People v. Sherrer

2024 IL App (3d) 230001-U

• Court: Appellate Court of Illinois
• Decided: March 12, 2024
• Docket: 3-23-0001
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230001-U

Order filed March 12, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0001 v. ) Circuit No. 19-CF-514 ) DAMON J. SHERRER, ) Honorable ) Cynthia M. Raccuglia, Defendant-Appellant. ) Judge, Presiding. __________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court. Justices Holdridge and Davenport concurred in the judgment. ___________________________________________________________________________

ORDER

¶1 Held: (1) The evidence was sufficient to convict defendant of armed robbery. (2) The court did not commit reversible error when admonishing the jurors. (3) The issue of whether counsel was ineffective for failing to inform defendant of a plea offer is better suited for collateral review. (4) The court should have conducted a preliminary Krankel inquiry.

¶2 Defendant, Damon J. Sherrer, appeals from his convictions for armed robbery, arguing

(1) the State failed to present sufficient evidence to establish defendant was armed with a firearm;

(2) the La Salle County circuit court did not properly admonish the jury pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (3) defense counsel was ineffective for failing to

convey a plea offer from the State; and (4) this matter should be remanded for a preliminary

Krankel inquiry. We affirm and remand for a preliminary Krankel inquiry.

¶3 I. BACKGROUND

¶4 On December 11, 2019, defendant was charged with two counts of armed robbery (720

ILCS 5/18-2(a)(2) (West 2018)) and one count of burglary (id. § 19-1(a)). On the date of trial, the

State informed the court that defendant had been given an offer that was lower than what he could

receive if found guilty. The court admonished defendant that the sentencing range for armed

robbery was 21 to 45 years’ imprisonment and the range for burglary was 3 to 7 years’

imprisonment. The court informed defendant “if you’re found guilty, they did attempt to negotiate

this for you to have a lesser charge and a lesser sentence than you’re going to get if you’re found

guilty here.” Defendant stated he understood. Counsel then stated, “not to get into the specifics,

but just to put it out there, the offer is still a double-digit term in the Department of Corrections,

without getting anything more than that.”

¶5 During voir dire, the court failed to inform one juror that defendant did not have to testify.

To the other 11 jurors the court recited the necessary principles as one statement of law. The court

then asked each prospective juror whether they, “understand and accept that principle of law[.]”

¶6 At trial, Nicholas Kiefer testified he was a clerk at the Circle K gas station in Streator. At

approximately 1 a.m. on November 22, 2019, he exited the store to smoke a cigarette. While sitting

on the curb, defendant approached him and drew a “rifle” from his jeans. Kiefer described the rifle

to officers as a “tall, old gun.” Defendant was wearing a red bandana across his face which only

showed his eyes, latex gloves, jeans, and a thermal sweatshirt. Kiefer entered the store but did not

have time to lock the doors. Defendant followed Kiefer inside and walked up to the counter.

2 Defendant demanded the contents of Kiefer’s pockets, so Kiefer gave defendant his debit card and

lighter. Kiefer then opened the two cash drawers. Defendant placed the rifle in the corner, walked

around the counter to grab the money, and stuffed the money into his pocket. Defendant then tore

off lottery tickets before walking back around the counter and picking up the rifle. Defendant

walked down the liquor aisle, incidentally dropped a few lottery tickets, and grabbed several

bottles of liquor. Defendant told Kiefer to enter the bathroom for 60 seconds. When Kiefer exited

the bathroom, he locked the doors and called the police.

¶7 After officers arrived, they directed Kiefer to contact his manager, Jennifer Flynn, so she

could provide them access to the video surveillance. Flynn arrived shortly thereafter and provided

police access to the store’s footage, consisting of five cameras. A video recording showing

multiple angles of the robbery was played for the jury and admitted into evidence.

¶8 An Illinois State Police officer testified he photographed “Pay Me 500,000” lottery tickets

numbered 19 and 20 found on the floor in the store. Number 22 was still in the ticket spool. Number

21 was missing. “Gold Rush” lottery ticket number 13 was next in the spool.

¶9 Flynn testified she arrived at the gas station shortly after the robbery and allowed officers

access to the security footage. After watching the footage, Flynn identified defendant as the

offender based on how he carried his body and his gait. She informed the police where defendant

lived. Flynn identified the missing lottery tickets based on an inventory kept by the store. She

determined seven “Gold Rush” tickets and four “Pay Me” tickets were taken. She was also able to

determine that three bottles of alcohol were missing—one each of Ketel One, Captain Morgan,

and Jack Daniels. She also noted that all the cash and some gold dollar coins were taken.

