NOTICE 2025 IL App (5th) 230475-U NOTICE Decision filed 02/18/25. The This order was filed under text of this decision may be NO. 5-23-0475 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Franklin County. ) v. ) No. 21-CF-140 ) HEATH M. DUNNING, ) Honorable ) Thomas J. Tedeschi, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court. Justices Moore and Sholar concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction is affirmed as the defendant received effective assistance of counsel. The circuit court lacked jurisdiction to hear the defendant’s posttrial ineffective assistance of counsel claim. The circuit court improperly considered pending charges against the defendant during sentencing while the evidence was closely balanced.
¶2 Following a jury trial, the defendant, Heath M. Dunning, was found guilty of first degree
murder and unlawful possession of a weapon by a felon and sentenced to 48 years in the Illinois
Department of Corrections (IDOC) and 6 years in IDOC, respectively. At his trial, the defendant
did not deny stabbing and killing Dennis L. Martin. Instead, the defendant argued that he acted
under the unreasonable belief that self-defense was justified, therefore, he was only guilty of
second-degree murder. On appeal, the defendant raises three issues. The defendant first contends
that he received ineffective assistance of counsel because defense counsel failed to (1) advance the
1 theory that the defendant’s intoxication contributed to his unreasonable belief that he was justified
in using self-defense, and (2) request that the full video of the defendant’s interrogation be played
at trial, which contained exculpatory evidence. The defendant’s second argument is that the case
should be remanded because the circuit court failed to conduct an inquiry into the defendant’s
pro se posttrial allegation of ineffective assistance of counsel, as required by People v. Krankel,
102 Ill. 2d 181 (1984). The defendant’s final contention is that the cause should be remanded for
a new sentencing hearing because the circuit court improperly relied on several pending cases in
aggravation without any evidence that showed their reliability, which deprived the defendant of a
fair sentencing hearing. For the following reasons, we affirm the defendant’s conviction, vacate
the circuit court’s sentencing order, and remand for further proceedings.
¶3 I. BACKGROUND
¶4 The defendant was charged by information with first degree murder. The State alleged in
the information that the defendant, with the intent to kill or do great bodily harm to Dennis L.
Martin, knowingly and without lawful justification caused the death of Martin when the defendant
stabbed Martin in the chest with a knife. Subsequently, the State filed an amended information that
charged the defendant with three offenses in addition to the original first degree murder charge.
The additional charges included first degree murder where the defendant knowingly and without
lawful justification caused the death of Dennis L. Martin, in that the defendant stabbed Martin in
the chest with a knife knowing such an act created a strong probability of death or great bodily
harm (count II), unlawful possession of weapons by felon where the defendant knowingly
possessed on his person a knife with a blade in excess of three inches in length (count III), and
unlawful restraint where the defendant knowingly and without legal authority detained Dennis L.
Martin (count IV).
2 ¶5 A. Pretrial Proceedings
¶6 The defendant filed a motion to suppress statements made during the interview following
his arrest. On April 15, 2021, the Franklin County Sheriff’s Department transported the defendant
from the scene of the offense to an interview room located in the Franklin County jail. After the
defendant arrived at the interview room, he was joined by Lieutenant Richard Minton and
Detective Amy Spotanski-Tipton. Detective Spotanski-Tipton advised the defendant of his
Miranda 1 rights twice, but the defendant indicated that he did not understand. Subsequently,
Lieutenant Minton informed the defendant of his Miranda rights a third time. Following the third
advisement, the officers proceeded to interview the defendant. In his motion to suppress
statements, the defendant argued that the defendant did not knowingly and intelligently waive his
Miranda rights.
