                          No. 3--09--0983

                   Opinion filed March 11, 2011
_________________________________________________________________

                              IN THE

                  APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2011

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 9th Judicial Circuit,
                                ) McDonough County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 06--CF--163
                                )
DARRELL RIPPATOE,               ) Honorable
                                ) Edward R. Danner,
     Defendant-Appellant.       ) Judge, Presiding.
________________________________________________________________

     JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
     Presiding Justice Carter and Justice O’Brien concurred in
the judgment and opinion.
________________________________________________________________

                              OPINION

     The defendant, Darrell Rippatoe, appeals from an order of

the circuit court of McDonough County denying his posttrial

claims of ineffective assistance of counsel and denying his

request for appointment of new counsel.     This is the second time

that the defendant’s posttrial claim of ineffective assistance of

trial counsel has been brought before this court.    We previously
remanded this matter to the circuit court with directions to

conduct an appropriate inquiry into whether new counsel should be

appointed to present the defendant’s claim of ineffective

assistance of trial counsel.    People v. Rippatoe, No. 3--07--0646

(2009) (unpublished order under Supreme Court Rule 23).

                                FACTS

       A jury found the defendant guilty of home invasion (720 ILCS

5/12--11(a)(6) (West 2006)) and resisting or obstructing a peace

officer (720 ILCS 5/31--1(a) (West 2006)). At the sentencing

hearing, the defendant raised allegations of ineffective

assistance of counsel.    The trial judge, Judge Larry Heiser, did

not address the defendant’s claims of ineffective assistance of

trial counsel.    The court sentenced the defendant to 6½ years for

home invasion and 364 days for resisting or obstructing a peace

officer, the sentences to run concurrently.

       In a pro se motion filed after sentencing, the defendant

again raised allegations of ineffective assistance of counsel,

asking the trial court to appoint another attorney to represent

him.    By this time, Judge Heiser had retired and Judge Edward

Danner presided over defendant’s motion.    Judge Danner ruled

that, based upon his review of the transcript of the prior

proceedings, there was no merit to the defendant’s ineffective

                                  2
assistance claims.   The trial court then summarily denied the

request to appoint new counsel.

     The defendant appealed, maintaining that the trial court had

failed to conduct an adequate inquiry into the factual basis of

his pro se ineffective assistance claim.    See People v. Krankel,

102 Ill. 2d 181, 188 (1984).   This court reversed and remanded

the matter to the trial court with directions to conduct an

inquiry into the factual basis of the defendant’s pro se

posttrial claims in order to determine whether new counsel should

be appointed to investigate those claims.   This court held that

the defendant’s claims of ineffective assistance could not be

adequately addressed by merely reviewing the transcripts of the

trial.

     Following remand from this court, the defendant was

transported from a Department of Corrections facility to the

McDonough County courthouse where he was brought before Judge

Danner with his legs shackled together and his arms shackled to a

waist belt.   When asked to raise his right hand to be sworn, the

defendant exhibited extreme difficulty in doing so due to the

presence of the shackles.   After some effort to overcome the

weight and encumbrance of the shackles, the defendant was able to

raise his right hand sufficiently to swear an oath of truth.

                                  3
After the defendant successfully raised his right hand, there was

no further mention of the shackles, which remained on the

defendant throughout the hearing.

     The defendant testified that he told his defense counsel

that an individual named Floyd Robinson could testify that the

defendant had asked him to watch his two-year-old son, Ezekiel,

while the defendant went to the alleged victim’s house on the day

in question.   This testimony would have contradicted the

testimony of the victim and the victim’s adult son that the

defendant had brought Ezekiel with him to the victim’s house.

The defendant alleged that counsel did not call Robinson to

testify because of his race.   The defendant also testified that

his counsel had failed to ask a number of questions of the

prosecution witnesses that he had requested be asked.

     Attorney Douglas Miller, defendant’s trial counsel, was

called by the court to give testimony regarding his

representation of the defendant at trial.   Miller testified that

the defendant had given him the name of Floyd Robinson as a

potential witness.   Miller thereafter arranged for Robinson to

come to the courthouse during the defendant’s trial.    Outside the

courtroom, Miller asked Robertson if, on the day in question, the

defendant had taken Ezekiel to Robinson’s house so that Robinson

                                 4
could watch the child.   Robinson told Miller that he could not be

sure that the defendant had gone to the victim’s house while he

was watching the child or if the defendant had picked the child

up before going to see the victim.   Robinson claimed that he

watched the child for approximately an hour that day, but he

could not pinpoint the time of day when he was watching the

child.   Miller recalled that both the victim and her son

testified that Ezekiel was with the defendant when he invaded the

victim’s home and attempted to sexually assault her.

