The opinion
NOTICE 2020 IL App (4th) 180681-U
This order was filed under Supreme
FILED
Court Rule 23 and may not be cited NO. 4-18-0681 November 23, 2020
as precedent by any party except in Carla Bender
the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate
under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
KEVIN ORLANDO THORNTON, ) No. 18CF356
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court.
Justices Knecht and Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding (1) the State proved defendant guilty beyond
a reasonable doubt, (2) the assistant state’s attorney did not commit prosecutorial
misconduct, (3) defendant did not receive ineffective assistance of counsel, and
(4) the trial court did not err by refusing to appoint defendant new counsel.
¶2 In July 2018, a jury found defendant, Kevin Orlando Thornton, guilty of armed
violence, a Class X felony (720 ILCS 5/33A-2(a) (West 2016)), and being an armed habitual
criminal, a Class X felony (720 ILCS 5/24-1.7(a) (West 2016)). Between conviction and
sentencing, defendant alleged trial counsel rendered ineffective assistance by failing to call two
witnesses he believed could disparage the victim’s credibility. Following multiple Krankel
hearings (People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)), the trial court found
defendant’s claims lacked merit and declined to appoint new counsel. Defendant then opted to
proceed pro se in the sentencing phase. After an October 2018 sentencing hearing, the trial court
sentenced defendant to 18 years in the Illinois Department of Corrections (DOC) followed by 3
years’ mandatory supervised release (MSR). Defendant filed various posttrial motions, which the
trial court denied.
¶3 On appeal, defendant challenges his conviction on four grounds: (1) the State
failed to prove him guilty beyond a reasonable doubt of armed violence; (2) the assistant state’s
attorney committed prosecutorial misconduct by misrepresenting evidence during closing
arguments; (3) defense counsel rendered ineffective assistance by not moving to sever the
occurrence offenses from the status offenses; and (4) the trial court erred by refusing to appoint
defendant new counsel after several Krankel inquiries. We disagree and affirm the trial court’s
judgment.
¶4 I. BACKGROUND
¶5 On April 8, 2018, F.N. invited defendant to her apartment where they engaged in
consensual sexual activity. When defendant asked F.N. to perform oral sex, she did not verbally
answer yes or no; instead, she stood up and left the room. F.N. soon returned and found
defendant sitting on a folding chair with a shirt covering his penis and right hand. She removed
the shirt from defendant’s lap and saw him holding a gun. She testified she “started crying. And I
said, Oh, my Lord Jesus ***.” As she backed away from defendant, he reassured her that he was
not going to hurt her. But F.N. thought defendant “looked weird,” so she “just ran, took off for
[the] back door.” As F.N. retreated, defendant grabbed her neck and arm, but she maneuvered
him out the door. During the altercation, F.N. testified she said, “No. No. No. That’s all I could
say.” With defendant now out of the apartment, F.N. locked the doors, called a family member,
and then called the police.
¶6 When officers arrived at the scene, they found defendant nude and hiding in the
indoor common area near F.N.’s apartment. One officer saw the handle of a gun poking out from
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under a floor mat outside F.N.’s backdoor. Once inside the apartment, officers found a neoprene
gun holster inside a gym shoe by a folding chair. The officers secured the scene, retrieved
defendant’s clothes from the apartment, and took him to a squad car for interrogation. Defendant
denied knowing anything about the gun. He said he never had the gun and he saw F.N. messing
with the floor mat. Meanwhile, F.N. provided police conflicting statements about that evening’s
events.
¶7 David Ashbeck, a crime scene detective in the Bloomington Police Department,
processed and examined the gun found outside F.N.’s back door—a Smith & Wesson .38-caliber
revolver. Ashbeck observed the gun was loaded with five rounds of ammunition. He swabbed the
gun handle and trigger to collect deoxyribonucleic acid (DNA), but the State did not submit the
swab for testing. Ashbeck found no fingerprints on the gun or the ammunition.
¶8 Based on the events of April 8, 2018, the State charged defendant by way of a bill
of indictment with six counts: (1) attempt aggravated criminal sexual assault, a Class 1 felony
(720 ILCS 5/8-4 (West 2016)); (2) attempt criminal sexual assault, a Class 2 felony (720 ILCS
5/8-4 (West 2016)); (3) unlawful possession of a weapon by a felon, a Class 3 felony (720 ILCS
5/24-1.1(a) (West 2016)); (4) intimidation, a Class 3 felony (720 ILCS 5/12-6(a)(1) (West
2016)); (5) armed violence, a Class X felony (720 ILCS 5/33A-2(a) (West 2016)); and (6) being
an armed habitual criminal, a Class X felony (720 ILCS 5/24-1.7(a) (West 2016)). The State
eventually dropped count I before trial and proceeded on the remaining counts.
