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People v. Robinson

Court of Appeals of Illinois, First District, Fourth Division

December 14, 2017

RYISHIE ROBINSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 2330 The Honorable Thomas J. Byrne, Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.



         ¶ 1 On January 14, 2010, defendant was arrested after the victim, Eugene Witherspoon, discovered defendant in Witherspoon's apartment attempting to remove a television set. After a bench trial, defendant was convicted of both residential burglary and aggravated battery of Witherspoon. 720 ILCS 5/19-3(a), 12-4(a) (West 2008). Defendant filed a pro se posttrial motion for a new trial claiming ineffective assistance of trial counsel, which the trial court denied after conducting a preliminary inquiry pursuant to People v. Krankel, 102 Ill.2d 181, 189 (1984). Defendant's trial counsel also filed a posttrial motion for a new trial with numerous claims, which was also denied. After hearing arguments on aggravation and mitigation, the trial court sentenced defendant to 30 years with the Illinois Department of Corrections (IDOC) for residential burglary and 7 years for aggravated battery, to run concurrently.

         ¶ 2 On direct appeal, both defendant and the State agreed that the fines and fees order should be modified, and we corrected the "Order Assessing Fines, Fees, and Costs, " such that the total fees and costs due from defendant was $365. We also found that his extended-term sentence on the lesser offense of aggravated battery was not warranted, and we corrected the mittimus to reflect a five-year sentence for that offense. However, we did not find persuasive defendant's claims (1) that the State's evidence was insufficient to prove residential burglary and aggravated battery or (2) that his sentence for residential burglary was excessive.

         ¶ 3 In addition, we remanded for a new Krankel hearing before a different judge, finding that "the State's participation changed the preliminary Krankel hearing from an objective or neutral inquiry into an adversarial inquiry." People v. Robinson, 2015 IL App (1st) 130837, ¶ 81. Since we determined that the preliminary Krankel hearing was not properly conducted, we did not consider at that time "the merits of the trial court's Krankel findings." Robinson, 2015 IL App (1st) 130837, ¶ 82.

         ¶ 4 On remand, a different trial judge conducted a new preliminary Krankel hearing and again denied defendant's pro se motion for a new trial based on his trial counsel's alleged ineffectiveness. Defendant now appeals, claiming (1) that the trial court should have appointed new counsel at the conclusion of the new preliminary Krankel inquiry and (2) that defendant's fines and fees order must be corrected again. The State agrees that the fines and fees order should be corrected again, and we so order it, as we detail below. However, we do not find defendant's Krankel arguments persuasive and affirm his conviction and sentence.

         ¶ 5 BACKGROUND

         ¶ 6 I. Evidence at Trial

         ¶ 7 We provided a detailed description of the evidence at trial in our prior opinion, and we incorporate that opinion by reference. Robinson, 2015 IL App (1st) 130837, ¶¶ 6-25. In sum, the State's evidence at trial established that, on January 14, 2010, Eugene Witherspoon, a security guard and resident of an apartment building located on East 46th Street in Chicago, was outside talking to a number of employees from a security company about installing security cameras in the building. His wife, Mary Johnson, was asleep in their second-floor apartment. While outside discussing the installation of security cameras, Witherspoon heard a noise from inside the building and ran to the third floor, where he believed the noise originated from. He then descended to the second floor, where he observed a woman exiting his apartment with his laptop. Rather than follow this woman, Witherspoon entered his apartment to check on his wife and observed defendant in his apartment wrapping an unplugged television cord around Witherspoon's television set. While defendant and Witherspoon testified to differing versions of the events that followed, it is undisputed that a physical altercation between defendant and Witherspoon ensued and that, during this altercation, defendant bit off part of Witherspoon's lower lip. Witherspoon testified that he and defendant fought in Witherspoon's living room for 5 to 10 minutes before the fight moved to the hallway and then down the stairs. By contrast, defendant testified that the fight began in the hallway of the building, after Witherspoon hit defendant from behind several times in the head with a gun.

         ¶ 8 The State's evidence at trial consisted of the testimony of four witnesses: (1) Eugene Witherspoon, the victim, (2) Mary Johnson, Witherspoon's wife, who was asleep in the apartment at the time of the incident, (3) police officer John Thill, one of the arresting officers, and (4) police officer Thomas Ellerbeck, one of the evidence technicians who processed the crime scene. The parties also stipulated to the testimony of Michael Cox, the Illinois State Police crime lab fingerprint examiner who reviewed fingerprints from the crime scene.

