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                               Appellate Court                          Date: 2018.03.26
                                                                        12:34:26 -05'00'




                  People v. Robinson, 2017 IL App (1st) 161595



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



District & No.    First District, Fourth Division
                  Docket No. 1-16-1595



Filed             December 14, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-2330; the
Review            Hon. Thomas J. Byrne, Judge, presiding.



Judgment          Affirmed; fines and fees order corrected.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Rebecca I. Levy, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Annette Collins, Mary P. Needham, and Veronica Calderon Malavia,
                  Assistant State’s Attorneys, of counsel), for the People.



Panel             JUSTICE GORDON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Burke and Justice Ellis concurred in the judgment
                  and opinion.
                                             OPINION

¶1       On January 14, 2010, defendant was arrested after the victim, Eugene Witherspoon,
     discovered defendant in Witherspoon’s apartment attempting to remove a television set. After
     a bench trial, defendant was convicted of both residential burglary and aggravated battery of
     Witherspoon. 720 ILCS 5/19-3(a), 12-4(a) (West 2008). Defendant filed a pro se posttrial
     motion for a new trial claiming ineffective assistance of trial counsel, which the trial court
     denied after conducting a preliminary inquiry pursuant to People v. Krankel, 102 Ill. 2d 181,
     189 (1984). Defendant’s trial counsel also filed a posttrial motion for a new trial with
     numerous claims, which was also denied. After hearing arguments on aggravation and
     mitigation, the trial court sentenced defendant to 30 years with the Illinois Department of
     Corrections (IDOC) for residential burglary and 7 years for aggravated battery, to run
     concurrently.
¶2       On direct appeal, both defendant and the State agreed that the fines and fees order should
     be modified, and we corrected the “Order Assessing Fines, Fees, and Costs,” such that the total
     fees and costs due from defendant was $365. We also found that his extended-term sentence on
     the lesser offense of aggravated battery was not warranted, and we corrected the mittimus to
     reflect a five-year sentence for that offense. However, we did not find persuasive defendant’s
     claims (1) that the State’s evidence was insufficient to prove residential burglary and
     aggravated battery or (2) that his sentence for residential burglary was excessive.
¶3       In addition, we remanded for a new Krankel hearing before a different judge, finding that
     “the State’s participation changed the preliminary Krankel hearing from an objective or neutral
     inquiry into an adversarial inquiry.” People v. Robinson, 2015 IL App (1st) 130837, ¶ 81.
     Since we determined that the preliminary Krankel hearing was not properly conducted, we did
     not consider at that time “the merits of the trial court’s Krankel findings.” Robinson, 2015 IL
     App (1st) 130837, ¶ 82.
¶4       On remand, a different trial judge conducted a new preliminary Krankel hearing and again
     denied defendant’s pro se motion for a new trial based on his trial counsel’s alleged
     ineffectiveness. Defendant now appeals, claiming (1) that the trial court should have appointed
     new counsel at the conclusion of the new preliminary Krankel inquiry and (2) that defendant’s
     fines and fees order must be corrected again. The State agrees that the fines and fees order
     should be corrected again, and we so order it, as we detail below. However, we do not find
     defendant’s Krankel arguments persuasive and affirm his conviction and sentence.

¶5                                        BACKGROUND
¶6                                       I. Evidence at Trial
¶7       We provided a detailed description of the evidence at trial in our prior opinion, and we
     incorporate that opinion by reference. Robinson, 2015 IL App (1st) 130837, ¶¶ 6-25. In sum,
     the State’s evidence at trial established that, on January 14, 2010, Eugene Witherspoon, a
     security guard and resident of an apartment building located on East 46th Street in Chicago,
     was outside talking to a number of employees from a security company about installing
     security cameras in the building. His wife, Mary Johnson, was asleep in their second-floor
     apartment. While outside discussing the installation of security cameras, Witherspoon heard a
     noise from inside the building and ran to the third floor, where he believed the noise originated


                                                 -2-
       from. He then descended to the second floor, where he observed a woman exiting his
       apartment with his laptop. Rather than follow this woman, Witherspoon entered his apartment
       to check on his wife and observed defendant in his apartment wrapping an unplugged
       television cord around Witherspoon’s television set. While defendant and Witherspoon
       testified to differing versions of the events that followed, it is undisputed that a physical
       altercation between defendant and Witherspoon ensued and that, during this altercation,
       defendant bit off part of Witherspoon’s lower lip. Witherspoon testified that he and defendant
       fought in Witherspoon’s living room for 5 to 10 minutes before the fight moved to the hallway
       and then down the stairs. By contrast, defendant testified that the fight began in the hallway of
       the building, after Witherspoon hit defendant from behind several times in the head with a gun.
¶8          The State’s evidence at trial consisted of the testimony of four witnesses: (1) Eugene
       Witherspoon, the victim; (2) Mary Johnson, Witherspoon’s wife, who was asleep in the
       apartment at the time of the incident; (3) police officer John Thill, one of the arresting officers;
       and (4) police officer Thomas Ellerbeck, one of the evidence technicians who processed the
       crime scene. The parties also stipulated to the testimony of Michael Cox, the Illinois State
       Police crime lab fingerprint examiner who reviewed fingerprints from the crime scene.
¶9          The parties stipulated that Cox, a senior fingerprint examiner for the Illinois State Police
       crime lab, would testify that, in Cox’s opinion, based upon a reasonable degree of scientific
       certainty, one of the two latent prints recovered at the crime scene belonged to defendant.
¶ 10        After the State rested in its case-in-chief, defendant testified that, on January 14, 2010,
       defendant was walking to work when he was approached by a woman he recognized because
       she frequented the restaurant where he worked. The woman, who defendant knew as “Wanda,”
       asked defendant to help her move. Defendant had 45 minutes before he needed to be at work,
       and he agreed to help her. Defendant followed her to an apartment building on East 46th Street
       where Wanda opened the door to an apartment and led defendant inside.
¶ 11        Defendant testified that, once they were inside the apartment, Wanda indicated that
       defendant should take the television set, which was already on the floor. Then Witherspoon
       opened the apartment door, observed defendant and Wanda, and yelled “Wanda, what the f***
       is you doing?” Wanda responded that she was retrieving her belongings and she began arguing
       with Witherspoon. Defendant moved into the hallway, unsure of what was happening. Wanda
       walked into the hallway of the building, telling defendant that she would have to retrieve her
       belongings at another time. Defendant began to follow Wanda down the stairs when
       Witherspoon hit defendant from behind several times in the head with a gun. Defendant and
       Witherspoon began to wrestle and, at one point during the ensuing fight, Witherspoon yanked
       defendant toward him, and defendant bit Witherspoon’s lip. After defendant bit Witherspoon’s
       lip, Witherspoon released defendant, and Wanda and defendant started to leave. As Wanda
       held the door open for defendant to leave, Witherspoon used his gun to shoot the front door of
       the building, shattering the glass in the door.
¶ 12        Defendant testified that two men then entered the building to ask what was happening.
       Witherspoon told the men that defendant had tried to rob his apartment. The men calmed
       Witherspoon down, and defendant and Witherspoon sat in the hallway until the police arrived.
       When the police arrived, they questioned one of the men who was still in the hallway, and this
       man informed the police officer that he was unsure of what had happened. The police
       transported defendant to the police station and then to Provident Hospital. At the hospital,


                                                    -3-
       defendant received medical attention, which included eight staples in three different locations
       on the back of his head.
¶ 13       On cross-examination defendant admitted that a jacket, hat, glove, cigarette butt, pocket
       knife, and cell phone found in the hallway of the building belonged to him. However,
       defendant denied owning a flathead screwdriver that was also found in the hallway and denied
       possessing a Phillips-head screwdriver found in his pocket when he was transported to the
       police station. Defendant further testified that, when he arrived at the apartment building,
       Wanda opened the door to the building without a key and without needing to be buzzed into the
       building. While walking up the stairs of the building, defendant was “two or three stairs”
       behind Wanda and did not observe if she used a key to open the door to the apartment. The
       door was already open, and Wanda was entering the apartment when defendant reached the top
       of the stairs. Defendant also testified that he never observed a computer in the apartment and
       that Wanda did not have a bag or a computer when she exited the apartment building.
¶ 14       During cross-examination, defendant did not acknowledge specifically meeting with an
       assistant State’s Attorney (ASA), but he did acknowledge that “a woman” tried to talk to him
       while defendant was at the police station. Defendant denied talking to this woman or to any
       other individual at the police station.
¶ 15       After cross-examination, the defense moved into evidence the medical records from
       Provident Hospital that detailed defendant’s injuries. The State did not object, and the trial
       court admitted the medical records into evidence.
¶ 16       After the defense rested, the State introduced in rebuttal a stipulation which stated that if a
       certain ASA were called to testify, she would testify to the contents of a postarrest statement
       made by defendant. Similar to defendant’s trial testimony, the statement described how
       defendant was helping a woman named Wanda move her things out of an apartment when a
       physical altercation occurred between defendant and Witherspoon.

