People v. Jones , 2019 IL App (1st) 170478 ( 2020 )

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Appellate Court Date: 2020.06.04
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People v. Jones, 2019 IL App (1st) 170478
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANTHONY JONES, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-17-0478
Filed November 21, 2019
Rehearing denied December 23, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 15-CR-9509; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Bryon M. Reina, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Hareena Meghani-Wakely, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Justices McBride and Burke concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Anthony Jones was found guilty of eight weapons-
related charges, including armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2014)). The
court merged all counts into the armed habitual criminal count and sentenced defendant to
seven years in prison on that count. On appeal, defendant contends his convictions on all
charges should be reversed because the State did not prove that he possessed the firearm
recovered by a police officer. He further argues his statement to a second officer that he
possessed a firearm was insufficient to establish the corpus delicti of the offenses. In addition,
defendant contends his case should be remanded for an inquiry into his counsel’s effectiveness
pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). He also asserts his sentence is excessive
in light of the nonviolent circumstances of the offense, his lack of a violent criminal history,
and his rehabilitative potential. We affirm.
¶2 Following a police foot pursuit on May 23, 2015, defendant was charged with being an
armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2014)). The State also charged defendant
with two counts of unlawful use of a weapon by a felon (id. § 24-1.1(a)), four counts of
aggravated unlawful use of a weapon (id. § 24-1.6(a)(1), (2)), and one count of defacing the
identification marks of a firearm (id. § 24-5(b)).
¶3 At trial, Chicago police officer Garcia testified that at about 11 p.m. on May 23, 2015, he
and his partner, Officer Caro, responded to a call of a person with a firearm in the area of
Madison Street and Whipple Street. 1 Garcia saw defendant, whom he identified in court,
walking on the sidewalk on Whipple Street wearing the clothing that was described in the
police dispatch. Between 5 and 15 other people were also nearby.
¶4 Garcia stopped his vehicle and got out. Defendant continued to walk north on Whipple.
Garcia announced his office and shouted “hey” to defendant. Defendant turned, looked at
Garcia, and ran. Garcia ran after defendant. He estimated he was 15 feet behind defendant and
was gaining on defendant as they ran.
¶5 Garcia followed defendant when defendant turned right and ran east on Madison. He saw
defendant’s hand “come up towards his waistband area at which time I observed his left hand
*** toss a[n] unknown black object that made a metallic noise” when it hit the ground. Garcia
could not see what the black object was but said it made a “[l]ike a clunking noise.” Garcia
pursued defendant on Madison and then south onto South Sacramento Boulevard.
¶6 Defendant was detained on Sacramento, where several officers had assembled. Garcia told
Officer Catalano that, after pursuing defendant onto Madison, he saw defendant discard an
item that made a metallic noise when it hit the ground. Catalano left immediately. As Garcia
retraced the path of the foot chase, he saw Catalano standing over a blue steel Taurus
semiautomatic pistol on the ground near where Garcia had seen defendant discard the unknown
object. Garcia said the firearm was spotted by Catalano within “seconds” of defendant’s
detention. Catalano recovered and inventoried the firearm.
¶7 Defendant was advised of his Miranda rights and taken to the Eleventh District police
station, where Garcia and Caro interviewed him. Garcia asked defendant why he ran.
1
No first name for any of the officers was given at trial.
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Defendant responded he had seen a firearm on the ground and picked it up, and ran because he
did not want to get caught with it.
¶8 On cross-examination, Garcia said that when he initially saw defendant on the sidewalk,
he did not see anything in defendant’s hands. The other people with defendant scattered, some
in the same direction as defendant. During the pursuit, Garcia did not send a radio message to
other officers about the object discarded by defendant. It took Garcia between 30 and 45
seconds to walk from where defendant was detained back to Madison. There was a “busy”
grocery store “next to” where the firearm was recovered on Madison. Garcia had not seen
where the object landed when defendant threw it. Defendant’s statement was not memorialized
but was documented in the police case report. Garcia did not ask defendant to identify the
recovered firearm or “anything about the firearm.” On redirect, Garcia said he could not recall
if other people were in the area of Madison and Whipple when defendant discarded the object.
¶9 Catalano testified that when he arrived at Sacramento, Garcia was placing handcuffs on
defendant. After speaking with Garcia, Catalano went to the area of Madison and Whipple and,
within 30 seconds, recovered a blue steel, 9-millimeter Taurus firearm loaded with eight live
rounds. The weapon’s serial number had been defaced.
