                                        2019 IL App (3d) 170168

                                Opinion filed October 1, 2019
     ____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                   2019

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 12th Judicial Circuit,
                                                     )       Will County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-17-0168
            v.                                       )       Circuit No. 14-CF-2407
                                                     )
     ALOYSIUS A. ALEXANDER,                          )       Honorable
                                                     )       Carla Alessio-Policandriotes,
            Defendant-Appellant.                     )       Judge, Presiding.
     ____________________________________________________________________________

            PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and McDade concurred in the judgment and opinion.

                                                OPINION

¶1          Defendant, Aloysius A. Alexander, appeals his convictions and sentences for first degree

     murder, aggravated battery with a firearm, and unlawful use of a weapon by a felon (UUWF),

     arguing (1) his UUWF conviction should be reversed because it was predicated on a void prior

     conviction and he should be resentenced on his other convictions because the court considered

     the void conviction and (2) the court erred by failing to appoint counsel to represent him on his

     posttrial claims of ineffective assistance of counsel. We affirm in part, reverse in part, and

     remand for resentencing.

¶2                                         I. BACKGROUND
¶3             The State charged defendant with two counts of first degree murder (720 ILCS 5/9-

     1(a)(1), (2) (West 2014)), one count of aggravated battery with a firearm (id. § 12-3.05(e)(1)),

     and one count of UUWF (id. § 24-1.1(a)). The indictment for UUWF stated that defendant had

     previously been convicted of aggravated unlawful use of a weapon (AUUW).

¶4             Prior to trial, defendant filed a pro se motion for substitution of judge naming Judge

     Daniel Rozak. Since the public defender’s office represented defendant, the court struck the

     motion. However, on the court’s own motion it reassigned the case to Judge Sarah Jones.

     Thereafter, defendant retained private counsel. The record shows that on June 16, 2016, two

     motions for substitution of judge were filed. The first motion named Judge Jones and Judge

     Carla Alessio-Policandriotes as prejudiced against defendant. The second motion solely named

     Judge Jones. The court ultimately assigned the case to Judge Alessio-Policandriotes without any

     objection, and the case proceeded to a bench trial.

¶5             The evidence at trial established that on the evening of December 5, 2014, Miya Morris

     went to an apartment where Johnny Lockhart and his son, Ledontia, lived. Ledontia was in his

     bedroom when he heard Johnny ask Morris why she had not called or texted Ledontia before

     coming over so late. Ledontia then exited his room and asked Morris if they could go outside to

     talk. Ledontia and Morris went to the parking lot, and Morris was upset because she believed that

     Ledontia had taken money from her. Johnny called the police to have Morris removed from the

     premises. Officer Robert Anderson responded, told Morris that she needed to leave, and Morris

     did so.

¶6             After that, Michael Smith, Morris’s boyfriend and Ledontia’s friend, began contacting

     Johnny and Ledontia threatening to fight them. He believed that Johnny had threatened to push

     Morris. Smith intended to go to the Lockharts’ apartment to fight Ledontia. On his way, he


                                                    -2-
     picked up Brian Gregory and defendant. Ledontia, Smith, and Gregory all knew defendant by his

     nickname, “June.” At some point, Ledontia heard a car door slam and people running up the

     stairs toward the apartment. He opened the door, and defendant, Gregory, and Smith were

     standing in front of the door. Ledontia told them they should go down to the parking lot to fight.

     They went down to the parking lot, and Smith threw two punches at Ledontia. Ledontia deflected

     his punches and pushed Smith back. The two of them argued until Johnny came outside. Johnny

     told Smith, Gregory, and defendant to get off his property.

¶7          At that point, a gun was discharged two times. Ledontia stated,

                    “As I was trying to turn [Johnny] to go up the stairs, I look back, I see

                    them all walking towards the car. I’m figuring like they just fittin’ to just

                    leave. Then, like, God made me look again. I just saw the fire coming

                    from [defendant’s] hand. I just grabbed my pops. Then my father told me I

                    was shot.”

     Ledontia said the fire looked “[l]ike when somebody shoots a gun.” He also heard “a bang.”

     Smith stated that he could see Johnny, Ledontia, and Gregory and knew the gunshot did not

     come from them. Smith said there was no doubt in his mind that defendant had shot the gun.