¶9 Immediately before trial, however, defendant informed the trial court he believed
his “attorney [was] providing [him] with ineffective assistance of counsel.” Specifically,
defendant alleged counsel was “not investigating the witnesses that I have provided to him that
will testify to the last victim’s drug use and credibility and believability.” Defendant identified
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the potential witnesses as Chad Wheeler and Carsell Jackson. Concerning Wheeler, defense
counsel stated defendant gave him Mr. Wheeler’s name the day before, so he had little time to
consider Wheeler as a witness. Nevertheless, counsel decided not to call him as a witness for
several reasons, including: Wheeler’s attorney would not allow defense counsel to talk to
Wheeler about drug use while he faced drug charges in a different case, Wheeler had no personal
knowledge of the events on April 8, 2018, and even if Wheeler could testify, he would have to
do so while wearing a jail jumpsuit. As for Jackson, defense counsel reported he learned about
Mr. Jackson just the day prior as well. He gave the same reasons for not using Mr. Jackson as a
witness: Jackson’s attorney would not permit counsel to talk to him, Jackson had “minimal
probative evidence,” and Jackson would have to testify while wearing a jail jumpsuit. After
hearing defendant’s claims and counsel’s responses, the court allowed defendant to confer with
defense counsel in private to talk about the case. When they returned to the courtroom, defendant
informed the court: “Me and Mr. Lewis we talked and we’re fine and we want to proceed with
trial as set.” The court clarified, “So you want to keep the trial set for this coming Monday?” and
defendant answered, “Yes, sir.”
¶ 10 In its case-in-chief, the State presented testimony from F.N., officers who
responded to the scene, and the crime scene detective. The State submitted various exhibits,
including the recorded statement defendant gave police while sitting in the squad car. While
cross-examining one of the officers, defendant introduced one exhibit, a video of F.N. giving a
statement in the police cruiser. The defense then moved for a directed verdict on all counts,
which the trial court denied. Defendant chose not to testify and the defense presented no
evidence.
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¶ 11 During closing arguments, without objection from the defense, the State
suggested the interactions between F.N. and defendant went awry after she “said no” to
defendant’s request for oral sex. The State asked for convictions on all counts. Defense counsel,
by contrast, argued for acquittal because the victim’s testimony was inconsistent and not
credible. The jury found defendant guilty on all five counts.
¶ 12 After the jury verdict but before sentencing, the defense submitted two posttrial
motions. In July 2018, defense counsel filed a motion for judgment of acquittal notwithstanding
the verdict, or in the alternative, motion for new trial, arguing the trial court committed several
errors during the trial. In August 2018, defendant filed pro se a separate motion for a new trial,
alleging defense counsel provided him ineffective assistance.
¶ 13 The trial court held another Krankel hearing in September 2018, where defendant
recounted many errors he believed defense counsel committed during trial, like answering “ready
for trial” after only one day of preparation, not calling Wheeler or Jackson as witnesses, not
tendering certain jury instructions, not impeaching F.N. on cross-examination, and stipulating
defendant was an armed habitual criminal—among several other errors. Defense counsel
responded to defendant’s claims. After listening to defendant’s complaints for more than 2 hours
and 15 minutes, the court concluded defendant’s claims lacked factual bases, labeling them
“conclusory, misleading, [or] legally immaterial.” Specifically, the court found no “neglect of the
case on the part of [defense counsel] which would require that substitute counsel be appointed to
represent [defendant] with respect to these allegations.” The court then denied defendant’s pro se
motion for new trial and scheduled another hearing to consider defense counsel’s motion for
acquittal notwithstanding the verdict or for a new trial.
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¶ 14 At the next hearing a few days later, the court heard arguments on defense
counsel’s motion and denied it. Yet again, defendant alleged he received ineffective assistance of
counsel and requested to proceed pro se. After a brief Krankel inquiry, the court found “no basis
to support [defendant’s claim]” and said, “I am not proceeding to appointing different counsel to
advance that issue to an evidentiary hearing.” The court then admonished defendant on the right
to counsel, the right to proceed pro se, and inquired into defendant’s ability to represent himself.
The court allowed defendant to act pro se from that point forward.
¶ 15 The trial court held a sentencing hearing in October 2018 where it reviewed the
presentence investigation with defendant, who was still acting pro se. Defendant called two
witnesses who testified to his good character. The trial court merged the five counts into two, the
counts of armed violence and being an armed habitual criminal, and sentenced defendant to
concurrent terms of 18 years in DOC for the armed violence conviction and 10 years for the
armed habitual criminal conviction, followed by 3 years’ MSR.