¶ 10 On cross-examination, Catalano stated there was a grocery store near where he recovered
the firearm. He did not recall if anyone was walking near the store. He recovered the firearm
in the street, a foot from the curb. On redirect, he stated no other objects were on the street or
sidewalk where the firearm was recovered.
¶ 11 The parties stipulated that defendant previously was convicted of possession of
methamphetamine in case No. 09-CR-051701 and convicted of the manufacture and delivery
of a controlled substance in case No. 06-CR-1231501. They also stipulated that he did not have
a concealed carry license or a firearm owner’s identification (FOID) card on the day of this
offense.
¶ 12 For the defense, Tarrina Covington testified he had known defendant for 10 years. On the
night of May 23, 2015, Covington picked up defendant and defendant’s cousin, Eric Jones,
and drove them all to Madison and Whipple. Covington remained in his car while defendant
got out and talked to some friends. About 10 or 15 people were nearby. When a police car
drove up, defendant and several other people walked north on Whipple toward Madison.
Covington did not see defendant hold a firearm or carry a firearm in his waistband or see
defendant reach the intersection of Madison and Whipple.
¶ 13 Defendant testified he and Jones were talking to a group of people at Madison and Whipple
after Covington drove them there. When the police drove up, people threw bottles and cups of
alcohol to the ground and started to walk away. Defendant “walked off with the crowd,” and
when a police officer said “stop right there or something, hey, come here *** everybody
scattered off running, everybody went separate ways.”
¶ 14 Defendant said he ran across Madison and turned left and was eventually detained by police
at Albany Avenue. He denied having a firearm, running right on Madison to Sacramento, or
throwing any object onto the ground. He also denied telling a police officer that he picked up
a weapon from the sidewalk. On cross-examination, defendant said he spoke with Garcia at
the police station but told the officer it was not his firearm. Defendant denied telling Garcia he
ran to avoid being caught with a weapon.
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¶ 15 In rebuttal, the State entered a stipulation that defendant had a prior felony conviction for
possession of a controlled substance in case No. 06-CR-972401.
¶ 16 At the close of evidence, the trial court stated:
“All right. [The] court did hear the evidence. There are some credibility issues to
be resolved. There were people on the street, started to run, detracted officers’ attention.
They were in pursuit and saw Mr. Jones—Officer Garcia saw Mr. Jones throw
something and heard something metallic, kept going, and finally detained Mr. Jones.
Officer Catalano was right there on the spot. Officer Garcia told him he found a firearm
right where it was supposed to be. And there was reference [sic] from Mr. Jones
admitted having that firearm and tossing it, according to police. He says he never saw
[sic] that. I find the police by far more credible and compelling than him.
There will be a finding of guilty as charged.”
¶ 17 The court merged all counts into the armed habitual criminal count.
¶ 18 Defense counsel filed a motion for reconsideration of the court’s findings or, alternatively,
for a new trial. The motion asserted, along with eight other points, that “defendant was denied
effective assistance of counsel” but did not elaborate on the claim. At the hearing on the
motion, at which defendant was present, defense counsel argued the evidence did not show
that defendant possessed a weapon but did not raise the ineffective assistance claim. The court
denied the motion.
¶ 19 A presentence investigation report was prepared. At sentencing, the State argued in
aggravation that defendant had prior adult convictions for possession of methamphetamine and
delivery and possession of a controlled substance. In mitigation, defense counsel requested a
minimum sentence, arguing defendant had no prior weapons-related arrests or convictions and
no history of arrests “with respect to crimes of violence.” Counsel also noted defendant’s
qualifying narcotics convictions under the armed habitual criminal statute were from 2006 and
2009. In addition, counsel asserted that defendant had “strong family support” with his
relatives present in court and had been employed at a car wash during the pendency of his case.
Counsel also noted defendant had not incurred additional charges during this case. Defendant
addressed the court in allocution, apologizing and asking to be with his children and family.
¶ 20 In imposing a seven-year term, the court noted defendant’s “background was narcotics-
related.” The court observed defendant could receive up to 30 years in prison but found a
shorter sentence appropriate, noting that defendant would serve 85% of his term.
