People v. Harris

2021 IL App (4th) 180806-U

Opinion

NOTICE 2021 IL App (4th) 180806-U This Order was filed under FILED NO. 4-18-0806 July 26, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County JERRY D. HARRIS, ) No. 17CF1253 Defendant-Appellant. ) ) ) Honorable ) Thomas E. Griffith Jr., ) Judge Presiding. )

JUSTICE DeARMOND delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, holding defendant’s right to a speedy trial was not violated, any error in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) admonishments was not sufficient to constitute plain error, and the trial court’s Krankel inquiry was sufficient.

¶2 On August 29, 2017, defendant, Jerry D. Harris, was charged with the offenses of

attempt (first degree murder), a Class X felony with special sentencing provisions (count I) (720

ILCS 5/8-4(a), (c)(1) (West 2016)); aggravated battery with a firearm, also a Class X felony

(count II) (720 ILCS 5/12-4.2(a)(1) (West 2016) (recodified as 720 ILCS 5/12-3.05(a)(1)));

aggravated discharge of a firearm, a Class 1 felony (count III) (720 ILCS 5/24-1.2(a)(2) (West

2016)); and being an armed habitual criminal, a Class X felony (count IV) (720 ILCS 5/24-1.7(a)

(West 2016)), for the shooting of Sedrick Cunningham on July 29, 2017, in Decatur, Illinois. After several continuances by the State and the defense, and after defendant had been released on

his own recognizance and later rearrested, he eventually went to jury trial on counts I and II on

August 21 and 22, 2018. The jury returned verdicts of guilty on both counts and found the

aggravating factor that “defendant personally discharged a firearm that proximately caused great

bodily harm to [the victim] was proven.” Defendant filed a “Motion for New Trial,” arguing the

ineffective assistance of trial counsel, and the trial court conducted a “pre-inquiry Krankel

hearing” (see People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)), ultimately deciding

defendant’s claims did not amount to ineffective assistance. Defendant’s posttrial motion was

heard and denied, and the trial court sentenced defendant to 12 years on count I (attempt

(murder)), with a 25-year add-on due to the aggravating factor, for a total of 37 years at 85%,

and 3 years of mandatory supervised release. Defendant’s motion to reconsider was later denied,

and this appeal follows.

¶3 I. BACKGROUND

¶4 On July 29, 2017, in the early afternoon, Sedrick Cunningham was shot while

standing in the 1000 block of Cerro Gordo Street in Decatur, Illinois. The shooter, known to

Cunningham only as “Little C” and later identified as defendant, pulled up in a light blue

Mercury Grand Marquis and began having words with Cunningham. The conversation escalated

to an argument, and Cunningham struck defendant in the jaw, after which Cunningham said

defendant produced a handgun and shot Cunningham in the left side. Once at the hospital,

Cunningham told police what happened and identified defendant from a photo lineup. He said he

had known defendant for “five, six” years and, although they were not friends, they “associated

around people that we had mutual people that we hung around.” Although he did not know

defendant’s name at the time, Cunningham said he learned defendant’s name from friends who

-2- had conducted an internet search. He identified defendant in open court as the person he knew as

“Little C” and the person who shot him.

¶5 Defendant asserted an alibi defense from the beginning, filing a supplemental

discovery response at the outset of the case which disclosed his location as other than the scene

of the shooting, and he identified the witnesses who would corroborate his alibi.

¶6 Defendant was arrested on August 24, 2017, and arraigned on August 29, with the

public defender appointed on his behalf. The matter was set for a preliminary hearing on

September 20, and pretrial was set for November 21, 2017. At the November 21 pretrial, another

attorney was standing in for the public defender representing defendant, and when asked about a

possible jury trial date in February, counsel stated: “Well, he asked for the earliest available date.

He’s said that discovery is completed and he’s disclosed alibi witnesses, so—” The trial court

then indicated “that the defendant demands earliest jury trial date” and set the case for trial on

January 9, 2018. Counsel did not object. On December 26, defendant filed a pro se handwritten

“Motion for Speedy Trial (120-day),” which was stricken in January as moot since defendant had

counsel at the time. The State filed a motion to continue on January 5, 2018. At the hearing on

the motion, the State made representations that defendant was on “day 56” of his 120-day speedy

trial term. Defendant’s counsel said, “I think it’s a few more days than that, but we’re still not

approaching the 120.” The court noted his objection and granted the continuance. After

discussion with counsel, the court asked, “So you want me to reset it for February 13th?” to

which the State agreed and defendant’s counsel responded, “[t]hat would be fine.” On January

23, defendant filed another pro se motion, this time seeking dismissal of his charges pursuant to

“725 ILCS 5/114-1,” claiming his speedy trial term had run as of December 19, 2017, which

motion was again stricken as moot since he was still represented by counsel.

-3- ¶7 On February 9, 2018, defendant was released from custody on his own

recognizance due to ongoing medical issues and an upcoming medical procedure necessitating a

delay in trial. His bond was later revoked, and he was reincarcerated, but from that point on,

defendant made no demand for speedy trial as the case was continued for a variety of reasons

and eventually proceeded to trial on August 21, 2018.

¶8 During jury selection, the court conducted its Zehr questioning thusly:

“I’m going to attempt to explain some constitutional principles.

For this series of questions I have to be careful make [sic] a very

precise record. So, I’ll either have [sic] put up your hand or not put

up your hand.

First question, the defendant is presumed to be innocent of

the charges against him. This presumption remains with the

defendant throughout the trial and is not overcome, unless by your

verdict, you find that the State has proven the defendant guilty

beyond a reasonable doubt.

Is there anybody here who has any difficult [sic] or

disagreement with this proposition of law, the presumption of

innocence. If so, please put up your hand? And let the record

reflect that there are no raised hands.

Next question, the State has the burden of proving the guilt

of the defendant beyond a reasonable doubt. This burden remains

upon the State throughout the trial. Does anybody have a difficulty

or disagreement with this proposition of law, the burden of proof?

