People v. BlantonPeople v. Blanton
Justice APPLETON delivered the judgment of the court, with opinion.
¶ 1 In December 2007, a jury found defendant, Craig J. Blanton, guilty of armed robbery (
¶ 2 On June 17, 2009, this court issued an opinion finding the trial court had erred by failing to comply with Rule 431(b) by neglecting to question each venireperson as to whether he or she understood and accepted the principle that defendant‘s failure to testify could not be held against him. People v. Blanton, No. 4-08-0120, slip op. at 10 (Ill App. June 17, 2009), reh‘g granted (July 17, 2009). This court found such error constituted plain error because the failure to advise the jurors that defendant‘s failure to testify could not be held against him was “`so substantial that it affected the fundamental fairness of the proceeding.‘” Blanton, slip op. at 9 (quoting People v. Hall, 194 Ill. 2d 305, 335, 252 Ill. Dec. 653, 743 N.E.2d 521 (2000)).
¶ 3 One day later, on June 18, 2009, the supreme court issued its decision in People v. Glasper, 234 Ill. 2d 173, 334 Ill. Dec. 575, 917 N.E.2d 401 (2009). The Glasper case involved the former version of Rule 431(b),
¶ 4 On July 8, 2009, the State filed a petition for rehearing, asking this court to reconsider its holding in light of Glasper. On July 17, 2009, this court granted the petition for rehearing and later determined that, because Glasper did not change the result, the trial court‘s judgment was reversed and the cause was remanded for a new trial. People v. Blanton, 396 Ill. App. 3d 230, 232, 338 Ill. Dec. 847, 925 N.E.2d 703 (Nov. 10, 2009).
¶ 5 In January 2011, the supreme court issued a supervisory order (People v. Blanton, 239 Ill. 2d 558, 346 Ill. Dec. 544, 940 N.E.2d 1148 (2011) (nonprecedential supervisory order on denial of petition for leave to appeal) (No. 109586)) directing this court to vacate our judgment and to reconsider in light of People v. Thompson, 238 Ill. 2d 598, 345 Ill. Dec. 560, 939 N.E.2d 403 (2010). In accordance with the supreme court‘s directions, we vacate our prior judgment and reconsider in light of Thompson to determine whether a different result is warranted. After such consideration, we now affirm defendant‘s conviction on the Rule 431(b) issue, and consider defendant‘s other contentions of error for the first time. After doing so, we vacate defendant‘s sentence and remand with directions.
¶ 6 I. BACKGROUND
¶ 7 In March 2007, the State charged defendant by information with armed robbery (
¶ 8 At the start of defendant‘s jury trial, on December 13, 2007, the trial court conducted a voir dire examination of the venire. The court advised the venire as a whole that (1) the State has the burden of proof and must prove defendant guilty beyond a reasonable doubt; (2) defendant was presumed innocent of the charges brought against him; and (3) defendant did not have to present evidence unless he chose to do so. With each panel of venire-persons
¶ 9 Defense counsel also questioned several members of the venire about the same principles addressed by the trial court: that defendant was presumed innocent, the State must prove defendant guilty beyond a reasonable doubt, and defendant was not required to offer evidence on his behalf. Defense counsel asked one venireperson, ultimately selected for the jury, whether he understood that if defendant chose not to present any evidence, the venireperson could not hold that against defendant. The venireperson answered “Right.” Defense counsel asked another venireperson, also ultimately selected for the jury, whether he understood that defendant did not have to “say anything or prove that he did not commit” the crime but that the State must prove that defendant committed the crime. The venireperson answered “Yes.”
¶ 10 The case proceeded to trial. Defendant presented no evidence and did not testify. At the jury-instruction conference, the State tendered a set of jury instructions but withdrew the instruction that charged the jury to judge defendant‘s testimony in the same manner as the testimony of any other witness. See Illinois Pattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense counsel did not object to withdrawing that instruction or tender the instruction that the jury should not consider the fact that defendant did not testify. See IPI Criminal 4th No. 2.04 (“[t]he fact that [the] defendant did not testify must not be considered by you in any way in arriving at your verdict“). The trial court did not instruct the jury that defendant‘s failure to testify could not be considered.
