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                                   Appellate Court                            Date: 2017.07.25
                                                                              14:56:58 -05'00'




                      People v. Fellers, 2016 IL App (4th) 140486



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               KARL J. FELLERS, Defendant-Appellant.



District & No.        Fourth District
                      Docket Nos. 4-14-0486, 4-14-0487 cons.


Rule 23 order filed   June 27, 2016
Motion to publish
allowed               August 4, 2016
Opinion filed         August 4, 2016



Decision Under        Appeal from the Circuit Court of Livingston County, Nos. 13-DT-2,
Review                13-CM-25; the Hon. Mark A. Fellheimer, Judge, presiding.



Judgment              No. 4-14-0486: Affirmed.
                      No. 4-14-0487: Remanded with directions.



Counsel on            Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson, all of
Appeal                State Appellate Defender’s Office, of Springfield, for appellant.

                      Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, David J.
                      Robinson, and Luke McNeill, all of State’s Attorneys Appellate
                      Prosecutor’s Office, of counsel), for the People.
       Panel                    JUSTICE TURNER delivered the judgment of the court, with opinion.
                                Justices Harris and Pope concurred in the judgment and opinion.


                                                 OPINION

¶1           In February 2014, the trial court found defendant, Karl J. Fellers, guilty of four counts of
         driving under the influence (DUI) and one count of unlawful possession of cannabis. In May
         2014, the court sentenced him to 24 months’ probation and 180 days in jail for the DUI
         convictions and 30 days in jail for the cannabis conviction.
¶2           On appeal, defendant argues he was deprived of the effective assistance of counsel at trial.
         We affirm in part and remand with directions.

¶3                                           I. BACKGROUND
¶4                                          A. Case No. 13-DT-2
¶5           In January 2013, defendant was charged via a citation and complaint in case No. 13-DT-2
         with two counts of DUI (counts I and II) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2012)). In
         September 2013, the State filed a supplemental complaint, charging defendant with two counts
         of driving with cannabis (count III) and heroin (count IV) in his blood, breath, or urine (625
         ILCS 5/11-501(a)(6) (West 2012)).

¶6                                           B. Case No. 13-CM-25
¶7           In January 2013, the State charged defendant in case No. 13-CM-25 with one count of
         obstructing a peace officer (720 ILCS 5/31-1(a) (West 2012)), alleging he knowingly
         obstructed the performance of Pontiac police officer Markus Armstrong while performing an
         authorized act within his official capacity and knowing him to be a peace officer engaged in the
         execution of his official duties in that he refused to obey commands to stop and ran from the
         police. The State also charged defendant with one count of unlawful possession of cannabis
         (720 ILCS 550/4(a) (West 2012)), alleging he knowingly possessed not more than 2.5 grams of
         a substance containing cannabis.

¶8                                               C. Bench Trial
¶9           In November 2013, the trial court conducted a bench trial in both cases. Jesse Sechrest
         testified he was driving home from work in his silver Jeep at approximately 12:30 a.m. on
         December 29, 2012. He observed a Chevrolet Malibu in front of him that “was swerving back
         and forth.” Sechrest called the police.
¶ 10         Lalena Heidenreich testified she lived in a house with two apartments on December 29,
         2012. At approximately 12:30 or 1 a.m., she “heard somebody go running up the front stairs.”
         She also heard “some shouting” and saw police officers outside the house.
¶ 11         Pontiac police officer Marcus Armstrong testified he was in his marked squad car in the
         early morning hours of December 29, 2012. He observed a Chevrolet Malibu followed by a
         silver Jeep. Armstrong turned around and “attempted to catch up to the vehicle.” The vehicle
         proceeded on Howard Street, turned onto Chicago Street, then turned west on another street
         before ultimately ending up at 804 North Main Street. Armstrong stated the vehicle “stopped

