                          No. 3-06-0819
_________________________________________________________________
Filed May 23, 2008
                             IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                             A.D., 2008

THE PEOPLE OF THE STATE OF    )   Appeal from the Circuit Court
ILLINOIS,                     )   of the 10th Judicial Circuit
                              )   Peoria County, Illinois
     Plaintiff-Appellee,      )
                              )   No. 05-CF-437
     v.                       )
                              )
TED GODFREY,                  )   Honorable
                              )   Scott A. Shore
     Defendant-Appellant.     )   Judge Presiding
_________________________________________________________________

       JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________

     Defendant, Ted Godfrey, was convicted of home invasion (720

ILCS 5/12-11(a)(2) (West 2004)), criminal trespass to a residence

(720 ILCS 5/19-4(a)(2) (West 2004)) and domestic battery (720 ILCS

5/12-3.2(a)(1) (West 2004)).    The trial court sentenced him to a

statutory minimum term of six years imprisonment.       On appeal,

defendant asks us to (1) reduce his conviction and sentence under

Supreme Court Rule 615, and (2) remand the case for additional

proceedings on his claim of ineffective assistance of counsel. We

affirm.

     On April 28, 2005, defendant’s ex-girlfriend, Erion Lovingood,

invited defendant over to her house after he finished playing

basketball.   Lovingood had been pregnant with defendant’s child,

but that day discovered she had miscarried. Defendant finished his

basketball game but did not go to Lovingood’s house right away.
After waiting several hours for defendant, Lovingood decided that

she no longer wanted to see him, so she locked the front door and

went upstairs.    Around midnight, defendant arrived at Lovingood’s

home.   He saw that the lights were on and her car was in the

driveway.

     After    ringing   the   doorbell   and   receiving   no    response,

defendant tried the front door and found it was locked. Defendant

then called Lovingood on her cell phone.         When Lovingood did not

answer her phone, defendant kicked the door three times, breaking

it open, and went searching for Lovingood.               Defendant found

Lovingood talking on the phone in her upstairs bathroom. Defendant

became angry, snatched the phone from Lovingood and threw it down

the stairs.      Defendant and Lovingood then proceeded down the

stairs, arguing along the way.      Once downstairs, defendant threw

another phone and fought with Lovingood.        According to Lovingood,

defendant pushed her, held her arms and threw something at her.

When he became tired of fighting with Lovingood, defendant left.

     Lovingood    called   the   police.       When   police    arrived   at

Lovingood’s home, they found damage to the front door, spilled milk

on the kitchen floor, blood spatters on the wall and floor and a

television turned over on the floor.       Police also saw a blood spot

on Lovingood’s shirt, a pink mark on her arm and a cut on her lip.

Defendant testified that the blood on Lovingood’s shirt was his.

     Defendant was charged with home invasion, criminal trespass to

a residence and domestic battery.          After a bench trial, he was

convicted on all three counts. Prior to sentencing, defendant sent

                                    2
a letter to the court, claiming that his attorneys were ineffective

because they never told him his options or the amount of time he

would have to serve if convicted.        The trial court found that the

letter    did   not   contain   sufficient   allegations   to   establish

incompetency of counsel.

       The trial court sentenced defendant to six years in prison,

the mandatory minimum sentence for a conviction of home invasion.

See 720 ILCS 5/12-11(c) (West 2004); 730 ILCS 5/5-8(1)(a)(3) (West

2004).

                                    I.

       Defendant asks us to reduce his conviction from home invasion

to the lesser included offense of criminal trespass to a residence

and then remand for sentencing on the reduced offense. He contends

that we have the power and duty to do this under Supreme Court Rule

615.

       Rule 615 states, in relevant part, "On appeal the reviewing

court may * * * reduce the degree of the offense of which the

appellant was convicted * * *."      134 Ill. 2d R. 615(b)(3).     Courts

using the power granted by this rule must do so with "caution and

circumspection" and not "purely out of merciful benevolence."

People v. Jones, 286 Ill. App. 3d 777, 783, 676 N.E.2d 1335, 1339-

40 (1997).

       When a trial court’s judgment is tainted by reversible error

but a conviction for a lesser included offense would not be, we may

employ Rule 615 to remand the case for sentencing on the lesser-

included offense.      See People v. Davis, 112 Ill. 2d 55, 61, 491

                                     3
N.E.2d 1153, 1156 (1986).      However, there is a difference of

opinion within the appellate court about whether there must be

reversible error to invoke Rule 615.   Compare People v. Kick, 216

Ill. App. 3d 787, 793, 576 N.E.2d 395, 399 (1991) (reversible error

required); with People v. Plewka, 27 Ill. App. 3d 553, 558-59, 327

N.E.2d 457, 461 (1975) (reversible error not required).    We need

not reach this issue because even under the more lenient standard

applied by appellate courts, the facts in this case do not trigger

the application of Rule 615.