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant argues: (1) the State failed to prove him guilty beyond a reasonable
doubt of armed violence, (2) the assistant state’s attorney committed prosecutorial misconduct,
(3) defense counsel’s failure to move to sever the status offenses amounted to ineffective
assistance, and (4) the trial court erred in refusing to appoint new counsel after several Krankel
inquiries. We disagree, taking each issue in turn.
¶ 19 A. Proof Beyond a Reasonable Doubt
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¶ 20 Defendant challenges his conviction for armed violence, arguing the State failed
to prove him guilty beyond a reasonable doubt. Specifically, defendant contends the State failed
to prove he communicated a threat of physical harm to F.N. We disagree.
¶ 21 “The due process clause of the fourteenth amendment to the United States
Constitution requires that a person may not be convicted in state court ‘except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.’ ” People v. Cunningham, 212 Ill. 2d 274, 278, 818 N.E.2d 304, 307 (2004) (quoting
In re Winship, 397 U.S. 358, 364 (1970)). When a defendant appeals his convictions, arguing the
State failed to satisfy this burden of proof, a reviewing court will not retry the defendant but asks
“ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(Emphasis in original.) Cunningham, 212 Ill. 2d at 278 (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). Testimony from one credible eyewitness can provide proof beyond a
reasonable doubt to sustain a conviction. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365,
369 (1999). Specifically, when a conviction rests “on eyewitness testimony, a reviewing court
must decide whether, in light of the record, a fact finder could reasonably accept the testimony as
true beyond a reasonable doubt.” Cunningham, 212 Ill. 2d at 279. But in applying this standard,
we will neither reweigh evidence nor judge witness credibility; rather, we defer to the fact
finder’s credibility determinations. See Smith, 185 Ill. 2d at 542.
¶ 22 To prove defendant guilty of armed violence as charged, the State had to show
defendant committed the offense of intimidation while carrying or otherwise armed with a
handgun. See generally 720 ILCS 5/33A-2 (West 2016); Illinois Pattern Jury Instructions,
Criminal, No. 11.52Y (4th ed. 2000). To prove intimidation, the State had to show (1) “the
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defendant communicated to F.N. a threat to, without lawful authority inflict physical harm on
F.N.” and (2) by the threat “defendant *** intended to cause F.N. to perform an act.” See
generally 720 ILCS 5/12-6 (West 2016); Illinois Pattern Jury Instructions, Criminal, No. 11.42
(4th ed. 2000). Defendant claims the evidence did not establish he communicated a threat to F.N.
or intended to coerce F.N. to perform a sex act. Defendant reasons that since F.N. did not testify
she said “no” to his request for oral sex and since she failed to testify he pointed the gun directly
at her, there was no proof he intended to force her to perform an act. These points are red
herrings. The State was not required to prove such specific details to secure the conviction
because those facts were not necessary to constitute the crime. Cunningham, 212 Ill. 2d at 278.
¶ 23 In simplest terms, “intimidation requires (1) that a threat be communicated
(2) with the specific intent to coerce another to do [or not do] something against his will.” People
v. Casciaro, 2015 IL App (2d) 131291, ¶ 84, 49 N.E.3d 39. “The means or method used to
communicate the threat is not an essential element of intimidation,” meaning a threat can be
conveyed in many ways either verbally or non-verbally. Casciaro, 2015 IL App (2d) 131291,
¶ 85. And more importantly, the State need not prove a specific means or method was used in
communicating the threat. Likewise, the victim need not respond to the threat verbally but could
respond nonverbally. Indeed, for the coercion element, the communicated threat need only
arouse fear or apprehension in the victim. Casciaro, 2015 IL App (2d) 131291, ¶ 85 (explaining
“the victim must fear that the maker of the threat will carry it out”).
¶ 24 The State presented evidence through F.N.’s testimony that defendant asked her
to perform oral sex. She did not respond verbally but left the room. When she returned, she saw
defendant had conspicuously placed a shirt over his lap and right hand. When she removed the
shirt, she could see defendant was holding a handgun next to his penis, and she began crying.
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Her exclamation coupled with moving away evinced her threatened state of mind. When she
tried to get away from defendant, he grabbed her, and she said, “No. No. No,” during the
struggle. Defendant’s reaction by grabbing her as she attempted to move away from him further
evinces his intentions. In our view, based on this evidence, any rational fact finder could
conclude defendant communicated a threat of physical harm to F.N. by holding a loaded gun as
he did, which aroused fear in F.N.—evidenced by her crying and trying to get away. Despite
defendant’s argument, we find no import in the fact F.N. did not expressly say “no” to
defendant’s request. Furthermore, any rational fact finder could conclude defendant intended to
coerce F.N. to perform oral sex since he only brandished the gun after she did not immediately
submit to his request for oral sex. See Cunningham, 212 Ill. 2d at 278. Defendant’s reply brief
contends, “[a] reasonable jury could have concluded [defendant] introduced the firearm not as a
threat, but instead as a form of sexual role-playing or as part of a fetish.” That is possible, a
reasonable jury could have arrived at such conclusions. But based on these facts, a rational jury
could also have concluded that defendant communicated a threat to coerce F.N. to perform oral
sex against her will—as this jury did. See Casciaro, 2015 IL App (2d) 131291, ¶ 84.