¶ 21 Defendant filed a motion to reconsider sentence, asserting, inter alia, that his sentence was
excessive and the trial court failed to consider mitigating factors. The trial court denied that
motion, and defendant now appeals.
¶ 22 Defendant first contends the evidence was insufficient to prove his guilt beyond a
reasonable doubt because he was not seen in possession of a firearm, no physical evidence
linked him to the firearm, the firearm was recovered from a “heavily trafficked” area over
which he had no control, and Garcia’s testimony that defendant admitted the firearm was his
was not credible. Thus, defendant argues, the State did not prove he had actual possession of
the weapon that Catalano recovered from the sidewalk. He further argues the State failed to
prove the necessary corpus delicti because the only evidence that he possessed the firearm was
his unmemorialized statement to Garcia.
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¶ 23 Before addressing defendant’s arguments, we note that he frames his contentions regarding
the sufficiency of the evidence as a challenge to his “convictions” on all eight charged counts.
The record reflects that, in finding defendant guilty, the trial court merged all counts into the
armed habitual criminal count and imposed sentence on that count only. Further, defendant’s
notice of appeal lists only the armed habitual criminal offense.
¶ 24 Defendant acknowledges that, as a general rule, a judgment of guilty on an unsentenced
count cannot be appealed. However, he maintains such an appeal can be taken where the appeal
is “from the final judgment of another offense,” citing People v. Scott, 69 Ill. 2d 85, 88 (1977).
The State does not address the issue but confines its reasonable doubt argument to the offense
of armed habitual criminal. In People v. Caballero, 102 Ill. 2d 23, 51 (1984), our supreme
court held a defendant may only appeal convictions for which a sentence has been imposed.
See People v. Fort, 2019 IL App (1st) 170644, ¶ 37; People v. Olaska, 2017 IL App (2d)
150567, ¶¶ 112-15 (following Caballero over Scott and restricting its review to the convictions
on which the defendant was sentenced, and noting the content of the defendant’s notice of
appeal). Accordingly, we have no jurisdiction to decide the validity of unsentenced offenses.
See People v. Relerford, 2017 IL 121094, ¶¶ 74-75. We address defendant’s arguments only
as they relate to his sentenced armed habitual criminal conviction.
¶ 25 When a defendant challenges the sufficiency of the evidence to sustain a conviction, this
court must determine whether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the elements of the offense were established
beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)). That standard applies whether the evidence is direct or
circumstantial and does not allow this court to substitute its judgment for that of the trier of
fact on issues that involve the credibility of the witnesses and the weight of the evidence.
People v. Jackson, 232 Ill. 2d 246, 280-81 (2009); People v. Thigpen, 2017 IL App (1st)
153151, ¶ 21. Moreover, when proving each element of a criminal offense beyond a reasonable
doubt, the State must establish that (1) a crime was committed, also known as the
corpus delicti, and (2) the crime was committed by the defendant. People v. Pitts, 2016 IL App
(1st) 132205, ¶ 31. This court will not reverse a criminal conviction based on the insufficiency
of the evidence unless the evidence is so improbable or unsatisfactory that a reasonable doubt
exists as to the defendant’s guilt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011).
¶ 26 To convict defendant for being an armed habitual criminal as charged, the State was
required to prove beyond a reasonable doubt that defendant (1) possessed a firearm and (2) had
been convicted two or more times of certain offenses as enumerated in the statute. 720 ILCS
5/24-1.7(a) (West 2014). The parties stipulated that defendant had prior convictions for two
qualifying offenses. Defendant does not contest that the convictions satisfy the statutory
elements or that the recovered weapon was a firearm. He only argues the State failed to prove
he possessed the recovered firearm.
¶ 27 Whether a defendant had possession of contraband is a factual issue, and this court will not
disturb the findings of the trial court, which was the trier of fact in this bench trial, unless the
evidence is so unbelievable that it creates a reasonable doubt as to the defendant’s guilt. People
v. Miller, 2018 IL App (1st) 152967, ¶ 11. Possession of a firearm can be either actual or
constructive. People v. Dismuke, 2017 IL App (2d) 141203, ¶ 44. Actual possession is proved
by testimony that the defendant exercised some form of dominion over the firearm, such as
that he had it on his person, tried to conceal it, or was seen to discard it. Miller, 2018 IL App
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(1st) 152967, ¶ 9; People v. Anderson, 2018 IL App (4th) 160037, ¶¶ 31-32. To establish
constructive possession, the State must prove that the defendant had knowledge of the presence
of the firearm and exercised immediate and exclusive control over the area where the firearm
was found. People v. McCurine, 2019 IL App (1st) 160817, ¶ 22.