¶ 10 Two Streator Police detectives went to defendant’s house at approximately 3 a.m.

Defendant answered the door and informed the detectives that he had been drinking that evening.

3 A detective asked to speak to defendant’s mother who was the owner of the house. Defendant

refused several times to wake her. Defendant then attempted to close the door on the detectives.

The detectives arrested defendant for interfering with the investigation. Defendant’s mother later

came downstairs and refused the detectives’ request to search the home.

¶ 11 The police secured and executed a search warrant on November 29, 2019. In defendant’s

bedroom, they found a red and white bandana, multiple empty liquor bottles including two Ketel

One bottles, three Jack Daniels bottles, and two Captain Morgan bottles. On the dresser, they found

a large bundle of latex gloves and four bandanas. Inside the drawer, they found two scratched and

ripped lottery tickets whose types and numbers matched those of the tickets missing from the store.

The police did not recover the rifle depicted in the security footage. The jury found defendant

guilty on all three counts.

¶ 12 On May 18, 2022, at the sentencing hearing, the court merged the two counts of armed

robbery. In allocution, defendant stated he never intended to go to trial, and that if he had known

the offer from the State was for 11½ years’ imprisonment, he would have accepted. Defendant

stated, “I actually asked for, you know, to come out and negotiate, and I was—I was told that’s

not what we’re here for, we’re here for trial, it’s too late for that.” The court informed defendant

that the time to amend the charges was before trial and the court could not get involved in

settlement discussions. Neither defense counsel nor the State commented on defendant’s statement

regarding the offer from the State or counsel’s failure to convey the offer. The court sentenced

defendant to the minimum of 21 years’ imprisonment for armed robbery, concurrent with a 7-year

term for burglary.

¶ 13 At a July 15, 2022, hearing on defendant’s motion for reconsideration of sentence,

defendant stated:

4 “it could have been presented better at trial. I believe it could have been presented

better at sentencing.

And, I mean, here we are again, the exact same thing. I can’t see anything

changing the outcome of this if it’s presented the exact same way.

I would like another attorney.”

Private counsel was permitted to withdraw, and the public defender’s office was appointed.

¶ 14 On December 8, 2022, the public defender informed the court that defendant wanted to

withdraw his motion to reconsider sentence, which was allowed. On January 3, 2023, defendant

filed a pro se notice of appeal.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues: (1) the State failed to prove defendant was armed with a

firearm; (2) the court failed to properly admonish the jury pursuant to Rule 431(b); (3) counsel

was ineffective for failing to convey an offer from the State of 11½ years’ imprisonment; and

(4) this matter should be remanded for a preliminary Krankel hearing. We will consider each issue

in turn.

¶ 17 A. Jurisdiction

¶ 18 At the outset, we must first consider our jurisdiction to hear this appeal. Illinois Supreme

Court Rule 606 (eff. Dec. 7, 2023) states:

“the notice of appeal must be filed with the clerk of the circuit court within 30 days

after the entry of the final judgment appealed from or if a motion directed against

the judgment is timely filed, within 30 days after the entry of the order disposing

of the motion.” Ill. S. Ct. R. 606(b) (eff. Dec. 7, 2023).

5 ¶ 19 Defendant filed his notice of appeal within 30 days of the withdrawal of his motion to

reconsider. We find that withdrawal of the motion amounts to disposal of the motion under the

Rule. This conclusion is consistent with federal case law interpreting substantially similar Federal

rule. See Worcester v. Springfield Terminal Ry. Co., 827 F.3d 179, 181 (1st Cir. 2016) (verbal

order granting motion to withdraw a party’s motion for a new trial was an “order disposing of” the

motion); see also People v. Caballes, 221 Ill. 2d 282, 290 (2006); United States v. Rodriguez, 892

F.2d 233, 234 (2d Cir. 1989). Therefore, we have jurisdiction to consider defendant’s appeal.

¶ 20 B. Sufficiency of the Evidence

¶ 21 Turning to the merits, when reviewing a challenge to the sufficiency of the evidence, we

review the evidence in the light most favorable to the prosecution and determine whether any

rational trier of fact could have found defendant guilty beyond a reasonable doubt. People v.

Collins, 106 Ill. 2d 237, 261 (1985). We give the State the benefit of all reasonable inferences.

People v. Wheeler, 226 Ill. 2d 92, 116 (2007). A conviction will only be reversed “where the

evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of

defendant’s guilt.” Id. at 115. The trier of fact is responsible for assessing the credibility of the

witnesses, assigning the appropriate weight to testimony, and resolving discrepancies in the

evidence. People v. Evans, 209 Ill. 2d 194, 211 (2004).

