The opinion
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Illinois Official Reports Reporter of Decisions
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accuracy and integrity
of this document
Appellate Court Date: 2016.12.02
10:15:37 -06'00'
People v. Nesbit, 2016 IL App (3d) 140591
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JUAN NESBIT, Defendant-Appellant.
District & No. Third District
Docket No. 3-14-0591
Filed September 8, 2016
Decision Under Appeal from the Circuit Court of Peoria County, No. 07-CF-516; the
Review Hon. David A. Brown, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Cause remanded.
Counsel on Michael J. Pelletier and Mark D. Fisher, both of State Appellate
Appeal Defender’s Office, of Ottawa, for appellant.
Jerry Brady, State’s Attorney, of Peoria (Richard T. Leonard, of
State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment.
OPINION
¶1 Defendant, Juan Nesbit, appeals from the second-stage dismissal of his postconviction
petition. He argues that the claims presented in that petition made substantial showings of
constitutional violations and thus warranted third-stage review. In a consolidated appeal of the
denial of his motion to reconsider sentence, defendant also argues that the sentence imposed by
the trial court was excessive and an abuse of discretion. For the reasons set forth below, we
reverse the trial court’s dismissal of defendant’s postconviction petition as to one claim and
affirm as to the remainder. Further, we affirm defendant’s sentence.
¶2 FACTS
¶3 The State charged defendant with being an armed habitual criminal (720 ILCS 5/24-1.7(a)
(West 2006)), unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a)
(West 2006)), and aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1)
(West 2006)). Each of the counts alleged that defendant knowingly possessed a handgun on
May 5, 2007.
¶4 Defendant appeared in court in custody on May 7, 2007, represented by an attorney from
the public defender’s office. The trial court set defendant’s bond at $35,000, 10% to apply.
Defendant remained in custody when he was arraigned on May 24, 2007, represented by a
different attorney from the public defender’s office. Defendant posted bond on June 7, 2007.
¶5 Upon posting bond in the present case, defendant was immediately taken into custody by
the Department of Corrections (DOC), as he had been on parole for an earlier conviction. On
June 21, 2007, defendant wrote a letter to trial judge Michael Brandt, informing him that he
was in the custody of the DOC at the Pinckneyville Correctional Center. The court ordered the
ex parte communication delivered to the attorneys of record. Defendant next appeared in court
on August 3, 2007. At that appearance, assistant Public Defender Mark Rose relayed to the
court that defendant was “on bond on this matter and is in custody of the [DOC] on a previous
cause.” The court granted defendant’s motion for a continuance.
¶6 On October 25, 2007, attorney Ronald Hamm entered his appearance as counsel of record
for defendant. On February 4, 2008, with the trial scheduled for the following day, the court
ordered defendant remanded to the custody of the Peoria County Sheriff in anticipation of trial.
¶7 On February 5, 2008, the State answered that it was ready for trial. Hamm made an oral
motion to continue the trial to a later date. Hamm stated:
“I informed the Court yesterday morning that [defendant] had requested that I ***
make a motion for a continuance.
[Defendant] also yesterday for the first time informed me that at the time that he
was taken to the hospital after his arrest that his blood sugar was extremely elevated,
which may have affected some of—some statements that he allegedly made to the
officers.
I first became aware of that yesterday morning. I would need to check that and
determine whether or not that would have any [effect] on [defendant’s] condition at the
time ***.”
The court denied the motion as untimely.
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¶8 On February 6, 2008, defendant filed an assignment of security for bail, assigning the
$3500 previously posted as bond to Hamm in exchange for value received. The trial started the
same day.
¶9 Prior to calling any witnesses, the prosecutor read two stipulations to the jury. The first
stipulation was that Michael Arrington would testify that he was defendant’s parole officer and
that defendant was on parole on May 5, 2007, the date of the alleged offenses. The second
stipulation was that defendant had previously been convicted of burglary in 1985, 1993, and
2002.
¶ 10 Peoria police officer Jarvis Harrison testified that at approximately 8:30 p.m. on May 5,
2007, he received a dispatch informing him that a black Corvette had been seen leaving the
scene of a domestic dispute. The dispatch indicated that the car was being driven by a person
named Nesbit. After locating the vehicle, Harrison ran the license plate. The car was registered
to Sonja Nesbit. Harrison activated his lights and sirens and pursued the vehicle.
¶ 11 Harrison testified that the vehicle did not immediately pull over. After stopping at a stop
sign, the car “took off at a high rate of speed.” Harrison continued to pursue the vehicle for
approximately 10 to 15 minutes, with officer Rory Poynter later joining the chase. The vehicle
eventually came to a stop after hitting a curb.