¶7 On November 12, 2021, the circuit court held a hearing on the defendant’s motion to
suppress statements. At the suppression hearing, the defendant argued that because Lieutenant
Minton provided an inaccurate explanation of one of the Miranda rights, the circuit court should
suppress all the defendant’s statements following the third advisement. On November 16, 2021,
the circuit court entered an order that found that the defendant understood his Miranda rights after
the third advisement and the defendant voluntarily and intelligently waived those rights. However,
the circuit court also found that Detective Spotanski-Tipton posed a question to the defendant
before he made a knowing and voluntary waiver of his Miranda rights. As a result, the circuit court
redacted a small, approximately three-minute, portion of the recording of the defendant’s
interview.
1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 ¶8 The section of the defendant’s recorded interview that was suppressed contained multiple
statements from the defendant. The defendant claimed that prior to Martin’s stabbing, Martin had
grabbed the defendant and “yanked” the steering wheel. The defendant stated that Martin had tried
to “fight for it” and that the defendant had to defend himself. Also shown in the recording, the
defendant demonstrated with his hands and body how the car swerved on the road after Martin had
yanked the steering wheel. The defendant never requested that the full, unedited video be played
for the jury rather than the redacted video.
¶9 B. Trial Proceedings
¶ 10 On March 20, 2023, the jury was selected for the defendant’s trial. The following day, the
jury trial proceeded. After opening statements from counsel, the circuit court informed the jury of
a stipulation that provided on August 21, 2014, the defendant was convicted of a felony offense in
Saline County, Illinois.
¶ 11 The State then presented Nicole Geisler as its first witness. Geisler had known Martin for
19 years and was Martin’s ex-girlfriend. Geisler testified that on April 15, 2021, the day of
Martin’s death, between 11 a.m. and 1 p.m., she and Martin met at Little Chapel Church in
Harrisburg, Illinois. While at the church, Geisler offered to give Martin a ride to Eldorado, Illinois.
Martin accepted Geisler’s offer and left his van at the church while he rode with Geisler to
Eldorado. Once Geisler and Martin had completed some errands, they began to return to the
church. On the way back, Geisler noticed that someone in a gray car was following them. Martin
informed Geisler that it was the defendant, whom he had met in prison. Martin said he was going
to help the defendant get a job and that Martin needed to get a work shirt from his apartment for
the defendant.
4 ¶ 12 When both cars arrived at the church, the defendant parked his car and got into the driver’s
seat of Martin’s work van. Martin joined the defendant in the van for a moment but returned to
Geisler’s car. Geisler needed to pay for her car insurance in Thompsonville, Illinois, so both cars
departed the church parking lot and began driving towards Thompsonville. During the drive,
Martin directed Geisler to pull over, so he could speak to the defendant. Later, Martin had Geisler
pull over a second time, but this time Martin kissed Geisler and told her to go home. Martin then
went into the van with the defendant.
¶ 13 Later that night, around 7 p.m., Martin called Geisler and told her that he was on his way
home. Geisler received a second phone call from Martin between 7 p.m. and 8 p.m. Geisler
indicated that the second phone call seemed to be an accident and testified that she could only hear
“scuffling” in the background.
¶ 14 Julia Neely-Spain testified next for the State. Neely-Spain testified that she had hired
Martin as a general contractor to work on her home. Neely-Spain had a contract with Martin where
she would pay Martin $500 every second Saturday of the month for Martin’s work on her home.
Through this arrangement Neely-Spain and Martin became friends. Neely-Spain thought Martin
was a pleasant man.
¶ 15 On the night of April 14, 2021, Martin called Neely-Spain to ask if she could pay him the
next day, which was ahead of their agreed payment schedule. Martin explained that he really
needed the money and that he was scared. Neely-Spain responded that she was not feeling well
and could not drive to the bank. The two agreed that if Martin was desperate for the money that he
could drive Neely-Spain to the bank, so she could withdraw the money from the bank.
¶ 16 The next day, April 15, 2021, in the late afternoon Marin arrived at Neely-Spain’s house
with the defendant. The defendant went to the front door to get Neely-Spain, while Martin
5 remained in the backseat of his work van. The defendant had made her feel uncomfortable. Neely-
Spain described the defendant as anxious, eager, and unsettled.
