                          NO. 4-05-0674             Filed: 12/12/06

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Sangamon County
FREDERICK B. DAVIS,                    )    No. 03CF992
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Leslie J. Graves,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In February 2004, a jury convicted defendant, Frederick

B. Davis, of residential burglary (720 ILCS 5/19-3(a) (West

2002)) and robbery (720 ILCS 5/18-1 (West 2002)).   In May 2004,

the trial court sentenced him to 14 years in prison on each

conviction, with those sentences to be served concurrently.

          In June 2004, defendant filed a motion to reconsider
his sentence, which the trial court later denied.   In August

2004, defendant pro se filed a petition for relief under the
Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West

2004)), alleging that (1) he received ineffective assistance of

trial counsel when his counsel failed to move for statutory

speedy-trial dismissal of the robbery charge and (2) counsel's

error deprived him of a fair trial on the residential-burglary

charge.

          Following a May 2005 hearing, the trial court (1)

granted defendant's postconviction petition, (2) vacated his

robbery conviction, and (3) ordered a new sentencing hearing on
his residential-burglary conviction.    Following a July 2005

hearing, the court resentenced defendant to 12 years in prison.

          Defendant appeals, arguing that the trial court erred

by not vacating his residential-burglary conviction and remanding

for a new trial.   We disagree and affirm.

                            I. BACKGROUND

                         A. Defendant's Trial

          In October 2003, the State charged defendant with

residential burglary (720 ILCS 5/19-3(a) (West 2002)), alleging

that on September 8, 2003, he knowingly and without authority

entered the home of Willard Shaffer with the intent to commit

theft therein.

          On January 27, 2004, the State charged defendant with

robbery (720 ILCS 5/18-1 (West 2002)), alleging that on September

8, 2003, he knowingly took property (cash and prescription

medications) from Shaffer by the use of force or threatening the

imminent use of force.

          At defendant's February 2004 jury trial, Springfield
police officer Steve Dahlkamp testified that on the evening of

September 8, 2003, he was dispatched to Shaffer's residence at

2909 East Elm in Springfield.    Shaffer, who was 89 years old,

told Dahlkamp that a man had just left in a cab with Shaffer's

money and medications.    Shaffer explained that he had heard a

knock on the front door, which he had left unlocked because he

was expecting his son.    Shaffer opened the door, and a man (later

identified as defendant) pushed Shaffer aside, entered the house,


                                - 2 -
and started looking through Shaffer's things.    Defendant took (1)

$60 from Shaffer's wallet (which had been on the kitchen table)

and (2) prescription medications from a kitchen cabinet.

            Dahlkamp's investigation led him to the cabdriver

(Charles Burke) who picked up defendant at Shaffer's residence.

Burke told Dahlkamp that when defendant got into the cab, he was

carrying a bowl of chili and he spilled some of it inside the

cab.   He also told Dahlkamp that defendant got out of the cab

near the Best Rest Motel and walked to a nearby residence.      The

cabdriver showed Dahlkamp the residence, which was located at

3236 East Enos in Springfield.

            Dahlkamp went to 3236 East Enos and spoke with Kelly

Busch, who lived there.    Busch denied that any males were at the

house that met defendant's description.    However, Dahlkamp could

see a man in the living room and asked Busch to have him step

out.   Defendant then came out to talk with Dahlkamp.   He said

that he had been at the house since 4 p.m. that day and had not

gone out.    Dahlkamp noticed what appeared to be a chili stain on
defendant's pants.

            Dahlkamp then had Burke come to Busch's residence and

when he got there, Burke identified defendant as the man he had

picked up at Shaffer's residence.    Dahlkamp placed defendant

under arrest.    Busch then allowed Dahlkamp into the house and

retrieved from her bedroom a plastic bag containing Shaffer's

medications.

            Springfield police evidence technician Neil Brown


                                 - 3 -
testified that on September 8, 2003, he went to Shaffer's resi-

dence.   He tested a chili can, telephone, and microwave for

fingerprints.    None of the fingerprints he obtained were of

"comparison value."

            Busch testified that on September 8, 2003, defendant

arrived at her residence in the evening and about an hour later

Dahlkamp arrived.    Busch acknowledged that she used crack cocaine

that day.    She had been in her bedroom prior to defendant's

arrival.

            Busch admitted that she had lied to Dahlkamp when she

told him that nobody had just arrived and when she initially told

him that no prescription medications were in the house.    She led

him to the medications after he told her it was important for

Shaffer to get them back.    She knew they were in the bedroom

because "any time anybody comes over, any of my friends, we would

always go straight back to my room, straight back, no stops, just

straight back."

