FILED
September 21, 2017
2017 IL App (4th) 150608 Carla Bender
4th District Appellate
NO. 4-15-0608 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
MARCUS E. McGATH, ) No. 15CF25
Defendant-Appellant. ) ) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
¶1 Following a May 2015 trial, a jury convicted defendant, Marcus E. McGath, of
unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2014)). In July 2015,
the trial court sentenced him to 25 years in prison.
¶2 Defendant appeals and raises several arguments: (1) the State failed to prove him
guilty beyond a reasonable doubt, (2) he received ineffective assistance of counsel when his trial
counsel failed to subpoena a key witness, (3) the trial court erred when it failed to conduct a
hearing in accordance with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), (4) the
court erred when it denied trial counsel’s request to make an offer of proof to explain a key
witness’ absence at trial, and (5) the court subjected him to double enhancement at sentencing
when it considered a factor in aggravation that was inherent in the offense. For the reasons that
follow, we disagree and affirm. ¶3 I. BACKGROUND
¶4 In February 2015, the State charged defendant with unlawful delivery of a
controlled substance (720 ILCS 570/401(e) (West 2014)), which was later amended to
subsection (d) (720 ILCS 570/401(d) (West 2014)). The charge alleged that, on or about
November 4, 2014, defendant knowingly delivered less than one gram of a substance containing
cocaine to Coartney Barton, a police confidential source.
¶5 A. Pretrial Proceedings
¶6 In May 2015, the day before trial, defendant tendered a witness list that contained
only the name of Katrina Ross, his girlfriend. (Defendant’s theory throughout trial was that the
evidence was unclear as to who delivered the cocaine to Barton—he or Ross.)
¶7 On the day of trial, the trial court asked the parties, outside of the presence of the
jury, whether any matters needed to be resolved before the court brought the jury back in. The
following conversation took place regarding whether Ross would testify:
“MR. REGNIER [Assistant State’s Attorney]: There is,
Judge. It is regarding disclosure of a witness yesterday regarding
what she was going to say today.
THE COURT: Who?
MR. REGNIER: Katrina Ross.
THE COURT: Okay.
MR. REGNIER: And *** what—I would proffer based off
talking to her today, she is planning on using her Fifth Amendment
right.
-2 MR. REGNIER: There has [sic] been some discussions
over what she can testify to before using that right or not. And if
Your Honor does allow her to use that right, the State would
probably pursue some kind of immunity, either use or qualified
immunity for her.
THE COURT: She is not listed as your witness.
MR. REGNIER: Judge, we were aware of what she was
going to say today as far as a summary of what her statements
were going to be.
THE COURT: Well, I—
MR. REGNIER: And that is when we found out about the
Fifth Amendment.
THE COURT: Okay. But you have not listed her as a
witness. And if you are not planning on calling her, I don’t see it
being an issue for the State.
MR. REGNIER: Regarding her *** using use immunity or
regarding her invoking her Fifth Amendment right while she is on
the stand.
THE COURT: She can do that.
MR. REGNIER: The State’s belief is that if she is going to
testify about a transaction—she can’t testify about that partially
and then invoke her Fifth Amendment right and the State, now that
-3 we are aware of what she intends to testify to generally, a summary
from speaking with her this morning, believes it would be the case.
THE COURT: Well, we will have to get into that when she
starts testifying.
MR. REGNIER: Okay. Well—
THE COURT: I got to get the case going.”
¶8 B. The Trial
¶9 The following evidence was presented at defendant’s May 2015 jury trial. In
November 2014, Barton conducted a controlled buy for the proactive unit in Livingston County.
Barton arranged the buy through text messages with a contact in her phone listed as “Katrina.”
Katrina Ross had been Barton’s friend for many years and was in a relationship with defendant.
Barton used this telephone number to contact defendant because it was how she communicated
with him in the past. Barton sent a text message that asked if defendant “was good,” meaning if
he had any drugs. She received a positive response, and she told him that she would come by in
the early afternoon. Barton believed Inspector Leland Brooke was present while she made the
arrangements and that Brooke saw the text messages. (However, Brooke later testified that he
was not present and did not see the messages.)
¶ 10 The police searched Barton’s person and vehicle before she went to defendant’s
residence and found no contraband. The police gave her $40 of prerecorded money and an audio-
recording device inside a cigarette pack, which she placed in her pocket. The police then
followed her to defendant’s residence.
¶ 11 Barton arrived at defendant’s residence, knocked on the door, and Ross answered
it. Barton walked into the living room and did not see defendant. Barton asked Ross if defendant
-4 had something for her, and Ross replied affirmatively and stated that defendant was in the
bedroom. Barton knocked on the bedroom door, and defendant opened it. She handed him $40,
and he gave her a small amount of crack cocaine. Defendant asked Barton for a ride to the
pawnshop. She told him that she could give him a ride but needed to drop off the cocaine first.