¶ 17                               II. Conviction and Posttrial Motions
¶ 18       At the close of the bench trial on December 3, 2012, the trial court found that
       Witherspoon’s testimony and Johnson’s testimony were credible and defendant’s testimony
       was not. The trial court then found defendant guilty of (1) residential burglary, (2) aggravated
       battery by great bodily harm, (3) aggravated battery by permanent disfigurement, and (4) home
       invasion. On January 4, 2013, defense counsel filed a posttrial motion for a new trial.
¶ 19       On January 10, 2013, at the hearing on defense counsel’s posttrial motion for a new trial,
       defendant stated that he was making a pro se motion for a new trial based on his trial counsel’s
       ineffective assistance. The notice of service for the pro se motion, the pro se motion itself, and
       defendant’s affidavit in support of his motion had each been stamped “received” on January 4
       but had not been filed with the clerk of the court. The trial court gave defendant leave to file
       them.
¶ 20       Defendant’s pro se motion alleged that his trial counsel was ineffective (1) for failing to
       hold meaningful conferences, (2) for not conducting a proper investigation to find Wanda, who
       defendant claims was the woman whom Witherspoon observed exiting Witherspoon’s
       apartment and who would have testified that she had a relationship with Witherspoon, (3) for




                                                    -4-
       failing to interview the defense investigator, Jane Doe, 1 who previously interviewed
       Witherspoon, (4) for failing to contact the medical physician who treated defendant’s wounds,
       (5) for failing to investigate the crime scene, (6) for failing to request the trial court to vacate
       the home invasion count,2 (7) for failing to file pretrial motions to quash or suppress evidence,
       (8) for agreeing to the stipulation regarding the ASA, (9) for failing to adequately
       cross-examine Witherspoon, (10) for failing to adequately cross-examine Officer Ellerbeck,
       the evidence technician, and (11) for failing to subpoena any of the arresting officers.3
¶ 21        The trial court then questioned defendant about these claims. Defendant claimed that the
       physician who treated defendant could have impeached Witherspoon’s testimony that
       Witherspoon hit defendant once. The trial court replied, “He said one to two times, but go
       ahead.” Defendant did not provide an affidavit from the physician.
¶ 22        The trial court then asked defendant how defense counsel’s investigation of the crime
       scene would have helped defendant when the photos of the apartment, submitted into evidence,
       showed the subject area. Defendant claimed that defense counsel would have been able to
       provide the court, “in the mind’s eye,” a better measurement of the distances in the apartment
       and the impossibility of the fight as described by Witherspoon.
¶ 23        The trial court did not address the allegation of failing to vacate the home invasion count,
       stating that, because defense counsel had not yet made arguments for mitigation in sentencing,
       the trial court would hold that allegation in abeyance.
¶ 24        The trial court asked defendant to clarify who the investigator, Jane Doe, was. Defendant
       could not, and defense counsel clarified that defendant was referring to an investigator, Ms.
       Stewart, who had been asked by defendant’s previous public defender to interview
       Witherspoon. The trial court then asked defendant how the investigator’s testimony would
       have helped defendant’s case. Defendant could not remember the specifics from the
       investigator’s interview but claimed that it would have impeached Witherspoon’s testimony
       that Witherspoon and Wanda did not engage in a verbal exchange. Defendant did not produce
       an affidavit from Investigator Stewart.
¶ 25        The trial court then asked defendant if he had an affidavit from Wanda, which defendant
       had not obtained. Defendant claimed that Wanda would be able to verify that she invited
       defendant to the apartment and that defense counsel could have tried to locate her because
       defendant had told defense counsel the area that Wanda frequented. Upon questioning by the
       trial court, defendant was not able to provide Wanda’s last name, birth date, or address.
¶ 26        The trial court then asked defendant why he thought the screwdriver recovered by the
       police from defendant’s pocket should have been suppressed. Defendant responded that it
       could have been challenged because the officer did not feel it during the pat-down search at the
       crime scene but recovered it later at the police station.
¶ 27        The trial court then asked defendant about his claim to suppress the statement that the ASA
       would have testified to. Defendant reiterated his claim that he never spoke to an ASA.



           1
             The investigator was later identified through a last name by defense counsel but no first name was
       provided.
           2
             The trial court vacated defendant’s conviction for home invasion prior to sentencing. Infra ¶ 33.
           3
             One of the arresting officers, John Thill, did testify at trial.

                                                      -5-
¶ 28       Defendant claimed that defense counsel failed to adequately question Witherspoon about
       an alleged discrepancy concerning the number of people in the “apartment” versus the
       “residence.” Defendant also claimed that defense counsel failed to adequately cross-examine
       Officer Ellerbeck about his photos of the evidence found at the crime scene. The trial court
       responded to both claims by observing that defense counsel had cross-examined the witnesses
       and raised the very same claims regarding credibility that defendant was now claiming were
       not made.
¶ 29       After the trial court allowed defendant to explain his claims, the trial court asked defense
       counsel if he would like to respond. Defense counsel responded that he never received any
       information with which to find Wanda. Defense counsel stated that he vigorously
       cross-examined witnesses and that he asked defendant at trial if there were any other questions
       defendant wanted him to ask, and he then asked the witnesses the questions that defendant
       requested. Defense counsel stated that he had visited the crime scene but was unable to enter
       the building and that there was not anything he could do about that. Defense counsel stated that
       he did not call the physician as a witness because there was nothing the physician could add
       that was not already in the medical records. Further, defense counsel noted that, in closing
       arguments, he specifically pointed the trial court’s attention to the page of the medical report in
       the record showing that there were three separate lacerations on defendant’s head. Defense
       counsel noted that he had raised at trial concerns about a discrepancy in Witherspoon’s
       testimony about the number of people in the apartment on January 14, 2010, and the potential
       problems with the photographs taken by Officer Ellerbeck. Defense counsel stated that he
       asked Stewart, the defense investigator, to be ready to be called as a witness but that there was
       nothing in Stewart’s interview of Witherspoon that could have been used to impeach
       Witherspoon. Defense counsel stated that he stipulated only to what the ASA would have
       testified to but that he had not stipulated to the truthfulness of the statement.
¶ 30       After defense counsel ended his reply, the trial court invited the State to respond. The State
       noted that defendant’s allegations “fly in the face of everything that was done over this
       multi-day trial.” The State argued that defense counsel would not have been able to suppress
       the screwdriver found on defendant’s person because “the officer said he did a patdown [sic]
       and didn’t feel it” and the fact that “it was later recovered is not a basis, as Your Honor is well
       aware, of a motion to quash arrest or suppress evidence.” In regard to the stipulation
       concerning the ASA, the State argued that the statement and defendant’s testimony were
       “generally the same” and that defendant’s argument to suppress the ASA’s testimony “when
       he testified to those exact facts flies in the face of common sense.” The State noted that
       Witherspoon’s testimony would not have been impeached by Investigator Stewart’s testimony.
       Citing relevant legal authority,4 the State then argued that the trial court is not required to
       appoint new counsel every time a defendant files a pro se motion claiming ineffective
       assistance of counsel and that the court can make a finding either by asking the defendant
       questions about the claim or by relying on the court’s personal knowledge of defense counsel’s
       performance at trial. The State then requested that the trial court deny defendant’s pro se
       posttrial motion for a new trial.
¶ 31       The trial court denied defendant’s pro se motion, stating that it had observed defense
       counsel asking defendant during trial if there were any more questions to ask witnesses.