¶ 28 We find the evidence sufficient to show defendant was in actual possession of a firearm.
Defendant told Garcia at the police station that he picked a gun up from the ground and ran
from police because he did not want to get caught with it, thus establishing his possession of a
firearm. Defendant argues that Garcia’s testimony regarding his unmemorialized statement
was incredible. Defendant asserts Garcia did not testify that he saw defendant pick up a firearm
“even though Garcia was watching [defendant] when this supposedly happened.” Defendant’s
argument is without merit because Garcia testified that defendant discarded a weapon. It was
only defendant who testified he picked one up. Moreover, defendant did not specify when he
picked up the firearm, so there is no basis to claim that Garcia would have seen him do it.
Further, in reviewing the sufficiency of the evidence, this court gives great deference to the
findings of the trial court regarding the credibility of witnesses. See People v. Little, 2018 IL
App (1st) 151954, ¶ 36. Here, after summarizing the evidence, the trial court found the police
testimony “more credible and compelling” than defendant’s testimony. We defer to that
credibility determination. See id.
¶ 29 As defendant points out, a defendant’s admission or confession alone cannot prove the
corpus delicti; rather, such a statement by the defendant must be accompanied by corroborating
evidence that is independent of the statement. People v. Lara, 2012 IL 112370, ¶ 17. The
corroborating evidence does not have to prove the defendant guilty of the crime beyond a
reasonable doubt but must “ ‘tend[ ] to’ ” connect the defendant with the crime. (Internal
quotation marks omitted.) Pitts, 2016 IL App (1st) 132205, ¶ 31 (quoting People v. Perfecto,
26 Ill. 2d 228, 229 (1962)). Here, defendant’s conviction was not solely based on his statement
to Garcia but was corroborated by evidence connecting defendant to the firearm recovered by
Catalano.
¶ 30 Garcia testified that while pursuing defendant on foot, he saw defendant reach into his
“waistband area” and toss a black object to the sidewalk. Garcia was within 15 feet of
defendant and heard the object make a metallic noise or a “clunking” noise when it hit the
ground at Madison and Whipple. When defendant was detained shortly thereafter, Garcia
reported those facts to Catalano. Catalano immediately went to Madison and Whipple and,
within 30 seconds, found the firearm in the street a foot from the curb. He saw no other object
on the street or sidewalk there. When Garcia walked back to where he saw defendant discard
the object, he saw Catalano standing over the firearm. The officers’ testimony tends to connect
defendant to the firearm recovered on Madison, a firearm he threw away as he ran, thus
corroborating his admission to Garcia that he ran from police after picking up a gun that he did
not want to be caught carrying. Therefore, defendant’s statement, coupled with the independent
evidence provided in the officers’ testimony, established that defendant was in possession of a
firearm and was guilty of being an armed habitual criminal.
¶ 31 We note that, even without defendant’s statement, the above-cited testimony is sufficient
to show defendant’s constructive possession of the firearm, where Garcia saw defendant
discard an object and Catalano shortly thereafter recovered a firearm in the same location.
Defendant contends it was “highly improbable” that Garcia would not have noticed additional
details about the firearm during the chase, such as where it was located and what it looked like.
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However, Garcia testified he was running after defendant when he saw defendant discard an
“object.” It is entirely reasonable that Garcia would not have noticed the exact location where
that object landed or what exactly the object was while he ran.
¶ 32 Defendant also claims the recovered firearm could have been discarded by one of the other
people in the area at the time, where it was found in front of a busy store and he had not been
the only person running from police in that direction. Defendant’s theory would have required
the trial court to find that defendant happened to discard a black object in the same location as
the blue steel pistol recovered shortly after he was seen throwing that object, in an area where
no other objects were found on the street or sidewalk. The trier of fact is not required to
disregard the inferences that flow from the evidence or search out all possible explanations
consistent with a defendant’s innocence and raise them to the level of reasonable doubt. Miller,
2018 IL App (1st) 152967, ¶ 11. From the testimony presented at trial, the court could
conclude, as the trier of fact, that the weapon recovered by Catalano was the item that Garcia
saw defendant discard. In sum, the evidence was sufficient to show defendant possessed a
firearm and thus was guilty of being an armed habitual criminal beyond a reasonable doubt.