-4- If so, please put up your hand. And, again, let the record reflect

that there are no raised hands.

Next question, the defendant is not required to offer any

evidence on his own behalf. Does anybody have a difficulty or

disagreement with this principle of law? If so, please put up your

hand. And, again, let the record reflect there are no raised hands.

And final question, at least of this type, if the defendant

does not testify it cannot be held against him. Does anybody have

any difficult [sic] or disagreement with this proposition of law, the

right to remain silent. If so, please put up your hand. And, again,

let the record reflect there are no raised hands. And let the record

reflect there are no raised hands. And let the record reflect that all

of the jurors understand and accept the Zehr, Z-E-H-R principles.

All jurors, can all of you promise me that you will follow

the law, even though you may not personally agree with the law?

Please answer out loud.”

¶9 Defendant did not object or seek different or additional questioning by the court.

¶ 10 A. The Trial

¶ 11 At trial, Cunningham described how the encounter with defendant occurred, how

it escalated to a point where he hit defendant “in the jaw” as defendant sat in the light blue

Mercury Grand Marquis he was driving, and how defendant then produced a gun and shot him in

the left side. Cunningham said defendant then fled the area and Cunningham was taken to the

hospital by a couple of friends. Cunningham acknowledged having consumed alcohol on the day

-5- of the shooting and agreed he was “a little bit [intoxicated].” He also admitted to previous

convictions in 2008 and 2015 for driving while his license was revoked, and aggravated battery

in 2011. Once he was taken to the hospital, Cunningham gave a statement to the police and

readily identified defendant from a computer-generated photo lineup.

¶ 12 By the time of the shooting, Cunningham said, he and defendant had some form

of contact between 5 and 10 times, and at trial he was “one hundred percent certain” of his in-

court identification of defendant as the shooter. Cunningham told Officer Kyle Patten, a Decatur

police officer he spoke with at the hospital, that the shooter was known to him as “Little C,”

whom he described as being “a black male about 35 to 40 years old, short in height, with the

stocky build and dreadlock style hair.” When Officer Patten ran the nickname “Little C” through

“RMS,” the police department database, the only name that came up in the Decatur area was

defendant’s. When Detective Brad Hall spoke with Cunningham in the emergency room, he also

identified the shooter as “Little C,” who he said was 37 years old, “a dark complected, black

male, shorter, stocky build, wearing a white tank top and jeans,” and who had “dreads.”

¶ 13 The State also called Lieutenant Christopher Thompson of the Macon County

Sheriff’s Office, who oversaw the jail. Lieutenant Thompson was familiar with and identified

two book-in cards for defendant, one from August 25, 2016, listing his aliases as “Little C” “C,”

or “C West,” and the other from August 23, 2017, the date of his arrest in this case, listing his

age as 36, height—five foot six, weight—one hundred eighty pounds, and dark complexion. The

accompanying photograph showed defendant to have “dreadlock style hair.” Detective Eric

Matthews testified to his administration of the computer-generated photo lineup and how

Cunningham identified defendant as the shooter as well.

¶ 14 To establish defendant’s connection with the light blue Mercury Grand Marquis,

-6- the State called several witnesses. Detective Hall testified Cunningham described the shooter’s

vehicle as a “sky blue, four door, and it reminded him of a Mercury, possibly a Mercury.”

Detective Troy Kretsinger, a 21-year veteran with the Decatur Police Department, described how

he encountered a “lighter blue, maybe robin’s egg” blue 1999 Grand Marquis parked at the home

of defendant’s mother, Vera Carter, between March 6 and March 8, 2017, while he was

investigating an unrelated matter. According to Kretsinger, Carter indicated defendant lived there

“occasionally.” When Kretsinger ran the license plate information, he found the vehicle to be

registered to Ronald Patterson. Kretsinger also described police radio traffic he monitored on

April 10, 2017, indicating the same vehicle was involved in a short car chase which resulted in a

traffic stop where defendant was found sitting in the passenger seat. Ronald Patterson, a

convicted felon who was, at the time of trial, in custody on an unrelated matter, testified he sold

a “baby blue” “Merc” to defendant, whom he only knew and identified in open court as “Little

C,” for cash sometime before the April 10, 2017, traffic stop. According to Patterson, no formal

paperwork was ever completed on the transaction other than signing over the title, and Patterson

said defendant “wanted to use my plates.” Detective Scott Marquis was the Decatur officer

involved in the traffic stop of the light blue Mercury Grand Marquis on April 10, 2017. He

testified the vehicle fled when he attempted to initiate the stop and was later located with

defendant sitting in the passenger seat. At the time, the car was still registered to Patterson.

¶ 15 The fact Cunningham was shot was not contested, and stipulations were read to

the jury confirming he had a gunshot wound from a .25-caliber bullet. He suffered a single

gunshot wound to the left anterior chest, and the internal injuries were considered “life

threatening.”

¶ 16 Detective Kretsinger also testified about his evidence collection at the scene of the

-7- shooting. Although Cunningham had described “eight to ten” people being present on Cerro

Gordo Street at the time of the shooting, Kretsinger acknowledged that when he arrived on the

scene, “there were not witnesses available to cooperate” with his investigation. Describing this

particular location to be “a pretty high crime area. A lot of drug activity, shots fired, incidents,

things of that nature,” when he started searching for physical evidence he found several fired

projectiles in the roadway, along with fired shell casings on the north side of the street. He said

the casings appeared to be weathered, evidencing their presence for “some period of time,” and

none of them were the caliber of the firearm that shot Cunningham.