¶ 12 Barton left and drove to the jail, and the police followed close behind. At the jail,
Barton gave the police the purported crack cocaine, and they searched her again and found no
contraband. The police transferred the white substance to a forensic scientist for testing, who,
after a series of tests, concluded that the 0.1 grams of white substance contained cocaine.
¶ 13 The prosecution played the audio recording of the transaction for the jury. The
entire conversation between Barton, Ross, and defendant lasted approximately one minute. When
Barton arrived at the residence, she knocked on the door and Ross greeted her. Barton said,
“here,” and after a few seconds, she mentioned defendant. Ross yelled, “Oh! Babe!” Defendant
said something to Ross, but what he said is unclear from the recording. Ross responded, “Do you
have something for Cornelia?” (Cornelia is a nickname that Ross used for Barton.) Defendant
replied, “Yeah, but ask her if she can run me to the pawnshop real quick.” Ross relayed the
request to Barton, in which she said she could after she dropped off the drugs. Ross suggested
that defendant should just ride with Barton, but he interjected and said that he would wait
because he did not “want nobody seeing [his] face.”
¶ 14 In between testimony, the trial court held a recess. Outside the presence of the
jury, the court instructed the parties to read People v. Human, 331 Ill. App. 3d 809, 773 N.E.2d 4
(2002), to determine whether a party may call a witness it believes will invoke the fifth
amendment privilege. When the parties returned from the recess, the court asked them if they
had any questions about Ross. The following conversation took place:
-5 “MR. MASON [Defense counsel]: At this time, no. I have
told her to go talk to Mr. Morgan[, the public defender].
THE COURT: Okay. And we’ll take it up.
MR. MASON: I’ve reviewed the case that you gave me
that you referred to earlier.
THE COURT: Yes, yes.
MR. MASON: Told her what I thought it meant.
MR. MASON: And I believe she was going to talk to Mr.
Morgan.
THE COURT: All right. Very good. Is she under
subpoena?
MR. MASON: No. And I think that makes a difference,
too.
THE COURT: Yes. I believe it does.”
¶ 15 The trial resumed without Ross being called to testify. The jury found defendant
guilty of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2014)).
¶ 16 C. Posttrial Proceedings
¶ 17 In June 2015, defense counsel filed a motion for a new trial and argued, among
other things, (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2)
Barton’s testimony was not supported by the audio recording, and (3) Ross was present for a
portion of the trial and “was not called as a defense witness although she could have provided
testimony contradicting testimony of *** Barton as shown by the notarized statement of ***
-6 Ross attached hereto. Ms. Ros [sic] had been present at the trial during the morning but did not
return after lunch.” Ross’s notarized statement stated the following:
“I Katrina Pauline Ross being of sound mind and in a sober
state am writing this to claim responsibility for my actions. On
November 4, 2014[,] I Katrina Ross exchanged a $40 bag of
cocaine for two $20 bags of heroin with Coartney Barton. When
this was done without [defendant] knowing. This is all supported
by the audio. This transaction was within the first 10 seconds of
the audio when Ms. Barton enters my home. When [defendant]
was asked if he had something for “Cornelia” it was referring to
$10 the gas money she needed that evening to go to Lexington IL
where she worked at McDonald’s. I declare that this are [sic] true
and correct.”
¶ 18 In July 2015, the trial court held a hearing on the motion for a new trial. Defense
counsel asked the court to allow Ross to testify. The State objected, arguing that Ross’s
testimony was not newly discovered evidence. In response, defense counsel stated if the court
would allow her to testify, she would explain why she did not testify at trial. The court sustained
the State’s objection, recognizing that Ross was never subpoenaed or called to testify, and there
was no reason why Ross could not have testified earlier. Defense counsel asked to make an offer
of proof, and the following discussion took place:
“MR. MASON: May I make a proffer as to what [Ross’s]
testimony would be today?
THE COURT: You may. Yes.
-7 MR. MASON: It would be that she—
THE COURT: Well, I’m sorry to interrupt. There is an
affidavit attached. Would she testify consistent with her affidavit?
MR. MASON: Yes, Your Honor.
THE COURT: Okay. So I’ll allow you to make that proffer
for the record that her testimony would be consistent.
MR. MASON: Okay. She would testify consistent with
that.
MR. MASON: Beyond that, she would have testified as to
why she did not, why she did leave rather than staying around to
testify.
THE COURT: All right. Any other argument on the
motion?
MR. MASON: No. I think the other elements were all
argued at the closing at the trial.”