     Under the more lenient standard, reversible error is not

necessary when there is (1) an evidentiary weakness in the State’s

case, (2) a mandatory minimum sentence that is unsatisfactorily

harsh, and (3) a conviction for a lesser-included offense. People

v. Jackson, 181 Ill. App. 3d 1048, 1051-52, 537 N.E.2d 1054, 1057

(1989).   "Evidentiary weakness" means something that causes the

appellate court to have grave concern about the reliability of the

guilty verdict.   See Jones, 286 Ill. App. 3d at 784, 676 N.E.2d at

1340.

     To sustain a conviction for home invasion, the State must

prove the following:

     "A person * * * commits home invasion when without authority

he or she knowingly enters the dwelling of another when he or she

knows or has reason to know that one or more persons is present *

* * and * * * [i]ntentionally causes any injury * * * to any person

or persons within such dwelling place * * *."     720 ILCS 5/12-11

(West 2004).

                                 4
     Defendant    claims   that   there   were   several   evidentiary

weaknesses in the State’s case that justify invocation of Supreme

Court Rule 615.    First, he argues that there is a factual question

regarding whether his presence in Lovingood’s home was authorized.

We find no evidentiary weakness regarding this element. Lovingood

testified that although she invited defendant over to her house

earlier that evening, she did not want to see him when he finally

came to her home.    This is why she locked her door, did not open

the door for defendant when he rang her door bell and did not

answer her cell phone when defendant called. Based on Lovingood’s

undisputed testimony, the trial court properly concluded that

defendant’s presence in the home was unauthorized.

     Defendant also claims that his entry was authorized because he

entered Lovingood’s home out of concern for her safety. He cites

case law on the limited authority doctrine, which deals with the

limited nature of an invited person’s authority to be in a

dwelling.    See People v. Bush, 157 Ill. 2d 248, 252, 623 N.E.2d

1361, 1364 (1993).     The limited authority doctrine applies only

after a defendant is invited into or granted access to a dwelling.

People v. Priest, 297 Ill. App. 3d 797, 805, 698 N.E.2d 223, 229

(1998).     Here, the evidence established that although Lovingood

asked defendant to come to her house earlier that evening, she did

not invite him into her home or grant him entry into the home when

he arrived at midnight. Because defendant entered Lovingood’s home

by force, the limited authority doctrine does not apply.

     Finally, defendant claims that there was insufficient evidence

                                   5
that he injured Lovingood.    Lovingood testified that defendant

physically injured her by pushing her, holding her arm and throwing

something at her. A police officer testified that he saw a mark on

Lovingood’s arm and a cut on her lip when he arrived on the scene.

Defendant testified that he did not hurt Lovingood and that his own

wounds accounted for the blood on Lovingood’s shirt.     The trial

court chose to believe the testimony of Lovingood and the police

officer over defendant’s.    This does not create an evidentiary

weakness.   See Jackson, 171 Ill. App. 3d at 1052, 537 N.E.2d at

1057 (a conviction does not suffer from evidentiary weakness when

the trial court finds testimony from a defense witness less

credible than consistent testimony from prosecution witnesses).

     Since there is no evidentiary weakness, we cannot invoke Rule

615 to reduce defendant’s conviction and sentence.     See Jackson,

181 Ill. App. 3d at 1051-52, 537 N.E.2d at 1057.

                               II.

     Defendant also asks us to remand this case so that the trial

court may inquire into the adequacy of his trial counsel.        He

claims that if his attorneys told him that he faced a mandatory

six-year prison sentence upon a conviction for home invasion he

would have sought a plea deal on the lesser charges.

     When a defendant presents a pro se motion alleging ineffective

assistance of counsel, the court may dismiss it if the claim is

spurious or pertains only to trial tactics.   People v. Baltimore,

292 Ill. App. 3d at 165, 685 N.E.2d 627, 631 (1997).   If, however,

the defendant’s allegations of incompetence have merit, the court

                                 6
should     appoint    new   counsel   to    argue   defendant’s       claim   of

ineffective assistance.        People v. Nitz, 143 Ill. 2d 82, 134-35,

572 N.E.2d 895, 919 (1991).

     To sustain an allegation of ineffective assistance, the

defendant must present evidence of deficient performance and

evidence that if counsel’s performance had been adequate the

outcome might have been different.           See Strickland v. Washington,

466 U.S. 668, 687, 80 L. Ed. 2d 674           104 S. Ct. 2052, 65, (1984);

People v. Albanese, 104 Ill.2d 504, 525, 473 N.E.2d 1246, 55

(1984).