¶ 17 Defendant elected not to testify, and the defense presented brief testimony from

Detective Jason Kuchelmeister to impeach Cunningham on the issue of whether he talked to the

detective and told him he fell to the ground after he was shot or “ducked behind a car.” The

defense also called Milan Brown, the father of three children by defendant’s sister, to testify as

an alibi witness. Brown said defendant was at his sister’s residence with other family members

on the day of the shooting from 8 or 9 in the morning until 10 or 11 that night. According to

Brown, other than when defendant, Brown, and defendant’s sister went to Burger King at “about

one or three o’clock,” defendant did not leave. On cross-examination, Brown admitted he never

contacted the police with this information and spoke about it for the first time with defendant’s

counsel on November 6, 2017, when he consented to be interviewed. He denied ever being

contacted by the police to give a statement or knowing they were attempting to contact him. He

admitted his felony drug conviction from 2012. The State’s rebuttal witness, Detective

Kuchelmeister, testified to the unsuccessful efforts made to contact Brown at the address he

provided defendant’s counsel to obtain a statement.

¶ 18 After closing arguments and instructions, the jury deliberated for approximately

-8- two and a half hours before returning verdicts of guilty on both attempt (first degree murder) and

aggravated battery with a firearm. They also found the aggravating factor had been proven,

concluding that during the attempt, defendant personally discharged a firearm that proximately

caused great bodily harm to Cunningham. The matter was referred to court services for a

presentence investigation and report and set for sentencing later.

¶ 19 B. Posttrial Motions

¶ 20 Defendant filed a pro se “Motion for New Trial” in September 2018, in which he

wrote: “I ask the Courts to take in mind the direct evidence as to the state of mind regarding what

I believe at the time I acted in self-defense against the victim. It’s my right to present evidence of

a victims [sic] character for violence, when I acted in self-defense against the victim.” He also

made a claim of ineffective assistance of counsel based on counsel’s (1) “failing to raise a viable

theory of defense,” (2) effectively conceding his guilt, (3) failing to investigate certain physical

evidence, (4) failing to raise self-defense, and (5) failing to pursue a lesser charge “based upon

an unreasonable belief in self-defense or sudden and intense passion.” Later in September 2018,

he also filed a pro se “Motion to Reconsider,” which he said was based on a violation of both his

statutory and constitutional right to a speedy trial. Defendant’s counsel filed a posttrial motion in

October 2018, claiming only that the evidence was insufficient to prove defendant guilty beyond

a reasonable doubt.

¶ 21 When the matter was called for sentencing in October 2018, the trial court first

addressed the pro se motion for a new trial. Considering the claims of ineffective assistance of

counsel, the court conducted a “pre-inquiry Krankel hearing” to address defendant’s allegations.

The trial court informed defendant of the procedure—he would go through each allegation, allow

defendant an opportunity to elaborate, and give counsel the opportunity to respond. The State

-9- would not be a participant.

¶ 22 The court reiterated defendant’s comment about acting in self-defense and his

right to present evidence of a victim’s character for violence when alleging self-defense, as well

as defendant’s claimed right to the victim’s other-crimes evidence, but it also noted these

assertions were not actually directed against his counsel. The court then identified the allegations

of ineffective assistance, i.e., failing to raise a viable theory of defense and effectively conceding

his guilt, which the court considered his first allegation, and asked defendant to elaborate. The

inquiry then proceeded as follows:

“[DEFENDANT]: There was a lot of things that didn’t get

brought up in my trial that was supposed to.

THE COURT: All right. Can you be any more specific than

that Mr. Harris?

[DEFENDANT]: Like Mr. Cunningham had a gun too. But

it was never brought up that he had a gun. It was just like—

THE COURT: Well, here, I want to try to stay focused on

this allegation. You say Mr. Tighe failed to raise a viable theory of

defense, which would be like self[-]defense or some other

affirmative defense.

[DEFENDANT]: Yes.

THE COURT: And effectively conceded my guilt. That’s

what I’m asking you about Mr. Harris.

[DEFENDANT]: Yes, I mean, it was plain and clear to see

that I acted in self[-]defense.

- 10 - THE COURT: All right. Mr. Tighe, your response.

MR. TIGHE: Um—[defendant’s] position, from the

beginning, was that he didn’t do it. And he had an alibi and was

somewhere else. So I never discussed self-defense ‘cause he never

said he’d done it. Our defense was the alibi defense.”

¶ 23 The trial court recalled having heard from at least one alibi witness, as confirmed

by counsel. The court continued:

“THE COURT: Okay. All right. And that was the defense

really from the start to the finish that he wasn’t present. He didn’t

do it. Correct, Mr. Tighe?

MR. TIGHE: That is correct.

THE COURT: All right. Very well. Then the next

allegation is Mr. Tighe did not investigate certain physical

evidence. Mr. Harris, what are you talking about there? Do you

want to say anything further?

[DEFENDANT]: Like there was a lot he didn’t do. Like for

one, he ain’t—he ain’t getting no records. My nickname was—I’m

not the only Little C person that’s called that nickname in the

records.”

¶ 24 Defendant then began explaining how at some point at “the beginning of the

case,” Cunningham said the person who shot him was the same person who had stabbed him, and

defendant wanted it made clear, “I’ve never been to jail for no knife altercation, none of that,

against dude [(Cunningham)].” He claimed Cunningham had “a personal vendetta” against him.

- 11 - The trial court then inquired:

“THE COURT: So, you’re stating that the victim really did

not know you. And the nickname he referred to you as, Mr. Tighe,

could have investigated and figured out that that was, in fact, not

yourself. Is that correct Mr. Harris?

[DEFENDANT]: Exactly. He made like three statements.

THE COURT: Okay, All right. Mr. Tighe, your response.

MR. TIGHE: All I can respond is that, again, Mr. Harris

insisted from the beginning it wasn’t him. He didn’t do it. He was

being misidentified. And our defense at trial was the alibi that he

wasn’t there.

THE COURT: Do you recall discussing with him, with Mr.

Harris, at all Mr. Tighe, the nickname that he was identified by?

