Opinion
1-23-2210
06-28-2024
IN THE INTEREST OF E.M., a minor Respondent-Appellant
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. 2021JD00417 Honorable Steven James Bernstein, Judge, presiding.
C.A. WALKER JUSTICE delivered the judgment of the court. Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment.
ORDER
C.A. WALKER JUSTICE.
¶ 1 Held: We affirm minor respondent's adjudication of delinquency for criminal sexual assault but vacate delinquency adjudications for aggravated sexual abuse and criminal sexual abuse as violations of the one-act one-crime doctrine. The circuit court did not abuse its discretion by admitting other-crimes evidence as the crimes had general similarities to the one charged, but the court erred by not conducting a preliminary Krankel inquiry where during the dispositional hearing the minor respondent and his mother mentioned respondent's mental health issues and diagnoses; the probation officer stated that minor's mental health condition was not highlighted during trial; and the court acknowledged that "there was no mention of this, and counsel failed to present evidence or bring a defense based on mental condition."
¶ 2 Respondent E.M. appeals the circuit court's adjudication of delinquency and dispositional order entered on November 6, 2023. On appeal, E.M. argues the circuit court erred when it (1) did not conduct a Krankel inquiry into his posttrial claims of mental health problems; (2) allowed the State to present other-crimes evidence as propensity evidence without conducting any meaningful analysis into the evidence's prejudicial effect; and (3) allowed multiple convictions against him in violation of "one-act, one-crime" principles. For the following reasons, we affirm minor respondent's adjudication of delinquency, but we remand to the circuit court for a preliminary Kankel inquiry concerning the ineffective assistance of council claim.
¶ 3 BACKGROUND
¶ 4 On April 3, 2021, the State filed a delinquency petition alleging that between November 23 and 24, 2019, E.M. committed three counts each of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2022)), aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(2)(ii) (West 2022)), and criminal sexual abuse (720 ILCS 5/11-1.50(c) (West 2022)). The petition also alleged in August 2020, E.M. committed intimidation (720 ILCS 5/12-6(a)(1) (West 2022)) and aggravated battery (720 ILCS 5/12-3.05(c) (West 2022)) against the same victim from November 2019.
¶ 5 On November 16, 2019, the victim, C.J., was 13 years old when she bought a vape from J.R., who was friends with E.M. After buying the vape, C.J. went with J.R. to E.M.'s house. When C.J. and J.R. arrived, they joined E.M. and a group of people to smoke marijuana and drink alcohol. During the time the group was at the house, J.R. asked everyone except C.J. and E.M. to leave to find a screwdriver so he could repair a video game controller. C.J. was sitting between J.R. and E.M. on the couch. After the rest of the group left, J.R. and E.M. began placing their hands on C.J., nearing her vagina. C.J. kept taking their hands off her, but J.R. and E.M. continued. C.J. then vomited, J.R. and E.M. stopped touching her, and drove her home.
J.R. is not a party to this appeal.
¶ 6 On November 23, 2019, J.R. texted C.J., asking to see her again. C.J. then went to E.M.'s house after J.R. reassured her that things would be okay. When C.J. arrived, there was a group of people smoking and drinking. C.J. was sitting with J.R. on the couch when several people, including E.M., went into the bathroom and invited her to come in. C.J. refused, angering E.M. C.J. then went into a bedroom with J.R., who pressured her into giving oral sex. After a minute together, E.M. joined C.J. and J.R. in the bedroom. C.J. jumped back and said "No," and "I don't really want this" as J.R. tried to calm her down. E.M. then began touching C.J.'s legs, reaching closer to her vagina. At the time, C.J.'s pants and underwear were removed. C.J. tried kicking E.M. away, yet J.R. held her down. E.M. inserted his finger into C.J.'s vagina and put his penis inside of her. J.R. put his penis into C.J.'s mouth while continuing to hold her down. Eventually, J.R. and E.M. stopped and drove C.J. home.
¶ 7 In August 2020, C.J. and her friend were walking down 95th Street and Roberts Road in Hickory Hills when she saw E.M. from a distance walking towards them. Once the two were next to each other, C.J. told her friend that E.M. was the one who raped her. E.M. got angry, called C.J. a "pill popper," said she would go to jail if she said something, and then smacked her in the face. In October 2020, C.J. attempted suicide and told the ambulance driver about the November 2019 incident because they were at E.M.'s house that evening. She then later told a social worker, who reported the incident to law enforcement.
¶ 8 At the probable cause hearing on April 3, 2021, E.M.'s counsel informed the circuit court that E.M. was released from the hospital shortly before the hearing and was diagnosed with psychosis. E.M.'s mother further noted his symptoms were "close to schizophrenia" and that he was beginning to take medications and go to therapy. Following this hearing, this case was transferred to another judge.