          4
           The relevant legal authority is discussed later in this opinion. Infra ¶¶ 83-84.

                                                      -6-
       Defense counsel had then directed defendant’s questions to the witnesses. Defense counsel had
       further “hit the points that should have been hit for your defense.” As to Wanda, the trial court
       observed that defense counsel did not have enough information to find her and there was no
       proof that she would have corroborated defendant’s story. The trial court finished by noting
       that none of defendant’s claims would have affected the outcome at trial. The trial court then
       denied both posttrial motions.

¶ 32                                           III. Sentencing
¶ 33        On January 22, 2013, the trial court sentenced defendant. First, the court vacated the
       conviction of home invasion, stating, “And I did review my notes about your arguments,
       Counsel, about the fact that [defendant] was trying to leave but was stopped by Mr.
       Witherspoon. So I am going to revisit that issue and vacate my finding of Count 1, the home
       invasion, based on my reading of that ruling.” During the aggravation phase of sentencing, the
       trial court considered defendant’s burglary conviction on September 23, 2003, and defendant’s
       eight burglary convictions on October 13, 2006. On January 14, 2010, the date of the offense,
       defendant was still on mandatory supervised release for eight burglary convictions from
       October 13, 2006. All nine prior convictions were Class 2 offenses. As a result of the prior
       convictions, and the violent nature of this residential burglary, defendant was sentenced as a
       Class X offender. Defendant stated that he had reviewed the presentencing investigation
       report, and the defense did not object to the prior convictions. The trial court considered that
       defendant caused serious bodily harm to Witherspoon and that the trial court had observed at
       trial how this bodily harm caused Witherspoon to suffer a speech impediment. Furthermore,
       the injury caused Witherspoon severe pain, and Witherspoon’s lip would, on occasion, become
       discolored and peel. In mitigation, defense counsel stated that defendant’s mother had died at a
       young age, that defendant’s father was not involved in his life and that, as a result, defendant
       had to take care of himself from a young age. Defense also noted that defendant had been
       employed for the past 10 years.
¶ 34        On the count of residential burglary, the trial court sentenced defendant to 30 years in
       IDOC, followed by 3 years of mandatory supervised release. On the count of aggravated
       battery by great bodily harm, the trial court sentenced defendant to a seven-year extended term
       sentence, to run concurrently.5 On the same day, the trial court denied defendant’s motion to
       reconsider sentence. The trial court granted defendant a credit of $5 per day for the 1104 days
       defendant was in custody. The trial court calculated the fines and fees as totaling $445 and
       stated, “I will give you credit of $5 a day toward each day you serve [sic] toward those fines.”
       The direct appeal followed, which led, as we already described, to a remand for a new
       preliminary Krankel hearing before a different trial judge. Supra ¶¶ 3-4.

¶ 35                               IV. New Preliminary Krankel Hearing
¶ 36      On April 19, 2016, a new preliminary Krankel hearing was held before a different trial
       judge. At the start, the trial court stated that it had reviewed defendant’s pro se motion, filed

           5
            The trial court did not state that it was merging the count of aggravated battery by permanent
       disfigurement into the count of aggravated battery by great bodily harm. However, the mittimus reflects
       only convictions and sentences for (1) residential burglary and (2) aggravated battery by great bodily
       harm.

                                                      -7-
       January 14, 2013, and that both defendant and the court had copies of it in front of them. The
       trial court then asked defendant about each of his claims in turn, as we detail below.

¶ 37                            A. Counsel’s Conferences With Defendant
¶ 38        The trial court noted that, in his motion, defendant claimed that his attorney failed to hold
       any meaningful conferences with him. Defendant responded that he had informed the prior
       trial judge “early on” that his family could no longer afford to pay defendant’s privately
       retained counsel, and that the prior trial judge had “ignored that issue.” As a result of the lack
       of payment, defendant believed that his counsel had no “incentive to help [defendant] the best
       he could.” The trial court asked whether counsel had said “anything to that effect,” and
       defendant responded, “I can’t say that he did.” Nonetheless, it was “a feeling” defendant had,
       because his counsel always said that he had left his file somewhere else, in his vehicle or in his
       home, when he came to visit defendant. Defendant stated that his counsel visited him three or
       four times in jail, but would then say that he did not have his file and would see defendant in
       court. On court dates, counsel would simply inform defendant that he had obtained a
       continuance.

¶ 39                                        B. Locating Wanda
¶ 40       In addition to failing to hold meaningful conferences, defendant claimed that his counsel
       did not attempt to locate Wanda. Defendant stated that he asked his counsel to find Wanda and,
       specifically, to speak to the manager of the restaurant where defendant worked and which
       Wanda frequented. Defendant stated, “Yeah, the restaurant, yes, sir. And he never went. I have
       an affidavit from them saying that they was waiting on him to come, but he never came.”
       Defendant explained that the restaurant had “been there over 25 years” and “[t]hey know
       everybody from the surrounding neighborhood.”
¶ 41       Defendant stated that he was “in contact with the people at the restaurant” regarding
       Wanda and “they say the only thing they knew [was] that she stayed between 46 and 47th”
       Streets and Indiana Avenue. However, they did not know her last name. Defendant stated that,
       closer to the time of the offense, “we had a better chance of trying to find her.”
¶ 42       Defendant stated that he asked his sister, who is not from the same neighborhood and is
       from the suburbs, to go to the restaurant and talk to them. His sister went and asked defendant’s
       manager, but she was not able to obtain a last name or address for Wanda. Defendant argued
       that his counsel “never even tried to go out there,” and Wanda was “basically key to
       [defendant’s] whole case.” Defendant argued that Wanda’s testimony would have been that
       she had “some kind of relationship” with Witherspoon and “[i]t wasn’t no we just broke in
       here.” When the trial court pointed out that Wanda fled, defendant responded that Witherspoon
       “pulled out his gun, now she’s gone.”
¶ 43       Defendant claimed later at the inquiry that his counsel stated, “I did not go out and
       investigate because, quite frankly, I don’t think she exists.” Then defendant argued, “How can
       you be an attorney and take a case [where] you don’t believe in your client. That is not
       possible.”




                                                   -8-
¶ 44                                 C. Public Defender’s Investigator
¶ 45                               1. Witherspoon’s Question to Wanda
¶ 46       Defendant also claimed that his counsel failed to subpoena an investigator who had been
       asked by defendant’s prior counsel, an assistant public defender, to interview Witherspoon.
       Defendant argued that “the statement that [Witherspoon] gave [the investigator] and the
       testimony that he gave at trial, even from the police reports and preliminary hearing, they were
       all different.” The trial court asked, “Didn’t your lawyer *** have [the investigator] under
       subpoena in *** case *** Mr. Witherspoon testified contrary to his interview with her? Isn’t
       that what the strategy was?” Defendant agreed that was the strategy. However, defendant
       believed that Witherspoon “did testify contrary,” while his counsel believed that it was not
       contrary. As an example of a contradiction, defendant stated that Witherspoon testified at trial
       that he did not say anything to the woman exiting his apartment, whereas to the investigator
       Witherspoon stated that he asked the woman where she was going.

¶ 47                                        2. A Third Man
¶ 48       Defendant also argued that there was a discrepancy between the investigator’s report and
       Witherspoon’s trial testimony as to how many people were in his apartment. However,
       defendant acknowledged that his counsel brought out that discrepancy by relying on
       Witherspoon’s testimony at the preliminary hearing rather than Witherspoon’s statement to the
       investigator.
¶ 49       During cross-examination at trial, defense counsel tried to impeach Witherspoon’s trial
       testimony that there were only two people inside his apartment, noting Witherspoon’s prior
       testimony at a preliminary hearing that there were three people inside his “residence”:
       defendant, the woman, and a “lookout guy.” Upon further questioning, Witherspoon explained
       that defendant and the woman were in Witherspoon’s apartment, while a possible male
       “lookout” was standing immediately outside of the building.