            Burke testified that on September 8, 2003, he was
working as a cabdriver and was dispatched to 2909 East Elm.      At

that address, he picked up defendant, who emerged not from the

house but from an area near a toolshed.    Defendant was carrying

some kind of power tool, a bowl of chili, and a "sack."    During

the cab ride, defendant spilled some of the chili.

            Shaffer testified that around 6 p.m. on September 8,

2003, he was getting into the shower when there was a knock at

the front door.    Because he was expecting his son, he said, "come


                                - 4 -
in."   Shaffer was "in the middle of the hall" when he saw defen-

dant, who shoved him and said, "Pops, I'm not going to hurt you."

Defendant went into the kitchen and opened a cabinet.     He picked

up a sack and went through the house.     He kept Shaffer with him

by pushing him around.    Shaffer saw defendant pick up his wallet

but did not see him take any money out.     At some point, defendant

stood in front of the cabinet where Shaffer kept his medications,

but defendant was blocking Shaffer's view.     Defendant asked

Shaffer to heat up some chili for him, and Shaffer helped defen-

dant operate the stove.   Defendant started eating the chili

before it was hot.   Defendant called a taxicab.

           While waiting for the taxicab, defendant became impa-

tient and allowed Shaffer to get dressed so that he could drive

defendant to an automated teller machine.     When they went out to

Shaffer's car, the cab arrived.   When defendant went to the cab,

he was carrying some kind of tool, the bowl of chili, and a

plastic sack.

           Shaffer did not scream or ask the cabdriver for help
because he was confused and scared.     He then went inside and

called his son.   About 20 minutes later, he called police and an

officer came to speak with him.   The police also later returned

and took Shaffer to identify defendant.

           On this evidence, the jury convicted defendant of

residential burglary and robbery, and the trial court later

sentenced him to 14 years in prison on each conviction, to be

served concurrently.


                                - 5 -
          On direct appeal from his convictions and sentences,

this court affirmed the trial court's judgment.    People v. Davis,

No. 4-04-0819 (May 3, 2006) (unpublished order under Supreme

Court Rule 23).

                       B. Posttrial Proceedings

          In August 2004, while defendant's June 2004 motion to

reconsider was pending in the trial court, defendant pro se filed

a postconviction petition.    In his petition, defendant claimed

that (1) he received ineffective assistance of trial counsel when

his counsel failed to move for statutory speedy-trial dismissal

of the robbery charge and (2) counsel's error deprived him of a

fair trial on the residential-burglary charge.

          Following a May 2005 hearing on defendant's postcon-

viction petition, the trial court entered a written order (1)

granting his petition, (2) vacating the robbery conviction, and

(3) ordering a new sentencing hearing on defendant's residential-

burglary conviction.    In July 2005, the court later resentenced

defendant to 12 years in prison for residential burglary.    This

appeal followed.

       II. DEFENDANT'S CLAIM THAT THE TRIAL COURT SHOULD
        HAVE VACATED HIS RESIDENTIAL-BURGLARY CONVICTION

          Defendant argues that after the trial court determined

that his trial counsel rendered ineffective assistance, the court

should have vacated his residential-burglary conviction along

with his robbery conviction.    Specifically, he contends that the

State's case against him was improperly strengthened by the

State's late addition of the robbery charge, pointing out that,
                                - 6 -
but for his trial counsel's error, he would have faced only one

charge.   Defendant concludes by asserting that he "should be

placed in the same position he should have been in, but for his

attorney's error.   Consequently, [his] conviction should be

reversed, his sentences vacated, and a new trial ordered."     For

the reasons that follow, we disagree.

                       A. Standard of Review

           Before addressing the merits of defendant's argument,

we first determine the appropriate standard of review.    Doing so

requires us initially to determine the nature of the judgment we

are reviewing.

           In May 2005, the trial court conducted a hearing on

defendant's postconviction petition and concluded that his trial

counsel had provided ineffective assistance of counsel because of

his failure to object to the late-filed robbery charge.   When the

court indicated that it was prepared to vacate the robbery

conviction, defendant cited People v. Stanley, 266 Ill. App. 3d

307, 641 N.E.2d 1224 (1994), and argued that the court should

also vacate the residential-burglary conviction.   The court and

counsel discussed the matter further, and the court ultimately

decided to vacate only the robbery conviction and conduct a new

sentencing hearing on the residential-burglary conviction.     The

court stated that the new sentencing hearing would ensure that

the court was "completely fair" in resentencing defendant.