¶ 22 Here, defendant was found guilty of armed robbery which required the State to prove

defendant committed robbery while armed with a firearm. 720 ILCS 5/18-2(a)(2) (West 2018). A

firearm under the statute is “any device *** which is designed to expel a projectile or projectiles

by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2018);

720 ILCS 5/2-7.5 (West 2018). BB guns are explicitly excluded by the statute. 430 ILCS 65/1.1

(West 2018).

6 ¶ 23 We find the evidence was sufficient to support the jury’s finding that the rifle used by

defendant was a firearm. Kiefer, who had a clear view of the weapon over the course of the entire

robbery, referred to it as a rifle during his testimony and described it to police as a “tall, old gun.”

See, e.g., People v. Clark, 2015 IL App (3d) 140036, ¶ 22 (there was sufficient evidence the

weapon used in a robbery was a firearm where two witnesses, one 20 to 30 feet away and the other

50 yards away in a dimly lit area, testified they observed defendant carrying a rifle). Moreover,

the jury viewed security footage depicting the weapon and reasonably concluded it was a firearm.

We will not upset that determination. See People v. Fletcher, 2017 IL App (3d) 140530, ¶ 28 (“The

presence of a firearm in an armed robbery prosecution is a question of fact for the jury.”); see also

People v. Joseph, 2021 IL App (1st) 170741, ¶ 63 (no training, experience, or knowledge of

firearms is required to identify a firearm).

¶ 24 In coming to this conclusion, we reject defendant’s contention that the weapon used in the

robbery was a BB gun, possibly a “B-3 underlever air rifle.” First, defendant relies heavily upon

the fact that defendant put his gun down and turned his back to Kiefer to support his argument the

rifle was likely a BB gun. Defendant argues if it were a real firearm, he would not have left the

rifle leaning against the wall and then turned his back to both Kiefer and the rifle. This was a

determination for the jury to make. Moreover, defendant indicated to police that he was

intoxicated, and thus, he was likely not exhibiting correct firearm care and safety. Second, we note

defendant’s brief includes a photograph of an air rifle from a blog that he argues resembles the

rifle in the surveillance footage. However, this photograph was not submitted to the circuit court.

It would be improper to consider the photograph for the first time on appeal, as “it ‘would amount

to a trial de novo on an essential element of the charges.’ ” People v. Hunter, 2016 IL App (1st)

141904, ¶ 20 (quoting People v. Williams, 200 Ill. App. 3d 503, 513 (1990)); see also Clark, 2015

7 IL App (3d) 140036, ¶ 24. In both Hunter and Clark, the defendants submitted photographs of BB

guns and air rifles to the appellate court to support their argument that the State failed to establish

the defendants used a firearm under the statute. Hunter, 2016 IL App (1st) 141904, ¶ 20; Clark,

2015 IL App (3d) 140036, ¶ 24. In both instances, the appellate court refused to consider the

photographs because they were never submitted to the circuit court. Hunter, 2016 IL App (1st)

141904, ¶ 20; Clark, 2015 IL App (3d) 140036, ¶ 24. Here, we decline defendant’s invitation to

consider the photograph of the BB gun included in his brief because it is not part of the record.

See People v. Moore, 2015 IL App (1st) 140051, ¶ 20 (quoting People v. Benford, 31 Ill. App. 3d

892, 894 (1975)) (“ ‘[i]n an appeal, the purpose of review is to evaluate the record of the trial court,

and, in general, the review will be limited to what appears in the record.’ ”).

¶ 25 Moreover, we reject defendant’s argument the jury should have been provided Illinois

Pattern Jury Instruction Criminal No. 18.35G (4th ed. 2000) (hereinafter IPI Criminal 4th), which

defines the term “firearm.” Defendant never requested the jury instruction at trial and the court

was not required to sua sponte provide the instruction. See Clark, 2015 IL App (3d) 140036, ¶ 34

(the court did not err in failing to sua sponte give a jury instruction defining firearm in an armed

robbery case). “ ‘When words used in a jury instruction have a commonly understood meaning,

the court need not define them with the use of additional instructions; this is particularly true where

the pattern instructions do not provide that an additional definition is necessary.’ ” Id. (quoting

People v. Manning, 334 Ill. App. 3d 882, 890 (2002)). Here, “firearm” has a commonly understood

meaning that is consistent with the statutory definition, and the armed robbery jury instructions do

not require an additional instruction defining a firearm. See Illinois Pattern Jury Instructions,

Criminal, Nos. 14.05, 14.06 (4th ed. 2000) (hereinafter IPI Criminal 4th).

