People v. Starks

2024 IL App (4th) 230690-U

• Court: Appellate Court of Illinois
• Decided: July 17, 2024
• Docket: 4-23-0690
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230690-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0690 July 17, 2024 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County ERNEST D. STARKS, ) No. 16CF706 Defendant-Appellant. ) ) Honorable ) Kevin W. Lyons, ) Judge Presiding.

PRESIDING JUSTICE CAVANAGH delivered the judgment of the court. Justices Harris and DeArmond concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed as modified, finding (1) the trial court did not abuse its discretion when it denied defendant’s request to proceed pro se, (2) the court conducted an adequate preliminary Krankel inquiry (People v. Krankel, 102 Ill. 2d 181 (1984)), (3) defendant forfeited his claim for a substitution of judge for cause, and (4) the court erred when it resentenced defendant to a more severe sentence on remand.

¶2 Following a jury trial, defendant, Ernest D. Starks, was found guilty of child

pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2016)) and aggravated criminal sexual assault

(id. 11-1.30(a)(4)). The trial court sentenced defendant to 28 and 29 years’ imprisonment,

respectively, for each conviction. On appeal, defendant argues the court erred when it (1) denied

his clear and unambiguous request to proceed pro se, (2) failed to conduct an adequate

preliminary Krankel inquiry, (3) failed to grant his motion for substitution of judge for cause, and (4) improperly added 12 aggregate years to his sentence following remand. We affirm as

modified.

¶3 I. BACKGROUND

¶4 In September 2016, defendant was charged by indictment with child pornography

for knowingly filming E.S., a person he knew to be under the age of 18, while she was engaged

in an act of sexual penetration with another person; aggravated criminal sexual assault for

committing an act of sexual penetration with E.S. by use or threat of force while committing the

above alleged offense of child pornography; and two counts of criminal sexual assault (720 ILCS

5/11-1.20(a)(3), (4) (West 2016)) for committing acts of sexual penetration with E.S.

¶5 A. Procedural Posture

¶6 In April 2017, defendant requested to represent himself, which the trial court

granted. Later that same month, defendant filed a handwritten pro se motion, requesting counsel

be appointed to represent him. The motion stated defendant “didn[’t] finish enough school to

creditably [sic] defend [himself]. Being only having [a general equivalency diploma],” he could

not read case law, and he did not have access to an “adequate” law library. Defendant concluded

he was not capable of representing himself in a “meaningful way.” In May 2017, the court

appointed counsel for defendant. That same month, defendant filed multiple pro se motions

requesting (1) different counsel be appointed to represent him and (2) a substitution of judge. In

July 2017, defendant withdrew the motions. Defendant subsequently, through counsel, filed a

motion in limine to suppress video and audio recordings purportedly showing him engaging in a

sexual act with E.S. Following a hearing, his motion was denied. A subsequent motion to

reconsider and dismiss the indictment was also denied.

-2- ¶7 In January 2018, defendant waived his right to a jury and proceeded to a

stipulated bench trial. Defendant was found guilty of all counts. In February 2018, he filed a

motion to withdraw his agreement to a stipulated bench trial, claiming he was misinformed about

the sentencing range for his charges. The trial court denied his motion. For sentencing,

defendant’s criminal sexual assault convictions were merged into the aggravated criminal sexual

assault conviction. The court sentenced defendant to consecutive terms of 22 years’

imprisonment for the child pornography conviction and 23 years’ imprisonment for the

aggravated criminal sexual assault conviction. Defendant filed a motion for new trial, acquittal,

and to reconsider his sentence. The court denied defendant’s motion. He appealed.

¶8 On appeal, defendant argued the trial court erred when it (1) denied his motion to

suppress the video evidence and (2) failed to inform him he was subject to mandatory

consecutive sentencing. See People v. Starks, 2020 IL App (3d) 180147-U, ¶ 2. The appellate

court held “defendant’s cousin [Cassadia King] did not commit eavesdropping when she

retrieved the incriminating videos from the trash bin of defendant’s online account.” Id. ¶ 1.

However, the appellate court found the trial court incorrectly admonished defendant “repeatedly

concerning his potential sentencing range.” Id. ¶ 25. Because defendant “relied on that

misinformation when he waived his jury trial right and consented to the stipulated bench trial,”

the appellate court concluded the trial court abused its discretion when denying his motion to

withdraw his agreement to a stipulated bench trial. Id. ¶ 26. The appellate court reversed and

remanded for further proceedings. Id. ¶ 29.

¶9 B. Proceedings Following Remand

¶ 10 In September 2021, defendant filed a motion in limine to submit a certificate of

absence of business records from Google regarding his Gmail account, which the trial court later

-3- granted. Shortly thereafter, defendant filed a pro se motion for substitution of judge, arguing the

judge’s “personal comments” about him as a father and a “man” demonstrated bias and

prejudice. He also filed a pro se motion seeking substitution of his appointed counsel or to

permit him to represent himself. Defendant argued his appointed counsel was not answering or

returning his phone calls, was not filing motions he requested, and failed to call witnesses on his

behalf. On September 16, 2021, the matter was continued to permit defense counsel to pursue

further evidence in the matter.

¶ 11 In October and November 2021, defendant refiled his pro se motions. On January

24, 2022, a hearing was held on defendant’s motion to substitute judge before Chief Judge

Katherine Gorman. Judge Gorman denied defendant’s motion, finding he had not demonstrated

prejudice resulting from extrajudicial influence.

¶ 12 Judge Kevin Lyons presided over a hearing on defendant’s motion to substitute

appointed counsel or proceed pro se. The trial court informed defendant it would not substitute

his appointed counsel. Defendant withdrew his request to proceed pro se. In March 2022, the

matter was continued to allow defense counsel to follow up on defendant’s request to contact

“several witnesses.” In May 2022, the court granted defendant another continuance to “pursue

some witnesses.” The matter was continued by agreement in July 2022. After several

continuances, in October 2022, defendant sought another continuance because one of “four

potential witnesses” was in the hospital and another would be available “after the holidays.” The

State objected, arguing the case was more than six years old and defendant’s continuances were

“only for delay.” The court denied defendant’s motion to continue.

¶ 13 On November 7, 2022, the matter proceeded to a jury trial. Prior to commencing

voir dire, defendant requested a continuance because a witness was unavailable to attend due to

-4- being hospitalized. Defendant stated the unavailable witness was around defendant and the

victim when the alleged conduct occurred and would testify she had not observed any unusual

behavior. The State argued the witness was not an expert and could not testify as to how a sexual

assault victim should act and behave. The trial court denied defendant’s motion to continue.

