. The court still
found the victim testified credibly about the specific facts pertaining to the incident and
found defendant’s testimony incredible. The court did not resort to its own personal
knowledge and clearly pointed to corroborating testimony that supported the victim’s
testimony. A general proclamation regarding the fact that it is common for judges to hear
testimony from witnesses that had consumed alcohol in excess, or observed others who had,
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is not sufficient to rebut the presumption only admissible evidence was considered. The
comment by the circuit court was not error and did not prejudice the defendant. Accordingly,
defendant was not deprived his right to due process.
¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, we affirm the judgment of the circuit court of Grundy County.
¶ 70 Affirmed.
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