                                          NO. 4-08-0120                       Opinion Filed 6/30/11

                                   IN THE APPELLATE COURT

                                            OF ILLINOIS

                                        FOURTH DISTRICT

      THE PEOPLE OF THE STATE OF ILLINOIS,     )   Appeal from
           Plaintiff-Appellee,                 )   Circuit Court of
           v.                                  )   Champaign County
      CRAIG J. BLANTON,                        )   No. 07CF488
           Defendant-Appellant.                )
                                               )   Honorable
                                               )   Harry E. Clem,
                                               )   Judge Presiding.
______________________________________________________________________________

               JUSTICE APPLETON delivered the judgment of the court, with opinion.
               Presiding Justice Knecht and Justice McCullough concurred in the judgment and
opinion.

                                              OPINION

               In December 2007, a jury found defendant, Craig J. Blanton, guilty of armed robbery

(720 ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)).

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 on his armed-robbery conviction.

Defendant appealed, arguing (1) the 25-year sentence violated the proportionate-penalties clause of

the Illinois Constitution (Ill. Const. 1970, art. I, § 11), (2) the court failed to comply with Illinois

Supreme Court Rule 431(b) (eff. May 1, 2007), and (3) the court improperly considered the class of

the victim as a college student as an aggravating sentencing factor.

               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 (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, ___ Ill. App. 3d at ____ (quoting

People v. Hall, 194 Ill. 2d 305, 335 (2000)), reh'g granted (July 17, 2009).

               One day later, on June 18, 2009, the supreme court issued its decision in People v.

Glasper, 234 Ill. 2d 173 (2009). The Glasper case involved the former version of Rule 431(b),

which required inquiry into the principles articulated by People v. Zehr, 103 Ill. 2d 472, 477 (1984),

only upon the defendant's request. Glasper, 234 Ill. 2d at 189. In Glasper, the supreme court held

that a harmless-error analysis applied to the trial court's error in refusing, upon defense counsel's

request, to ask the potential jurors whether they understood and accepted the principle that the

defendant's exercise of his right not to testify could not be held against him. Glasper, 234 Ill. 2d at

189. Applying that analysis, the supreme court found that the evidence of the defendant's guilt was

overwhelming and that the error was harmless. Glasper, 234 Ill. 2d at 202.

               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

(November 10, 2009).

               In January 2011, the supreme court issued a supervisory order (People v. Blanton, 239

Ill. 2d 558 (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.


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Thompson, 238 Ill. 2d 598 (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.

                                        I. BACKGROUND

               In March 2007, the State charged defendant by information with armed robbery (720

ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). Each

count included the element that defendant was armed with a firearm during the commission of the

offense. In April 2007, the grand jury returned a true bill on both counts. The charges stemmed

from the following facts. The victim, a University of Illinois student, was approached from behind

by two males as she stood at her apartment door trying to enter. One man held a gun to her head and

both demanded her money. She described both as wearing baggy pants with white shoes, hoods, and

shirts covering their faces up to their eyes. One of the suspects wore light blue shoelaces in his

shoes. They took her keys and two cellular telephones and fled. A witness approaching the same

apartment complex saw two black men running away from the building. She described the men's

clothing as the victim had. Defendant was arrested a few blocks away from the scene, wearing white

shoes with light blue shoelaces.

               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


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evidence unless he chose to do so. With each panel of venirepersons seated in the jury box, the court

either (1) again (a) explained the principles that the State bore the burden of proof beyond a

reasonable doubt, defendant was presumed innocent, and defendant did not have to present any

evidence unless he chose to do so, or (b) stated that the venire had previously heard several legal

propositions explained during the voir dire; and (2) asked each panel of venirepersons whether he

or she understood and supported those principles. Each venireperson ultimately selected as a juror

answered "yes."

                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."

                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


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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.

               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 720 ILCS 5/18-2(b) (West 2006).

               This appeal followed.

                                              II. ANALYSIS

                         A. Compliance With Supreme Court Rule 431(b)

               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) any shortcomings in the conduct of voir

dire should be deemed harmless.

               By not objecting during the trial court proceedings or preserving the issue for review


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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 (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 (2007). We

review the issue of compliance with a supreme court rule de novo. People v. Garner, 347 Ill. App.

3d 578, 583 (2004) (involving compliance with Rule 605(a) (Ill. S. Ct. R. 605(a) (eff. Oct. 1,

2001))).

                Rule 431(b) was adopted in 1997 to ensure compliance with Zehr. Ill. S. Ct. R.