¶ 14 Defense counsel informed the trial court: “Your [H]onor, [defendant] is asking

that he be first chair and I be second chair, that I assist and he be the lead counsel on this case

going forward.” The court denied defendant’s request. After a recess, the following exchange

occurred

“THE DEFENDANT: I’m saying that if I can’t [be first chair and

appointed counsel be second chair], I am asking can I go forward without delay

pro se?

THE COURT: No.

THE DEFENDANT: Can I know the reason why?

THE COURT: Because it’s for the purpose of delay, and I am not going to

do that. Do you have any other questions?

THE DEFENDANT: No. I said without delay. I’m competent enough to

go today.

THE COURT: I am not going to do that, no. All right. Let’s bring the jury

down.

THE DEFEDANT: I don’t believe that I’m being—this is fair to me, man.

THE COURT: It’s not my goal.

THE DEFENDANT: It is your call, Your Honor.

-5- THE COURT: It’s not my goal. My goal is not to satisfy you. My goal is

to follow the law, and we’re going to do that. Be quiet.”

¶ 15 Defendant filed a motion in limine to exclude the video purporting to show his

alleged sexual conduct with E.S., which the trial court denied.

¶ 16 C. Jury Trial and Posttrial Proceedings

¶ 17 Because defendant does not challenge the sufficiency of the evidence, we only

summarize the trial evidence as it pertains to his contentions on appeal. E.S. testified the

incidents occurred during the summer of 2016, when she was 15 years old. Defendant went

through her phone and found photographs she had sent to a boy. Defendant sought to punish her

for this and offered to “whoop her” or have her “sleep” with him. When E.S. chose to be

“whooped,” defendant raped her. She said defendant threatened to kill her “or somebody” if she

told anyone what had happened. E.S. stated there were more than 20 incidents of sexual abuse by

defendant, including oral, anal, and vaginal penetration. E.S. recalled defendant recording

several of the incidents. Defendant told her he was going to sell the videos to an online

pornographic website to make money for school clothes. E.S. stated she was scared of defendant

and did not tell anyone what was happening for several months. She stated three other people

lived in defendant’s home, but she did not believe anyone was aware of what defendant had been

doing to her and no one asked her if anything was wrong. She noted defendant would not engage

in sexual conduct with her when defendant’s girlfriend or his girlfriend’s daughters were there.

¶ 18 Eventually, she told her twin brother. He wanted them to leave defendant’s home

immediately. E.S. cited her fear of defendant, and they agreed to let their older brother know the

next day. E.S.’s older brother picked her and her twin brother up from school the next day and

took them to E.S.’s mother’s home in Calumet City, Illinois. E.S. and several other individuals

-6- recovered video recordings defendant had made of the abuse and burned them to a disc to give to

the police. At the close of the State’s evidence, defendant moved for a directed verdict, which

was denied.

¶ 19 Shannon Vaughn testified for defendant that she met him in May 2016. Vaughn

stated her and her daughters stayed at defendant’s home for extended periods of time that

summer and that E.S. appeared “normal to [her].” Both of Vaughn’s daughters also testified

similarly to Vaughn and noted nothing unusual about E.S.’s behavior during the summer of

2016.

¶ 20 The defense rested, and the jury found defendant guilty on all counts.

¶ 21 On December 9, 2022, defendant filed a motion for new trial, which the trial court

denied. Defendant also filed a pro se motion alleging ineffective assistance of counsel, claiming,

inter alia, his appointed counsel failed to interview four witnesses who would have aided in

proving his innocence. Additionally, defendant claimed his attorney failed to timely inform the

court of defendant’s desire to proceed “first chair” or pro se.

¶ 22 When the trial court began to address defendant’s pro se ineffective assistance

claims, the following exchange occurred between the court and the State:

“THE COURT: Okay. Okay. So, what do we want to have a pre-Krankel

thing? Is that what we’re talking about?

MS. SHELBY [(ASSISTANT STATE’S ATTORNEY)]: That’s what it

looks like. Most of the issues in that motion that were addressed and ruled on

either—

THE COURT: and raised many times?

-7- MS. SHELBY: Yes. Were raised many times. Some of them were even

addressed in the appellate court opinion from his last—from the reversal before.

THE COURT: Okay.

MS. SHELBY: He’s titled it, ‘Motion for ineffective assistance,’ but I

think most of this has already been ruled on.”

¶ 23 The trial court then permitted defendant to argue his pro se motion for ineffective

assistance. Defendant argued there were “multiple things that [he] felt should have been

investigated that didn’t get investigated. Witnesses that should have been called that didn’t get

called.” Defendant claimed he never received photographs used by the State during grand jury

testimony. He explained, “[W]hen I asked [my attorney] about them, he said that the State said

that they’re lost. So, I don’t understand how—” The court interrupted defendant and said, “You

think that was the lynchman of your case, huh?” Defendant responded, “No. I think it’s

everything that I written down was the lynchman in my case.” The court permitted defendant to

proceed with his argument:

“THE DEFENDANT: I said, like I said, that he didn’t raise—he didn’t

raise a lot of these issues in—it’s hard pulling these papers apart with these

handcuffs. But there was witnesses that could have testified to the fact that it was

inappropriate things that were in the phone from the beginning—videos and

pictures. And it stated that what happened in the phone and what you allowed into

evidence was actually of me. It was never asked what were the inappropriate

things that were in the phone. Where is the phone? Because in the letter it said

that it was supposedly—the phone was supposed to be mailed back to her. Where

are these materials? So, it could have been checked to see what were in there.

-8- And then [my cousin, King,] is one of the main culprits in this situation.

She’s the one that supposedly downloaded this from a Google account that they

said was mine saying Google—we had the papers that wasn’t even contested by

the State that Google said they have no record of the account. And that wasn’t

even presented into evidence. So, if it was downloaded from a Google account

and Google—the founders—saying that they don’t have no record of it, how can

they say it came from a Google account? It goes to the fact that where I said it

was already in the phone. So, I don’t understand how it was—the fact that it

still—[King] is the one that said she downloaded it from a Google account, but

she wasn’t even called as a witness. Well, over and over she was mentioned

throughout the trial of what she did and what part she played.

And not only that, like I said, the officer said that he took pictures of the

supposed room to corroborate it with the video, and those pictures have never

been presented at all.

And it’s just, like I say, it’s multiple things. It’s all these things that I

wrote in here. It’s what I feel, you know. And I would just be reading them over

and over. I’ve been reading them through to you when y’all have the motion of

everything I listed on here.

THE COURT: Anything else?

THE DEFENDANT: No, because no matter what I say, it’s irrelevant.

THE COURT: Anything else? All right. The defendant’s motion has been

considered. There’s no basis for his—to support his claim of ineffective

assistance.

