People v. Godfrey

SUPREME COURT CASES

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People v. Godfrey

State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0819 Rel

Case Date: 05/23/2008

Preview:No. 3-06-0819 _________________________________________________________________ Filed May 23, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit ) Peoria County, Illinois Plaintiff-Appellee, ) ) No. 05-CF-437 v. ) ) TED GODFREY, ) Honorable ) Scott A. Shore Defendant-Appellant. ) Judge Presiding _________________________________________________________________ JUSTICE LYTTON delivered the Opinion of the court: _________________________________________________________________ Defendant, Ted Godfrey, was convicted of home invasion (720 ILCS 5/12-11(a)(2) (West 2004)), criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West 2004)) and domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2004)). The trial court sentenced him to a On appeal,

statutory minimum term of six years imprisonment.

defendant asks us to (1) reduce his conviction and sentence under Supreme Court Rule 615, and (2) remand the case for additional proceedings on his claim of ineffective assistance of counsel. We affirm. On April 28, 2005, defendant's ex-girlfriend, Erion Lovingood, invited defendant over to her house after he finished playing basketball. Lovingood had been pregnant with defendant's child,

but that day discovered she had miscarried. Defendant finished his basketball game but did not go to Lovingood's house right away.

After waiting several hours for defendant, Lovingood decided that she no longer wanted to see him, so she locked the front door and went upstairs. home. Around midnight, defendant arrived at Lovingood's

He saw that the lights were on and her car was in the

driveway. After ringing the doorbell and receiving no response,

defendant tried the front door and found it was locked. Defendant then called Lovingood on her cell phone. When Lovingood did not

answer her phone, defendant kicked the door three times, breaking it open, and went searching for Lovingood. Defendant found

Lovingood talking on the phone in her upstairs bathroom. Defendant became angry, snatched the phone from Lovingood and threw it down the stairs. Defendant and Lovingood then proceeded down the Once downstairs, defendant threw According to Lovingood,

stairs, arguing along the way.

another phone and fought with Lovingood.

defendant pushed her, held her arms and threw something at her. When he became tired of fighting with Lovingood, defendant left. Lovingood called the police. When police arrived at

Lovingood's home, they found damage to the front door, spilled milk on the kitchen floor, blood spatters on the wall and floor and a television turned over on the floor. Police also saw a blood spot

on Lovingood's shirt, a pink mark on her arm and a cut on her lip. Defendant testified that the blood on Lovingood's shirt was his. Defendant was charged with home invasion, criminal trespass to a residence and domestic battery. After a bench trial, he was

convicted on all three counts. Prior to sentencing, defendant sent 2

a letter to the court, claiming that his attorneys were ineffective because they never told him his options or the amount of time he would have to serve if convicted. letter did not contain The trial court found that the allegations to establish

sufficient

incompetency of counsel. The trial court sentenced defendant to six years in prison, the mandatory minimum sentence for a conviction of home invasion. See 720 ILCS 5/12-11(c) (West 2004); 730 ILCS 5/5-8(1)(a)(3) (West 2004). I. Defendant asks us to reduce his conviction from home invasion to the lesser included offense of criminal trespass to a residence and then remand for sentencing on the reduced offense. He contends that we have the power and duty to do this under Supreme Court Rule 615. Rule 615 states, in relevant part, "On appeal the reviewing court may * * * reduce the degree of the offense of which the appellant was convicted * * *." 134 Ill. 2d R. 615(b)(3). Courts

using the power granted by this rule must do so with "caution and circumspection" and not "purely out of merciful benevolence." People v. Jones, 286 Ill. App. 3d 777, 783, 676 N.E.2d 1335, 133940 (1997). When a trial court's judgment is tainted by reversible error but a conviction for a lesser included offense would not be, we may employ Rule 615 to remand the case for sentencing on the lesserincluded offense. See People v. Davis, 112 Ill. 2d 55, 61, 491 3

N.E.2d 1153, 1156 (1986).

