2014 IL App (1st) 113082
SIXTH DIVISION February 7, 2014
No. 1-11-3082
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Circuit Court Plaintiff-Appellee, ) of Cook County ) v. ) No. 07 CR 18230 (01) ) CHARLES KOEN, ) Honorable Neera Lall Walsh, ) Judge Presiding. Defendant-Appellant. )
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Pierce concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Charles Koen (Koen) appeals his convictions of theft
(720 ILCS 5/16-1(a)(1) (West 2004)) and forgery (720 ILCS 5/17-3(a)(1) (West 2004)). On
appeal, Koen argues (1) his actions were lawful under the General Not For Profit Corporation
Act of 1986 (805 ILCS 105/101.01 et seq. (West 2004)); (2) the trial court abused its discretion
in disqualifying Charles Koen Jr., as his counsel; (3) the testimony of Barry Goldberg violated
his right to a fair trial; (4) the trial court's jury instructions violated his right to a fair trial; (5)
statements made during the State's closing argument violated his right to a fair trial; and (6) the
mittimus must be corrected to reflect the proper offense and time spent in custody. For the
following reasons, we affirm Koen's convictions and correct the mittimus. 1-11-3082
¶2 BACKGROUND
¶3 I. Facts of the Offense
¶4 The United Way is a nationwide nonprofit charitable organization with local offices
throughout Illinois. In 2003, United Way had 52 local offices in the suburban areas of Cook,
DuPage, McHenry, Kane, and Will Counties. In an effort to improve efficiency, United Way
sought to consolidate these 52 offices into 13 offices. United Way, however, decided not to
merge the United Way of Harvey (UW-Harvey) into the 13 newly consolidated offices because of
tax liabilities on the building at 195 East 154th Street in Harvey, Illinois, where UW-Harvey
operated. As a result, UW-Harvey ceased submitting its required filings with the Illinois
Secretary of State and was administratively dissolved in January 2004.
¶5 On August 30, 2004, eight months after the dissolution of UW-Harvey, Koen called the
United Way of Metropolitan Chicago (UW-Chicago). During the conversation, Koen
communicated that his organization, United Front, Inc., wanted to purchase the property at 195
East 154th Street. UW-Chicago informed Koen it did not own the property and advised him of
the tax liabilities associated with the building. UW-Chicago then instructed Koen to contact the
attorney for UW-Harvey if United Front still intended to acquire the property.
¶6 Koen never contacted the attorney for UW-Harvey. Instead, on September 1, 2004, Koen
and codefendant Alex Brooks (Brooks) filed an application with the Illinois Secretary of State to
reinstate UW-Harvey. These documents indicated Koen and Brooks to be the registered agent
and treasurer, respectively, of UW-Harvey, although neither had any association with the
organization. The following day, Koen and Brooks signed and recorded a notarized quitclaim
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deed for the property at 195 East 154th Street, conveying the building to United Front. Koen
then called UW-Chicago again and advised the organization that United Front had purchased the
property and resolved the liability issue.
¶7 On September 3, 2004, Charles Koen Jr., Koen's son and United Front's attorney,
forwarded letters to tenants of the building at 195 East 154th Street. The letters advised the
tenants United Front owned and managed the building "in conjunction with the United Way of
Harvey" and offered to "to meet with [the tenants] to discuss leasing arrangements." The letters
further declared while "there may have been some misunderstanding as to who owned the
building, *** rent payments should resume immediately."
¶8 Around this time, UW-Chicago began receiving phone calls from tenants of the building
expressing concern over the attempts to have rent payments submitted to United Front. UW-
Chicago also received a letter from Koen dated September 9, 2004 stating that United Front was
now the lawful owner of the property and had resolved the associated tax liabilities.
Accordingly, UW-Chicago consulted with its attorneys regarding the issue and was advised that
United Front was not the lawful owner of the property. UW-Chicago thus wrote a letter to Koen
Jr. advising him of the same. Koen Jr. responded to the letter, asserting United Front was in fact
the lawful owner of the building, a contention with which UW-Chicago disagreed.
¶9 Despite this disagreement, United Front continued to proceed as the lawful owner of the
property. It attempted to raise the rate of rent for certain tenants in the building. It collected rent
payments from those tenants who paid and threatened eviction for those tenants who did not
comply. Koen further attempted to change various locks in the building and, in some instances,
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succeeded in doing so without notifying the affected tenants. On multiple occasions, members of
United Front presented the quitclaim deed to tenants of the building in an effort to assert
ownership and a right to future rent payments. In these instances, Harvey police officers had to
escort the United Front members from the property after the tenants complained.