¶ 11 The jury found defendant guilty of aggravated robbery and armed robbery while armed with a firearm. As stated above, in January 2008, the trial court vacated the aggravated-robbery conviction under the one-act, one-crime rule and sentenced defendant to 25 years’ imprisonment for armed robbery. At sentencing, the court noted that 15 years was required to be added to defendant‘s sentence under the mandatory enhancement statute related to the use of firearms. See
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 A. Compliance With Supreme Court Rule 431(b)
¶ 15 On appeal, defendant argued the trial court‘s failure to fully comply with Rule 431(b) required reversal of his conviction and remand for a new trial. The State argued (1) defendant forfeited the argument by not objecting in the trial court or in a posttrial motion; (2) defendant acquiesced in the procedure used by the court, a procedure that did not include a specific, direct reference to testimony of the defendant; (3) no error occurred in the voir dire as a whole because references to the fact that defendant did not have to present evidence were sufficient to disclose any potential bias from the potential jurors even though no specific questions were asked regarding the jurors’ views about defendant‘s right not to testify; and (4)
¶ 16 By not objecting during the trial court proceedings or preserving the issue for review by including the issue in a posttrial motion, defendant has forfeited his contention of error. See People v. Hestand, 362 Ill. App. 3d 272, 279, 297 Ill. Dec. 831, 838 N.E.2d 318 (2005). He concedes forfeiture but claims the issue can be reviewed despite his procedural default because the error constitutes a structural error, and thus is subject to plain-error review. Before reviewing the issue under the plain-error doctrine, we must first determine whether any error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 312 Ill. Dec. 338, 870 N.E.2d 403 (2007). We review the issue of compliance with a supreme court rule de novo. People v. Garner, 347 Ill. App. 3d 578, 583, 283 Ill. Dec. 460, 808 N.E.2d 10 (2004) (involving compliance with Rule 605(a) (
¶ 17 Rule 431(b) was adopted in 1997 to ensure compliance with Zehr.
¶ 18 Effective May 1, 2007, Rule 431(b) was amended to impose “a sua sponte duty on the trial court to question each potential juror as to whether he understands and accepts the Zehr principles.” People v. Gilbert, 379 Ill. App. 3d 106, 110, 318 Ill. Dec. 17, 882 N.E.2d 1140 (2008). That is, such questioning was no longer dependent upon a request by defense counsel. Gilbert, 379 Ill. App. 3d at 110, 318 Ill. Dec. 17, 882 N.E.2d 1140. Rule 431(b) currently provides as follows:
“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant‘s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant‘s failure to testify when the defendant objects.
The court‘s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.”
Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
The committee comments provide as follows:
“The new language is intended to ensure compliance with the requirements of [Zehr], 103 Ill. 2d [at 477, 83 Ill. Dec. 128, 469 N.E.2d 1062]. It seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror‘s willingness to follow the law.”
Ill. S. Ct. R. 431(b) , Committee Comments (eff. May 1, 2007).
¶ 20 Having found error, we next determine whether the error qualifies as one justifying plain-error review. This court may review an error under the plain-error doctrine if (1) the evidence is closely balanced or (2) the error is “so substantial that it affected the fundamental fairness of the proceeding, and remedying the error is necessary to preserve the integrity of the judicial process.” Hall, 194 Ill. 2d at 335, 252 Ill. Dec. 653, 743 N.E.2d 521.
¶ 21 We first analyze defendant‘s contention of error under the second prong. Under that prong, “[p]rejudice to the defendant is presumed because of the importance of the right involved.” People v. Herron, 215 Ill. 2d 167, 187, 294 Ill. Dec. 55, 830 N.E.2d 467 (2005). The question then is whether the error committed here threatened the integrity of the judicial process. People v. Blue, 189 Ill. 2d 99, 139, 244 Ill. Dec. 32, 724 N.E.2d 920 (2000).
¶ 22 In Thompson, the supreme court held that a trial court‘s failure to comply with Rule 431(b) does not necessarily render a trial fundamentally unfair or unreliable and does not require automatic reversal. Thompson, 238 Ill. 2d at 614-15, 345 Ill. Dec. 560, 939 N.E.2d 403. Only upon the defendant‘s presentation of evidence that the jury was biased would his fundamental right to a fair trial be questioned. Thompson, 238 Ill. 2d at 614, 345 Ill. Dec. 560, 939 N.E.2d 403. The supreme court stated: “We cannot presume the jury was biased simply because the trial court erred in conducting the Rule 431(b) questioning.” Thompson, 238 Ill. 2d at 614, 345 Ill. Dec. 560, 939 N.E.2d 403. Thus, in analyzing the issue under a second-prong, plain-error analysis, the critical question is whether the defendant has shown that the trial court‘s Rule 431(b) error resulted in impaneling a biased jury. See Thompson, 238 Ill. 2d at 614, 345 Ill. Dec. 560, 939 N.E.2d 403.