-9- The short answer to a trial that answers everything that he’s raised is that

the victim, herself, came and testified. And as awkward as it was and as

embarrassing as I’m assuming it was, as demeaning as I’m assuming it was, the

victim, herself, the defendant’s daughter, sat in this witness chair and in front of

12 strangers and alternates had to point to a film, a video and say, that is me and

that is my father. And not only is that a video of what he’s doing to me, I was

there.

So, while the defendant makes claims and wants to be self-pitied for what

some lawyer may have done, could have done, should have done, didn’t do,

should’ve done when in his presence or not, the defendant needs to be afraid of

the facts because the facts told on him. The motion is respectfully denied.”

¶ 24 The trial court then addressed defendant’s motion for a new trial. Defendant’s

appointed counsel stood on the written motion, and the court denied that motion as well. The

matter proceeded to sentencing.

¶ 25 D. Sentencing

¶ 26 The only addition to the original presentence investigation report (PSI) was an

additional victim impact statement provided by E.S. Neither of the parties presented any

additional evidence in aggravation or mitigation. The State argued that, while defendant was

entitled to continue denying his guilt, he had become “a bigger monster than he was before” by

putting E.S. through a trial. The State also noted the multiple continuances following remand

were aggravating, and that the trial court had “wiggle room” to increase his sentence due to

“defendant’s behavior, these constant games.” Defendant argued he had done nothing to warrant

- 10 - a harsher sentence and that he had only exercised his due process rights by having a trial. The

court then interrupted to state:

“THE COURT: What about the impact it would have on [E.S.] who says

she doesn’t even want to have his name. And she says in her letter—and it doesn’t

get much more direct than this—I am damaged mentally, physically[,] and

emotionally. And then she says, six years, why are we here? You did it and you

know you did. If you’re a real man who cared, you wouldn’t be putting me

through this.

So, since we last met or since he was last sentenced, she has been put

through this. And he’s not to be punished for exercising his right to trial. But if

the Court recognized that the defendant has been flippant, demanding[,] strident[,]

and has actually extracted some sort of satisfaction from having his daughter

and/or any relatives appear to prove he did what he did, would that be a factor?

Would that allow for an increase in his sentence?”

¶ 27 Defendant argued his motion filing and jury trial demand, “without more,” were

not sufficient to justify an increase his sentence. The trial court then stated:

“THE COURT: Just so that the record reflects that when we last had a

sentence to—if we’re going to use as a benchmark that the defendant got 22 and

23 years, respectively, and if he argues for less than that, which I understand that

you do. But if there’s a distinction or a difference to be noted for a record reader,

the difference would be that we had a trial; that videos that were clear and distinct

and graphic and forceful were presented one after the other after the other after

the other in the presence of the defendant’s own daughter while the defendant

- 11 - stayed seated and has not expressed one ounce of contrition. In fact, if anything,

by his accusations toward everyone else but himself seems to be a little bit more

than just acquiescence in having his trial because the difference between the last

sentence hearing and this sentencing hearing are the videos and the direct

innuendo and the crush and the grasp and the twist that it has taken upon the

victim to identify herself and to explain her father’s behavior and—to strangers.

That there is a difference.

Now, whether that would be a factor that would rise to the level of a

different sentence, I just want to make those observations.”

¶ 28 Defendant contended his jury trial demand was not intended to hurt E.S. and

nothing in the record warranted increasing his sentence beyond the original sentence that was

previously imposed. Defendant further argued he had a difficult childhood without his father

being present and his mother, who abused drugs, was also potentially a prostitute. Defendant

noted his positive relationship with his fiancée, to which the trial court said, “The lady he met

online that bogged down his two daughters either for a week or two weeks for the summer

depending on who you believe, that lady?” Defendant confirmed the fiancée was Vaughn, who

had testified at trial, and argued Vaughn’s daughters testified that defendant had a positive

influence on their lives. The court then remarked, “Well, I guess there’s that viewpoint.”

Defendant additionally noted he had earned 17 college credit hours while incarcerated and

requested his sentence be reduced.

¶ 29 Defendant made a statement in allocution where he apologized to E.S. but denied

his guilt. When addressing the State’s claim that he had “played with the Court,” defendant

- 12 - stated there were a number of reasons the case went on as long as it did. Defendant denied he

was the individual in the video. The trial court interrupted, and the following exchange occurred:

“THE COURT: So, that wasn’t you?

THE DEFENDANT: No, it was not me.

THE COURT: Oh, I see.

THE DEFENDANT: But that’s what it—it’s being sarcasm and stuff like

it—all these times, you know what I’m saying? I always respect you. I never said

anything out of line or anything.

It was—in that video, I’ve been saying from the get-go it was videos in

that phone, and it was not me in that phone, period.

And then, like I said, it said it was from a Google account. If it was, I—if

it was and I done something, I never had a problem in any of my life accepting

what I had coming and admitting to anything that I done wrong.

THE COURT: What did you do wrong?

THE DEFENDANT: I done a lot of wrong in my life.

THE COURT: Well, you just said it, so tell me what it was.

THE DEFENDANT: A lot.

THE COURT: Start with a few.

THE DEFENDANT: Start with a few? In the streets I—

THE COURT: You had sex with your daughter?

THE DEFENDANT: No, that is not one.

THE COURT: Didn’t do that.

THE DEFENDANT: No, I did not.

- 13 - THE COURT: So, she’s lying about that.

THE DEFENDANT: You’re going to try to make me say something or get

into a verbal situation with you, and I’m not going to do it—

THE COURT: No. You said that you—

THE DEFENDANT:—I already stated what I had to say. So I’m through.

No matter what you—whatever I say is irrelevant like I said to you.

THE COURT: When you get to the hard part, you have nothing to say.

THE DEFENDANT: No. It’s not a hard part. You made it hard.

THE COURT: Yeah, I sure did.

THE DEFENDANT: You right.

THE COURT: Here’s the mirror.

THE DEFENDANT: Yep.

THE COURT: Well, you’ve made it a little easier here for me,

[defendant]. I’ve considered the [PSI], the evidence and arguments of the lawyers,

the statement of allocution, such as it was presented by the defendant, and I’ve

considered the statutory matters in aggravation, mitigation, history and character

of the defendant, and I’ve given due regard for the circumstances and nature of

the offense—horrendous as it is—and I make the following observations and

findings: the defendant today is a different person than he was when he was

sentenced before. He is callous. He’s abrasive. He’s confrontational. He wants to

blame everyone else but himself. He wants to pretend and announce that he’s a

person that’s willing to assume responsibility, to take responsibility for those

- 14 - things he’s done wrong as though all of this happening in the courtroom is some

third thing.