MR. TIGHE: I didn’t—I did not, Your Honor.

THE COURT: Okay. Very well. And then really the final

allegation is furthermore counsel could have raised self[-]defense

or could have pursued a lesser charge, based on an unreasonable

belief of self[-]defense or sudden intense passion.”

¶ 25 The trial court noted how those “are really two separate things,” with self-defense

being an affirmative defense, and a lesser charge, such as second-degree murder, being based on

defendant’s claim he was acting under either a “sudden intense passion or [his] belief that ***

[he] needed to act in self-defense was unreasonable.” The court then asked defendant if he had

any further clarification:

- 12 - “[DEFENDANT]: I mean, if somebody walked up to you

and get to swinging and punching in your car and up a gun what

would you do?

THE COURT: Okay. So, essentially, you’re stating, based

on that, Mr. Tighe, should have asserted the affirmative defense of

self[-]defense or at least submitted a lesser included instruction for

second degree murder. Is that right, Mr. Harris?

THE COURT: Okay. Mr. Tighe—

[DEFENDANT]: Something.

THE COURT: Again your response.

MR. TIGHE: It’s the same. From the beginning his position

was that he didn’t do it. He wasn’t there.

THE COURT: Okay.

MR. TIGHE: So, he couldn’t have acted in self[-]defense if

he didn’t do it.

[DEFENDANT]: Can I speak?

THE COURT: Mr. Tighe, did you ever discuss with Mr.

Harris submitting a lesser included instruction?

MR. TIGHE: I did not.

THE COURT: Okay. And was that, again, based on his

position from the start, that it wasn’t him, he wasn’t there, he had

an alibi?

- 13 - MR. TIGHE: That’s correct.”

¶ 26 The trial court then stated it had considered the statements of defendant as well as

the responses of counsel and found, “the defendant’s allegations do not amount to ineffective

assistance of counsel.” The court noted, based on defendant asserting he was not present, it was

not him, and it was someone else, his attorney raised an alibi defense on his behalf and presented

evidence to that effect. Unfortunately, the jury was not persuaded, and the court found all of

defendant’s claims centered around that fact. The court denied defendant’s posttrial motion and

proceeded to a sentencing hearing.

¶ 27 C. Sentencing Hearing

¶ 28 The trial court found count II, the aggravated discharge of a firearm count,

merged for purposes of conviction with count I, the attempt (first degree murder) count. After the

evidence and arguments of counsel, the court sentenced defendant to 12 years on the attempt

conviction with the minimum 25-year add-on for the aggravating factor, for a total of 37 years.

Defendant’s motion to reconsider his sentence argued only that “the sentence, in light of the

offense and the Defendant’s criminal record was excessive.” The motion was denied and

defendant appeals.

¶ 29 II. ANALYSIS

¶ 30 Defendant raises three issues for review, claiming (1) he was denied the effective

assistance of counsel when his attorney failed to file a motion for discharge for violation of his

statutory speedy trial right, (2) the trial court’s Rule 431(b) admonishments were not sufficient

(see Ill. S. Ct. R. 431(b) (eff. July 1, 2012)), and (3) the trial court’s Krankel inquiry was

inadequate and the case should be remanded for a further hearing.

¶ 31 A. Harris’s Speedy Trial Claim

- 14 - ¶ 32 Section 103-5(a) of the Code of Criminal Procedure of 1963 provides, in relevant

part:

“Every person in custody in this State for an alleged offense shall

be tried by the court having jurisdiction within 120 days from the

date he or she was taken into custody unless delay is occasioned by

the defendant ***. Delay shall be considered to be agreed to by the

defendant unless he or she objects to the delay by making a written

demand for trial or an oral demand for trial on the record.” 725

ILCS 5/103-5(a) (West 2016).

¶ 33 Defendant couches an asserted violation of his statutory speedy trial right within

the context of a claim of ineffective assistance of counsel by complaining counsel failed to move

for his discharge. The issue of whether a defendant has received ineffective assistance of counsel

is a mixed question of fact and law. People v. Coleman, 2015 IL App (4th) 131045, ¶ 66, 25

N.E.3d 82. As a result, we will defer to the trial court’s findings of fact but review de novo the

ultimate legal question of whether counsel’s conduct supports an ineffective assistance claim.

People v. Phillips, 2017 IL App (4th) 160557, ¶ 55, 92 N.E.3d 544.

¶ 34 A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney’s performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808

- 15 - N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). As the Evans court noted, effective

assistance of counsel refers to competent, but not necessarily perfect, representation. Evans, 209

Ill. 2d at 220 (citing People v. Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)).

To satisfy the second prong of Strickland, “[a] defendant establishes prejudice by showing that,

but for counsel’s unprofessional errors, there is a reasonable probability that the result of the

proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426

(2008). The supreme court in Houston went on to define a “reasonable probability” as a

probability which would be sufficient to undermine confidence in the outcome of the trial.

Houston, 229 Ill. 2d at 4. “A defendant must satisfy both prongs of the Strickland test and a

failure to satisfy any one of the prongs precludes a finding of ineffectiveness.” People v.

Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

¶ 35 As to this issue, the entirety of defendant’s ineffectiveness claim rests on whether

he was tried outside his statutory speedy trial term as provided in section 103-5(a) of the Code of

Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2016)). If so, the failure of trial counsel

to pursue discharge could well constitute ineffective assistance. See People v. Staten, 159 Ill. 2d

419, 431, 639 N.E.2d 550, 556-57 (1994) (collecting cases). Conversely, if defendant was not

tried outside his term, there is no ineffectiveness issue. People v. Phipps, 238 Ill. 2d 54, 65, 933

N.E.2d 1186, 1192 (2010) (counsel’s failure to assert a speedy trial violation cannot establish

either prong of an ineffective assistance claim if there is no lawful basis for raising a speedy trial

objection). Whether a defendant’s statutory speedy trial rights were violated is a question of law,

which this court reviews de novo. People v. Van Schoyck, 232 Ill. 2d 330, 335, 904 N.E.2d 29,

31-32 (2009).