     Gregory heard the shots coming from behind him. Gregory turned to look and saw defendant

     holding a gun and fire coming from it. Defendant was wearing a black hooded sweatshirt with

     the hood up. Smith, Gregory, and defendant ran to Smith’s car. Smith asked defendant “why

     would you do that[?]” Defendant said, “I don’t know, shut up and drive.” Smith drove for a short

     period of time, and then defendant asked Smith to stop the car. Defendant exited the car near his

     apartment and said, “don’t say shit.”




                                                    -3-
¶8            Ledontia blacked out after the first shot had hit him, and when he awoke, he realized that

       Johnny had also been shot. Johnny told Ledontia to get help. Ledontia crawled up the stairs, and

       Johnny’s girlfriend met him in the apartment. Ledontia told her to call 911; he then went back

       down the stairs. He left blood on the floor of the apartment. Officer Anderson and Sergeant Scott

       Cammack arrived at the scene around 12 a.m. on December 6 and saw Ledontia holding his torso

       in pain. Johnny was covered in blood and was not moving. Cammack asked Ledontia who shot

       him, and Ledontia said “June.” Cammack repeated and spelled “June” back to Ledontia, and

       Ledontia confirmed. Cammack asked Ledontia for more information about June, but Ledontia

       was unable to respond as he was holding his chest and having difficulty breathing. Ledontia

       spent 11 days in the hospital recovering from the gunshot wound. After he was taken to the

       hospital, he never saw Johnny again. The autopsy revealed that Johnny died of multiple gunshot

       wounds. Ledontia and Gregory later identified defendant as the shooter in a lineup.

¶9            Sergeant Chris Delaney testified that on December 6, 2014, he was a crime scene

       technician and responded to the scene. He observed Johnny dead at the scene. He took

       photographs, recovered spent projectiles at the scene, and observed blood in the Lockharts’

       apartment.

¶ 10          Detective Jeffrey German testified that, as part of the homicide investigation, he reviewed

       surveillance videos from an apartment facing 301 North Bluff Street. The video showed a man

       walking from behind 311 North Bluff Street to the front door of the apartment complex at 301

       North Bluff Street at approximately 12:13 a.m. on December 6, 2014. The man approached the

       door to the apartment complex and appeared to motion toward the window. He then walked

       toward the parking lot and then back toward the door. At that point, a person inside the complex

       opened the door, and the man entered the apartment complex. About seven minutes later, a


                                                     -4-
       woman and two children exited the door, followed by the man. They entered a vehicle and drove

       away.

¶ 11           The police executed a search warrant at 301 North Bluff Street, Apartment 307. At the

       apartment, the officers found documents on the kitchen counter with defendant’s name on them

       and the address of 301 North Bluff Street, Apartment 307. The documents were a red light

       camera violation notice dated October 21, 2014, and a collection agency letter for medical

       services dated November 10, 2014. Defense counsel objected to the admittance of the letters.

       After hearing the argument, the court said,

                      “These are billing statements that are purported to be for [defendant], and

                      each of them consistently indicating his address of 301 North Bluff Street,

                      Apartment 307, Joliet, Illinois. Indicating that with, apparently, Provena

                      St. Joe’s Medical Center and the Secretary of State, that is the address in

                      which he expects to receive and hopes to receive mail placed in the U.S.

                      mail. And I’ll accept that for what they are.”

¶ 12           The officers also found a black hooded sweatshirt on the kitchen table and ammunition in

       a clothes hamper. The ammunition included five .38-caliber bullets: three were Winchester, one

       was Federal, and one was W-W. The officers recovered a .38-caliber revolver that had been

       covered in leaves near 311 and 316 North Bluff Road. The revolver had six shell casings inside:

       four were Federal, one was Winchester, and one was W-W. An expert in forensic science tested

       the gun and the spent projectiles obtained at the scene and determined that the projectiles came

       from the gun. A fingerprint expert tested the gun, casings, and projectiles but did not find any

       usable fingerprints.




                                                      -5-
¶ 13          Officer John Ross was a detective in 2014 and processed defendant at the jail on

       December 6, 2014. He said, “I can’t give you an exact time. It was sometime in the afternoon.”