¶ 12 When the vehicle stopped, Poynter’s squad car was directly behind it, and Harrison’s squad
car was directly behind Poynter’s. Harrison and Poynter each alighted from their cars. Poynter
gave the driver of the vehicle a number of commands, but the driver did not obey. The driver
did not exit the vehicle. Harrison testified that he observed the driver reach under the driver’s
side seat with both hands. Harrison stated that the driver appeared to be moving his hands back
and forth in some fashion. The driver eventually got out of the vehicle, and Poynter took him
into custody. A subsequent search of the vehicle revealed a handgun located, in Harrison’s
words, “[r]ight by the driver’s seat.” Harrison testified that he could see the butt of the handgun
sticking out from under the driver’s seat. Harrison identified defendant as the driver of the
vehicle.
¶ 13 On cross-examination, Harrison admitted that he never saw defendant with the gun in his
hands. Though he saw defendant reach toward the area under the seat, he did not know if
defendant’s hands actually went under the seat.
¶ 14 Poynter testified that he joined the pursuit of defendant’s vehicle after Harrison. Poynter
eventually overtook Harrison, becoming the primary officer in pursuit. Poynter testified that he
was in pursuit of defendant’s vehicle for two to three minutes, describing the chase as taking
place at “[r]elatively slow speeds, approximately 25, 30 [miles per hour].” Defendant applied
the brakes as the vehicle approached a curb and came “to a screeching halt” when it impacted.
¶ 15 Poynter testified that he exited his squad car with his gun drawn. The driver’s door of
defendant’s vehicle swung open. Poynter ordered defendant to exit the vehicle with his hands
up. Defendant did not comply. Defendant’s left arm was raised, but his right arm was not
clearly visible. Poynter testified that defendant “continued to reach down towards the
floorboard.” Poynter holstered his gun and drew his Taser. Poynter struck defendant twice with
the Taser to no effect, and he switched back to his gun. As Poynter continued to order
defendant out of the vehicle, defendant reached toward the driver’s floorboard once more, this
time with both hands. After a number of other officers arrived, defendant complied with
Poynter’s order to exit the car and lie on the ground.
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¶ 16 Upon searching the vehicle, Poynter noticed the butt of a handgun protruding from under
the driver’s seat. Poynter identified People’s exhibit No. 2 as a photograph of the handgun as it
existed when Poynter first observed it. The photograph shows the butt of the handgun visible,
emerging from under the driver’s seat, with the remaining portion of the gun obscured by the
seat itself. The visible portion of the silver gun stands out against the vehicle’s red interior.
Further inspection revealed that the handgun was loaded. Poynter identified the handgun as
.45-caliber. Poynter testified that defendant’s mother, Sonja Nesbit, and wife, Cheryl Nesbit,
eventually arrived at the scene of the accident.
¶ 17 On cross-examination, Hamm asked Poynter about defendant’s blood sugar at the time of
the accident. Poynter responded that paramedics had come to the location, checked
defendant’s blood sugar, and indicated that Poynter could transport defendant to the hospital.
Poynter also testified on cross-examination that he never saw defendant with the gun in his
hands.
¶ 18 Officer Scott Bowers of the Peoria police department testified that he found a partial
fingerprint on the frame of the handgun found in the vehicle driven by defendant. The partial
fingerprint did not yield any matches. Bowers did not find any latent fingerprints on any of the
bullets found within the handgun.
¶ 19 The State called defendant’s mother, Sonja Nesbit, as its final witness. Sonja testified that
the black Corvette was registered in her name and that she, defendant, and Cheryl all drove the
vehicle. Sonja had last driven the vehicle on May 4, 2007, one day before the defendant’s
accident. Sonja recalled that Cheryl had driven the car “[t]hat same day.”1
¶ 20 Sonja testified that she went to the scene of the accident on the evening of May 5, 2007, but
that she did not talk to any officers there. Cheryl was with her. Sonja wanted to remove her
belongings from the car before it was towed. When asked if she was able to retrieve items from
the car without ever speaking to an officer, Sonja replied: “They might have asked me if [the
car] was mine.” When asked by the prosecutor if she had told Poynter, “I pay for it but
[defendant] is the only one who drives it,” Nesbit replied, “No, I didn’t say that.” Sonja
explained: “But I don’t say he’s the only one that drives it when I drive it and Cheryl drives it.”
¶ 21 On cross-examination, Sonja testified that she owned a .45-caliber handgun and that she
kept it “underneath the front seat.” She had never seen defendant in possession of the gun and
never told defendant it was under the seat.
¶ 22 Following Sonja’s testimony, the State recalled Poynter. Poynter testified that he spoke to
Sonja on May 5, 2007. He asked her who usually drove the black Corvette. The prosecutor
then asked: “[D]id she answer that she paid for it but [defendant] is the only one who drives
it?” Poynter replied: “Correct.”