     However, even if defendant’s public defender and later his

retained counsel did not tell him about the sentence he faced if

convicted of home invasion, defendant still has no claim of

ineffective assistance because there was no prejudice. See People

v. Manning, 227 Ill. 2d 403, 422, 883 N.E.2d 492, 504 (2008). The

trial court itself informed defendant that he faced a mandatory

six-year     prison    sentence   during     one    of   the   last    pretrial

conferences, and defendant said he understood the court's warning:

            "THE COURT: And Mr. Godfrey, you understand the

     charges against you and the possible sentences you face

     if convicted on these charges?

            DEFENDANT: Yes.

            THE COURT: I want to make sure you do.             A Class X

     felony, the potential penalties of 6 to 30 years in the

     Department of Corrections.            Is the Defendant qualified

     for extended term?

                                      7
         PROSECUTOR: No, Judge.

         THE     COURT:   The    period   in   the   Department   of

    Corrections would be followed by 3 years mandatory

    supervised release.         It's not probationable.

         * * *

         THE COURT: Do you understand the penalties you face?

         DEFENDANT: Yes.

         * * *

         THE COURT: Do you have any questions regarding the

    charges against you or the possible penalties you face?

         DEFENDANT: No."

    In light of this exchange, the trial court was correct to

conclude that defendant's allegation of ineffective assistance

was without merit and to refuse appointing independent counsel to

pursue an ineffective assistance claim at the trial level.

                                 CONCLUSION

    For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

    Affirmed.

    CARTER, J., concurs.

    JUSTICE SCHMIDT, specially concurring:

    I agree with the majority's decision to affirm the circuit

court, but I disagree with its approach to both of defendant's

claims of error.

I. Relief Under Supreme Court Rule 615
    The problem with the majority opinion is apparent.            The

                                     8
majority, citing People v. Jackson, 181 Ill. App. 3d 1048, 537
N.E.2d 1054 (1989), holds "since there is no evidentiary
weakness, we cannot invoke Rule 615 to reduce defendant's
conviction and sentence."     Slip op. at 6.     This opinion not only
fails to provide guidance to practitioners, but also misleads
them.     The holding clearly implies that had the majority found an
evidentiary weakness, it could have invoked Rule 615 to reduce
defendant's conviction and sentence in the absence of reversible
error.     I submit it could not.     If multiple errors below are
harmless in isolation but are cumulatively prejudicial to a
defendant, we can and will grant relief.        People v. Scott, 108
Ill. App. 3d 607, 615, 439 N.E.2d 130, 136 (1982); People v.
Patterson, 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164, 1169
(1976).     But the Jackson standard would have us countermand trial
court judgments that were admittedly not erroneous at all.
    The majority applies a portion of the standard this court

announced in People v. Jackson, 181 Ill. App. 3d at 1051-52, 537

N.E.2d at 1057.     I believe Jackson was wrongly decided and that

any analysis under Rule 615(b)(3) must depend on the presence or

absence of reversible error.        See People v. Thomas, 266 Ill. App.

3d 914, 926, 641 N.E.2d 867, 876 (1994); People v. Rodriguez, 258

Ill. App. 3d 579, 587, 631 N.E.2d 427, 433 (1994); People v.

Sims, 245 Ill. App. 3d 221, 225, 614 N.E.2d 893, 896-97 (1993);

People v. Kick, 216 Ill. App. 3d 787, 793, 576 N.E.2d 395, 399

(1991).

    In discussing the Jackson standard, the majority omits the


                                     9
fourth element of that standard, which is that the trial court

expressed dissatisfaction with imposing the mandatory sentence.

Slip op. at 4; Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at

1056.   The majority also ignores defendant's arguments and

reliance upon this aspect of the Jackson standard.

    The Jackson line of cases would have us grant relief when,

in the opinion of two or more judges, a mandatory minimum

sentence imposed below is unduly harsh.        People v. Plewka, 27

Ill. App. 3d 553, 559, 327 N.E.2d 457, 461 (1975).        Jackson holds

that we have authority to intervene after the trial judge

"expresse[s] dissatisfaction" with imposing a mandatory minimum

sentence.   Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056.

This element of Jackson makes it incompatible with our

constitution's separation of powers requirement.        Ill. Const.

1970, art. II §1.   The majority simply ignores both this aspect

of Jackson and defendant's arguments in reliance on it.

    It is well settled that "[t]he legislature has authority to

*** establish the nature and extent of criminal penalties, and a

court exceeds its authority if it orders a lesser sentence than

is mandated by statute, unless 'the [mandated] penalty shocks the

conscience of reasonable men.'"        People v. Wade, 116 Ill. 2d 1,

6, 506 N.E.2d 954, 956 (1987), quoting People ex rel. Ward v.

