People v. Rinehart

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People v. Rinehart

State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0283 Rel

Case Date: 12/17/2010

Preview:NO. 4-09-0283 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS S. RINEHART, Defendant-Appellant.

Filed 12/17/10

) Appeal from ) Circuit Court of ) Coles County ) No. 06CF664 ) ) Honorable ) Gary W. Jacobs ) Judge Presiding. _________________________________________________________________ PRESIDING JUSTICE KNECHT delivered the opinion of the court: In December 2007, a jury convicted defendant, Thomas S. Rinehart, of criminal sexual assault, a Class 1 felony (720 ILCS 5/12-13(a)(3) (West 2006)). In February 2008, the trial court

sentenced him to 28 years' imprisonment, with 334 days' sentence credit. The written sentencing order did not indicate a manda-

tory supervised release (MSR) period. Defendant appeals, arguing (1) he was denied a fair trial where the State improperly questioned the venire, (2) the sentencing judgment should be amended to reflect a two-year term of MSR, and (3) he is entitled to two additional days' sentence credit. We affirm as modified and remand with directions. I. BACKGROUND During defendant's December 2007 trial, A.A. (born September 15, 1988) testified that in August 2006, she was helping her mother's boyfriend, defendant, move some friends from Mattoon, Illinois. According to A.A.'s testimony, defendant was

driving her mother's van. dant. road.

A.A. was alone in the van with defen-

Defendant drove the van off of Route 316 onto a small side Defendant told A.A., then 17 years old, to get into the A.A. testified

back of the van and to take her clothes off. defendant placed his penis in her vagina.

Defendant then told The incident was At trial, defen-

A.A. not to tell anybody about what happened. not reported to police for two to three weeks. dant presented no evidence on his behalf.

In December 2007, a jury convicted defendant of criminal sexual assault. The trial court's sentencing judgment

reflected defendant's sentence of 28 years' imprisonment and 334 days' sentence credit. include a term of MSR. However, the sentencing judgment did not Thereafter, defendant received a natural-

life MSR term from the Department of Corrections (DOC). In March 2008, defendant filed a motion for reduction of sentence, which the trial court denied. This appeal followed. II. ANALYSIS On appeal, defendant argues (1) the State's improper questions to prospective jurors asked them to prejudge the victim's credibility and predisposed them to believe her testimony; (2) because defendant was convicted of a Class 1 felony, he should only receive a two-year MSR term; (3) because only the trial court--and not DOC--is authorized to impose sentence, DOC did not have the authority to set his MSR term at natural life; and (4) defendant is entitled to two additional days' sentence - 2 -

credit because he was not taken into custody until the day after sentencing. The State argues (1) the prosecutor's questioning during voir dire was proper and (2) defendant's MSR term of natural life was within the correct statutory range, but (3) concedes defendant is entitled to two additional days' sentence credit. A. State's Questioning of the Venire Defendant first argues he was denied a fair trial where the State improperly questioned the venire. We agree the ques-

tions were improper but conclude defendant was not denied a fair trial. 1. Forfeiture The State argues, and defendant concedes, defendant failed to properly preserve this issue for appellate review by failing to object to the State's voir dire questions or raise the issue in a posttrial motion. See People v. Coleman, 227 Ill. 2d Defendant argues this How-

426, 433, 882 N.E.2d 1025, 1028-29 (2008).

issue should be considered under a plain-error analysis.

ever, before determining whether plain error occurred, we must first determine whether any error occurred at all. People v.

Owens, 372 Ill. App. 3d 616, 620, 874 N.E.2d 116, 118 (2007). 2. Standard of Review Trial courts have broad discretion in conducting and managing voir dire. People v. Klimawicze, 352 Ill. App. 3d 13, Accordingly, the standard of

25, 815 N.E.2d 760, 773 (2004).

- 3 -

review applied to the manner in which the trial court conducts voir dire is abuse of discretion. People v. Boston, 383 Ill. An abuse of

App. 3d 352, 355, 893 N.E.2d 677, 680 (2008).

discretion occurs where the conduct of the trial court thwarted the selection of an impartial jury. People v. Gardner, 348 Ill.

App. 3d 479, 488, 810 N.E.2d 180, 188 (2004). 3. Voir Dire "A defendant's right to a jury trial mandates a fair trial by a panel of impartial jurors." People v. Gay, 377 Ill. "The purpose of

App. 3d 828, 834, 882 N.E.2d 1033, 1038 (2007).

voir dire is to assure the selection of an impartial panel of jurors free from either bias or prejudice." People v. Williams, "[V]oir dire

164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994).

questions should confirm a prospective juror's ability to set aside feelings of bias and decide the case on the evidence presented." Gay, 377 Ill. App. 3d at 835, 882 N.E.2d at 1038.

