                       Illinois Official Reports

                               Appellate Court



                  People v. Rankin, 2015 IL App (1st) 133409



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOHN RANKIN, Defendant-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-13-3409



Filed             July 16, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-3233; the
Review            Hon. Vincent M. Gaughan, Judge, presiding.



Judgment          Reversed in part and vacated in part; cause remanded with
                  instructions.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Rebecca I. Levy, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Carol L. Gaines, and Justin R. Kordys, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                  court, with opinion.
                  Justices Hall and Lampkin concurred in the judgment and opinion.
                                              OPINION

¶1       Following a bench trial, the defendant, John Rankin, was convicted of residential burglary
     (720 ILCS 5/19-3(a) (West 2012)) and sentenced to 84 months’ imprisonment to be followed
     by 3 years’ mandatory supervised release (MSR). Additionally, the trial court imposed $549 in
     fines and costs and ordered the defendant to pay a $450 fee to reimburse the county for the
     funds expended for the services of his court-appointed defense counsel. On appeal, the
     defendant argues that the evidence was insufficient to prove him guilty beyond a reasonable
     doubt and the trial court erred in imposing the $450 fee without holding a hearing to determine
     his ability to pay. For the reasons that follow, we: reverse the defendant’s conviction and
     sentence for residential burglary along with the $549 of fines and costs assessed against him,
     vacate the $450 fee which the trial court ordered the defendant to pay to reimburse the county
     for the services rendered by his court-appointed counsel, and remand this cause to the trial
     court with instructions.
¶2       The defendant was arrested and charged by information with one count of residential
     burglary. The State filed a pretrial motion pursuant to section 113-3.1(a) of the Code of
     Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/113-3.1(a) (West
     2012)), seeking reimbursement for the county funds expended for the cost of the defendant’s
     court-appointed attorney and requested that the motion be entered and continued. The
     defendant filed a pretrial motion to quash his arrest and suppress identification evidence based
     upon his arrest by the police without a warrant and without probable cause. The defendant
     waived his right to a jury trial and the trial court heard his motion to quash and suppress
     contemporaneously with the trial. The following evidence was adduced at the defendant’s
     bench trial.
¶3       Patrick Mance lived in the basement apartment at 804 South Karlov Avenue in Chicago.
     The door to the apartment opened to a gangway located on the side of the building.
¶4       Mance testified that, on January 3, 2013, he went out with a friend after working from
     12:30 to 9 p.m. at the Chicago Transit Authority. He stated that, on January 4, 2013, at about
     3:30 or 4 a.m., he was riding as a passenger in a car driven by his friend when the car passed the
     building in which he lived. Mance testified that he saw the defendant in the gangway located
     on the side of the building carrying clothes. According to Mance, the lighting was good and he
     observed the defendant for a period of 4 to 5 seconds from 20 feet away. Mance testified that
     he had known the defendant all of his life. He stated that, after he saw the defendant, his friend
     kept driving because he “didn’t think nothing of it.”
¶5       Mance testified that, when he returned home at about 10 a.m., he found that the door to his
     apartment had been “pried open or kicked in.” When he entered the apartment, he discovered
     that all of his clothes were missing, the kitchen had been “torn up,” and pipes were missing
     from the ceiling. Mance stated that he called the police and they came to his apartment. When
     the police arrived, he told the officers that he had seen someone in the gangway, but he did not
     give the officers a description of the individual or inform them that it was the defendant that he
     had seen.
¶6       On cross-examination, Mance admitted that he did not see anyone enter his apartment on
     January 3 or 4, 2013. When asked if he saw the defendant walk out of his apartment, Mance
     answered: “I saw John Rankin coming out of my gangway at that time.” When pressed for an