¶ 33 Defendant next contends this case should be remanded for the trial court to conduct a
Krankel inquiry into the ineffective assistance claim included in his counsel’s posttrial motion.
The State responds no such process was required because defendant did not make a pro se
claim regarding counsel’s representation.
¶ 34 Defendant was represented at trial and in posttrial proceedings by retained counsel.
Following defendant’s bench trial, counsel filed a motion for reconsideration of the court’s
findings or, alternatively, for a new trial. The motion listed nine claims, the last of which baldly
stated, without elaboration: “The defendant was denied effective assistance of counsel.” At the
hearing on the motion, neither defense counsel nor the court referred to that specific contention.
Defendant was present in court but did not complain to the court about his representation.
¶ 35 Defendant now argues the inclusion of that claim in his counsel’s motion was sufficient to
trigger a Krankel inquiry. Krankel and subsequent cases establish a two-step procedure for the
trial court to undertake when a defendant has raised a pro se posttrial claim of counsel’s
ineffective assistance. A Krankel proceeding “serves the narrow purpose of allowing the trial
court to decide whether to appoint independent counsel to argue a defendant’s pro se posttrial
ineffective assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39. The goal of the
proceeding is to “facilitate the trial court’s full consideration of a defendant’s pro se claim [of
ineffective assistance of counsel] and thereby potentially limit issues on appeal.” People v.
Ayres, 2017 IL 120071, ¶ 13.
¶ 36 First, when a pro se ineffective assistance of counsel claim is presented, the trial court must
conduct a preliminary inquiry to determine the factual basis of the claim. See Krankel, 102 Ill.
2d at 187-89. If the court determines the claim lacks merit or pertains only to matters of trial
strategy, it is not required to appoint new counsel and may deny defendant’s pro se motion.
People v. Jolly, 2014 IL 117142, ¶ 29. This initial inquiry can involve a discussion of the
allegations with the defendant or an “interchange between the trial court and trial counsel
regarding the facts and circumstances surrounding the allegedly ineffective representation.”
(Internal quotation marks omitted.) Ayres, 2017 IL 120071, ¶ 12. Such an interchange “is
permissible and usually necessary in assessing what further action, if any, is warranted on a
defendant’s claim.” (Internal quotation marks omitted.) Jolly, 2014 IL 117142, ¶ 30. In
addition to those methods, the court may consider the defendant’s pro se allegations of
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ineffectiveness of counsel based on the court’s own knowledge of defense counsel’s
performance at trial. Id.; People v. Moore, 207 Ill. 2d 68, 79 (2003).
¶ 37 Second, if the allegations reveal possible neglect of the case, new counsel is appointed to
represent the defendant in a full hearing on the claim of the ineffectiveness of original counsel.
People v. Villanueva, 2017 IL App (3d) 150036, ¶ 46. Whether a defendant was entitled to a
Krankel hearing is a legal question that is reviewed de novo. People v. Jackson, 2016 IL App
(1st) 133741, ¶ 68.
¶ 38 “[W]hen a defendant brings a clear claim asserting ineffective assistance of counsel, either
orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a Krankel
inquiry.” Ayres, 2017 IL 120071, ¶ 18. The defendant need only bring his or her posttrial
ineffective assistance of counsel claim to the trial court’s attention, and the claim need not be
supported by facts or specific examples. Id. ¶¶ 19, 22 (finding the defendant’s pro se posttrial
petition stating “ineffective assistance of counsel” without additional facts or argument
sufficient to trigger a Krankel inquiry). “[T]he primary purpose of the preliminary inquiry is
to give the defendant an opportunity to flesh out his claim of ineffective assistance so the court
can determine whether appointment of new counsel is necessary.” Id. ¶ 20.