I’ve done other things in my life he wants to say, but this stuff you’re

talking about here, Judge, and others, I wasn’t part of that. I didn’t have sex with

my daughter, he says. I didn’t do that.

Let the record reflect that this is the environment we have right here,

today, December 14th of 2022. The record should reflect that the environment in

this courtroom tone is this. A man, 48 years old, is seated in jail clothing,

handcuffed about 15 feet away from his daughter. A daughter that was required to

testify at the trial and sit 30 inches beneath a video depicting sexual conduct,

penetration repeatedly over and over on several occasions from him on to her

while she was a minor. And in this environment the record should show this 48-

year-old man—creature has the goal to be 30 feet, 15 feet from his daughter and

say by his actions and his conduct and his words, daughter, you’re a liar and I am

not.

Let the record reflect that the opposite is true. The defendant is the liar

here. The defendant is the instigator here. The defendant is the criminal here. The

defendant is the rapist here. It is the defendant who is the wrongdoer.

The rescuer are the police and the justice system. It has hobbled this case

through. But the heroine here is the daughter of this defendant.

There aren’t many people that could grow the backbone and the ability to

walk themselves into a courtroom and stare down this man who wants to stare at

everybody else thinking that his laser beam stares will knock them over. But this

- 15 - woman—and in a strange twist, I might add, that even though [defendant] didn’t

build her, he simply was the provider of her origin. But he didn’t build her

because if he shaped her, she wouldn’t be able to come into this courtroom.

He wanted to master over her, to lord over her, to be her owner. And for

him to say differently today is a lie. He knows it. I know it. And the world knows

it. I want his daughter to know that no reasonable person on this planet believes

your father, and that is the last time I will refer to him as that. He is the defendant.

He is a convicted predator. And he is to be sentenced to a prison because that’s

what prisons are for. They are built for you.

You are a man of many words, not good ones, [defendant]. You can’t put

a sentence together very well. You think like a child. If you just keep talking and

battling out phrases, it will in someway mesmerize the listener, and they will

think you have an argument. You have none. You have made it simple. You have

presented yourself far worse than you were before. You have confronted your

daughter in this courtroom and in construction and in fact told her and told me

that she is lying and that you are not.

The Court finds that you are the liar. The Court finds that you are the

assaulter. The court finds that your daughter has come to her own rescue when

you wouldn’t. You didn’t even rescue her from you. What a shame to have the

privilege of such a daughter and to turn yourself into such garbage while she

shines and lifts herself from the city dump that you are. Says a lot about her and a

lot more about you. It’s the daughter of this man who said, you damaged me and

- 16 - you don’t care. It’s bad enough that you damaged her, but it is so shameful of you

that you don’t care.

The record can reflect the defendant sits here with his lower lip pushed

out. If there was a bubble above his head it would say, I don’t care what you do.

Screw the rest of you. I’m [defendant].

And then I noticed that your daughter says, you are a monster. It’s all in

your eyes. Well, [defendant], it would be in your soul, but you don’t have one. It

would be in your heart, but you gave that away years ago.

It’s apparent why you’re making the claims that you’re making today; that

[appointed counsel] is deficient; that [previously appointed counsel] is deficient;

that somehow the scheduling of your case made things unfair to you. We all know

why you’re doing that so that from your prison cell in somewhere in a dark corner

of Illinois you’ll have something to while away the days away with, to write

letters about, to add to your brief and your pleadings.

Well, have at it because the Court does find that the defendant has

worsened himself then before. The Court does find that the daughter of the

defendant has done a marvelous job at presenting the truth while the defendant

has tried to present himself as a magic act, and magic is not the truth. You are a

real piece of work. And the Court finds that when the daughter said, this didn’t

have to happen, but you made me do this, that the defendant replied, this didn’t

have to come to this. And then trying to thread the needle between I didn’t do it

and you’re a liar. He said, I took advantage of the situation. Any reasonable soul

- 17 - would say that was code for, I had sex with my daughter, but I don’t want to tell

anybody about it. Well, consider that secret out.

This is not a close call. The defendant did what he did. He was guilty of

the elements of the offense of each count. The jury said so. It wasn’t difficult for

them, obviously, at all. And if there was a trophy to be given to courage and

justice, I would give it to [E.] last name whatever she wants it to be.”

¶ 30 The trial court sentenced defendant to 28 years’ imprisonment for the child

pornography conviction and 29 years’ imprisonment for the aggravated criminal sexual assault

conviction, to be served consecutively. The court added, “Right down to the wire the defendant

maintains he didn’t do it. Without having to define the word, ‘overwhelming,’ the evidence in

this case is overwhelming. The defendant did it. He’s guilty and he knows it.”

¶ 31 Defendant filed a motion to reconsider his sentence, wherein he argued the trial

court failed to account for several mitigating factors and improperly increased his sentence. The

court denied the motion.

¶ 32 This appeal followed.

¶ 33 II. ANALYSIS

¶ 34 On appeal, defendant argues the trial court erred when it (1) denied his clear and

unambiguous request to proceed pro se; (2) failed to conduct an adequate preliminary Krankel

inquiry by accepting input from the State, not remaining neutral, and failing to ask meaningful

questions of defendant or his counsel; (3) failed to grant his motion for substitution of judge for

cause; and (4) improperly added 12 aggregate years to his sentence following remand. We

address each claim in turn.

¶ 35 A. Denial of Request to Proceed Pro Se Claim

- 18 - ¶ 36 Defendant argues his request to proceed pro se on the first day of his jury trial

was clear and unambiguous. The trial court denied his request as a delay tactic. However,

defendant specifically stated he wanted to proceed pro se without delay and was prepared to

move forward with his jury trial. The State contends defendant forfeited this issue by not

properly objecting to the court’s denial of his request or raising the issue in a posttrial motion.

¶ 37 We disagree with the State that defendant has forfeited this issue. “To preserve a

purported error for consideration by a reviewing court, a defendant must object to the error at

trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445, ¶ 48. Defendant

raised this issue in his motion for a new trial. On the day of trial, defendant verbally requested to

proceed pro se after the trial court denied his request to be “first chair” in his own defense. When

the court denied his request, he asked the court the reason for the denial. The court stated

defendant’s request was “for purposes of delay.” Defendant said he was prepared to proceed

pro se without delay and argued the court’s denial was unfair to him. A contemporaneous

objection “should be sufficiently specific to inform the court of the ground for the objection.”

Obermeier v. Northwestern Memorial Hospital, 2019 IL App (1st) 170553, ¶ 131 (quoting

Carlson v. City Construction Co., 239 Ill. App. 3d 211, 239 (1992)). Here, defendant’s objection

was sufficiently specific and not merely a general objection. Thus, we find defendant did not

forfeit this claim.

