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People v. Myles

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIFTH DIVISION
May 17, 2013
2013 Ill. App. 111467 (Ill. App. Ct. 2013)

Opinion

No. 1-11-1467

05-17-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE MYLES, 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. 09 C5 50429


Honorable

Colleen Ann Hyland,

Judge Presiding.

PRESIDING JUSTICE delivered the judgment of the court.

Justices Palmer and Taylor concurred in the judgment.

ORDER

¶ 1 Held: Denial of defendant's pro se motion alleging ineffective assistance of counsel and requesting appointment of new counsel was not manifestly erroneous; sentencing issue forfeited; judgment affirmed. ¶ 2 Following a jury trial, defendant Eddie Myles was convicted of robbery of a person over the age of 60 and sentenced to 20 years' imprisonment. On appeal, defendant contends that the trial court erred in failing to appoint counsel to represent him on his pro se post-trial motion alleging ineffective assistance of trial counsel, and also failed to conduct an adequate Krankel inquiry into his pro se allegations. He also maintains that his sentence was excessive. ¶ 3 At trial, the 67-year-old victim, Maryanne Koll, testified that on the evening of July 23, 2009, she went to the Jewel grocery store at 5545 South Brainard Avenue in Countryside to purchase some produce and withdraw money at the bank located there. After completing her withdrawal, Koll placed the money in a white envelope inside her open purse in the child-seat section of the grocery cart. As she was leaving the store, defendant bumped into her left shoulder, and she saw him remove her money envelope from her purse. She yelled out, "give me back my money," and "[h]elp. I am being robbed." Defendant fled, throwing her money envelope on the street. Koll did not notice if defendant had an art portfolio or anything else in his hand, but identified him as the offender 10 minutes after he was apprehended by police. ¶ 4 Sheila LaRoche testified that she witnessed the robbery and pursued defendant while calling police. As she did so, she asked several men along the way to stop defendant. They closed in on defendant, who went down on one knee, placed his hands up, and said, "I give." Police arrived and took defendant into custody. LaRoche did not notice a portfolio or a plastic bag in defendant's hands. ¶ 5 Countryside police officer Paul Klimek testified that when he took defendant into custody, he noticed that defendant had drawings with him, including one of Michael Jackson, but did not recall if defendant had a Jewel bag with him. The officer also did not recall if he brought medicine to defendant's wife after placing him in custody. ¶ 6 Defendant acknowledged that he had prior convictions for theft and driving under the influence, then testified that on the date in question, he went to the Jewel store to pick up his wife's medication. He had his art portfolio with him which contained 56 pictures that were 11 by 17 inches in size. Defendant explained that the portfolio itself was a "little bit wider" than his pictures. Defendant further testified that after he picked up and paid for his wife's medication, he purchased some apple turnovers at the self-checkout. As he exited the store, he was not watching where he was walking and bumped into the victim. He apologized, and bent down to pick up some papers and an envelope that she had dropped, but the victim screamed that he had robbed her. Defendant denied pushing the victim, and reaching into her bag and pulling out an envelope. He stated that the whole incident was blown out of proportion, and that he was afraid he would end up in a squad car because he was a black man in a white community. ¶ 7 Defendant further stated that after his encounter with the victim, he walked away without running or walking fast and without the envelope. As he was walking, LaRouche ran past him and told three men nearby to stop him because he had robbed someone. Defendant stopped, and asked, "[w]hat are you talking about?" She told him he knew what happened, and that police were on their way. Defendant denied going down on one knee, and stating, "I give," and waited in the area because the police had been called. Defendant further testified that after Officer Klimek placed him in custody, he asked the officer to bring the medication he had purchased to his wife, and the officer brought the medication to his wife at his home. ¶ 8 In closing argument, defense counsel pointed out the circumstances of the case where defendant and the alleged victim were in the Jewel store at the same time for legitimate purposes, and where the inadvertent contact was made. Counsel then noted the inconsistences in the testimony where LaRoche testified that defendant had nothing in his hands, but the officer testified that defendant had his drawings with him, and that defendant testified that he had his art portfolio, the apple