They must "not directly or indirectly concern matters of law or instructions." Official Reports Advance Sheet No. 8 (April 11, "[V]oir dire 'is not to be

2007), R. 431(a), eff. May 1, 2007.

used as a means of indoctrinating a jury, or impaneling a jury with a particular predisposition.'" Boston, 383 Ill. App. 3d at

354, 893 N.E.2d at 680, quoting People v. Bowel, 111 Ill. 2d 58, 64, 488 N.E.2d 995, 998 (1986). In this case, the State questioned the venire as follows: "[MS. KIGER (Assistant State's Attor- 4 -

ney):] Can you think of some reasons why a sexual[-]assault victim might not immediately report an incident? [PROSPECTIVE JUROR:] Why they would not report an incident? [MS. KIGER:] Right away. [PROSPECTIVE JUROR:] The victim? [MS. KIGER:] Correct. [PROSPECTIVE JUROR:] Well, they probably may say it really didn't happen, and then the falling out with the parents. Maybe there

was a relationship, you know, age difference relationship. Then the parents found out Children are

about it, convinced, you know. children.

[MS. KIGER:] Can you think of a reason why a victim who had had some things happen to them might not immediately go to an adult or report it? [PROSPECTIVE JUROR:] Scared." The State continued questioning other potential jurors as follows: "[MS. KIGER:] Can you think of some reasons why a victim of sexual assault might not immediately report it to someone? [PROSPECTIVE JUROR:] Fear, shame. - 5 -

* * * [MS. KIGER:] Can you think of a reason why a victim might delay in reporting being raped or being a victim of sexual assault? [PROSPECTIVE JUROR:] Shame, embarrassment, fear. * * * [MS. KIGER:] Can you think of some reasons why a sexual[-]assault victim might not automatically come forward? [PROSPECTIVE JUROR:] Oh, I think maybe fear, and [thoughts] you would be a lesser person if something like that happened to you. * * * [MS. KIGER:] Can you think of some reasons why a sexual[-]assault victim might not immediately report that? [PROSPECTIVE JUROR:] Yeah. [MS. KIGER:] Can you tell me what some of those reasons would be? [PROSPECTIVE JUROR:] Same, fear and scared to come forward." Defendant argues these questions were not for determining potential juror bias but rather for preeducating jurors as to aspects about the victim's forthcoming testimony and as a means - 6 -

to engender sympathy for the victim.

The State maintains these We

questions simply inquired about prospective jurors' biases.

find these questions improperly asked jurors to put themselves in the victim's shoes. In this case, the victim did not immediately report the assault. The State asked prospective jurors whether they could

think of any reasons why a sexual-assault victim would not immediately report the assault. The topic was designed to expose

whether a juror would automatically perceive a delay in reporting to mean the victim was lying about the incident. A negative

response to the State's question could have indicated potential bias against the veracity of the victim's testimony. While

questions designed to discover bias are proper, these questions to prospective jurors asked jurors to speculate as to reasons why a victim might not come forward. While the subject could be

raised in voir dire through artful questions, the questions asked by the prosecutor crossed the boundary of acceptable voir dire. Since there was no objection, we will consider whether the plainerror doctrine applies. 4. Plain Error The plain-error doctrine, a limited and narrow exception to the general forfeiture rule, permits appellate review of otherwise procedurally forfeited matters. 615(a). See 134 Ill. 2d R.

Under the doctrine, this court may review an unpreserved

or forfeited error when there is a clear and obvious error that occurs in one of two situations: (1) "the evidence is closely - 7 -

balanced" or (2) the "error is so serious *** it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." People v. Bannister, 232 Ill. 2d 52, 65, The defendant carries the burden of

902 N.E.2d 571, 580 (2008).

establishing plain error; if he or she is unable to do so, "the 'procedural default must be honored.'" Bannister, 232 Ill. 2d at

65, 902 N.E.2d at 580-81, quoting People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 910 (1995). Defendant cannot prove plain error under either situation. First, the evidence in this case is not closely balanced.

Defendant must prove "the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d At trial, the victim testified defendant drove She de-

467, 479 (2005).

her to a small side road and sexually assaulted her. scribed the offense and the location. evidence.

Defendant presented no

The evidence was not so closely balanced that the

error by itself "severely threatened to tip the scales of justice against" defendant. Second, defendant cannot prove the "error is so serious *** it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Ill. 2d at 65, 902 N.E.2d at 580. Bannister, 232

Defendant, citing People v.