¶ 19 The trial court denied defendant’s motion and proceeded to sentencing. The court
sentenced him to 25 years in prison, and in explaining its sentence, it stated in relevant part, as
follows:
“I think you recognize just the out of control epidemic in our
community and across the State and I think across the country with
heroin addiction; and we are just losing the battle big time. I think
there’s been four or five overdoses in this county in the last several
-8 months from drug addiction. People that I’ve set a bond on have
bonded out and overdosed and died. That bothers me tremendously
as a person in this community.
And I’m saying that because I recognize that [defendant]
and based upon the information in the presentence investigation
report [(PSI)] clearly has struggled forever with substance abuse
addictions and not just heroin. Cocaine, alcohol. You know, your
PSI is just a nightmare. It just, it’s really heartbreaking. And you
were dealt with what I would say is a really, really crappy hand.
***
But dealing drugs threatens serious harm within our
community, not just to the person that’s doing the drugs who very
well could overdose but to the responders when they are
addressing people with overdoses. That it creates potential for
accidents. They are responding to an overdose, and that takes them
away from other crimes. So, I mean—or not crimes but other
investigations or calls that they can be responding to. It has a ripple
effect in the community when you deal drugs.”
¶ 20 In July 2015, defendant filed a motion to reconsider the sentence, arguing the trial
court should have given more consideration to his history of addiction and should have imposed
a lesser sentence. The court denied the motion.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
-9 ¶ 23 Defendant raises several issues on appeal, and we address them in turn.
¶ 24 A. Sufficiency of the Evidence
¶ 25 Defendant argues the State failed to prove him guilty beyond a reasonable doubt
because (1) its key witness’s testimony contradicted the audio recording of the transaction and
(2) circumstantial evidence implicated another person who was present during the transaction.
The State counters that it presented sufficient evidence to prove defendant guilty beyond a
reasonable doubt. We agree with the State.
¶ 26 When a reviewing court considers a challenge to the sufficiency of the evidence,
it must determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the required elements of the offense
proved beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, 1 N.E.3d 888. It is
the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence, and
draw reasonable inferences from the facts. People v. Siguenza-Brito, 235 Ill. 2d 213, 224, 920
N.E.2d 233, 240 (2009). Accordingly, a reviewing court will not substitute its judgment for that
of the fact finder on questions involving the weight of the evidence or the credibility of the
witnesses. People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112. “A conviction will be
reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67,
23 N.E.3d 325.
¶ 27 Defendant first argues the State’s evidence was insufficient because the State did
not introduce any evidence linking him to Ross’s telephone number (citing People v. Walker,
2016 IL App (2d) 140566, ¶¶ 11-12, 60 N.E.3d 101). In Walker, the defendant’s convictions
stemmed from four different transactions for the sale of cocaine to an undercover police officer.
- 10 Id. ¶ 1. On appeal, the defendant challenged the fourth transaction because it was the only
instance arranged solely through text messages. Id. The defendant argued that the State did not
meet its burden because it needed to prove that he owned the telephone associated with the
phone number. The Second District disagreed, finding that compelling circumstantial evidence
indicated that the defendant sent the text messages, such as the prior transactions that he arranged
using the same telephone number. Id. ¶ 12.
¶ 28 Walker hardly supports defendant’s contention in this case. Further, Walker is
distinguishable because the State prosecuted the defendant in that case on the theory of
accountability and the text messages were the sole evidence to identify that defendant.
¶ 29 In this case, the text messages were not the sole evidence that incriminated
defendant. Instead, the text messages corroborated the audio recording and Barton’s testimony.
Considering the circumstances of the transaction as a whole, the State did not need to provide
evidence directly linking defendant to the telephone.
¶ 30 Defendant next argues that the State’s evidence was insufficient because Barton
testified she sent the text messages in Brooke’s presence, but Brooke denied that he was present
when Barton sent the messages. This discrepancy lacks the significance defendant claims. The
jury heard the evidence and was put on notice of any discrepancies in the State’s case. We
reiterate that the jury bore the responsibility to assess the credibility of the witnesses, to resolve
any discrepancies in the testimony, and to draw reasonable inferences from the evidence.
Siguenza-Brito, 235 Ill. 2d at 224, 920 N.E.2d at 240. This discrepancy of which defendant
complains was hardly a game-changer. The jury could simply have concluded that either Barton
or Brooke was innocently mistaken about whether Brooke was present when Barton sent the text
messages, and either way, it possessed no great significance.
- 11 ¶ 31 Defendant also contends that the State’s evidence was insufficient because there
was no visual surveillance of the controlled buy. However, defendant fails to cite any authority
to support this contention or further develop this argument, and we conclude it lacks any merit.