¶ 17 As agreed, Neely-Spain went with the two men to the First Financial Bank in West
Frankfort, Illinois. At the bank, Neely-Spain withdrew $800 from the ATM. They then left the
bank. Before returning to Neely-Spain’s home, they stopped at a grocery store. At approximately
7 p.m., they arrived at Neely-Spain’s home. After he parked the van, the defendant carried the
groceries to the front door while Martin and Neely-Spain spoke in the driveway about money.
Once Martin agreed to provide a receipt, Neely-Spain paid Martin $500. Neely-Spain asked Martin
if something was wrong. Martin replied that he was okay and instructed Neely-Spain to go inside
the house. The defendant and Martin left Neely-Spain’s house just before 7:30 p.m.
¶ 18 The State’s next witness was Casey Stanley, who was an acquaintance of Martin’s. On
April 15, 2021, between 6 p.m. and 8 p.m., Martin and the defendant visited Stanley’s house
unannounced. Martin was looking for Stanley’s uncle, but he was not home at the time. Stanley
invited the two men inside her home to wait for her uncle. While they were waiting, the defendant
took a large knife out of his pocket and began cutting off the frayed ends of his pants. Stanley felt
that it was odd that the defendant had such a large knife in his pocket, but she was not threatened.
¶ 19 Later, while at Stanley’s house, Martin received a phone call, and he excused himself to
take the call outside. Approximately five minutes later, Stanley went outside to check on Martin.
Stanley realized that Martin’s van was gone, and the defendant was still at Stanley’s house. Stanley
was uncomfortable being alone with the defendant because she barely knew him. The defendant
appeared agitated that Martin had left without him. The defendant then walked off, down the
driveway, and turned right onto the roadway. Stanley testified that the two men were only at her
house for 15 to 20 minutes.
6 ¶ 20 For its next witness, the State called Jaxon Calvert. Calvert had worked for Martin for about
a month and was also a volunteer firefighter for Thompsonville, Illinois. Calvert testified that on
the evening of April 15, 2021, he had received multiple phone calls from Martin for a ride. Martin
was at a bar and was driving around with another man. The third or fourth phone call from Martin
lasted for a couple of minutes. Calvert heard a loud argument about who should drive. Martin had
wanted to drive the van. Calvert thought that Martin sounded nervous. In addition to the argument,
Calvert heard someone being punched. Calvert then heard Martin say, “stop hitting me,” but the
sound of punching continued. Right before the call ended, Calvert heard a “big blow.”
¶ 21 Shortly after the call ended, Calvert was notified that the fire department needed to respond
to an emergency. Calvert responded as directed. When he arrived at the scene of the emergency,
he saw Martin’s motionless body on the ground by the passenger back door of a van. Calvert
informed his chief that the body may be Martin, Calvert’s boss. Calvert also disclosed what he had
heard during the recent phone calls with Martin.
¶ 22 The State next called Miranda Harris. Harris lived in West Frankfort, Illinois, near where
Martin’s body was located. Just after dark on April 15, 2021, Harris had just returned home from
work and took her dog outside. While she was outside with her dog, she observed a white minivan
that swerved in the road. The van pulled over across the street from Harris, into the driveway of
her neighbor, Roy Duke. The driver, who Harris identified as the defendant, got out of the van and
ran up to the Dukes’ door saying to “call 911.” The defendant then returned to the van. Harris
crossed the street to retrieve her dog, and she heard the defendant say, “I stabbed him. I didn’t
mean to.” Harris also heard the defendant say, “I stabbed him because he attacked me.” Harris
noticed that the defendant had a knife in his hand. In the process of collecting her dog, Harris
7 observed a man lying on the ground outside the van. Harris kneeled down to check on the man and
believed that he could not be revived. Harris returned to her home and called 911.
