Opinion
No. 1-11-1496
06-12-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTWION M. GREENLAW, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 5169
The Honorable
William J. Kunkle,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Neville and Justice Sterba concurred in the judgment.
ORDER
¶ 1 Held: Defendant was proved guilty of delivery of a controlled substance beyond a reasonable doubt where the third buyer the police observed possessed a small bag of heroin and fit the surveillance officer's description of the third buyer and the direction of his flight; where defendant withdrew his motion alleging ineffective assistance of counsel, the trial court was correct not to conduct an inquiry pursuant to People v. Krankel, 102 Ill. 2d 181, 187-89 (1984); errors in the fines, fees, and costs were ordered corrected. ¶ 2 Following a bench trial, defendant Antwion M. Greenlaw was found guilty of delivery of a controlled substance (0.1 gram of heroin), sentenced to an eight-year Class X prison term based on his criminal background, and ordered to pay $665 in fines, fees, and costs. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt because the State failed to prove that the third purchaser obtained the heroin from him. Defendant alternatively contends that the trial court should have conducted an inquiry pursuant to People v. Krankel, 102 Ill. 2d 181, 187-89 (1984), into his pro se posttrial allegations of ineffective assistance of counsel. Defendant finally contends, and the State agrees, that the $200 DNA fee should be vacated and that there should be a $100 credit against the trauma center fund fine, for a total amount of $470 in fines, fees, and costs, rather than $665. ¶ 3 At approximately 9 a.m. on February 15, 2010, Chicago police officers conducted a narcotics surveillance in the area of 531 West 58th Street in Chicago. Officer Gerald Neals was the surveillance officer, and Officers Torres, Carreno, Murphy, and Kuc were the enforcement officers. From a distance of 10 to 15 feet and without use of a visual aid, Neals observed defendant engage in three hand-to-hand transactions with three separate individuals. During each transaction, an individual approached defendant, engaged in a brief conversation, and they relocated across the street, where defendant tendered a white plastic bag from his pocket to the individual in exchange for paper currency. Neals could not discern the denominations of the currency. Nothing obstructed Neals' view while he watched the three transactions. The items that defendant tendered to the three individuals looked the same--clear plastic bags containing white substance. The buyers all walked away except for the last one, who entered a vehicle. Neals was in contact with the other officers throughout the surveillance. After the third transaction, Neals sent a radio communication to his enforcement officers that included a description of the third buyer as well as a description of the vehicle that the third buyer entered. The enforcement officers informed him that they had made a positive recovery of heroin from the third buyer, and placed the third buyer into custody. Neals sent a radio message to the enforcement officers to detain defendant, and provided the latter's location. Neals saw Torres and Kuc arrest defendant. ¶ 4 During cross-examination, Neals testified that he parked his covert vehicle at "[a]pproximately maybe 528 West 58th Street," which was across the street from 531 West 58th Street. Defendant and the buyers relocated across the street to 530 West 58th Street, which was where the exchanges occurred. Defendant wore a jacket and retrieved the item he handed over from the jacket pocket. Neals could see the small bag, which was around two inches by two inches. During the transactions, defendant held the bag by his fingertips and handed it to the individual. In the last transaction, a man approached defendant on foot after getting out of a car. No drugs were recovered from defendant. ¶ 5 During redirect examination, when Neals demonstrated the 10 to 15 foot distance between him and defendant, the demonstrated distance was approximately 20 feet. ¶ 6 Chicago police officer Efrin Carreno testified that Neals provided information about an individual that he wanted detained, namely, the direction of flight and a description of the individual, including his clothing. Officer Carreno stopped that individual, whom he later learned was Kevin Kyser. Officer Murphy approached Kyser first. Carreno observed Kyser using his teeth to rip up a bag that contained suspected narcotics. Kyser put the bag in his mouth and spit the bag and some of its contents at Murphy. Carreno stopped Kyser approximately two blocks away from Neals. Once Carreno stopped Kyser and recovered the ripped bag, Carreno radioed information to Neals and believed that "we" told Neals that it was a positive recovery. When Carreno recovered what was left of the clear plastic Ziploc bag with a blue star logo, the bag contained a white powder substance suspected to be heroin. Carreno and Murphy placed Kyser into custody. A custodial search of Kyser was conducted after he was placed into custody. Carreno did not remember whether any other small plastic bags were recovered from Kyser's person during the custodial search. Carreno believed that he gave the bag to Officer Kuc and that she inventoried it in his (Carreno's) presence. ¶ 7 During cross-examination, Carreno testified that when he saw Kyser ripping the plastic bag, the bag was small, approximately an