No. 3-06-0819 _________________________________________________________________ Filed May 23, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit ) Peoria County, Illinois Plaintiff-Appellee, ) ) No. 05-CF-437 v. ) ) TED GODFREY, ) Honorable ) Scott A. Shore Defendant-Appellant. ) Judge Presiding _________________________________________________________________
JUSTICE LYTTON delivered the Opinion of the court: _________________________________________________________________
Defendant, Ted Godfrey, was convicted of home invasion (720
ILCS 5/12-11(a)(2) (West 2004)), criminal trespass to a residence
(720 ILCS 5/19-4(a)(2) (West 2004)) and domestic battery (720 ILCS
5/12-3.2(a)(1) (West 2004)). The trial court sentenced him to a
statutory minimum term of six years imprisonment. On appeal,
defendant asks us to (1) reduce his conviction and sentence under
Supreme Court Rule 615, and (2) remand the case for additional
proceedings on his claim of ineffective assistance of counsel. We
affirm.
On April 28, 2005, defendant’s ex-girlfriend, Erion Lovingood,
invited defendant over to her house after he finished playing
basketball. Lovingood had been pregnant with defendant’s child,
but that day discovered she had miscarried. Defendant finished his
basketball game but did not go to Lovingood’s house right away. After waiting several hours for defendant, Lovingood decided that
she no longer wanted to see him, so she locked the front door and
went upstairs. Around midnight, defendant arrived at Lovingood’s
home. He saw that the lights were on and her car was in the
driveway.
After ringing the doorbell and receiving no response,
defendant tried the front door and found it was locked. Defendant
then called Lovingood on her cell phone. When Lovingood did not
answer her phone, defendant kicked the door three times, breaking
it open, and went searching for Lovingood. Defendant found
Lovingood talking on the phone in her upstairs bathroom. Defendant
became angry, snatched the phone from Lovingood and threw it down
the stairs. Defendant and Lovingood then proceeded down the
stairs, arguing along the way. Once downstairs, defendant threw
another phone and fought with Lovingood. According to Lovingood,
defendant pushed her, held her arms and threw something at her.
When he became tired of fighting with Lovingood, defendant left.
Lovingood called the police. When police arrived at
Lovingood’s home, they found damage to the front door, spilled milk
on the kitchen floor, blood spatters on the wall and floor and a
television turned over on the floor. Police also saw a blood spot
on Lovingood’s shirt, a pink mark on her arm and a cut on her lip.
Defendant testified that the blood on Lovingood’s shirt was his.
Defendant was charged with home invasion, criminal trespass to
a residence and domestic battery. After a bench trial, he was
convicted on all three counts. Prior to sentencing, defendant sent
2 a letter to the court, claiming that his attorneys were ineffective
because they never told him his options or the amount of time he
would have to serve if convicted. The trial court found that the
letter did not contain sufficient allegations to establish
incompetency of counsel.
The trial court sentenced defendant to six years in prison,
the mandatory minimum sentence for a conviction of home invasion.
See 720 ILCS 5/12-11(c) (West 2004); 730 ILCS 5/5-8(1)(a)(3) (West
2004).
I.
Defendant asks us to reduce his conviction from home invasion
to the lesser included offense of criminal trespass to a residence
and then remand for sentencing on the reduced offense. He contends
that we have the power and duty to do this under Supreme Court Rule
615.
Rule 615 states, in relevant part, "On appeal the reviewing
court may * * * reduce the degree of the offense of which the
appellant was convicted * * *." 134 Ill. 2d R. 615(b)(3). Courts
using the power granted by this rule must do so with "caution and
circumspection" and not "purely out of merciful benevolence."
People v. Jones, 286 Ill. App. 3d 777, 783, 676 N.E.2d 1335, 1339-
40 (1997).
When a trial court’s judgment is tainted by reversible error
but a conviction for a lesser included offense would not be, we may
employ Rule 615 to remand the case for sentencing on the lesser-
included offense. See People v. Davis, 112 Ill. 2d 55, 61, 491
3 N.E.2d 1153, 1156 (1986). However, there is a difference of
opinion within the appellate court about whether there must be
reversible error to invoke Rule 615. Compare People v. Kick, 216
Ill. App. 3d 787, 793, 576 N.E.2d 395, 399 (1991) (reversible error
required); with People v. Plewka, 27 Ill. App. 3d 553, 558-59, 327
N.E.2d 457, 461 (1975) (reversible error not required). We need
not reach this issue because even under the more lenient standard
applied by appellate courts, the facts in this case do not trigger
the application of Rule 615.
