                                                                                      FILED
                                                                                     August 4, 2016
                                    2016 IL App (4th) 140486                          Carla Bender
                                                                                  4th District Appellate
                                NOS. 4-14-0486, 4-14-0487 cons.                         Court, IL

                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                           )    Appeal from
             Plaintiff-Appellee,                               )    Circuit Court of
            v.                                                 )    Livingston County
KARL J. FELLERS,                                               )    Nos. 13DT2
            Defendant-Appellant.                               )         13CM25
                                                               )
                                                               )    Honorable
                                                               )    Mark A. Fellheimer,
                                                               )    Judge Presiding.


               JUSTICE TURNER delivered the judgment of the court, with opinion.
               Justices Harris and Pope concurred in the judgment and opinion.

                                            OPINION

¶1             In February 2014, the trial court found defendant, Karl J. Fellers, guilty of four

counts of driving under the influence (DUI) and one count of unlawful possession of cannabis.

In May 2014, the court sentenced him to 24 months' probation and 180 days in jail for the DUI

convictions and 30 days in jail for the cannabis conviction.

¶2             On appeal, defendant argues he was deprived of the effective assistance of

counsel at trial. We affirm in part and remand with directions.

¶3                                     I. BACKGROUND

¶4                                     A. Case No. 13-DT-2

¶5             In January 2013, defendant was charged via a citation and complaint in case No.

13-DT-2 with two counts of DUI (counts I and II) (625 ILCS 5/11-501(a)(1), (a)(2) (West
2012)). In September 2013, the State filed a supplemental complaint, charging defendant with

two counts of driving with cannabis (count III) and heroin (count IV) in his blood, breath, or

urine (625 ILCS 5/11-501(a)(6) (West 2012)).

¶6                                    B. Case No. 13-CM-25

¶7             In January 2013, the State charged defendant in case No. 13-CM-25 with one

count of obstructing a peace officer (720 ILCS 5/31-1(a) (West 2012)), alleging he knowingly

obstructed the performance of Pontiac police officer Markus Armstrong while performing an

authorized act within his official capacity and knowing him to be a peace officer engaged in the

execution of his official duties in that he refused to obey commands to stop and ran from the

police. The State also charged defendant with one count of unlawful possession of cannabis (720

ILCS 550/4(a) (West 2012)), alleging he knowingly possessed not more than 2.5 grams of a

substance containing cannabis.

¶8                                       C. Bench Trial

¶9             In November 2013, the trial court conducted a bench trial in both cases. Jesse

Sechrest testified he was driving home from work in his silver Jeep at approximately 12:30 a.m.

on December 29, 2012. He observed a Chevrolet Malibu in front of him that "was swerving

back and forth." Sechrest called the police.

¶ 10           Lalena Heidenreich testified she lived in a house with two apartments on

December 29, 2012. At approximately 12:30 or 1 a.m., she "heard somebody go running up the

front stairs." She also heard "some shouting" and saw police officers outside the house.

¶ 11           Pontiac police officer Marcus Armstrong testified he was in his marked squad car

in the early morning hours of December 29, 2012. He observed a Chevrolet Malibu followed by

a silver Jeep. Armstrong turned around and "attempted to catch up to the vehicle." The vehicle



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proceeded on Howard Street, turned onto Chicago Street, then turned west on another street

before ultimately ending up at 804 North Main Street. Armstrong stated the vehicle "stopped

very abruptly," such that it "was skidding through the gravel when it came to a stop." Armstrong

saw a white male with dark hair wearing blue jeans and a black T-shirt over a gray long-sleeved

shirt. The person looked back at Armstrong, reached into the vehicle, grabbed a duffel bag or

jacket, closed the door, and ran inside the house at 804 North Main Street. Armstrong yelled,

"police, stop," out his window, but the person did not stop.

¶ 12           Armstrong exited his vehicle and other officers arrived. Armstrong made contact

with Heidenreich, who lived in the downstairs apartment. Armstrong then observed "fresh

footprints in the snow" on the steps leading up to the porch. Armstrong ultimately made contact

with defendant, who was wearing blue jeans, a black T-shirt over a gray long-sleeved shirt, and

white Nike shoes. Armstrong identified pictures taken of the shoe prints on the front step and the

bottoms of defendant's shoes. Armstrong stated defendant "looked pretty disheveled," his hair

was "messed up," his eyes were bloodshot and glossy, and his breath had an odor of alcohol.