turnovers, and his wife's medication with him. Counsel also recalled defendant's innocent portrayal of the events which then got out of hand. ¶ 9 The jury, however, found defendant guilty of robbery, and he then filed several pro se motions, including one titled, "Motion for Ineffective Assistance of Counsel." In this motion, defendant alleged, in relevant part, that his attorneys said they had the Jewel receipt and the police inventoried drawing pad, which was 24 by 24 inches in size, and which they were going to show to the jury during closing arguments. Defendant also claimed that when he confronted counsel during a break in the trial, and asked to see his drawings and receipt, his counsel informed him that he had subpoenaed the Jewel grocery store, but they did not have a receipt for July 23, 2009. Because counsel did not have these items in court, defendant maintained that they lied to him. Defendant further maintained that if the jury had been shown the drawing pad and receipt, they would know that the victim and LaRouche were lying because they testified that he did not have anything in his hands. He also claimed that if he knew that the drawing pad and receipt were not in court, he would have asked for a continuance rather than going to trial. ¶ 10 At the proceeding on his pro se motion alleging ineffective assistance of counsel, the court asked defendant if he had anything to add to his motion. Defendant responded that his attorneys mislead him into believing that they had his art portfolio and the Jewel receipt in court with them, but if he knew that they did not, he would not have proceeded to a jury trial. The court noted that the jury heard evidence from defendant and the officer that he had his drawing portfolio with him. The court also noted that defendant indicated in his motion that he had confronted his counsel regarding the receipt and was told that counsel subpoenaed the Jewel, but the grocery store was unable to produce the receipt in question. The court further noted defendant's testimony that he had purchased medication at the Jewel and the officer's testimony that he may have delivered the medication to defendant's wife. Defendant responded, however, that, "[w]hen we are talking about evidence to show a jury evidence is one thing; to talk about it is something else." ¶ 11 Defendant then stated that a security guard was present at Jewel, but that his attorneys failed to present him. The court noted that defendant had not included this argument in his petition, but allowed him to argue it. Defendant maintained that the security guard should have been presented to explain why there was no videotape when the incident was allegedly caught on tape. The court responded that no one testified that the incident was caught on tape. ¶ 12 Defendant then argued at length his attorneys' failure to impeach the State's eyewitnesses, but the court responded that defense counsel had thoroughly questioned the witnesses. Defendant further complained that he had an inventory receipt for his drawing portfolio, and that his counsel should have used it to obtain the portfolio from the Countryside police station. He maintained that his art portfolio is too big for someone to claim they did not see anything in his hands, and that what LaRouche said on the stand was completely different from what she told police. ¶ 13 Defense counsel responded that LaRouche's statements were consistent, and there was nothing generated from her testimony to contradict. Counsel explained that since the medication was paid for in cash, he could not retrieve a receipt for it from Jewel. Counsel also stated that he sent a subpoena to the Jewel for prescriptions filled on July 23, 2009, but there was no record of the prescription in question. Counsel further stated that his investigator went to the Jewel and learned that there was no tape of the incident and that no security guard witnessed it. ¶ 14 The court subsequently denied defendant's motion finding that he failed to raise any meritorious claims, and that the issues he raised were related directly to his attorneys' trial strategy. The court noted that it had the opportunity to observe the attorneys at trial, and found that they were well prepared, diligent, and possessed excellent trial skills. The court further noted that the evidence of the art portfolio was introduced through the testimony of the officer and defendant, that the jury had an opportunity to hear that evidence, and counsel presented argument on it during closing argument. ¶ 15 At the sentencing hearing, the State presented evidence in aggravation. The State noted that defendant had prior convictions for armed robbery of two senior citizens for which he was sentenced to 13 years' imprisonment, and a second degree murder conviction for which he was sentenced to 25 years' imprisonment. The State asserted that every time defendant leaves prison, he commits another violent act, and thus a substantial sentence was