         ¶ 9 The parties stipulated that Cox, a senior fingerprint examiner for the Illinois State Police crime lab, would testify that, in Cox's opinion, based upon a reasonable degree of scientific certainty, one of the two latent prints recovered at the crime scene belonged to defendant.

         ¶ 10 After the State rested in its case-in-chief, defendant testified that, on January 14, 2010, defendant was walking to work when he was approached by a woman he recognized because she frequented the restaurant where he worked. The woman, who defendant knew as "Wanda, " asked defendant to help her move. Defendant had 45 minutes before he needed to be at work, and he agreed to help her. Defendant followed her to an apartment building on East 46th Street where Wanda opened the door to an apartment and led defendant inside.

         ¶ 11 Defendant testified that, once they were inside the apartment, Wanda indicated that defendant should take the television set, which was already on the floor. Then Witherspoon opened the apartment door, observed defendant and Wanda, and yelled "Wanda, what the f*** is you doing?" Wanda responded that she was retrieving her belongings and she began arguing with Witherspoon. Defendant moved into the hallway, unsure of what was happening. Wanda walked into the hallway of the building, telling defendant that she would have to retrieve her belongings at another time. Defendant began to follow Wanda down the stairs when Witherspoon hit defendant from behind several times in the head with a gun. Defendant and Witherspoon began to wrestle and, at one point during the ensuing fight, Witherspoon yanked defendant toward him, and defendant bit Witherspoon's lip. After defendant bit Witherspoon's lip, Witherspoon released defendant, and Wanda and defendant started to leave. As Wanda held the door open for defendant to leave, Witherspoon used his gun to shoot the front door of the building, shattering the glass in the door.

         ¶ 12 Defendant testified that two men then entered the building to ask what was happening. Witherspoon told the men that defendant had tried to rob his apartment. The men calmed Witherspoon down, and defendant and Witherspoon sat in the hallway until the police arrived. When the police arrived, they questioned one of the men who was still in the hallway, and this man informed the police officer that he was unsure of what had happened. The police transported defendant to the police station and then to Provident Hospital. At the hospital, defendant received medical attention, which included eight staples in three different locations on the back of his head.

         ¶ 13 On cross-examination defendant admitted that a jacket, hat, glove, cigarette butt, pocket knife, and cell phone found in the hallway of the building belonged to him. However, defendant denied owning a flathead screwdriver that was also found in the hallway and denied possessing a Phillips-head screwdriver found in his pocket when he was transported to the police station. Defendant further testified that, when he arrived at the apartment building, Wanda opened the door to the building without a key and without needing to be buzzed into the building. While walking up the stairs of the building, defendant was "two or three stairs" behind Wanda and did not observe if she used a key to open the door to the apartment. The door was already open, and Wanda was entering the apartment when defendant reached the top of the stairs. Defendant also testified that he never observed a computer in the apartment and that Wanda did not have a bag or a computer when she exited the apartment building.

         ¶ 14 During cross-examination, defendant did not acknowledge specifically meeting with an assistant State's Attorney (ASA), but he did acknowledge that "a woman" tried to talk to him while defendant was at the police station. Defendant denied talking to this woman or to any other individual at the police station.

         ¶ 15 After cross-examination, the defense moved into evidence the medical records from Provident Hospital that detailed defendant's injuries. The State did not object, and the trial court admitted the medical records into evidence.

         ¶ 16 After the defense rested, the State introduced in rebuttal a stipulation which stated that if a certain ASA were called to testify, she would testify to the contents of a postarrest statement made by defendant. Similar to defendant's trial testimony, the statement described how defendant was helping a woman named Wanda move her things out of an apartment when a physical altercation occurred between defendant and Witherspoon.

         ¶ 17 II. Conviction and Posttrial Motions

         ¶ 18 At the close of the bench trial on December 3, 2012, the trial court found that Witherspoon's testimony and Johnson's testimony were credible and defendant's testimony was not. The trial court then found defendant guilty of (1) residential burglary, (2) aggravated battery by great bodily harm, (3) aggravated battery by permanent disfigurement, and (4) home invasion. On January 4, 2013, defense counsel filed a posttrial motion for a new trial.