¶ 23 On cross-examination, Poynter testified that Cheryl was also present during his
conversation with Sonja. At that time, Poynter knew Sonja from previous interactions with her.
The following exchange between Hamm and Poynter ensued:
“Q. You’d seen her operating that vehicle, hadn’t you?
A. No, sir, I had not.
1
By “[t]hat same day,” it is unclear if Sonja meant that Cheryl had also last driven the car on May 4,
2007, or if Cheryl had driven the car the same day as the incident in question. In any event, Sonja
testified that Cheryl also drove the vehicle and had done so quite recently.
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Q. You’d seen it parked at her house, hadn’t you?
A. No, sir, I had not seen that vehicle prior to that.
Q. Had you ever seen her in a vehicle?
A. Yes, sir.
Q. What kind of other vehicle did you see her in?
A. I believe a Mitsubishi Eclipse.
Q. How long ago was that?
A. Just days prior to the incident.”
Poynter also asked Sonja if she owned a gun. He could only recall that she responded by stating
that she owned a FOID card.
¶ 24 In his closing argument, spanning 11 pages of the report of proceedings, Hamm argued that
the State had not proven that defendant knew the gun was in the car. He pointed out that there
was no evidence that defendant was actually reaching for anything under the seat, only that his
hands were in that area. Hamm also emphasized Sonja’s testimony, pointing out that the gun
belonged to her and insisting that defendant could not be assumed to know every item in the
car. Finally, Hamm discussed defendant’s trip to the hospital, suggesting that defendant’s ill
state may have contributed to the events in question.
¶ 25 On February 7, 2008, the jury found defendant guilty on all counts. The trial court revoked
defendant’s bond. On February 12, 2008, defendant filed a posttrial motion asserting that he
had not been proven guilty beyond a reasonable doubt.
¶ 26 On May 2, 2008, the court denied defendant’s motion and proceeded to sentencing. The
presentence investigation report (PSI) showed that defendant had been convicted of 18
separate criminal offenses between 1984 and 2002, not including the three burglary
convictions used as predicate offenses of his conviction for being an armed habitual criminal.
Defendant’s criminal history included two misdemeanor drug-related convictions;
misdemeanor convictions for theft, retail theft, and unlawful use of weapons; felony
convictions for unlawful use of a credit card, unlawful possession of a hypodermic syringe,
unlawful possession of a weapon by a felon, and theft; two convictions for aggravated fleeing
and eluding a peace officer; and seven convictions for felony retail theft. Following his most
recent conviction, defendant was released on parole on December 15, 2006, less than five
months before the incident giving rise to the present case.
¶ 27 The PSI indicated that defendant graduated from high school and had taken some college
courses. He had five sons. A number of individuals wrote letters to the court on behalf of
defendant, including Sonja and former teachers and supervisors of defendant. In total, nine
mitigation letters were delivered to the trial court. In allocution, defendant stated that he was
ashamed of his criminal history and that he wanted to spend more time with his 68-year-old
mother.
¶ 28 The trial court entered judgment only on the charge of being an armed habitual criminal, a
Class X felony. The court sentenced defendant to a term of 23 years’ imprisonment. The
sentencing order provided that defendant would be credited with time served between May 6,
2007, and June 7, 2007 (32 days), as well as between February 7, 2008, and May 2, 2008 (85
days). Defendant did not file a postsentencing motion.
¶ 29 On appeal from his conviction, defendant raised three issues: (1) he was not proven guilty
beyond a reasonable doubt; (2) the prosecutor improperly elicited testimony regarding
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defendant’s postarrest silence; and (3) trial counsel was ineffective for not surrendering
defendant’s bond after he was taken into DOC custody. People v. Nesbit, 398 Ill. App. 3d 200,
208 (2010). In an opinion filed on February 11, 2010, this court rejected defendant’s
sufficiency of the evidence argument. Id. at 211. While we agreed that the testimony regarding
defendant’s postarrest silence was improper, we found that it did not amount to plain error, as
the evidence at trial was not closely balanced. Id. at 212-13. Finally, a majority of this court
found that the record on appeal was inadequate to resolve the ineffective assistance claim,
noting that too many factual questions remained unanswered. Id. at 215. The majority found
that “[d]efendant’s claim would best be presented as a postconviction matter where an
adequate record can be developed.” Id. The dissenting justice would have found counsel
ineffective and granted defendant the credit for time served he would have received had he
surrendered his bond. Id. at 215-16 (O’Brien, J., concurring in part and dissenting in part).
