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People v. Pellegrini

Court of Appeals of Illinois, Third District

August 23, 2019

KENTON PELLEGRINI, Defendant-Appellant.

          Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois. Circuit No. 13-CF-183 Honorable Robert C. Marsaglia, Judge, Presiding.

          PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion.



         ¶ 1 The State charged defendant, Kenton Pellegrini, by indictment with aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(2) (West 2012)), criminal sexual assault (id. § 11-1.20(a)(1)), and aggravated domestic battery (id. § 12-3.3(a)). The charges stem from allegations defendant forcefully inserted his fingers or hand into the vagina of the victim without her consent, thereby causing harm. A bench trial ensued with Judge Robert C. Marsaglia presiding.

         ¶ 2 The trial court found defendant guilty on all three counts. After exhausting posttrial motion practice, the defendant filed a direct appeal renewing arguments presented in his posttrial motions. This court affirmed defendant's conviction. People v. Pellegrini, 2016 IL App (3d) 150802-U.

         ¶ 3 Defendant then filed a petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)), which advanced to a third-stage evidentiary hearing. The petition alleged ineffective assistance of counsel for failure to present expert testimony. In dismissing the petition, Judge Marsaglia found that defendant was not prejudiced by the lack of expert testimony. Defendant appeals, arguing, inter alia, the dismissal was manifestly erroneous. We affirm.

         ¶ 4 I. BACKGROUND

         ¶ 5 A. Bench Trial

         ¶ 6 This is the second appeal in this matter and, as such, we borrow from the statement of facts in the direct appeal. See Pellegrini, 2016 IL App (3d) 150802-U, ¶¶ 4-45.

         ¶ 7 The victim testified at trial that she and defendant married in July 2001. The couple discussed a divorce in late 2011 and by September 2013, the marriage was "rocky." The victim described the couple's sex life in 2013 as "[n]ot good. Very infrequent." Elaborating, the victim stated, "I had basically just lost interest. I lost my feelings of love for him. Just the way he treated me I thought was terrible and basically treated me like a tool, not even like a person, no compassion. Just a rough marriage." Defendant, however, had a high interest in sexual intercourse and would pressure the victim daily.

         ¶ 8 On September 27, 2013, the victim and defendant attended a festival in Morris with their neighbors, Richard and Kelly Mote. The victim did not plan on having sexual relations with defendant that night. According to the victim, she had one beer around 8 p.m. before defendant drove the group to the festival. She believed she consumed approximately six beers at the festival from 9 p.m. to 1 a.m. Defendant then drove the victim and the Motes back to the Pellegrinis' residence around 1 a.m. Around this time the victim began to feel dizzy, nauseous, and was experiencing the effects of the alcohol.

         ¶ 9 The victim recalled vomiting in the backyard and being in a bathroom inside the house. She did not remember leaving the bathroom. The next thing she could recall was being on her bed alone with the lights on, wearing her clothes. After that, the victim remembered defendant standing next to the bed, hovering over her, as he told her he wanted to have sexual intercourse. The victim replied, "just leave me alone." However, defendant removed the victim's pants and underwear. The victim told defendant, "No. Stop." She began kicking defendant and telling him to leave her alone. The victim pulled away and defendant pulled her back several times. Defendant pushed and held the victim down on the bed. The victim continued to kick and push defendant while he held her down. Defendant had his hands cupped in such a way that the victim could not tell if he had something in his hands. Defendant was "jabbing and pushing and poking his hands into [her]." The victim described defendant's action felt "like a stabbing or a punching, just a full force thrust with his hands, both sides of [her] vagina, [while] saying to [her], 'Here, take that. How does that feel? I'll do what I want to you tonight.'" The victim began screaming "Stop. Stop. What are you doing? Why won't you stop? Why won't you stop?" The victim testified that she did not consent to defendant's actions.

         ¶ 10 While defendant continued to force his hand into the victim's vagina, she became nauseous and blood began "gushing" from the region. The victim felt like she had a bowel movement and then began to vomit. Once the victim started bleeding, defendant left the bedroom, grabbed towels, and started cleaning up the blood. Defendant did not call for help. While defendant was cleaning up the blood, the victim was screaming and crying. Defendant then left the room.

         ¶ 11 When defendant was gone, the victim's "flight or fight response kicked in." She grabbed a towel, wrapped it around her body, and ran out the front door of the house. She ran across the street to the Motes' residence, knocked on the front door, and began yelling for help. However, the Motes did not answer the door before defendant came, grabbed the victim, and carried her home. Defendant told her to "shut up, stop making a scene, come home, come home." The victim left blood on the Motes' front doorstep. Defendant brought the victim back to their front porch. The victim continued to fight off defendant, leaving blood and feces on their front porch. Defendant brought the victim inside the house, placed her on an ottoman in the entryway but did not call for emergency services. The victim continued to scream because she was in pain and bleeding.

         ¶ 12 Subsequently, police and paramedics arrived. According to the victim, while the first responders attended to her, she was hysterical and "kind of starting to black out a little bit[.]" The victim spent four days in the hospital.

         ¶ 13 The victim testified that she spoke to Detective Alicia Steffes when she was released from the hospital. She acknowledged telling Steffes that she did not recall how she returned to the house from the Motes' because she was getting to the point of "blacking out."

         ¶ 14 On cross-examination, the victim admitted she did not remember many of the events from that evening. For example, she acknowledged that she could not recall speaking to Officer Jessica Smith (who was one of the first responders) and telling Officer Smith that defendant was "too big" and "got stuck." The victim also acknowledged she was unable to recall some of the details of the festival or how she got to the backyard pool. However, she specifically remembered the time frame during the attack. According to the victim, "[f]rom the time of the attack, the time I went to the hospital, I was 100 percent alert."

         ¶ 15 Richard Mote testified that he and his wife attended the festival with the Pellegrinis. On their way home from the festival, the victim mentioned going for a swim and went to the backyard to turn on the pool heater. When the victim did not return, defendant and Richard went outside to search for her. A video recording taken by Richard with his cellular phone showed the victim sitting beside the pool. The video also showed defendant assisting the victim into the home.

         ¶ 16 According to Richard, once inside, the victim went into the hallway bathroom. Sometime later, Richard helped defendant open the bathroom door that was locked from the inside. The men popped open the locked door and observed the victim was awake, sitting on the toilet with her elbows on her knees and hands on her forehead. Defendant then led the victim into the bedroom. Around 1:45 a.m., the Motes left the Pellegrinis' residence.

         ¶ 17 Richard fell asleep at his home and was later awoken by a loud scream. He went outside and heard a voice say, "get back in the house." About five minutes after he heard the screams, an ambulance arrived in the neighborhood.

         ¶ 18 Two neighbors that lived on the same street as the Pellegrinis also testified. Their sleep was also interrupted by a female screaming in the ...

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