¶ 9 On May 22, 2023, the State filed a motion to admit evidence of E.M.'s prior crimes for propensity to commit sex offenses, pursuant to (725 ILCS 5/115-7.3 (West 2022)). The State sought to present witness testimony in two cases where E.M. was charged with aggravated criminal sexual abuse. In the first case, around January 15, 2020, the victim saw E.M. as she walked out of a high school women's bathroom. He then followed her through the hallway before going into the men's restroom and asking for her to follow. After she resisted, E.M. pulled her into the restroom and placed his hands over her vagina. E.M. then forced the victim's hand to touch his penis. A teacher walked into the restroom and saw both E.M. and the victim before escorting her out. In the second case, on September 25, 2020, the victim, who was 12 years old at the time, was walking through a park near her grandmother's home in Hickory Hills. E.M. touched the victim from behind and began asking her questions. When the victim started walking away, E.M. followed her and grabbed her hoodie, touching her buttocks. E.M. then placed his hands over the victim's breasts before pushing her against a wooden fence. The victim pushed E.M. away and eventually escaped to her grandmother's house, where she told her grandmother what happened. The State said it could not try the cases together because J.R. was a co-defendant in this case, but not the other two. The court granted the State's motion, and the victims in the two cases testified at trial.
¶ 10 On June 29, 2023, following the trial, the court found E.M. guilty of all eleven charges and remanded him to the Cook County Jail. At the sentencing hearing on August 24, 2023, the State requested the court defer sentencing until E.M.'s 21st birthday. E.M.'s probation officer highlighted the portion of her social investigative report, where his mother informed her that he was diagnosed with psychosis and schizophrenia. The probation officer said that E.M.'s mother stated that his mental health condition was not highlighted in court. E.M.'s counsel called his mother to testify in mitigation; she stated that E.M. was diagnosed with psychosis in 2021, and later diagnosed with schizophrenia. She also stated that at the time of the November 2019 and August 2020 incidents, he was undiagnosed, yet she noticed a significant change in his behavior that has improved since his diagnosis when he began taking medication.
¶ 11 The court stated that while it did not know what the ramifications of psychosis were, it did not believe that E.M. had a mental condition that compelled him to act as he did or precluded him from knowing he was doing something wrong. The court also noted that "there are certain methods by which a minor who is not guilty because of a mental condition can assert that at trial," but "no such [method] was brought." On November 6, 2023, which was E.M.'s 21st birthday, the court issued its sentencing order, which released E.M. from the Cook County Jail but required him to register as a sex offender. This appeal followed.
¶ 12 JURISDICTION
¶ 13 A sentencing order in a juvenile delinquency proceeding is a final order. See In re Justin L.V., 377 Ill.App.3d 1073, 1079 (2007). Appeals from final judgments in delinquent minor proceedings are governed by the rules applicable to criminal cases. Ill. S.Ct. R. 660(a) (eff. Oct. 1, 2001). The circuit court entered its sentencing order on November 6, 2023. Notices of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from. Ill. S.Ct. R. 606(b) (eff. July 1, 2017). E.M. filed his timely notice on November 21, 2023; therefore, this court has jurisdiction.
¶ 15 On appeal, E.M. first argues the circuit court erred by failing to conduct an adequate Krankel inquiry when it was informed of his mental health issues. E.M. notes at the sentencing hearing, the probation officer highlighted his mental health information in her social investigation report. The probation officer also said E.M.'s mother told her this information was not highlighted during proceedings. The court also mentioned that there was no mention of E.M.'s mental health information, explaining there are certain methods to assert such information, but no one did.
¶ 16 E.M. claims he alerted the court at the sentencing hearing that he was going through mental health problems during the incidents at issue through both his mother's testimony and the probation officer's report. But the circuit court did not conduct any inquiry as to why his counsel failed to present such evidence, even after acknowledging that his mental health was not mentioned during the case.
¶ 17 E.M. cites In re Jonathan T., 2022 IL 127222, ¶ 32, where the Illinois Supreme Court confirmed Krankel applies in delinquency proceedings. The Jonathan T. court found that statements the defendant made to his probation officer for inclusion in the social investigation report about how his lawyer did not talk to him were enough to trigger a Krankel inquiry. Id. ¶ 7, ¶ 54. E.M. compares this matter to In re Jonathan T. and claims his statements regarding his mental health were clear statements that his counsel was supposed to bring up in court but failed to do so.
¶ 18 In response, the State argues that E.M. never clearly raised the issue of his counsel's performance or alerted the circuit court that his counsel failed to do something they should have done. The State distinguishes this matter from Jonathan T., claiming E.M.'s statements regarding his mental health issues were not specific to his attorney's performance. The State notes that even if a court could have implied a Krankel claim from E.M.'s statements, that is not enough to require one.