¶ 10 Ultimately, the Charitable Trust Bureau (CTB) of the Illinois Attorney General's office
conducted an investigation into the matter and filed a civil suit in the circuit court of Cook
County. The civil suit asserted the reinstatement of UW-Harvey was conducted without
authority. Following the commencement of the civil suit, Koen was arrested in October 2007
and criminally charged with two counts of theft and two counts of forgery.
¶ 11 II. Motion for Disqualification
¶ 12 Prior to trial, Koen Jr. sought to appear on behalf of his father as defense counsel. In
response, the State moved to disqualify Koen Jr., arguing he should be disqualified as a potential
witness given his role as "a participant in the actual takeover of the property." As the State
noted, Koen Jr. communicated and met with tenants from whom the defendants allegedly
requested rent payments. Koen Jr. admitted to his contact with the tenants, but responded that
"[the State] could bring in those tenants to testify" regarding their communications, and thus he
was not a "necessary witness" in the case. The trial court ruled in the State's favor and
disqualified Koen Jr. The trial court reasoned, "possibly anything that the tenants said that [Koen
Jr.] said would be hearsay, so the State may find it necessary to call [Koen Jr.] as a witness."
¶ 13 III. Testimony of Barry Goldberg
¶ 14 At trial, the State presented the testimony of Barry Goldberg, assistant bureau chief of the
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CTB. Goldberg began by testifying about the general role of the Attorney General's office in
protecting charitable funds and organizations. Goldberg then explained in more detail the
registration and filing requirements of charities, as well as the investigatory functions of the
CTB. In particular, he noted charitable corporations in Illinois must file an annual report with
the Illinois Secretary of State, which "lists the current officers and directors of the organization."
Goldberg further added, "[t]he last board of directors is the only body that's authorized to wind
down the affairs of the organization." Therefore, "[i]f the last board of directors are not available
or cannot for whatever reason wind down the affairs of the not-for-profit corporation, then a
court action has to be filed to seek court authorization to take control of and distribute the assets
in an appropriate fashion."
¶ 15 Goldberg additionally testified to his role in the investigation. According to Goldberg,
after the CTB became aware of the issue with UW-Harvey and United Front, he compared the
reinstatement filing to the most recent annual reports filed by UW-Harvey before its dissolution.
The reinstatement filing, he noted, was "unusual" because it listed Koen and Brooks as board
members, and their names were "not the same names as those that were listed with the Secretary
of State and with the Attorney General's Office as the last authorized board of [UW-Harvey]." In
response to this discrepancy, the CTB "filed a lawsuit in the Circuit Court of Cook County to
appoint a receiver for both [UW-Harvey] and the United Front and to declare that the
reinstatement of [UW-Harvey] was done without authority."
¶ 16 While defense counsel filed a motion in limine before trial to prevent Goldberg from
disclosing Koen's prior felony convictions, defense counsel did not object to any of the content of
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the Goldberg's testimony.1
¶ 17 IV. Closing Arguments
¶ 18 During closing arguments, defense counsel argued Koen and Brooks believed "the
process that they used *** to obtain the quitclaim deed was valid." In particular, defense counsel
likened Koen's asserting control over the property to reclaiming a discarded washing machine
from an alley; counsel asked the jury, "[i]f a person purchases a new washer or for whatever
reason gets rid of the old washer and leaves it in the alley, can they charge the junkman with theft
for picking up something that they abandoned?" Further, defense counsel argued it was unclear
whether UW-Harvey owned the building after its dissolution in 2004.
¶ 19 In rebuttal, the State responded to Koen's arguments regarding the ownership of the
building:
"The victim is [UW-Harvey]. Actually, as Barry Goldberg was here to say the
victim [sic] are the People of the State of Illinois and that's who's bringing the charges.
When you take advantage of a charitable organization—
MR. THEDFORD [defense counsel]: Objection, Your Honor.
THE COURT: Counsel may argue.
If a lawyer makes a statement that's not based on the evidence, you should
disregard that statement."
¶ 20 After the jurors exited the courtroom to deliberate, Koen moved for a mistrial. Defense
1 Defense counsel objected twice during the State's examination of Goldberg. The first objection, for leading the witness, was sustained. The second objection was withdrawn.
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counsel argued that describing the State as the "victim" in the case was "misleading." The State
disagreed, asserting Goldberg's testimony established "the People of the State of Illinois *** have
the interest in charitable entities" and, thus, by "saying that there's no victim," Koen "invited" the
characterization. The trial court denied the motion, agreeing with the State that "it was invited
comment at that point."