Bean, 137 Ill. 2d 65, 81, 560 N.E.2d 258, 265 (1990), simply contends the error affects a substantial right and should be reviewed. - 8 -

Defendant's argument falls far short of establishing plain error. able. Defendant's lone case on this issue is distinguish-

Bean involves a defendant's claim his absence during in Bean, 137 Ill. 2d at

camera voir dire amounted to plain error. 78-81, 560 N.E.2d at 264-65.

The court reasoned, although the

right to an impartial jury is a substantial right for purposes of plain-error review, "defendant's absence from the in camera voir dire did not, in fact, have the slightest effect on the impartiality of the jury selected." N.E.2d at 265. In this case, while the voir dire questions crossed the line of propriety, they did not indoctrinate the jury and deny defendant a fair trial. were not pervasive. The State's questions, though improper, Bean, 137 Ill. 2d at 81, 560

In addition, the jurors, during the same

questioning, recognized defendant's innocence until proved guilty and asserted they would be impartial. During trial, the jurors

heard the victim testify she was afraid to tell her mother, who was defendant's live-in paramour, because she feared her mother would not believe her and would punish her. The jurors did not

have to rely on speculation for determining the reason for A.A.'s delay in reporting the offense. Defendant cannot prove plain error, and his procedural default stands. 580-81. 5. Ineffective Assistance of Counsel Defendant further argues this court should not consider - 9 See Bannister, 232 Ill. 2d at 65, 902 N.E.2d at

the voir dire issue forfeited because trial counsel was ineffective for not raising the error before the trial court and preserving the matter for appeal. This argument fails.

To establish his ineffective-assistance-of-counsel claim, defendant must show (1) his counsel's performance was inadequate "in that it fell below an objective standard of reasonableness," and (2) a reasonable probability exists the outcome of the proceeding would have been different absent counsel's deficient performance. People v. Moore, 189 Ill. 2d

521, 535, 727 N.E.2d 348, 355-56 (2000), citing Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). Because defendant must prove

both prongs of Strickland to prevail on this claim, we may resolve the issue "solely on the ground that the defendant did not suffer prejudice without deciding whether counsel's performance was constitutionally deficient." People v. Little, 335

Ill. App. 3d 1046, 1052, 782 N.E.2d 957, 963 (2003). We find defendant cannot show a reasonable probability exists the proceeding's outcome would have been different had counsel objected to the State's voir dire questions. As we

reasoned above, the voir dire questions did not deprive defendant of a fair trial. The jurors were provided testimony showing the The jurors stated

reason A.A. hesitated in reporting the rape. they could be impartial.

Moreover, during closing argument,

defense counsel emphasized the reporting delay as a basis for finding defendant not guilty, and the evidence at trial supports - 10 -

the conviction. B. Defendant's MSR Term Defendant next argues (1) the trial court erred in finding he was required to serve a minimum three-year MSR term, and (2) because the trial court, and not DOC, is authorized to impose sentence, the lifetime MSR term imposed by DOC is void. 1. Standard of Review The imposition of MSR is statutorily required. ILCS 5/5-8-1(d)(4) (West 2006). See 730

The proper construction of a See People

statute is a question of law which we review de novo.

v. Cardamone, 232 Ill. 2d 504, 511, 905 N.E.2d 806, 810 (2009). "It is well settled that the primary objective of this court when construing the meaning of a statute is to ascertain and give effect to the intent of the General Assembly." Southern Illi-

noisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415, 844 N.E.2d 1, 14 (2006). The General Assembly's intent is

best gleaned from the statute itself, and "where the statutory language is clear and unambiguous, it must be given effect." Orlak v. Loyola University Health System, 228 Ill. 2d 1, 8, 885 N.E.2d 999, 1004 (2007). 2. Defendant Is Statutorily Eligible for a Minimum Three Years' MSR Defendant initially argues the trial court erred in finding he was required to serve a minimum three-year MSR term. Specifically, defendant contends, because he was convicted of a Class 1 felony, he should only serve a two-year MSR term. disagree. - 11 We

Section 5-8-1(d)(2) of the Unified Code of Corrections (Unified Code) provides for a two-year term of MSR for a Class 1 or a Class 2 felony except where the offense is criminal sexual assault. 730 ILCS 5-8-1(d)(2) (West 2006). Where, as here, the

offense is criminal sexual assault, section 5-8-1(d)(4) of the Unified Code provides the following: "for defendants who commit the offense of predatory criminal sexual assault of a child, aggravated criminal sexual assault, or criminal sexual assault *** the term of [MSR] shall range from a minimum of 3 years to a maximum of the natural life of the defendant[.]" (Emphases added.) 730 ILCS 5/5-8-