¶ 19 Due Process and the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 et. seq. (West 2022)) require that juveniles in delinquency proceedings claiming ineffective assistance of counsel have a preliminary Krankel inquiry available to them. In re Jonathan T., 2022 IL 127222, ¶ 32. A pro se juvenile in a juvenile delinquency proceeding need do nothing more than make a clear claim of ineffective assistance of counsel to trigger a Krankel inquiry. Id., ¶¶ 54-56. Under Krankel, when a defendant makes a pro se claim of ineffective assistance of counsel after a trial, the court must conduct an inquiry into those claims and examine their underlying factual bases. People v. Moore, 207 Ill.2d 68, 77 (2003). The issue of whether the trial court properly conducted a preliminary Krankel inquiry is reviewed de novo. People v. Roddis, 2020 IL 124352, ¶ 33. A pro se defendant need only bring his claim to the court's attention and may raise the issue orally or through a letter or note to the court. People v. Jackson, 2020 IL 124112, ¶ 96 (2020). An express claim of ineffective assistance of counsel is all that is necessary to trigger a Krankel inquiry. People v. Ayers, 2017 IL 120071, ¶ 21 (2017). The Ayers court held that a bare allegation of "ineffective assistance of counsel" is sufficient to warrant a preliminary Krankel inquiry. People v. Downing, 2019 IL App (1st) 170329, ¶ 55.
¶ 20 Here, the record shows that E.M. mentioned his psychosis and schizophrenia three times: (1) at the probable cause hearing, (2) while speaking with the probation officer as they prepared the social investigative report (SIR), and (3) at the disposition hearing. E.M. did not mention his counsel, but the report of the probation officer stated that the mental health issue was not mentioned during trial, and the court acknowledged the issue by stating "there was no mention of this, and counsel failed to present evidence or bring a defense based on mental condition." Because the SIR, prepared by court services, shows that the minor respondent and his mother mentioned counsel not raising the issues of minor respondent's mental health during trial, the issue was before the court. The SIR "is prepared for the court, and the court is required to consider it." Jonathan T., 2022 IL 127222, ¶ 50. "A juvenile in juvenile delinquency proceeding need do nothing more than bring his pro se claim to the attention of the court." Id. ¶ 54. E. M's SIR brought the issue to the court's attention, and the court acknowledged that counsel failed to raise it. Because E.M.'s statements regarding his mental health and the court's acknowledgment of his counsel's failure to raise the issue, we find that the circuit court erred in failing to conduct any inquiry into the factual basis of E.M.'s claim.
¶ 21 Second, E.M. argues the trial court erred in allowing the State to present other-crimes evidence in the form of testimony from the victims of the other cases in which he was involved. He states the testimony from the victims was not factually similar to the case at issue, and the similarities referenced by the State were merely general similarities. E.M. instead asserts there were significant dissimilarities between this case and other-crimes evidence decreased its probative value. E.M. notes that the August 2019 incident occurred in an apartment bedroom compared to a high school bathroom or public park in the other cases. He also points out that the charged conduct differed in the August 2019 incident from the other cases and involved a codefendant in J.R. Moreover, E.M. claims that the court did not conduct a meaningful analysis of whether the prejudicial effect of the other-crimes evidence outweighed its probative value, citing People v. Johnson, 406 Ill.App.3d 805, 811-12 (2010).
¶ 22 In response, the State argues the circuit court properly admitted the other-crimes evidence as they have some threshold similarity with the crimes charged, citing People v. Donaho, 204 Ill.2d 159, 184 (2006). The state points out that the August 2019 incident and the other cases shared similarities including that E.M. selected pre-teens who were several years younger than him, prevented them from escaping him through physical restraint, and touched the victims in a sexual manner without their consent. The State claims the differences E.M. highlighted were subtle factual distinctions and do not negate the similarities of the offenses. Yet, even if the differences between these cases lessen the probative value of the evidence, the State argues that its value is still not outweighed by any prejudicial effect.
¶ 23 Under section 115-7.3 of the Code of Criminal Procedure, if a defendant is accused of crimes such as criminal sexual assault, aggravated criminal sexual assault, or criminal sexual abuse, evidence of their prior commission may be admissible, so long as that evidence is otherwise admissible under the rules of evidence. 725 ILCS 5/115-7.3(b). In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider (1) the proximity of time to the charged or predicate offense, (2) the degree of factual similarity between them, or (3) other relevant facts and circumstances. Id. § 115-7.3(c). The issue of whether the circuit court properly admitted other-crimes evidence under the statute is reviewed for an abuse of discretion. People v. Donoho, 204 Ill.2d 159, 182 (2003). An abuse of discretion occurs where the circuit court's decision is arbitrary, unreasonable, or fanciful, or where no reasonable person would have taken the position adopted by the circuit court. People v. Heineman, 2023 IL 127854, ¶ 59.