¶ 39 Here, we consider whether such preliminary inquiry is mandated when a bare claim of the
ineffective assistance of counsel is raised in a motion submitted by defense counsel, rather than
raised pro se by a defendant. Defendant acknowledges the considerable line of supreme court
precedent that has applied the requirement of a Krankel inquiry only in the context of pro se
claims of ineffective assistance of counsel. See People v. Bates, 2018 IL App (4th) 160255,
¶¶ 101-02 (citing Ayres, Patrick, Jolly, Moore, Krankel, and other supreme court decisions
involving pro se claims and stating, “The Illinois Supreme Court has never held that a Krankel
hearing may be triggered by a defense counsel’s representations in the absence of the
defendant’s pro se motion raising a claim of ineffective assistance of counsel ***.”); see also
People v. McGath, 2017 IL App (4th) 150608, ¶¶ 49, 51-52 (rejecting the defendant’s
argument that the trial court should have conducted a Krankel inquiry into defense counsel’s
own ineffectiveness claim because Krankel and its progeny “apply only to posttrial claims
raised by a defendant pro se” (emphasis in original)).
¶ 40 However, defendant maintains the supreme court in those cases did not expressly limit
Krankel to pro se contentions. In arguing the trial court is required to hold a Krankel hearing
whenever an allegation of ineffective counsel is raised, defendant cites to two First District
cases, People v. Willis, 2013 IL App (1st) 110233, and People v. Hayes, 229 Ill. App. 3d 55
(1992). We find these cases distinguishable.
¶ 41 Willis involved a posttrial motion filed by trial counsel for a minor defendant tried in adult
court in which counsel alleged, inter alia, his own ineffective assistance for failing “ ‘to use
due diligence to insure’ ” a particular witness would be available to testify at trial rather than
by stipulation. Willis, 2013 IL App (1st) 110233, ¶ 62. Counsel stated that the witness’s live
testimony was “material” to counsel’s trial strategy, the stipulation was insufficient to satisfy
this strategy, and the defendant was prejudiced because the jury did not hear the live testimony.
Id. After defense counsel described the alleged error, the State noted defense counsel’s
allegation might raise a conflict of interest. Id. When the court asked the State if it wanted to
file a motion to disqualify defense counsel, defense counsel struck the ineffective assistance
claim from the motion. Id. Neither counsel nor defendant raised the claim again. On appeal,
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the defendant argued the trial court erred in not inquiring into counsel’s allegation of
ineffectiveness under Krankel. Id. ¶ 74.
¶ 42 This court agreed, remanding for the limited purpose of an “adequate inquiry” by the court
into the claim of ineffective assistance of counsel. Id. In so holding, this court called the facts
“unusual” in that defense counsel raised his own ineffectiveness and later changed his mind
and withdrew the allegation; the court further noted the defendant was a minor at the time of
trial. Id. ¶ 69. The court rejected the State’s suggestion that the defendant should have objected
to counsel’s withdrawal of the issue or made clear in some other manner that he was dissatisfied
with counsel’s performance, holding:
“Given that [the defendant] was a minor at the time of his trial, we cannot reasonably
expect him to raise the issue of his trial counsel’s ineffective assistance on his own. A
juvenile would be expected to be more at the mercy of counsel than an adult, and less
likely to be cognizant and aware of his legal rights.” Id. ¶ 70.
The court thereafter referred to counsel’s ineffectiveness claims as “[defendant’s] allegation
of ineffective assistance as raised by his trial counsel.” (Emphasis added.) Id. ¶ 73.
¶ 43 To the extent our court held in Willis that even an attorney can trigger a preliminary Krankel
inquiry, we find neither of the bases for that determination apply in the case at bar. First, unlike
trial counsel in Willis, counsel here did not admit he was ineffective, let alone set forth the
specifics of that ineffectiveness and the resulting prejudice to his client. Rather, counsel made
a single, perfunctory mention of ineffective assistance in his posttrial motion and never raised
it again. Second, and more importantly, defendant here was not a minor at the time of trial.
The crux of Willis was that the defendant was a juvenile, “more at the mercy of counsel than
an adult, and less likely to be cognizant and aware of his legal rights.” Id. ¶ 70. Thus, this court
did not “reasonably expect him to raise the issue of his trial counsel’s ineffective assistance on
his own.” Id. Defendant was an adult well able to raise his own ineffective assistance of counsel
claim. Accordingly, we find Willis is distinguishable. See also Bates, 2018 IL App (4th)
160255, ¶¶ 103-04 (distinguishing Willis on the same bases).
¶ 44 Defendant also relies on Hayes. There, the defendant was convicted of murdering his
seven-year-old son, and the trial court found he was not insane at the time of the offense.