¶ 26 C. Jury Admonishments

8 ¶ 27 Defendant next argues the court committed plain error by failing to properly admonish the

jury pursuant to Rule 431(b). “[T]he plain-error doctrine bypasses normal forfeiture principles and

allows a reviewing court to consider unpreserved error when either (1) the evidence is close,

regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of

the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005). It is necessary to determine first

whether the court failed to comply with Rule 431 as there can be no plain error if there is no error.

People v. Johnson, 218 Ill. 2d 125, 139 (2005).

¶ 28 Rule 431(b) requires circuit courts to confirm that every potential juror accepts and

understands four principles of law, including:

“(1) that the defendant is presumed innocent of the charge(s) against him or her;

(2) that before a defendant can be convicted the State must prove the defendant

guilty beyond a reasonable doubt; (3) that the defendant is not required to offer

any evidence on his or her own behalf; and (4) that if a defendant does not testify

it cannot be held against him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

“Under the plain language, a court complies with Rule 431(b) if it (1) instructs the prospective

jurors on the four principles, (2) asks if the prospective jurors understand those principles, and

(3) asks if the prospective jurors accept those principles.” People v. Birge, 2021 IL 125644, ¶ 34.

¶ 29 We note the parties disagree whether 11 of the jurors were properly admonished because

the court stated all four principles and then asked whether they, “understand and accept that

principle of law.” We need not resolve this issue, however, as the parties agree, and we find, the

court failed to comply with Rule 431(b) where it failed to inform one juror that defendant’s failure

to testify cannot be held against him. See People v. Bailey, 2020 IL App (5th) 160458, ¶ 71 (“The

9 court is required to give all prospective jurors an opportunity to indicate whether they both accept

and understand each of [the] four principles.”).

¶ 30 Under the plain error analysis, we next must determine whether the “(1) the evidence is

close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the

closeness of the evidence.” Herron, 215 Ill. 2d at 187. “Under the plain error doctrine, the burden

of persuasion rests with the defendant.” People v. Russell, 409 Ill. App. 3d 379, 395 (2011).

¶ 31 Defendant only argues for reversal under the first prong. Specifically, defendant argues the

evidence was closely balanced as to whether the rifle used by defendant was a firearm. This

argument fails for the reasons outlined above. Supra ¶¶ 24-25. Kiefer testified the item used by

defendant during the robbery was a rifle and a gun, and the security footage showed defendant

holding what the jury reasonably believed to be a firearm. On the other hand, there is no evidence

indicating the item was a BB gun. See, e.g., Clark, 2015 IL App (3d) 140036, ¶ 36 (the evidence

was not closely balanced where two lay witnesses testified that defendant carried a firearm during

the robbery and there was “no evidence *** presented at trial suggesting that the rifle *** was

anything other than a real firearm”). The evidence was therefore not closely balanced, and thus,

the error is not reversible.

¶ 32 D. Ineffective Assistance of Counsel

¶ 33 Defendant next argues counsel was ineffective for failing to inform him the State offered

11½ years’ imprisonment in exchange for his guilty plea. Illinois courts review claims of

ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S.

668 (1984). People v. Wise, 2019 IL App (2d) 160611, ¶ 51. Under Strickland, counsel renders

ineffective assistance when (1) counsel’s performance falls below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient

10 performance, the results of the proceedings would have had a different outcome. Id. “The failure

to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a

finding of ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 377 (2000). “The

sixth amendment right to the effective assistance of counsel applies to the plea-bargaining

process.” People v. Hale, 2013 IL 113140, ¶ 15. Defendant bears the burden of proof on both

prongs of this test. People v. Burks, 343 Ill. App. 3d 765, 775 (2003).

¶ 34 “A defendant has the right to decide whether to plead guilty.” People v. Trujillo, 2012 IL

App (1st) 103212, ¶ 9. “As such, an attorney’s failure to disclose a plea offer to the defendant may

give rise to a constitutional claim ***.” Id. Counsel’s representation falls below an objective

standard of reasonableness if they fail to inform their client of “offers from the prosecution ***

that may be favorable to the accused.” Fyre, 566 U.S. at 145. To establish the second prong of

Strickland, defendant must:

“demonstrate a reasonable probability [he] would have accepted the *** plea offer

had [he] been afforded effective assistance of counsel. Defendants must also

demonstrate a reasonable probability the plea would have been entered without the

prosecution canceling it or the trial court refusing to accept it ***. *** [I]t is

necessary to show a reasonable probability that the end result of the criminal

process would have been more favorable by reason of a plea to a lesser charge or a

sentence of less prison time.” Id. at 147.