However, there is a difference of

opinion within the appellate court about whether there must be reversible error to invoke Rule 615. Compare People v. Kick, 216

Ill. App. 3d 787, 793, 576 N.E.2d 395, 399 (1991) (reversible error required); with People v. Plewka, 27 Ill. App. 3d 553, 558-59, 327 N.E.2d 457, 461 (1975) (reversible error not required). We need

not reach this issue because even under the more lenient standard applied by appellate courts, the facts in this case do not trigger the application of Rule 615. Under the more lenient standard, reversible error is not necessary when there is (1) an evidentiary weakness in the State's case, (2) a mandatory minimum sentence that is unsatisfactorily harsh, and (3) a conviction for a lesser-included offense. People v. Jackson, 181 Ill. App. 3d 1048, 1051-52, 537 N.E.2d 1054, 1057 (1989). "Evidentiary weakness" means something that causes the

appellate court to have grave concern about the reliability of the guilty verdict. 1340. To sustain a conviction for home invasion, the State must prove the following: "A person * * * commits home invasion when without authority he or she knowingly enters the dwelling of another when he or she knows or has reason to know that one or more persons is present * * * and * * * [i]ntentionally causes any injury * * * to any person or persons within such dwelling place * * *." (West 2004). 4 720 ILCS 5/12-11 See Jones, 286 Ill. App. 3d at 784, 676 N.E.2d at

Defendant

claims

that

there

were

several

evidentiary

weaknesses in the State's case that justify invocation of Supreme Court Rule 615. First, he argues that there is a factual question

regarding whether his presence in Lovingood's home was authorized. We find no evidentiary weakness regarding this element. Lovingood testified that although she invited defendant over to her house earlier that evening, she did not want to see him when he finally came to her home. This is why she locked her door, did not open

the door for defendant when he rang her door bell and did not answer her cell phone when defendant called. Based on Lovingood's undisputed testimony, the trial court properly concluded that defendant's presence in the home was unauthorized. Defendant also claims that his entry was authorized because he entered Lovingood's home out of concern for her safety. He cites case law on the limited authority doctrine, which deals with the limited nature of an invited person's authority to be in a dwelling. See People v. Bush, 157 Ill. 2d 248, 252, 623 N.E.2d The limited authority doctrine applies only

1361, 1364 (1993).

after a defendant is invited into or granted access to a dwelling. People v. Priest, 297 Ill. App. 3d 797, 805, 698 N.E.2d 223, 229 (1998). Here, the evidence established that although Lovingood

asked defendant to come to her house earlier that evening, she did not invite him into her home or grant him entry into the home when he arrived at midnight. Because defendant entered Lovingood's home by force, the limited authority doctrine does not apply. Finally, defendant claims that there was insufficient evidence 5

that he injured Lovingood.

Lovingood testified that defendant

physically injured her by pushing her, holding her arm and throwing something at her. A police officer testified that he saw a mark on Lovingood's arm and a cut on her lip when he arrived on the scene. Defendant testified that he did not hurt Lovingood and that his own wounds accounted for the blood on Lovingood's shirt. The trial

court chose to believe the testimony of Lovingood and the police officer over defendant's. weakness. This does not create an evidentiary

See Jackson, 171 Ill. App. 3d at 1052, 537 N.E.2d at

1057 (a conviction does not suffer from evidentiary weakness when the trial court finds testimony from a defense witness less credible than consistent testimony from prosecution witnesses). Since there is no evidentiary weakness, we cannot invoke Rule 615 to reduce defendant's conviction and sentence. 181 Ill. App. 3d at 1051-52, 537 N.E.2d at 1057. II. Defendant also asks us to remand this case so that the trial court may inquire into the adequacy of his trial counsel. He See Jackson,

claims that if his attorneys told him that he faced a mandatory six-year prison sentence upon a conviction for home invasion he would have sought a plea deal on the lesser charges. When a defendant presents a pro se motion alleging ineffective assistance of counsel, the court may dismiss it if the claim is spurious or pertains only to trial tactics. People v. Baltimore, If, however,

292 Ill. App. 3d at 165, 685 N.E.2d 627, 631 (1997).

the defendant's allegations of incompetence have merit, the court 6

should

appoint

new

counsel

to

argue

defendant's

claim

of

ineffective assistance.