       Defendant asked “if his girlfriend, who was upstairs being questioned by detectives, was going to

       be in trouble.” Ross had not asked defendant anything about his girlfriend before this. Ross told

       defendant that he “did not know what was going to happen to his girlfriend.” Defendant then

       asked “why she would be in any trouble.” Ross replied, “because she *** helped you try to get

       away with murder.” Defendant said, “she didn’t have anything to do with it.” Ross said, “that’s

       what you told the detectives upstairs, that you guys didn’t have anything to do with it.”

       Defendant then said, “she really didn’t have anything to do with it.” The conversation then

       ended. Defense counsel moved to strike Ross’s testimony and bar the evidence presented

       because Ross did not know if the conversation had been recorded. Ross did not read defendant

       his Miranda rights before answering defendant’s questions. The court noted that defense counsel

       had not filed a pretrial motion to suppress but stated that it would allow counsel to file a written

       motion. Defense counsel asked for the motion to be heard when the State rested, and the court

       agreed. Defendant was interviewed at the jail at 2:41 p.m. on December 6, 2014, but the

       interview ended at 3:14 p.m. when defendant asked for counsel.

¶ 14          The State entered into evidence a certified copy of defendant’s prior conviction, showing

       that he had been convicted of AUUW pursuant to section 24-1.6(a)(1) of the Criminal Code of

       1961 (Code) (720 ILCS 5/24-1.6(a)(1) (West 2008)). The State then rested, and defendant moved

       for a directed verdict. The court stated that before it ruled on the motion for directed verdict, it

       needed to hear and rule on the motion to suppress the testimony of Ross. Defense counsel stated

       that he was withdrawing that motion. The court then denied the motion for directed verdict.




                                                      -6-
¶ 15          The defense called Officer Robert Korczak who testified that he was in the back of the

       ambulance with Ledontia. Ledontia told him that he had a problem with a man at a bar and that

       man came to his house to fight him. He described the man as a “little guy.” However, Korczak

       specifically asked Ledontia who shot him, and Ledontia said, “June.”

¶ 16          After taking the matter under advisement, the court found defendant guilty on all counts.

       At sentencing, the State asked the court to take defendant’s criminal history into account. The

       court stated that it considered all the information presented but did not otherwise explain its

       decision. The court sentenced defendant to 56 years’ imprisonment for first degree murder, 12

       years’ imprisonment for aggravated battery with a firearm, and 3 years’ imprisonment for

       UUWF. The 12- and 3-year sentences would run concurrent to each other and consecutive to the

       56-year sentence.

¶ 17          Defendant filed a pro se motion for a new trial, alleging inter alia, that defense counsel

       was ineffective for failing to file (1) motions in limine to prevent the introduction of the letters,

       the hooded sweatshirt, and the ammunition found at the apartment; (2) a motion to dismiss after

       Ross testified that he did not read defendant his Miranda rights when defendant asked the

       questions about his girlfriend; and (3) a motion to exclude witnesses. Defendant attached three

       pro se motions in limine, attesting, inter alia, that his mailing address was actually 300 North

       Bluff Street, Apartment 403, and he had lived there since 2010. Defense counsel also filed a

       motion for a new trial, arguing that defendant was not proven guilty beyond a reasonable doubt

       and the court erred in allowing evidence of the ammunition and hooded sweatshirt because they

       had not been subjected to forensic testing. Defense counsel also filed a motion to reconsider

       sentence.




                                                       -7-
¶ 18          The court conducted a preliminary Krankel inquiry regarding defendant’s claims of

       ineffective assistance of counsel. Defendant stated that counsel did not present any pretrial

       motions when defendant had asked him to. The following exchange occurred between the court

       and defendant.

                               “THE COURT: As it relates to each of those, you communicated

                        before trial with [defense counsel] asking him to file these pleadings on

                        your behalf, is that what you’re saying?

                               THE DEFENDANT: Yes.

                               THE COURT: Okay. Please tell me more.

                               THE DEFENDANT: And right after that, I got a substitution of

                        judge. I was originally in front of Rozak. And I was placed in front of

                        Jones. I put a substitution of judge in my own pro se motion because he

                        wouldn’t do it for me. I had to do it myself. I don’t know if he adopted it

                        or—

                               THE COURT: Did you sub out two judges, Judge Rozak and

                        Judge Jones?

                               THE DEFENDANT: Judge Jones.