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       answer to the question of whether he saw anyone coming out of his apartment, Mance
       responded: “Yes, I did, because where my apartment is at it’s only one way out.”
¶7          On January 11, 2013, Mance was contacted by Detective Robert Goerlich concerning the
       incident. Mance admitted that he did not tell Detective Goerlich on that date that it was the
       defendant that he had seen in the gangway. According to Mance, he “was going to deal with
       the situation” himself. Detective Goerlich testified that, when he spoke to Mance on January
       11, 2013, Mance did not tell him that he had seen the defendant in the gangway on the day of
       the burglary. Detective Goerlich stated that Mance told him that the offender was “unknown.”
¶8          On January 21, 2013, Mance called Detective Goerlich and told him that the defendant was
       the individual who had broken into his apartment and gave the detective a description of the
       defendant. According to Mance, he decided to “let the police deal with it.” Detective Goerlich
       testified that he constructed a photo array of possible suspects which included a picture of the
       defendant. On January 23, 2013, he showed the photo array to Mance and Mance identified the
       defendant’s picture as the individual who had broken into his apartment. On January 25, 2013,
       Detective Goerlich issued an investigative alert for the defendant and, on January 30, 2013, the
       defendant was arrested.
¶9          After presenting the testimony of Mance and Detective Goerlich, the State rested and the
       trial court heard argument on the defendant’s motion to quash and suppress. The court denied
       the motion, after which the defendant made a motion for a directed finding of not guilty, which
       the court also denied. Thereafter, the defendant rested.
¶ 10        Following closing argument, the trial court found the defendant guilty of residential
       burglary, stating:
                    “I’ve listened to the evidence and observed the demeanor of the witnesses while
                testifying.
                    Mr. Mance did give an explanation why he did not identify [the defendant] at the
                time that he reported the offense. But the other critical thing was [the defendant]–is
                there circumstantial evidence or direct evidence that [the defendant] was in the
                residence of Mr. Mance. As reviewed–the testimony just was reviewed by myself with
                our outstanding court reporter and it said he did see him coming out of the apartment.
                    Based on the totality of the evidence and also circumstantial evidence I find there’s
                a finding of guilty of residential burglary.”
¶ 11        The defendant filed a motion for a new trial, which was denied. The trial court then
       sentenced the defendant to 84 months’ incarceration to be followed by 3 years of MSR.
       Additionally, the court imposed $549 in fines against the defendant and ordered him to pay a
       $450 fee to reimburse Cook County for the funds it expended for the services rendered by his
       court-appointed defense counsel. As to the $450 fee, the court inquired of defense counsel:
       “How many times did you appear in the case?” The assistant public defender responded: “Nine
       times, judge.” The court then stated: “Attorneys’ fees of $450. Nine appearances plus a trial,
       that would be appropriate.”
¶ 12        The defendant filed a motion to reconsider his sentence, which the trial court denied. This
       appeal followed.
¶ 13        The defendant first argues that the evidence was insufficient to prove him guilty of
       residential burglary beyond a reasonable doubt. He contends that the only evidence presented



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       by the State connecting him to the alleged burglary was “so incredible and lacking in logic and
       common sense that it cannot serve as proof of [his] *** guilt beyond a reasonable doubt.”
¶ 14        In order to convict a criminal defendant, due process requires proof beyond a reasonable
       doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). When presented with a challenge to
       the sufficiency of the evidence, it is not the function of this court to retry the defendant. People
       v. Collins, 106 Ill. 2d 237, 261 (1985). Rather, “ ‘the relevant question is whether, after
       viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
       could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis
       in original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is the duty of the
       trier of fact to determine the credibility of the witnesses, to weigh the evidence and draw
       reasonable inferences therefrom, and to resolve any conflicts in the evidence. People v. Slim,
       127 Ill. 2d 302, 307 (1989). We will not substitute our judgment for that of the trier of fact on
       issues involving the weight to be given to the evidence. People v. Siguenza-Brito, 235 Ill. 2d
       213, 224-25 (2009). However, “merely because the trier of fact accepted certain testimony or
       made certain inferences based on the evidence does not guarantee the reasonableness of its
       decision.” People v. Ross, 229 Ill. 2d 255, 272 (2008). A conviction will be reversed on appeal
       when the evidence is so unreasonable, improbable, or unsatisfactory that there remains a
       reasonable doubt as to the defendant’s guilt. Id.
¶ 15        The defendant was charged with the commission of residential burglary. As such, the State
       was required to prove beyond a reasonable doubt that he knowingly and without authority
       entered the dwelling of another with the intent to commit a felony or theft. 720 ILCS 5/19-3(a)
       (West 2012); People v. Natal, 368 Ill. App. 3d 262, 268 (2006). A conviction for the offense
       cannot be sustained unless all of the elements, including unlawful entry, have been proven
       beyond a reasonable doubt. People v. Soznowski, 22 Ill. 2d 540, 543 (1961).
¶ 16        In this case, the only evidence connecting the defendant to the offense charged was the
       testimony of Mance. Mance’s testimony, viewed in a light most favorable to the State,
       established that between 3:30 and 4 a.m. on January 4, 2013, he saw the defendant carrying
       clothes while in a gangway on the side of the building in which Mance lived. The access to
       Mance’s basement apartment was through a door opening into that gangway. Approximately
       six hours later, Mance returned to his apartment and found that the front door had been “pried
       open or kicked in” and that all of his clothes were missing, the kitchen had been “torn up,” and
       pipes were missing from the ceiling. Contrary to the trial court’s statement when pronouncing
       its finding of guilt, a fair reading of Mance’s testimony is that he saw the defendant coming out
       of the gangway, not that he saw him come out of his apartment. Mance concluded that the
       defendant had come out of the apartment because the only way out of the apartment is through
       the gangway.
¶ 17        Mance did not testify that he recognized the clothes that he saw the defendant carrying as
       his. Although the police were called to the apartment on January 4, 2013, after Mance
       discovered the burglary, there was no evidence that the defendant’s fingerprints were found at
       the scene. Nor was there evidence that any of the clothes taken from Mance’s apartment were
       found in the defendant’s possession. Mance testified that he had known the defendant all of his
       life and that he recognized him as the person that he saw coming out of the gangway carrying
       clothes in the early morning hours of January 4, 2013. Yet, he never told the officers who
       responded to his call on that day that it was the defendant who he had seen coming out of the
       gangway. Nor did he tell Detective Goerlich that he had seen the defendant when he was