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       very abruptly,” such that it “was skidding through the gravel when it came to a stop.”
       Armstrong saw a white male with dark hair wearing blue jeans and a black T-shirt over a gray
       long-sleeved shirt. The person looked back at Armstrong, reached into the vehicle, grabbed a
       duffel bag or jacket, closed the door, and ran inside the house at 804 North Main Street.
       Armstrong yelled, “police, stop,” out his window, but the person did not stop.
¶ 12       Armstrong exited his vehicle and other officers arrived. Armstrong made contact with
       Heidenreich, who lived in the downstairs apartment. Armstrong then observed “fresh
       footprints in the snow” on the steps leading up to the porch. Armstrong ultimately made
       contact with defendant, who was wearing blue jeans, a black T-shirt over a gray long-sleeved
       shirt, and white Nike shoes. Armstrong identified pictures taken of the shoe prints on the front
       step and the bottoms of defendant’s shoes. Armstrong stated defendant “looked pretty
       disheveled,” his hair was “messed up,” his eyes were bloodshot and glossy, and his breath had
       an odor of alcohol. Armstrong also detected the odor of burnt cannabis coming from
       defendant’s clothing.
¶ 13       Armstrong asked defendant about the Malibu, and defendant stated the car was his and it
       had been parked there “pretty much all evening.” Defendant denied driving the vehicle
       recently. When Armstrong asked about the shoe prints on the stairs, defendant stated he had
       returned home at approximately 12:45 a.m. Defendant had initially stated he had been home all
       evening. Defendant stated he had consumed “quite a bit” of alcohol that evening. Armstrong
       administered field sobriety tests and eventually took defendant to jail.
¶ 14       The trial court took a three-month recess in the middle of Armstrong’s testimony.
       However, the parties stipulated to the admission of a video recording of the pursuit from
       Armstrong’s squad car. The court stated it would view the video during the recess.
¶ 15       The trial resumed in February 2014. Armstrong stated defendant submitted to a breath test
       and the results showed a blood-alcohol level of 0.089. Defendant gave his consent to take
       blood and urine samples.
¶ 16       Pontiac police sergeant Jim Roberts testified he arrived at 804 North Main Street and
       noticed a silver Malibu. He touched the vehicle’s hood and found it “hot.” He also heard the
       engine “making a crackling sound.” Armstrong advised Roberts that he was arresting
       defendant for DUI. Roberts stated that per department policy regarding a DUI, the vehicle
       would be towed and an inventory conducted. During the inventory search, Roberts located a
       small blue pill bottle that contained suspected cannabis under the driver’s seat.
¶ 17       The State submitted a laboratory report, which indicated the material found in the car was
       0.3 grams of cannabis. Defendant’s blood-alcohol level was 0.062, and tests detected
       tetrahydrocannabinol, codeine, morphine, and a heroin metabolite in his system.
¶ 18       Defendant testified he went to a bar on the evening of December 28, 2012, and had some
       drinks. He stated he walked with a female to his brother’s apartment at approximately 12 a.m.
       From the time he arrived at the apartment until the officers arrived, defendant did not get into
       and drive his Malibu.
¶ 19       Following closing arguments, the trial court noted it had watched the video “multiple
       times” and found “a mountain of circumstantial evidence here that supports the conclusion that
       the defendant was in fact the one driving the motor vehicle.” The court found defendant guilty
       on the four DUI counts and the single count of cannabis possession. The court found defendant
       not guilty on the charge of obstructing a peace officer.


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¶ 20        In May 2014, the trial court sentenced defendant to 24 months’ probation and 180 days in
       jail on the DUI convictions and an unrelated battery conviction. On the cannabis conviction,
       the court sentenced defendant to 30 days in jail with credit for time served as well as various
       costs and assessments. This appeal followed.

¶ 21                                           II. ANALYSIS
¶ 22       Defendant argues trial counsel was ineffective for failing to (1) cross-examine Armstrong
       about inconsistencies between his trial testimony and the dash-camera video and (2) file a
       meritorious motion to suppress the cannabis found during the inventory search of his car.
¶ 23       A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged
       test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Henderson, 2013 IL
       114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant must show both that
       counsel’s performance was deficient and that the deficient performance prejudiced the
       defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To
       establish deficient performance, the defendant must show his attorney’s performance fell
       below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808
       N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “A defendant establishes
       prejudice by showing that, but for counsel’s unprofessional errors, there is a reasonable
       probability that the result of the proceeding would have been different.” People v. Houston,
       229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). “A defendant must satisfy both prongs of the
       Strickland test and a failure to satisfy any one of the prongs precludes a finding of
       ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 24       This court recently articulated three different categories of cases in which a defendant sets
       forth a claim of ineffective assistance of counsel on direct appeal. See People v. Veach, 2016
       IL App (4th) 130888, ¶¶ 71-90, 50 N.E.3d 87. Category A cases involve direct appeals raising
       ineffective assistance of counsel that the appellate court should decline to address. Veach, 2016
       IL App (4th) 130888, ¶¶ 74-75, 50 N.E.3d 87. Category B cases involve direct appeals raising
       ineffective assistance of counsel that the appellate court may address because they are clearly
       groundless. Veach, 2016 IL App (4th) 130888, ¶ 82, 50 N.E.3d 87. Category C cases involve
       direct appeals raising ineffective assistance of counsel that an appellate court may address
       because trial counsel’s errors were so egregious. Veach, 2016 IL App (4th) 130888, ¶ 85, 50
       N.E.3d 87.