           One week after the hearing on the postconviction

petition, the trial court entered the following written order:

                               - 7 -
               "1.     The Petition for Post-Conviction

          Relief is granted;

               2.     The conviction on COUNT II, Robbery,

          is hereby VACATED;

               3.     This cause shall be set for a new

          Sentencing Hearing July 18, 2005[,] at 11:00

          a.m. on the conviction entered on COUNT I,

          RESIDENTIAL BURGLARY."

          In People v. Johnson, 206 Ill. 2d 348, 357, 794 N.E.2d

294, 301 (2002), the supreme court discussed the various stan-

dards of review that apply to different stages of postconviction

proceedings and explained its earlier decision on that subject in

People v. Coleman, 183 Ill. 2d 366, 378-89, 701 N.E.2d 1063,

1070-75 (1998), as follows:

          "The lengthy explanation of the standard of

          review in Coleman has since been reduced to a

          simple formula:    de novo review for the dis-

          missal of post[]conviction petition without

          an evidentiary hearing and review for mani-

          fest error when petitioner's constitutional

          claims were denied following an evidentiary

          hearing."

See also People v. Petty, 366 Ill. App. 3d 1170, 1175, 853 N.E.2d
429, 433 (2006) (in which this court held that "[t]rial court

determinations on postconviction petitions made after an eviden-

tiary hearing will not be disturbed unless manifestly errone-


                                 - 8 -
ous").

            However, neither Coleman, Johnson, nor Petty addressed

precisely the situation in this case.     Here, as the trial court's

written order noted, defendant's postconviction petition was

granted, and the only question defendant raises on appeal is

whether the relief granted him by the trial court was appropri-

ate.     We conclude that in such a situation, the question as to

the relief the trial court should award a defendant upon finding

in his favor on a postconviction petition should lie in that

court's sound discretion.    Accordingly, this court will review

the trial court's determination of that question and reverse only

if we find an abuse of that court's discretion.

    B. The Prejudicial Effect of Defendant's Being Tried for
             Robbery as Well as Residential Burglary

            Although defendant contends that but for his trial

counsel's error, he would have faced only one charge (namely,

residential burglary, instead of both residential burglary and

robbery), he never explains how he was prejudiced by facing both

charges.    Nor does he claim that evidence was presented at his

trial for robbery and residential burglary that would not have

been presented had he been tried for residential burglary alone.

            1. Other-Crimes Evidence Admissible as Part of
                        a Continuing Narrative

            The evidence at defendant's February 2004 jury trial

focused exclusively on events occurring on the evening of Septem-

ber 8, 2003, at Shaffer's residence.     A jury found that evidence

sufficient to convict defendant of both residential burglary and


                                 - 9 -
robbery, but even if defendant had not been charged with robbery,

all of the evidence presented at defendant's February 2004 jury

trial would still have been admissible as part of a continuing

narrative of the events on that day.     In People v. Carter, 362

Ill. App. 3d 1180, 1189-90, 841 N.E.2d 1052, 1060 (2005), this

court held that evidence of another crime is admissible if it is

part of a continuing narrative of the event giving rise to the

offense or, in other words, intertwined with the offense charged.

In this case, that standard is clearly met.

          In our judgment, the evidence against defendant would

have been the same even if he had not been charged with robbery.

Indeed, not only would the same evidence have been admissible,

but as this court noted in defendant's earlier appeal, that

evidence was "overwhelming."    Slip op. at 8.

2. The Applicability of This Court's Decision in People v. Trail

          The remaining question before us is what, if any,

prejudice does a defendant suffer when (1) he is appropriately on

trial for one charge and the jury is improperly permitted to

consider a second charge against him and (2) the evidence pre-

sented at his trial in support of both charges would be no

different than the evidence presented at trial had he been tried

only on the proper charge?     The answer to this question is found

in this court's earlier decisions in cases in which a defendant

claimed he was entitled to a severance of the charges against him

even though the evidence to be presented at his trial would have

been the same or essentially the same.

                                - 10 -
          In People v. Trail, 197 Ill. App. 3d 742, 746, 555

N.E.2d 68, 71 (1990), the defendant was charged with two sexual

assaults that occurred within the same household during closely

related periods of time and involved similar victims, the defen-

dant's teenage stepdaughters.    After being convicted of two

counts of criminal sexual assault committed upon his stepdaugh-

ters, the defendant appealed, in part, on the ground that the

trial court erred by denying his motion to sever the charges.