431(b), Committee Comments (eff. May 1, 1997). See Glasper, 234 Ill. 2d at 187. The Zehr court

held that "essential to the qualification of jurors in a criminal case is that they know that a defendant

is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must

be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot

be held against him." Zehr, 103 Ill. 2d at 477. As originally enacted, Rule 431(b) provided that the

trial court was not obligated to ask potential jurors whether they understood and accepted the Zehr

principles absent a request from defense counsel. See Glasper, 234 Ill. 2d at 187.

                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 (2008). That is, such questioning was no

longer dependent upon a request by defense counsel. Gilbert, 379 Ill. App. 3d at 110. Rule 431(b)

currently provides as follows:

                        "The court shall ask each potential juror, individually or in a


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               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]. 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).

               In this case, the trial court advised and appropriately questioned each venireperson

regarding the first three Zehr principles, allowing each an opportunity to respond. However, the

court never mentioned the fourth Zehr principle--that defendant's failure to testify could not be held


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against him. As a result, the court in this case did not follow the mandate of Rule 431(b), and this

failure to comply was error.

               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.

               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 (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

(2000).

               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. 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. 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. 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.

               Defendant in this case has offered no evidence of bias. He claims only that the jury


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may have been biased. However, pursuant to Thompson, such speculation is neither sufficient nor

determinative. See Thompson, 238 Ill. 2d at 614. 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.

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.

                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. 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, the evidence at trial clearly established defendant's guilt. Within minutes of

the robbery, defendant, who fit the description of one of the suspects in terms of build, height, and

clothing, was caught near the scene. He was identified by two witnesses as one of the assailants.

Defendant was wearing white sneakers with light blue shoelaces, just as those described by the

witnesses. Defendant's DNA was found on a mask, which was lying on the ground near a gun, a

sweatshirt, and the victim's cellular telephone in the path defendant had just walked. Defendant had

changed directions when he spotted the police.

                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


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431(b) error is not reversible under the first prong of the plain-error doctrine either.

                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.

                                  B. Proportionate-Penalties Clause

                Defendant also claims his 25-year sentence violates the proportionate-penalties clause

(Ill. Const. 1970, art. I, § 11) when compared with the potential sentence for the identical offense

of armed violence predicated on robbery, due to the imposition of the mandatory 15-year

enhancement for the use of a firearm during the commission of the armed robbery. See 720 ILCS

5/18-2(b) (West 2006) (a violation of armed robbery while carrying a firearm is a Class X felony for

which 15 years shall be added to the term of imprisonment). Defendant committed the offense in

March 2007 and therefore, he was presumably sentenced pursuant to the 2006 version of the statute

set forth above. (In 2007, the armed-violence statute was revised in an apparent attempt to remedy

the unconstitutionality of the sentencing scheme.) As defendant correctly notes, the supreme court's

decision in People v. Hauschild, 226 Ill. 2d 63, 88 (2007), is dispositive and requires that defendant's

25-year sentence be vacated.

                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 (2010) ("Unless and until our supreme court

modifies its decision in Hauschild, we are bound to follow it.").

                In Hauschild, the defendant was convicted of armed robbery while armed with a


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firearm. Hauschild, 226 Ill. 2d at 85-86. 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. The supreme court agreed.

Hauschild, 226 Ill. 2d at 86-87 . After the mandatory 15-year enhancement, the range of sentencing

for armed robbery with a firearm was 21 to 45 years. See 720 ILCS 5/18-2(a)(2), (b) (West 2006).

The range of sentencing for armed violence predicated on robbery with a category I or category II

weapon was 10 to 30 years. See 720 ILCS 5/33A-3(a), (a-5) (West 2000); 730 ILCS 5/5-8-1(a)(3)

(West 2000) (unless otherwise specified by statute, not less than 6 nor more than 30 years in prison).

The court held that the "defendant's sentence for armed robbery while armed with a firearm (720

ILCS 5/18-2(b) (West 2000)) violates the proportionate-penalties clause because the penalty for that

offense is more severe than the penalty for the identical offense of armed violence predicated on

robbery with a category I or category II weapon (720 ILCS 5/33A-3(a), (a-5) (West 2000))."

Hauschild, 226 Ill. 2d at 86-87. The court determined that the appropriate remedy was "to remand

for resentencing in accordance with the statute as it existed prior to the amendment." Hauschild, 226

Ill. 2d at 88-89.

                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.

                    C. Consideration of Class of Victim as Aggravating Factor

                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


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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 (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).

                                         III. CONCLUSION

               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.

               Affirmed in part and vacated in part; cause remanded with directions.




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