¶ 30 On May 10, 2010, defendant filed a pro se petition for postconviction relief, raising
numerous claims of ineffective assistance of trial counsel (as well as claims of ineffective
assistance of appellate counsel for failing to raise those same claims on appeal). Specifically,
defendant contended that trial counsel was ineffective for failing to call Cheryl as a witness. In
an affidavit attached to the petition, Cheryl stated that if called as a witness, she would have
testified that she drove the black Corvette several times and had been a passenger in that car
while defendant drove it earlier in the day on May 5, 2007. She would testify that neither she
nor defendant checked under the seat at that time. Cheryl would also testify that Sonja told an
officer at the scene that the gun belonged to her (Sonja) and that she did not recall Sonja telling
an officer that defendant was the only person who drove the vehicle.
¶ 31 Defendant also claimed that counsel had been ineffective for eliciting harmful testimony
from a State’s witness, namely, Poynter’s testimony that he had only ever seen Sonja driving a
Mitsubishi Eclipse. He also claimed counsel was ineffective for failing to investigate and
present evidence that defendant’s blood sugar was high at the time of the incident, which
caused him to slump in the driver’s seat in a manner that gave the appearance of reaching under
the seat. Defendant attached to the petition medical records from the night of the incident,
which indicated defendant had been treated for hyperglycemia. The public defender’s office
was appointed to represent defendant on his petition on August 5, 2010. After seeking and
being granted 17 continuances, counsel for defendant filed a supplemental petition on June 24,
2013.
¶ 32 The supplemental petition added, inter alia, a claim that trial counsel had been ineffective
for failing to surrender defendant’s bond, which would have enabled defendant to receive
additional credit against his sentence. Counsel later filed a second supplemental petition,
which added a claim that trial counsel had been ineffective for failing to file a motion to
reconsider sentence. Attached to that petition was an affidavit in which defendant stated he met
with attorney Rose, of the public defender’s office, on August 3, 2007, and that Rose did not
inform him that he could receive credit for the time he was currently serving if he surrendered
his bond. Defendant further swore that he met with Jeffrey Flanagan—an associate of Hamm,
defendant’s eventual trial counsel—on October 26, 2007, and that Flanagan also did not
discuss the potential surrender of bond or sentencing credit. Defendant averred that in both
instances, had he been informed that he could receive credit for time served by surrendering his
bond, he would have done so. Finally, defendant averred that Hamm approached him before
trial in regard to assigning his bond in payment of Hamm’s fees. Defendant stated: “This was
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the one and only occasion in which I had a discussion with anyone, including assigned or
private counsel, about assigning posted fund to private counsel for legal services rendered.”
¶ 33 The State filed a motion to dismiss defendant’s petition, and a hearing followed. After the
hearing, the trial court advanced to the third stage the claim that counsel was ineffective for
failing to file a motion to reconsider sentence but dismissed the remainder of defendant’s
claims. Following a third-stage evidentiary hearing on the surviving claim, the trial court found
counsel ineffective and issued an order allowing defendant to file a motion to reconsider the
sentence.
¶ 34 On July 30, 2014, defendant filed an appeal from the second-stage dismissal of the
majority of his postconviction claims. That appeal was assigned case No. 3-14-0591.
¶ 35 Defendant subsequently filed a motion to reconsider sentence, which was denied on
September 5, 2014. Defendant filed an appeal from that ruling, and that appeal was assigned
case No. 3-14-0695. Defendant’s two appeals have been consolidated.
¶ 36 ANALYSIS
¶ 37 On the appeal from the dismissal of his remaining postconviction claims, defendant argues
that a number of those claims made a substantial showing of a constitutional violation. First,
defendant contends that his claim that trial counsel was ineffective for failing to surrender his
bond should be advanced to the third stage of postconviction proceedings. Defendant also
maintains that he is entitled to a third-stage evidentiary hearing because he made a substantial
showing that trial counsel was ineffective for (1) failing to call Cheryl Nesbit as a witness, (2)
eliciting damaging testimony from Poynter, and (3) failing to investigate defendant’s medical
condition. Finally, on his appeal from the denial of his motion to reconsider sentence,
defendant argues that the court’s sentence of 23 years’ imprisonment was excessive.
¶ 38 Upon review, we find that defendant’s claim relating to the surrender of bond made a
substantial showing of ineffective assistance of counsel and thus warrants a third-stage
evidentiary hearing. Specifically, defendant substantially showed that his attorneys’ failure to
inform him of his option to surrender his bond constituted deficient performance and that
failure was prejudicial in that it resulted in defendant not being credited with 246 days spent in
custody. Defendant’s three remaining claims of ineffectiveness, however, failed to make a
substantial showing of ineffective assistance of counsel. Given the overwhelming evidence
against defendant, the record refutes any conclusion that those alleged instances of deficient
performance—considered individually or in aggregate—would undermine confidence in the
jury’s verdict. Finally, we find that where the trial court imposed a sentence within the
statutory range and where a stricter sentence was called for by defendant’s extensive criminal
history and parole status at the time of the offense, the trial court did not abuse its discretion in
sentencing defendant to a term of 23 years’ imprisonment.