Hayes, 229 Ill. App. 3d at 60. In a posttrial motion, defense counsel stated the standard of proof
for insanity was “ ‘very, very, very, very confusing.’ ” Id. Counsel admitted he had been
mistaken in believing the State was required to prove the defendant’s mental incompetence
and, as a result, he had not presented readily available evidence regarding the defendant’s
mental condition. Id. at 61. Counsel then summarized the evidence he would have presented.
Id. Although the trial court denied defense counsel’s motion for a new trial, the court stated it
was “very troubled by the way the defense tried the case” and by counsel’s argument in favor
of the motion. Id. at 60. The trial court stated that, although the case may have been “ ‘tried in
an incompetent manner,’ ” it would grant a new trial only based on a mistake of law or newly
discovered evidence and found that the incompetence of counsel was not a reason for a new
trial. Id.
¶ 45 On appeal, after holding defense counsel was ineffective for misunderstanding the relevant
burden of proof, this court stated the trial court “should have at least inquired into the
possibility” of an actual conflict where defendant’s privately retained counsel argued his own
incompetence. Id. at 64-65. We explained that, where the trial court sees incompetence of
counsel and that incompetence is related to an insanity issue, “where defendant obviously does
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not understand what is happening, the trial court must step in to protect defendant.” Id. at 65.
This court found further inquiry was warranted because the trial court did recognize possible
neglect of the defendant’s case, expressing its displeasure with counsel’s representation, and
“further inquiry would have revealed that it was necessary for the trial judge to step in to protect
defendant.” Id.
¶ 46 Hayes does not set forth a rule that a preliminary Krankel inquiry is always required when,
as here, defense counsel makes an undeveloped, cursory claim of ineffectiveness. In fact,
Hayes does not address Krankel or cite to the case at all, as defendant did not raise a Krankel
claim on appeal. Rather, Hayes was decided in the context of the defendant’s right to conflict-
free counsel and the trial court’s duty to take action when it sees incompetence by counsel. See
id. at 64-65. Hayes concluded that the trial court should have inquired into the possibility of
actual conflict based on counsel’s admission that he misunderstood the law regarding the
insanity defense and the impact this had on the evidence he presented in the defendant’s case.
Id. at 65. But the reason for the inquiry was not merely because counsel raised an ineffective
assistance claim. Rather, the inquiry was required to determine whether “it was necessary for
the trial judge to step in to protect” the defendant given that the ineffective assistance related
to the defendant’s sanity and the defendant might not understand what was happening or
recognize neglect of his case. Id. These circumstances do not apply here, where counsel did
not demonstrate his ineffectiveness and defendant was capable of understanding the
proceedings. Thus, Hayes is distinguishable.
¶ 47 Here, defense counsel’s written motion included a bare claim that defendant was “denied
effective assistance of counsel,” counsel did not refer to that claim in arguing the motion nor
demonstrate to the trial court that his representation of defendant was deficient, and defendant
was capable of raising an ineffective assistance of counsel claim pro se. Given the facts of this
case, we find that the trial court was not required to initiate a Krankel inquiry into defense
counsel’s performance.
¶ 48 Defendant’s remaining contention on appeal is that his seven-year prison sentence is
excessive. He claims his sentence is disproportionate to the nature of the offense of firearm
possession, where his actions did not threaten harm to anyone. He also points out that he has
no prior violent criminal history, and he contends the sentence fails to adequately account for
his rehabilitative potential. He requests that we vacate his sentence and remand for a new
sentencing hearing or reduce his sentence to the six-year statutory minimum.
¶ 49 The Illinois Constitution provides that penalties are to be determined both according to the
seriousness of the offense and with the objective of restoring the offender to useful citizenship.
Ill. Const. 1970, art. I, § 11; People v. Perruquet, 68 Ill. 2d 149, 154-55 (1977). A sentence
must be based on the particular circumstances of each case and depends on many factors,
including the defendant’s criminal history, the defendant’s potential for reform, and the need
to protect the public and provide a deterrent to crime. People v. Saldivar, 113 Ill. 2d 256, 268-
69 (1986); Perruquet, 68 Ill. 2d at 154; People v. Wilson, 257 Ill. App. 3d 670, 704-05 (1993).
¶ 50 The trial court has broad discretion to impose a sentence; a sentence that is within statutory
limits is presumed proper and is reviewed for an abuse of that discretion. People v. Contursi,
2019 IL App (1st) 162894, ¶ 23; People v. Branch, 2018 IL App (1st) 150026, ¶ 34. In
imposing sentence, the court must weigh both aggravating and mitigating factors. See 730
ILCS 5/5-5-3.1, 5-5-3.2 (West 2014). Relevant sentencing factors include the defendant’s
demeanor, credibility, social environment, age, mentality, and moral character. People v.