¶ 21 V. Jury Instructions
¶ 22 The trial court instructed the jury as to Koen's presumption of innocence, the State's
burden of proof, and the elements of the offenses charged. With regard to the first count, the trial
court advised the jury it would need to find UW-Harvey was the owner of the property to sustain
a conviction for theft. It further instructed the jury that it must find Koen exerted unauthorized
control over that property. The trial court did not instruct the jury as to provisions of the General
Not for Profit Corporation Act relating to the reinstatement of a dissolved nonprofit corporation.
After deliberating, the jury proceeded to find Koen guilty on one count of theft and one count of
forgery, counts one and four respectively. The jury acquitted Koen of the remaining counts.
¶ 23 VI. Sentencing and Credit for Time Served
¶ 24 Following the jury trial, the trial court held a sentencing hearing on August 25, 2011. At
the hearing, the trial court sentenced Koen to 12 years of imprisonment in the Illinois Department
of Corrections. The trial court also found Koen was entitled to 83 days2 of credit for time served
2 The trial court calculated this number to reflect the time Koen spent in custody awaiting bail and between the conclusion of the trial and the sentencing hearing. In his brief, Koen admits the trial court miscalculated this number. The correct number is 78. Koen served eight days between the time he was arrested on October 3, 2007 and released on October 10, 2007. Koen
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awaiting trial. The trial court then stayed the issuance of the mittimus for further proceedings.
¶ 25 At a later hearing held on September 1, 2011, Koen moved the court to reconsider the
sentence. Koen contended he should have been given credit for an additional 293 days served;
after Koen posted bond and was released pending trial in this case, he was arrested on separate
charges (postbond charges) for which he remained in custody another 11 months until he was
able to meet the additional bond. The trial court denied Koen's motion, stating "there is no
reason [Koen] should be given credit for time on other matters, and those matters having not
been resolved yet on this matter, which is separate and distinct from those matters." The trial
court again stayed the issuance of the mittimus.
¶ 26 On September 19, 2011, Koen pleaded guilty to the postbond charges. At the plea
hearing, the trial court stated, "I will give [Koen] credit for the time he served on the other cases."
Later in the hearing, defense counsel sought clarification of the credit Koen would be receiving
for time served. The trial court responded:
"As to that case, it was 83 on August 25 plus additional time to today's date which
is additional 20 something days. That's when I issued that mitt I said it's nunc pro tunc to
that day. It's still calculated automatically as far as time. If there is an issue about this, I
am happy to clear that up. As to these cases, it's 293 additional days. *** It will be mitt
as to all the cases."
The mittimus was then entered on September 20, 2011 and provided that Koen was to receive
also served 70 days between the time he was convicted on June 17, 2011 and was sentenced on August 25, 2011.
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credit for 83 days served. The mittimus does not account for any additional time Koen served
prior to trial on the postbond charges or after the conclusion of the sentencing hearing.
¶ 27 ANALYSIS
¶ 28 I. Statutory Interpretation
¶ 29 Koen first argues the State failed to prove him guilty beyond a reasonable doubt of theft.
"A person commits theft when he [or she] knowingly [o]btains or exerts unauthorized control
over property of the owner." 720 ILCS 5/16-1(a)(1) (West 2004). Koen admits "there was no
question [he] exerted control over the Harvey building by transferring title of the property to the
United Front." Koen thus asserts the State failed to prove his actions in doing so were
"unauthorized" because, according to Koen, Illinois law permitted him to reinstate UW-Harvey.
¶ 30 While Koen frames his argument in terms of reasonable doubt, Koen's argument is
actually one of statutory interpretation. In matters of statutory interpretation our standard of
review is de novo. People v. Swift, 202 Ill. 2d 378, 385 (2002). The primary goal of statutory
construction is to ascertain and give effect to the intent of the legislature. People v. Marshall,
242 Ill. 2d 285, 292 (2011). We construe the statute as a whole and afford the language its plain
and ordinary meaning. Id. We must also avoid rendering any part meaningless or superfluous,
and consider words and phrases in light of other relevant provisions of the statute. Id.
Additionally, we may consider the consequences of construing the language one way as opposed
to another and, in doing so, we presume the legislature did not intend the statute to have absurd,
inconvenient, or unjust consequences. Id. at 293.