Under the more lenient standard, reversible error is not
necessary when there is (1) an evidentiary weakness in the State’s
case, (2) a mandatory minimum sentence that is unsatisfactorily
harsh, and (3) a conviction for a lesser-included offense. People
v. Jackson, 181 Ill. App. 3d 1048, 1051-52, 537 N.E.2d 1054, 1057
(1989). "Evidentiary weakness" means something that causes the
appellate court to have grave concern about the reliability of the
guilty verdict. See Jones, 286 Ill. App. 3d at 784, 676 N.E.2d at
1340.
To sustain a conviction for home invasion, the State must
prove the following:
"A person * * * commits home invasion when without authority
he or she knowingly enters the dwelling of another when he or she
knows or has reason to know that one or more persons is present *
* * and * * * [i]ntentionally causes any injury * * * to any person
or persons within such dwelling place * * *." 720 ILCS 5/12-11
(West 2004).
4 Defendant claims that there were several evidentiary
weaknesses in the State’s case that justify invocation of Supreme
Court Rule 615. First, he argues that there is a factual question
regarding whether his presence in Lovingood’s home was authorized.
We find no evidentiary weakness regarding this element. Lovingood
testified that although she invited defendant over to her house
earlier that evening, she did not want to see him when he finally
came to her home. This is why she locked her door, did not open
the door for defendant when he rang her door bell and did not
answer her cell phone when defendant called. Based on Lovingood’s
undisputed testimony, the trial court properly concluded that
defendant’s presence in the home was unauthorized.
Defendant also claims that his entry was authorized because he
entered Lovingood’s home out of concern for her safety. He cites
case law on the limited authority doctrine, which deals with the
limited nature of an invited person’s authority to be in a
dwelling. See People v. Bush, 157 Ill. 2d 248, 252, 623 N.E.2d
1361, 1364 (1993). The limited authority doctrine applies only
after a defendant is invited into or granted access to a dwelling.
People v. Priest, 297 Ill. App. 3d 797, 805, 698 N.E.2d 223, 229
(1998). Here, the evidence established that although Lovingood
asked defendant to come to her house earlier that evening, she did
not invite him into her home or grant him entry into the home when
he arrived at midnight. Because defendant entered Lovingood’s home
by force, the limited authority doctrine does not apply.
Finally, defendant claims that there was insufficient evidence
5 that he injured Lovingood. Lovingood testified that defendant
physically injured her by pushing her, holding her arm and throwing
something at her. A police officer testified that he saw a mark on
Lovingood’s arm and a cut on her lip when he arrived on the scene.
Defendant testified that he did not hurt Lovingood and that his own
wounds accounted for the blood on Lovingood’s shirt. The trial
court chose to believe the testimony of Lovingood and the police
officer over defendant’s. This does not create an evidentiary
weakness. See Jackson, 171 Ill. App. 3d at 1052, 537 N.E.2d at
1057 (a conviction does not suffer from evidentiary weakness when
the trial court finds testimony from a defense witness less
credible than consistent testimony from prosecution witnesses).
Since there is no evidentiary weakness, we cannot invoke Rule
615 to reduce defendant’s conviction and sentence. See Jackson,
181 Ill. App. 3d at 1051-52, 537 N.E.2d at 1057.
II.
Defendant also asks us to remand this case so that the trial
court may inquire into the adequacy of his trial counsel. He
claims that if his attorneys told him that he faced a mandatory
six-year prison sentence upon a conviction for home invasion he
would have sought a plea deal on the lesser charges.
When a defendant presents a pro se motion alleging ineffective
assistance of counsel, the court may dismiss it if the claim is
spurious or pertains only to trial tactics. People v. Baltimore,
292 Ill. App. 3d at 165, 685 N.E.2d 627, 631 (1997). If, however,
the defendant’s allegations of incompetence have merit, the court
6 should appoint new counsel to argue defendant’s claim of
ineffective assistance. People v. Nitz, 143 Ill. 2d 82, 134-35,
572 N.E.2d 895, 919 (1991).
To sustain an allegation of ineffective assistance, the
defendant must present evidence of deficient performance and
evidence that if counsel’s performance had been adequate the
outcome might have been different. See Strickland v. Washington,
466 U.S. 668, 687, 80 L. Ed. 2d 674 104 S. Ct. 2052, 65, (1984);
People v. Albanese, 104 Ill.2d 504, 525, 473 N.E.2d 1246, 55
(1984).