¶ 23 Roy Duke, the owner of the property where Martin’s body was found, took the stand next
for the State. On April 15, 2021, Duke was alerted by his wife to people fighting and arguing in
the front yard. Duke responded to the front door and saw a man, who he could not identify, “beating
on the door” and turning the doorknob trying to get into the house. The man also asked for someone
to help him. Duke told the man to get away from the house and get off his porch. The man left but
later came back up to the house again. The man was rubbing his head, and he looked like he was
lost and he was not sure what to do. Duke saw the man try to help the other man on the ground.
Duke could tell that the man lying on the ground had already passed away.
¶ 24 Michael Fraulini, who was a dispatcher for the city of West Frankfort, Illinois, then testified
for the State. As a dispatcher, 911 calls, including police, fire, and EMS, were routed through
Fraulini. Fraulini testified that on April 15, 2021, around 8:30 p.m., he received a 911 call from a
man, who identified himself as Heath Dunning. The man reported that he stabbed another man
who tried to take his keys. During the 911 call, Fraulini noticed that the caller sounded panicked
and heard him breathing heavily. After the call ended, Fraulini received three more calls from the
same number “Heath Dunning” had called from. All the calls that Fraulini received through the
911 system were recorded. Those recordings were played for the jury.
¶ 25 The State’s next witness was Captain Kevin Roye of the Franklin County Sheriff’s Office.
Captain Roye was one of the officers who responded to the scene of the incident. When Captain
Roye arrived on the scene, he observed a white van parked with the driver’s door and the
passenger, side panel door both open. There were two people on the passenger side of the van. One
man, later identified as Martin, was lying motionless on his back. The other man, later identified
8 as the defendant, was knelt on one knee beside the man on the ground. Captain Roye approached
the two men and saw that Martin was unresponsive. Captain Roye then tried to handcuff the
defendant but was unable to for some time because the defendant was in an “excited state.” The
defendant was jumping around and yelling. Captain Roye was eventually able to handcuff the
defendant and placed him in the backseat of the squad car.
¶ 26 The State also called Marty Leffler, the Franklin County Coroner, to testify. Leffler was
present for Martin’s autopsy, which was conducted by Dr. John Heidingsfelder. Prior to the trial,
Dr. Heidingsfelder passed away. Leffler testified regarding Dr. Heidingsfelder’s autopsy report.
Dr. Heidingsfelder had concluded that Martin’s cause of death was “hemopericardium, left
hemothorax due to fenestration of the heart, due to a stab wound to the chest.” The manner of death
was a homicide. Leffler also testified that Martin’s toxicology results showed that his blood was
positive for ethanol in the amount of 0.045, which was below the legal limit. The toxicology results
also showed a presence of marijuana in Martin’s system.
¶ 27 Detective Amy Spotanski-Tipton of the Franklin County Sheriff’s Office also testified for
the State. Detective Spotanski-Tipton was not on duty on April 15, 2021, but her supervisor called
her at approximately 9 p.m. to respond to the Dukes’ residence. When Detective Spotanski-Tipton
first arrived at the scene, she observed a white van parked in front of the Dukes’ residence and
Martin’s body was on the south side of the van. Detective Spotanski-Tipton also saw a hunting
knife at the scene, which was collected by a crime scene investigator.
¶ 28 Later that evening, at approximately 10:24 p.m., Detective Spotanski-Tipton and
Lieutenant Minton interviewed the defendant at the Franklin County Sheriff’s Department. During
the interview, the defendant said that he was driving Martin’s van and that he wanted to go back
to his car in Harrisburg. As the defendant was driving towards Harrisburg, Martin pulled the
9 steering wheel and tried to take the key out of the ignition. Martin also “jumped on” the defendant
while he was driving. The defendant said that is when he stabbed Martin in the shoulder area. A
redacted video recording of the defendant’s interview was played for the jury.
