2014 IL App (1st) 123396 No. 1-12-3396 Opinion filed November 12, 2014 Third Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 8898 ) DAWN PORTER, ) Honorable ) John Joseph Hynes, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Dawn Porter, was found guilty of retail theft and
sentenced to a four-year prison term. On appeal, Porter contends that the cause should be
remanded for consideration of her pro se posttrial claims of ineffective assistance of trial counsel
under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). We find Porter's ineffective assistance
of counsel claim insufficiently specific to support the duty to conduct further inquiry under
Krankel. Porter also contends that the $250 DNA fee imposed by the court must be vacated and
we agree.
¶2 Background
¶3 At trial, Omar Ferreira testified that on March 7, 2012, he was working the 11 a.m. to 8
p.m. shift as a loss prevention agent at the Wal-Mart store in Bridgeview, Illinois. When he 1-12-3396
arrived at the store about 11 a.m., he saw Dawn Porter carrying a plastic bag in the infant
department. She appeared to be "anxious" and "nervous," and was looking around and shaking.
Ferreira walked to the back of the store to "clock in" for the day, and when he returned to the
infant department, Porter was gone.
¶4 Ferreira then went to his office, activated the store's surveillance cameras, and rewound
the existing footage to find Porter. While watching that footage from multiple cameras with
varying viewpoints, Ferreira saw Porter pick up a box containing a baby cradle swing and place
it into her shopping cart. He then observed her as she pushed the shopping cart with the large box
inside of it through the lingerie department and toward the men's department, before heading to
the customer service desk. After collecting this information, Ferreira called Sarah Troutman, the
service desk associate, who told him that Porter had returned merchandise without a receipt.
Ferreira then ran toward the exit and introduced himself to Porter. She accompanied him to his
office, where Ferreira recovered a Wal-Mart gift card from Porter. The surveillance videos were
played for the court, and defendant's actions were narrated by Ferreira.
¶5 Sarah Troutman testified that she was working as a customer service agent at the Wal-
Mart service desk, where she processed customer returns, refunds, and exchanges. Porter
approached her register with a baby swing and asked to return the item. Porter did not have a
receipt for the item, so Troutman scanned the item and asked for identification, which was the
ordinary policy for returns of merchandise over $100 without a receipt. Porter produced an
identification card, and Troutman scanned the item again and placed the value of the item on a
gift card. Because the item was valued at over $50, Troutman had to call a supervisor, who
completed an "override" using a key to approve the refund. Porter then signed "the slip" and
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Troutman returned the ID and gift card to defendant. After Porter walked away, Troutman
received a phone call from Ferreira asking her about the transaction. Troutman told him that
Porter had a return without a receipt on a baby swing. On cross-examination, Troutman
explained that there was no way to check an item's "history" by scanning the bar code at the
store.
¶6 Jaylah Noel testified for the defense that she and Porter, her friend, were going to attend a
baby shower on March 7, 2012. They took a bus to the Bridgeview Wal-Mart, where they
purchased the baby swing as a gift. When the cashier asked Noel if she wanted a receipt, Noel
declined, and the cashier threw the receipt in the garbage. Noel then received a phone call from
someone who told her that another person had already purchased a baby swing for the shower.
Because Noel had no ID card, she asked Porter to return the item while she went to look for
another gift. Noel made a phone call to arrange a ride from Wal-Mart to the baby shower, and
when she went outside to see if that person had arrived, she saw Porter being taken away in
handcuffs. She told the authorities and loss prevention employees that she was the original
purchaser of the swing, but they did not respond.
¶7 At the close of evidence and argument, the court found Porter guilty of retail theft. In
doing so, the court found Noel's testimony to be "beyond belief" and "incredible," describing her
story as "unlikely convergences of all these unlikely facts that Miss Noel wants us to believe."
The court observed that Noel alleged that she bought a baby swing for over $100 without
keeping the receipt in case of a later return by the gift's recipient. The court also observed that
she "happen[ed] to not have *** an ID and she gets her good friend to go back to return this
without even leaving the store or a phone call. And then she, of course, leaves the presence of
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[defendant] to go looking for a gift." The court further observed that the video did not
corroborate her testimony, as it did not show them "hooking up" to arrange the plan to get the
gift card.
¶8 At the sentencing hearing on October 17, 2012, the court heard argument from the State
and defense regarding the appropriate sentence, and Porter stated in allocution:
"Um, but this, I just didn't feel that I was in the wrong. Um, and
I—when I was—I was trying to ask them that, that the tape proved
that, that the security wasn't telling the truth. And I asked my
attorney to bring it up, and she said—and she—she didn't, she was
just like, that, um, that it shows the tape. I says, they're not playing
the whole tape, you know what I'm saying. That I made two
transactions. And—and I presented a receipt for what I came to the
store for. And I was just with [Noel]."
The court responded, "All right," then weighed the relevant factors in aggravation and
mitigation. The court determined that Porter was eligible for an extended sentence based on her
criminal history, and sentenced her to four years' imprisonment.