¶ 32 Defendant last argues that the State’s evidence was insufficient because Barton’s
testimony was inconsistent with the audio recording. Both parties contend that the recording
supports their respective positions. For example, defendant suggests that when Barton asked to
speak with defendant, Ross’s response of “oh” indicates that a meeting between defendant and
Barton was an afterthought and not the main purpose of Barton’s visit. The State argues that
defendant’s voice becomes clearer on the audio recording (indicating he was getting closer to
Barton), which establishes that the exchange occurred at that time. In response to these
arguments, we note that it is the jury, not this court, who is called upon to draw such inferences.
¶ 33 This court’s decision in People v. Hadden, 2015 IL App (4th) 140226, ¶¶ 28-29,
44 N.E.3d 681, is instructive. In Hadden, this court stated, in relevant part, as follows:
“We note that deferring to the jury is particularly important
when the jury is considering an audio-recorded statement as
opposed to a written transcript. Spoken language contains more
communicative information than the mere words because spoken
language contains ‘paralanguage’—that is, the ‘vocal signs
perceptible to the human ear that are not actual words.’ Keith A.
Gorgos, Lost in Transcription: Why the Video Record Is Actually
Verbatim, 57 Buff. L. Rev. 1057, 1107 (2009). Paralanguage
includes ‘quality of voice (shrill, smooth, shaky, gravely, whiny,
giggling), variations in pitch, intonation, stress, emphasis,
- 12 breathiness, volume, extent (how drawn out or clipped speech is),
hesitations or silent pauses, filled pauses or speech fillers (e.g.,
“um/uhm,” “hmm,” “er”), the rate of speech, and extra-speech
sounds such as hissing, shushing, whistling, and imitations
sounds.’ [Id.] at 1108. The information expressed through
paralanguage is rarely included in the transcript, as there is
generally no written counterpart for these features of speech. [Id.]
at 1109.
The jury has the responsibility to interpret the paralanguage
and draw the appropriate inferences therefrom. In this case, the
jury and this court both have had access to the same recordings of
defendant’s conversations with Lyons and Luster. However, we
might reach different conclusions about the meaning of the
conversations based on differing interpretations of the
paralanguage involved. *** [T]his court is obliged to defer to the
jury’s interpretations.” Id.
¶ 34 Thus, based upon both Barton’s testimony and the audio recording, we conclude
that the State presented sufficient evidence for the jury to find beyond a reasonable doubt that
defendant sold Barton the cocaine. In support of our conclusion, we note that whether the
paralanguage of the audio recording was consistent with Barton’s testimony was for the jury to
decide.
¶ 35 B. Effective Assistance of Counsel
- 13 ¶ 36 Defendant argues he received ineffective assistance of counsel when his trial
counsel failed to subpoena Ross, who would have provided exculpatory testimony. The State
argues that defendant’s trial counsel acted reasonably by deciding not to call Ross to testify
because Ross planned to invoke her fifth amendment right against self-incrimination.
Alternatively, the State argues the record is insufficient to resolve this claim on direct review.
¶ 37 A criminal defendant has a constitutional right to the effective assistance of
counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish a claim of
ineffective assistance of counsel, a defendant has the burden to show that his contention satisfies
the two-pronged test under Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel’s
performance fell below an objective standard of reasonableness and (2) the deficient
performance resulted in prejudice to the defendant. More specifically, a defendant must show
that counsel’s performance was objectively unreasonable under prevailing professional norms
and that a reasonable probability exists that, but for counsel’s deficient performance, the result of
the proceedings would have been different. People v. Domagala, 2013 IL 113688, ¶ 36, 987
N.E.2d 767. Failure to satisfy either prong of the Strickland test precludes a finding of
ineffectiveness. People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 38 “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. at 689. The Illinois Supreme Court has “made it clear that a reviewing court
will be highly deferential to trial counsel on matters of trial strategy, making every effort to
evaluate counsel’s performance from his perspective at the time, rather than through the lens of
- 14 hindsight.” People v. Perry, 224 Ill. 2d 312, 344, 864 N.E.2d 196, 216 (2007). Further, “a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”
(Internal quotation marks omitted.) People v. Manning, 241 Ill. 2d 319, 334, 948 N.E.2d 542,
551 (2011) (quoting Strickland, 466 U.S. at 689). Counsel’s strategic decisions “are virtually
unchallengeable.” Id. at 333.