Salter, 28 Ill. 2d 612, 615 (1963).        Accord People v. Landers,

329 Ill. 453, 457, 160 N.E. 836 (1927).        We can substitute our

judgment for a trial court's when the trial court abuses its

discretion in sentencing.   134 Ill 2d R. 615(b)(4); People v.

                                  10
Stacey, 193 Ill. 2d 203, 211, 737 N.E.2d 626, 630 (2000).       But we

may not substitute our judgment for the legislature's unless a

sentence is constitutionally infirm.    People ex rel. Carey v.

Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259, 262 (1981)

(mandamus appropriate if a sentence less than the mandatory

minimum is imposed); Kick, 216 Ill. App. 3d at 793, 576 N.E.2d at

399.

       The sentencing provision of a criminal statute is

unconstitutional when it violates the proportionate penalties

clause of our constitution.    Ill. Const. 1970, art. I, §11.     A

statute violates the proportionate penalties clause if the

punishment is so wholly disproportionate to the offense as to

shock the moral sense of the community or if different sentences

can be imposed for crimes with identical elements.    People v.

Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 498 (2005).

Defendant does not argue that the statutory minimum sentence is

constitutionally infirm.

       The defendant argues on appeal that while the trial court is

bound by statutory minimum sentences, the appellate court is not.

Surely, in crafting Rule 615, the supreme court did not intend to

give the appellate court the discretion to nullify mandatory

minimum sentences while disapproving of that practice in trial

courts.    See People ex rel. Daley v. Suria, 112 Ill. 2d 26, 33-

34, 490 N.E.2d 1288, 1290-91 (1986); People ex rel. Daley v.

Limperis, 86 Ill. 2d 459, 468-69, 427 N.E.2d 1212, 1216 (1981).

If we read Rule 615(b)(3) to give an appellate court the

                                 11
discretion to ignore statutory minimum sentences, then the rule

itself would violate our separation of powers clause.     Ill.

Const. 1970, art. II, §1.     I see nothing in any supreme court

case which leads me to believe that the court intends the rule to

be read in such a way.

    Courts siding with Jackson have argued that if we only

employed our power to reduce the degree of a conviction in the

presence of reversible error, that power would be redundant

because of our reversal power.     People v. Jones, 286 Ill. App. 3d

777, 781-82, 676 N.E.2d 1335, 1338 (1997).     This is not so, as

the supreme court demonstrated in People v. Davis, 112 Ill. 2d

55, 491 N.E.2d 1153 (1986).     Larry Davis, recently released from

prison, solicited bribes from his former fellow inmates, offering

to get them to the top of early release lists.     Word of Davis's

scheme reached investigators, who set up a sting operation.        He

was then tried and convicted of theft by deception.     To prove

this crime, the State must prove that the victim relied on the

thief's representations.    Davis, 112 Ill. 2d at 59-60, 491 N.E.2d

at 1154.    Trial witnesses testified that the reason they

contacted investigators was that they disbelieved Davis's

promises.    The supreme court reversed Davis's conviction because

the State failed to prove the necessary element of the victim's

reliance (reversible error), and entered a conviction for

attempted theft by deception pursuant to Rule 615(b)(3).     Davis,

112 Ill. 2d at 63, 491 N.E.2d at 1156-57.

    Therefore, the one time our supreme court has granted relief

                                  12
under Rule 615(b)(3), it did so after finding reversible error,

without regard to any mandatory minimum sentence, and entered a

conviction for a lesser-included offense that was not charged

below.    Davis, 112 Ill. 2d at 63, 491 N.E.2d at 1156-57.      Though

it did not comment on the Jackson line of cases, the Davis

court's analysis contradicts each element of the Jackson

standard.     Jackson is simply not good law.

    Accordingly, I would examine defendant's claim for

reversible error.     He concedes the State proved the elements of

home invasion beyond a reasonable doubt.        I would, therefore,

affirm.

II. Claim of Inadequate Assistance
    Defendant's allegation of ineffective assistance of counsel

argues that had he been informed he was not eligible for

probation, he would have sought a favorable plea deal.        As the

majority notes, this allegation was contradicted by discussions

between defendant and the trial court on the record.        But the

substance of defendant's allegation also asks us to speculate

about what plea negotiations would have taken place between

himself and the prosecution, the State's ultimate offer, and his

decision to accept or reject it.        Our supreme court's recent

guidance indicates defendant's allegation is so speculative, we

should not entertain it at all.        People v. Bew, 228 Ill. 2d 122,

135 (2008).     Accordingly, that is the basis on which I would

affirm the trial court.



                                  13