¶ 25 This case came down to credibility. Even though F.N. had a criminal history and
she gave inconsistent statements to police—which the defense highlighted during trial—the jury
must have believed F.N.’s in-court testimony and not the defense’s theory that F.N. set-up
defendant. By observing F.N.’s testimony firsthand, the jury sat in a prime position to judge her
credibility because it could watch her demeanor and see how she addressed conflicts or
inconsistencies in her testimony. People v. Curtis, 296 Ill. App. 3d 991, 999, 696 N.E.2d 372,
378 (1998). F.N.’s testimony alone was sufficient evidence for the armed violence conviction.
See Smith, 185 Ill. 2d at 541 (“The testimony of a single witness, if it is positive and the witness
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credible, is sufficient to convict.”). We conclude, “in light of the record,” the jury “could
reasonably accept [F.N.’s] testimony as true beyond a reasonable doubt” in order to find
defendant guilty. Cunningham, 212 Ill. 2d at 279. We affirm the armed violence conviction.
¶ 26 B. Prosecutorial Misconduct
¶ 27 Defendant next alleges the assistant state’s attorney committed prosecutorial
misconduct by making improper statements during closing argument. He identified these
statements:
“Things are going fine until they weren’t and until he asked for
something that [F.N.] didn’t want to give. He asked [F.N.] to
perform oral sex on him. That was not something she was
interested in doing, at least not at that moment. So, as she has the
right to, she said no. The defendant apparently didn’t appreciate
[F.N.] exercising that right to say no.
***
The gun only is displayed after she says no. What other purpose is
there for him to get a gun out after she says no? There is no other
purpose. He has the gun in an attempt to force her to perform oral
sex on him. That’s what the gun is for. No other reasonable
explanation.”
Defendant contends these statements proved improper because F.N. never testified she said “no”
to defendant’s request for oral sex. We disagree.
¶ 28 As a threshold matter, we note defendant forfeited this issue because he failed to
object to these statements during the State’s closing argument and did not raise them in either
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posttrial motion. He must now establish the statements amounted to plain error. “The plain-error
rule bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved
claims of error ***.” People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010).
Defendants can invoke the plain-error doctrine when they make one of two showings:
“ ‘(1) a clear and obvious error occurred and the evidence is so
closely balanced that the error alone threatened to tip the scales of
justice against the defendant, regardless of the seriousness of the
error, or (2) a clear or obvious error occurred and that error is so
serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the
closeness of the evidence.’ ” Thompson, 238 Ill. 2d at 613 (quoting
People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11
(2007)).
Under either prong, “[t]he first step of plain-error review is determining whether any error
occurred.” Thompson, 238 Ill. 2d at 613. We find no error in the State’s comments during closing
arguments.
¶ 29 “Prosecutors are afforded wide latitude during closing argument and may properly
comment on the evidence presented and reasonable inferences drawn from that evidence ***.”
People v. Marzonie, 2018 IL App (4th) 160107, ¶ 47, 115 N.E.3d 270. For example,
“[a]rguments and statements based upon facts in evidence or upon legitimate inferences from
such evidence are not outside the bounds of proper argument.” People v. Rushing, 192 Ill. App.
3d 444, 454, 548 N.E.2d 788, 794 (1989). Statements during closing argument are improper and
amount to error “only when they cause substantial prejudice to the defendant.” Marzonie, 2018
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IL App (4th) 160107, ¶ 48. We can find substantial prejudice if the improper remarks were a
“ ‘material factor’ ” in a defendant’s conviction. People v. Thompson, 2013 IL App (1st) 113105,
¶ 79, 997 N.E.2d 681 (quoting People v. Wheeler, 226 Ill. 2d 92, 123, 871 N.E.2d 728, 745
(2007)). In order to find such remarks to have been a material factor, we would have to conclude
(1) a jury could have reached a contrary verdict had the improper remarks not have been made or
(2) we cannot say the prosecutor’s improper remarks did not contribute to defendant’s
conviction. See People v. Kallal, 2019 IL App (4th) 180099, ¶ 35, 129 N.E.3d 621. We find
neither to be the case. Here, the assistant state’s attorney’s statements indicating F.N. “said no”
were based on the evidence and the reasonable inferences drawn from that evidence. F.N.