¶ 31 Specifically, Koen argues his actions were authorized as a matter of Illinois law under
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section 112.45 of the General Not For Profit Corporation Act of 1986 (Act) (805 ILCS
105/112.45 (West 2004)). Section 112.45(d) provides:
"Upon the filing of the application for reinstatement, the corporate existence shall be
deemed to have continued without interruption from the date of the issuance of the
certificate of dissolution, and the corporation shall stand revived with such powers, duties
and obligations as if it had not been dissolved; and all acts and proceedings of its officers,
directors and members, acting or purporting to act as such, which would have been legal
and valid but for such dissolution, shall stand ratified and confirmed." 805 ILCS
105/112.45(d) (West 2004).
According to Koen, while he and Brooks may not actually have been officers, directors, or
members of UW-Harvey, their actions were still authorized under the Act because they "were
'purporting to act' on behalf of the defunct [UW-Harvey] by filing articles of reinstatement in the
manner specified by that section." This result, argues Koen, is mandated from the plain language
of section 112.45. Koen's statutory interpretation is flawed, however, for three reasons.
¶ 32 First, it relies on a misinterpretation of section 112.45(d). Koen reads the phrase "acting
or purporting to act as such" as authorizing any person to reinstate the dissolved nonprofit
corporation so long as this person "purports" to be an officer, director, or member of said entity.
Relying on rules of statutory interpretation, Koen insists "[t]his phrase cannot be ignored."
While we may not ignore this phrase, neither can we ignore the context in which this phrase
appears. The phrase plainly modifies "officers, directors and members" in the text of the statute.
Accordingly, section 112.45(d) does not suggest anybody may validly take actions on behalf of
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the nonprofit, but explicitly outlines only "officers, directors and members" may do so.
Moreover, contrary to Koen's assertion, section 112.45(d) does not contemplate who may file the
application for reinstatement. Rather, section 112.45(d) describes the effect of the filing for
reinstatement. See 805 ILCS 105/112.45(d) (West 2004) ("Upon the filing of the application for
reinstatement, the corporate existence shall be deemed to have continued without interruption
from the date of the issuance of the certificate of dissolution, and the corporation shall stand
revived with such powers, duties and obligations as if it had not been dissolved ***."); see also
New Holy Temple Missionary Baptist Church v. Discount Inn, Inc., 371 Ill. App. 3d 443, 446
(2007). Thus, when section 112.45(d) goes on to state "all acts and proceedings of its officers,
directors and members, acting or purporting to act as such, which would have been legal and
valid but for such dissolution, shall stand ratified and confirmed," it is similarly discussing the
effect of reinstatement. That is, section 112.45(d) recognizes the actions taken by the nonprofit's
"officers, directors and members" during the time between dissolution and reinstatement as valid
actions of the nonprofit corporation "as if it had not been dissolved." 805 ILCS 105/112.45(d)
(West 2004).
¶ 33 Second, Koen's interpretation fails because it does not account for other provisions of the
Act. In particular, section 112.45(b) requires the application for reinstatement to be "executed
and filed in duplicate in accordance with Section 101.10 of this Act." 805 ILCS 105/112.45(b)
(West 2004). Section 101.10 authorizes the individuals who may sign these documents and
provides that these documents shall be signed "[b]y the president, a vice-president, the secretary,
an assistant secretary, the treasurer, or other officer duly authorized by the board of directors of
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the corporation to execute the document." 805 ILCS 105/101.10(b)(2)(i) (West 2004). Section
101.10 also provides, "[i]f it shall appear from the document that there are no such officers, then
[the documents shall be signed] by a majority of the directors or by such directors as may be
designated by the board." 805 ILCS 105/101.10(b)(2)(ii) (West 2004). Further, "[i]f it shall
appear from the document that there are no such officers or directors, then [the documents shall
be signed] by the members, or such of them as may be designated by the members at a lawful
meeting." 805 ILCS 105/101.10(b)(2)(iii) (West 2004). Finally, "[i]f the corporate assets are in
the possession of a receiver, trustee or other court-appointed officer, then [the documents shall be
signed] by the fiduciary or the majority of them if there are more than one." 805 ILCS
105/101.10(b)(2)(iv) (West 2004). Nowhere does section 101.10 authorize any person to
"purport to act" as an officer of the dissolved entity to sign the documents of reinstatement. To
the contrary, the section specifically lists who is authorized to sign the documents and Koen does
not fall within any of these classes of individuals.
¶ 34 Lastly, we find Koen's interpretation incorrect on the grounds it would lead to "unjust"
results. See Marshall, 242 Ill. 2d at 293. Under Koen's interpretation, the Act permits any
individual to falsely claim an association with an organization, validly act on its behalf
postdissolution, and file an application for reinstatement. We cannot assume our legislature
intended such an outcome and, consequently, do not agree Koen's actions were authorized under
the Act.