                               THE COURT: Okay. And that’s why they did not try the case. The

                        matter, I believe, is scheduled before me, correct?

                               THE DEFENDANT: Yes, correct.

                               THE COURT: Okay. And those—so your motion regarding

                        substitution of judge was, in fact, addressed?

                               THE DEFENDANT: Yes.

                                                        -8-
                             THE COURT: Okay.

                             THE DEFENDANT: And I was placed in front of you. Two days

                     later I came in and we set a trial date.

                             THE COURT: Okay.

                             THE DEFENDANT: And you asked before we proceeded, do we

                     have any motions to file. And he clearly, on the record, said no. When I

                     asked him before trial to put in those pretrial motions, which he failed to

                     do.”

¶ 19          Defendant further stated that counsel did not file a motion to suppress based on Ross’s

       testimony, even though the court had given counsel the opportunity to do so. He also stated that

       counsel had not sufficiently communicated with him. The court said,

                     “As it relates to your pleading, if I may, regarding the substitution of the

                     judges that would otherwise have been assigned to this case, though it was

                     your pleading and you filed it, there is no harm to you in not having your

                     case tried in front of Judge Rozak or Judge Jones because your

                     substitution request[s] were, in fact, addressed on your behalf and they

                     were not the trial judges, I was. Okay?”

       Defendant agreed. The court then said,

                     “All right. As it relates to the pleadings that you have filed, that you

                     thought should have been filed on your behalf, first the motion regarding

                     physical evidence, the hooded sweatshirt, ammunition and the U.S. mail.

                     The pleadings, as you know, were not filed by [defense counsel] for the




                                                      -9-
Court to rule that they were not admissible, that the State would be barred

from presenting it. You’re absolutely right that it was not filed.

        However, I can suggest to you that even the pleadings that you

have filed, if they were timely filed before the evidence or the trial began,

they would not have been granted. And the reason is this, in my opinion:

The Court does not bar evidence because it is on the basis of what was

presented here. It goes to the weight to be given to that evidence. So the

credibility to give the evidence, the strength or weakness of the evidence.

So physical evidence, the hooded sweater, U.S. mail, things like that, the

ammunition, the three that you identified, the State had proper

foundations, so it was not a nature of chain of evidence. So it could not be

barred in that manner.

        The quality of the evidence is what you’re suggesting the Court

should have barred because it was not tested for DNA. It was not tested

for this. The Court would not have barred those, [defendant], because I

don’t have the right do so. I can’t force the State to do—to get all the

testing done. They present their evidence and the quality of the evidence,

of what they have. I would not have ruled correctly, if I barred that

evidence, in my opinion. It goes to the weight of the evidence. It goes to

the character of the evidence. It goes to the credibility of the evidence.

Okay?

        So if you communicated that to [defense counsel] and he said I’m

not filing those pleadings, that his trial strategy, of course, and based on


                                - 10 -
                      his training, he may have communicated to you, I’m not doing that

                      because, in fact, it would not have been a pleading that would have been

                      well-founded in law or fact. Okay? And lawyers don’t and shouldn’t file

                      pleadings that are not founded in law or in fact, okay? It’s called a

                      frivolous pleading. Do you understand the difference?”

       Defendant agreed that he did.

¶ 20          The court confirmed that defendant did not have any other ineffective assistance of

       counsel claims to present and then asked defense counsel whether he believed he “had sufficient

       communication, according to the standards that were necessary to protect his interest and answer

       what was necessary and to prepare for trial.” Counsel stated that he did. They then discussed the

       motion for substitution of judge, noting that there was a pleading in the file that named Judge

       Alessio-Policandriotes. The court said,

                             “[W]hen the matter was assigned to me, that was withdrawn. And

                      each and every court date thereafter he consented to the matter to be

                      before this Court. In fact, he waived his trial by—[defense counsel], in

                      fact, he waived his trial by jury and asked for a bench trial in front of me.

                             ***

                             *** Just because my name is in there doesn’t mean anything. I’m

                      sure there was additional communication often by this Court.”

       The court found that defendant did not meet his threshold obligation in alleging ineffective

       assistance of counsel. The court then considered the motion for a new trial and to reconsider

       sentence brought by defense counsel and denied the motions.