1(d)(4) (West 2006). Defendant was convicted of criminal sexual assault, a Class 1 felony. years' MSR. Ordinarily, a Class 1 felony would result in two

However, the Unified Code provides an exception for As a result, defendant was eligible for Defendant's argument that he

criminal sexual assault.

a minimum of three years' MSR.

should receive two years' MSR fails. 3. Authority To Set Defendant's MSR Under Section 5-8-1(d) of the Unified Code During sentencing, the trial court did not specifically pronounce defendant's MSR term. following: "I further order that the defendant will serve a period of [MSR] after serving his - 12 Instead, the court stated the

sentence as mandated by statute. Counsel, [it is] a little bit unclear to me what that period would be. There's been

some recent legislation that would suggest to me that the applicable time upon the defendant for this offense is not less than three and could be up to natural life, as the statute indicated, regarding the [MSR] period. I

don't think I have to make that as part of my finding. It's what [DOC] will impose upon

him, but there is a minimum three-year [MSR] period. As I understand the statute, it

could be beyond that period." The written sentencing judgment did not mention MSR. Thereafter,

defendant received an MSR term of natural life from DOC. Defendant argues because the trial court, and not DOC, is authorized to impose his sentence, the lifetime term of MSR is void. We understand defendant's argument to be that upon convic-

tion for criminal sexual assault, the court must sentence the defendant to a specific MSR term within the range of three years to natural life. The State argues when the trial court fails to include MSR in the sentencing judgment, DOC may impose it. Implicit in

the State's argument is DOC also possesses the discretion to determine where within the statutory range defendant's MSR term should fall. - 13 -

Section 5-8-1(d) of the Unified Code states, "every sentence shall include as though written therein a term [of MSR] in addition to the term of imprisonment." (West 2006). 730 ILCS 5/5-8-1(d)

As previously stated, the MSR term for the offense

of criminal sexual assault ranges from a minimum term of three years to a maximum term of the length of defendant's natural life. See 730 ILCS 5/5-8-1(d)(4) (West 2006). Section 3-3-8(b) of the Unified Code provides the Prisoner Review Board (Review Board) the power to terminate MSR early. See 730 ILCS 5/3-3-8(b) (West 2006) ("[t]he *** Review

Board may enter an order releasing and discharging one from parole or [MSR], and his commitment to the [DOC], when it determines that he is likely to remain at liberty without committing another offense"). Although the Unified Code authorizes DOC--

through the Review Board--to make final determinations involving the actual amount of time a defendant spends under MSR, section 5-8-1(d)(4) specifically designates an MSR sentencing range for the offense of criminal sexual assault. 1(d)(4) (West 2006). See 730 ILCS 5/5-8-

It is implicit in authorizing a sentencing

range that the trial court has the authority to sentence a defendant within that range. In this case, the legislature carved out a limited exception for the crimes listed in section 5-8-1(d)(2). Every

other period of MSR in section 5-8-1(d) is set as a specific number of years by the legislature. As a result, a trial court

could fail to include MSR as part of sentencing and have the - 14 -

error remedied by operation of law.

See 730 ILCS 5/5-8-1(d)

(West 2006) ("every sentence shall include as though written therein a term [of MSR] in addition to the term of imprisonment"). However, if the legislature intended for the maximum term of natural life to be automatically included in the sentence for defendants convicted of crimes included in section 5-8-1(d), it would have so stated instead of giving a range. Moreover, to

find that defendant's MSR term would be automatically set at an indeterminate range of "three years to natural life" would be inconsistent with the determinate sentence structure of section 5-8-1(a). See 730 ILCS 5/5-8-1(a) (West 2006) ("[e]xcept as

otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this [s]ection"). In addition, the grant of authority to impose the MSR term is structurally located in the section of the Unified Code authorizing the sentencing power of the trial court and not within the section concerning the powers and duties of the Review Board. In fact, nowhere in section 3-3-2 does the legislature

grant the Review Board the discretion to determine the range of a defendant's MSR term under section 5-8-1(d)(4). 5/3-3-2 (West 2006). See 730 ILCS

Further, while the legislature has autho-

rized the Review Board to promulgate its own rules regarding the conduct of its work (730 ILCS 5/3-3-2(d) (West 2006)), the Review Board has not adopted any rule concerning its discretion to - 15 -

impose MSR pursuant to section 5-8-1(d)(4).

See 20 Ill. Adm.

Code

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