         ¶ 19 On January 10, 2013, at the hearing on defense counsel's posttrial motion for a new trial, defendant stated that he was making a pro se motion for a new trial based on his trial counsel's ineffective assistance. The notice of service for the pro se motion, the pro se motion itself, and defendant's affidavit in support of his motion had each been stamped "received" on January 4 but had not been filed with the clerk of the court. The trial court gave defendant leave to file them.

         ¶ 20 Defendant's pro se motion alleged that his trial counsel was ineffective (1) for failing to hold meaningful conferences, (2) for not conducting a proper investigation to find Wanda, who defendant claims was the woman whom Witherspoon observed exiting Witherspoon's apartment and who would have testified that she had a relationship with Witherspoon, (3) for failing to interview the defense investigator, Jane Doe, [1] who previously interviewed Witherspoon, (4) for failing to contact the medical physician who treated defendant's wounds, (5) for failing to investigate the crime scene, (6) for failing to request the trial court to vacate the home invasion count, [2] (7) for failing to file pretrial motions to quash or suppress evidence, (8) for agreeing to the stipulation regarding the ASA, (9) for failing to adequately cross-examine Witherspoon, (10) for failing to adequately cross-examine Officer Ellerbeck, the evidence technician, and (11) for failing to subpoena any of the arresting officers.[3]

         ¶ 21 The trial court then questioned defendant about these claims. Defendant claimed that the physician who treated defendant could have impeached Witherspoon's testimony that Witherspoon hit defendant once. The trial court replied, "He said one to two times, but go ahead." Defendant did not provide an affidavit from the physician.

         ¶ 22 The trial court then asked defendant how defense counsel's investigation of the crime scene would have helped defendant when the photos of the apartment, submitted into evidence, showed the subject area. Defendant claimed that defense counsel would have been able to provide the court, "in the mind's eye, " a better measurement of the distances in the apartment and the impossibility of the fight as described by Witherspoon.

         ¶ 23 The trial court did not address the allegation of failing to vacate the home invasion count, stating that, because defense counsel had not yet made arguments for mitigation in sentencing, the trial court would hold that allegation in abeyance.

         ¶ 24 The trial court asked defendant to clarify who the investigator, Jane Doe, was. Defendant could not, and defense counsel clarified that defendant was referring to an investigator, Ms. Stewart, who had been asked by defendant's previous public defender to interview Witherspoon. The trial court then asked defendant how the investigator's testimony would have helped defendant's case. Defendant could not remember the specifics from the investigator's interview but claimed that it would have impeached Witherspoon's testimony that Witherspoon and Wanda did not engage in a verbal exchange. Defendant did not produce an affidavit from Investigator Stewart.

         ¶ 25 The trial court then asked defendant if he had an affidavit from Wanda, which defendant had not obtained. Defendant claimed that Wanda would be able to verify that she invited defendant to the apartment and that defense counsel could have tried to locate her because defendant had told defense counsel the area that Wanda frequented. Upon questioning by the trial court, defendant was not able to provide Wanda's last name, birth date, or address.

         ¶ 26 The trial court then asked defendant why he thought the screwdriver recovered by the police from defendant's pocket should have been suppressed. Defendant responded that it could have been challenged because the officer did not feel it during the pat-down search at the crime scene but recovered it later at the police station.

         ¶ 27 The trial court then asked defendant about his claim to suppress the statement that the ASA would have testified to. Defendant reiterated his claim that he never spoke to an ASA.

         ¶ 28 Defendant claimed that defense counsel failed to adequately question Witherspoon about an alleged discrepancy concerning the number of people in the "apartment" versus the "residence." Defendant also claimed that defense counsel failed to adequately cross-examine Officer Ellerbeck about his photos of the evidence found at the crime scene. The trial court responded to both claims by observing that defense counsel had cross-examined the witnesses and raised the very same claims regarding credibility that defendant was now claiming were not made.