testified she did not acquiesce to defendant’s demand for oral sex. When he asked, she left the
room. When F.N. returned and saw defendant holding a gun she began crying and ran away from
him—certainly not indicators she wanted to engage in more sexual activity. And as the two
struggled, all F.N. could say was, “No. No. No.” The assistant state’s attorney’s statements
suggesting F.N. told defendant “no” related to the evidence presented and legitimate inferences
from the evidence. Moreover, the comments did not cause defendant substantial prejudice. As we
explained supra, the State did not need to establish that F.N. verbally said “no” to defendant’s
request for oral sex in order to prove him guilty beyond a reasonable doubt because her saying
“no” was not an essential element of the charged crimes. See Cunningham, 212 Ill. 2d at 278.
Further, the jury was instructed, both at the beginning of closing arguments, as well as after they
were completed, that closing arguments were not evidence and should not be considered as such.
The State’s comments, therefore, did not pass the bounds of proper argument and did not amount
to error, let alone plain error.
¶ 30 C. Ineffective Assistance of Counsel
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¶ 31 Defendant alleges his trial counsel’s decisions not to object to improper
statements made during the State’s closing argument and not to move to sever the status offenses
(unlawful use of a weapon by a felon and being an armed habitual criminal) from the occurrence
offenses amounted to ineffective assistance of counsel. We disagree.
¶ 32 The Illinois and United States Constitutions guarantee criminal defendants the
right to counsel, and the latter mandates, “ ‘the right to counsel is the right to the effective
assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970)); U.S. Const., amends. VI, XIV; Ill. Const. 1970,
art. I, § 8. When presented with a defendant’s ineffective-assistance-of-counsel claim, we apply
the well-established, two-part Strickland test. The defendant must prove: (1) counsel rendered
deficient performance, meaning counsel’s representation fell below an objective standard of
reasonableness as gauged by prevailing professional norms, and (2) counsel’s deficient
performance prejudiced the defendant, i.e., but for counsel’s errors, the result of the proceeding
would have been different. See People v. Young, 341 Ill. App. 3d 379, 383, 792 N.E.2d 468, 472
(2003) (citing Strickland, 466 U.S. at 687); People v. Peck, 2017 IL App (4th) 160410, ¶ 26, 79
N.E.3d 232. When assessing the deficient performance prong, “a court must indulge a strong
presumption that the challenged action, or inaction, was the result of sound trial strategy.”
People v. Poole, 2012 IL App (4th) 101017, ¶ 10, 972 N.E.2d 340. If a defendant fails to prove
deficient performance, the court need not consider the prejudice prong, and vice versa. People v.
Torres, 228 Ill. 2d 382, 395, 888 N.E.2d 91, 100 (2008); People v. Graham, 206 Ill. 2d 465, 476,
795 N.E.2d 231, 238 (2003).
¶ 33 1. Failure to Object During Closing Arguments
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¶ 34 Defendant contends “trial counsel performed deficiently” by not objecting “to the
State’s asserting it had presented incriminating evidence that it did not in fact present,” namely
F.N. answering “no” to defendant’s request for oral sex. As we explained above, the assistant
state’s attorney’s comments related to facts in evidence and did not amount to improper
statements. It is disingenuous to argue the comment by the State amounted to an affirmative
assertion of specific incriminating evidence which was false. This was a comment on the
evidence the jury heard, not a false claim of evidence which never existed. We cannot say
counsel performed deficiently by deciding against objecting to proper comments during closing
argument. Put differently, counsel’s decision to not object was reasonable considering prevailing
professional norms. Young, 341 Ill. App. 3d at 383.
¶ 35 2. Failure to Move to Sever the Status Offenses
¶ 36 Defendant next contends his trial attorney rendered ineffective assistance by not
moving to sever the unlawful use of a weapon by a felon and being an armed habitual criminal
counts from the other counts. Specifically, defendant urges that “[h]ad counsel filed a motion to
sever the gun charges from the threat-related charges, the trial court would have granted the
motion.” Defendant believes counsel’s decision to stipulate to his status as a habitual criminal,
rather than move to sever the charge, amounted to deficient performance that prejudiced him
because it allowed the jury to hear the defendant was a habitual criminal under Illinois law. We
disagree.
¶ 37 We must note first that Illinois law allows for motions for severance, whereby:
“If it appears that a defendant or the State is prejudiced by a
joinder of related prosecutions or defendants in a single charge or
by joinder of separate charges or defendants for trial the court may
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order separate trials, grant a severance of defendants, or provide
any other relief as justice may require.” 725 ILCS 5/114-8(a)
(West 2016).