¶ 21                                             II. ANALYSIS

                                                      - 11 -
¶ 22          On appeal, defendant argues (1) because his 2009 conviction for AUUW was void, his

       conviction for UUWF should be vacated and his remaining convictions should be remanded for

       resentencing and (2) the court should have appointed counsel and advanced defendant’s claims

       of ineffective assistance of counsel to a full Krankel hearing. Pursuant to our supreme court’s

       recent decision in In re N.G., 2018 IL 121939, we find that defendant’s prior void ab initio

       conviction for AUUW could not be used as a predicate offense for UUWF. Because the record is

       not clear how the court considered the conviction in sentencing defendant for first degree murder

       and aggravated battery with a firearm, we remand for resentencing. Moreover, we find that the

       court properly denied defendant’s ineffective assistance of counsel claims after a preliminary

       Krankel inquiry.

¶ 23                                          A. Void Conviction

¶ 24          The court found defendant guilty of UUWF under section 24-1.1(a) of the Code, which

       states, in pertinent part, “It is unlawful for a person to knowingly possess on or about his person

       or on his land or in his own abode *** any firearm or any firearm ammunition if the person has

       been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-

       1.1(a) (West 2014). In sum, in order for defendant to have been convicted under this statute, he

       had to have previously been convicted of a felony.

¶ 25          The only felony on defendant’s record was a 2009 Class 4 felony conviction for AUUW.

       See 720 ILCS 5/24-1.6(a)(1), (d) (West 2008). Section 24-1.6(a)(1) of the Code stated,

                      “A person commits the offense of [AUUW] when he or she knowingly:

                             (1) Carries on or about his or her person or in any vehicle or

                      concealed on or about his or her person except when on his or her land or




                                                     - 12 -
                        in his or her abode or fixed place of business any pistol, revolver, stun gun

                        or taser or other firearm[.]” Id. § 24-1.6(a)(1).

       However, our supreme court in People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL

       117387, subsequently held that the AUUW offense in section 24-1.6(a)(1) is unconstitutional and

       invalid. There is no question that defendant’s AUUW was based on this facially unconstitutional

       statute.

¶ 26              Thus, the question becomes whether a defendant’s unconstitutional AUUW conviction

       may serve as the predicate felony conviction for UUWF. In discussing People v. McFadden,

       2016 IL 117424, ¶¶ 1, 27, our supreme court stated that

                        “based on the language of the UUWF statute, that where a defendant has

                        not taken affirmative action to have a court set aside the initial conviction

                        and therefore still has an extant, undisturbed felony conviction on his

                        record at the time he engaged in the conduct on which the subsequent

                        UUWF prosecution was predicated, the elements of the UUWF statute

                        are satisfied and the UUWF conviction may stand, regardless of whether

                        the initial conviction might be subject to vacatur later on the grounds that

                        it was unconstitutional.” N.G., 2018 IL 121939, ¶ 62 (discussing

                        McFadden).

       In doing so, the court relied on the United States Supreme Court’s decision in Lewis v. United

       States, 445 U.S. 55 (1980). McFadden, 2016 IL 117424, ¶ 22. In Lewis, the petitioner attempted

       to overturn his federal conviction for being a felon in possession of a firearm by challenging the

       use of his state felony conviction as the predicate offense because he had been without the

       benefit of counsel. Lewis, 445 U.S. at 57-58. The Lewis Court rejected this argument, stating “the


                                                         - 13 -
       fact of a felony conviction imposes a firearm disability until the conviction is vacated or the

       felon is relieved of his disability by some affirmative action.” Id. at 60-61.

¶ 27          However, in 2018, our supreme court revisited the issue in a different context in N.G.,

       2018 IL 121939. In N.G., the court considered whether a parent’s unconstitutional AUUW

       conviction could be used as a predicate for terminating parental rights. Id. ¶ 23. The court stated

       that “[w]hen a statute is found to be facially unconstitutional in Illinois, it is said to be void

       ab initio; that is, it is as if the law had never been passed.” Id. ¶ 50. Stated another way, “It was

       not, is not, and could never be a crime.” Id. ¶ 36. Thus, “the conviction must be treated by the

       courts as if it did not exist, and it cannot be used for any purpose under any circumstances.” Id. A

       conviction void in this way, like the AUUW conviction, could be challenged at any time, in any

       court with jurisdiction, and is not subject to forfeiture. Id. ¶¶ 43, 56. “[I]f the constitutional

       infirmity is put in issue during a proceeding that is pending before a court, the court has an

       independent duty to vacate the void judgment and may do so sua sponte.” Id. ¶ 57. The court

       summarized its holding as follows:

                      “[A] facially unconstitutional statute and any conviction based on the

                      statute must be treated as if they never existed. Because they are

                      nonexistent, as a matter of federal constitutional law, and must therefore

                      be ignored by the courts, using them against a defendant in any subsequent

                      proceeding, civil or criminal, is not only conceptually impossible (if

                      something has no legal existence how can it be given any legal

                      recognition?) but would subvert the very constitutional protections that

                      resulted in the statute being found facially invalid to begin with and is

                      incompatible with the United States Supreme Court’s command that when,


                                                       - 14 -
                      as under Aguilar and here, the conduct penalized by a statute is

                      constitutionally immune from punishment, that determination must be

                      given complete retroactive effect.” (Emphasis in original.) Id. ¶ 74.

¶ 28          The Fourth District applied this holding and held that an unconstitutional AUUW

       conviction may not be used as a predicate offense for armed habitual criminal. People v. Cavette,

       2018 IL App (4th) 150910, ¶ 26.

¶ 29          Based on N.G., we find defendant’s AUUW conviction void ab initio. See N.G., 2018 IL

       121939, ¶ 50. We, therefore, vacate his AUUW conviction. See id. ¶¶ 43, 56-57. Because his

       AUUW conviction was void, it could not be used by the court for any purpose, including as a

       predicate for UUWF. Id. ¶¶ 36, 74. Thus, we reverse defendant’s conviction for UUWF. Further,

       we remand for a new sentencing hearing on defendant’s other convictions. The State presented

       defendant’s AUUW conviction to the court at sentencing and asked the court to consider it in

       sentencing defendant. Again, the AUUW conviction cannot be used for any purpose, including to

       increase his punishment for a new offense. See id. ¶ 38. The record does not indicate to what

       extent the court considered the AUUW conviction when crafting the sentences for defendant’s

       other convictions.

¶ 30          In coming to this conclusion, we reject the State’s contention that we should still follow

       McFadden. In N.G., the supreme court noted that its holding was contrary to its holding in

       McFadden. Id. ¶ 64. The court first distinguished the facts of McFadden, noting that the record

       in McFadden did not indicate under which provision of the AUUW statute the defendant had

       previously been convicted. Id. Therefore, the court could not conclude that the defendant’s prior

       conviction was in fact based on the unconstitutional provision. Id. Moreover, the court noted that

       the defendant in McFadden never actually requested that his prior conviction be vacated. Id.


                                                     - 15 -
¶ 66. The defendant’s conviction in N.G. was in fact under the unconstitutional AUUW

provision, and he had asked that his conviction be vacated. Id. ¶¶ 64, 66. Second, the court found

McFadden “problematic because of the line of United States Supreme Court authority on which

it [was] based.” Id. ¶ 67. The court in McFadden failed to consider or address Montgomery v.

Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), “or the numerous earlier United States Supreme

Court cases which have consistently held that convictions based on facially unconstitutional

statutes are void, can be given no effect, and must be treated by the courts as if they do not

exist.” N.G., 2018 IL 121939, ¶ 67. Third, the court stated that, in relying on Lewis, it

               “failed to take into account a fundamental distinction between the

               constitutional flaws afflicting the two predicate offenses. In contrast to

               McFadden, Lewis did not present a situation where the prior offense was

               based on a facially unconstitutional statute that penalized conduct the state

               had no power to punish, and no second amendment concerns were at

               play.” Id. ¶ 71.

Stated another way, where a conviction is obtained through a constitutional deficient procedure,

like in Lewis, a defendant may still be guilty of or criminally culpable for the underlying act. See

id. ¶ 39. Therefore, a conviction after a trial in which a constitutionally deficient procedure was

used “may be used for some purposes but not for others.” Id. ¶ 72. However, where the

conviction was based on a facially unconstitutional statute, like in McFadden and N.G., “[t]he

underlying conduct was constitutionally immune from punishment.” Id. ¶ 39. The court thus

stated, “Had our analysis in McFadden taken into account the distinction between a prior

conviction resulting from a constitutionally deficient procedure and one based on a facially




                                               - 16 -
       unconstitutional statute, the approach we took in that case would have been different. It is

       important that we acknowledge that now.” Id. ¶ 76.