¶ 38 We review a trial court’s denial of a defendant’s motion to represent himself for

an abuse of discretion. People v. Fisher, 407 Ill. App. 3d 585, 589 (2011). “This standard of

review is deferential. Our mere disagreement with the court’s decision would not make the

decision an abuse of discretion.” Id. A court abuses its discretion when its decision is arbitrary or

- 19 - clearly illogical, such that it “goes outside the range of reasonableness and disregards established

principles of law, thereby causing a party substantial prejudice.” Id.

¶ 39 Ordinarily, “[a] defendant has a constitutional right to represent himself.” People

v. Baez, 241 Ill. 2d 44, 115 (2011). A defendant’s “waiver of counsel must be clear and

unequivocal, not ambiguous.” Id. at 116. “Although a court may consider a defendant’s decision

to represent himself unwise, if his decision is freely, knowingly, and intelligently made, it must

be accepted.” Id.

¶ 40 The State argues the trial court did not err when denying defendant’s request to

proceed pro se because the request was disruptive to the proceedings. Defendant contends his

request was clear and unequivocal and cites People v. Davis, 169 Ill. App. 3d. 1 (1988) and

People v. Hunt, 2016 IL App (1st) 132979 in support.

¶ 41 In Davis, the defendant—on the morning his trial was to begin—filed a written

motion seeking to represent himself and discharge his appointed counsel. Davis, 169 Ill. App. 3d.

1, 3 (1988). The trial court inquired whether the defendant had discussed his desire to represent

himself with his attorney, and the defendant replied he had conflicts with his attorney regarding

trial strategy and which witnesses to call. Id. at 6. The court summarily dismissed the defendant’s

motion. Id. On appeal, the appellate court noted “the trial court never made a finding that [the]

defendant did not have the capacity to make an intelligent and knowing waiver of counsel.” Id.

The Davis court considered the defendant’s age, education level, and familiarity with the

criminal justice system. Id. at 7-8. The court specially noted the defendant had “been represented

by the public defender, to his apparent dissatisfaction,” where he had been convicted in a closely

related case just prior to his instant case. Id. at 7. While the defendant had sought to represent

himself on the morning of his jury trial, the court noted he “did not wish to delay proceedings,”

- 20 - and the trial court did not consider delay in the proceedings as a determinative factor. Id. Thus,

the appellate court reversed the trial court’s denial of defendant’s motion and remanded his case

for a new trial. Id.

¶ 42 In Hunt, the defendant’s counsel informed a substitute judge presiding over the

courtroom that the defendant wanted to represent himself. Hunt, 2016 IL App (1st) 132979, ¶ 6.

The defendant was admonished of the consequences of representing himself, but the substitute

judge did not rule on his request; rather, the substitute judge continued the matter for defendant

to “think about” the request and permit the trial judge to rule on the issue. Id. When the trial

judge returned, defendant’s request was denied as a “delay tactic” and the matter was set for jury

trial. On appeal, the appellate court found the trial court had abused its discretion because the

record did not support the finding the defendant’s request was made to delay his trial. Id. ¶ 21.

The Hunt court noted five of the six continuances were by agreement, with the last continuance

coming on the trial court’s own motion to permit defense counsel an opportunity to respond to

the State’s pretrial motion. Id. The appellate court also found the defendant had not engaged in

any “obstructionist” behavior. Id. ¶ 22. The court reversed and remanded the matter for a new

trial. Id. ¶ 27.

¶ 43 We find the case sub judice distinguishable from both Davis and Hunt primarily

due to defendant’s apparent delay tactics here. The courts in Davis and Hunt both found the

defendants were not seeking pro se status to delay the trial proceedings. In Davis, the appellate

court found the defendant had apparent complaints with his appointed counsel stemming from

his very recent trial that predicated his request to represent himself. Regarding Hunt, the

appellate court found the record did not support the finding defendant’s request to represent

himself was a delay tactic.

- 21 - ¶ 44 Here, unlike Davis, defendant sought to “first chair” his own defense while

maintaining the services of his appointed counsel as “second chair.” While defendant had voiced

dissatisfaction with his previously appointed counsel, he clearly desired to keep his appointed

counsel nearby in some advisory role for his trial. Once the trial court denied that request, he

then pivoted to reasserting his request to represent himself. Additionally, unlike in Davis, the

trial court here considered delay as a determinative factor. While a court must honor a

defendant’s right to represent himself where waiver of counsel is knowingly and intelligently

made, this right is not absolute. This court has previously stated that a trial court may deny a

defendant’s request to proceed pro se when it comes “so late in the proceedings that to grant it

would be disruptive of the orderly schedule of proceedings.” People v. Ward, 208 Ill. App. 3d

1073, 1084 (1991). In Ward, we cautioned “that when a request to proceed pro se is made and

there is no request for additional time to prepare, a motion to proceed pro se should generally be

viewed as timely as long as it is made before trial.” Id. Defendant’s request to proceed pro se in

this instance cannot be viewed as timely and “before trial” in any reasonable sense because the

trial had essentially already begun, with potential jurors awaiting as voir dire was about to

commence.

¶ 45 Here, unlike Hunt, defendant sought and was granted multiple continuances of his

trial date. Only one continuance following remand was by agreement between the parties. In

October 2022, defendant sought yet another continuance of his trial, which was denied given the

case was six years old at the time. Unlike Hunt, defendant, in the instant case, demonstrated a

propensity to usurp his appointed counsel in many instances. In April 2017, he requested to

proceed pro se, which was granted. However, shortly thereafter, he immediately requested

counsel be appointed to his case. When his request was granted, he subsequently filed a motion

- 22 - to have a different attorney appointed to his case that he later withdrew. Following remand of his

case, defendant again sought to represent himself or get a different attorney appointed to his

case. He refiled his request to proceed pro se later in 2021 but withdrew that request. It appears,

upon recognizing that the trial court cannot simply appoint different attorneys to represent

defendant at his whim, he devised a plan to sit “first chair” in his own defense with his appointed

counsel taking an advisory role as “second chair.” When this idea failed, defendant renewed his

request to represent himself at the onset of his trial.