¶ 50                                 D. Defendant’s Treating Physicians
¶ 51       Defendant also claimed that his counsel failed to contact defendant’s treating physicians.
       Defendant explained that the purpose of calling the physicians was to describe defendant’s
       injuries and to specify how he sustained them. Defendant stated that he received three different
       injuries in three different locations. The trial court asked, “Isn’t that what your attorney argued
       though, that Witherspoon hit you more than once; right?” Defendant acknowledged that his
       counsel argued that, but defendant responded that the State had alleged that defendant’s
       injuries were sustained when he and Witherspoon tumbled down carpeted stairs. Defendant
       argued that a doctor’s “professional opinion on how this [sic] injuries was sustained” would
       have supported his argument that the injuries were the result of blows by a blunt object rather
       than the result of a fall down carpeted stairs.
¶ 52       The trial court reminded defendant that his counsel admitted his medical records in
       evidence, which included a diagram of the patient showing three injuries to the head, and that
       his counsel argued that these injuries were inconsistent with the State’s theory of a fall down
       the stairs. Defendant responded that counsel’s argument would have been more effective if
       there had been testimony from “a medical professional there who say, look, I’ve been in this



                                                    -9-
       field for many years, this injury didn’t happen from a fall down some stairs.”

¶ 53                                        E. Apartment Visit
¶ 54        Defendant also claimed that his counsel was ineffective for failing to visit Witherspoon’s
       apartment. Defendant admitted that there were photos of the areas where the confrontation
       occurred that were taken shortly after the incident. However, defendant argued that
       measurements would have showed the impossibility of the fight as described by Witherspoon.
       Defendant stated that Witherspoon was 6 feet, 7 inches tall, and the area was 3 feet by 3 feet.
       Defendant argued that it was impossible for “me and him wailing around in this 3 feet by 3 feet
       area for ten minutes, and nothing gets knocked over.” Defendant stated that “actual
       measurements” would have bolstered his case.
¶ 55        The trial court then examined the photographs that had been introduced into evidence at
       trial and observed that they “show exactly what the space looked like after the altercation” and
       “the relative position of the furniture in the room, the proximity to the walls, the door.” The
       court then asked defendant if his position was “that actual measurements, feet and inches,
       would be more persuasive.” Defendant stressed how tall Witherspoon was, and the trial court
       observed that Witherspoon had been in court during the trial, thus implying that the original
       trial court was well aware of his height.

¶ 56                                       F. Suppression Motions
¶ 57       Defendant claimed that his counsel failed to file a pretrial motion to suppress a screwdriver
       in defendant’s pocket. When the trial court asked defendant for the “legal basis that you
       envisioned for filing a motion to quash that screwdriver,” defendant explained that the basis
       was the length of time that he had been in custody before the police claimed to have found it.
¶ 58       Defendant also claimed that his attorney failed to file a motion to suppress a statement by
       him to the ASA, on the ground that it was never made. The trial court responded that his
       counsel did not stipulate to the truth of the statement but rather that, if called, this would be the
       ASA’s testimony. Defendant replied that his counsel did not even ask him whether he had
       made the statement before stipulating.

¶ 59                                      G. Cross-Examination
¶ 60       Defendant claimed that his counsel failed to adequately cross-examine Witherspoon, the
       victim. The trial court asked, “you conferred with him *** about questions to ask Mr.
       Witherspoon; is that accurate?” Defendant agreed and stated, “These questions was more or
       less to remind [defense counsel] about the inconsistencies between the police report,
       investigative report, and the testimony [Witherspoon] was giving and the preliminary
       hearing.” The court observed that his counsel’s cross-examination concerned “the layout of the
       apartment, the size of Mr. Witherspoon, your size, how long the fight went, and the
       undisturbed furniture,” and defendant replied, “[c]orrect.”
¶ 61       Defendant also claimed that his counsel failed to adequately cross-examine Ellerbeck, the
       evidence technician, with respect to pry marks on the victim’s apartment door, particularly
       about the lack of shavings on the carpet below the door. When the trial court observed that his
       counsel did bring out the lack of shavings on cross, defendant responded that he was “not sure



                                                    - 10 -
       we asked about the shavings.”6

¶ 62                                      H. Arresting Officers
¶ 63       Defendant also claimed that his counsel failed to call or subpoena the arresting officers,7
       who could have impeached the evidence technician and also Witherspoon, concerning where
       items were when the officers arrived. The trial court then observed that the layout was
       established by a photograph that his counsel introduced into evidence. Defendant then stated
       that there were inconsistencies in Witherspoon’s accounts, namely: Witherspoon’s preliminary
       hearing testimony, the police report, and his trial testimony all indicated that defendant was the
       only person in the living room, whereas the defense investigator’s report indicated that Wanda
       and defendant were exiting the apartment door and Wanda was heading down the stairs.

¶ 64                                   I. Defense Counsel’s Response
¶ 65       Defendant’s trial counsel was present for the inquiry and responded, as follows to each of
       the issues raised above. First, with respect to communication, counsel stated that he met three
       times with defendant in jail, bringing his “travel file” rather than the entire “30-pound file.” In
       addition, they also met on court dates, and defendant “called the office on dozens of occasions”
       and spoke with counsel’s associate.
¶ 66       Second, with respect to Wanda, counsel stated, “Wanda was a phantom. [Defendant] had
       no information on Wanda other than her name *** No date of birth. No where she hung out. I
       don’t even know if there is a Wanda, Judge. *** He never told me to talk to anybody at the
       restaurant about Wanda. *** He wasn’t even sure that was her real name.”
¶ 67       Third, with respect to the public defender’s investigator, counsel stated that he had
       subpoenaed her, and she was present in the hall outside the courtroom. However,
       Witherspoon’s trial testimony was consistent with his statement to the investigator so there
       was no point in calling her. Counsel tried to impeach Witherspoon with his preliminary hearing
       transcript, and there was much discussion at trial about the meaning of the words “residence”
       versus “apartment” and about whether there was a possible lookout outside the building.
       However, Witherspoon’s trial testimony was consistent with his statement to the investigator.
¶ 68       Fourth, as to defendant’s treating physician, counsel stated that, in his experience,
       physicians are “usually reluctant to give opinions as to how an injury was sustained unless it’s
       a gunshot wound.” Thus, “as a strategic point,” counsel thought it was better to rely on
       defendant’s medical records, which showed three distinct injuries, since Witherspoon testified
       that he hit defendant once.
¶ 69       Fifth, as to the lack of an apartment visit, counsel stated that the photographs showed what
       a “confined area” there was for “a wrestling match” and the fact that items were undisturbed,
       thus impeaching Witherspoon’s trial testimony about the plausibility of a fight taking place in
       the living room. In addition, counsel did visit the building, but he was not able to enter it.



          6
             In fact, Ellerbeck testified on direct that he observed pry marks on the apartment door and
       photographed them; and then, on cross, he admitted that he did not observe any wood shavings on the
       floor near the door.
           7
             As we already observed, one of the arresting officers, John Thill, did testify at trial.