Armstrong also detected the odor of burnt cannabis coming from defendant's clothing.

¶ 13           Armstrong asked defendant about the Malibu, and defendant stated the car was

his and it had been parked there "pretty much all evening." Defendant denied driving the vehicle

recently. When Armstrong asked about the shoe prints on the stairs, defendant stated he had

returned home at approximately 12:45 a.m. Defendant had initially stated he had been home all

evening. Defendant stated he had consumed "quite a bit" of alcohol that evening. Armstrong

administered field sobriety tests and eventually took defendant to jail.

¶ 14           The trial court took a three-month recess in the middle of Armstrong's testimony.

However, the parties stipulated to the admission of a video recording of the pursuit from



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Armstrong's squad car. The court stated it would view the video during the recess.

¶ 15           The trial resumed in February 2014. Armstrong stated defendant submitted to a

breath test and the results showed a blood-alcohol level of 0.089. Defendant gave his consent to

take blood and urine samples.

¶ 16           Pontiac police sergeant Jim Roberts testified he arrived at 804 North Main Street

and noticed a silver Malibu. He touched the vehicle's hood and found it "hot." He also heard the

engine "making a crackling sound." Armstrong advised Roberts that he was arresting defendant

for DUI. Roberts stated that per department policy regarding a DUI, the vehicle would be towed

and an inventory conducted. During the inventory search, Roberts located a small blue pill bottle

that contained suspected cannabis under the driver's seat.

¶ 17           The State submitted a laboratory report, which indicated the material found in the

car was 0.3 grams of cannabis. Defendant's blood-alcohol level was 0.062, and tests detected

tetrahydrocannabinol, codeine, morphine, and a heroin metabolite in his system.

¶ 18           Defendant testified he went to a bar on the evening of December 28, 2012, and

had some drinks. He stated he walked with a female to his brother's apartment at approximately

12 a.m. From the time he arrived at the apartment until the officers arrived, defendant did not

get into and drive his Malibu.

¶ 19           Following closing arguments, the trial court noted it had watched the video

"multiple times" and found "a mountain of circumstantial evidence here that supports the

conclusion that the defendant was in fact the one driving the motor vehicle." The court found

defendant guilty on the four DUI counts and the single count of cannabis possession. The court

found defendant not guilty on the charge of obstructing a peace officer.

¶ 20           In May 2014, the trial court sentenced defendant to 24 months' probation and 180



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days in jail on the DUI convictions and an unrelated battery conviction. On the cannabis

conviction, the court sentenced defendant to 30 days in jail with credit for time served as well as

various costs and assessments. This appeal followed.

¶ 21                                      II. ANALYSIS

¶ 22           Defendant argues trial counsel was ineffective for failing to (1) cross-examine

Armstrong about inconsistencies between his trial testimony and the dash-camera video and (2)

file a meritorious motion to suppress the cannabis found during the inventory search of his car.

¶ 23           A defendant's claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, "a defendant

must show both that counsel's performance was deficient and that the deficient performance

prejudiced the defendant." People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney's performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808

N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). "A defendant establishes prejudice

by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the

result of the proceeding would have been different." People v. Houston, 229 Ill. 2d 1, 4, 890

N.E.2d 424, 426 (2008). "A defendant must satisfy both prongs of the Strickland test and a

failure to satisfy any one of the prongs precludes a finding of ineffectiveness." People v.

Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

¶ 24           This court recently articulated three different categories of cases in which a

defendant sets forth a claim of ineffective assistance of counsel on direct appeal. See People v.

Veach, 2016 IL App (4th) 130888, ¶¶ 71-90, 50 N.E.3d 87. Category A cases involve direct



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appeals raising ineffective assistance of counsel that the appellate court should decline to

address. Veach, 2016 IL App (4th) 130888, ¶¶ 74-75, 50 N.E.3d 87. Category B cases involve

direct appeals raising ineffective assistance of counsel that the appellate court may address

because they are clearly groundless. Veach, 2016 IL App (4th) 130888, ¶ 82, 50 N.E.3d 87.

