People v. Lampe

2020 IL App (3d) 180425-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2020 IL App (3d) 180425-U

Order filed November 20, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0425 v. ) Circuit No. 17-CM-202 ) DOLLIE A. LAMPE, ) Honorable ) Jeffrey W. O’Connor, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court. Presiding Justice Lytton concurred in the judgment. Justice O’Brien specially concurred. ____________________________________________________________________________

ORDER

¶1 Held: Defendant did not receive ineffective assistance of counsel where counsel did not request TASC probation at sentencing.

¶2 Defendant, Dollie A. Lampe, appeals her domestic battery conviction. Defendant argues

that defense counsel’s representation was deficient where he failed to request a term of

Treatment Alternatives for Safe Communities (TASC) probation at sentencing. We affirm.

¶3 I. BACKGROUND ¶4 The State charged defendant with domestic battery (720 ILCS 5/12-3.2(a)(2) (West

2016)). The matter proceeded to a jury trial.

¶5 At trial, Roger Lampe testified that he and defendant were married but going through a

divorce. On July 22, 2017, Roger went to the residence he shared with defendant to retrieve

some personal items. Roger discovered that defendant had changed the locks, and he could not

enter. Roger located a police officer to accompany him back to the residence. Again, Roger

unsuccessfully attempted to gain access by knocking on the door. Soon after, defendant exited

the residence. When defendant reentered the home, Roger and the officer followed defendant

inside. Defendant tackled Roger, pushing him into a chair. Defendant said she was going to kill

Roger.

¶6 On cross-examination, Roger stated that he had an argument with defendant the morning

prior and did not return home that night. Roger did not contact defendant to let her know he

planned to return to the residence to retrieve his personal items the next morning. When Roger

tried to enter the residence, defendant said, “[y]ou’re not coming in. You can’t come in. My

lawyer says I don’t have to let you in.”

¶7 On redirect examination, Roger stated that the argument he had with defendant the

morning prior to the incident occurred after defendant had returned home from a bar.

¶8 The officer testified that Roger approached him and indicated that he needed assistance to

retrieve personal items from his residence. Once there, defendant told Roger that her attorney

said she was not required to let him inside. Defendant then exited the house and reentered. Roger

and the officer followed defendant inside. The officer observed defendant turn around and push

Roger toward the door. Defendant eventually pushed Roger into a chair.

2 ¶9 The jury found defendant guilty of domestic battery. The court stated to the parties, “No

prior record, nobody got hurt, this was all tied up with an emotional dissolution of a marriage

with *** the final order *** entered yesterday. So I’m going to suggest six months’ court

supervision ***.” The court continued the matter for sentencing and directed the parties to

research whether the offense of domestic battery may be eligible for court supervision.

¶ 10 At sentencing, the State asked the court for conditional discharge. Based on Roger’s

request, the State also asked that defendant complete a mental health and drug and alcohol

evaluation and to complete treatment. Defense counsel responded that he believed defendant

attended therapy, so the evaluation was unnecessary. Counsel reported to the court that defendant

was ineligible for court supervision due to the nature of her conviction. Counsel requested a

sentence of conditional discharge and no evaluation. Counsel also stated that at the time of

sentencing, defendant and Roger were divorced.

¶ 11 Before pronouncing defendant’s sentence, the court noted that “the problem stemmed

from [Roger] wanting to show up and get some of his things, I believe.” It continued saying, “It’s

just one of these domestic things where they got to the point where they couldn’t stand each

other.” The court sentenced defendant to a term of conditional discharge and suggested that

“everybody move on and don’t worry about reconciliations.” Defendant appeals.

¶ 12 II. ANALYSIS

¶ 13 Defendant argues that defense counsel was ineffective when he failed to request a term of

TASC probation under the Alcoholism and Other Drug Abuse and Dependency Act (Act) (20

ILCS 301/1-1 et seq. (West 2016)). Upon review, we find that defendant did not receive

ineffective assistance of counsel as he cannot demonstrate that he was prejudiced by counsel’s

failure to request TASC probation.

3 ¶ 14 To challenge the effectiveness of counsel, a defendant must show: (1) counsel’s

performance fell below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for counsel’s error, the result of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668, 694 (1984). “[W]e may dispose of an ineffective

assistance of counsel claim by proceeding directly to the prejudice prong without addressing

counsel’s performance.” People v. Hale, 2013 IL 113140, ¶ 17. “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 (2008).

¶ 15 “If a court has reason to believe that an individual who is *** convicted of a crime

suffers from alcoholism or other drug addiction and the court finds that he is eligible to make the

election provided for under Section 40-5, the court shall advise the individual” that they could be

eligible for TASC probation. 20 ILCS 301/40-10(a) (West 2016). If a defendant requests TASC

probation, then the court shall order an examination to determine whether the defendant suffers

from drug or alcohol addiction and is likely to be rehabilitated through treatment. Id. § 40-10(b).