                                                   - 11 -
¶ 70       Sixth, as to the lack of suppression motions, counsel explained his strategy. With respect to
       stipulating to the ASA’s testimony, counsel stated that he stipulated as to what she would say,
       not as to whether it was true; and counsel believed that it would be “less painful to put it in as a
       paper transcript than to have her actually get on the stand and say this is what happened.” Prior
       to stipulating, counsel spoke to both defendant and the ASA. In addition, counsel believed that
       defendant’s statement to the ASA “wasn’t really an incriminating statement. It was pretty
       much what he testified to on the stand.” With respect to the screwdriver found in defendant’s
       pocket, counsel did not believe there was a basis for a suppression motion.
¶ 71       Seventh, with respect to the cross-examination of Witherspoon, counsel stated that he
       vigorously cross-examined Witherspoon concerning some minor discrepancies but that
       Witherspoon’s accounts were fairly consistent. With respect to the cross-examination of
       Ellerbeck, the evidence technician, counsel believed that he thoroughly cross-examined him
       about the differences among photographs and whether the technician had moved items.
¶ 72       Lastly, with respect to not calling the arresting officers, counsel stated that he had been a
       defense lawyer for 32 years and that his experience showed that “members of the Chicago
       Police Department, as much I respect them, are not usually all that willing to try to help the
       defense out in a case.” In addition, “[i]t did not seem like they had anything to add” because
       they arrived “after the fact.”

¶ 73                                       J. Trial Court’s Ruling
¶ 74       After hearing from both defendant and his counsel, the trial court denied defendant’s
       Krankel motion for new counsel, stating that it “is really clear to me that the trial proceeded
       just as you and [counsel] intended, for you to get up and tell that story and explain that Wanda
       gave you the right to be there and that Mr. Witherspoon overreacted with beating you on the
       back of the head, and you bit his lip off.”
¶ 75       The trial court found that all the “points of impeachment” that defendant sought, such as
       “the lack of disruption inside the apartment” and “the three cuts on the back of [his] head,”
       were brought out by counsel. Counsel’s “trial strategy to temper the State’s Attorney’s
       testimony by stipulating to it rather than hav[ing] her come to the courtroom and testify seemed
       sound to” the trial court. In sum, the trial court found that defendant “was well represented”
       and that his allegations were “without merit.”
¶ 76       After the trial court denied defendant’s motion for new counsel, defendant filed a timely
       notice of appeal, and this appeal followed.

¶ 77                                           ANALYSIS
¶ 78       On this appeal, defendant claims (1) that the trial court should have appointed counsel after
       the new preliminary Krankel inquiry and (2) that defendant’s fines and fees order must be
       corrected again. The State agrees that the fines and fees order should be corrected, and we so
       order it, as we detail below. However, we do not find defendant’s Krankel arguments
       persuasive and thus affirm his conviction and sentence.




                                                    - 12 -
¶ 79                                 I. Defendant’s Krankel Claim
¶ 80      Defendant claims that the trial court erred by not appointing new counsel because, at the
       new preliminary Krankel inquiry, defendant “show[ed] possible neglect of the case.” People v.
       Moore, 207 Ill. 2d 68, 78 (2003).

¶ 81                                   A. Krankel and Related Precedent
¶ 82        Through Krankel and its progeny, the Illinois Supreme Court has provided our trial courts
       with a clear blueprint for handling posttrial pro se claims of ineffective assistance of counsel.
       People v. Ayres, 2017 IL 120071, ¶¶ 1, 11; Moore, 207 Ill. 2d at 77-82 (discussing Krankel and
       its progeny); People v. Chapman, 194 Ill. 2d 186, 227-31 (2000) (same); People v. Johnson,
       159 Ill. 2d 97, 124 (1994) (same).
¶ 83        A trial court is not automatically required to appoint new counsel any time a defendant
       claims ineffective assistance of counsel. Ayres, 2017 IL 120071, ¶ 11; People v. Jolly, 2014 IL
       117142, ¶ 29; Moore, 207 Ill. 2d at 77; Chapman, 194 Ill. 2d at 230; Johnson, 159 Ill. 2d at
       124; People v. Nitz, 143 Ill. 2d 82, 134 (1991). Instead, the trial court must first conduct a
       preliminary inquiry to examine the factual basis underlying a defendant’s claim. Ayres, 2017
       IL 120071, ¶¶ 11, 24; Moore, 207 Ill. 2d at 77-78; Chapman, 194 Ill. 2d at 230; Johnson, 159
       Ill. 2d at 124; Nitz, 143 Ill. 2d at 134.
¶ 84        A trial court may base its preliminary Krankel decision on (1) the trial counsel’s answers
       and explanations, (2) a “brief discussion between the trial court and the defendant,” or (3) “its
       knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s
       allegations on their face.” Moore, 207 Ill. 2d at 78-79; see also Ayres, 2017 IL 120071, ¶ 12;
       Jolly, 2014 IL 117142, ¶ 30; Chapman, 194 Ill. 2d at 228-31; People v. Tolefree; 2011 IL App
       (1st) 100689, ¶ 22; People v. Peacock, 359 Ill. App. 3d 326, 339 (2005). “If [a] trial 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.” Moore, 207 Ill. 2d at 78; see
       also Ayres, 2017 IL 120071, ¶ 11; Jolly, 2014 IL 117142, ¶ 29; Chapman, 194 Ill. 2d at 230;
       Johnson, 159 Ill. 2d at 124. A claim lacks merit if it is “ ‘ “conclusory, misleading, or legally
       immaterial” or do[es] “not bring to the trial court’s attention a colorable claim of ineffective
       assistance of counsel.” ’ ” Tolefree, 2011 IL App (1st) 100689, ¶ 22 (quoting People v. Burks,
       343 Ill. App. 3d 765, 774 (2003), quoting Johnson, 159 Ill. 2d at 126).
¶ 85        However, if a defendant’s claims “show possible neglect of the case,” the trial court must
       appoint new counsel. Moore, 207 Ill. 2d at 78; see also Ayres, 2017 IL 120071, ¶ 11; Jolly,
       2014 IL 117142, ¶ 29; People v. Ramey, 152 Ill. 2d 41, 52 (1992); Chapman, 194 Ill. 2d at 230;
       Johnson, 159 Ill. 2d at 124. The claim then proceeds to “the second stage of the Krankel
       proceeding” (Jolly, 2014 IL 117142, ¶ 44), when defendant is represented by new counsel at an
       “evidentiary hearing.” Jolly, 2014 IL 117142, ¶¶ 43-44; Moore, 207 Ill. 2d at 78 (“The new
       counsel would then represent the defendant at the hearing on the defendant’s pro se claim of
       ineffective assistance.”). “The appointed counsel can independently evaluate the defendant’s
       claim and would avoid the conflict of interest that trial counsel would experience if trial
       counsel had to justify his or her actions contrary to defendant’s position.” Moore, 207 Ill. 2d at
       78.




                                                   - 13 -
¶ 86                                        B. Standard of Review
¶ 87        On appeal, our standard of review for Krankel claims varies, depending on whether the
       trial court employed the proper procedure and whether it made a determination on the merits.
       Tolefree, 2011 IL App (1st) 100689, ¶ 25.
¶ 88        We review de novo the procedure the trial court used to conduct the preliminary Krankel
       inquiry. Jolly, 2014 IL 117142, ¶ 28; Moore, 207 Ill. 2d at 75. De novo consideration means
       we perform the same analysis that a trial judge would perform. Tolefree, 2011 IL App (1st)
       100689, ¶ 25 (citing Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)). If we find
       that the trial court committed an error in procedure, we will reverse the outcome of the inquiry,
       unless the error was harmless beyond a reasonable doubt. Jolly, 2014 IL 117142, ¶ 40; Moore,
       207 Ill. 2d at 80. Thus, for example, our supreme court in Jolly reversed the outcome of a
       preliminary Krankel inquiry, where the trial court allowed the State to participate in it, because
       the trial court’s “error in this case” was not “harmless beyond a reasonable doubt.” Jolly, 2014
       IL 117142, ¶ 40. Similarly, we did the same in the case at bar when we remanded for a new
       preliminary Krankel inquiry. Robinson, 2015 IL App (1st) 130837, ¶¶ 81-83.
¶ 89        On this appeal, defendant does not allege a procedural error but instead claims that, after
       conducting the preliminary inquiry, the trial court should have appointed new counsel and
       failed to do so. If a trial court should have appointed new counsel and failed to do so, we will
       reverse the trial court’s Krankel ruling unless the error was harmless beyond a reasonable
       doubt. Moore, 207 Ill. 2d at 80 (“A trial court’s failure to appoint new counsel to argue a
       defendant’s pro se posttrial motion claiming ineffective assistance of counsel can be harmless
       beyond a reasonable doubt.”); Nitz, 143 Ill. 2d at 135 (“we agree with the State that the trial
       court’s failure to appoint new counsel was harmless beyond a reasonable doubt”).
¶ 90        However, if the trial court properly conducted the entire Krankel inquiry and reached a
       determination on the merits, we will reverse only if the trial court’s action was manifestly
       erroneous. See Tolefree, 2011 IL App (1st) 100689, ¶ 25; People v. McCarter, 385 Ill. App. 3d
       919, 941 (2008). “ ‘Manifest error’ is error that is clearly plain, evident, and indisputable.”
       Tolefree, 2011 IL App (1st) 100689, ¶ 25 (citing People v. Morgan, 212 Ill. 2d 148, 155
       (2004)).