However, even if defendant’s public defender and later his
retained counsel did not tell him about the sentence he faced if
convicted of home invasion, defendant still has no claim of
ineffective assistance because there was no prejudice. See People
v. Manning, 227 Ill. 2d 403, 422, 883 N.E.2d 492, 504 (2008). The
trial court itself informed defendant that he faced a mandatory
six-year prison sentence during one of the last pretrial
conferences, and defendant said he understood the court's warning:
"THE COURT: And Mr. Godfrey, you understand the
charges against you and the possible sentences you face
if convicted on these charges?
DEFENDANT: Yes.
THE COURT: I want to make sure you do. A Class X
felony, the potential penalties of 6 to 30 years in the
Department of Corrections. Is the Defendant qualified
for extended term?
7 PROSECUTOR: No, Judge.
THE COURT: The period in the Department of
Corrections would be followed by 3 years mandatory
supervised release. It's not probationable.
* * *
THE COURT: Do you understand the penalties you face?
THE COURT: Do you have any questions regarding the
charges against you or the possible penalties you face?
DEFENDANT: No."
In light of this exchange, the trial court was correct to
conclude that defendant's allegation of ineffective assistance
was without merit and to refuse appointing independent counsel to
pursue an ineffective assistance claim at the trial level.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
CARTER, J., concurs.
JUSTICE SCHMIDT, specially concurring:
I agree with the majority's decision to affirm the circuit
court, but I disagree with its approach to both of defendant's
claims of error.
I. Relief Under Supreme Court Rule 615 The problem with the majority opinion is apparent. The
8 majority, citing People v. Jackson, 181 Ill. App. 3d 1048, 537 N.E.2d 1054 (1989), holds "since there is no evidentiary weakness, we cannot invoke Rule 615 to reduce defendant's conviction and sentence." Slip op. at 6. This opinion not only fails to provide guidance to practitioners, but also misleads them. The holding clearly implies that had the majority found an evidentiary weakness, it could have invoked Rule 615 to reduce defendant's conviction and sentence in the absence of reversible error. I submit it could not. If multiple errors below are harmless in isolation but are cumulatively prejudicial to a defendant, we can and will grant relief. People v. Scott, 108 Ill. App. 3d 607, 615, 439 N.E.2d 130, 136 (1982); People v. Patterson, 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164, 1169 (1976). But the Jackson standard would have us countermand trial court judgments that were admittedly not erroneous at all. The majority applies a portion of the standard this court
announced in People v. Jackson, 181 Ill. App. 3d at 1051-52, 537
N.E.2d at 1057. I believe Jackson was wrongly decided and that
any analysis under Rule 615(b)(3) must depend on the presence or
absence of reversible error. See People v. Thomas, 266 Ill. App.
3d 914, 926, 641 N.E.2d 867, 876 (1994); People v. Rodriguez, 258
Ill. App. 3d 579, 587, 631 N.E.2d 427, 433 (1994); People v.
Sims, 245 Ill. App. 3d 221, 225, 614 N.E.2d 893, 896-97 (1993);
People v. Kick, 216 Ill. App. 3d 787, 793, 576 N.E.2d 395, 399
(1991).
In discussing the Jackson standard, the majority omits the
9 fourth element of that standard, which is that the trial court
expressed dissatisfaction with imposing the mandatory sentence.
Slip op. at 4; Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at
1056. The majority also ignores defendant's arguments and
reliance upon this aspect of the Jackson standard.
The Jackson line of cases would have us grant relief when,
in the opinion of two or more judges, a mandatory minimum
sentence imposed below is unduly harsh. People v. Plewka, 27
Ill. App. 3d 553, 559, 327 N.E.2d 457, 461 (1975). Jackson holds
that we have authority to intervene after the trial judge
"expresse[s] dissatisfaction" with imposing a mandatory minimum
sentence. Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056.
This element of Jackson makes it incompatible with our
constitution's separation of powers requirement. Ill. Const.
1970, art. II §1. The majority simply ignores both this aspect
of Jackson and defendant's arguments in reliance on it.
It is well settled that "[t]he legislature has authority to
*** establish the nature and extent of criminal penalties, and a
court exceeds its authority if it orders a lesser sentence than
is mandated by statute, unless 'the [mandated] penalty shocks the
conscience of reasonable men.'" People v. Wade, 116 Ill. 2d 1,
6, 506 N.E.2d 954, 956 (1987), quoting People ex rel. Ward v.