¶ 29 The defendant was “booked” into custody at the conclusion of the interview. During the
“booking” process, Detective Spotanski-Tipton noticed only one small injury, a small, one-inch
scratch on the defendant’s left wrist. Detective Spotanski-Tipton testified that she did not observe
any indications of physical violence on the defendant’s body.
¶ 30 During the subsequent investigation, Detective Spotanski-Tipton discovered that Martin’s
driver’s license was restricted, which prohibited him from driving at night. At the time the stabbing
occurred, Martin could not have lawfully operated a motor vehicle. Following the testimony from
Detective Spotanski-Tipton, the State rested its case. The defendant did not present any witness
testimony or evidence.
¶ 31 After counsel presented closing arguments, the jury left the courtroom to deliberate. During
the jury’s deliberation, the bailiff received a note from the jury. The jury asked, “What is the
definition of a mitigating factor? We understand why a mitigating factor exists. We need
clarification on the definition.” The State and the defendant agreed that no further instruction was
necessary because the jury had already received an instruction regarding a mitigating factor that
they decided was “probably adequate.” The circuit court directed the jury to continue deliberations
and informed the jury they had “received the evidence and instructions of the law.” The jury
ultimately found the defendant guilty of first degree murder and unlawful possession of a weapon
by a felon.
¶ 32 In the months that followed his jury trial, the defendant filed several pro se motions. In his
motions, the defendant asked the circuit clerk to file an appeal of his conviction that would allow
10 the defendant to present the events that took place on April 15, 2021. The defendant also claimed
that he was not “represented properly” and various rights were violated. The defendant further
alleged that the jury was incompetent because it did not understand the difference between first
degree and second-degree murder.
¶ 33 On May 17, 2023, a hearing was held where defense counsel informed the circuit court that
he would not proceed with the pro se motions filed by the defendant. At the next hearing, on June
15, 2023, the court stated that it had reviewed the defendant’s pro se pleadings. The circuit court
noticed that the defendant may have made a claim requesting that the court determine whether his
defense counsel should be replaced pursuant to People v. Krankel. 2 The defendant responded that
he wanted to withdraw all of his motions. The defendant indicated that he was confused, and he
was not sure what he was doing. The circuit court verified that the defendant wanted to withdraw
his previous claims, and the defendant confirmed that it was his intent to withdraw all of the filed
motions.
¶ 34 On the same day, the circuit court proceeded with sentencing. The State argued in
aggravation that the defendant had a substantial criminal history and that he committed the instant
offense while he was on bond in six other pending felony cases, two violations of probation for
felonies, and one being a misdemeanor. The State recommended that the defendant be sentenced
to 30 years for first degree murder and 7 years for felon in possession of a weapon, to be served
consecutively.
¶ 35 In mitigation, defense counsel argued that the defendant began using drugs while he was a
teenager and that he had been hospitalized in a children’s asylum for mental health treatment. The
defendant also dropped out of school during his sophomore year of high school. Defense counsel
2 People v. Krankel, 102 Ill. 2d 181 (1984). 11 also asked the court to consider that the defendant immediately sought help for Martin and
admitted that he had killed Martin. Defense counsel noted that the defendant had completed the
“Take Action Today’s Recovery Education and Re-entry Support Program” while he was awaiting
trial. Defense counsel recommended that the defendant be sentenced to 20 years for first degree
murder, to be served concurrently with the sentence for felon in possession of a weapon.
¶ 36 Following defense counsel’s argument in mitigation, the defendant made a statement in
allocution. The defendant apologized to Martin’s family and took responsibility for his actions.
The defendant said that he never meant for Martin to die, but the defendant was scared and wanted
Martin to stop attacking him.
¶ 37 In imposing the defendant’s sentence, the circuit court did not find any factors in
mitigation. Considering factors in aggravation, the circuit court found that the defendant had a
history of criminality and that it was necessary to deter others from committing the same crime.