¶ 91                            C. Strickland and Ineffectiveness of Counsel
¶ 92       In his pro se posttrial motion, defendant claimed that his trial counsel was ineffective.
¶ 93       Both the United States and Illinois Constitutions guarantee criminal defendants the right to
       the effective assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 15 (citing U.S. Const.,
       amends. VI, XIV; Ill. Const. 1970, art. 1, § 8). In determining whether defendant was denied
       effective assistance of counsel, we apply the familiar two-prong test established in Strickland
       v. Washington, 466 U.S. 668 (1984), and adopted by the Illinois Supreme Court in People v.
       Albanese, 104 Ill. 2d 504 (1984). People v. Cherry, 2016 IL 118728, ¶ 24. Under the
       Strickland test, a defendant must show both that counsel’s performance was objectively
       unreasonable under prevailing professional norms and that there is a reasonable probability
       that, but for counsel’s unprofessional errors, the result of the proceeding would have been
       different. Cherry, 2016 IL 117934, ¶ 24. Since a defendant must satisfy both prongs of the
       Strickland test, the failure to establish either prong bars his claim. People v. Peterson, 2017 IL
       120331, ¶ 79; Cherry, 2016 IL 118728, ¶ 24.


                                                   - 14 -
¶ 94        As for the first prong in a claim of ineffectiveness, counsel’s performance “must be
        evaluated based on the entire record.” People v. Kirklin, 2015 IL App (1st) 131420, ¶ 114;
        People v. Flores, 128 Ill. 2d 66, 107 (1989) (“[C]ounsel’s performance must be evaluated on
        the basis of the entire record, and not upon isolated instances of alleged incompetence called
        into question by the defendant.”). As we explain below, based on our evaluation of the entire
        record including the new preliminary Krankel inquiry, we find that counsel’s performance was
        objectively reasonable.

¶ 95                               D. The Trial Court’s Krankel Inquiry
¶ 96        Although defendant argued a number of instances of alleged neglect at the Krankel inquiry,
        on appeal defendant raises only two: (1) that his trial counsel failed to look for Wanda, the
        woman whom defendant testified led him into the victim’s apartment and (2) that his trial
        counsel failed to interview the arresting officers concerning whether Witherspoon, the victim,
        referred to Wanda by name when relating to them what happened immediately after the
        offense. Defendant argues that, if his trial counsel had located Wanda, she would have
        corroborated his testimony and that, if Witherspoon had used Wanda’s name, his knowledge of
        her name would have impeached Witherspoon’s testimony that he did not know the woman
        leaving his apartment. For the following reasons, we do not find defendant’s arguments
        persuasive.

¶ 97                                         1. Looking for Wanda
¶ 98         Defendant argues, first and foremost, that his counsel showed neglect of his case by not
        making any attempt to locate Wanda.
¶ 99         A defense counsel has a professional duty to conduct a reasonable investigation or make a
        reasonable decision that a particular investigation is not necessary. People v. Domagala, 2013
        IL 113688, ¶ 38. However, any lack of investigation is judged against a standard of
        reasonableness, given “all the circumstances” and “applying a heavy measure of deference to
        counsel’s judgments.” (Internal quotation marks omitted.) People v. Guest, 166 Ill. 2d 381, 400
        (1995); People v. Viramontes, 2017 IL App (1st) 160984, ¶ 56.
¶ 100        In the case at bar, there is no question that there was a woman with defendant during the
        offense. Both defendant and Witherspoon, the victim, agreed on that fact during their
        respective trial testimony. There is also no question that she fled the scene, apparently never to
        be heard from again by anyone involved in this case.
¶ 101        At the Krankel inquiry, defendant claimed that he asked his counsel to look for Wanda and,
        specifically, to speak to the manager of the restaurant where defendant had worked and that
        Wanda frequented. By contrast, counsel denied that defendant had asked him to talk to
        someone at the restaurant. However, defendant admitted that his sister had visited the
        restaurant but was still unable to obtain a last name or address for Wanda.
¶ 102        At the inquiry, defendant admitted that the only information that he had for Wanda was her
        first name, a physical description, and that “she stayed between 46th and 47th Streets and
        Indiana Avenue.” Counsel denied that defendant informed him where Wanda “hung out.”
        However, both defendant and counsel agreed that they lacked Wanda’s last name, address, or
        date of birth.



                                                    - 15 -
¶ 103       Defendant argued, not only that Wanda would have testified, but that she would have
        corroborated his testimony by admitting to removing items from Witherspoon’s apartment and
        to having had a relationship with Witherspoon. However, as even defendant observed at the
        Krankel inquiry, Witherspoon “pulled out his gun, now she’s gone.” Whether due to
        Witherspoon’s gun or the possibility of criminal charges or both, her headlong flight is
        undisputed.
¶ 104       In light of the paucity of information that counsel had about Wanda, her headlong flight
        from the scene, and her incentives not to be found, we cannot find, given all the circumstances,
        that counsel’s decision not to investigate further was unreasonable or showed possible neglect
        of the case. See Guest, 166 Ill. 2d at 400.

¶ 105                                  2. Interviewing Arresting Officers
¶ 106        Second, defendant argues that his trial counsel was ineffective by failing to interview the
        arresting officers about whether Witherspoon, the victim, used Wanda’s name when relating to
        them what happened immediately after the offense.
¶ 107        As we noted above, defense counsel has a duty to conduct a reasonable investigation or
        make a reasonable decision that investigation is not necessary (Domagala, 2013 IL 113688,
        ¶ 38), and any lack of investigation is judged against a standard of reasonableness. Guest, 166
        Ill. 2d at 400; Viramontes, 2017 IL App (1st) 160984, ¶ 56.
¶ 108        In addition, “the decision whether to call a certain witness for the defense is a matter of trial
        strategy, left to the discretion of counsel after consultation with the defendant.” Peterson, 2017
        IL 120331, ¶ 80. As a result, “such decisions will not ordinarily support a claim of ineffective
        assistance of counsel.” Peterson, 2017 IL 120331, ¶ 80. Even “a mistake in trial strategy” will
        not, by itself, “render representation constitutionally defective.” Peterson, 2017 IL 120331,
        ¶ 80. However, at this stage, we are considering not whether defendant’s claim rises to a level
        of constitutional defectiveness, but only whether defendant’s claim showed “possible neglect
        of the case,” thus necessitating appointment of new counsel for a second-stage Krankel
        inquiry. Moore, 207 Ill. 2d at 78.
¶ 109        Defendant argues, based on the police report, that Witherspoon may have used the name
        “Wanda” with the arresting officers. The police report stated, in relevant part:
                 “This is an arrest by the Second District Tact Team *** responding to a call of ‘Man
                 Shot’[.] Arrived to discover Ryishie Robinson (offender) lying in the doorway of apt.
                 building with the glass of building door shattered and Eugene Witherspoon (victim and
                 complainant) lying on stairs leading to 2nd fl residence bleeding from the face. Eugene
                 Witherspoon (victim and complainant) related that he is building manager and was
                 working security for building owner when he went outside of building to inspect for
                 possible security camera locations. Victim related that when he went back into
                 building, he discovered [Ryishie] Robinson (offender) and ‘Wanda’ Unk (offender)
                 leaving his residence through the front door with property belonging to him and his
                 wife (Mary Johnson (victim and complainant). When Eugene Witherspoon (victim and
                 complainant) confronted offenders, [Ryishie] Robinson (offender) began to fight
                 victim in an attempt to escape. During the struggle with offender, Eugene Witherspoon
                 (victim and complainant) was bit on the lower lip by [Ryishie] Robinson (offender)
                 removing a large piece of lip. Victim then produced a handgun which discharged and