¶ 36 Both defendant and the State agree the State was responsible for the time from his

- 16 - arrest to November 21, 2017. The State’s brief argues that time ran from August 29, the date he

was charged, while defendant argues, and the court file reflects, he was arrested on August 23, so

the time would begin running the next day (August 24, 2017). See section 1.11 of the Statute on

Statutes, Computation of Time (5 ILCS 70/1.11 (West 2016)). Despite the disparity in starting

dates for calculating the speedy trial term, they both found 90 days to have expired by November

21, 2017. Both parties also appear to agree defendant’s 120 days would have run on December

22, 2017. No action was taken until the State’s motion to continue on January 5, 2018, to which

defendant objected. The trial court then proposed a February 13, 2018, trial date, which both

sides accepted. They also agree the time between February 9, 2018, when defendant was released

from custody, until the date of trial is not attributable to the State. As a result, what transpired on

November 21 makes all the difference.

¶ 37 At the November 21 pretrial, defendant was represented by an attorney from the

public defender’s office who, from her comments and a review of the record, was not the

attorney assigned to the case. When the trial court inquired about a possible jury trial date in

February, counsel, obviously referencing defendant’s assigned counsel, stated: “Well, he asked

for the earliest available date. He’s said that discovery is completed and he’s disclosed alibi

witnesses, so—” The court interjected for the court reporter to show “that the defendant demands

earliest jury trial date” and set the case for trial on January 9, 2018. Defendant did not object to

this trial date although, by all accounts, it was beyond the 120 days which would have otherwise

expired on December 22, 2017.

¶ 38 In People v. Cordell, 223 Ill. 2d 380, 391-92, 860 N.E.2d 323, 331 (2006), our

supreme court explained:

“A simple request for trial, before any ‘delay’ is proposed, is not

- 17 - equivalent to an objection for purposes of section 103-5(a).

[Citation.] As amended, section 103-5(a) places the onus on a

defendant to take affirmative action when he becomes aware that

his trial is being delayed. To allow basic requests for trial, made

before any delay was even proposed, to qualify as objections to

‘delays’ not yet proposed would provide defendants with another

sword to use after the fact to overturn their convictions. This does

not comport with the intention of section 103-5(a).”

The Cordell court defined what constituted a relevant “delay” when it noted there is nothing in

section 103-5(a) which says the “delay” must be of a set trial date. Instead, they said, “[a]ny

action by either party or the trial court that moves the trial date outside of that 120-day window

qualifies as a delay for the purposes of the section. To hold otherwise would contravene the

purpose of the 120-day period of the section, which is to guarantee a speedy trial and not to open

a new procedural loophole which defense counsel could unconscionably use to obstruct the ends

of justice.” (Internal quotation marks omitted.) Cordell, 223 Ill. 2d at 390.

¶ 39 Here, the attorney standing in for defendant’s trial counsel merely relayed

counsel’s desire for the earliest possible trial date, and the trial court noted that fact. When the

court proposed the new trial date, outside the 120 days, it was incumbent on counsel, either at

that time or later, to raise an objection. See People v. Lilly, 2016 IL App (3d) 140286, ¶ 32, 53

N.E.3d 1028 (section 103-5(a) places the responsibility on a defendant to take affirmative action

when he becomes aware his trial is being delayed). This would comport with the Cordell court’s

admonishment that a defendant is free to “employ section 103-5(a) as a shield against any

attempt to place his trial date outside the 120-day period.” Cordell, 223 Ill. 2d at 390. Instead,

- 18 - defendant is looking for that “procedural loophole” to defeat his conviction. Defense counsel

agreed to the proposed trial date offered at the November 21 hearing, thereby tolling the 120

days for the interim period. See People v. Woodrum, 223 Ill. 2d 286, 299, 860 N.E.2d 259, 269

(2006) (an agreed continuance tolls the speedy trial period).

¶ 40 At the January 5, 2018, hearing on the State’s continuance motion, when

discussing defendant’s time in custody, after the State opined he was on “day 56” and the court

noted it was a “fairly new case” filed “last fall,” counsel responded: “It was. I think it’s a few

more days than that [referencing the State’s calculation] but we’re still not approaching the 120.”

¶ 41 Although defense counsel’s objection to the continuance was noted by the trial

court, when the court proposed a February 13 trial date, both the State and defense agreed. At the

time, the 120 days had not run and defendant’s obligation to oppose the newly proffered trial

date continued. “[W]here there are two reasons for the delay, one attributable to the State and the

other to the defendant, ‘the fact that the delay was partially attributable to the defendant will be

sufficient to toll the statutory term.’ ” Lilly, 2016 IL App (3d) 140286, ¶ 31 (quoting People v.

Plair, 292 Ill. App. 3d 396, 398, 686 N.E.2d 28, 31 (1997)). Defendant objected to the

continuance, but since his agreement to the January 9 date tolled the 120-day clock, there was

still time remaining. However, once he agreed to the February 13 trial date, he was in the same

position as at the November 21 pretrial, agreeing to a trial date beyond the 120 days. Lilly, 2016

IL App (3d) 140286, ¶ 32.

¶ 42 Nothing after the January 5 hearing matters in the 120-day calculation because

defendant was released from custody on February 9, never again asserted his right to a speedy

trial, and acknowledges the same on appeal. As we noted above, both parties agreed 90 of the

120 days ran by the time of the November 21, 2017, pretrial. From then on, counsel’s

- 19 - acquiescence to the dates proposed by the trial court precluded the “clock” from ever starting

again. Cordell, 223 Ill. 2d at 390. As such, defendant has no speedy trial issue. On appeal,

however, he argues counsel’s failure to assert his speedy trial rights constitutes ineffective

assistance of counsel, which brings us back to where we started. There is no basis for arguing

ineffective assistance of counsel for failing to raise a speedy trial claim if there was no speedy

trial violation. People v. Staake, 2017 IL 121755, ¶ 47, 102 N.E.3d 217 (citing Phipps, 238 Ill.