¶ 23 Defendant in this case has offered no evidence of bias. He claims only that the jury may have been biased. However, pursuant to Thompson, such speculation is neither sufficient nor determinative. See Thompson, 238 Ill. 2d at 614, 345 Ill. Dec. 560, 939 N.E.2d 403. Defendant must present at least some evidence that the court‘s error was so serious that it deprived him of a fair trial. Thompson, 238 Ill. 2d at 614, 345 Ill. Dec. 560, 939 N.E.2d 403. Defendant fails to do so. Without such evidence, defendant cannot carry his burden under the second prong by showing the error affected the fairness of his trial and challenged the integrity of the judicial process. Thompson, 238 Ill. 2d at 615, 345 Ill. Dec. 560, 939 N.E.2d 403.
¶ 24 Defendant alternatively argued that the error is reversible under the first prong of the plain-error doctrine because the evidence was closely balanced. Thompson did not reach this issue because the defendant in that case asserted only second-prong error. It is therefore possible that the first prong is still available for Rule 431(b) errors. See Thompson, 238 Ill. 2d at 613, 345 Ill. Dec. 560, 939 N.E.2d 403. Even so, defendant still bears the burden of persuasion. He argues that the State‘s witnesses were unable to unequivocally positively identify him as one of the assailants. However, we find that, contrary to defendant‘s assertions,
¶ 25 Based on these facts, we conclude that the evidence presented at defendant‘s trial overwhelmingly implicated him and established his guilt. Defendant has failed to meet his burden of persuasion that the evidence against him was closely balanced. As a result, the trial court‘s Rule 431(b) error is not reversible under the first prong of the plain-error doctrine either.
¶ 26 After our analysis of the facts of this case in light of the supreme court‘s decision in Thompson, we conclude that the trial court‘s failure to strictly comply with the requirements of Rule 431(b) did not rise to the level of plain error. Accordingly, defendant has forfeited his claim and we affirm defendant‘s conviction.
¶ 27 B. Proportionate-Penalties Clause
¶ 28 Defendant also claims his 25-year sentence violates the proportionate-penalties clause (
¶ 29 The State‘s only response to defendant‘s argument in this appeal is that Hauschild was wrongly decided. Unfortunately for the State, the supreme court‘s decision is binding on this court. See People v. Coleman, 399 Ill. App. 3d 1150, 1160, 339 Ill. Dec. 763, 927 N.E.2d 304 (2010) (“Unless and until our supreme court modifies its decision in Hauschild, we are bound to follow it.“).
¶ 30 In Hauschild, the defendant was convicted of armed robbery while armed with a firearm. Hauschild, 226 Ill. 2d at 85-86, 312 Ill. Dec. 601, 871 N.E.2d 1. On appeal, the defendant claimed the 15-year sentence enhancement made the sentencing range for armed robbery unconstitutionally disproportionate when compared to the range of sentence available for a conviction of armed violence predicated on robbery, an offense with identical elements. Hauschild, 226 Ill. 2d at 71, 312 Ill. Dec. 601, 871 N.E.2d 1. The supreme court agreed. Hauschild, 226 Ill. 2d at 86-87, 312 Ill. Dec. 601, 871 N.E.2d 1. After the mandatory 15-year enhancement, the range of sentencing for armed robbery with a firearm was 21 to 45 years. See
¶ 31 Thus, in accordance with Hauschild, we vacate defendant‘s sentence and remand for resentencing with directions to the trial court to resentence defendant in accordance with the sentencing scheme in effect prior to the enactment of the 15-year sentence enhancement.
¶ 32 C. Consideration of Class of Victim as Aggravating Factor
¶ 33 Finally, defendant contends the trial court improperly considered the fact that the victim was a student at the University of Illinois as a reason to impose a harsher penalty upon defendant. As the State notes, defendant raises this issue for the first time in this appeal. He did not object to the court‘s comments on this issue at sentencing, nor did he raise this issue in his postsentencing motion. As such, he has failed to preserve the issue for our consideration. See People v. Helm, 282 Ill. App. 3d 32, 34, 218 Ill. Dec. 380, 669 N.E.2d 111 (1996) (the defendant‘s contention that the sentencing court erred in considering that the victim was a female as a reason to impose a harsher sentence was forfeited for failing to properly preserve the issue).
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we affirm the trial court‘s judgment convicting defendant of armed robbery. We vacate defendant‘s 25-year sentence and remand for resentencing without the imposition of the 15-year firearm enhancement. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal.
¶ 36 Affirmed in part and vacated in part; cause remanded with directions.
Presiding Justice KNECHT and Justice McCULLOUGH concurred