¶ 39 I. Postconviction Proceedings
¶ 40 The Post-Conviction Hearing Act (Act) provides a three-stage framework under which
imprisoned defendants may raise claims of substantial denial of their constitutional rights. See
725 ILCS 5/122-1 et seq. (West 2010); People v. Tate, 2012 IL 112214, ¶ 10. At the second
stage of postconviction proceedings, a claim will be dismissed unless “the petition and any
accompanying documentation make ‘a substantial showing of a constitutional violation.’ ”
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Tate, 2012 IL 112214, ¶ 10 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)). If a
defendant successfully makes such a showing, the claim will be advanced to third-stage
proceedings, at which point the trial court conducts an evidentiary hearing on the issue. Id.
¶ 41 In People v. Domagala, 2013 IL 113688, our supreme court explained the requirements at
the second stage of postconviction proceedings:
“The second stage of postconviction review tests the legal sufficiency of the petition.
Unless the petitioner’s allegations are affirmatively refuted by the record, they are
taken as true, and the question is whether those allegations establish or ‘show’ a
constitutional violation. In other words, the ‘substantial showing’ of a constitutional
violation that must be made at the second stage [citation] is a measure of the legal
sufficiency of the petition’s well-pled allegations of a constitutional violation, which if
proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in
original.) Id. ¶ 35 (citing Edwards, 197 Ill. 2d at 246).
We apply de novo review to a trial court’s dismissal of postconviction claims at the second
stage of postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 378 (1998).
¶ 42 Claims of ineffectiveness of counsel are constitutional claims cognizable under the Act.
E.g., People v. Jones, 191 Ill. 2d 354, 359 (2000). To prevail on a claim of ineffective
assistance of counsel, a defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness (deficient performance) and (2) “there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different’ ” (prejudice). Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). A reasonable probability exists that the outcome
would have been different but for counsel’s deficient performance where those errors
undermine confidence in the outcome of the proceedings. See Strickland, 466 U.S. at 694.
¶ 43 A. Surrender of Bond
¶ 44 A criminal defendant is entitled to credit against his sentence for each day he spends in
pretrial custody. 730 ILCS 5/5-8-7(b) (West 2006). Our supreme court has clarified that “a
defendant who is out on bond on one charge, and who is subsequently rearrested and returned
to custody on another charge, is not returned to custody on the first charge [for the purposes of
custody credit] until his bond is withdrawn or revoked.”2 People v. Arnhold, 115 Ill. 2d 379,
383 (1987). Once a defendant in that scenario withdraws or surrenders his bond, he is
considered in custody on both offenses and earns credit against each for each day in custody.
People v. Robinson, 172 Ill. 2d 452, 459-63 (1996).
¶ 45 In People v. Centeno, 394 Ill. App. 3d 710 (2009), a majority of this court found that
counsel had been ineffective for failing to surrender defendant’s bond. In that case, as here, the
defendant was free on bond when he was taken into custody on a different charge. Id. at 712. In
finding counsel’s performance deficient, the majority noted that
“In an instance where defense counsel is aware that the defendant is in custody in
another jurisdiction, ‘[i]t behoove[s] defense counsel to move to withdraw the bond
2
We note that phrases such as “withdraw bond,” “surrender bond,” “exonerate bond,” and
“surrender in exoneration of bond,” are used synonymously. E.g., People v. DuPree, 353 Ill. App. 3d
1037, 1048 (2004); People v. Centeno, 394 Ill. App. 3d 710, 714 (2009).
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posted in the instant case in order to allow the defendant to earn credit against his
eventual sentences in the instant case at the same time that he earned credit against his
sentence in the [other jurisdiction].’ ” Id. at 714 (quoting People v. DuPree, 353 Ill.
App. 3d 1037, 1049 (2004)).
The majority concluded that had defendant received effective assistance, “counsel would have
moved to surrender the defendant in exoneration of [defendant’s] bond,” and defendant would
have received credit for 301 days spent in simultaneous custody. Id. Notably, the dissenting
justice in Centeno would have rejected the notion that failure to surrender bond is per se
deficient, noting that the record was silent as to key questions of fact, such as counsel’s and the
defendant’s positions on the surrender of bond. Id. at 715 (Schmidt, J., dissenting).