necessary to protect society from defendant who has repeatedly shown disrespect for the law and private citizens. ¶ 16 Defendant presented evidence in mitigation, including the live testimony of Ruth Adair, a staff chaplain at the Cook County Department of Corrections, who testified that defendant is now peaceful and humble, has taught Bible class and helped direct a prison choir. Counsel then noted that the second degree murder conviction was a reduced conviction from first degree murder, and since that incident, defendant has "done things to better himself." Counsel further noted that defendant did not attempt to flee from police, and did not hurt the victim in the instant case. ¶ 17 Defendant exercised his right to allocution. He apologized for disrupting the victim's life, then stated that his decision to use alcohol and drugs led to his criminal history. He also stated his belief that prison does not rehabilitate one, and that the system itself made him a victim. Defendant asked the court to consider that he was 59 years old, the life he had to live, his drug and alcohol use, and the changes he has made since the incident. Defendant finally stated that he felt that his attorneys helped convict him, and that the victim said he took an envelope from her, but that the envelope was returned to her and he never left with it. ¶ 18 In announcing its sentencing determination, the court stated that it had considered defendant's statement, the State's evidence, and the mitigation evidence presented by counsel, as well as the live witness testimony, and the arguments of the parties. The court noted that it considered the presentence investigation (PSI) report, which sets out the mitigation evidence, but also shows that defendant is a career criminal who continues to "prey on people who are an easy target." The court noted that, in addition to his second degree murder and armed robbery convictions, defendant had convictions for driving under the influence and theft, that he was a gang leader for a period of time, and that it keeps hearing excuses from defendant and reasons to blame everyone, but himself, for his actions. Based on these factors, the court sentenced him as a Class X offender to a term of 20 years' imprisonment. Defendant filed a motion to reconsider that sentence alleging that his sentence was excessive, but the court denied the motion. ¶ 19 On appeal, defendant contends that the trial court erred in failing to appoint counsel to represent him on his pro se post-trial motion alleging ineffective assistance of trial counsel. Defendant requests this court to vacate his sentence and remand his cause for the appointment of counsel to represent him on this motion. He argues, "alternatively," that the matter should be remanded for a more thorough Krankel hearing because the inquiry conducted by the court was inadequate. ¶ 20 New counsel is not automatically required in every case where defendant brings a pro se motion alleging ineffective assistance of trial counsel. People v. Taylor, 237 Ill. 2d 68, 75 (2010). When a defendant presents a pro se post-trial claim of ineffective assistance of counsel, the trial court should first examine the factual basis for defendant's claim, i.e., conduct a Krankel hearing. Taylor, 237 Ill. 2d at 75. If the court determines that the claim lacks merit or pertains only to matters of trial strategy, new counsel need not be appointed and the court may deny the pro se motion. People v. Chapman, 194 Ill. 2d 186, 230 (2000). If, however, the pro se allegations show possible neglect of the case, new counsel should be appointed. Taylor, 237 Ill. 2d at 75. The operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the pro se allegations of ineffective assistance of counsel (People v. Moore, 207 Ill. 2d 68, 78 (2003)); and, in this case, where the trial court made a determination on the merits of defendant's claim, we review the conduct of the trial court under the manifestly erroneous standard (People v. Walker, 2011 IL App (1st) 072889-B, ¶33; People v. Dixon, 366 Ill. App. 3d 848, 852 (2006); People v. Young, 341 Ill. App. 3d 379, 382 (2003)). ¶ 21 As set forth above, defendant filed a pro se motion alleging that his trial counsel was ineffective for misleading him to believe that his Jewel receipt and art portfolio would be presented to the jury, and that if he knew counsel had lied about having the portfolio and did not intend to present it, he would have requested a continuance and not proceeded to the jury trial. The trial court conducted a Krankel hearing into defendant's claims and explored matters alleged by defendant in his motion, and over another issue that was not raised in his petition, i.e., the security guard and video recording issue. Defendant argued that the art portfolio and Jewel receipt were important to his defense, and that his attorneys failed to impeach the State's witnesses. The court noted that evidence regarding the art portfolio and the purchase of