¶ 35 II. Disqualification of Koen Jr.
¶ 36 Koen additionally asserts the trial court abused its discretion when it disqualified Koen's
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son, Charles Koen Jr., as his attorney. According to Koen, the trial court's decision was a denial
of his right under the sixth amendment to be represented by the counsel of his choice. Koen asks
us to reverse his conviction on these grounds and remand the matter for a new trial.
¶ 37 As a threshold matter, we note Koen forfeited this issue by failing to raise it in his
posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Reed, 298 Ill. App. 3d
285, 294 (1998). Koen, therefore, argues for plain-error review. We need not address his plain-
error arguments, however, because even addressing the issue on its merits, we find no abuse of
discretion.
¶ 38 Generally, "[t]he sixth amendment of the United States Constitution guarantees a criminal
defendant the right to the assistance of the counsel of his choice." People v. Ortega, 209 Ill. 2d
354, 358 (2004) (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). The " 'essential aim' "
of the sixth amendment, however, " 'is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented by the lawyer
whom he prefers.' " People v. Rivera, 2013 IL 112467, ¶ 37 (quoting Wheat, 486 U.S. at 159).
The right to the counsel of one's choice, therefore, "is not absolute and is circumscribed in
several respects." Id.
¶ 39 Relevant to this case, "[t]he advocate-witness rule precludes an attorney from acting as
advocate and witness in the same case." People v. Gully, 243 Ill. App. 3d 853, 859 (1993). This
rule "reflects important policy considerations." Rivera, 2013 IL 112467, ¶ 40. Indeed, there is an
inherent conflict of interest in an advocate-witness; "the function of an advocate is to advance or
argue the cause of another, while that of the witness is to state the facts objectively." Gully, 243
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Ill. App. 3d at 859. Furthermore, "the attorney-witness may not be a fully objective witness,
causing harm to the client's cause, or the trier of fact may grant undue weight to the attorney's
testimony, unfairly disadvantaging the opposing party." Rivera, 2013 IL 112467, ¶40. Thus, the
trial court is afforded " 'substantial latitude' to refuse to allow a defendant to waive his chosen
counsel's actual or potential conflict of interest." Ortega, 209 Ill. 2d at 358-59 (quoting Wheat,
486 U.S. at 163). Trial courts require this latitude because the " 'likelihood and dimensions of
nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar
with criminal trials.' " Id. at 359 (quoting Wheat, 486 U.S. at 162-63). Accordingly, a reviewing
court will not set aside a trial court's decision to disqualify a defendant's chosen counsel unless
there has been a clear abuse of discretion. Id. The trial court abuses its discretion when its
decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable person would
agree with it. Id. With these principles in mind, we do not find the trial court abused its
discretion in disqualifying Koen Jr.
¶ 40 Koen contends the State did not meet its burden in demonstrating Koen Jr.'s testimony
was necessary to its case. Koen supports his assertion with the fact that the State ultimately did
not call Koen Jr. as a witness at trial. Regardless, the fact that an attorney does not actually
testify at trial is "irrelevant to the trial court's decision to disqualify" said attorney beforehand.
Rivera, 2013 IL 112467, ¶ 42. Instead, the relevant inquiry, according to our supreme court, is
whether the attorney had a "professional obligation to withdraw as defense counsel" under
Illinois Rule of Professional Conduct 3.7 (Ill. R. Prof. Conduct R. 3.7 (eff. Aug. 1, 1990)). See
Rivera, 2013 IL 112467, ¶ 40 ("Rule 3.7 required [defense counsel] to withdraw from his
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representation of defendant, and we find, therefore, that the trial court did not abuse its discretion
in disqualifying [defense counsel]").
¶ 41 At the time of Koen Jr.'s disqualification, Rule 3.7 provided:
"(a) A lawyer shall not accept or continue employment in contemplated or
pending litigation if the lawyer knows or reasonably should know that the lawyer may be
called as a witness on behalf of the client, except that the lawyer may undertake the
employment and may testify:
(1) if the testimony will relate to an uncontested matter;
(2) if the testimony will relate to a matter of formality and the lawyer
reasonably believes that no substantial evidence will be offered in opposition to
the testimony;
(3) if the testimony will relate to the nature and value of legal services
rendered in the case by the lawyer or the firm to the client; or
(4) as to any other matter, if refusal to accept or continue the employment
would work a substantial hardship on the client.”