¶ 39 In People v. Veach, 2017 IL 120649, ¶ 46, the Illinois Supreme Court wrote that
ineffective assistance of counsel claims may sometimes be better suited to collateral proceedings
“but only when the record is incomplete or inadequate for resolving the claim. The reason is that
in Illinois, defendants are required to raise ineffective assistance of counsel claims on direct
review if apparent on the record.” An example of a case in which the Illinois Supreme Court
deemed the record before it insufficient to address the issue of ineffective assistance of counsel
on direct appeal is People v. Bew, 228 Ill. 2d 122, 135, 886 N.E.2d 1002, 1010-11 (2008). Citing
Massaro v. United States, 538 U.S. 500, 504-05 (2003), the supreme court in Bew concluded that
even though the defendant in that case had, on the record before it, “failed to prove ineffective
assistance of counsel, we note that defendant may raise these alternative grounds for suppression
under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2002)). This
disposition allows both defendant and the State an opportunity to develop ‘a factual record
bearing precisely on the issue.’ ” Bew, 228 Ill. 2d at 135, 886 N.E.2d at 1009-10.
¶ 40 In this case, defendant’s claim of ineffective assistance of counsel is better suited
for resolution in a collateral proceeding—specifically, by defendant’s filing a petition for
postconviction relief. Defendant argues that if Ross had been called to testify, “it is not likely”
- 15 that she would have exercised her fifth amendment privilege because she signed a notarized
affidavit (weeks later, we note) claiming responsibility. Further, defendant suggests that even if
Ross planned to invoke her fifth amendment privilege, the State indicated it would grant her
immunity if she testified fully.
¶ 41 The State responds that defendant has not shown ineffective assistance because it
would have been improper for trial counsel to call Ross to testify when counsel knew Ross
planned to invoke her fifth amendment privilege (citing the case the trial court instructed the
parties to read, Human, 331 Ill. App. 3d at 819, 773 N.E.2d at 13 (“This court has repeatedly
held that it is improper for a party to call a witness whom it has reason to believe will invoke his
fifth amendment privilege before the jury ***.”)). The State also argues Ross’s affidavit does not
support defendant’s claim because the affidavit does not explain what she would have testified to
at trial.
¶ 42 The important point in this appeal is that the record does not indicate (1) what
Ross told defendant’s trial counsel during trial as to why she did not want to testify and (2) how
counsel evaluated what Ross told him and what options counsel thought he then had regarding
whether to call Ross. Although the parties speculate in their briefs on these matters, we will not
because doing so would be a disservice to both parties. They both deserve an adjudication based
on a record that is complete and adequate, not on judicial speculation. We reiterate that the focus
of any inquiry into whether defendant’s trial counsel was ineffective would be on what counsel
was told and believed during trial when the question of whether counsel should call Ross as a
defense witness became ripe. What Ross said after trial, including her affidavit, is not pertinent.
¶ 43 Accordingly, we decline to address defendant’s claim of ineffective assistance of
counsel on direct review and note defendant may raise his claim pursuant to the Act. If defendant
- 16 were to take that course of action, then an opportunity to develop a factual record bearing
precisely on the issues in question would become available.
¶ 44 C. The Krankel Claim
¶ 45 Defendant argues the trial court erred by failing to conduct a Krankel hearing,
noting that trial counsel seemed to argue his own ineffectiveness in a posttrial motion.
¶ 46 In Krankel, 102 Ill. 2d at 187, 464 N.E.2d at 1048, the defendant filed a pro se
posttrial motion alleging his trial counsel was ineffective for failing to contact an alibi witness or
present an alibi defense at trial. The defendant argued his pro se motion, which the trial court
denied. Id. at 188-89, 464 N.E.2d at 1048-49. On appeal, the State conceded that the defendant
should have had new counsel represent him on the motion. Id. at 189, 464 N.E.2d at 1049. The
supreme court agreed and remanded the case for a new hearing on the motion with different
counsel to determine whether the defendant was denied the effective assistance of counsel. Id.
¶ 47 In interpreting Krankel, the supreme court has stated, “[W]hen a defendant
presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should first
examine the factual basis of the defendant’s claim. 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. However, if the allegations show possible neglect of
the case, new counsel should be appointed.” People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d
631, 637 (2003). On review, an appellate court must determine whether the trial court conducted
an adequate inquiry into the defendant’s pro se allegations. Id. at 78, 797 N.E.2d at 638.
¶ 48 In this case, defendant argues that when his trial counsel alleged his own
ineffectiveness in the motion for a new trial for failing to call Ross to testify, the trial court
should have conducted a Krankel inquiry sua sponte. The State maintains that the record does
- 17 not reveal strong evidence of trial counsel’s incompetence; therefore, the trial court was not
required to conduct a Krankel inquiry.