The circuit court acknowledged that the defendant was previously convicted in a 2014 case of
aggravated battery involving a knife. The circuit court also acknowledged that the defendant
committed murder while out on bond in several pending felony matters, which the court stated was
“most troubling.” After considering the arguments of counsel and the defendant’s statement, the
circuit court sentenced the defendant to 48 years for first degree murder, followed by a 3-year term
of mandatory supervised release and 6 years for unlawful possession of a weapon by a felon, which
would be served consecutively.
¶ 38 On July 3, 2023, the defendant filed another pro se motion, entitled “motion to file appeal
and vacate the judgment.” The motion was identical to the pro se motion filed on April 10, 2023,
and therefore included the claim that the defendant was not “represented properly.” The circuit
12 court did not address the pro se motion. Two days later, on July 5, 2023, a notice of appeal was
filed. This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 A. Ineffective Assistance of Counsel
¶ 41 The defendant contends that he was denied his right to the effective assistance of counsel.
The defendant argues that defense counsel was ineffective because counsel failed to advance the
theory that the defendant’s intoxication contributed to his unreasonable belief that he was justified
in using self-defense.
¶ 42 To be successful with a claim of ineffective assistance of counsel, a defendant must allege
facts that demonstrate (1) his counsel’s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for his counsel’s errors, the result
of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 678-88 (1984). The
first prong of the Strickland test requires the defendant to prove that his counsel’s performance fell
below an objective standard of reasonableness “under prevailing professional norms.” People v.
Colon, 225 Ill. 2d 125, 135 (2007). Under the second prong, a reasonable probability is defined as
a probability sufficient to undermine the confidence in the outcome of the trial, i.e., that the defense
counsel’s deficient performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. Strickland, 466 U.S. at 694. A defendant must satisfy both prongs of the
Strickland test to establish ineffective assistance. People v. Albanese, 104 Ill. 2d 504, 527 (1984).
¶ 43 Counsel’s decision regarding which defense theory to pursue is a matter of trial strategy.
People v. Sims, 374 Ill. App. 3d 231, 267 (2007). It is well established that matters of trial strategy
are generally immune from claims of ineffective assistance of counsel. People v. Smith, 195 Ill. 2d
179, 188 (2000). A reviewing court will not second-guess counsels trial strategy simply because
13 the defendant was found guilty. People v. Johnson, 385 Ill. App. 3d 585, 602 (2008). Further, a
reviewing court will give great deference to counsel’s judgment and a strong presumption that
counsel’s conduct falls within the wide range of professional assistance. Strickland, 466 U.S. at
689.
¶ 44 In the instant case, we believe that defense counsel chose not to raise the defendant’s
methamphetamine use the day of the incident to support the second-degree murder defense theory
as a matter of trial strategy and judgment. Defense counsel may have decided that emphasizing or
highlighting the defendant’s use of methamphetamine might have been more damaging than
helpful to the defendant’s case. As this decision was a matter of trial strategy, it is generally
immune to the claim of ineffective assistance of counsel. Therefore, the defendant has failed to
meet his burden of establishing that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms.
¶ 45 The defendant also contends that his counsel provided ineffective assistance of counsel
where counsel failed to request that the full interrogation video be played at trial. Further, the
defendant argues that the full video contained exculpatory evidence that the redacted version
published at trial did not.
¶ 46 Counsel’s decision of whether to file a motion to suppress is generally a matter of trial
strategy. People v. Shelton, 2020 IL App (2d) 170453-B, ¶ 16. Reviewing courts will presume that
counsel had a legitimate strategy for filing or not filing a motion to suppress. Shelton, 2020 IL App
(2d) 170453-B, ¶ 16.