Ill. R. Prof. Conduct R. 3.7 (eff. Aug. 1, 1990). In this case, we find Rule 3.7 mandated Koen
Jr.'s withdrawal from representation. Koen Jr.'s involvement in the events surrounding this
matter was sufficient that he reasonably should have known he would likely be called as a
witness by the State;3 his correspondence with UW-Chicago and the tenants were important
3 The text of Rule 3.7 at the time of Koen Jr.'s disqualification required a lawyer to withdraw "if the lawyer [knew] or reasonably should [have known] that the lawyer may be called
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pieces of evidence. Because Koen Jr. refused to withdraw pursuant to Rule 3.7, we find the trial
court did not abuse its discretion in disqualifying him from representing his father.4
¶ 42 III. Improper Testimony
¶ 43 Koen next argues he was denied a fair trial when the court allowed Barry Goldberg to
testify regarding the Act. According to Koen, Goldberg improperly "offer[ed] legal conclusions
that were determinative of the outcome of this case." Koen, however, did not object to any of the
now complained-of testimony at trial. As a result, Koen has forfeited this issue on appeal. See
as a witness on behalf of the client." Ill. R. Prof. Conduct R. 3.7 (eff. Aug. 1, 1990). Case law illustrates this version of Rule 3.7 additionally required withdrawal if the attorney may be called as a witness by the State. See, e.g., People v. Reed, 298 Ill. App. 3d 285, 295 (1998) (where "the State argued that it might call [defense counsel] as a witness," the court concluded "Rule 3.7 mandated [defense counsel's] withdrawal"); see also Rivera, 2013 IL 112467, ¶ 41 (citing with approval People v. Reed, 298 Ill. App. 3d 285 (1998)). 4 Rule 3.7 was revised between the disqualification hearing and trial in the instant case. The current version of Rule 3.7 now provides:
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." Ill. R. Prof. Conduct (2010) R. 3.7 (eff. Jan.1, 2010).
The present iteration of Rule 3.7 appears to grant attorneys more leeway by requiring counsel to withdraw in situations where one is "likely to be a necessary witness." (Emphasis added.) Ill. R. Prof. Conduct (2010) R. 3.7 (eff. Jan.1, 2010). Nonetheless, we find either version of Rule 3.7 would have mandated Koen Jr.'s withdrawal. Indeed, as the trial court noted, "the State may find it necessary to call [Koen Jr.] as a witness."
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Enoch, 122 Ill. 2d at 186. Despite the State having argued forfeiture of this issue in its brief,
Koen has not asked for plain-error review on appeal. Koen has likewise forfeited this argument
as well. See People v. Nieves, 192 Ill. 2d 487, 503 (2000). Therefore, we need not address the
merits of Koen's assertions regarding Goldberg's testimony.
¶ 44 IV. Failure to Instruct Jury
¶ 45 Koen claims he was denied a fair trial when the court did not instruct the jury on the law
governing the reinstatement of non profit corporations under the General Not for Profit
Corporations Act. Koen did not object to the jury instructions at trial and did not tender
alternative instructions to the trial court. Under Supreme Court Rule 366(b)(2)(i), "[n]o party
may raise on appeal the failure to give an instruction unless the party shall have tendered it." Ill.
S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994). Koen thus forfeits the issue. See People v. Piatkowski,
225 Ill. 2d 551, 564 (2007). Koen must therefore seek review under Supreme Court Rule 451(c),
which states, "substantial defects are not waived by failure to make timely objections thereto if
the interests of justice require." Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). This rule is coextensive
with the plain-error doctrine. People v. Sargent, 239 Ill. 2d 166, 189 (2010). In order for us to
review Koen's arguments under the plain-error doctrine, Koen must show: "(1) 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, regardless of the seriousness of the error, or (2) a clear or
obvious error occurred and that error is so serious that it affected the fairness of the defendant's
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence." Id. We find Koen does not meet the requirements for plain-error review because no
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clear or obvious error occurred.
¶ 46 At trial, the court instructed the jury of the elements of the crimes charged. As noted,
defense counsel did not object to these instructions and did not tender any alternative
instructions. Thus, for there to have been "clear and obvious error" the court must necessarily
have had a duty to sua sponte instruct the jury as to the provisions of the Act. Case law provides
that such a duty does not exist. Generally, "the trial court has no obligation to instruct on its own
motion." People v. Parks, 65 Ill. 2d 132, 137 (1976). However, to ensure a fair trial in criminal
cases, "the trial court must instruct the jury on such basic matters as the elements of the offense,
the presumption of innocence, and the burden of proof." People v. Green, 225 Ill. 2d 612, 622
(2007). The trial court properly instructed the jury as to these matters and Koen does not
complain the trial court failed to do so. Accordingly, no clear and obvious error occurred and
Koen fails to meet the requirements for plain-error review.