¶ 49 Krankel and its progeny apply only to posttrial claims raised by a defendant
pro se. See id. at 78-79, 797 N.E.2d at 638. As the supreme court has noted, “[t]he common law
procedure developed from our decision in Krankel is triggered when a defendant raises a pro se
posttrial claim of ineffective assistance of trial counsel.” People v. Jolly, 2014 IL 117142, ¶ 29,
25 N.E.3d 1127; see also People v. Ayres, 2017 IL 120071, ¶ 11, ___N.E.3d___. Nevertheless,
defendant argues that the fact he did not raise a pro se claim of ineffectiveness does not bar the
trial court from conducting a Krankel inquiry (citing People v. Williams, 224 Ill. App. 3d 517,
586 N.E.2d 770 (1992)). We disagree.
¶ 50 In Williams, the defendant’s trial counsel revealed in a posttrial motion that he
had additional witnesses who were not called at trial who could have provided critical support to
the defendant’s alibi defense. Id. at 524, 586 N.E.2d at 774. The First District noted that the
“[d]efendant did not file a pro se petition or write to the judge claiming ineffective assistance of
counsel. Nevertheless, the trial judge’s strong comments to counsel at the hearing indicate that he
was made aware of counsel’s possible neglect.” Id. The court remanded the case for a Krankel
hearing, holding, “Where there is a clear basis for an allegation of ineffectiveness of counsel, a
defendant’s failure in explicitly making such an allegation does not result in a waiver of a
Krankel problem.” Id.
¶ 51 We decline to follow this loose and broad reading of Krankel. Instead, consistent
with the supreme court’s precedent, we hold that where a defendant fails to raise a pro se
posttrial claim of ineffective assistance of counsel, the trial court need not—and ought not—
conduct a Krankel hearing. We reiterate that a Krankel hearing is a term of art to describe the
- 18 hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding his
counsel’s ineffective assistance. In that hearing, the court needs to determine whether the
defendant’s allegations “show possible neglect of the case.” Moore, 207 Ill. 2d at 78, 797 N.E.2d
at 637. If so, the court should appoint new counsel for the defendant. Id. It should be
remembered that this is the only issue to be resolved by a Krankel hearing. If the court
determines that new counsel need be appointed, then (depending upon what that new counsel
may file) the court may later need to conduct a hearing on a claim that defendant’s trial counsel
was ineffective. If the court determines that new counsel need not be appointed, then the court
should proceed to address the normal posttrial matters.
¶ 52 Because defendant did not raise a pro se posttrial claim of ineffective assistance
of counsel, there was no reason for the trial court to conduct a Krankel hearing. Further, we note
it is inappropriate for trial counsel to argue his own ineffectiveness. See People v. Lawton, 212
Ill. 2d 285, 296, 818 N.E.2d 326, 333 (2004) (explaining that a lawyer faces an “inherent conflict
of interest” when he argues his own ineffectiveness).
¶ 53 D. The Offer of Proof
¶ 54 Defendant argues that the trial court erred when it denied defense counsel’s
request to make an offer of proof as to Ross’s testimony that would have explained her absence
at trial. The State argues (1) the issue is waived and, alternatively, (2) the court’s ruling was not
error.
¶ 55 The right to make an offer of proof to show the relevancy of certain evidence
affords the trial court the opportunity to make an informed decision. People v. Pressley, 160 Ill.
App. 3d 858, 864-65, 513 N.E.2d 921, 926 (1987). “Illinois courts of review have not hesitated
to remand cases for new trials where circuit judges have mishandled attempts by defendants to
- 19 make offers of proof on excluded evidence.” People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d
984, 989 (1998). A trial court’s decision to deny an offer of proof will be reversed if the court
abused its discretion. Id. at 12, 690 N.E.2d at 989. “[A]n abuse of discretion occurs where the
trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable
person would agree with it.” People v. McDonald, 2016 IL 118882, ¶ 32, 77 N.E.3d 26.
¶ 56 At defendant’s hearing on his motion for a new trial, trial counsel requested that
Ross testify to explain why she was absent at trial. The trial court denied this offer of proof
because it found such testimony would have been inappropriate and there was no reason why
Ross could not have testified earlier. (We note the court did allow trial counsel to make a proffer
that Ross would have testified consistently with her affidavit and she would have explained her
absence from the trial—which the court did not prohibit counsel from expanding on.)
¶ 57 The State responds that defendant waived this issue because he affirmatively
acquiesced to the trial court’s ultimate decision on the offer of proof when, after the trial court
denied his offer of proof, he stated that he did not have any additional arguments on the motion.
See People v. Dunlap, 2013 IL App (4th) 110892, ¶¶ 10-11, 992 N.E.2d 184 (holding that when
trial counsel fails to present argument in the trial court, defendant’s argument on appeal is
waived).