¶ 46 While defendant may claim he intended to proceed with his trial without delay,

his behavior up until trial following remand did not demonstrate he intended to comply with an

orderly schedule of proceedings. As we noted earlier, it is not enough for us to disagree with the

trial court whether defendant should have been granted his request to proceed pro se. The abuse

of discretion standard requires the court’s decision be arbitrary and clearly illogical. We cannot

say the court’s decision to deny defendant’s request to represent himself because it was a delay

tactic is either arbitrary or clearly illogical. The trial court is in a far better position than this

court to observe defendant’s conduct and behavior. See People v. Wiggins, 312 Ill. App. 3d

1113, 1116 (2000) (noting, in the pretrial context of a bona fide doubt of a defendant’s fitness,

the trial court is in a far better position than a reviewing court to “observe and evaluate the

defendant’s conduct”). Moreover, we must “indulge in every reasonable presumption against”

defendant’s waiver of counsel. Baez, 241 Ill. 2d at 116. Accordingly, we find the court did not

abuse its discretion when it denied defendant’s request to proceed pro se.

¶ 47 B. Inadequate Preliminary Krankel Inquiry Claim

¶ 48 A pro se posttrial claim alleging ineffective assistance of counsel is governed by

the common-law procedure developed by our supreme court in Krankel and its progeny. People

- 23 - v. Roddis, 2020 IL 124352, ¶ 34. “The procedure encourages the trial court to fully address these

claims and thereby narrow the issues to be addressed on appeal.” Id. Under this procedure, the

trial court does not automatically appoint new counsel when a defendant alleges ineffective

assistance of counsel; rather, the court first examines the factual basis of the defendant’s claim.

Id. ¶ 35. “Specifically, the trial court must conduct an adequate inquiry ***, that is, inquiry

sufficient to determine the factual basis of the claim.” (Internal quotation marks omitted.) People

v. Ayers, 2017 IL 120071, ¶ 11. In doing so, the court considers the merits of the defendant’s

allegations in their entirety. Roddis, 2020 IL 124352, ¶ 61.

¶ 49 If the trial court determines the claim lacks merit or pertains only to matters of

trial strategy, then the court need not appoint new counsel and may deny the defendant’s pro se

claim. Id. ¶ 35. “However, if the allegations show possible neglect of the case, new counsel

should be appointed.” Id. This permits new counsel to independently evaluate the defendant’s

claim and avoid a conflict of interest trial counsel would otherwise have, and new counsel would

represent the defendant at a hearing on the pro se ineffective assistance of counsel claim. Id.

¶ 36. “The issue of whether the trial court properly conducted a preliminary Krankel inquiry

presents a legal question that we review de novo.” Id. ¶ 33.

¶ 50 Following his jury trial, defendant filed a pro se motion alleging his trial counsel

rendered ineffective assistance for, inter alia, failing to contact witnesses who would have

testified to viewing the video evidence at an earlier date, and thus calling into question the

State’s entire case. The trial court acknowledged a preliminary Krankel inquiry was appropriate.

Defendant argues the court’s inquiry erroneously permitted input from the State and consisted

only of a brief and hostile hearing before the court summarily dismissed his allegations. Because

- 24 - the court failed to conduct an adequate inquiry, defendant argues this court should remand the

matter for a proper preliminary Krankel inquiry.

¶ 51 Regarding its input, the State argues it was de minimis and does not require

reversal. Our supreme court explained that

“[b]ecause a defendant is not appointed new counsel at the preliminary Krankel

inquiry, it is critical that the State’s participation at that proceeding, if any, be

de minimis. Certainly, the State should never be permitted to take an adversarial

role against a pro se defendant at the preliminary Krankel inquiry.” People v.

Jolly, 2014 IL 117142, ¶ 38.

In Jolly, the trial court had permitted the State to question the defendant and his trial counsel

extensively. Id. ¶ 40. Furthermore, the State “presented evidence and arguments contrary to [the]

defendant’s claims and emphasized the experience of [the] defendant’s trial counsel.” Id. The

Jolly court reversed, concluding “the State and [the] defendant’s trial counsel effectively argued

against defendant” during the preliminary Krankel inquiry. Id.

¶ 52 In this case, the State provided input after the trial court queried whether to

conduct a preliminary Krankel inquiry. The State commented that many of the issues in

defendant’s pro se motion had been addressed during his previous appeal. The State then

relented that defendant was entitled to his motion and did not participate any further. Defendant

argues the State’s input framed the issues for the court and, thereby, made the proceedings

adversarial and nonneutral. We disagree. The State did not question defendant and only

addressed his claims generally rather than addressing any specific claim he made in his motion.

It did not address the substance of defendant’s claims and did not question defendant or discuss

his trial counsel at all. Furthermore, the court stated it had read defendant’s motion and gave him

- 25 - an opportunity to argue his claims fully. We find the State’s input was de minimis and did not

convert the preliminary Krankel inquiry into an adversarial proceeding.

¶ 53 Defendant next contends the trial court’s conduct during the inquiry was not

neutral, as the court interrupted defendant and was dismissive of his claims. Defendant focused

his claim on counsel’s failure to investigate and/or call to testify four alleged witnesses who

would have allegedly exonerated him. He cites People v. McKinney, 2023 IL App (4th)

220356-U, and People v. Lawson, 2019 IL App (4th) 180452, in support.

¶ 54 In McKinney, this court found the trial court’s preliminary Krankel inquiry was

inadequate because “it failed to ask either defendant or defense counsel any specific questions

regarding the factual basis of the [defendant’s] claims.” McKinney, 2023 IL App (4th) 220356-U,

¶ 36. We remanded the matter for the court to assign new counsel to the defendant and conduct a

Krankel hearing. Id. ¶ 50.

¶ 55 In Lawson, the State’s primary witness testified that he did not know the

defendant and had never seen him before the defendant robbed him. Lawson, 2019 IL App (4th)

180452, ¶ 50. Prior to trial, the defendant informed his attorney of a witness who would impeach

that witness’s testimony. However, trial counsel never called defendant’s witness. Id. ¶ 51-52.

Trial counsel gave a self-contradictory reason for not calling the defendant’s witness, which the

Lawson court concluded may have been an unreasonable trial strategy. Id. ¶ 53. The matter was

remanded for the trial court to appoint new counsel and conduct further proceedings. Id. ¶ 59.

¶ 56 We find McKinney and Lawson distinguishable from the instant case. First, the

record does not contradict the trial court’s findings. Trial counsel in May 2021, March 2022, and

May 2022, requested continuances in order to locate potential witnesses defendant had identified

as having information to discredit the video evidence. In September 2021, defendant filed a

- 26 - pro se motion seeking to substitute counsel or proceed pro se, stating counsel informed him the

witnesses “won’t answer the phone or respond to [counsel’s] message.” Defendant argued, “But

that not what im [sic] told by them.”

¶ 57 In October 2022, counsel again sought a continuance, claiming defendant had

“four potential witnesses”—one who was in the hospital and another who would “ha[ve] more

time available after the holidays.” On the day of trial, counsel again asked for a continuance,

noting one of the witnesses was unable to appear because she was in the hospital. When asked

about the nature of this witness’s testimony, counsel stated she would testify to being “around

both the victim and [defendant]” when the alleged incidents occurred and “didn’t sense anything

was off.”