     Although Miller indicated that he had no concerns about

Robinson’s credibility as a witness, he decided not to call

Robinson to testify because he did not believe that Robinson’s

testimony would support a claim that the State’s witnesses were

not truthful when they testified that Ezekiel was with the

defendant.   In view of the fact that Robinson could not establish

what time of day he was watching the child, Miller surmised that

it was possible the defendant had picked up the child prior to

going to the victim’s house.

     Miller also testified that he decided against calling

Robinson as a witness regarding Ezekiel because he believed there

was a strategic advantage to the defendant in arguing that

Ezekiel’s presence would have made it highly unlikely that the

                                 5
defendant would invade the victim’s home and attempt to sexually

assault her with his two-year-old son in tow.   Miller testified

that, as he recalled, he had in fact made this argument to the

jury.   Miller further testified that he did not consider

Robinson’s race in the decision not to call him as a defense

witness.

     Miller also testified that he did not use the questions that

the defendant had asked him to pose to prosecution witnesses

because they were argumentative and unnecessary to the defense.

Miller further testified that he had been an assistant public

defender for approximately 21 years and had tried 40 to 50 jury

trials.

     After Miller testified, the defendant was allowed to

question Miller.   The defendant asked two questions of Miller,

both of which addressed a conversation between the defendant and

Miller regarding Robinson’s potential testimony.

     At the conclusion of the testimony, the trial court sought

argument from the Assistant State’s Attorney, from Miller, who

made note of the difficulty in arguing his own ineffectiveness,

and from the defendant, who presented a brief argument on his own

behalf.    The trial court then ruled that the defendant’s claims

of ineffective assistance of counsel did not warrant appointment

                                  6
of new counsel.    The court determined, based upon the testimony

of the defendant and Miller, that there was no indication that

Miller’s performance had been deficient.    The court found that

the substance of Robinson’s proposed testimony would not have

conclusively indicated that, at the time of the alleged home

invasion, Ezekiel was with Robinson and not, as the victim had

testified, with the defendant.    The court also found there was a

strategic reason not to call Robinson as a witness, noting that

it preserved Miller’s ability to argue that the defendant would

not have conducted a home invasion and sexual assault with his

child present.    Moreover, the court found no support for the

defendant’s claim that Miller refused to call Robinson as a

witness because of his race.

     At one point in the proceedings, the trial judge commented

that, in his previous personal experience with attorney Miller,

the judge had never known Miller to be deficient in his

performance.   The judge then recalled a case where Miller’s

representation of a particular defendant had, in the opinion of

Judge Danner, effectively gotten a not guilty verdict for a

defendant who was probably guilty.    Specifically, Judge Danner

observed as follows:



                                  7
"The court has, in over 30 years, has had

[sic] experience of seeing wide ranges of

ability of various counsel.    This court did

sit here in 2007 and had [sic] opportunity

from time to time and occasion to occasion to

observe Mr. Miller conduct court on behalf of

his clients.   The court’s previous experience

with Mr. Miller has been that he customarily

was acquainted with his cases.    Did legal

research.   Asked questions.   Actually, I

remember one case Mr. Miller conducted in

front of me that I knew, as well as I was

sitting on the bench, there had been a fellow

that walked out of the door with a couple of

packs of tobacco, but it could not be shown

with the identification marks and I found the

defendant not guilty, who was a habitual

shoplifter over here at McDonough County, but

Mr. Miller had done some excellent research

talking about the act with specificity the

items coming from a particular establishment.

This court found Mr. Miller to be a

                       8
          respectable member of the Bar, and officer of

          the Court, and to have always been candid

          with this court."

     The trial judge then announced his finding that the

defendant had failed to establish the need to appoint new counsel

to further investigate the defendant’s ineffective assistance of

counsel claims.



                              ANALYSIS

     On appeal, the defendant raises two claims of reversible

error by the trial court: (1) permitting him to be in shackles

throughout the hearing on his posttrial claim of ineffective

assistance of counsel; and (2) referring to defense counsel’s

performance on other matters before the court in ruling that the

defendant’s allegations of ineffective assistance of counsel were

insufficient to require appointment of new counsel.

     As a preliminary matter, we note that neither of these two

allegations of error was raised by objection during the hearing.

Ordinarily, an issue is forfeited on appeal if it was not raised

in the trial court through both a contemporaneous objection and a

written motion.   People v. Enoch, 122 Ill. 2d 176 (1988); People

v. Allen, 222 Ill. 2d 340, 350-51 (2006).   In order to overcome a

                                 9
claim of forfeiture, we must determine whether the alleged errors

can be reviewed under the so-called "plain-error doctrine."

People v. Hillier, 237 Ill. 2d 539, 542 (2010).   This doctrine

proceeds in two steps.    First, we must determine whether a clear

and obvious error occurred.   People v. Piatkowski, 225 Ill. 2d

551, 565 (2007).   If we find that an error occurred, we must then

determine whether the error was reversible.   There are two ways

to determine whether the error constituted reversible error.