¶ 24 When considering the degree of similarity under 115-7.3(c)(2), other-crimes evidence must have "some threshold similarity to the crime charged." Donoho, 204 Ill.2d at 184. As similarities increase, so does the relevance, or probative value, or the evidence. Id. Where such evidence is not being offered under the modus operandi exception, "mere general areas of similarity will suffice" to support admissibility. Id.
¶ 25 Here, the State sought to admit the testimony of the victims in the other cases to show propensity. The testimony shows similarities to the August 2019 incident, including the ages of the victims in relation to E.M. and his usage of physical restraint to prevent them from escaping. Even if these similarities are merely general similarities, those similarities suffice as other-crimes evidence. Donoho, 204 Ill.2d at 184. While E.M. correctly notes the differences between the August 2019 incident and the other two cases, the fact remains that all three of these cases involved him forcibly restraining a minor as he touched them without their consent. The existence of some differences between the prior offense and the current charge does not defeat admissibility because no two independent crimes are identical. Id. at 185.
¶ 26 E.M. relies on Johnson to argue that the significant dissimilarities in these three cases, combined with a lack of a meaningful review, led to the court committing an error. In Johnson, after the victim was threatened in an alley and forced to give oral sex to the defendant, the State sought to allow testimony from a victim of a prior sexual assault committed by the defendant in an alley. Johnson, 406 Ill.App.3d at 806, 808-09. But the defendant in the prior assault worked with a co-defendant who forced cocaine and alcohol on her. Id. at 811. The Johnson court concluded that considering these two dissimilarities, along with a failure to do a meaningful analysis, the circuit court erred in admitting the testimony from the prior assault. Id. at 812. Here, however, while the prior acts did not involve a co-defendant, we do not find that this dissimilarity is enough by itself to disqualify the other-crimes evidence in light of the general similarities allowed by Donoho. See People v. Williams, 2013 IL App (1st) 112583 (affirming the trial court's admission of other-crimes evidence where the prior crime only contained minor factual dissimilarities). Here, the circuit court did not abuse its discretion by admitting the other-crimes evidence.
¶ 27 Finally, the parties agree that under the "one-act, one-crime" rule, the court should vacate E.M.'s convictions for aggravated criminal sexual abuse and criminal sexual abuse as they are based on the same conduct that resulted in his separate convictions for criminal sexual assault. Under the "one-act, one-crime" rule, a defendant may not be convicted of multiple offenses based on the same physical act. People v. Artis, 232 Ill.2d 156, 168 (2009). The "one-act, one-crime" rule applies to juvenile proceedings. In re Samantha V., 234 Ill.2d 359, 375 (2009). When a defendant is convicted in violation of the "one-act, one-crime" rule, the appellate court should vacate the conviction for the less serious crime. Artis, 232 Ill.2d at 170. In determining which offense is more serious, a reviewing court compares the plain language of the relative punishments prescribed by the legislature for each offense, with common sense dictating that the General Assembly would mandate greater punishments for offenses it deems more serious. Id.
¶ 28 Here, the State charged E.M. with three counts of criminal sexual assault, three counts of aggravated criminal sexual abuse, and criminal sexual abuse. Criminal sexual assault is a Class 1 felony (720 ILCS 5/11-1.20(b)(1) (West 2022)) with a possible sentence of 4 to 15 years' imprisonment (730 ILCS 5/5-4.5-30(a) (West 2022)). Aggravated criminal sexual abuse is a Class 2 Felony (720 ILCS 5/11-1.60(a)(1) (West 2022)) with a possible sentence of 3 to 7 years' imprisonment (730 ILCS 5/5-4.5-35(a) (West 2022)). Criminal sexual abuse is a Class A misdemeanor (720 ILCS 5/11-1.50(d) (West 2022)) with a possible sentence of less than a year (730 ILCS 5/5-4.5-55(a) (West 2022)). Reviewing the plain language of the statutes, E.M.'s convictions of criminal sexual assault are the most serious offenses and should stand.
¶ 29 CONCLUSION
¶ 30 We affirm the order of the circuit court adjudicating E.M. delinquent of criminal sexual assault. E.M.'s delinquency adjudications of aggravated sexual abuse (counts four, five, and six) and criminal sexual abuse (counts seven, eight, and nine) are vacated, and we remand to the circuit court with directions to conduct a preliminary Krankel inquiry into E.M.s ineffective assistance of counsel claim.
¶ 31 Affirmed in part, vacated in part and remanded for further proceedings as indicated.