¶ 46 In defendant’s first appeal, in which he raised this same issue, the majority adopted the
dissent’s approach in Centeno. Nesbit, 398 Ill. App. 3d at 215. That is, the majority found that
too many factual questions existed to resolve the claim on direct review. Echoing the
sentiments of the Centeno dissent, the majority in Nesbit pointed out that the record was silent
as to any discussions between counsel and defendant regarding the surrendering of bond and
was similarly silent as to defendant’s preference on the matter. Id. The dissenting Nesbit justice
would have adhered to the majority in Centeno, found counsel ineffective, and granted
defendant the credit outright. Id. at 215-16 (O’Brien, J., concurring in part and dissenting in
part).
¶ 47 In an affidavit attached to his postconviction petition, defendant alleged that neither Rose
nor Hamm’s associate ever informed him that he could surrender the $3500 he posted as bond
in order to receive sentencing credit. Defendant further averred that if either of those attorneys
had so informed him, he would have chosen to surrender his bond. Taking these facts as
true—as we must do at this stage when not rebutted by the record (see Domagala, 2013 IL
113688, ¶ 35)—it is clear that defendant has made a substantial showing of ineffective
assistance of counsel. The failure of defense counsel to notify a defendant of his option to
surrender bond and receive credit for the time he is spending in custody is objectively
unreasonable, in satisfaction of the deficient performance prong. Of course, the prejudice to
defendant is clear: but for counsels’ deficient performance, defendant would have surrendered
his bond and received credit for the 246 days he was imprisoned between June 7, 2007, and
February 7, 2008.
¶ 48 To be clear, defendant is not seeking on this appeal the credit for time served, nor is he
seeking a finding that counsel was ineffective. Defendant’s request for relief is only that we
remand for a third-stage evidentiary hearing. Accordingly, we need not weigh in on any
conflict between this court’s decisions in Centeno and Nesbit. The issue that divided those
panels was the presence of factual questions pertaining to the surrender of bond. In the present
case, any such questions can and should be resolved at the third-stage evidentiary hearing. Id.
¶ 34.
¶ 49 Further, we find the State’s argument that defendant has forfeited this issue to be
unpersuasive. The State argues that “defendant chose not to forfeit his bail when he was held in
custody on the parole violation. Instead, the defendant chose to hire a private attorney to
defend him and he assigned his bail to that attorney.” The State’s characterization of defendant
as making a choice to not surrender his bond completely ignores defendant’s allegations.
Defendant could not be expected to surrender his bond if, as he alleges, neither of his attorneys
ever informed him of that option. Nor can defendant’s later assignment of the bond be held
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against him, if it was done without knowing his other options. Accordingly, we reverse the
dismissal of defendant’s ineffectiveness claim and remand for an evidentiary hearing on the
issue.
¶ 50 B. Other Claims of Ineffectiveness
¶ 51 Defendant next contends that three further claims of ineffective assistance of counsel
should have been advanced to a third-stage evidentiary hearing. Those claims are that counsel
was ineffective for (1) failing to call Cheryl as a witness at trial, (2) eliciting harmful testimony
from Poynter, and (3) failing to consult with defendant and investigate his medical condition.
Defendant argues that each of these instances of allegedly deficient performance was
individually prejudicial—that is, he argues that each error undermines confidence in the jury’s
verdict. He further argues that those three instances of allegedly deficient performance, when
considered in aggregate, undermine confidence in the jury’s verdict.
¶ 52 Before proceeding to defendant’s claims, we note that defendant’s trial turned on the issue
of constructive possession. See Nesbit, 398 Ill. App. 3d at 208-11. To sustain a conviction for
being an armed habitual criminal in the present case, the State was obligated to prove, inter
alia, that defendant possessed a firearm. 720 ILCS 5/24-1.7(a) (West 2006). “Criminal
possession may be actual or constructive; and where *** the possession was allegedly
constructive, the State [has] to prove that defendant (1) had knowledge of the presence of the
weapon, and (2) had immediate and exclusive control over the area where the weapon was
found.” People v. Ingram, 389 Ill. App. 3d 897, 899-900 (2009). Here, the defense theory was
that defendant had no knowledge of the presence of the weapon. Thus, on this appeal,
defendant contends that counsel’s deficient performance was prejudicial as it relates to that
specific element.
¶ 53 1. Cheryl Nesbit
¶ 54 Defendant first argues that counsel was ineffective for failing to call Cheryl as a witness at
trial. Defendant maintains that Cheryl’s testimony that she also drove the car and did not know
the gun was in the car would demonstrate that being in the car without knowledge of the gun
was possible and thus support his defense that he was unaware of the presence of the gun.
Cheryl’s testimony, defendant points out, would have also corroborated Sonja’s testimony that
defendant was not the only person who drove the car.