Reversible error occurs "when (1) a clear or obvious error

occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the

defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that

it affected the fairness of the defendant’s trial and challenged

the integrity of the judicial process, regardless of the

closeness of the evidence."   Piatkowski, 225 Ill. 2d at 565.   In

the first instance, the defendant must show that he was

prejudiced by the error, i.e., the evidence was so closely

balanced that the error threatened to ? <tip the scales of

justice’ ? against him.   Piatkowski, 225 Ill. 2d at 565 (quoting

People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).   In the second

instance, however, the defendant must show that the error was so

                                 10
serious that it affected the fairness and integrity of the

proceeding "regardless of the strength of the evidence."

(Internal quotation marks omitted.)(Emphasis omitted.)    Id. at

565.

                           1. Shackling

       It is well established that shackling a defendant in a

criminal case is to be avoided unless absolutely necessary

because such a drastic measure: (1) tends to prejudice the jury

against the defendant, by negating the presumption of innocence;

(2) restricts the defendant’s ability to assist his counsel

during trial; and (3) offends the dignity of the judicial

process.    People v. Boose, 66 Ill. 2d 261, 265 (1977); People v.

Urdiales, 225 Ill. 2d 354, 415 (2007).    Even in a posttrial

proceeding, where there is no jury, any unnecessary restraint of

a defendant is impermissible because it demeans both the

defendant and the judicial process.    People v. Allen, 222 Ill. 2d

340, 346 (2006).    As such, it is error for a court to order or

permit a defendant to be shackled at any point in a criminal

proceeding unless the court has conducted a hearing in which it

determines a manifest need for such restraints.    Boose, 66 Ill.

2d at 265-66; Allen, 222 Ill. 2d at 367.    There are several

specific factors that must be considered by the trial court to

                                 11
determine whether there is a manifest need for restraining a

defendant during a court proceeding.   Boose, 66 Ill. 2d at 266-

67.   Failure by the trial court to consider the Boose factors is

clear and obvious error.   Urdiales, 225 Ill. 2d at 415-16; Boose,

66 Ill. 2d at 267.

      Here, the trial court erred in failing to conduct an inquiry

into the need for the defendant to be shackled during the hearing

on his posttrial motion.   Having determined that clear and

obvious error did, in fact, occur, we must determine whether the

error constituted reversible error under the plain-error

doctrine.   Proceeding to the first test to determine whether a

clear and obvious error is reversible, we note that the defendant

has not argued that the evidence adduced at the hearing on his

posttrial motion was closely balanced.   Therefore, the first test

does not apply.   The defendant must, therefore, establish that

his being shackled during the hearing on his pro se motion was so

serious in nature as to have affected the fairness of the

proceedings and challenged the integrity of the judicial process.

The burden of persuasion on the question lies with the defendant.

Piatkowski, 225 Ill. 2d at 565 (citing People v. Herron, 215 Ill.

2d 167, 187 (2005)).



                                12
     The defendant argues that his participation at the hearing

on his pro se motion while shackled, including giving testimony,

questioning a witness and addressing the court in argument, was

fundamentally unfair and clearly demeaned the dignity of the

judicial process.   The defendant points to his extreme difficulty

in raising his right hand to take the oath of truth as a vivid

example of how unfair and demeaning to the dignity of the

proceedings the shackles were.   He maintains that questioning

witnesses, giving testimony, and presenting argument, all while

his legs were shackled together and his arms were shackled to his

waist, made a mockery of the proceedings.   We agree.

     The State maintains, however, that there is no indication

that the trial judge was negatively influenced by the fact that

the defendant was shackled.   People v. Jackson, 205 Ill. 2d 247

(2001) (the law presumes a judge is impartial, even under strong

provocation).   Thus, the State further maintains, the defendant

has failed to establish that the fairness of the proceedings was

impaired or the integrity of the judicial process was impaired.

We disagree.    There can be no doubt that shackles impose physical

burdens, pains, and restraints that tend to confuse and embarrass

a defendant, burden his mental faculties and thereby materially



                                 13
abridge and prejudicially affect his constitutional rights.    Deck

v. Missouri, 544 U.S. 622, 631 (2005).

     Where a defendant is forced to appear pro se, take an oath,

testify, question witnesses, and present his arguments to the

court all while shackled, without any consideration by the trial

judge of the necessity for the shackles, the integrity of the

judicial process is greatly demeaned.    There can be no doubt that

the defendant’s ability to act on his own behalf is severely

diminished.    Moreover, there can be no doubt that the integrity

and dignity of the judicial proceedings was demeaned where one of

the participants had to conduct himself throughout the hearing

while bound hand and feet for no apparent reason and without even

an inquiry into a need to be restrained.   We find, therefore,

that it was plain and reversible error for the trial judge to

require the defendant to participate in these proceedings while

in shackles.   The matter is reversed and remanded to the circuit

court for further proceedings wherein the trial court will make a

proper determination regarding the need to have the defendant

participate in a hearing on his pro se motion while shackled, and

if there is no manifest reason to do so, the defendant should be

allowed to proceed in a manner that will not adversely affect the

integrity of the judicial process.