         ¶ 29 After the trial court allowed defendant to explain his claims, the trial court asked defense counsel if he would like to respond. Defense counsel responded that he never received any information with which to find Wanda. Defense counsel stated that he vigorously cross-examined witnesses and that he asked defendant at trial if there were any other questions defendant wanted him to ask, and he then asked the witnesses the questions that defendant requested. Defense counsel stated that he had visited the crime scene but was unable to enter the building and that there was not anything he could do about that. Defense counsel stated that he did not call the physician as a witness because there was nothing the physician could add that was not already in the medical records. Further, defense counsel noted that, in closing arguments, he specifically pointed the trial court's attention to the page of the medical report in the record showing that there were three separate lacerations on defendant's head. Defense counsel noted that he had raised at trial concerns about a discrepancy in Witherspoon's testimony about the number of people in the apartment on January 14, 2010, and the potential problems with the photographs taken by Officer Ellerbeck. Defense counsel stated that he asked Stewart, the defense investigator, to be ready to be called as a witness but that there was nothing in Stewart's interview of Witherspoon that could have been used to impeach Witherspoon. Defense counsel stated that he stipulated only to what the ASA would have testified to but that he had not stipulated to the truthfulness of the statement.

         ¶ 30 After defense counsel ended his reply, the trial court invited the State to respond. The State noted that defendant's allegations "fly in the face of everything that was done over this multi-day trial." The State argued that defense counsel would not have been able to suppress the screwdriver found on defendant's person because "the officer said he did a patdown [sic] and didn't feel it" and the fact that "it was later recovered is not a basis, as Your Honor is well aware, of a motion to quash arrest or suppress evidence." In regard to the stipulation concerning the ASA, the State argued that the statement and defendant's testimony were "generally the same" and that defendant's argument to suppress the ASA's testimony "when he testified to those exact facts flies in the face of common sense." The State noted that Witherspoon's testimony would not have been impeached by Investigator Stewart's testimony. Citing relevant legal authority, [4] the State then argued that the trial court is not required to appoint new counsel every time a defendant files a pro se motion claiming ineffective assistance of counsel and that the court can make a finding either by asking the defendant questions about the claim or by relying on the court's personal knowledge of defense counsel's performance at trial. The State then requested that the trial court deny defendant's pro se posttrial motion for a new trial.

         ¶ 31 The trial court denied defendant's pro se motion, stating that it had observed defense counsel asking defendant during trial if there were any more questions to ask witnesses. Defense counsel had then directed defendant's questions to the witnesses. Defense counsel had further "hit the points that should have been hit for your defense." As to Wanda, the trial court observed that defense counsel did not have enough information to find her and there was no proof that she would have corroborated defendant's story. The trial court finished by noting that none of defendant's claims would have affected the outcome at trial. The trial court then denied both posttrial motions.

         ¶ 32 III. Sentencing

         ¶ 33 On January 22, 2013, the trial court sentenced defendant. First, the court vacated the conviction of home invasion, stating, "And I did review my notes about your arguments, Counsel, about the fact that [defendant] was trying to leave but was stopped by Mr. Witherspoon. So I am going to revisit that issue and vacate my finding of Count 1, the home invasion, based on my reading of that ruling." During the aggravation phase of sentencing, the trial court considered defendant's burglary conviction on September 23, 2003, and defendant's eight burglary convictions on October 13, 2006. On January 14, 2010, the date of the offense, defendant was still on mandatory supervised release for eight burglary convictions from October 13, 2006. All nine prior convictions were Class 2 offenses. As a result of the prior convictions, and the violent nature of this residential burglary, defendant was sentenced as a Class X offender. Defendant stated that he had reviewed the presentencing investigation report, and the defense did not object to the prior convictions. The trial court considered that defendant caused serious bodily harm to Witherspoon and that the trial court had observed at trial how this bodily harm caused Witherspoon to suffer a speech impediment. Furthermore, the injury caused Witherspoon severe pain, and Witherspoon's lip would, on occasion, become discolored and peel. In mitigation, defense counsel stated that defendant's mother had died at a young age, that defendant's father was not involved in his life and that, as a result, defendant had to take care of himself from a young age. Defense also noted that defendant had been employed for the past 10 years.

         ¶ 34 On the count of residential burglary, the trial court sentenced defendant to 30 years in IDOC, followed by 3 years of mandatory supervised release. On the count of aggravated battery by great bodily harm, the trial court sentenced defendant to a seven-year extended term sentence, to run concurrently.[5] On the same day, the trial court denied defendant's motion to reconsider sentence. The trial court granted defendant a credit of $5 per day for the 1104 days defendant was in custody. The trial court calculated the fines and fees as totaling $445 and stated, "I will give you credit of $5 a day toward each day you serve [sic] toward those fines." The direct appeal followed, which led, as we already described, to a remand for a new preliminary Krankel hearing before a different trial judge. Supra ¶¶ 3-4.