¶9 Analysis
¶ 10 Porter does not challenge the sufficiency of the evidence to sustain her conviction.
Rather, she contends that the trial court erred in failing to conduct a preliminary inquiry into her
claim of ineffective assistance of counsel, as required by Krankel, 102 Ill. 2d at 187-89. Porter
requests that her cause be remanded for the purpose of conducting this inquiry.
-4- 1-12-3396
¶ 11 Under Krankel, and its progeny, where a defendant makes a pro se post-trial allegation of
ineffective assistance of counsel, the trial court should conduct an adequate inquiry into the
factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 79 (2003). If the court determines that
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2014 IL App (1st) 123396 No. 1-12-3396 Opinion filed November 12, 2014 Third Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 8898 ) DAWN PORTER, ) Honorable ) John Joseph Hynes, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Dawn Porter, was found guilty of retail theft and
sentenced to a four-year prison term. On appeal, Porter contends that the cause should be
remanded for consideration of her pro se posttrial claims of ineffective assistance of trial counsel
under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). We find Porter's ineffective assistance
of counsel claim insufficiently specific to support the duty to conduct further inquiry under
Krankel. Porter also contends that the $250 DNA fee imposed by the court must be vacated and
we agree.
¶2 Background
¶3 At trial, Omar Ferreira testified that on March 7, 2012, he was working the 11 a.m. to 8
p.m. shift as a loss prevention agent at the Wal-Mart store in Bridgeview, Illinois. When he 1-12-3396
arrived at the store about 11 a.m., he saw Dawn Porter carrying a plastic bag in the infant
department. She appeared to be "anxious" and "nervous," and was looking around and shaking.
Ferreira walked to the back of the store to "clock in" for the day, and when he returned to the
infant department, Porter was gone.
¶4 Ferreira then went to his office, activated the store's surveillance cameras, and rewound
the existing footage to find Porter. While watching that footage from multiple cameras with
varying viewpoints, Ferreira saw Porter pick up a box containing a baby cradle swing and place
it into her shopping cart. He then observed her as she pushed the shopping cart with the large box
inside of it through the lingerie department and toward the men's department, before heading to
the customer service desk. After collecting this information, Ferreira called Sarah Troutman, the
service desk associate, who told him that Porter had returned merchandise without a receipt.
Ferreira then ran toward the exit and introduced himself to Porter. She accompanied him to his
office, where Ferreira recovered a Wal-Mart gift card from Porter. The surveillance videos were
played for the court, and defendant's actions were narrated by Ferreira.
¶5 Sarah Troutman testified that she was working as a customer service agent at the Wal-
Mart service desk, where she processed customer returns, refunds, and exchanges. Porter
approached her register with a baby swing and asked to return the item. Porter did not have a
receipt for the item, so Troutman scanned the item and asked for identification, which was the
ordinary policy for returns of merchandise over $100 without a receipt. Porter produced an
identification card, and Troutman scanned the item again and placed the value of the item on a
gift card. Because the item was valued at over $50, Troutman had to call a supervisor, who
completed an "override" using a key to approve the refund. Porter then signed "the slip" and
-2- 1-12-3396
Troutman returned the ID and gift card to defendant. After Porter walked away, Troutman
received a phone call from Ferreira asking her about the transaction. Troutman told him that
Porter had a return without a receipt on a baby swing. On cross-examination, Troutman
explained that there was no way to check an item's "history" by scanning the bar code at the
store.
¶6 Jaylah Noel testified for the defense that she and Porter, her friend, were going to attend a
baby shower on March 7, 2012. They took a bus to the Bridgeview Wal-Mart, where they
purchased the baby swing as a gift. When the cashier asked Noel if she wanted a receipt, Noel
declined, and the cashier threw the receipt in the garbage. Noel then received a phone call from
someone who told her that another person had already purchased a baby swing for the shower.
Because Noel had no ID card, she asked Porter to return the item while she went to look for
another gift. Noel made a phone call to arrange a ride from Wal-Mart to the baby shower, and
when she went outside to see if that person had arrived, she saw Porter being taken away in
handcuffs. She told the authorities and loss prevention employees that she was the original
purchaser of the swing, but they did not respond.
¶7 At the close of evidence and argument, the court found Porter guilty of retail theft. In
doing so, the court found Noel's testimony to be "beyond belief" and "incredible," describing her
story as "unlikely convergences of all these unlikely facts that Miss Noel wants us to believe."
The court observed that Noel alleged that she bought a baby swing for over $100 without
keeping the receipt in case of a later return by the gift's recipient. The court also observed that
she "happen[ed] to not have *** an ID and she gets her good friend to go back to return this
without even leaving the store or a phone call. And then she, of course, leaves the presence of
-3- 1-12-3396
[defendant] to go looking for a gift." The court further observed that the video did not
corroborate her testimony, as it did not show them "hooking up" to arrange the plan to get the
gift card.