¶ 58 Waiver aside, defendant’s argument is beside the point. Defendant argues the
offer of proof would have explained Ross’s absence at trial. However, this information is
irrelevant. As previously explained, Ross’s testimony weeks after the trial as to why she was
absent from the trial has no bearing on the issues defendant raises on appeal. The pertinent
information would come from what Ross told trial counsel during or before trial as to why she
did not want to testify.
- 20 ¶ 59 Defendant’s argument regarding the offer of proof is really an extension of his
claim that his trial counsel was ineffective for not calling Ross to testify as a defense witness. We
earlier concluded that this argument is not appropriate for resolution on the record now before us
and suggested that defendant could pursue this claim by filing a postconviction petition, which
(if a hearing were to then occur) would provide an opportunity for Ross and defendant’s trial
counsel (and perhaps other witnesses, as well) to testify regarding why Ross was not called to
testify at defendant’s trial as a defense witness.
¶ 60 Accordingly, we need not further address defendant’s argument regarding the
offer of proof. His filing of a postconviction petition would render this issue moot.
¶ 61 E. Defendant’s Claim of Double Enhancement
¶ 62 Last, defendant argues the trial court erred by subjecting him to double
enhancement at sentencing when it considered societal harm caused by drugs and those who deal
drugs in the community because the harm is already inherent in the offense. The State argues that
(1) defendant forfeited this issue and, alternatively, (2) the court properly sentenced him.
¶ 63 “A reasoned judgment as to the proper sentence to be imposed must be based
upon the particular circumstances of each individual case.” People v. Perruquet, 68 Ill. 2d 149,
154, 368 N.E.2d 882, 884 (1977). These circumstances include the defendant’s criminal history,
the defendant’s potential for reform, and the recognized interest in protecting the public and
providing a deterrent. People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326 (2005).
However, a factor implicit in the offense of which the defendant has been convicted cannot be
used as an aggravating factor. Siguenza-Brito, 235 Ill. 2d at 232, 920 N.E.2d at 245; see also
People v. Phelps, 211 Ill. 2d 1, 11-12, 809 N.E.2d 1214, 1220 (2004) (“[A] single factor cannot
be used both as an element of an offense and as a basis for imposing a harsher sentence than
- 21 might otherwise have been imposed.” (Internal quotation marks omitted.)). Such dual use of a
single factor is a “double enhancement.” Phelps, 211 Ill. 2d at 12, 809 N.E.2d at 1220.
¶ 64 “The prohibition against double enhancements is based on the assumption that, in
designating the appropriate range of punishment for a criminal offense, the legislature
necessarily considered the factors inherent in the offense.” Id. However, “[t]here is a strong
presumption that the trial court based its sentencing determination on proper legal reasoning, and
a court of review should consider the record as a whole, rather than focusing on a few words or
statements by the trial court.” People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22,
979 N.E.2d 1014. Because double enhancement is a rule of statutory construction, our review is
de novo. People v. Raney, 2014 IL App (4th) 130551, ¶ 34, 8 N.E.3d 633.
¶ 65 Defendant argues the trial court erred by subjecting him to double enhancement at
sentencing when it used the societal harm caused by drugs and those who deal drugs in the
community as a factor in aggravation. Defendant contends such harm is inherent in the unlawful
delivery of a controlled substance charge.
¶ 66 The State responds that defendant forfeited this argument because he failed to
raise it in the trial court. See 730 ILCS 5/5-4.5-50(d) (West 2014) (“A defendant’s challenge to
the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a
written motion filed with the circuit court clerk within 30 days following the imposition of
sentence.”); People v. Heider, 231 Ill. 2d 1, 15, 896 N.E.2d 239, 247 (2008) (“[S]entencing
issues must be raised in a postsentencing motion in order to preserve them for appellate
review.”). Defendant concedes that he has forfeited the sentencing issue by failing to raise it in
his motion to reconsider the sentence or to object at the sentencing hearing. However, he argues
for plain-error review.
- 22 ¶ 67 The plain-error doctrine allows a court to disregard a defendant’s forfeiture and
consider unpreserved error in two instances:
“(1) 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, regardless of the seriousness of the
error and (2) where 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 ***.” Belknap, 2014
IL 117094, ¶ 48, 23 N.E.3d 325.
¶ 68 Defendant argues plain error applies to his case because the alleged error
impinged on his fundamental right to liberty. However, we decline to undertake such an analysis
in this case. A defendant’s claim that the trial court’s alleged error in imposing sentence
impinged on his “fundamental right to liberty” are not subject to plain-error review. People v.
Rathbone, 345 Ill. App. 3d 305, 310-11, 802 N.E.2d 333 (2003).