¶ 47 Here, defense counsel did file a motion to suppress statements made by the defendant
during his interview. Following a hearing on the defendant’s motion to suppress, the circuit court
redacted three minutes of the interview because the defendant had not yet made a knowing and
14 voluntary waiver of his Miranda rights. The recording of the interview was approximately an hour
long. In the redacted portion of the interview, the defendant spoke about what happened before
Martin was stabbed. The defendant stated that Martin had “yanked” the steering wheel and “tried
to fight for it.” The defendant also said that he had to defend himself. In the recording shown to
the jury, the defendant made similar statements to those that were redacted. The defendant said
that he was “scared,” that Martin pulled the steering wheel, and that Martin attacked him. Whether
to show the additional three minutes of recording to the jury was a matter of trial strategy, which
is entitled to great deference. Defense counsel accepted the redacted interview, which was a valid
trial strategy given the similar content of both the redacted and non-redacted portions of the
interview. We find that the defendant was provided with effective assistance of counsel.
¶ 48 B. Posttrial Claim of Ineffective Assistance of Counsel
¶ 49 The defendant next argues that this case should be remanded for a preliminary inquiry
pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). The defendant maintains that he filed a
pro se posttrial motion that alleged he was not “represented properly” by defense counsel, which
required the circuit court to conduct an inquiry into the defendant’s allegation of ineffective
assistance of counsel.
¶ 50 Our supreme court established a procedure through Krankel and its progeny that was
“intended to promote consideration of pro se ineffective assistance claims in the trial court and to
limit issues on appeal.” People v. Patrick, 2011 IL 111666, ¶ 41. When a defendant brings a pro se
posttrial claim of ineffective assistance of counsel to the circuit court’s attention, the defendant
triggers a mandatory two step procedure. People v. Moore, 207 Ill. 2d 68, 77-79 (2003). The first
step requires the circuit court to conduct an inquiry into the underlying factual basis of the
defendant’s pro se posttrial claim of ineffective assistance of counsel. Moore, 207 Ill. 2d at 79.
15 Second, if the defendant’s allegations show possible neglect, the circuit court should appoint the
defendant new counsel. Moore, 207 Ill. 2d at 78. The defendant’s new counsel would represent
the defendant at a hearing regarding the claim of ineffective assistance of counsel. Moore, 207 Ill.
2d at 78. However, the circuit court loses jurisdiction of the case once a notice of appeal has been
filed and may not address a Krankel motion. Patrick, 2011 IL 111666, ¶ 39.
¶ 51 In this case, on July 3, 2023, the defendant filed a pro se posttrial motion entitled “motion
to file appeal and vacate judgment.” In the pro se motion the defendant requested that the “clerk
of the courts *** file an appeal.” The defendant also contended that he was not “represented
properly.” Two days later, on July 5, 2023, the circuit clerk filed a notice of appeal. On the same
day, the circuit court appointed the Office of the State Appellate Defender to represent the
defendant for purposes of appeal.
¶ 52 It is evident that the circuit court interpreted the defendant’s pro se posttrial motion as a
request for an appeal because two days after its filing the circuit clerk filed a notice of appeal, and
the circuit court appointed appellate counsel. As the circuit court understood the defendant’s pro se
posttrial motion to be a request for an appeal, it was without jurisdiction to conduct a preliminary
Krankel inquiry.
¶ 53 We find that the circuit court did not err when it interpreted the defendant’s pro se posttrial
motion as a request for an appeal. Therefore, upon the filing of the notice of appeal, the circuit
court did not have jurisdiction to conduct a preliminary Krankel inquiry. As the circuit court was
without jurisdiction, it did not err in failing to hold a Krankel inquiry on the defendant’s ineffective
assistance of counsel claim.
16 ¶ 54 C. Sentencing
¶ 55 The defendant next argues that this case should be remanded for a new sentencing hearing
because the circuit court improperly relied on several pending charges in aggravation without any
evidence to show the reliability of the charges, which deprived the defendant of a fair sentencing
hearing. As an initial matter, the defendant acknowledges that defense counsel did not object to
this issue below and did not file a motion to reconsider sentence. As defense counsel did not
properly preserve this issue, the defendant requests that we review the issue under both prongs of
the plain-error doctrine.