inch. The bag had a blue star logo on one side. The star did not completely cover one side of the bag. The bag contained residue of narcotics. ¶ 8 Chicago police officer Roman Torres testified that Neals provided a description and a location of an individual that he wanted Torres and Kuc to detain. Torres then detained the individual at 531 West 58th Street in Chicago. Neals indicated to Torres over the radio that Torres had detained the correct individual. Torres identified defendant in court as the individual whom he detained. Later, Torres searched defendant and recovered $354 in cash, two cell phones, a wallet, and some cigarettes. The cash consisted completely of paper currency. ¶ 9 During cross-examination, Torres testified that he did not find any narcotics on defendant's person. Torres found a roll of money in the amount of $354 all in one pocket, not in defendant's wallet. ¶ 10 The parties stipulated to the laboratory evidence and the safekeeping and inventory procedures for the contraband, which proved positive for 0.1 gram of heroin. ¶ 11 The defense did not present any witnesses. ¶ 12 On appeal, defendant contends first that he was not proved guilty beyond a reasonable doubt because the State failed to prove that Kyser had obtained the heroin from him. He argues that Neals never identified Kyser as the buyer and that no drugs were found on his (defendant's) person. He argues further that there was no circumstantial evidence proving that Kyser had obtained the heroin from him, such as a description of the buyer, of Kyser, and of the buyer's car. He argues that the State also failed to prove whether the buyer was the driver of the car or a passenger in it, and where in relation to the transaction Kyser was detained. He maintains that the packaging of the drugs did not indicate that they were from him. ¶ 13 A criminal conviction will not be reversed on appeal unless the evidence, viewed in the light most favorable for the State, was so improbable as to create a reasonable doubt of guilt. See People v. Slim, 127 Ill. 2d 302, 307 (1989); People v. Smith, 299 Ill. App. 3d 1056, 1061 (1998). The question on appeal is whether, after viewing the evidence in the light most favorable for the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See People v. Cunningham, 212 Ill. 2d 274, 278 (2004); People v. Killingsworth, 314 Ill. App. 3d 506, 510 (2000); Smith, 299 Ill. App. 3d at 1061. ¶ 14 The credibility of the witnesses, the weight of the evidence, and the resolution of any conflicts in the evidence, are matters for the trial court to decide. Slim, 127 Ill. 2d at 307. When assessing evidence that can produce conflicting inferences, the fact finder is not required to look for all possible explanations consistent with innocence and elevate them to the level of reasonable doubt. People v. Digirolamo, 179 Ill. 2d 24, 45 (1997); see also People v. Slinkard, 362 Ill. App. 3d 855, 858 (2006) (State's evidence need not exclude every possible doubt). A court of review must not retry the defendant. Cunningham, 212 Ill. 2d at 279. "[A] reviewing court should bear in mind that the fact finder had the benefit of watching the witness' demeanor." Cunningham, 212 Ill. 2d at 284. ¶ 15 In this case, the trial court was entitled to find that the basic facts presented by the State were consistent and established that defendant delivered the heroin to Kyser. Neals identified defendant as the individual who had been involved in three transactions during daylight hours in which defendant tendered a small clear plastic bag of white substance to an individual in exchange for cash. Laboratory evidence established that the white substance was heroin. Neals radioed a description of the third buyer to the enforcement officers, as well as his direction of flight and a description of his vehicle. Carreno testified that he and his partner caught Kyser, who matched Neals' description of defendant's third customer and his direction of flight, two blocks from the third sale. Kyser possessed heroin at the time of his arrest, and defendant possessed $354 in cash and multiple cell phones. ¶ 16 Defendant argues that Neals never identified Kyser as one of defendant's customers, and that the State never introduced evidence of the descriptions of Kyser, the third customer, or the third customer's car, or whether the third customer was the driver or the passenger, but the customer's identity is not an element of the charge of delivery of a controlled substance. People v. Zambetta, 132 Ill. App. 3d 740, 749 (1985) ("[t]he material element of the offense is delivery, not the identity of the purchaser"). Moreover, the reasonable inference from the evidence is that Kyser was defendant's third customer. ¶ 17 Defendant also argues that Neals never testified that the bags bore a blue star logo. However, the trial court resolved the alleged discrepancy by observing that the logo appeared on only one side of the bags and that Neals could have seen the other side of the bags. Thus, it reasonably can be inferred that defendant delivered the heroin found in Kyser's possession. Viewing the evidence here as a whole and, as it must be, in a light most favorable to the State, we find that the evidence was sufficient to prove beyond a reasonable doubt that defendant delivered the heroin to Kyser. ¶ 18 Next, defendant alternatively contends that the trial court should have conducted an inquiry into his posttrial pro se allegations of ineffective assistance of counsel pursuant to