                                  Illinois Official Reports

                                          Appellate Court



                              People v. Porter, 2014 IL App (1st) 123396



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


District & No.               First District, Third Division
                             Docket No. 1-12-3396


Filed                        November 12, 2014


Held                         On appeal from defendant’s conviction for retail theft, the trial court
(Note: This syllabus         rejected defendant’s contention that the circumstances warranted a
constitutes no part of the   remand for consideration of her pro se posttrial allegations of
opinion of the court but     ineffective assistance of counsel under Krankel, since her claim that
has been prepared by the     her counsel was ineffective in refusing to follow her suggestion that an
Reporter of Decisions        argument should have been raised that the video tape presented by the
for the convenience of       store security “wasn’t telling the truth” because the “whole tape” was
the reader.)                 not played was not sufficiently specific to warrant further inquiry
                             under Krankel; however, the circuit court clerk was directed to vacate
                             the DNA analysis fee in view of the fact that defendant was already
                             registered in the DNA database.




Decision Under               Appeal from the Circuit Court of Cook County, No. 12-CR-8898; the
Review                       Hon. John Joseph Hynes, Judge, presiding.




Judgment                     Affirmed in part and vacated in part; fines and fees order corrected.
     Counsel on               Michael J. Pelletier and Jessica D. Pamon, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Whitney Bond,
                              Assistant State’s Attorney, of counsel), for the People.



     Panel                    JUSTICE HYMAN delivered the judgment of the court, with opinion.
                              Justices Lavin and Mason concurred in the judgment and opinion.


                                                OPINION

¶1         Following a bench trial, defendant, Dawn Porter, was found guilty of retail theft and
       sentenced to a four-year prison term. On appeal, Porter contends that the cause should be
       remanded for consideration of her pro se posttrial claims of ineffective assistance of trial
       counsel under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984). We find Porter’s ineffective
       assistance of counsel claim insufficiently specific to support the duty to conduct further inquiry
       under Krankel. Porter also contends that the $250 DNA fee imposed by the court must be
       vacated and we agree.

¶2                                               Background
¶3         At trial, Omar Ferreira testified that on March 7, 2012, he was working the 11 a.m. to
       8 p.m. shift as a loss prevention agent at the Wal-Mart store in Bridgeview, Illinois. When he
       arrived at the store about 11 a.m., he saw Dawn Porter carrying a plastic bag in the infant
       department. She appeared to be “anxious” and “nervous” and was looking around and shaking.
       Ferreira walked to the back of the store to “clock in” for the day, and when he returned to the
       infant department, Porter was gone.
¶4         Ferreira then went to his office, activated the store’s surveillance cameras, and rewound the
       existing footage to find Porter. While watching that footage from multiple cameras with
       varying viewpoints, Ferreira saw Porter pick up a box containing a baby cradle swing and
       place it into her shopping cart. He then observed her as she pushed the shopping cart with the
       large box inside of it through the lingerie department and toward the men’s department, before
       heading to the customer service desk. After collecting this information, Ferreira called Sarah
       Troutman, the service desk associate, who told him that Porter had returned merchandise
       without a receipt. Ferreira then ran toward the exit and introduced himself to Porter. She
       accompanied him to his office, where Ferreira recovered a Wal-Mart gift card from Porter. The
       surveillance videos were played for the court, and defendant’s actions were narrated by
       Ferreira.
¶5         Sarah Troutman testified that she was working as a customer service agent at the Wal-Mart
       service desk, where she processed customer returns, refunds, and exchanges. Porter
       approached her register with a baby swing and asked to return the item. Porter did not have a
       receipt for the item, so Troutman scanned the item and asked for identification, which was the

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       ordinary policy for returns of merchandise over $100 without a receipt. Porter produced an
       identification card (ID), and Troutman scanned the item again and placed the value of the item
       on a gift card. Because the item was valued at over $50, Troutman had to call a supervisor, who
       completed an “override” using a key to approve the refund. Porter then signed “the slip” and
       Troutman returned the ID and gift card to defendant. After Porter walked away, Troutman
       received a phone call from Ferreira asking her about the transaction. Troutman told him that
       Porter had a return without a receipt on a baby swing. On cross-examination, Troutman
       explained that there was no way to check an item’s “history” by scanning the bar code at the
       store.
¶6         Jaylah Noel testified for the defense that she and Porter, her friend, were going to attend a
       baby shower on March 7, 2012. They took a bus to the Bridgeview Wal-Mart, where they
       purchased the baby swing as a gift. When the cashier asked Noel if she wanted a receipt, Noel
       declined, and the cashier threw the receipt in the garbage. Noel then received a phone call from
       someone who told her that another person had already purchased a baby swing for the shower.
       Because Noel had no ID card, she asked Porter to return the item while she went to look for
       another gift. Noel made a phone call to arrange a ride from Wal-Mart to the baby shower, and
       when she went outside to see if that person had arrived, she saw Porter being taken away in
       handcuffs. She told the authorities and loss prevention employees that she was the original
       purchaser of the swing, but they did not respond.
¶7         At the close of evidence and argument, the court found Porter guilty of retail theft. In doing
       so, the court found Noel’s testimony to be “beyond belief” and “incredible,” describing her
       story as “unlikely convergences of all these unlikely facts that Miss Noel wants us to believe.”
       The court observed that Noel alleged that she bought a baby swing for over $100 without
       keeping the receipt in case of a later return by the gift’s recipient. The court also observed that
       she “happen[ed] to not have *** an ID and she gets her good friend to go back to return this
       without even leaving the store or a phone call. And then she, of course, leaves the presence of
       [defendant] to go looking for a gift.” The court further observed that the video did not
       corroborate her testimony, as it did not show them “hooking up” to arrange the plan to get the
       gift card.
¶8         At the sentencing hearing on October 17, 2012, the court heard argument from the State
       and defense regarding the appropriate sentence, and Porter stated in allocution:
               “Um, but this, I just didn’t feel that I was in the wrong. Um, and I–when I was–I was
               trying to ask them that, that the tape proved that, that the security wasn’t telling the
               truth. And I asked my attorney to bring it up, and she said–and she–she didn’t, she was
               just like, that, um, that it shows the tape. I says, they’re not playing the whole tape, you
               know what I’m saying. That I made two transactions. And–and I presented a receipt for
               what I came to the store for. And I was just with [Noel].”
       The court responded, “All right,” then weighed the relevant factors in aggravation and
       mitigation. The court determined that Porter was eligible for an extended sentence based on her
       criminal history and sentenced her to four years’ imprisonment.