         ¶ 35 IV. New Preliminary Krankel Hearing

         ¶ 36 On April 19, 2016, a new preliminary Krankel hearing was held before a different trial judge. At the start, the trial court stated that it had reviewed defendant's pro se motion, filed January 14, 2013, and that both defendant and the court had copies of it in front of them. The trial court then asked defendant about each of his claims in turn, as we detail below.

         ¶ 37 A. Counsel's Conferences With Defendant

         ¶ 38 The trial court noted that, in his motion, defendant claimed that his attorney failed to hold any meaningful conferences with him. Defendant responded that he had informed the prior trial judge "early on" that his family could no longer afford to pay defendant's privately retained counsel, and that the prior trial judge had "ignored that issue." As a result of the lack of payment, defendant believed that his counsel had no "incentive to help [defendant] the best he could." The trial court asked whether counsel had said "anything to that effect, " and defendant responded, "I can't say that he did." Nonetheless, it was "a feeling" defendant had, because his counsel always said that he had left his file somewhere else, in his vehicle or in his home, when he came to visit defendant. Defendant stated that his counsel visited him three or four times in jail, but would then say that he did not have his file and would see defendant in court. On court dates, counsel would simply inform defendant that he had obtained a continuance.

         ¶ 39 B. Locating Wanda

         ¶ 40 In addition to failing to hold meaningful conferences, defendant claimed that his counsel did not attempt to locate Wanda. Defendant stated that he asked his counsel to find Wanda and, specifically, to speak to the manager of the restaurant where defendant worked and which Wanda frequented. Defendant stated, "Yeah, the restaurant, yes, sir. And he never went. I have an affidavit from them saying that they was waiting on him to come, but he never came." Defendant explained that the restaurant had "been there over 25 years" and "[t]hey know everybody from the surrounding neighborhood."

         ¶ 41 Defendant stated that he was "in contact with the people at the restaurant" regarding Wanda and "they say the only thing they knew [was] that she stayed between 46 and 47th" Streets and Indiana Avenue. However, they did not know her last name. Defendant stated that, closer to the time of the offense, "we had a better chance of trying to find her."

         ¶ 42 Defendant stated that he asked his sister, who is not from the same neighborhood and is from the suburbs, to go to the restaurant and talk to them. His sister went and asked defendant's manager, but she was not able to obtain a last name or address for Wanda. Defendant argued that his counsel "never even tried to go out there, " and Wanda was "basically key to [defendant's] whole case." Defendant argued that Wanda's testimony would have been that she had "some kind of relationship" with Witherspoon and "[i]t wasn't no we just broke in here." When the trial court pointed out that Wanda fled, defendant responded that Witherspoon "pulled out his gun, now she's gone."

         ¶ 43 Defendant claimed later at the inquiry that his counsel stated, "I did not go out and investigate because, quite frankly, I don't think she exists." Then defendant argued, "How can you be an attorney and take a case [where] you don't believe in your client. That is not possible."

         ¶ 44 C. Public Defender's Investigator

         ¶ 45 1. Witherspoon's Question to Wanda

         ¶ 46 Defendant also claimed that his counsel failed to subpoena an investigator who had been asked by defendant's prior counsel, an assistant public defender, to interview Witherspoon. Defendant argued that "the statement that [Witherspoon] gave [the investigator] and the testimony that he gave at trial, even from the police reports and preliminary hearing, they were all different." The trial court asked, "Didn't your lawyer *** have [the investigator] under subpoena in *** case *** Mr. Witherspoon testified contrary to his interview with her? Isn't that what the strategy was?" Defendant agreed that was the strategy. However, defendant believed that Witherspoon "did testify contrary, " while his counsel believed that it was not contrary. As an example of a contradiction, defendant stated that Witherspoon testified at trial that he did not say anything to the woman exiting his apartment, whereas to the investigator Witherspoon stated that he asked the woman where she was going.

         ¶ 47 2. A Third Man

         ¶ 48 Defendant also argued that there was a discrepancy between the investigator's report and Witherspoon's trial testimony as to how many people were in his apartment. However, defendant acknowledged that his counsel brought out that discrepancy by relying on Witherspoon's testimony at ...

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