¶ 47 In his brief, Koen falls back on a two-sentence argument made in passing, which claims
defense counsel was ineffective for failing to request an instruction on the Act. While Koen cites
to cases where defense counsel was ineffective for not requesting a particular jury instruction, he
makes no specific argument as to why Koen's defense counsel was ineffective in this matter.
Even assuming this suffices as properly raising such a claim on appeal, this argument still must
fail.
¶ 48 In Illinois, a claim of ineffective assistance of counsel requires a defendant to prove: "(1)
counsel's performance fell below an objective standard of reasonableness; and (2) absent
counsel's deficient performance there is a reasonable probability that the result of the proceeding
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would have been different." People v. Harris, 206 Ill. 2d 293, 304 (2002). Furthermore,
"reviewing courts entertain a strong presumption that the attorney's performance was a product of
sound trial strategy and professional judgment." Id. (citing Strickland v. Washington, 466 U.S.
668, 689 (1984)). Koen does not meet this standard because defense counsel's decision not to
request a different jury instruction did not fall below an objective standard of reasonableness.
Indeed, it appears more likely the lack of such an instruction benefitted Koen. According to
Koen, without an instruction on the Act, "the jurors were required entirely to speculate as to
whether the law deemed Koen's control over the property as unauthorized." As previously
addressed, however, no reasonable interpretation of the Act authorized Koen to reinstate UW-
Harvey. See supra ¶¶ 29-34. Thus, instructing the jurors on the provisions of the Act would
have plainly established Koen was not authorized to take control over the property. Such an
outcome would have obviously been detrimental to Koen's case and, accordingly, his defense
counsel's actions do not give rise to a claim for ineffective assistance of counsel.
¶ 49 V. Prejudicial Closing Arguments
¶ 50 Koen contends he was denied a fair trial because the prosecutor characterized the State of
Illinois as the "victim" during closing arguments. Koen claims this characterization "improperly
urged the jurors to view themselves as victims and was designed solely to inflame the passions
and prejudices of the jury." We are not persuaded by Koen's argument that this characterization
amounts to reversible error.
¶ 51 A prosecutor has wide latitude during closing arguments. People v. Wheeler, 226 Ill. 2d
92, 123 (2007); People v. Blue, 189 Ill. 2d 99, 127 (2000). "In closing, the prosecutor may
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comment on the evidence and any fair, reasonable inferences it yields ***." People v. Nicholas,
218 Ill. 2d 104, 121 (2005). A State's closing argument leads to reversal only if the prosecutor's
remarks created "substantial prejudice." Wheeler, 226 Ill. 2d at 123; People v. Johnson, 208 Ill.
2d 53, 64 (2003). Substantial prejudice occurs "if the improper remarks constituted a material
factor in a defendant's conviction." Wheeler, 226 Ill. 2d at 123. When reviewing claims of
prosecutorial misconduct in closing arguments, a reviewing court will consider the entire closing
arguments of both the prosecutor and the defense attorney, in order to place the remarks in
context. Id. at 122; Johnson, 208 Ill. 2d at 113. Accordingly, "[s]tatements will not be held
improper if they were provoked or invited by the defense counsel's argument." People v.
Glasper, 234 Ill. 2d 173, 204 (2009).
¶ 52 We note that it is not clear whether the appropriate standard of review for this issue is de
novo or abuse of discretion, based on an apparent conflict between Wheeler and Blue. See
People v. Land, 2011 IL App (1st) 101048, ¶¶ 148-49 (and cases cited therein). We need not
address the conflict in detail because, taking all of the closing arguments into consideration,
Koen's objections fail under either standard.
¶ 53 As the trial court accurately remarked, the State's comment was "invited." The State
made the allegedly improper argument in passing during the middle of its rebuttal when it stated,
"[t]he victim is [UW-Harvey]. Actually, as Barry Goldberg was here to say the victim [sic] are
the People of the State of Illinois and that's who's bringing the charges." After considering the
entirety of closing arguments, we agree that the State was simply responding to defense counsel's
implication that Koen's actions caused no harm; in its closing, defense counsel compared the
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reinstatement of UW-Harvey to the reclaiming of a discarded appliance from an alley. Thus, the
State could fairly contradict this implication with its comment, a conclusion supported by the
testimony of Barry Goldberg.