¶ 31          Like in N.G., the facts of McFadden are distinguishable because the record shows that

       defendant’s AUUW conviction was definitely based on the unconstitutional statute. Defendant’s

       conviction for UUWF cannot stand.

¶ 32                                     B. Preliminary Krankel Inquiry

¶ 33          Next, defendant contends that the court erred in failing to appoint counsel and advance

       his claims of ineffective assistance of counsel to a full Krankel hearing. Specifically, defendant

       contends that the court should have found possible neglect of the case based on counsel’s failure

       to (1) move to suppress the statements he made to Ross, (2) file motions in limine to bar

       introduction of the hooded sweatshirt, ammunition, and letters found at the apartment, and

       (3) “enforce” its motion for substitution of judge, seeking to bar Judge Alessio-Policandriotes.

¶ 34          Through People v. Krankel, 102 Ill. 2d 181 (1984), and its progeny, our supreme court

       has developed a procedural framework for the resolution of pro se posttrial claims of ineffective

       assistance of counsel. Where a defendant makes a posttrial claim of ineffective assistance of

       counsel, the circuit court must conduct a preliminary inquiry into those claims. People v. Moore,

       207 Ill. 2d 68, 77-78 (2003). If, after this preliminary inquiry, the circuit court “determines that

       the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint

       new counsel and may deny the pro se motion.” Id. at 78. If the court instead determines that

       there has been “possible neglect of the case,” it must appoint new counsel to represent the

       defendant at a full hearing on his claims on ineffective assistance. Id.

¶ 35          A court’s determination that a defendant’s claim does not demonstrate a possible neglect

       of the case will only be reversed where that decision is manifestly erroneous. E.g., People v.


                                                      - 17 -
       Robinson, 2017 IL App (1st) 161595, ¶ 90. “Manifest error is error which is ‘ “clearly evident,

       plain, and indisputable.” ’ ” People v. Morgan, 212 Ill. 2d 148, 155 (2004) (quoting People v.

       Johnson, 206 Ill. 2d 348, 360 (2002), quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).

¶ 36          First, defendant states in his brief, that he was interviewed by a detective “beginning at

       2:41 pm on December 6, 2014, and the interview ended when defendant requested counsel at

       3:14 pm ***. After the interview, and after defendant had been charged, officer Ross, who had

       been a detective in December 2014, processed defendant at the Joliet Police Department.”

       Defendant contends that, because defendant requested counsel, all subsequent communications

       had to be suppressed. However, the record does not actually show that the booking process and

       conversation with Ross happened after defendant requested counsel. When asked when he

       processed defendant, Ross stated, “I can’t give you an exact time. It was sometime in the

       afternoon.” Ross stated to defendant, “that’s what you told the detectives upstairs, that you guys

       didn’t have anything to do with it.” However, this does not make it indisputable that the

       interview in which defendant had requested counsel occurred prior to his interaction with Ross.

       The conversation and booking could have taken place before the interview; defendant does not

       cite to anything in the record to the contrary. Thus, there is a plausible reason why counsel did

       not raise this issue, and we cannot say that it was indisputable that defendant demonstrated

       possible neglect.

¶ 37          Second, defendant argues that counsel should have moved to bar introduction of the

       letters, hooded sweatshirt, and ammunition because it was not relevant. “Evidence is relevant

       when it (1) renders a matter of consequence more or less probable or (2) tends to prove a fact in

       controversy.” People v. Pelo, 404 Ill. App. 3d 839, 864 (2010). Further, evidence is relevant if it

       can be connected both to the defendant and to the crime. People v. Jones, 22 Ill. 2d 592, 599


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       (1961). Defense counsel objected to the introduction of the letters. While defendant on appeal

       argues that counsel only objected on chain of custody grounds, the court considered whether the

       letters should be introduced as a whole, stating:

                      “These are billing statements that are purported to be for [defendant], and

                      each of them consistently indicating his address of 301 North Bluff Street,

                      Apartment 307, Joliet, Illinois. Indicating that with, apparently, Provena

                      St. Joe’s Medical Center and the Secretary of State, that is the address in

                      which he expects to receive and hopes to receive mail placed in the U.S.

                      mail. And I’ll accept that for what they are.”