the medication at Jewel was produced in court through testimonial evidence, and that defense counsel thoroughly cross-examined the witnesses. Defense counsel also explained that he subpoenaed the Jewel for the receipt for the prescription allegedly filled on July 23, 2009, but Jewel was unable to produce any such evidence. The court also noted that defendant acknowledged in his motion that his counsel had subpoenaed the Jewel for this receipt. The record thus shows that the trial court conducted a significant inquiry into the matters raised by defendant in his petition, found that they were not meritorious, and that they were related to trial strategy, then denied defendant's motion. We cannot say that this decision was manifestly erroneous where the court conducted more than an adequate inquiry into defendant's allegations, reviewed them in light of the record, gave him an opportunity to argue, explain and support his allegations, and also gave counsel an opportunity to respond. Walker, ¶33; People v. McKinney, 2011 IL App (1st) 100317, ¶47; see also Moore, 207 Ill. 2d at 78 (a brief discussion with defendant may be sufficient). ¶ 22 Defendant nonetheless claims that his allegation of ineffective assistance of counsel showed the possibility of neglect because if the art portfolio was shown in court along with the inventory record of it, this evidence would have impeached and undermined the credibility of the State's eyewitnesses. We disagree. ¶ 23 Defendant and the arresting officer presented testimonial evidence that he was carrying such an item, and counsel focused on this evidence during closing argument to contradict the eyewitness testimony otherwise, and to challenge their credibility. Under these circumstances, production of the art portfolio would merely have been cumulative to the testimonial evidence presented to the jury, and thus, defendant's claim that counsel was ineffective for failing to produce it fails for lack of prejudice. People v. Hayes, 2011 IL App (1st) 100127, ¶42. Moreover, the decision to present certain evidence to the jury is a matter of trial strategy, and thus, defendant's claim regarding the portfolio could have been dismissed without any further inquiry. People v. Ward, 371 Ill. App. 3d 382, 433 (2007). ¶ 24 Finally, whether or not defendant was caring the portfolio at the time of the robbery does not negate his guilt of the robbery, and the photographs of various art portfolios included in his reply brief, which were not filed as part of the record on appeal, may not be considered. People v. Gacho, 122 Ill. 2d 221, 254 (1988). ¶ 25 Defendant next contends that his sentence was excessive in light of the nature of the offense, his age and social history, his post-arrest progress and remorse, and the current overcrowding problem in Illinois prisons. He further maintains that the court failed to acknowledge and overlooked a number of mitigating factors in imposing the 20-year sentence against him. The State responds that defendant waived this issue because he did not object at the time of sentencing. ¶ 26 To preserve a sentencing issue for review, defendant must make a contemporaneous objection at the sentencing hearing and raise the issue in his post-sentencing motion. People v. Hall, 194 Ill. 2d 305, 352 (2000). Here, although defendant raised the issue in his motion to reconsider sentence, he failed to make a contemporaneous objection at the sentencing hearing. As a consequence, we may review this claim of error only if defendant has established plain error. (Emphasis added.) People v. Hillier, 237 Ill. 2d 539, 545 (2010). Defendant has failed to present any argument on how either of the two prongs of plain error doctrine is satisfied, and his mere statement in his reply brief that there was plain error because the allegedly excessive sentence affected his "substantive" rights is insufficient to warrant plain error review. See, e.g., People v. Rathbone, 345 Ill. App. 3d 305, 311 (2003). Since defendant has not attempted to meet his burden, his claim is forfeited. Hillier, 237 Ill. 2d at 545-47. Moreover, our examination of the record has shown no clear and obvious error that would warrant disturbing the court's discretion where it shows that the court considered the mitigating factors and weighed these factors with the statutory factors in aggravation and defendant's considerable criminal history and concluded that a term of 20 years' imprisonment was required. ¶ 27 In light of the foregoing, we affirm the judgment of the circuit court of Cook County. ¶ 28 Affirmed.


Summaries of

People v. Myles

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIFTH DIVISION
May 17, 2013
2013 Ill. App. 111467 (Ill. App. Ct. 2013)
Case details for

People v. Myles

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE MYLES…

Court:APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIFTH DIVISION

Date published: May 17, 2013

Citations

2013 Ill. App. 111467 (Ill. App. Ct. 2013)