¶ 55 It is well settled that counsel’s decisions regarding the calling of witnesses at trial are
generally immune from claims of ineffective assistance. E.g., People v. Enis, 194 Ill. 2d 361,
378 (2000). Our supreme court has explained:
“[D]ecisions concerning whether to call certain witnesses on a defendant’s behalf are
matters of trial strategy, reserved to the discretion of trial counsel. [Citations.] Such
decisions enjoy a strong presumption that they reflect sound trial strategy, rather than
incompetence [citation], and are, therefore, generally immune from claims of
ineffective assistance of counsel [citation]. This is not the case, however, where
counsel’s strategy was so unsound that no meaningful adversarial testing was
conducted.” Id.
¶ 56 Defendant has not argued—either in this appeal or in his postconviction petition—that trial
counsel’s strategy was so unsound that no meaningful adversarial testing was conducted.
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Indeed, such an argument would be contradicted by the record. Though the defense did not call
any witnesses of its own, counsel evoked testimony on cross-examination of all witnesses that
directly supported its theory of the case. Counsel elicited testimony from Harrison and Poynter
that they had not actually seen defendant with the gun. Harrison testified on cross-examination
that he could not even see defendant’s hands actually go under the driver’s seat. Most
importantly, counsel elicited testimony from Sonja that the gun belonged to her, that she had
never seen defendant with it, and she had never told him about it. Moreover, counsel
vociferously argued for defendant’s innocence in closing arguments.
¶ 57 Furthermore, Cheryl’s testimony, as presented in her affidavit, would be of such little
probative value that it precludes any finding of prejudice stemming from counsel’s failure to
call her as a witness. Her testimony that she also drove the black Corvette was duplicative of
Sonja’s testimony and would merely serve to rehabilitate Sonja following Poynter’s
impeachment. Her testimony that defendant did not check under the seat earlier that day has no
bearing on whether defendant checked under the seat on any other occasion, or even put the
gun there himself. Moreover, Cheryl’s testimony that Sonja told the officers at the scene that
the gun was hers and that she had put the gun under the seat would directly contradict Sonja’s
testimony that she had not spoken to the officers at the scene. We therefore reject defendant’s
contention that the failure to present Cheryl’s testimony undermines confidence in the jury’s
verdict.
¶ 58 2. Sonja Nesbit
¶ 59 Defendant next contends that counsel was ineffective for eliciting harmful testimony from
Poynter on cross-examination upon recall by the State. Specifically, defendant argues that
counsel was deficient for eliciting Poynter’s observations that he had never seen Sonja drive
the black Corvette and had seen her driving a different car just days before the incident.
¶ 60 While it is arguably deficient performance for defense counsel to ask a State’s witness
questions to which counsel does not already know the answer, the record here indicates that
any prejudicial effect from counsel’s line of questioning was de minimis. See People v. Hale,
2013 IL 113140, ¶ 17 (reviewing court may dispose of ineffectiveness claims on prejudice
grounds without addressing counsel’s performance). The evidence of defendant’s knowledge
of the gun, while circumstantial, was overwhelming. See Nesbit, 398 Ill. App. 3d at 209-11
(summarizing evidence). That defendant was alone in a small car with a gun at least partially
visible creates a strong inference that defendant knew the gun to be there. That inference is
further supported by the testimony of two police officers who each saw defendant reach toward
the area of the gun following the car chase. Indeed, the fact that defendant fled from the police
is itself evidence of consciousness of guilt. E.g., People v. Harris, 52 Ill. 2d 558, 561 (1972).
Given the weight of the evidence against defendant, counsel’s brief exchange with Poynter
regarding what other car Sonja drove cannot be said to undermine confidence in the conclusion
that defendant knew the gun was in the car.
¶ 61 3. Defendant’s Medical Condition
¶ 62 Finally, defendant argues counsel was ineffective for failing to investigate and present
evidence regarding his blood sugar levels. In his petition and in this appeal, defendant contends
that his elevated blood sugar caused a “[m]ental [p]sychosis” and that his medical condition
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“may have caused him to crash the car, to disregard the officers’ directions to exit the car, and
to slump forward in the car.”
¶ 63 This argument can also be disposed of on prejudice grounds. See Hale, 2013 IL 113140,
¶ 17. It would strain credulity to suppose that each of defendant’s actions on the day of the
incident stemmed from defendant’s medical condition. Harrison testified that the car chase, in
which defendant apparently continued to obey traffic signals, lasted between 10 and 15
minutes. Poynter described that chase as taking place at “[r]elatively slow speeds.” After
defendant crashed, he reached toward the area under the driver’s seat and moved his hands
back and forth while ignoring commands to exit the vehicle. Even if evidence of defendant’s
medical condition and state of mind at the time of the incident had been introduced at trial, no
rational juror would accept the theory that defendant’s deliberate actions, taken over the course
of 10 to 15 minutes, were merely the result of high blood-sugar levels. Accordingly, the lack of
such evidence does not undermine confidence in the jury’s verdict.