¶ 69 Similarly, in People v. Ahlers, 402 Ill. App. 3d 726, 733, 931 N.E.2d 1249, 1254
(2010), the defendant argued the plain-error doctrine applied to his case because the challenged
error interfered with his fundamental right to liberty. This court rejected this argument,
explaining, as follows:
“[T]he plain-error doctrine is not a general savings clause, to be
used as a means by which to preserve all errors affecting
substantial rights that have not been brought to the trial court’s
attention. [Citation.] And we note that defendant’s contention here
is essentially the same contention this court rejected in Rathbone.
- 23 Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338 (holding that
it is not sufficient to ‘simply state that because sentencing affects
the defendant’s fundamental right to liberty, any error committed
at that stage is reviewable as plain error’). Nonetheless, as
previously stated, sentencing errors raised for the first time on
appeal are reviewable as plain error if (1) the evidence was closely
balanced or (2) the error was sufficiently grave that it deprived the
defendant of a fair sentencing hearing.” Id. at 734, 931 N.E.2d at
1256.
See also People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 27-29, 25 N.E.3d 1.
¶ 70 Defendant asserts that plain-error review is appropriate in this case because the
evidence at the sentencing hearing was “closely balanced.” We disagree, noting that the trial
court sentenced defendant as a Class X offender because of his extensive record of convictions
of serious offenses. The presentence report the court considered at the sentencing hearing
revealed that defendant, who was then 42 years old, had eight prior felony convictions, including
separate convictions for armed robbery, residential burglary, and manufacturing and delivery of a
controlled substance. He had also served four prior, separate prison sentences, and Department of
Corrections records showed that, during one of his prison sentences, defendant was cited for 56
disciplinary reports, 10 of which were major.
¶ 71 Additionally, we agree with the State that the trial court’s comments, when placed
in context, were clearly in response to defense counsel’s argument that (1) defendant’s conduct
neither caused nor threatened serious physical harm and (2) defendant did not contemplate that
his criminal conduct would cause or threaten serious physical harm to another.
- 24 ¶ 72 Accordingly, defendant’s forfeited claim is not subject to plain-error review. In so
concluding, we note this decision does not conflict with People v. Lewis, 234 Ill. 2d 32, 36, 912
N.E.2d 1220, 1223 (2009), in which the supreme court reversed this court’s decision that the
defendant’s $100 street-value fine in that case was de minimis and, therefore, not subject to
plain-error review. Id. at 36, 912 N.E.2d at 1223. The supreme court rejected this court’s
de minimis exception because the supreme court concluded that such an exception would be
difficult to implement and was inconsistent with the fundamental fairness concerns of the plain-
error doctrine. Id. at 48, 912 N.E.2d at 1230. However, defendant’s argument in this case does
not involve a de minimis matter, and we conclude that a finding that he forfeited this argument is
consistent with Lewis.
¶ 73 Even if defendant’s claim were not forfeited, it is without merit. Defendant relies
on this court’s decision in People v. Atwood, 193 Ill. App. 3d 580, 549 N.E.2d 1362 (1990), to
support his contention that societal harm is a factor inherent in the offense of unlawful delivery
of a controlled substance. However, this court has since held that factors inherent in the offense
can sometimes be considered, along with other factors in aggravation and mitigation, as part of
the nature and circumstances of the case. See People v. Winchester, 2016 IL App (4th) 140781,
¶ 81, 66 N.E.3d 601; see also Raney, 2014 IL App (4th) 130551, ¶ 35, 8 N.E.3d 633. Thus, a trial
court may discuss the impact a drug offense has on the community without subjecting the
defendant to double enhancement. We agree with the Second District Appellate Court where it
wrote the following:
“It is not improper per se for a sentencing court to refer to
the significant harm inflicted upon society by drug trafficking. It is
important that defendants understand why they are subject to the
- 25 penalties provided by law and why they have received their
particular sentences. The harm that the crime causes society is an
inherent consideration which underlies the basic range of penalties
specified by the legislature. Commenting on the problems caused
by drug-related crime encourages rehabilitation by providing a
context in which a defendant may develop feelings of remorse. We
do not wish to discourage courts from addressing such relevant
considerations, but we suggest that sentencing courts attempt to
segregate such general commentary from the balancing of
sentencing factors.” People v. McCain, 248 Ill. App. 3d 844, 852,
617 N.E.2d 1294, 1300 (1993).
¶ 74 In conclusion, defendant’s double-enhancement argument is not subject to plain-
error review, and even if it were, it lacks merit.
¶ 75 III. CONCLUSION
¶ 76 For the reasons stated, we affirm the trial court’s judgment. As part of our
judgment, we award the State its $75 statutory assessment against defendant as costs of this
appeal.
¶ 77 Affirmed.
- 26