Salter, 28 Ill. 2d 612, 615 (1963). Accord People v. Landers,
329 Ill. 453, 457, 160 N.E. 836 (1927). We can substitute our
judgment for a trial court's when the trial court abuses its
discretion in sentencing. 134 Ill 2d R. 615(b)(4); People v.
10 Stacey, 193 Ill. 2d 203, 211, 737 N.E.2d 626, 630 (2000). But we
may not substitute our judgment for the legislature's unless a
sentence is constitutionally infirm. People ex rel. Carey v.
Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259, 262 (1981)
(mandamus appropriate if a sentence less than the mandatory
minimum is imposed); Kick, 216 Ill. App. 3d at 793, 576 N.E.2d at
399.
The sentencing provision of a criminal statute is
unconstitutional when it violates the proportionate penalties
clause of our constitution. Ill. Const. 1970, art. I, §11. A
statute violates the proportionate penalties clause if the
punishment is so wholly disproportionate to the offense as to
shock the moral sense of the community or if different sentences
can be imposed for crimes with identical elements. People v.
Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 498 (2005).
Defendant does not argue that the statutory minimum sentence is
constitutionally infirm.
The defendant argues on appeal that while the trial court is
bound by statutory minimum sentences, the appellate court is not.
Surely, in crafting Rule 615, the supreme court did not intend to
give the appellate court the discretion to nullify mandatory
minimum sentences while disapproving of that practice in trial
courts. See People ex rel. Daley v. Suria, 112 Ill. 2d 26, 33-
34, 490 N.E.2d 1288, 1290-91 (1986); People ex rel. Daley v.
Limperis, 86 Ill. 2d 459, 468-69, 427 N.E.2d 1212, 1216 (1981).
If we read Rule 615(b)(3) to give an appellate court the
11 discretion to ignore statutory minimum sentences, then the rule
itself would violate our separation of powers clause. Ill.
Const. 1970, art. II, §1. I see nothing in any supreme court
case which leads me to believe that the court intends the rule to
be read in such a way.
Courts siding with Jackson have argued that if we only
employed our power to reduce the degree of a conviction in the
presence of reversible error, that power would be redundant
because of our reversal power. People v. Jones, 286 Ill. App. 3d
777, 781-82, 676 N.E.2d 1335, 1338 (1997). This is not so, as
the supreme court demonstrated in People v. Davis, 112 Ill. 2d
55, 491 N.E.2d 1153 (1986). Larry Davis, recently released from
prison, solicited bribes from his former fellow inmates, offering
to get them to the top of early release lists. Word of Davis's
scheme reached investigators, who set up a sting operation. He
was then tried and convicted of theft by deception. To prove
this crime, the State must prove that the victim relied on the
thief's representations. Davis, 112 Ill. 2d at 59-60, 491 N.E.2d
at 1154. Trial witnesses testified that the reason they
contacted investigators was that they disbelieved Davis's
promises. The supreme court reversed Davis's conviction because
the State failed to prove the necessary element of the victim's
reliance (reversible error), and entered a conviction for
attempted theft by deception pursuant to Rule 615(b)(3). Davis,
112 Ill. 2d at 63, 491 N.E.2d at 1156-57.
Therefore, the one time our supreme court has granted relief
12 under Rule 615(b)(3), it did so after finding reversible error,
without regard to any mandatory minimum sentence, and entered a
conviction for a lesser-included offense that was not charged
below. Davis, 112 Ill. 2d at 63, 491 N.E.2d at 1156-57. Though
it did not comment on the Jackson line of cases, the Davis
court's analysis contradicts each element of the Jackson
standard. Jackson is simply not good law.
Accordingly, I would examine defendant's claim for
reversible error. He concedes the State proved the elements of
home invasion beyond a reasonable doubt. I would, therefore,
II. Claim of Inadequate Assistance Defendant's allegation of ineffective assistance of counsel
argues that had he been informed he was not eligible for
probation, he would have sought a favorable plea deal. As the
majority notes, this allegation was contradicted by discussions
between defendant and the trial court on the record. But the
substance of defendant's allegation also asks us to speculate
about what plea negotiations would have taken place between
himself and the prosecution, the State's ultimate offer, and his
decision to accept or reject it. Our supreme court's recent
guidance indicates defendant's allegation is so speculative, we
should not entertain it at all. People v. Bew, 228 Ill. 2d 122,
135 (2008). Accordingly, that is the basis on which I would
affirm the trial court.