¶8 At the sentencing hearing on October 17, 2012, the court heard argument from the State
and defense regarding the appropriate sentence, and Porter stated in allocution:
"Um, but this, I just didn't feel that I was in the wrong. Um, and
I—when I was—I was trying to ask them that, that the tape proved
that, that the security wasn't telling the truth. And I asked my
attorney to bring it up, and she said—and she—she didn't, she was
just like, that, um, that it shows the tape. I says, they're not playing
the whole tape, you know what I'm saying. That I made two
transactions. And—and I presented a receipt for what I came to the
store for. And I was just with [Noel]."
The court responded, "All right," then weighed the relevant factors in aggravation and
mitigation. The court determined that Porter was eligible for an extended sentence based on her
criminal history, and sentenced her to four years' imprisonment.
¶9 Analysis
¶ 10 Porter does not challenge the sufficiency of the evidence to sustain her conviction.
Rather, she contends that the trial court erred in failing to conduct a preliminary inquiry into her
claim of ineffective assistance of counsel, as required by Krankel, 102 Ill. 2d at 187-89. Porter
requests that her cause be remanded for the purpose of conducting this inquiry.
-4- 1-12-3396
¶ 11 Under Krankel, and its progeny, where a defendant makes a pro se post-trial allegation of
ineffective assistance of counsel, the trial court should conduct an adequate inquiry into the
factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 79 (2003). If the court determines that
the claim lacks merit or pertains solely to trial strategy, the court need not appoint new counsel
and may deny defendant's motion. Moore, 207 Ill. 2d at 78. If the court finds possible neglect of
the case, new counsel should be appointed. Moore, 207 Ill. 2d at 78. Where, as here, the court
did not conduct an inquiry into defendant's ineffective assistance claims, we use a de novo
standard of review. People v. Walker, 2011 IL App (1st) 072889-B, ¶ 33.
¶ 12 The pleading requirements for raising a pro se claim of ineffectiveness of counsel are
somewhat relaxed; however, a defendant must still meet the minimum requirements necessary to
trigger a Krankel inquiry. People v. Bobo, 375 Ill. App. 3d 966, 985 (2007). "A bald allegation of
ineffective assistance is insufficient; rather, the defendant should raise specific claims with
supporting facts before the trial court is required to consider the allegations." Walker, 2011 IL
App (1st) 072889-B, ¶ 34 (citing People v. Radford, 359 Ill. App. 3d 411, 418 (2005)). Mere
awareness by a trial court that defendant has complained of counsel's representation imposes no
duty by the trial court to sua sponte investigate defendant's complaint. People v. Cunningham,
376 Ill. App. 3d 298, 304 (2007).
¶ 13 Porter claims that her conflict with trial counsel was brought to the trial court's attention
by her statements in allocution. At that time, Porter asserted that the video showed that "security
wasn't telling the truth." She stated that she asked counsel "to bring it up" but counsel said that it
was what the tape showed. Porter asserted that "they're not playing the whole tape," which would
show that she "made two transactions," and that she was with Noel.
-5- 1-12-3396
¶ 14 We initially note that Porter made no overt claim of ineffective assistance of counsel,
and, instead, the tenor of her remarks reflects her continuing profession of innocence in the
matter, rather than an allegation of counsel's incompetence. People v. Taylor, 237 Ill. 2d 68, 76-
77 (2010). Moreover, due to the rambling nature of her remarks, it is unclear whether she was
alleging that additional footage actually existed, or whether she merely assumed that there was
additional footage that would support her defense. In circumstances where defendant's
statements are amenable to more than one interpretation, this court has determined that they are
insufficient to require a Krankel inquiry. Taylor, 237 Ill. 2d at 77.
¶ 15 In any case, the record shows that counsel was aware of the surveillance videos, as they
were introduced at trial, and it appears that, at most, Porter disagreed with counsel about what
they showed. In these circumstances, the choice of whether to present any additional video
evidence would be a matter of trial strategy, which is generally immune from ineffective
assistance of trial counsel claims (People v. Munson, 206 Ill. 2d 104, 139-40 (2002)), and the
trial court would not be required to conduct any inquiry into defendant's complaints (Moore, 207
Ill. 2d at 78). For these reasons, we conclude that Porter failed to bring to the trial court's
attention a specific claim of ineffective assistance sufficient to trigger the duty to conduct further
inquiry under Krankel (Walker, 2011 IL App (1st) 072889-B, ¶ 37) and there is no cause for
remand.
¶ 16 Porter finally claims, the State concedes, and we agree, that the trial court's order
requiring her to pay a $250 DNA analysis fee should be vacated because she has previously
provided a DNA sample. In People v. Marshall, 242 Ill. 2d 285, 303 (2011), the supreme court
held that defendant is required to submit a sample and pay the fee only when she is not currently
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registered in the DNA database. Since Porter already appears in the database, the imposition of a
second DNA fee is improper, and, in accordance with Marshall, we vacate it.
¶ 17 For the reasons stated, we direct the circuit court clerk to correct the order assessing fines
and fees to reflect the vacatur of the DNA analysis fee, and we affirm the judgment of the circuit
court of Cook County in all other respects.
¶ 18 Affirmed in part and vacated in part; fines and fees order corrected.
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