2d at 65).

¶ 43 B. Rule 431(b) Admonishments

¶ 44 Whether a trial court has violated Illinois Supreme Court Rule 431(b) (eff. July 1,

2012), and if so, the effect of noncompliance, is reviewed de novo. People v. Wilmington, 2013

IL 112938, ¶ 26, 983 N.E.2d 1015; see also People v. Wrencher, 2011 IL App (4th) 080619,

¶ 37, 959 N.E.2d 693. The rule is simple—the trial court is to ask each prospective juror whether

that juror understands and accepts the following principles:

“(1) that the defendant is presumed innocent of the charge(s)

against him or her; (2) that before a defendant can be convicted the

State must prove the defendant guilty beyond a reasonable doubt;

(3) that the defendant is not required to offer any evidence on his

or her own behalf; and (4) that if a defendant does not testify it

cannot be held against him or her[.]” Ill. S. Ct. R. 431(b) (eff. July

1, 2012).

Defendant contends the trial court’s Rule 431(b) admonishments were not sufficient.

¶ 45 In this instance the trial court did not engage in the oft-cited basis for error of

“collapsing” the four Zehr (People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984)) principles

- 20 - into one statement of law, recently addressed approvingly by our supreme court in People v.

Birge, 2021 IL 125644. Instead, the trial court assiduously complied with Rule 431(b) by

admonishing the venire about each of the principles individually. Unfortunately, the inquiry then

deviated from that outlined in Rule 431(b), and rather than asking jurors if they “understand” and

“accept” each principle, the court asked whether the jurors “have any difficulty or disagreement”

with each proposition of law. After completing its inquiry in this fashion, the trial court then

found “that all of the jurors understand and accept the Zehr *** principles,” adding a final

question: “[a]ll jurors can all of you promise me that you will follow the law, even though you

may not personally agree with the law?” The court asked for and obtained a verbal response from

the entire venire indicating they could.

¶ 46 As noted by the State, there was no objection to the trial court’s manner of

questioning. In addition, defendant raised no claim of error concerning Rule 431(b)

admonishments in either of his pro se posttrial motions, nor did his retained counsel in his

written posttrial motion. This would normally be sufficient to find defendant has procedurally

forfeited the issue. People v. Belknap, 2014 IL 117094, ¶ 47, 23 N.E.3d 325.

¶ 47 Seeking to save himself from procedural forfeiture by relying on “plain error,”

defendant contends the admonishments were error and the evidence was close, thereby meeting

the first prong of a plain-error analysis. See People v. Kinnerson, 2020 IL App (4th) 170650,

¶ 58 (forfeited errors may be reviewed under the plain-error doctrine “ ‘where a clear or obvious

error occurred and the evidence is so closely balanced that the error alone threatened to tip the

scales of justice against the defendant’ ” (quoting Belknap, 2014 IL 117094, ¶ 48)).

¶ 48 The State concedes the admonishments were error but argues the evidence was

not close, and as a result, plain error does not apply. We find ourselves required to conduct this

- 21 - analysis once again because of the language used during Rule 431(b) admonishments. It remains

difficult to understand how such “ ‘clear and unambiguous’ ” language as that contained in Rule

431(b) continues to be a problem. People v. Bell, 2020 IL App (4th) 170804, ¶ 106, 145 N.E.3d

740 (quoting People v. Thompson, 238 Ill. 2d 598, 607, 939 N.E.2d 403, 409 (2010)). “The court

shall ask each potential juror, individually or in a group, whether that juror understands and

accepts the following principles ***.” (Emphases added.) Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

Our supreme court has interpreted the language of Rule 431(b) to mandate a “specific question

and response process.” Thompson, 238 Ill. 2d at 607. “The trial court must ask each potential

juror whether he or she understands and accepts each of the principles in the rule.” (Emphases

added.) Thompson, 238 Ill. 2d at 607.

¶ 49 Any time trial courts stray from this language, problems ensue. Trial courts could

go far in alleviating the frequency with which this issue is raised by merely following the

language of the rule. The procedure used here failed to comply with the requirements of Rule

431(b) and the directives of our supreme court.

¶ 50 Other appellate districts have found various alternatives sufficient. In People v.

Atherton, 406 Ill. App. 3d 598, 611, 940 N.E.2d 775, 787 (2010), for example, the Second

District found asking jurors if they “have any difficulty” with a particular proposition “was just

another way of asking if they understood those propositions,” and asking jurors if they were

“were willing to follow” the propositions was simply another way of asking if they accepted

them. In People v. Ware, 407 Ill. App. 3d 315, 356, 943 N.E.2d 1194, 1228 (2011), the First

District found asking jurors if they had any “difficulty” with the principles was sufficient since it

encompasses both “understanding” and “acceptance.” We have gone so far as to conclude

“follow” equals “accept.” See People v. Hartfield, 2020 IL App (4th) 170787, ¶ 58. However,

- 22 - most recently, in People v. Banks, 2021 IL App (4th) 180838-U, ¶ 40, we addressed this identical

form of Zehr admonishment by the same trial court and found, “it is the law that asking potential

jurors whether they disagree with a Zehr principle fails to fulfill the obligation to ask them

whether they understand the principle.”(Emphases in original.). We further found the trial

court’s inquiry into whether potential jurors had any “difficulty or disagreement” with the Zehr

principles was clear error. Banks, 2021 IL App (4th) 180838-U, ¶ 41. Although we did not

address it then, we do so here. Asking jurors if they had “difficulty” or “disagreement” with each

proposition and then concluding their responses indicated “that all of the jurors understand and

accept the Zehr *** principles” is not the procedure outlined in Rule 431(b), and to our

knowledge, it has not been approved by any court of review. It is for the jurors to indicate

whether they “understand” and “accept,” not for the trial court to make a finding they do so

based on a different inquiry.