¶ 58 The record clearly shows defense counsel diligently investigated and sought to

utilize the witnesses defendant now argues were ignored. The crux of defendant’s arguments at

trial both during opening statements and closing arguments was that the video evidence did not

depict defendant. Defendant claims these witnesses would have been integral to supporting his

innocence. However, one of these witnesses was a State’s witness, and another witness’s

purported testimony would have merely been duplicative of defendant’s three witnesses, who

each testified they had observed E.S. when the incidences occurred and did not perceive her to

behave abnormally.

¶ 59 Unlike McKinney, the record in this case does not contradict the trial court’s

findings. Unlike in Lawson, there is no showing of possible neglect of an alibi witness. The trial

court is “permitted to make its determination based on its knowledge of defense counsel’s

performance at trial and the insufficiency of the defendant’s allegations.” People v. Ayers, 2017

IL 120071, ¶ 12. The trial court gave defendant ample opportunities to emphasize his strongest

- 27 - arguments at the preliminary Krankel inquiry. Rather than focusing on counsel’s failure to

contact requested witnesses, defendant chose to focus on grand jury testimony that was never

utilized as evidence at trial. Nevertheless, the requested witnesses would not have testified to

anything equivalent to an alibi. Accordingly, we find the trial court conducted an adequate

preliminary Krankel inquiry.

¶ 60 C. Substitution of Judge for Cause Claim

¶ 61 Defendant next argues Judge Lyons demonstrated prejudice against him to the

extent he could not have received a fair trial. He concedes this issue was not raised in his

posttrial motion and asks that we review it under the plain-error doctrine. The plain-error

doctrine requires a defendant first establish a clear or obvious error. Sebby, 2017 IL 119445,

¶ 49. Second, the defendant must show 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, 187 (2005). Here, defendant seeks review under the second

prong.

¶ 62 To prevail on a motion to substitute a judge for cause, a defendant must show

facts and circumstances indicating the judge is actually prejudiced against him. People v.

Patterson, 192 Ill. 2d 93, 131 (2000). “To meet this burden, the defendant must establish

animosity, hostility, ill will, or distrust towards this defendant.” Id. On review, we will not

disturb a finding on a motion for substitution of judge unless that finding is against the manifest

weight of the evidence. People v. Mercado, 244 Ill. App. 3d 1040, 1047 (1993).

¶ 63 Defendant highlights the trial court’s comments during his original sentencing. He

notes the court said, “I’d make the following findings and observations. [Defendant], you are a

- 28 - full can of nuts or something.” After defendant indicated he had difficulty finding employment

while having a prior sex offense conviction, the court stated:

“But here’s what’s interesting to me, and not in a good way: You seem to

imply that you didn’t have an economic opportunity, you didn’t get a job because

you had this scarlet letter on you from this sex offense. It’s because you have

some sort of illness. You’re allergic to work. Not only are you not a worker,

you’re whatever the opposite of worker would be. Whatever that term is, that

would be you.

But you do some things with great consistency. The defendant has

fathered a total of nine children with six different women. That they know of, I’m

guessing.”

Defendant contends the court’s comments are not supported by the record and merely constitute

an ad hominem attack. Specifically, the PSI showed he worked numerous jobs and was close to

five of his nine children. Defendant admitted “he could have been a better father,” and he did not

want his children to grow up “in a home with drugs and violence.” In support of his arguments,

defendant cites People v. Fisher, 2023 IL App (4th) 220717, and People v. Montgomery, 2023 IL

App (3d) 200389.

¶ 64 In Fisher, this court noted the judge—who was the same judge as in the case

sub judice— made “remarks toward [the] defendant, [which,] taken together, constitute a

tour de force of sarcasm and scorn establishing the trial court’s prejudice against [the]

defendant.” Fisher, 2023 IL App (4th) 220717, ¶ 40. In Fisher, we noted numerous incidents

where the court made improper derogatory and sarcastic remarks regarding the defendant’s

behavior in jail, his decision to have a jury trial, the sex offender evaluation, the defendant’s

- 29 - mother’s death, the fact that the defendant fathered many children, and the defendant’s limited

intellectual ability. Id. ¶¶ 36-39. Due to the court’s conduct, we remanded the matter for a new

sentencing hearing before a different judge. Id. ¶ 45.

¶ 65 In Montgomery, the appellate court also reversed and remanded the matter for a

new sentencing hearing before a different judge. Montgomery, 2023 IL App (3d) 200389, ¶ 35.

That case also involved the same judge as the instant case. The Montgomery court concluded the

trial court “failed to hide its animosity toward defendant” and explained:

“The court’s animosity was laid bare in the sentencing hearing when it

(1) mimicked defendant’s demands to the arresting officer, (2) referred

dismissively to defendant’s wife, (3) envisaged a hypothetical prison scenario

where it would personally discredit [the] defendant’s claims of mistreatment,

(4) criticized the arresting officer’s patience in dealing with [the] defendant,

(5) suggested the officer should have tased defendant upon noncompliance, and

(6) most disconcerting of all, stated it would have killed defendant if it were in the

store clerk’s shoes.” Id. ¶ 32.

¶ 66 We recognize that Fisher and Montgomery both concern the same judge and his

comments toward defendants, and we agree with both cases that a “judge should be patient,

dignified, and courteous to litigants, jurors and witnesses, lawyers and others with whom he

deals in his official capacity.” People v. Eckert, 194 Ill. App. 3d 667, 674 (1990). Indeed, we

admonish the trial court judge again here today that his choice of words and sarcastic demeanor

do not adhere to the high standards expected of judges. However, the judge’s comments in this

case were relatively reserved in comparison to the comments made in Fisher and Montgomery.

- 30 - ¶ 67 Defendant carries the burden of showing prejudice, and that burden requires he

“establish not merely the possibility of prejudice, but also that prejudice tangibly exists.”

Mercado, 244 Ill. App. 3d at 1045. This court’s decision to disqualify a judge based on

“prejudice is a judgment not to be made lightly.” People v. Kluppelberg, 257 Ill. App. 3d 516,

535 (1993). At sentencing, a trial court is given great latitude, though not without limit. Fisher,

2023 IL App (4th) 220717, ¶ 40. Furthermore, the trial court, “having observed the defendant

and the proceedings, is in a far better position to consider such factors as the defendant’s

credibility, demeanor, general moral character, mentality, social environment, and habits than a

reviewing court, which must rely on a ‘cold’ record.” People v. Little, 2011 IL App (4th)

090787, ¶ 24. A “trial judge is not limited to considering statutory aggravating factors, and he

may consider any fact which would tend to aggravate the offense.” People v. Helm, 282 Ill. App.