¶ 64 In summary, each of defendant’s three above claims of ineffective assistance of trial
counsel fail on their merits. Given the overwhelming evidence against defendant, the minimal
prejudicial effect stemming from each claim, even when considered in the aggregate, would
not be enough to undermine confidence in the outcome of the trial. Accordingly, we affirm the
trial court’s second-stage dismissal of each of these claims.
¶ 65 II. Excessive Sentence
¶ 66 On appeal from the denial of his motion to reconsider sentence, defendant argues that the
trial court’s sentence of 23 years’ imprisonment for being an armed habitual criminal was
excessive. The trial court is afforded broad discretion in sentencing, and a sentence within
statutory limits will not be disturbed upon review absent an abuse of discretion. People v.
Alexander, 239 Ill. 2d 205, 212 (2010). Such deference is given to the trial court’s sentencing
decision because that court is in a better position to determine the appropriate punishment than
a reviewing court. People v. Cox, 82 Ill. 2d 268, 279 (1980). A trial court abuses its discretion
in sentencing where it imposes a sentence “greatly at variance with the spirit and purpose of the
law, or manifestly disproportionate to the nature of the offense.” People v. Stacey, 193 Ill. 2d
203, 210 (2000).
¶ 67 The offense of being an armed habitual criminal is a Class X felony. 720 ILCS 5/24-1.7(b)
(West 2006). Defendant thus faced a potential sentencing range of between 6 and 30 years’
imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 2006). Defendant has referred to his sentence of
23 years’ imprisonment as a “high-end sentence.” Of course, such a characterization is purely a
matter of interpretation, and we would note that a sentence of 23 years’ imprisonment, where a
defendant faces a standard Class X sentencing range, could just as easily be referred to as a
sentence in the middle range. In any event, it is noteworthy that the sentence defendant
received is significantly removed from the maximum sentence he faced.
¶ 68 Defendant’s criminal history is extensive. Aside from the three felony burglaries used as
elements of defendant’s conviction for being an armed habitual criminal, defendant has been
convicted of five misdemeanors and 13 felonies since 1982. Two of those convictions—one
misdemeanor and one felony—were for possession of weapons, the same conduct as the
offense underlying defendant’s conviction for being an armed habitual criminal, indicative that
perhaps the sentences imposed on those occasions were of little deterrent effect. Though
defendant’s record does not show a conviction between 2002 and the present one, that gap is
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almost wholly attributable to the fact that defendant was in prison during that period. In fact,
defendant had been released on parole for less than five months when he committed the present
offense. Though defendant calls attention to the fact that his longest previous sentence was
nine years’ imprisonment, this merely highlights the fact that the shorter sentences he received
apparently had no rehabilitative or deterrent impact. Given defendant’s criminal history and
his apparent unwillingness to reform, the sentence imposed by the trial court is far from an
abuse of discretion.
¶ 69 Defendant’s argument that his extensive criminal history is mitigated by other factors is
unconvincing. First, defendant argues that his conviction for being an armed habitual criminal
is a status offense, and that “[h]ad he not been convicted on any prior felonies, possessed a
FOID card, and possessed the gun on his own land or in his own abode or fixed place of
business, he would not have been guilty of any offense at all.” Defendant is undoubtedly
correct that if he had done things completely differently, he would not be guilty of any offense.
However, the fact remains that defendant possessed a firearm, having been convicted of felony
burglary on three prior occasions. The legislature, in its sound judgment, has deemed that such
conduct warrants a sentence of between 6 and 30 years’ imprisonment, and the trial court
imposed a sentence within that range. While defendant apparently believes that such a
sentence is excessive for a status offense, his dispute is with the legislature, and not the trial
court.
¶ 70 Finally, defendant argues that because his possession of the firearm was constructive,
rather than actual, his offense is inherently less serious and thus deserving of a lesser sentence.
Defendant has cited no authority for this proposition. More importantly, his argument defies
reason. No one could credibly argue that a felon with a weapon hidden under the seat of his car
as he drives is inherently a lesser danger to society than a felon with a weapon tucked in his
waistband.
¶ 71 Defendant’s sentence of 23 years’ imprisonment was within the statutory range for Class X
offenses. Indeed, the sentence in the high-middle of the Class X range is reflective of
defendant’s criminal history, as well as his status on parole at the time the offense was
committed. Moreover, the record gives no indication that the trial court failed to consider any
relevant factors in mitigation. Therefore, we find that the trial court did not abuse its discretion
in sentencing defendant. Accordingly, we affirm defendant’s sentence.
¶ 72 CONCLUSION
¶ 73 The judgment of the circuit court of Peoria County is affirmed in part, reversed in part, and
remanded for further proceedings.
¶ 74 Affirmed in part and reversed in part.
¶ 75 Cause remanded.
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