¶ 51 Trial courts need to understand the dilemma this creates for reviewing courts. As

our supreme court noted in People v. Sebby, 2017 IL 119445, ¶ 53, 89 N.E.3d 675, “That

standard [(closely balanced evidence)] seems quite simple, but the opposite is true. A reviewing

court’s inquiry involves an assessment of the evidence on the elements of the charged offense or

offenses, along with any evidence regarding the witnesses’ credibility.”

¶ 52 Our colleague, Justice Steigmann, aptly noted the problems inherent in this

situation in People v. Neal, 2020 IL App (4th) 170869, ¶ 196, 150 N.E.3d 984:

“Whenever a reviewing court concludes that reversal is

required because (1) the trial court failed to comply with Rule

431(b) and (2) the evidence of defendant’s guilt is closely

balanced, that reversal is due to judicial malpractice. And

- 23 - prosecutorial malpractice, if the prosecutor stood idly by and

permitted this easily corrected judicial error to go unchallenged.

The prosecutor is the one responsible for protecting the record and

must be on high alert to ensure it does not contain any obvious

errors. There is scarcely a clearer, more obvious, and more easily

correctible error than a trial court’s failure to precisely comply

with Rule 431(b).”

¶ 53 He went on to note one possible outcome arising from erroneous Rule 431(b)

admonishments—the forced retrial, if even possible, of a defendant convicted of an egregious

crime solely because of botched Zehr admonishments and a closely balanced case. The actual

likelihood of a jury’s decision being somehow affected by bad Zehr admonishments may not be

substantial, but the possibility it could be found to be outcome-determinative in a close case,

leading to an overturned conviction and the inability to retry a defendant for horrendous crimes,

is far more realistic, yet it all could be avoided by properly asking jurors if they understand and

accept each of the four Zehr principles.

¶ 54 Since that did not happen here, we must consider the closeness of the evidence.

Sedrick Cunningham readily identified defendant, whom he knew only as “Little C,” from a

photo lineup while in the hospital after the shooting. He said he had known defendant for “five,

six” years, and although they were not friends, they had mutual friends with whom they

associated, and he had some form of contact with defendant between 5 and 10 times before the

shooting. By the time of trial, he learned defendant’s name from friends who conducted an

internet search. Cunningham identified defendant in open court as the person he knew as “Little

C,” and at trial he was “one hundred percent certain” of his in-court identification of defendant

- 24 - as the shooter. Defendant’s name was the only person to whom that nickname returned in a

search of the Decatur police database.

¶ 55 In addition, Cunningham provided the police with a physical description that

came very close to matching that of defendant. Cunningham described “Little C” to Officer

Patten at the hospital as being “a black male about 35 to 40 years old, short in height, with the

stocky build and dreadlock style hair.” When Detective Hall spoke with Cunningham in the

emergency room, he also described “Little C” as 37 years old, “a dark complected, black male,

shorter, stocky build, wearing a white tank top and jeans,” who had “dreads.” Lieutenant

Thompson of the sheriff’s office identified two book-in cards for defendant, one an alias of

“Little C,” and the other from the date of his arrest in this case, listing his age as 36, height—five

foot six, weight—one hundred eighty pounds, and dark complexion, with an accompanying

photograph showing defendant had “dreadlock style hair.”

¶ 56 This, however, was not the only evidence against defendant at trial. Cunningham

said at the time of the shooting defendant was driving a “[l]ight blue Merc, I think, a Grand

Marquis.” Detective Hall testified Cunningham described the shooter’s vehicle as a “sky blue,

four door, and it reminded him of a Mercury, possibly a Mercury.” Ronald Patterson, a convicted

felon, testified he sold a “baby blue” “Merc” to defendant for cash sometime before April 10,

2017. At trial, he identified defendant, whom he knew only as “Little C,” as the person to whom

he sold the car. Patterson said no formal paperwork was completed other than signing over the

title, and he testified that defendant “wanted to use my plates.” Detective Kretsinger said he saw

a “lighter blue, maybe robin’s egg” blue 1999 Grand Marquis parked at defendant’s mother’s

house between March 6 and March 8, 2017, during an unrelated investigation and she told him

defendant lived there “occasionally.” Kretsinger said the license plates came back registered to

- 25 - Ronald Patterson. Detective Marquis said a light blue Mercury Grand Marquis fled from him on

April 10, 2017, as he attempted to conduct a traffic stop and, when found later, defendant was

sitting in the passenger seat. The car was still registered to Patterson.

¶ 57 In contrast, the only occurrence witness for the defense was Milan Brown, the

father of defendant’s sister’s children. He provided an alibi for defendant for the day of the

shooting. However, when speaking with the police during defendant’s arrest, he failed to

mention this to them then or at any later time. In fact, according to Brown, he did not tell anyone

until speaking with defendant’s attorney over two months after defendant was arrested. On

cross-examination, Brown acknowledged having given a statement to defendant’s counsel in

November 2017, and the State presented testimony concerning the unsuccessful efforts made to

speak with Brown before the trial in August 2018.

¶ 58 “In determining whether the evidence adduced at trial was close, a 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. Having done so,

we find the evidence was not closely balanced. Defendant’s alibi witness, a convicted felon who

was tangentially related, said they were together at defendant’s sister’s house all day, with little

elaboration or explanation. In fact, his direct examination took up less than three pages of the

transcript. Apparently, counsel wanted to “get in and get out,” a tactic with which any seasoned

trial counsel can empathize when they are tendering a questionable witness. This becomes more

understandable when, during defendant’s Krankel hearing, he essentially confirms any alibi

evidence was false by admitting he did, in fact, shoot Cunningham, but that it was in

self-defense, claiming counsel was ineffective for failing to assert the same.