3d 32, 34 (1996).

¶ 68 We note the context of the trial court’s statements at issue on this appeal occurred

during the first sentencing hearing. At a sentencing hearing, the court is generally expected to

articulate its reasons regarding a defendant’s credibility, demeanor, general moral character,

mentality, social environment, and habits when imposing sentence. We find defendant has failed

to show prejudice from the court’s comments at his original sentencing hearing. We also observe

that where a defendant’s case is remanded for error following a sentencing hearing, a reviewing

court should be cautious to permit a defendant to weaponize a judge’s findings at a vacated

sentencing hearing as casting a pall of prejudice on future proceedings.

¶ 69 Following remand, the trial judge did not display any of the behaviors or make

comments remotely approaching those which were discussed in either Fisher or Montgomery.

Defendant does not point to any comments by the judge that show tangible prejudice existed

- 31 - following remand. The record demonstrates that on remand, the judge was patient and

accommodating to defendant’s requests for continuances and pro se filings. Defendant’s motion

for substitution of judge for cause was held before a different judge, who reviewed the entire

record along with defendant’s motion. Because Judge Gorman’s decision to deny defendant’s

motion was not against the manifest weight of the evidence, we find no clear error occurred and

honor defendant’s forfeiture of this issue.

¶ 70 D. Improper Increase of Sentence Claim

¶ 71 Defendant argues the trial court imposed a harsher sentence following remand

because he chose to exercise his right to a jury trial. The State argues this issue was forfeited. We

disagree with the State that this issue was forfeited. Recall, “[t]o preserve a purported error for

consideration by a reviewing court, a defendant must object to the error at trial and raise the error

in a posttrial motion.” Sebby, 2017 IL 119445, ¶ 48. Defendant clearly articulated at sentencing

that he had done nothing to warrant an increased sentence other than exercise his due process

rights and raised the issue again in his motion to reconsider sentence. As such, defendant has not

forfeited this claim.

¶ 72 “The legislature sets forth by statute the range of permissible sentences for each

class of criminal offense.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “A sentence within statutory

limits will not be deemed excessive and an abuse of the court’s discretion unless it is ‘greatly at

variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the

offense.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54). A

reviewing court affords great deference to a trial court’s sentencing judgment because, “having

observed the defendant and the proceedings, [it] is in a far better position to consider such factors

as the defendant’s credibility, demeanor, general moral character, mentality, social environment,

- 32 - and habits than a reviewing court, which must rely on a ‘cold’ record.” Little, 2011 IL App (4th)

090787, ¶ 24. A sentence that falls within the applicable statutory limits is reviewed for an abuse

of discretion. People v. Price, 2011 IL App (4th) 100311, ¶ 36.

¶ 73 However, a trial court on resentencing is limited by section 5-5-4 of the Unified

Code of Corrections (Code). 730 ILCS 5/5-5-4 (West 2022). “[T]he purpose of section 5-5-4 of

the Code is to ensure the due process rights” of a defendant and prevent “vindictiveness in

resentencing a defendant for having exercised his appeal rights.” People v. Woolsey, 278 Ill.

App. 3d 708, 710 (1996). The Code provides in relevant part that the resentencing court “shall

not impose a new sentence for the same offense *** which is more severe than the prior sentence

*** unless the more severe sentence is based upon conduct on the part of the defendant occurring

after the original sentencing.” 730 ILCS 5/5-5-4(a) (West 2022); People v. Moore, 359 Ill. App.

3d 1090, 1092 (2005). Whether due process has been violated is a question of law reviewed

de novo. People v. Totzke, 2012 IL App (2d) 110823, ¶ 17.

¶ 74 The State argues the trial court did not err because defendant had become more

callous, abrasive, and confrontational following remand, thereby permitting the court to impose a

harsher sentence. Defendant contends the record supports his argument that the only difference

following remand was his jury trial demand. He claims the record does not support a finding that

his conduct warranted a harsher sentence. He cites People v. Strawbridge, 404 Ill. App. 3d 460

(2010) in support.

¶ 75 In Strawbridge, the defendant was originally sentenced to 9 years’ imprisonment

and, following remand, he was resentenced to 12 years’ imprisonment. Id. at 470. The appellate

court construed the plain meaning of “conduct” from the Code to require a defendant

demonstrate a “behavior” or “some type of act on [a] defendant’s part” warranting a more severe

- 33 - sentence and not merely displaying “a certain attitude toward one’s crime or a belief about one’s

past.” Id. at 471. In that case, the trial court noted the defendant’s statement in allocution failed

to indicate any remorse and the testimony of a caseworker indicated the defendant was more

likely to recidivate due to his denial of “his own victimization.” Id. at 470. The court found these

reasons did not meet the definition of conduct and modified his sentence to the original sentence

that was imposed prior to remand. Id. at 471.

¶ 76 In this case, the trial court followed its comments that defendant was a “different

person” following remand by stating he was callous, abrasive, and confrontational. The court

went on to state defendant was unwilling to take responsibility for his actions and sought to

blame others. The court stated defendant was essentially—while not literally—calling E.S. a liar.

However, the court’s reasons that defendant was different following remand all go toward how

the court perceived defendant’s attitude regarding his guilt. While we do not diminish those

reasons for the court’s decision to impose a harsher sentence, they do not identify any conduct on

the part of defendant that would warrant a harsher sentence. We reiterate the sentiments of the

special concurrence from Strawbridge noting a defendant has no incentive to plead guilty to get

leniency at sentencing; “[t]hat is, he has nothing to lose by going to trial after the first conviction

is vacated by the appellate court regardless of the reasons—he might get acquitted, but even if he

is convicted, he is guaranteed to come out no worse than he did” prior to remand. Id. at 473

(Zenoff, J., concurring).

¶ 77 Accordingly, we agree with defendant that the trial court erred when it

resentenced him to a more severe sentence. Defendant asks that we exercise our powers under

Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967) and reimpose the original sentence. We agree

and, accordingly, reduce defendant’s sentence for the child pornography conviction to 22 year’s

- 34 - imprisonment and for the aggravated criminal sexual assault conviction to 23 years’

imprisonment. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). All other aspects of defendant’s

sentences will remain as imposed by the trial court, including that they run consecutively.

¶ 78 III. CONCLUSION

¶ 79 For the reasons stated, we reduce defendant’s sentence for each conviction

entered to 22 and 23 years’ imprisonment, respectively. We otherwise affirm the judgment of the

trial court.

¶ 80 Affirmed as modified.

- 35 -