¶ 25                                     A. Cross-Examination
¶ 26       Defendant argues trial counsel failed to confront Armstrong with the dash-camera video
       that rebutted much of his testimony. The State argues this issue involves a Category B case and
       the record is sufficient to demonstrate defense counsel’s cross-examination of Armstrong did
       not amount to ineffective assistance. We agree with the State.
¶ 27       We note courts have stated trial counsel’s decisions regarding the extent of
       cross-examination are matters of trial strategy, and such decisions are not subject to review.
       See People v Jacobs, 308 Ill. App. 3d 988, 993, 721 N.E.2d 1160, 1164 (1999) (stating
       cross-examination is “an area that falls within the ambit of trial strategy and cannot sustain an
       ineffectiveness claim”). However, even assuming counsel’s cross-examination of Armstrong
       was deficient, we find defendant cannot establish the prejudice prong of the Strickland
       standard.

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¶ 28        At trial, Armstrong testified he observed the Malibu with a “silver Jeep directly behind it.”
       Armstrong slowed down and typed the Malibu’s license plate into his computer. He then
       turned around and “attempted to catch up to the vehicle.” Armstrong stated the Malibu arrived
       at 804 North Main Street and “was skidding through the gravel when it came to a stop.” He
       then saw a white male with dark hair wearing blue jeans and a gray long-sleeved shirt under a
       black T-shirt. The person looked back at Armstrong, reached into the vehicle, grabbed a duffel
       bag or jacket, closed the door, and ran inside the house. Defense counsel did not mention the
       dash-camera video during Armstrong’s cross-examination.
¶ 29        Defendant argues the video contradicts Armstrong’s testimony that the Jeep was “directly
       behind” the Malibu. Although the Jeep was not directly behind the Malibu, this was a minor
       inconsistency and immaterial to the ultimate issue of the case. Defendant also argues the video
       did not record the Malibu skid to a stop or the driver (1) get out of the car, (2) look in
       Armstrong’s direction, (3) close the car door, or (4) run into the duplex. As the trial court noted
       in its findings, the dash camera in Armstrong’s police car was fixed and could not record what
       Armstrong saw by turning his head. While the video did not show the Malibu skidding to a stop
       through gravel, the driver exiting while looking in Armstrong’s direction, or the driver closing
       the door, Armstrong could have seen the driver do so as he was turning his car to the left. The
       video does show the Malibu’s rear lights going off and a shadowy figure running toward the
       front of the house. Thus, the video showed a car that had been occupied moments before and a
       person running from it, which supported Armstrong’s testimony.
¶ 30        Defendant argues the trial court failed to appreciate the inconsistencies between the video
       and Armstrong’s testimony because defense counsel never brought those inconsistencies to its
       attention. On the contrary, the court noted it watched the video “multiple times.” The court
       pointed out the discrepancy regarding the distance between the Jeep and the Malibu. The court
       also recalled Armstrong’s testimony, found him credible, and reiterated the camera “doesn’t
       have the ability to pivot like your head would.” It is clear the court was well aware of
       Armstrong’s testimony and the contents of the video.
¶ 31        The evidence indicated defendant owned the Malibu and no one else had permission to
       drive it. Armstrong observed the driver wearing blue jeans, a black T-shirt, and a gray
       undershirt, and defendant was wearing those same clothes. Heidenreich testified she “heard
       somebody go running up the front stairs” of the house. Sergeant Roberts touched the Malibu’s
       hood and found it “hot.” He also heard the engine “making a crackling sound” like it had been
       “overworked.” Pictures of footprints on the steps resembled the pattern on the bottom of
       defendant’s shoes. As the trial court found “a mountain of circumstantial evidence” to support
       the conclusion that defendant was driving the Malibu, the outcome of the proceedings would
       not have been different had counsel cross-examined Armstrong on the contents of the video.
       Thus, defendant’s ineffective-assistance claim on this issue is without merit.