¶ 56 Under the plain-error doctrine in the sentencing context, a reviewing court may consider
forfeited claims where a clear and obvious error occurred and either: “(1) the evidence at the
sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant
a fair sentencing hearing.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). To prevail under either
prong of plain-error review, the defendant bears the burden of proving actual error. People v.
Mudd, 2022 IL 126830, ¶ 22. Without an error, there can be no plain error. People v. Hood, 2016
IL 118581, ¶ 18.
¶ 57 During sentencing, the circuit court may not rely on bare arrests or pending charges in
aggravation of a sentence. People v. Minter, 2015 IL App (1st) 120958, ¶ 148. When the circuit
court relies on such improper factors, it abuses its discretion. Minter, 2015 IL App (1st) 120958,
¶ 148. However, the circuit court may rely on evidence of the defendant’s other criminal activity,
whether or not it has resulted in a conviction, if the circuit court finds the evidence relevant and
accurate. Minter, 2015 IL App (1st) 120958, ¶ 148. A list of arrests or charges found in a
presentence report, which is unsupported by live testimony or other evidence at the sentencing
17 hearing, does not meet the standards for consideration at sentencing. Minter, 2015 IL App (1st)
120958, ¶ 148.
¶ 58 In this case, the circuit court erred when it considered the pending charges against the
defendant. At the time of sentencing, the defendant’s presentence report reflected there were
multiple felony cases and one misdemeanor case pending. The circuit court indicated that it
reviewed the presentence report. When discussing factors in aggravation, the circuit court
specifically mentioned that the defendant had “several pending felony matters.” Immediately after
noting the pending felony matters, the circuit court stated, “that [was] most troubling.” Clearly,
the circuit court erroneously considered the bare fact that the defendant had pending charges as an
aggravating factor and placed more than a minimal reference to the charges during sentencing.
¶ 59 Where a defendant alleges first prong plain error, the reviewing court must determine
whether the defendant established that the evidence was so closely balanced that the error alone
“severely threatened to tip the scales of justice.” People v. Sebby, 2017 IL 119445, ¶ 51. In
ascertaining whether the evidence was closely balanced, the reviewing court must evaluate the
totality of the evidence and conduct a qualitative, commonsense assessment of it within the context
of the case. Sebby, 2017 IL 119445, ¶ 53.
¶ 60 Based on the record, we find that the evidence at sentencing was closely balanced, which
necessitates reversal under the first prong of plain-error review. The circuit court cited three
aggravating factors, including, in error, the pending charges against the defendant. The remaining
aggravating factors cited by the circuit court were the defendant’s history of criminality and/or
delinquency and that the sentence was necessary to deter others from committing the same crime.
While the circuit court did not find any factors in mitigation, the defendant had argued several
mitigating factors. The following factors in mitigation were argued by the defendant: the defendant
18 struggled with mental health issues since childhood, which required numerous inpatient
hospitalizations as a child; the defendant had issues with substance abuse, which started when he
was 13 years old; during his incarceration the defendant completed the “Take Action Today’s
Recovery Education and Re-entry Support Program”; the defendant had been employed from 2004
through 2006; the defendant was under strong provocation from Martin before he was stabbed;
and the defendant showed remorse and took responsibility for his actions.
¶ 61 Accordingly, we vacate the defendant’s sentence and remand the matter for resentencing.
We need not reach the defendant’s argument regarding second prong plain error as the defendant’s
sentence is vacated based on first prong plain error.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated above, we affirm the defendant’s conviction, but we vacate his
sentence and remand for resentencing. The defendant was provided with effective assistance of
counsel. The circuit court lacked jurisdiction to hear the defendant’s posttrial ineffective assistance
of counsel claim. However, the defendant is entitled to be resentenced because the circuit court
improperly considered charges pending against the defendant at the time he was sentenced and the
evidence at sentencing was closely balanced.
¶ 64 Conviction affirmed; sentence vacated; remanded for resentencing.