People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). ¶ 19 Defendant's pro se posttrial motion alleged that defense counsel was ineffective for failing to challenge the admissibility of the evidence of Kyser's arrest, for failing to impeach Neals with inconsistent statements in the police records, for failing to challenge the safekeeping and police misuse of the money recovered from defendant in that the police subjected it to a canine sniff test, and for failing to investigate claims contained in Kyser's affidavit (which was not in the record), such as the claim that defendant did not engage in any criminal activity. ¶ 20 During posttrial proceedings, defense counsel informed the court that defendant did not want her services anymore and that he wanted the court to proceed on the above-described pro se posttrial motion, not the motion she (defense counsel) had filed. The court then admonished defendant as follows:
"All right. I strongly advise you, Mr. Greenlaw, not to proceed pro se, but if that is what you want to do. First of all, I'm going to get you a questionnaire you will have to fill out and then we will discuss the matter further. But is it your position at this time that you do not want to be represented any longer by [defense counsel]?"¶ 21 The court granted defense counsel's motion to withdraw, and informed defendant that he would have to fill out a form and submit it at the next court date. The case was recalled, and the court said that it was its understanding that defendant did not wish to proceed pro se after all. Defendant acknowledged that was the case and that he wanted the public defender to continue to represent him. The court asked defendant if he was withdrawing his pro se motion for a new trial, and defendant answered that he was. The court then granted defendant permission to withdraw the pro se motion for a new trial, reappointed the public defender to represent him, and denied the motion that counsel had filed for a new trial. ¶ 22 On appeal, defendant contends that the court should have conducted a Krankel inquiry into the allegations of ineffective assistance of counsel in his pro se posttrial motion. He argues that withdrawal of the motion was not knowing and voluntary and did not operate to waive the pro se allegations against defense counsel. He argues further that he did not understand that he did not have to proceed pro se to pursue his claims against defense counsel, but that the trial court erroneously gave him the impression that his only options were to withdraw the motion or give up his right to an attorney, and encouraged him to withdraw his motion by telling him not to proceed pro se. He maintains that he withdrew the motion because he did not wish to proceed pro se, and that he did not waive the error because the trial court encouraged him to withdraw the motion by misleading him into believing that his only options were to withdraw the motion or to proceed pro se. He suggests that the error could not be harmless because the record was not developed, and that the matter should be remanded for a Krankel inquiry. ¶ 23 The State responds that the court was under no obligation to make a sua sponte inquiry after defendant waived his claims by withdrawing his pro se motion. The State also responds that, pursuant to the doctrine of invited error, defendant's withdrawal of his Krankel motion should estop him from arguing that the trial court should have conducted a Krankel inquiry. The State maintains that there is no legal requirement that the defendant's withdrawal of a Krankel motion must be knowing and voluntary, and therefore it is of no legal significance that his impression from the trial court's remarks was that his only options were either to withdraw the motion or to proceed pro se. ¶ 24 Where a defendant makes a colorable pro se allegation that he received ineffective assistance of counsel, the court should appoint new counsel before holding a hearing on the allegation. Krankel, 102 Ill. 2d at 189. The trial court needs to inquire into the defendant's allegation, either by talking to defense counsel or defendant (People v. Moore, 207 Ill. 2d 68, 78 (2003)) or by relying on its knowledge of counsel's performance and the insufficiency of the allegations (People v. Milton, 354 Ill. App. 3d 283, 292 (2004)). If the trial court determines that the claim lacks merit or involves only trial strategy, the court is not required to appoint new counsel and can deny the motion. Moore, 207 Ill. 2d at 78; People v. Vargas, 409 Ill. App. 3d 790, 801 (2011). A Krankel inquiry is not required where the defendant's allegations concern only "unassailable" matters of trial strategy, such as which witnesses to call and which evidence to present. People v. Ward, 371 Ill. App. 3d 382, 433 (2007). The court needs to appoint new counsel only where there is possible neglect of the case. Moore, 207 Ill. 2d at 78. The issue on review is the adequacy of the Krankel inquiry made by the trial court (Moore, 207 Ill. 2d at 78), so we shall review the matter de novo (Moore, 207 Ill. 2d at 75; Vargas, 409 Ill. App. 3d at 801), but see People v. McCarter, 385 Ill. App. 3d 919, 941 (2008) (applying a more deferential standard of review for manifest error). ¶ 25 In People v, McGee, 345 Ill. App. 3d 693, 699 (2003), the defendant withdrew his pro se posttrial motion alleging ineffective assistance of private defense counsel. The court observed that the defendant's withdrawal of his motion "effectively prevented the trial court from any substantive review of his motion." Id.