This court rejected that argument after first concluding that,

"On the facts of this case, evidence pertaining to one sexual[-]

assault count would have been admissible as 'other crimes'

evidence for the other count."    Trail, 197 Ill. App. 3d at 746,

555 N.E.2d at 71.    We explained further, as follows:

                  "We emphasize that where, as here,

          'other crimes' evidence is properly admissi-

          ble, the potential prejudice to a defendant

          of having the jury decide two separate

          charges is greatly diminished because the

          jury is going to be receiving evidence about

          both charges anyway."    (Emphasis in origi-

          nal.)    Trail, 197 Ill. App. 3d at 746, 555
          N.E.2d at 71.

This court has since reaffirmed Trail's holding.       See, for

example, People v. Lewis, 269 Ill. App. 3d 523, 529, 646 N.E.2d

305, 309 (1995).    The Second District Appellate Court has simi-

larly cited Trail approvingly in People v. Willer, 281 Ill. App.


                                - 11 -
3d 939, 953, 667 N.E.2d 708, 718 (1996).

          Just as we concluded in Trail that any prejudice

against a defendant for having his motion to sever denied is

greatly diminished when the jury would be receiving evidence

about both charges anyway, so we conclude that any prejudice to

defendant from having the jury consider both the residential-

burglary charge and the robbery charge against him was greatly

diminished for the same reason.   Accordingly, we further conclude

that the trial court did not abuse its discretion by denying

defendant's request to vacate his residential-burglary conviction

and grant him a new trial thereon.

          In reaching this conclusion, we reject defendant's

claim that the decision of the Third District Appellate Court in

Stanley requires otherwise.

              C. Defendant's Reliance Upon Stanley

          In support of defendant's argument that the trial court

erred by not vacating his residential-burglary conviction,

defendant relies primarily upon the Third District Appellate

Court's decision in Stanley.   For the reasons that follow, we

decline to follow it.

          In Stanley, the State charged the defendant and his
wife in May 1987 with aggravated criminal sexual assault, alleg-

ing that on May 13, 1986, the defendant and his wife committed an

act of sexual penetration with J.W. in that the defendant placed

his penis in contact with J.W.'s vagina while the defendant's

wife held J.W.'s legs apart.   On August 31, 1987, two weeks


                               - 12 -
before the defendant's jury trial, the State filed a five-count

amended information that alleged he committed aggravated criminal

sexual assault on or about May 13, 1986, by committing various

other acts of sexual penetration upon J.W.     One of the counts in

the new information (count III) repeated the charge originally

brought against the defendant, but the other four charges were

new.   Stanley, 266 Ill. App. 3d at 310, 641 N.E.2d at 1226-27.

           Two weeks later, on September 14, 1987 (125 days after

the defendant was taken into custody), a jury found the defendant

guilty of all five counts of the amended information.    Stanley,

266 Ill. App. 3d at 309, 641 N.E.2d at 1225.    The trial court

sentenced him to 25 years in prison on count I (no sentence was

apparently imposed on any other count), and his conviction was

affirmed on direct appeal.

           The defendant later filed a postconviction petition,

alleging, in part, that his trial counsel was ineffective for

failing to move for a speedy-trial discharge of the four new

charges.   On appeal, he further argued that his appellate counsel

was ineffective for failing to raise the issue on direct appeal.

Stanley, 266 Ill. App. 3d at 309, 641 N.E.2d at 1226.    Following

an evidentiary hearing on these claims, the trial court denied

the defendant's petition.    On appeal, the Third District agreed

with the defendant that his trial counsel's failure to move for a

speedy-trial discharge of the new charges constituted ineffective

assistance of counsel and ordered a new trial.    Stanley, 266 Ill.

App. 3d at 311, 641 N.E.2d at 1227.     The Third District explained


                               - 13 -
its decision as follows:

               "In this case, counsel's error resulted

          in forcing defendant to proceed to trial on

          four new charges with a mere two weeks to

          prepare.   We can conceive of no rational

          trial strategy that would justify counsel's

          failure to move for a discharge with respect

          to those charges.   We believe it reasonably

          probable that the outcome of a jury trial on

          multiple counts would be different from a

          trial on a single count, particularly given

          the nature of the acts alleged in this case.