                                                     - 16 -
                 shattered the front door glass. ‘Wanda’ Unk (offender) made good her escape[.]”
                 (Emphases added.)
        The police report was authored by Officer John Sonley, while the arresting officer who
        testified at trial was his partner, Officer John Trill.
¶ 110        Based on the above quote, defendant argues that Witherspoon may have “related” to the
        officers that the woman’s name was Wanda, thereby indicating that he knew her, which would
        contradict his trial testimony.
¶ 111        However, the above quote does not suggest that Witherspoon knew Wanda, any more than
        it suggests that he knew defendant. Although the report states that the “Victim related,” it then
        states defendant’s full name, which no one claims that Witherspoon knew prior to the offense.
        If we were to take the above report as evidence that Witherspoon may have known Wanda’s
        name, then we would have to accept, by the same logic, that he knew defendant’s full name and
        that he “related” to the officers that Wanda was also “Unk” or unknown.
¶ 112        At the Krankel inquiry, defense counsel explained that he made a strategic decision not to
        call the arresting officers at trial because officers are “not usually all that willing to try to help
        the defense out” and “[i]t did not seem like they had anything to add.” We do not find
        persuasive defendant’s argument that the above-quoted report shows possible neglect by
        counsel of the case.
¶ 113        If defendant produced an affidavit from an officer that he recalled Witherspoon providing
        the name, that could make a difference. Anything less than that would be a “ ‘fishing
        expedition.’ ” People v. Malone, 2017 IL App (3d) 140165, ¶ 10. “ ‘[T]here is no showing of
        the existence of any facts or evidence on which such affidavits could have been founded.
        Absent a showing of available material for supporting affidavits, a failure to present affidavits
        obviously cannot be considered a neglect by the attorney.’ [Citation.] Counsel is not required
        to go on a ‘fishing expedition’ to find facts and evidence outside the record that might support
        the defendant’s claims.” Malone, 2017 IL App (3d) 140165, ¶ 10.

¶ 114                               II. Defendant’s Fines-and-Fees Claims
¶ 115       Defendant claims that the fines and fees order must be corrected again, and the State
        agrees.
¶ 116       In our prior opinion, we observed that defendant received a credit of $5 a day for the 1104
        days he was incarcerated while awaiting trial, and that this credit should have been applied to
        the $50 in fines reflected in the “Order Assessing Fines, Fees, and Costs.” Robinson, 2015 IL
        App (1st) 130837, ¶ 115. We also observed that the trial court incorrectly applied a $5
        electronic citation fee, which should have been removed. Robinson, 2015 IL App (1st) 130837,
        ¶ 115; 705 ILCS 105/27.3e (West 2012) (electronic citation fee applies only to “traffic,
        misdemeanor, municipal ordinance, or conservation case[s]”). Finally, the initial calculation of
        the fines and fees showed $370 in fees and costs and $50 in fines, which comes to a total of
        $420. However, the order listed a total of $445 owed by defendant instead of $420. After
        removing the $5 electronic citation fee, applying defendant’s credit to the fines, and correctly
        adding the fines and fees, our prior opinion found that the total amount of fines and fees due
        from defendant should be $365. Robinson, 2015 IL App (1st) 130837, ¶ 115. The State agreed
        with this calculation, and we corrected the original “Order Assessing Fines, Fees, and Costs” to
        reflect that the fines and fees due from defendant was $365 rather than $445.


                                                     - 17 -
¶ 117       On this appeal, defendant claims, and the State does not dispute, that the amount owed by
        defendant is only $285, not $365 as ordered in our prior opinion. Robinson, 2015 IL App (1st)
        130837, ¶ 115. Defendant claims that upon remand, the trial court made the corrections that
        this court ordered. However, the trial court also imposed an additional $20 violent crime
        victims assistance fine and an additional $100 violent crime victims assistance fine, neither of
        which were imposed when defendant was initially sentenced on January 22, 2013, and both of
        which were not authorized by the statutes in effect on the date of the offense. Additionally,
        defendant claims that he is entitled to a $5 per day presentence custody credit against both his
        $15 state police operations fine and his $50 court system fine. Thus, defendant argues that this
        court should vacate the improperly imposed fines and offset the remaining fines by his
        per diem credit, thus reducing the total amount that he owes to $285. For the following reasons,
        we agree.

¶ 118                              A. Violent Crime Victims Assistance Fine
¶ 119                                             1. $20 Fine
¶ 120       On remand, defendant was assessed a $20 Violent Crime Victims Assistance Fund fine
        under section 10 of the Violent Crime Victims Assistance Act (Act) (725 ILCS 240/10(c)(1),
        (2) (West 2010)).8 The preprinted form used by the trial court on remand was entitled “Order
        Assessing Fines, Fees and Costs” and it stated, in relevant part, “Violent Crime Victim
        Assistance, 725 ILCS 240/10/(c)(1) or (2) where no other fine is imposed.” (Emphasis added.)
        Next to this preprinted line was a handwritten notation of “$20.”
¶ 121       Defendant is correct that he cannot be assessed this $20 fine under the version of the statute
        in effect on January 14, 2010, the date of the offense. 725 ILCS 240/10(c)(1), (2) (West 2010).
        Section 10 then stated in relevant part:
                “When any person is convicted in Illinois on or after August 28, 1986, of an offense
                listed below, or placed on supervision for such an offense on or after September 18,
                1986, and no other fine is imposed, the following penalty shall be collected by the
                Circuit Court Clerk:
                     (1) $25, for any crime of violence as defined in subsection (c) of Section 2 of the
                Crime Victims Compensation Act; and
                     (2) $20, for any other felony or misdemeanor, excluding any conservation offense.”
                (Emphasis added.) 725 ILCS 240/10(c)(1), (2) (West 2010).9
        Since defendant was assessed other fines, such as the $10 mental health court fine, the $5
        youth/peer court fine, the $5 drug court fine, and the children’s advocacy center fine, the
        above-quoted section did not authorize the imposition of a $20 fine. See People v. Jamison,
        229 Ill. 2d 184, 191 (2008) (“Section 10(c) of the Act provides for a ‘penalty’ to be collected


            8
              The 2010 Illinois Compiled Statutes contains the version of section as amended effective January
        1, 2010, which is two weeks before the offense date. Thus, this is the version that applies.
            9
              In addition, defendant could not be assessed this fine under the version of the statute in effect at the
        time of either his original sentencing or the remand to the trial court. The provision for this $20 fine was
        eliminated altogether by the time of defendant’s initial sentencing on January 22, 2013 (725 ILCS
        240/10 (West 2012)), and it similarly did not exist at the time the trial court entered the fines and fees
        order on remand on January 7, 2016 (725 ILCS 240/10 (West 2016)).

                                                         - 18 -
        when ‘no other fine is imposed.’ ” (Emphasis added.) (quoting 725 ILCS 240/10(c) (West
        2004))).
¶ 122      The State agrees that this $20 fine must be vacated, and we hereby order it vacated.