We observe the statute gives trial courts discretion in deciding whether to grant a motion for
severance—they “may” grant relief. Accordingly, we cannot share defendant’s absolute belief
that the trial court would have granted a motion for severance here had defense counsel filed one.
We can only note there would have been case law to support granting the motion. See People v.
Edwards, 63 Ill. 2d 134, 140, 345 N.E.2d 496, 499 (1976) (holding the trial court abused its
discretion in denying defendant’s motion to sever armed robbery and unlawful use of a weapon
charges because “joinder *** created such a strong possibility that defendant would be
prejudiced in his defense”); People v. Strong, 215 Ill. App. 3d 484, 486, 574 N.E.2d 1271,
1272-73 (1991) (applying Edwards in reversing trial court’s denial of defendant’s motion for
severance).
¶ 38 To secure a conviction on the armed habitual criminal count, the State had to
prove two facts: (1) “That the defendant possessed a firearm; and (2) That when the defendant
possessed a firearm he was a habitual criminal.” The State could have proved the second element
(defendant’s status) by introducing evidence showing defendant had been convicted of “the
offense of delivery of a controlled substance, class 2 felony in McLean County case number
2005-CF-960 and delivery of a controlled substance, class 2 felony, in McLean County case
number 2001-CF-191.” Rather, the State and defense counsel agreed to the following stipulation,
which the court read to the jury: “That on April 8, 2018, the defendant was a habitual criminal
under Illinois Statutes.” Though this stipulation prevented the State from naming defendant’s
qualifying offenses, it allowed it to prove defendant guilty by showing beyond a reasonable
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doubt that he possessed a firearm on April 8, 2018. Defendant argues trial counsel rendered
ineffective assistance by opting to stipulate to his status as a habitual criminal rather than move
to sever the status offenses from the occurrence offenses. Believing it controls our decision here,
defendant directs our attention to People v. Utley, 2019 IL App (1st) 152112, 142 N.E.3d 352.
¶ 39 The defendant in Utley faced charges of possession of a controlled substance with
intent to deliver, being an armed habitual criminal, and unlawful use of a weapon by a felon.
Utley, 2019 IL App (1st) 152112, ¶ 1. Defense counsel there did not move to sever the gun
counts from the drug counts and tried them all together in one proceeding. Counsel also failed to
try to limit what the State could introduce to prove-up Utley’s prior offenses by either filing a
motion in limine or stipulating to the predicate felonies. Utley, 2019 IL App (1st) 152112, ¶ 48.
Utley appealed, arguing trial counsel provided ineffective assistance by not moving to sever the
charges. The State countered by “contend[ing] that defense counsel’s decision not to move to
sever the charges should be seen as trial strategy.” Utley, 2019 IL App (1st) 152112, ¶ 43. The
First District agreed with Utley, concluding counsel’s failure to file a motion for severance
constituted deficient performance because “nothing in the record” suggested “counsel’s inaction
may have been a matter of sound trial strategy.” Utley, 2019 IL App (1st) 152112, ¶ 48. The
court then determined counsel’s error prejudiced Utley because it allowed the jury to hear about
his prior drug and weapons convictions—“the same type items of contraband in this case.” Utley,
2019 IL App (1st) 152112, ¶ 52. The Utley court, however, limited its holding to those specific
facts and circumstances. Utley, 2019 IL App (1st) 152112, ¶¶ 48, 53.
¶ 40 We see defendant’s comparison of his case to Utley as inapt because factual
distinctions make its legal conclusions unpersuasive here. Unlike the defense counsel in Utley,
counsel here tried to minimize the prejudice to defendant in lieu of filing a motion to sever. In
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July 2018, defense counsel filed a motion in limine acknowledging “the prosecution may seek to
introduce Defendant’s prior criminal record” but asking “that any prior adjudications or
convictions be evaluated for proper admission and limited use in the *** trial.” Following a
hearing, the trial court allowed defendant’s motion in limine. And unlike the counsel in Utley,
defendant’s trial counsel stipulated defendant was a habitual criminal, thereby preventing the
State from naming the predicate felonies. The mere fact counsel discussed a stipulation which
was ultimately presented to the court is some indication counsel weighed the options and, as a
matter of trial strategy, chose what he considered to be the best course for defendant. He
ultimately said as much. These factual differences between this case and Utley prove significant
to our analysis, especially since Utley is limited to its specific facts. The Utley court’s
deficient-performance determination was based on defense counsel’s inaction—not filing a
motion for severance, not filing a motion in limine, and not stipulating the predicate felonies. The
court concluded that counsel’s decision to do nothing to decrease prejudice to the defendant
could not have been the product of sound trial strategy. Utley, 2019 IL App (1st) 152112, ¶ 48.