Category C cases involve direct appeals raising ineffective assistance of counsel that an appellate

court may address because trial counsel's errors were so egregious. Veach, 2016 IL App (4th)

130888, ¶ 85, 50 N.E.3d 87.

¶ 25                                  A. Cross-Examination

¶ 26            Defendant argues trial counsel failed to confront Armstrong with the dash-

camera video that rebutted much of his testimony. The State argues this issue involves a

Category B case and the record is sufficient to demonstrate defense counsel's cross-examination

of Armstrong did not amount to ineffective assistance. We agree with the State.

¶ 27           We note courts have stated trial counsel's decisions regarding the extent of cross-

examination are matters of trial strategy, and such decisions are not subject to review. See

People v Jacobs, 308 Ill. App 3d 988, 993, 721 N.E.2d 1160, 1164 (1999) (stating cross-

examination is "an area that falls within the ambit of trial strategy and cannot sustain an

ineffectiveness claim"). However, even assuming counsel's cross-examination of Armstrong was

deficient, we find defendant cannot establish the prejudice prong of the Strickland standard.

¶ 28           At trial, Armstrong testified he observed the Malibu with a "silver Jeep directly

behind it." Armstrong slowed down and typed the Malibu's license plate into his computer. He

then turned around and "attempted to catch up to the vehicle." Armstrong stated the Malibu

arrived at 804 North Main Street and "was skidding through the gravel when it came to a stop."

He then saw a white male with dark hair wearing blue jeans and a gray long-sleeved shirt under a



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black T-shirt. The person looked back at Armstrong, reached into the vehicle, grabbed a duffel

bag or jacket, closed the door, and ran inside the house. Defense counsel did not mention the

dash-camera video during Armstrong's cross-examination.

¶ 29           Defendant argues the video contradicts Armstrong's testimony that the Jeep was

"directly behind" the Malibu. Although the Jeep was not directly behind the Malibu, this was a

minor inconsistency and immaterial to the ultimate issue of the case. Defendant also argues the

video did not record the Malibu skid to a stop or the driver (1) get out of the car, (2) look in

Armstrong's direction, (3) close the car door, or (4) run into the duplex. As the trial court noted

in its findings, the dash camera in Armstrong's police car was fixed and could not record what

Armstrong saw by turning his head. While the video did not show the Malibu skidding to a stop

through gravel, the driver exiting while looking in Armstrong's direction, or the driver closing

the door, Armstrong could have seen the driver do so as he was turning his car to the left. The

video does show the Malibu's rear lights going off and a shadowy figure running toward the front

of the house. Thus, the video showed a car that had been occupied moments before and a person

running from it, which supported Armstrong's testimony.

¶ 30           Defendant argues the trial court failed to appreciate the inconsistencies between

the video and Armstrong's testimony because defense counsel never brought those

inconsistencies to its attention. On the contrary, the court noted it watched the video "multiple

times." The court pointed out the discrepancy regarding the distance between the Jeep and the

Malibu. The court also recalled Armstrong's testimony, found him credible, and reiterated the

camera "doesn't have the ability to pivot like your head would." It is clear the court was well

aware of Armstrong's testimony and the contents of the video.

¶ 31           The evidence indicated defendant owned the Malibu and no one else had



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permission to drive it. Armstrong observed the driver wearing blue jeans, a black T-shirt, and a

gray undershirt, and defendant was wearing those same clothes. Heidenreich testified she "heard

somebody go running up the front stairs" of the house. Sergeant Roberts touched the Malibu's

hood and found it "hot." He also heard the engine "making a crackling sound" like it had been

"overworked." Pictures of footprints on the steps resembled the pattern on the bottom of

defendant's shoes. As the trial court found "a mountain of circumstantial evidence" to support

the conclusion that defendant was driving the Malibu, the outcome of the proceedings would not

have been different had counsel cross-examined Armstrong on the contents of the video. Thus,

defendant's ineffective-assistance claim on this issue is without merit.