¶ 123                                              2. $100 Fine
¶ 124       In addition, defendant argues that, on January 14, 2010, the date of his offense, the
        subsection authorizing the $100 Violent Crime Victims Assistance Fund fine did not yet exist.
        On remand, the trial court imposed the $100 fine pursuant to section 10(b) of the Act which
        stated, in relevant part:
                 “(b) When any person is convicted in Illinois of an offense listed below, or placed on
                 supervision for that offense on or after July 1, 2012, the court shall impose the
                 following fines:
                     (1) $100 for any felony[.]” 725 ILCS 240/10(b)(1) (West 2012).
¶ 125       Defendant argues, and the State agrees, that since the legislature did not add this $100 fine
        to section (b) of the statute until years after his offense, ex post facto considerations prohibit its
        imposition.
¶ 126       Both the United States Constitution and the Illinois Constitution prohibit the enactment of
        ex post facto laws. U.S. Const., art. I, § 9; Ill. Const. 1970, art. I, § 16. A criminal law violates
        this prohibition if a legislative change is retroactively applied to a criminal defendant, and it
        “ ‘alters the definition of criminal conduct or increases the penalty by which a crime is
        punishable.’ ” Hadley v. Montes, 379 Ill. App. 3d 405, 409 (2008) (quoting California
        Department of Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995)). It is well established
        that fines are subject to the prohibition against ex post facto laws. People v. Dalton, 406 Ill.
        App. 3d 158, 163-64 (2010); People v. Prince, 371 Ill. App. 3d 878, 880 (2007); People v.
        Bishop, 354 Ill. App. 3d 549, 561-62 (2004).
¶ 127       In addition, “[t]he imposition of a fine that does not become effective until after a
        defendant commits an offense violates ex post facto principles.” People v. Devine, 2012 IL
        App (4th) 101028, ¶ 10. See also People v. Smith, 2014 IL App (4th) 121118, ¶ 61 (since a
        “fine took effect on January 1, 2010, after the date of defendant’s offense, *** [its] imposition
        would violate the prohibition against ex post facto laws”). In the case at bar, section 10, quoted
        above, was amended by Public Act 97-816 to increase the fine to $100, effective July 16, 2012.
        See Pub. Act 97-816 (eff. July 16, 2012) (amending 725 ILCS 240/10). By contrast,
        defendant’s offense occurred over two years earlier on January 14, 2010. Accordingly, we
        vacate the trial court’s imposition of this $100 fine.

¶ 128                             B. Presentencing Credit Applied to Fines
¶ 129       Defendant’s next claim is that the trial court failed to apply his presentencing credit to two
        fines that should have been offset by it. A defendant is entitled to a credit against his fines of $5
        for each day he spent incarcerated prior to sentencing. 725 ILCS 5/110-14(a) (West 2010). At
        defendant’s sentencing on January 22, 2013, the trial court found that defendant was entitled to
        a total credit of 1104 days, and $5 times 1104 results in a presentencing credit of $5520.
¶ 130       On remand, the preprinted form, utilized by the trial court, stated that the following fines
        were to be offset: (1) the $10 mental health court fine, (2) the $5 drug court fine, (3) the $5


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        youth diversion/peer court fine, and (4) the $30 children’s advocacy center fine. These four
        fines totaled $50.
¶ 131       On this appeal, defendant argues, in addition, that the $15 state police operations fee (705
        ILCS 105/27.3a(1.5) (West 2010)) and the $50 court systems fee (55 ILCS 5/5-1101(c)(1)
        (West 2010)) are actually fines and are therefore also subject to the $5 per diem offset. This
        would result in an additional $65 offset, for a total offset of $65 plus $50, or $115. On the
        preprinted form, these two charges appear under a heading that states, “Fees and Costs Not
        Offset by the $5 per-day pre-sentence incarceration credit.”
¶ 132       Under section 110-14 of the Code of Criminal Procedure of 1963, the presentencing credit
        applies only against fines. Section 110-14 states:
                     “(a) Any person incarcerated on a bailable offense who does not supply bail and
                against whom a fine is levied on conviction of such offense shall be allowed a credit of
                $5 for each day so incarcerated upon application of the defendant. However, in no case
                shall the amount so allowed or credited exceed the amount of the fine.” (Emphases
                added.) 725 ILCS 5/110-14(a) (West 2010).
¶ 133       Whether an assessment is a fine or a fee is a matter of statutory interpretation that this court
        reviews de novo. People v. Jones, 223 Ill. 2d 569, 580 (2006).
¶ 134       The Illinois Supreme Court has articulated the difference between a “fee” and a “fine,” as
        follows:
                     “ ‘A “fine” is a pecuniary punishment imposed as part of a sentence on a person
                convicted of a criminal offense. [Citation.] A “cost” is a charge or fee taxed by a court
                such as a filing fee, jury fee, courthouse fee, or reporter fee. [Citation.] Unlike a fine,
                which is punitive in nature, a cost does not punish a defendant in addition to the
                sentence he received, but instead is a collateral consequence of the defendant’s
                conviction that is compensatory in nature. [Citation.] A “fee” is a charge for labor or
                services, especially professional services. [Citation.]’ ” (Emphasis removed.) Jones,
                223 Ill. 2d at 581 (quoting People v. White, 333 Ill. App. 3d 777, 781 (2002)).
        Later, the supreme court explained that, “under Jones, 223 Ill. 2d at 600, the most important
        factor” in finding that a charge is a fee “is whether the charge seeks to compensate the state for
        any costs incurred as the result of prosecuting the defendant.” People v. Graves, 235 Ill. 2d
        244, 250 (2009).
¶ 135       The appellate court has previously, and repeatedly, held that both the $15 state police
        operations fee and the $50 court systems fee are actually fines, and the State agrees that this
        precedent applies. People v. Jones, 2017 IL App (1st) 143766, ¶ 52 (court systems fee and state
        police operations fee); People v. Blanchard, 2015 IL App (1st) 132281, ¶ 22 (court systems
        fee); People v. Ackerman, 2014 IL App (3d) 120585, ¶ 30 (court systems fee); People v.
        Moore, 2014 IL App (1st) 112592, ¶ 46 (state police operations fee); People v. Wynn, 2013 IL
        App (2d) 120575, ¶ 13 (state police operations fee); Wynn, 2013 IL App (2d) 120575, ¶ 17
        (court systems fee); People v. Smith, 2013 IL App (2d) 120691, ¶ 16 (state police operations
        fee); Smith, 2013 IL App (2d) 120691, ¶ 17 (court systems fee); People v. Millsap, 2012 IL
        App (4th) 110668, ¶ 31 (state police operations fee). Thus, we order that defendant’s
        presentencing credit must be applied against these two charges.




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¶ 136                                             C. Total Due
¶ 137       We recapitulate here exactly what defendant does, and does not, owe.
¶ 138       First, the fines and fees order, entered on January 7, 2016, lists four fines, totaling $50,
        which are offset against the sentencing credit. Since they are offset, they do not count toward
        the amount owed by defendant.
¶ 139       Second, the 2016 order lists $120 in fines that are not offset. However, as we explained
        above, these violent crime victims assistance fines do not apply to defendant.
¶ 140       Third, the 2016 order lists six fees that are not offset. However, as we explained above, two
        of these charges—the $15 state police operations fee and the $50 court systems fee—are fines
        that should be offset and, thus, these two charges do not count toward the amount that
        defendant owes. The remaining four fees, which are not offset, total $285, which is the amount
        that defendant now owes.
¶ 141       If you compare this amount against what this court ordered previously, you will see that
        there is a discrepancy. Previously, this court ordered defendant to pay $365. Robinson, 2015 IL
        App (1st) 130837, ¶ 115. Today we reduced what we previously ordered by $65 (the $15 state
        police operations fee, plus the $50 court systems fee). Therefore, one would expect that
        defendant now owes $300, rather than $285. The $15 difference can be explained by the fact
        that, on remand, the trial court did not reenter a $15 document storage fee (705 ILCS 105/27.3c
        (West 2010)) on the new fines and fees order.10 Since the State does not argue on appeal that
        this was in error, defendant now owes only a total of $285.

¶ 142                                          CONCLUSION
¶ 143       For the foregoing reasons, we do not find persuasive defendant’s Krankel argument, but we
        correct the fines, fees, and costs due from defendant to $285.

¶ 144      Affirmed; fines and fees order corrected.




           10
              In fact, on the fines and fees order entered on January 7, 2016, the document storage fee was
        written in by hand and then crossed out by hand.

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