¶9                                                 Analysis
¶ 10       Porter does not challenge the sufficiency of the evidence to sustain her conviction. Rather,
       she contends that the trial court erred in failing to conduct a preliminary inquiry into her claim


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       of ineffective assistance of counsel, as required by Krankel, 102 Ill. 2d at 187-89. Porter
       requests that her cause be remanded for the purpose of conducting this inquiry.
¶ 11        Under Krankel, and its progeny, where a defendant makes a pro se posttrial allegation of
       ineffective assistance of counsel, the trial court should conduct an adequate inquiry into the
       factual basis of the claim. People v. Moore, 207 Ill. 2d 68, 79 (2003). If the court determines
       that the claim lacks merit or pertains solely to trial strategy, the court need not appoint new
       counsel and may deny defendant’s motion. Moore, 207 Ill. 2d at 78. If the court finds possible
       neglect of the case, new counsel should be appointed. Moore, 207 Ill. 2d at 78. Where, as here,
       the court did not conduct an inquiry into defendant’s ineffective assistance claims, we use a
       de novo standard of review. People v. Walker, 2011 IL App (1st) 072889-B, ¶ 33.
¶ 12        The pleading requirements for raising a pro se claim of ineffectiveness of counsel are
       somewhat relaxed; however, a defendant must still meet the minimum requirements necessary
       to trigger a Krankel inquiry. People v. Bobo, 375 Ill. App. 3d 966, 985 (2007). “A bald
       allegation of ineffective assistance is insufficient; rather, the defendant should raise specific
       claims with supporting facts before the trial court is required to consider the allegations.”
       Walker, 2011 IL App (1st) 072889-B, ¶ 34 (citing People v. Radford, 359 Ill. App. 3d 411, 418
       (2005)). Mere awareness by a trial court that defendant has complained of counsel’s
       representation imposes no duty by the trial court to sua sponte investigate defendant’s
       complaint. People v. Cunningham, 376 Ill. App. 3d 298, 304 (2007).
¶ 13        Porter claims that her conflict with trial counsel was brought to the trial court’s attention by
       her statements in allocution. At that time, Porter asserted that the video showed that “security
       wasn’t telling the truth.” She stated that she asked counsel “to bring it up” but counsel said that
       it was what the tape showed. Porter asserted that “they’re not playing the whole tape,” which
       would show that she “made two transactions” and that she was with Noel.
¶ 14        We initially note that Porter made no overt claim of ineffective assistance of counsel, and,
       instead, the tenor of her remarks reflects her continuing profession of innocence in the matter,
       rather than an allegation of counsel’s incompetence. People v. Taylor, 237 Ill. 2d 68, 76-77
       (2010). Moreover, due to the rambling nature of her remarks, it is unclear whether she was
       alleging that additional footage actually existed or whether she merely assumed that there was
       additional footage that would support her defense. In circumstances where defendant’s
       statements are amenable to more than one interpretation, this court has determined that they are
       insufficient to require a Krankel inquiry. Taylor, 237 Ill. 2d at 77.
¶ 15        In any case, the record shows that counsel was aware of the surveillance videos, as they
       were introduced at trial, and it appears that, at most, Porter disagreed with counsel about what
       they showed. In these circumstances, the choice of whether to present any additional video
       evidence would be a matter of trial strategy, which is generally immune from ineffective
       assistance of trial counsel claims (People v. Munson, 206 Ill. 2d 104, 139-40 (2002)), and the
       trial court would not be required to conduct any inquiry into defendant’s complaints (Moore,
       207 Ill. 2d at 78). For these reasons, we conclude that Porter failed to bring to the trial court’s
       attention a specific claim of ineffective assistance sufficient to trigger the duty to conduct
       further inquiry under Krankel (Walker, 2011 IL App (1st) 072889-B, ¶ 37) and there is no
       cause for remand.
¶ 16        Porter finally claims, the State concedes, and we agree that the trial court’s order requiring
       her to pay a $250 DNA analysis fee should be vacated because she has previously provided a
       DNA sample. In People v. Marshall, 242 Ill. 2d 285, 303 (2011), the supreme court held that

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       defendant is required to submit a sample and pay the fee only when she is not currently
       registered in the DNA database. Since Porter already appears in the database, the imposition of
       a second DNA fee is improper, and, in accordance with Marshall, we vacate it.
¶ 17       For the reasons stated, we direct the circuit court clerk to correct the order assessing fines
       and fees to reflect the vacatur of the DNA analysis fee, and we affirm the judgment of the
       circuit court of Cook County in all other respects.

¶ 18      Affirmed in part and vacated in part; fines and fees order corrected.




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