       Defendant does not argue that there was any evidence that counsel should have presented to

       show that defendant did not live at that apartment. Considering the fact that the letters were

       official documents and were dated within two months of the crime, they were relevant to show

       that defendant lived in that apartment at that time. Moreover, the record showed that there was

       some indication that the perpetrator wore a black hooded sweatshirt, which was found at

       defendant’s apartment. The ammunition found was also the same caliber and the same brands as

       were found in the gun that was determined to be the weapon used to shoot Johnny and Ledontia.

       Thus, all of this evidence was undoubtedly relevant, and we cannot say that it was manifest error

       for the court to find that defendant did not show possible neglect of his case.

¶ 38          Third, defendant argues that “[c]ounsel’s motion to substitute Judge [Alessio-]

       Policandriotes was absolute and automatic. [Citation.] Yet, counsel did nothing to obtain the

       relief he originally sought. By failing to ask the court to enforce, or even rule on paragraph five

       of the motion, defense counsel abandoned this portion of the motion.” At the outset, we note that

       defendant never actually stated in his motion for a new trial or during the Krankel inquiry that he


                                                      - 19 -
       had wanted to substitute Judge Alessio-Policandriotes. At the Krankel inquiry, the court asked

       defendant if his motion for substitution of judge had been heard, and defendant agreed that it had

       been. Moreover, neither defendant nor counsel ever mentioned substituting Judge Alessio-

       Policandriotes. There was ample discussion when it was first assigned to her courtroom

       regarding the procedure by which it was assigned to her. Defendant and counsel had more than

       enough time to raise the issue if they wanted to. In fact, the only indication on the record that

       defendant sought to substitute Judge Alessio-Policandriotes was in a motion filed on June 16,

       2016. However, the record shows that on that day two motions for substitution of judge were

       filed. The first motion named Judge Jones and Judge Alessio-Policandriotes; the second motion

       solely named Judge Jones. Defense counsel could have meant the second motion to supersede

       the first. As defendant states, “counsel apparently did not know that he had moved to substitute

       Judge [Alessio-]Policandriotes.” That motion could have been entered in error. We cannot say

       that the court’s finding was “ ‘ “clearly evident, plain, and indisputable.” ’ ” Morgan, 212 Ill. 2d

       at 155 (quoting Johnson, 206 Ill. 2d at 360, quoting Ruiz, 177 Ill. 2d at 384-85).

¶ 39                                              C. Summary

¶ 40          In sum, we find that defendant’s previous conviction for AUUW was void ab initio and

       vacate his conviction. Because defendant’s UUWF conviction was predicated on this void

       conviction, we reverse the finding of guilt for UUWF. While we affirm defendant’s other

       convictions, we remand them for resentencing because it is unclear how the court considered the

       AUUW conviction during sentencing. See People v. Bourke, 96 Ill. 2d 327, 332 (1983) (“Where

       the reviewing court is unable to determine the weight given to an improperly considered factor,

       the cause must be remanded for resentencing.”). The State certainly argued that the court should

       consider defendant’s AUUW conviction at sentencing. Moreover, we find that the court’s


                                                      - 20 -
       determination that defendant’s ineffective assistance of counsel claims did not show possible

       neglect was not manifestly erroneous.

¶ 41                                           III. CONCLUSION

¶ 42          For the foregoing reasons, we affirm in part, reverse in part, and remand the judgment of

       the circuit court of Will County.

¶ 43          Affirmed in part and reversed in part; cause remanded.




                                                    - 21 -
                                  No. 3-17-0168


Cite as:                 People v. Alexander, 2019 IL App (3d) 170168


Decision Under Review:   Appeal from the Circuit Court of Will County, No. 14-CF-2407;
                         the Hon. Carla Alessio-Policandriotes, Judge, presiding.


Attorneys                James E. Chadd, Peter A. Carusona, and Bryon Kohut, of State
for                      Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for                      Thomas D. Arado, and Jasmine D. Morton, of State’s Attorneys
Appellee:                Appellate Prosecutor’s Office, of counsel), for the People.




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