¶ 32                                  B. Motion To Suppress

¶ 33           Defendant argues trial counsel failed to file a meritorious motion to suppress the

cannabis found during the inventory search of his car conducted by the Pontiac police

department. Our supreme court has noted that when "an ineffectiveness claim is based on

counsel's failure to file a suppression motion, in order to establish prejudice under Strickland, the

defendant must demonstrate that the unargued suppression motion is meritorious, and that a

reasonable probability exists that the outcome would have been different had the evidence been

suppressed." Henderson, 2013 IL 114040, ¶ 15, 989 N.E.2d 192.

                       "The threshold issue in considering whether the police have

               conducted a valid inventory search incident to a tow of defendant's

               vehicle is whether the impoundment of the vehicle is proper.

               [Citation.] That a defendant's car would be left unattended is not a

               sufficient reason for impoundment unless the vehicle is illegally

               parked. [Citation.] Law enforcement does have the authority,



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               however, pursuant to its community caretaking function, to seize

               and remove from the streets vehicles impeding traffic or

               threatening public safety and convenience. [Citation.] Where the

               police impound a vehicle based on a cognizable reason, an

               inventory search pursuant to the tow is justified. [Citation.]

               Although the State's evidence must support a finding that the

               decision to tow was based on a reasonable procedure, there is no

               requirement that the State present evidence of written procedures."

               People v. Mason, 403 Ill. App. 3d 1048, 1054-55, 935 N.E.2d 130,

               136 (2010).

¶ 34           In the case sub judice, Sergeant Roberts testified he conducted an inventory

search of defendant's vehicle, as the Pontiac police department had a policy that the cars of DUI

arrestees were to be inventoried and towed. This was the totality of the evidence as to the

impoundment, which was not at issue at trial. It is possible defendant parked his vehicle in such

a way or place that would require it to be towed and inventoried by the police. With an

undeveloped record before us on this direct appeal, we cannot make a determination on the

propriety of the inventory search or whether the State could justify the search on any other basis.

¶ 35           Believing this to be a Category A case, the State argues the record is insufficient

to determine whether counsel should have filed a motion to suppress or whether one would have

been successful, and thus, defendant's claim is more appropriate for collateral review. In his

reply brief, defendant disagrees with the State's argument, in part, because he has completed his

sentence in this case and cannot file a petition for postconviction relief. See 725 ILCS 5/122-

1(a) (West 2014) (stating only a person in prison may file a petition under the Post-Conviction



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Hearing Act). Moreover, defendant points out he cannot bring an ineffective-assistance claim in

a petition for relief from judgment. See People v. Pinkonsly, 207 Ill. 2d 555, 567, 802 N.E.2d

236, 244 (2003) (stating proceedings on a petition for relief from judgment "are not an

appropriate forum for ineffective-assistance claims because such claims do not challenge the

factual basis for the judgment").

¶ 36           Given the undeveloped record and the current status of defendant's case, we find

it appropriate, pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), to retain

jurisdiction and remand the cause to the trial court for a hearing on defendant's claim of

ineffective assistance of counsel. In re Alonzo O., 2015 IL App (4th) 150308, ¶ 31, 40 N.E.3d

1228. " 'Such a hearing will give [defendant] a full opportunity to prove facts establishing

ineffectiveness of counsel, the State a full opportunity to present evidence to the contrary, and

the establishment of a factual record on the issue.' " Alonzo O., 2015 IL App (4th) 150308, ¶ 31,

40 N.E.3d 1228 (quoting In re Ch. W., 399 Ill. App. 3d 825, 830, 927 N.E.2d 872, 876 (2010)).

¶ 37                                   III. CONCLUSION

¶ 38           For the reasons stated, we affirm the trial court's judgment on defendant's DUI

convictions in case No. 13-DT-2 (No. 4-14-0486). We retain jurisdiction and remand the cause

for an evidentiary hearing on defendant's ineffective-assistance-of-counsel claim in case No.

13-CM-25 (No. 4-14-0487). As part of our judgment, we award the State its $50 statutory

assessment against defendant as costs of this appeal.

¶ 39           No. 4-14-0486: Affirmed.

¶ 40           No. 4-14-0487: Remanded with directions.




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