“The disparity between the sentence a defendant faced and a significantly shorter plea offer can be

considered supportive of a defendant’s claim of prejudice.” Hale, 2013 IL 113140, ¶ 18.

¶ 35 Apart from defendant’s unsworn statement, there is nothing in the record which would

allow us to determine whether such an offer was actually made by the State, whether the offer was

11 not conveyed to defendant by counsel, or whether defendant would have accepted the offer. In

People v. Williams, 2019 IL App (3d) 160412, ¶ 36, we held defendant’s claim of ineffective

assistance of counsel was better suited for collateral review where defense counsel never testified

as to his conversations with defendant and “[t]he record [was] silent as to whether [defense

counsel] informed defendant about the [Sex Offender Registration Act] requirements and the

effects of pleading guilty to sexual assault or how those requirements could impact his term of

[mandatory supervised release].” Here, because resolution of this matter depends on facts not in

the record, we believe it is more appropriate for collateral review which will allow the parties to

develop “ ‘ “a factual record bearing precisely on the issue.” ’ ” People v. Kindle, 2021 IL App

(1st) 190484, ¶ 56 (quoting People v. Bew, 228 Ill. 2d 122, 134 (2008), quoting Massaro v. United

States, 538 U.S. 500, 506 (2003)).

¶ 36 E. Preliminary Krankel inquiry

¶ 37 Defendant further argues this matter should be remanded for a preliminary Krankel inquiry

because he complained of his counsel’s performance to the court. We consider de novo a circuit

court’s alleged failure to inquire into a claim of ineffective assistance of counsel. People v. Bates,

2019 IL 124143, ¶ 14. A defendant has the constitutional right to the effective assistance of

counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. If a defendant raises a pro se

posttrial claim that he was denied his constitutional right to the effective assistance of trial counsel,

the court must inquire further into defendant’s allegations. People v. Krankel, 102 Ill. 2d 181, 189

(1984); People v. Roddis, 2020 IL 124352, ¶ 34. “Hearing those claims is a two-step process:

(1) the circuit court makes a preliminary inquiry to examine the factual basis of the defendant’s

claim and (2) if the allegations show ‘possible neglect of the case,’ new counsel is appointed to

12 represent the defendant in a full hearing on his pro se claims.” People v. Horman, 2018 IL App

(3d) 160423, ¶ 24 (quoting People v. Moore, 207 Ill. 2d 68, 78 (2003)).

¶ 38 The defendant only needs to bring the claim to the court’s attention to trigger a preliminary

inquiry. Id. “The applicable standard of review depends on whether the trial court did or did not

determine the merits of the defendant’s pro se posttrial claims of ineffective assistance of counsel.”

Jackson, 2020 IL 124112, ¶ 98. “[W]hen a defendant brings a clear claim asserting ineffective

assistance of counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to

conduct a Krankel inquiry.” People v. Ayres, 2017 IL 120071, ¶ 18. “ ‘[A] defendant does not need

to explicitly label his claim as one of ineffective assistance of counsel. [Citation.] *** [I]t is

sufficient for a defendant to alert the court that counsel failed to do something that should have

been done.’ ” In re Johnathan T., 2022 IL 127222, ¶ 53 (quoting People v. Banks, 2021 IL App

(5th) 190129-U, ¶ 30 (Wharton, J., dissenting)).

¶ 39 Here, the parties agree, and we find, defendant’s statements at the July 15, 2022,

postsentencing hearing triggered the court’s duty to conduct a preliminary Krankel inquiry. In

reference to his attorney’s performance, defendant stated:

“it could have been presented better at trial. I believe it could have been presented

And, I mean, here we are again, the exact same thing. I can’t see anything

changing the outcome of this if it’s presented the exact same way.

Defendant’s statement was a clear complaint about his attorney’s performance which triggered the

court’s duty to conduct a preliminary Krankel inquiry. See, e.g., id. (the court had a duty to conduct

a preliminary Krankel inquiry where the juvenile defendant said of his counsel, “[w]e don’t talk.

13 I’m never prepared for the stand. He does not answer calls.”). The subsequent appointment of the

public defender’s office did not obliviate the need to conduct an inquiry. See People v. Roberson,

2021 IL App (3d) 190212, ¶ 20. We therefore remand this matter for a preliminary Krankel inquiry.

¶ 40 III. CONCLUSION

¶ 41 The judgment of the circuit court of La Salle County is affirmed and remanded.

¶ 42 Affirmed and remanded.