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Snyder, 2011 IL 111382, ¶ 36. Because the trial court has personally observed the defendant
and the proceedings, that court is in the best position to determine an appropriate sentence.
People v. Alexander, 239 Ill. 2d 205, 212-13 (2010). This court will not substitute its judgment
for that of the trial court merely because we would have weighed the sentencing factors
differently. People v. Charles, 2018 IL App (1st) 153625, ¶ 46. We will alter a sentence only
when it varies greatly from the spirit and purpose of the law or is manifestly disproportionate
to the nature of the offense. Contursi, 2019 IL App (1st) 162894, ¶ 23 (citing Snyder, 2011 IL
111382, ¶ 36).
¶ 51 Defendant was convicted of being an armed habitual criminal, which is a Class X felony
subject to a sentencing range of 6 to 30 years in prison. 720 ILCS 5/24-1.7(b) (West 2014);
730 ILCS 5/5-4.5-25(a) (West 2014). The trial court sentenced defendant to seven years. As
defendant acknowledges, his sentence was within the applicable range and thus presumed
proper. See Contursi, 2019 IL App (1st) 162894, ¶ 23. Indeed, the trial court imposed a term
only one year greater than the minimum possible sentence.
¶ 52 Nevertheless, defendant argues the sentence was excessive because his armed habitual
criminal conviction was based on the act of “simple firearm possession,” and he did not cause
or threaten harm to anyone or use the firearm dangerously. The purpose of the armed habitual
criminal statute is “to help protect the public from the threat of violence that arises when repeat
offenders possess firearms.” (Emphasis added.) People v. Johnson, 2015 IL App (1st) 133663,
¶ 27. Defendant is such a repeat offender. Although, as he points out, “many Illinois citizens”
lawfully possess firearms, defendant had a criminal record, did not have a FOID card, and was
not legally in possession of the firearm, which, given his attempt to dispose of the weapon, he
was well aware of. His knowing possession of a prohibited weapon as a repeat offender with
qualifying prior convictions warranted a sentence one year over the minimum.
¶ 53 Defendant contends that his seven-year sentence does not reflect his rehabilitative
potential. He notes his gainful employment at the time of his arrest and while he was out on
bond and his family support. Defendant points out he did not incur further criminal charges
while on bond awaiting trial and had a job and stable housing waiting for him upon his release
from prison. He also points out the prior convictions underlying the armed habitual criminal
conviction were for nonviolent drug crimes that occurred more than 10 years ago.
¶ 54 The record establishes defense counsel made these same arguments to the trial court at
sentencing, and the presentence investigation report reflected defendant’s mother’s support for
her son, his work history before and after his arrest, and his criminal history. When such factors
have been presented to the trial court, it is presumed the court considered those factors, absent
some indication to the contrary. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 19.
¶ 55 There is no such indication here. Although the court did not specifically address
defendant’s rehabilitative potential, it is not required to recite or assign a value to each factor
in mitigation or aggravation that forms part of the record. People v. Daniel, 2014 IL App (1st)
121171, ¶ 41. Further, the most important factor in sentencing is the seriousness of the offense.
See Alexander, 239 Ill. 2d at 214. Thus, the court was not required to give greater weight to
mitigating factors than to the severity of the offense, and the presence of mitigating factors did
not require it to impose a minimum term Id.; People v. Vega, 2018 IL App (1st) 160619, ¶ 68.
Lastly, in pronouncing the seven-year sentence, the trial court noted that defendant’s criminal
history was “narcotics-related,” thus recognizing his prior convictions were for nonviolent
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offenses. We conclude the court did not abuse its discretion in imposing a sentence that was
one year longer than the minimum term.
¶ 56 In summary, the evidence at trial established defendant’s actual possession of the firearm
that police recovered from the sidewalk. Because defendant did not raise a pro se claim of his
counsel’s ineffectiveness, the trial court was not required to conduct a Krankel inquiry.
Defendant’s seven-year sentence did not constitute an abuse of the trial court’s discretion.
Accordingly, the judgment of the trial court is affirmed.
¶ 57 Affirmed.
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