Based on the specific facts here, we cannot arrive at the same conclusion.
¶ 41 We see People v. Fields, 2017 IL App (1st) 110311-B, 75 N.E.3d 503, as the apt
comparison here. There, the State charged the defendant with armed robbery and being an armed
habitual criminal. Fields, 2017 IL App (1st) 110311-B, ¶ 1. Defense counsel, like here, did not
move to sever the charges but opted instead to file a motion in limine to bar admission of prior
convictions for armed robbery and unlawful use of a weapon and also stipulated “to the fact that
[the defendant] had two qualifying prior convictions, without specifying the exact nature of those
convictions.” Fields, 2017 IL App (1st) 110311-B, ¶ 4. In so doing, that attorney “pursue[d] an
‘all or nothing’ trial strategy, in which the defendant is acquitted or convicted of all charges in a
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single proceeding.” Fields, 2017 IL App (1st) 110311-B, ¶ 28. The Fields court held the
“defendant has failed to overcome the strong presumption that defense counsel’s action or
inaction might have been the product of sound trial strategy,” and thus, the defendant “did not
receive ineffective assistance of counsel.” (Internal quotation marks omitted.) Fields, 2017 IL
App (1st) 110311-B, ¶ 28.
¶ 42 Considering the facts before us, counsel filing a motion in limine and stipulating
to defendant’s status, we find this case akin to Fields not Utley. Moreover, counsel here labeled
his decision to stipulate to defendant’s status as a “tactic,” “so that the jury doesn’t hear the
specifics of what the prior offenses were.” And case law suggests counsel’s strategic decision
was objectively reasonable considering prevailing professional norms. See People v. Davis, 405
Ill. App. 3d 585, 597, 940 N.E.2d 712, 724 (2010) (finding no ineffective assistance of counsel
and explaining, “where a defendant’s status as a felon is an element of the offense, a stipulation
to his prior felony conviction is the least prejudicial means of introducing the evidence to the
trier of fact”); Fields, 2017 IL App (1st) 110311-B, ¶¶ 23-28.
¶ 43 “[A]lthough it may [have] prove[d] unwise in hindsight,” we conclude counsel’s
decision to stipulate to defendant’s status rather than move to sever the status offenses from the
occurrence offenses, amounted to “a matter of trial strategy.” Poole, 2012 IL App (4th) 101017,
¶ 10. Defendant, therefore, cannot overcome the strong presumption that counsel acted
strategically rather than deficiently. See Poole, 2012 IL App (4th) 101017, ¶ 10. In sum, we
conclude counsel’s decision against moving for severance did not constitute deficient
performance. Since defendant failed to show counsel performed deficiently, we need not
consider Strickland’s prejudice prong. Torres, 228 Ill. 2d at 395.
¶ 44 D. Krankel Inquiries
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¶ 45 Finally, defendant argues the trial court erred by refusing to appoint new counsel
after Krankel inquiries into defendant’s ineffective-assistance-of-counsel claim relating to
potential defense witnesses Chad Wheeler and Carsell Jackson. We disagree.
¶ 46 When a defendant raises the issue of trial counsel’s effectiveness in a posttrial
motion, the trial court must hold a Krankel hearing, where it inquiries into the factual bases for
defendant’s claims. The court’s inquiry may include: “(1) questioning the trial counsel,
(2) questioning the defendant, [or] (3) relying on its own knowledge of the trial counsel’s
performance in the trial.” People v. Peacock, 359 Ill. App. 3d 326, 339, 833 N.E.2d 396, 407
(2005). If the court finds “possible neglect of the case,” then the court should appoint new
counsel to investigate the defendant’s claims and represent the defendant in a new hearing on the
ineffective-assistance-of-counsel claims. People v. Moore, 207 Ill. 2d 68, 78, 797 N.E.2d 631,
637 (2003). But “[i]f the trial court determines that the claim lacks merit or pertains only to
matters of trial strategy, then the court need not appoint new counsel and may deny the pro se
motion.” Moore, 207 Ill. 2d at 78. We will not disturb “[t]he trial court’s decision to decline to
appoint new counsel *** unless the decision is manifestly erroneous.” People v. McCarter, 385
Ill. App. 3d 919, 941, 897 N.E.2d 265, 285 (2008). “Manifest error is that which is ‘clearly
evident, plain, and indisputable.’ ” People v. Johnson, 206 Ill. 2d 348, 360, 794 N.E.2d 294, 303
(2002) (quoting People v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997)).