¶ 32                                     B. Motion To Suppress
¶ 33        Defendant argues trial counsel failed to file a meritorious motion to suppress the cannabis
       found during the inventory search of his car conducted by the Pontiac police department. Our
       supreme court has noted that when “an ineffectiveness claim is based on counsel’s failure to
       file a suppression motion, in order to establish prejudice under Strickland, the defendant must
       demonstrate that the unargued suppression motion is meritorious, and that a reasonable


                                                    -5-
       probability exists that the outcome would have been different had the evidence been
       suppressed.” Henderson, 2013 IL 114040, ¶ 15, 989 N.E.2d 192.
                   “The threshold issue in considering whether the police have conducted a valid
               inventory search incident to a tow of defendant’s vehicle is whether the impoundment
               of the vehicle is proper. [Citation.] That a defendant’s car would be left unattended is
               not a sufficient reason for impoundment unless the vehicle is illegally parked.
               [Citation.] Law enforcement does have the authority, however, pursuant to its
               community caretaking function, to seize and remove from the streets vehicles impeding
               traffic or threatening public safety and convenience. [Citation.] Where the police
               impound a vehicle based on a cognizable reason, an inventory search pursuant to the
               tow is justified. [Citation.] Although the State’s evidence must support a finding that
               the decision to tow was based on a reasonable procedure, there is no requirement that
               the State present evidence of written procedures.” People v. Mason, 403 Ill. App. 3d
               1048, 1054-55, 935 N.E.2d 130, 136 (2010).
¶ 34       In the case sub judice, Sergeant Roberts testified he conducted an inventory search of
       defendant’s vehicle, as the Pontiac police department had a policy that the cars of DUI
       arrestees were to be inventoried and towed. This was the totality of the evidence as to the
       impoundment, which was not at issue at trial. It is possible defendant parked his vehicle in such
       a way or place that would require it to be towed and inventoried by the police. With an
       undeveloped record before us on this direct appeal, we cannot make a determination on the
       propriety of the inventory search or whether the State could justify the search on any other
       basis.
¶ 35       Believing this to be a Category A case, the State argues the record is insufficient to
       determine whether counsel should have filed a motion to suppress or whether one would have
       been successful, and, thus, defendant’s claim is more appropriate for collateral review. In his
       reply brief, defendant disagrees with the State’s argument, in part, because he has completed
       his sentence in this case and cannot file a petition for postconviction relief. See 725 ILCS
       5/122-1(a) (West 2014) (stating only a person in prison may file a petition under the
       Post-Conviction Hearing Act). Moreover, defendant points out he cannot bring an
       ineffective-assistance claim in a petition for relief from judgment. See People v. Pinkonsly,
       207 Ill. 2d 555, 567, 802 N.E.2d 236, 244 (2003) (stating proceedings on a petition for relief
       from judgment “are not an appropriate forum for ineffective-assistance claims because such
       claims do not challenge the factual basis for the judgment”).
¶ 36       Given the undeveloped record and the current status of defendant’s case, we find it
       appropriate, pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), to retain
       jurisdiction and remand the cause to the trial court for a hearing on defendant’s claim of
       ineffective assistance of counsel. In re Alonzo O., 2015 IL App (4th) 150308, ¶ 31, 40 N.E.3d
       1228. “ ‘Such a hearing will give [defendant] a full opportunity to prove facts establishing
       ineffectiveness of counsel, the State a full opportunity to present evidence to the contrary, and
       the establishment of a factual record on the issue.’ ” Alonzo O., 2015 IL App (4th) 150308,
       ¶ 31, 40 N.E.3d 1228 (quoting In re Ch. W., 399 Ill. App. 3d 825, 830, 927 N.E.2d 872, 876
       (2010)).




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¶ 37                                        III. CONCLUSION
¶ 38       For the reasons stated, we affirm the trial court’s judgment on defendant’s DUI convictions
       in case No. 13-DT-2 (No. 4-14-0486). We retain jurisdiction and remand the cause for an
       evidentiary hearing on defendant’s ineffective-assistance-of-counsel claim in case No.
       13-CM-25 (No. 4-14-0487). As part of our judgment, we award the State its $50 statutory
       assessment against defendant as costs of this appeal.

¶ 39      No. 4-14-0486: Affirmed.
¶ 40      No. 4-14-0487: Remanded with directions.




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