¶ 59 This is not the equally credible, conflicting testimony the supreme court described

- 26 - in Sebby. There is nothing in this record to support a finding that the evidence was “ ‘so closely

balanced that the error alone threatened to tip the scales of justice against the defendant.’ ”

Sebby, 2017 IL 119445, ¶ 48 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d

403, 410 (2007)) .

¶ 60 C. Inadequate Krankel Hearing

¶ 61 Lastly, defendant contends the case should be remanded for a further Krankel

inquiry, maintaining he had additional unaddressed claims of ineffective assistance. One would

have thought, after reading the transcript, defendant would have preferred to forget the Krankel

hearing, which could best be described as a textbook example of why efforts at

self-representation in a criminal case are frequently a bad idea. Instead, he chooses to draw

attention to his disastrous admission and then argues he did not get an adequate opportunity to

address his claims.

¶ 62 The procedure which has developed from Krankel governing pro se claims of

ineffective assistance of counsel “ ‘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 [of counsel] claims.’ ” People v. Jackson, 2020 IL 124112, ¶ 95, 162 N.E.3d 223

(quoting People v. Patrick, 2011 IL 111666, ¶ 39, 960 N.E.2d 1114). It is intended to limit

appeal issues by addressing ineffectiveness claims in the trial court. Jackson, 2020 IL 124112,

¶ 95. New counsel is not automatically appointed; instead, the trial court first examines the

factual basis of the claim and determines whether the claim lacks merit or pertains to matters of

trial strategy. If so, then the court may deny the motion without the appointment of new counsel.

People v. Jolly, 2014 IL 117142, ¶ 29, 25 N.E.3d 1127.

¶ 63 Whether the trial court conducted a proper Krankel preliminary inquiry presents a

- 27 - question of law that we review de novo. Jackson, 2020 IL 124112, ¶ 98. If the trial court’s

inquiry was properly conducted and the court decided the merits of defendant’s claim, we will

reverse only if the trial court’s actions constitute manifest error, or error that is clearly evident,

plain, and indisputable. Jackson, 2020 IL 124112, ¶ 98. “If the trial court determines that the

claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new

counsel and may deny the pro se motion.” Jackson, 2020 IL 124112, ¶ 97.

¶ 64 Our first concern, on review, is to ascertain whether the trial court conducted an

adequate inquiry into defendant’s pro se claims of ineffective assistance. Jackson, 2020 IL

124112, ¶ 98. Once a defendant raises such claims, the trial court is expected to conduct “some

type of inquiry into the underlying factual basis, if any.” (Internal quotation marks omitted.)

People v. Ayres, 2017 IL 120071, ¶ 11, 88 N.E.3d 732. In Ayres, our supreme court told us the

inquiry must be “ ‘sufficient to determine the factual basis of the claim’ ” and consist of “ ‘some

interchange’ ” between the court, trial counsel, and the defendant concerning the facts and

circumstances surrounding the allegations, discussing the allegations with the defendant, and

inquiring of trial counsel about the defendant’s claims. Ayres, 2017 IL 120071, ¶¶ 11-12 (quoting

People v. Banks, 237 Ill. 2d 154, 213, 934 N.E.2d 435, 468 (2010), and Jolly, 2014 IL 117142,

¶ 30).

¶ 65 Defendant’s motion for a new trial, asserting his ineffective assistance of counsel

claims, first asked the trial court “to take in mind the direct evidence as to the state of mind

regarding what I believe at the time I acted in self-defense against the victim.” This undoubtedly

was a surprise to the court, if not to defense counsel as well, since defendant claimed an alibi

throughout and presented testimony to that effect at trial. The entirety of his ineffective

assistance claims were contained in the next paragraph:

- 28 - “I also like to raise Ineffective assistance counsel [sic] for failing

to raise a viable theory of defense and effective, [sic] conceded my

guilt; investigate certain physical evidence. Furthermore, Counsel

could have raised self-defense or could have pursued a lesser

Charge based upon an unreasonable belief in self-defense or

sudden or intense passion. [citing portions of 720 ILCS 5/7-1(a),

use of force in defense of person].”

¶ 66 The transcript of the hearing on defendant’s motion reveals the trial court engaged

in a painstaking inquiry of each allegation raised, asking defendant if he wished to explain his

claim or say anything further about it, and afterwards, asking defendant to confirm the trial

court’s summarization of what it understood his claim to be. Once that was completed, the court

asked defense counsel to respond. As defendant elaborated on his claims, or on other complaints

he had, the trial court redirected him at times, asking for specifics, and asking if he had anything

further to say.

¶ 67 We are asked to speculate on what defendant meant by “Can I speak?” This

question arose after defendant claimed his counsel was ineffective for failing to raise

self-defense as an affirmative defense or submit a lesser included instruction for second-degree

murder. It came immediately after his trial counsel again mentioned, “from the beginning his

position was that he didn’t do it. He wasn’t there.” and “So, he couldn’t have acted in

self-defense if he didn’t do it.” The trial court found defendant’s claims did not amount to

ineffective assistance, noting he asserted an alibi “from the start” and even presented an alibi

witness. We cannot surmise defendant was going to be able to add anything likely to clear up the

fact he was either lying before the court now or had presented perjured testimony from his alibi

- 29 - witness at trial. Either way, the court had addressed each of the claims he raised in his motion,

and even on appeal defendant fails to assert what additional claims he had.

¶ 68 Based on this record, the finding of the trial court that defendant’s claims lacked

merit was not manifestly erroneous. People v. Lobdell, 2019 IL App (3d) 180385, ¶ 10, 141

N.E.3d 304. There is no basis to find he is entitled to any further Krankel inquiry.

¶ 69 III. CONCLUSION

¶ 70 For all these reasons we affirm the judgment and sentence of the trial court.

¶ 71 Affirmed.

- 30 -