¶ 47 Here, defendant twice informed the trial court that he believed he was receiving
ineffective assistance of counsel based on his attorney’s decision not to interview or call Chad
Wheeler or Carsell Jackson as defense witnesses. Defendant told the court he informed counsel
of two potential witnesses, Chad Wheeler and Carsell Jackson, who could testify to F.N.’s prior
drug use or her prior false claims of sexual abuse.
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¶ 48 As for Chad Wheeler, defense counsel responded: “Well, having just received Mr.
Wheeler’s name yesterday in a conversation with my client, *** I had a few brief minutes to
look at Mr. Wheeler[.]” In that short time, counsel learned Wheeler was in custody facing drug
charges. Counsel informed the court he “inquired of Mr. Wheeler’s counsel,” who said, “[h]e
was within 30 days of a plea. So he’s technically represented by someone within the Public
Defender’s office. I inquired of that attorney and was told with what I expected was that to [sic]
—that the attorney did not want me discussing their client’s drug use while they have cases
around.” Ultimately, defense counsel explained he did not use Wheeler as a witness because
Wheeler’s counsel prevented it, Wheeler was not an occurrence witness, and Wheeler would
have to testify in a jail jumpsuit.
¶ 49 As for Carsell Jackson, counsel responded:
“Similarly situated to the other individual, Your Honor. I received
the actual name yesterday and had a visit with my client ***.
***
Also similarly situated, Mr. Jackson is in custody ***. He is
pending prosecution in 18-CF-212. So, again he has counsel. He’s
represented by Matt Koetters, who is an assistant public defender. I
talked to Mr. Koetters and, again, received the response that—
indicating that Mr. Koetters did not want me to talking to his client
about potential drug use with somebody else, particularly when his
client has a pending case.”
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Counsel said he decided not to pursue Jackson as a witness for the same reasons he did not
pursue Wheeler: Jackson’s counsel prevented it, Jackson had minimal probative evidence, and
Jackson would have to testify in a jail jumpsuit.
¶ 50 The trial court credited counsel’s explanations, explaining to defendant how
“both [Wheeler and Jackson] have been—attempted to be contacted through their attorneys who
have told Mr. Lewis that they do not want him speaking to their clients.” The court went on to
say, “And so from that perspective, it appears that he has investigated those witnesses as to
whether or not they would be able to be called. And then he’s further indicated the reasons
why—trial strategy, why he would not be calling them as witnesses in this case.” The court then
provided defendant the opportunity to talk with counsel privately, which he did. Following a
brief recess, defendant returned to the courtroom and said, “Me and Mr. Lewis we talked and
we’re fine and we want to proceed with trial as set.” The court clarified: “So you want to keep
the trial set for this coming Monday?” And defendant answered, “Yes, sir.” With that, the trial
court terminated the Krankel hearing.
¶ 51 Defendant raised the same ineffective-assistance claim after trial—he had “two
potential witnesses that can attest to [F.N.’s] drug usage.” The trial court reminded defendant,
“We addressed this issue on July 12th,” when it “found no neglect occurred” because “the
attorneys would not allow those witnesses to speak to Mr. Lewis.” The court further explained it
“found no [in]effective assistance of counsel on this issue relating to these two witnesses. So
once again I’m finding that there is no neglect on the part of Mr. Lewis on these two matters and
it was a matter of trial strategy to proceed.”
¶ 52 We see no error, let alone manifest error, in the trial court’s decision against
appointing new counsel to investigate defendant’s claims relating to these witnesses. Looking at
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this record, we see no “ ‘clearly evident, plain, and indisputable’ ” error. Johnson, 206 Ill. 2d at
360 (quoting Ruiz, 177 Ill. 2d at 384-85). In fact, the record confirms there was no possible
neglect on counsel’s part. He informed the court that he looked up Wheeler and Jackson and
quickly learned they were non-starters as witnesses. Both were incarcerated. Their attorneys
would not let them speak about their drug use. And neither man had personal knowledge of the
events between defendant and F.N. on April 8, 2018. Based on this and other information,
counsel made the strategic decision not to pursue these men as witnesses for the defense, which
does not amount to ineffective assistance. See People v. Brown, 2018 IL App (4th) 160288, ¶ 47,
115 N.E.3d 408 (“[D]ecisions as to which witnesses to call or what evidence to present are
viewed as matters of trial strategy and ‘generally immune from claims of ineffective assistance
of counsel.’ ” (quoting People v. West, 187 Ill. 2d 418, 432, 719 N.E.2d 664, 673 (1999))). Since
defendant’s ineffective assistance claims related to matters of trial strategy, the court rightly
declined to appoint new counsel. See Moore, 207 Ill. 2d at 78.
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we affirm the trial court’s judgment.
¶ 55 Affirmed.
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