If the court finds from the report and any other information that a defendant suffers from

alcoholism or other drug addiction and is likely to be rehabilitated through treatment, then it shall

place defendant on probation and under the supervision of a designated program for treatment

(TASC probation). Id. However, if after

“giving consideration to the nature and circumstances of the offense and to the

history, character and condition of the individual, the court is of the opinion that

no significant relationship exists between the addiction or alcoholism of the

4 individual and the crime committed, or that his imprisonment or periodic

imprisonment is necessary for the protection of the public,”

then the court shall not impose a sentence of TASC probation. Id. A defendant does not have an

absolute right to TASC probation, and the court has broad discretion to deny or grant a

defendant’s request to participate in the treatment program. People v. Moore, 206 Ill. App. 3d

769, 775-76 (1990).

¶ 16 Defendant argues that she was entitled to TASC probation due to (1) her domestic battery

conviction’s eligibility under section 40-5; and (2) the evidence of her substance abuse disorder

in the record. See 20 ILCS 301/40-5 (West 2016). While defendant’s misdemeanor domestic

battery conviction is not excluded from TASC probation, the record does not establish that she

suffered from a qualifying substance abuse disorder. Id. § 40-5(b) (excluding crimes of violence

from TASC probation); id. § 1-10 (defining “crime of violence” in terms of felony offenses).

¶ 17 Defendant points to three instances which she argues establish her substance abuse

disorder: Roger testified that he had an argument the morning before the instant offense when

defendant returned home from a bar, the State requested a mental health and drug and alcohol

evaluation, and counsel’s response to the request, that evaluation was unnecessary, derived from

the fact that defendant was undergoing therapy at the time of sentencing. We find that these

contentions did not support a request for TASC probation.

¶ 18 First, Roger’s testimony that defendant went to a bar the day before the offense does not

indicate that defendant suffered from alcoholism. An individual may visit a bar without suffering

from a substance abuse disorder, and the record contains no indication that defendant drank to

excess during this visit or was heavily intoxicated when she returned home. Second, defendant

construes the State’s request for a mental health and drug and alcohol evaluation as evidence that

5 she had a substance abuse disorder. The record fails to substantiate this contention as the State

made this request at Roger’s behest and without further explanation or support. Therefore, we

would need to engage in impermissible speculation to determine from this request that defendant

suffered from a substance abuse disorder. Third, defense counsel’s response that an evaluation

was unnecessary because he believed defendant was undergoing therapy at the time of

sentencing did not indicate that defendant suffered from a substance abuse disorder. Defense

counsel’s statement is general, and due to the lack of other explanation in the record, could be

attributed to a variety of different types of therapy rather than only those related to substance

abuse. Therefore, this record lacks sufficient indication of a substance abuse issue to warrant a

TASC evaluation, let alone the imposition of TASC probation.

¶ 19 Assuming for the sake of argument that counsel had requested a sentence of TASC

probation, the court would have refused the request because defendant cannot establish a

relationship between her alleged substance abuse and domestic battery conviction. 20 ILCS

301/40-10(b) (West 2016). The trial record and the court’s comments clearly indicate that

defendant’s domestic battery conviction derived from a contentious divorce between her and

Roger. The only indication of alcohol use came from Roger’s testimony that he thought that

defendant visited a bar the day before the altercation. However, this visit is so far removed from

the altercation that any alcohol consumed during the visit would not have contributed to the one-

day-later domestic battery. As the record contains no other indication that defendant’s

consumption of alcohol or drugs was related to the domestic battery, defendant was ineligible for

TASC probation, even if counsel requested it and the court found that the record warranted a

TASC evaluation. We conclude that counsel’s performance was not deficient because, even if

counsel had requested TASC probation, the court would not have imposed this sentence.

6 ¶ 20 III. CONCLUSION

¶ 21 The judgment of the circuit court of Henry County is affirmed.

¶ 22 Affirmed.

¶ 23 JUSTICE O’BRIEN, specially concurring:

¶ 24 While I agree with the majority’s decision to affirm defendant’s conviction, I disagree

with its reliance on the record to determine defendant’s claim of ineffective assistance of

counsel. I write separately to express my opinion that the record is insufficient to determine

whether counsel’s assistance was ineffective where it lacks an account of what counsel knew. As

such, I would take no position on this issue.

¶ 25 Generally, a defendant must raise his claim of ineffective assistance of counsel in his

direct appeal or risk forfeiting the claim. People v. Veach, 2017 IL 120649, ¶ 47. Despite the

well-established preference that ineffective assistance of counsel claims be brought on direct

appeal, some of these claims may occasionally be better suited to collateral proceedings when

“the record is incomplete or inadequate for resolving the claim.” Id. ¶ 46.

¶ 26 From my review, I would find that the record is inadequate to resolve defendant’s claim

of ineffective assistance of counsel and this claim is better addressed in a collateral proceeding.

Defendant argues that counsel’s failure to request TASC probation in her case constitutes

ineffective assistance. While on its face, TASC probation appears to be a more desirable

alternative than receiving a conviction for domestic battery, the record is devoid of this and any

other explanation for counsel’s decision. Further, the record contains no indication of what

defendant told counsel or what counsel knew before the sentencing hearing. As the record is

silent, I would hold that the claim is better suited for a collateral proceeding where defendant can

supplement the record with evidence of her conversation or lack of conversation with counsel

7 about TASC probation. I would take no position on the merits of defendant’s ineffective

assistance claim.