          Accordingly, we find that counsel's error was

          sufficiently grave as to deprive defendant of

          his constitutional right to a fair trial.     We

          further find that the speedy[-]trial issue

          was not waived by appellate counsel's failure

          to raise it on defendant's direct appeal.
          Counsel's oversight on appeal obviously prej-

          udiced the defense and must be deemed inef-

          fective assistance as well.

               Having so found, we reject the State's

          suggestion to remand this cause solely for

          resentencing on count III.    We agree that

          defendant's trial on that count was within

          the statutory time period, and it is not


                              - 14 -
           clear from the record on appeal why the trial

           court chose to sentence defendant on count I.

           However, a new sentencing hearing is not an

           adequate form of relief.     Defendant's trial

           on count III was unfairly tainted by coun-

           sel's deficient performance in failing to

           obtain a discharge of multiple new and addi-

           tional charges brought late in the speedy[-]

           trial period.   Accordingly, defendant is

           entitled to a new trial on count III."     Stan-

           ley, 266 Ill. App. 3d at 311-12, 641 N.E.2d

           at 1227-28.

           For purposes of this appeal, Stanley is of interest

regarding the appellate court's treatment of count III, which is

the same charge that was originally brought against the defen-

dant.   The Stanley court concluded that the defendant was enti-

tled to a new trial on that charge, even though it was not

subject to any speedy-trial problems, not just a remand for a new

sentencing hearing.

           Other than the conclusory language that the Third

District believed "it reasonably probable that the outcome of a

jury trial on multiple counts would be different from a trial on

a single count, particularly given the nature of the acts alleged

in this case" (Stanley, 266 Ill. App. 3d at 311, 641 N.E.2d at
1227), the Third District provided no discussion or analysis as

to why this would be so.    The only other discussion that appears


                               - 15 -
in the court's decision pertinent to this issue is as follows:

"[A] new sentencing hearing is not an adequate form of relief.

Defendant's trial on count III was unfairly tainted by counsel's

deficient performance in failing to obtain a discharge of multi-

ple new and additional charges brought late in the speedy[-]

trial period."   Stanley, 266 Ill. App. 3d at 312, 641 N.E.2d at

1227-28.   But again, the Third District failed to provide any

explanation or analysis as to why this should be so.

           Defendant contends that Stanley stands for the blanket

proposition that when a defendant has been properly tried on some

counts along with other counts that were improper under speedy-

trial grounds, a new trial on the appropriate counts is required.

To the extent Stanley does stand for that proposition, we dis-

agree and decline to follow it.   Instead, we hold that the better

approach is to consider, as we did in this case, (1) how the

State's evidence against a defendant would have been different

had he been tried only on the appropriate charges and (2) what

prejudice he suffered, if any, from having the jury consider and

resolve a charge against him that should never have been before

it.

           In so holding, we recognize that in Stanley the trial
court had denied the defendant's postconviction petition and the

Third District reversed that denial and remanded for a new trial

on the appropriate criminal charges.   Although the Third District

had the power to take that action, it could have instead simply

reversed the denial of the defendant's postconviction petition


                              - 16 -
and remanded to allow the trial court to determine the appropri-

ate remedy.    Given that the trial court had presided over the

defendant's trial and thus would have been familiar with the

evidence presented on the various charges and its potential

prejudicial impact, that court would have been in a better

position to exercise the discretion necessary in determining

whether a new trial was actually warranted.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this

appeal.

            Affirmed.

            TURNER, P.J., concurs.

            COOK, J., specially concurs.




                               - 17 -
          JUSTICE COOK, specially concurring:

          I fully concur in the court's decision.    I agree that

defendant's other-crimes-evidence argument must be rejected.    As

the majority states, the evidence against defendant would have

been the same even if he had not been charged with robbery.

Defendants are sometimes found guilty of some charges and not

guilty of others.   Sometimes defendants are found guilty of

lesser-included offenses.   The fact that the jury has heard

additional evidence does not warrant reversal.

          I am uncomfortable with broad reliance on the "continu-

ing narrative exception."   Sometimes that exception has been

used, for example, to allow police officers to testify to every-

thing they came across during their investigations.    The excep-

tion should be applied cautiously.     "'The need for the evidence

is slight, the likelihood of misuse great.'"    People v. Cameron,

189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989), quoting

E. Cleary, McCormick on Evidence §249, at 734 (3d ed. 1984); see

also People v. Sample, 326 Ill. App. 3d 914, 921, 761 N.E.2d

1199, 1205 (2001); People v. Warlick, 302 Ill. App. 3d 595, 599-
600. 707 N.E.2d 214, 218 (1998).




                              - 18 -