People v. Nitz, 143 Ill. 2d 82, 134-35,

572 N.E.2d 895, 919 (1991). To sustain an allegation of ineffective assistance, the defendant must present evidence of deficient performance and evidence that if counsel's performance had been adequate the outcome might have been different. 466 U.S. 668, 687, 80 L. Ed. 2d 674 See Strickland v. Washington, 104 S. Ct. 2052, 65, (1984);

People v. Albanese, 104 Ill.2d 504, 525, 473 N.E.2d 1246, 55 (1984). However, even if defendant's public defender and later his retained counsel did not tell him about the sentence he faced if convicted of home invasion, defendant still has no claim of ineffective assistance because there was no prejudice. See People v. Manning, 227 Ill. 2d 403, 422, 883 N.E.2d 492, 504 (2008). The trial court itself informed defendant that he faced a mandatory six-year prison sentence during one of the last pretrial

conferences, and defendant said he understood the court's warning: "THE COURT: And Mr. Godfrey, you understand the charges against you and the possible sentences you face if convicted on these charges? DEFENDANT: Yes. THE COURT: I want to make sure you do. A Class X

felony, the potential penalties of 6 to 30 years in the Department of Corrections. for extended term? 7 Is the Defendant qualified

PROSECUTOR: No, Judge. THE COURT: The period in the Department of

Corrections would be followed by 3 years mandatory supervised release. * * * THE COURT: Do you understand the penalties you face? DEFENDANT: Yes. * * * THE COURT: Do you have any questions regarding the charges against you or the possible penalties you face? DEFENDANT: No." In light of this exchange, the trial court was correct to conclude that defendant's allegation of ineffective assistance was without merit and to refuse appointing independent counsel to pursue an ineffective assistance claim at the trial level. CONCLUSION For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. Affirmed. CARTER, J., concurs. JUSTICE SCHMIDT, specially concurring: I agree with the majority's decision to affirm the circuit court, but I disagree with its approach to both of defendant's claims of error. I. Relief Under Supreme Court Rule 615 The problem with the majority opinion is apparent. 8 The It's not probationable.

majority, citing People v. Jackson, 181 Ill. App. 3d 1048, 537 N.E.2d 1054 (1989), holds "since there is no evidentiary weakness, we cannot invoke Rule 615 to reduce defendant's conviction and sentence." Slip op. at 6. This opinion not only

fails to provide guidance to practitioners, but also misleads them. The holding clearly implies that had the majority found an

evidentiary weakness, it could have invoked Rule 615 to reduce defendant's conviction and sentence in the absence of reversible error. I submit it could not. If multiple errors below are

harmless in isolation but are cumulatively prejudicial to a defendant, we can and will grant relief. People v. Scott, 108

Ill. App. 3d 607, 615, 439 N.E.2d 130, 136 (1982); People v. Patterson, 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164, 1169 (1976). But the Jackson standard would have us countermand trial

court judgments that were admittedly not erroneous at all. The majority applies a portion of the standard this court announced in People v. Jackson, 181 Ill. App. 3d at 1051-52, 537 N.E.2d at 1057. I believe Jackson was wrongly decided and that

any analysis under Rule 615(b)(3) must depend on the presence or absence of reversible error. See People v. Thomas, 266 Ill. App.

3d 914, 926, 641 N.E.2d 867, 876 (1994); People v. Rodriguez, 258 Ill. App. 3d 579, 587, 631 N.E.2d 427, 433 (1994); People v. Sims, 245 Ill. App. 3d 221, 225, 614 N.E.2d 893, 896-97 (1993); People v. Kick, 216 Ill. App. 3d 787, 793, 576 N.E.2d 395, 399 (1991). In discussing the Jackson standard, the majority omits the

9

fourth element of that standard, which is that the trial court expressed dissatisfaction with imposing the mandatory sentence. Slip op. at 4; Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056. The majority also ignores defendant's arguments and

reliance upon this aspect of the Jackson standard. The Jackson line of cases would have us grant relief when, in the opinion of two or more judges, a mandatory minimum sentence imposed below is unduly harsh. People v. Plewka, 27 Jackson holds

Ill. App. 3d 553, 559, 327 N.E.2d 457, 461 (1975).

that we have authority to intervene after the trial judge "expresse[s] dissatisfaction" with imposing a mandatory minimum sentence. Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056.

This element of Jackson makes it incompatible with our constitution's separation of powers requirement. 1970, art. II

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