"To permit a defendant to use the exact ruling or action procured in the trial court as a vehicle for reversal on appeal 'would offend all notions of fair play' [citation] and 'encourage defendants to become duplicitous' [citation]." People v. Harvey, 211 Ill. 2d 368, 385 (2004).¶ 26 Here, defendant withdrew his pro se motion and expressly informed the court that he wanted the public defender to continue to represent him. Thus, defendant was not seeking new counsel to represent him on the pro se motion. There was no pending allegation of ineffective assistance of counsel, and the trial court was not obligated to raise the issue sua sponte. People v. Gillespie, 276 Ill. App. 3d 495, 502 (1995); see also People v. Davis, 337 Ill. App. 3d 977, 988 (2003). We do not believe that the trial court misled defendant at all. Defendant cannot now complain of the trial court's failure to conduct a Krankel inquiry when he himself prevented the court from substantively reviewing his motion. See McGee, 345 Ill. App. 3d at 699. Defendant waived the alleged error and therefore is not entitled to appellate review of the matter. See People v. Allen, 409 Ill. App. 3d 1058, 1076-78 (2011) (Krankel issues presented in a pro se letter to the court but not personally presented to the trial court were waived or forfeited); People v. Zirko, 2012 IL App (1st) 092158, ¶¶ 72-73 (Krankel issues presented in a pro se motion but not personally presented to the trial court were forfeited; the court observed that there was contrary authority, including People v. Peacock, 359 Ill. App. 3d 326, 340 (2005), which was cited by defendant in the present case). Furthermore, the error, if any, was harmless, because defendant's pro se allegations concerned matters of trial tactics or strategy that do not warrant a Krankel inquiry (Ward, 371 Ill. App. 3d at 433)), the evidence against defendant was overwhelming, and he cannot show that the trial outcome would have changed if the court had considered any of his pro se allegations (see People v. Tolefree, 2011 IL App (1st) 100689, ¶¶ 23-24, 46). ¶ 27 Contrary to defendant's claim that Moore, 207 Ill. 2d at 73-74, 79-81, is controlling, Moore is distinguishable because the defendant there did not withdraw his pro se claim of ineffective assistance of counsel. We have considered, and rejected, all of defendant's arguments on appeal. ¶ 28 Finally, defendant alternatively contends that the $200 DNA fee must be vacated, that he must be credited $100 against the trauma center fund fine for presentence time in custody, and that his total fines, fees, and costs should be $470. (Defendant's opening brief indicated that the total should be $365, but the State responded that the total should be $470, and defendant agreed in his reply brief.) ¶ 29 The State agrees that the $200 DNA fee must be vacated. Defendant is currently registered in the DNA databank. Therefore, the $200 DNA analysis fee (730 ILCS 5/5-4-3(j) (West 2010)) should be vacated because it applies to defendants who are not currently registered in the DNA databank (People v. Marshall, 242 Ill. 2d 285, 301-02 (2011)). ¶ 30 The State also agrees that defendant should be credited $100 against the trauma center fund fine for time served. Pursuant to section 110-14(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West 2010)), and People v. Jones, 223 Ill. 2d 569, 595, 606 (2006), defendant is entitled to credit in the amount of $5 per day for each day of presentence incarceration toward the $100 trauma center fund fine that was imposed (see 730 ILCS 5/5-9-1.1(b) (West 2010)). See also People v. Chambers, 391 Ill. App. 3d 467, 469 (2009). ¶ 31 We therefore direct the clerk of the circuit court to amend the fines, fees, and costs order to reflect that the $200 DNA fee is vacated, to reflect a credit of $100 against the trauma center fund fine, and to reflect that the total amount in fines, fees, and costs was $470. See Illinois Supreme Court Rule 615(b)(4) (eff. Aug. 27, 1999). ¶ 32 For the foregoing reasons, the judgment of the circuit court is affirmed and the fines, fees, and costs order is ordered amended. ¶ 33 Affirmed as modified.