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       interviewed on January 11, 2013. It was not until January 21, 2013, that Mance informed the
       police that he saw the defendant in the gangway carrying clothes.
¶ 18       Accepting as true, as the trial court did, that Mance did not inform the police until January
       21, 2013, that it was the defendant that he had seen in the gangway on January 4, 2013, because
       he had decided to “deal with the situation” himself, we are still left with the fact that the only
       evidence even remotely connecting the defendant to the alleged burglary of Mance’s apartment
       is Mance’s uncorroborated testimony that he saw the defendant in the gangway carrying
       clothes after which he found that his apartment had been burglarized and his clothes stolen. In
       order to convict the defendant of residential burglary based on the evidence in this record, one
       would have to infer that the clothes that the defendant was carrying belonged to Mance and that
       the defendant had entered Mance’s apartment and stolen the clothes. These inferences are mere
       speculation. There is no evidence in this record that the defendant ever entered Mance’s
       apartment, that the clothes that he was seen carrying were Mance’s clothes, or that the
       defendant stole any clothes from the apartment.
¶ 19       Although we draw all reasonable inferences from the evidence of record which are
       favorable to the State, we will not draw unreasonable or speculative inferences. Cunningham,
       212 Ill. 2d at 280. Based upon the foregoing analysis, we conclude that the evidence of record
       is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Accordingly, we
       reverse the defendant’s conviction and sentence for residential burglary and the fines which
       were assessed against him.
¶ 20       Next, the defendant argues that the trial court erred in entering an order requiring him to
       pay a $450 fee for the services rendered by his court-appointed defense counsel without first
       conducting a hearing to consider his financial circumstance and ability to pay. See 725 ILCS
       5/113-3.1(a) (West 2012); People v. Gutierrez, 2012 IL 111590, ¶ 17. He asserts that, because
       no hearing was held on the State’s motion to assess fees for his court-appointed defense
       attorney within 90 days after the entry of the court’s final order disposing of the case as
       required by section 113-3.1(a) of the Code of Criminal Procedure, the appropriate remedy is to
       vacate the $450 fee. The State concedes that the court failed to comply with the hearing
       requirements of section 113-3.1(a) for the reasons asserted by the defendant, but argues that
       the appropriate remedy is to remand the matter to the court with instructions to conduct an
       evidentiary hearing in compliance with the statute. See People v. Somers, 2013 IL 114054,
       ¶ 20. We agree with the State as to the appropriate remedy under the circumstances of this
       case.
¶ 21       Section 113-3.1(a), by its very terms, requires that, before ordering a defendant to
       reimburse the county for the cost of his court-appointed counsel, the trial court must hold a
       hearing within 90 days of a final judgment disposing of the case “to determine the amount of
       the payment.” 725 ILCS 5/113-3.1(a) (West 2012). “The hearing must focus on the costs of
       representation, the defendant’s financial circumstances, and the foreseeable ability of the
       defendant to pay.” Somers, 2013 IL 114054, ¶ 14; see also People v. Love, 177 Ill. 2d 550, 563
       (1997). As in Somers, the trial court in this case did hold an abbreviated hearing on the State’s
       motion for the assessment of a fee for the defendant’s court-appointed attorney when it asked
       the assistant public defender how many times that he had appeared in court. See Somers, 2013
       IL 114054, ¶¶ 14-15. Only after hearing the assistant public defender’s answer to the question
       did the trial court assess the $450 fee. Consequently, we agree with the State’s contention that
       a hearing was held on the very day that the court sentenced the defendant. However, since the

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       hearing did not comply with the requirements of section 113-3.1(a), the appropriate remedy is
       to vacate the $450 fee and remand the matter back to the trial court with instructions to hold a
       hearing in compliance with the statute.
¶ 22       In summary, we: reverse the defendant’s conviction and sentence for residential burglary
       along with the $549 of fines and costs assessed against him; vacate the $450 fee which the trial
       court ordered the defendant to pay to reimburse the county for the services rendered by his
       court-appointed counsel; and remand this cause to the trial court with instructions to hold a
       hearing in compliance with the provisions of section 113-3.1(a) of the Code of Criminal
       Procedure.

¶ 23      Reversed in part and vacated in part; cause remanded with instructions.




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