                                 14
                     2.   Off-record Findings

     Although our finding that the trial court committed

reversible error in allowing the hearing to proceed while the

defendant was shackled is sufficient to warrant remand for a new

hearing, we find it necessary to address the defendant’s argument

that the trial judge erred in considering his off-record

knowledge of defense counsel’s performance in other cases in

deciding the defendant’s claim of ineffective assistance of

counsel.   Again, we note that the defendant forfeited the issue

on appeal and we cannot review the matter unless it is deemed to

be plain error.    Hillier, 237 Ill. 2d at 544-45.

     We find that the trial court’s reliance upon its own

observations of Miller’s performance in other matters was clear

error.   See   People v. Steidl, 177 Ill. 2d 239, 266 (1997)

("[d]eliberations of the court must necessarily be limited to the

record before it"); People v. Dameron, 196 Ill. 2d 156, 171-72

(2001)(? <a determination made by the trial judge based upon a

private investigation by the court or based upon private

knowledge of the court, untested by cross-examination, or any of

the rules of evidence constitutes a denial of due process of

law’ ")(quoting People v. Wallenberg, 24 Ill. 2d 350, 354

(1962)).

                                  15
     Of particular relevance in the instant matter is Steidl,

where our supreme court found a trial court engaged in reversible

error when it commented as follows:

                 ? <Petitioner’s trial counsel has

          appeared before [this court] on numerous

          other occasions involving both criminal and

          civil cases and has effectively represented

          clients.    In a serious felony case tried

          before this Court, the Court recalls a

          defendant being found not guilty by a jury

          although the evidence against the defendant

          was substantial.    The result was probably

          attributable to counsel’s tactics in

          presenting the case to the jury.

                 The court is also aware of a homicide

          case tried by petitioner’s trial counsel to a

          jury in Vermillion County, Illinois.       In that

          case, the defendant was found not guilty by

          jury in spite of eyewitness testimony.       A

          result, again, probably attributable to trial

          counsel’s tactics.’ "    Steidl, 177 Ill. 2d at

          265.

                                  16
     We cannot help but note the striking similarity between

Judge Danner’s comments in the instant matter and the comments

which constituted reversible error in Steidl.

     Having found that the trial judge committed error in

commenting on his personal knowledge of Miller’s performance in

other matters before him, we must still determine whether the

error constituted reversible error.    We find that the defendant

has not established that the trial judge’s error affected the

fairness of the proceedings or challenged the integrity of the

judicial process.   Although a judge errs in considering facts

outside the record, that error is harmless when a reviewing court

can safely conclude that consideration of the facts outside the

record did not affect the result.     People v. Jennings, 364 Ill.

App. 3d 473 (2005).   Here, unlike in Steidl, where no evidentiary

hearing took place, we may conclude that Judge Danner’s musings

and reminiscences about Miller’s performance on other cases did

not affect his ruling.

     In Steidl, unlike in the instant matter, there was no

evidentiary hearing, making the judge’s personal knowledge of

trial counsel’s performance the only basis on the record for its

determination that counsel provided competent representation.

Steidl, 177 Ill. 2d at 265-66.   Here, the record includes the

                                 17
testimony of both the defendant and his trial counsel.   On

review, we may determine from the complete record, absent Judge

Danner’s inappropriate musings, that Miller provided competent

representation.   The record supports a finding that the decision

not to call Robinson as a witness was a matter of trial strategy.

While it was clear and obvious error for the trial judge to

consider his personal knowledge of Miller’s performance on other

matters, the defendant has failed to establish that he was

prejudiced by the trial judge’s error.

                             CONCLUSION

     The trial court erred at the hearing on the defendant’s

posttrial motion, both by allowing the defendant to remain

shackled throughout the proceeding without a determination that

shackles were necessary and by commenting upon the court’s

personal knowledge of defense counsel’s performance in other

matters before the court.   While both actions by the trial court

were erroneous, the defendant established reversible error only

on the shackling issue.   The matter is remanded to the circuit

court for further proceedings wherein the trial court will make a

proper determination regarding the need to have the defendant

participate in a hearing on his pro se motion while shackled.     If

there is no manifest reason for the defendant to be shackled, a

                                18
new hearing shall be held on the defendant’s claim of ineffective

assistance wherein the trial court is instructed, once again, to

conduct an inquiry into the factual basis of the defendant’s pro

se posttrial claims in order to determine whether new counsel

should be appointed to investigate those claims.

     Reversed and remanded with directions.




                               19