¶ 54 Moreover, even assuming the characterization was not invited by defense counsel's
closing argument, Koen fails to demonstrate how these comments amounted to "substantial
prejudice." The State did not present the alleged improper comments as an important part of its
closing argument, nor did the comments appear designed to invoke outrage from the jury. In
fact, after defense counsel's objection was overruled, the State dropped this line of argument and
continued with its rebuttal. Whatever effect these comments had on the jury was almost certainly
insignificant and therefore we do not find that they were a material factor in Koen's conviction.
¶ 55 VI. Mittimus
¶ 56 Koen lastly claims the mittimus should be corrected to accurately reflect the time he spent
in custody prior to his incarceration. The mittimus currently provides Koen should receive credit
for 83 days. Koen argues the mittmus should state he is to receive a total of 396 days of credit
for time served; according to Koen, he served 8 days prior to posting bond in this case, 293 days
prior to posting bond on the postbond charges, 70 days between the conclusion of trial and the
sentencing hearing, and 25 days between the conclusion of sentencing and the September 19,
2011 hearing. While we do not dispute the number of days Koen actually served, we disagree
that we should correct the mittimus in this case to reflect the 293 days served on the postbond
charges.
¶ 57 The additional 293 days of credit Koen seeks relate to time spent in custody as a result of
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the postbond charges. Per Illinois law, however, "the offender shall be given credit on the
determinate sentence or maximum term and the minimum period of imprisonment for [the
number of days] spent in custody as a result of the offense for which the sentence was imposed."
(Emphasis added.) 730 ILCS 5/5-4.5-100(b) (West 2010); see also, e.g., People v. Jones, 241 Ill.
App. 3d 262 (1993). As the trial court initially noted, "there is no reason [Koen] should be given
credit for time on other matters," which are "separate and distinct" from the case Koen currently
appeals. Koen therefore relies on later statements made by the trial court on September 19, 2011,
to support his assertion the mittimus should be corrected in this case to include the 293 days of
credit. These statements do not stand for that proposition. At the plea hearing on the postbond
charges, the trial court stated, "[a]s to these cases, it's 293 additional days," using "these cases" to
refer to the postbond charges. In so doing, the trial court ordered Koen was entitled to 293 days
of credit for time served on his sentence for the postbond charges, not for the instant case.
¶ 58 While Koen is not entitled in this case to the additional 293 days of credit for time served
on the postbond charges, he is entitled to the additional 25 days of credit for the time spent in
custody between his sentencing hearing and September 19, 2011 plea hearing. Unlike the 293
days requested by defendant, these 25 days were served as a result of "the offense for which the
sentence was imposed." See People v. Latona, 184 Ill. 2d 260, 272 (1998) ("defendant should be
given credit for any time served in county custody [prior to] sentencing on the instant offenses, as
well as any additional time in county custody thereafter"). During the time Koen served the 25
days, he had previously been released on the postbond charges and, if not for his conviction in
the instant case, would have been free awaiting the September plea hearing. Instead, Koen
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remained in custody while the the trial court stayed the issuance of the mittimus pending further
proceedings. The trial court accounted for this time spent in custody post-conviction in its initial
calculation of 83 days. The trial court then acknowledged Koen was entitled to more credit for
this time served when it stated, "[a]s to that case, it was 83 [days] on August 25 plus additional
time to today's date which is additional 20 something days." Context reveals the trial court used
"that case" to refer to the instant case.5
¶ 59 Accordingly, we determine the mittimus should be corrected to indicate Koen is entitled
to 103 days for time served in this matter. This number accounts for the 8 days Koen spent in
custody before posting bond as well as the 95 days he spent in custody between the conclusion of
trial on June 17, 2011, and the issuance of the mittimus on September 20, 2011. We find,
however, Koen is not entitled to 293 days of credit in this case for the time he spent in custody on
the postbond charges.
5 The record provides the following:
"MR. THEDFORD [defense counsel]: Just for clarification on the time credit, my client has a very good issue. He received credit for time on this case ending in 230. THE COURT: The first case which was a jury trial. Yes. MR. THEDFORD [defense counsel]: He received credit on the date of sentencing which at that point was about 383 [sic] days. THE COURT: Right. This is in addition. MR. THEDFORD [defense counsel]: He wants to make sure he is getting credit in addition to that time. THE COURT: Oh, yeah, he is. As to that case, it was 83 on August 25 plus additional time to today's date which is additional 20 something days. That's when I issued that mitt I said it was nunc pro tunc to that day. It's still calculated automatically as far as time. If there is an issue about this, I am happy to clear that up. As to these cases, it's 293 additional days. Any questions about that?"
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¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.
¶ 62 Affirmed; mittimus corrected.