People v. Downs

• Decision Date: 15 August 2017
• Docket Number: No. 2-12-1156.,2-12-1156.
• Citation: 2017 IL App (2d) 121156 -C,83 N.E.3d 584
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Mark A. DOWNS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (2d) 121156 -C

83 N.E.3d 584

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Mark A. DOWNS, Defendant–Appellant.

No. 2-12-1156.

Appellate Court of Illinois, Second District.

Opinion filed August 15, 2017

Michael J. Pelletier, Thomas A. Lilien, and Jeffrey B. Kirkham, of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Joan M. Kripke, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 This case returns to us following a supervisory order of our supreme court directing us to vacate our most recent decision and to reconsider our analysis in light of People v. Cherry , 2016 IL 118728, 407 Ill.Dec. 439, 63 N.E.3d 871. Procedurally, then, we are in the position of considering the case on remand from the supreme court following its reversal of our decision in the second appeal of defendant, Mark A. Downs. In the first appeal, People v. Downs , 2012 IL App (2d) 100755-U, 2012 WL 6965085 ( Downs I ), defendant appealed the trial court's dismissal, during the first stage of a Krankel hearing (see People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984) ), of his posttrial claims of ineffective assistance of trial counsel. We reversed the dismissal, because the trial court erroneously converted the Krankel preliminary inquiry into an adversarial hearing on the merits, in which the State actively participated and defendant was required to represent himself without benefit of counsel. Before the flawed Krankel hearing, the trial court noted that some of defendant's allegations raised issues of possible neglect by his trial counsel, but, after the hearing, it dismissed all of defendant's claims. We remanded the cause, directing the trial court to appoint counsel and to continue the case from that point. Downs I , 2012 IL App (2d) 100755-U, ¶¶ 50–51, 2012 WL 6965085.

¶ 2 On remand, the trial court appointed counsel ( Krankel counsel) and held a Krankel hearing. Krankel counsel adopted only a general claim of ineffective assistance of trial counsel and declined to adopt any of defendant's specific allegations. The trial court again dismissed defendant's allegations, and defendant again appealed.

¶ 3 In the second appeal, defendant contended that Krankel counsel was ineffective in conducting the second Krankel hearing. Defendant also, for the first time in the case, challenged the trial court's definition of proof beyond a reasonable doubt in response to the jury's question to the court: "What is your definition of reasonable doubt, 80%, 70%, 60%?" We addressed the reasonable-doubt issue and laid the Krankel issue to the side. People v. Downs , 2014 IL App (2d) 121156, ¶ 15, 381 Ill.Dec. 933, 11 N.E.3d 869 ( Downs II ). In Downs II , we held that the trial court erred in responding to the jury's question and that there was a reasonable likelihood that defendant's conviction did not satisfy the beyond-a-reasonable-doubt standard. Id. ¶ 31. The State appealed, and our supreme court reversed, holding that the trial court appropriately responded to the jury's question and reiterating that a court should refrain from attempting to define reasonable doubt. People v. Downs , 2015 IL 117934, ¶¶ 24, 32, 410 Ill.Dec. 239, 69 N.E.3d 784 ( Downs III ). The supreme court then remanded the cause to this court to allow us to consider the Krankel issue. Id. ¶ 34.

¶ 4 Upon that remand, we considered the conduct of Krankel counsel during the second Krankel hearing. People v. Downs , 2016 IL App (2d) 121156-B, ––– Ill.Dec. ––––, ––– N.E.3d –––– ( Downs IV ). In brief, we accepted defendant's contention that Krankel counsel had abandoned his role as counsel and therefore was ineffective. See Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (counsel is ineffective if (1) his or her performance fell below an objective standard of reasonableness; and (2) prejudice resulted, meaning that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). In Downs IV , we concluded that, because Krankel counsel abandoned his role as counsel, prejudice could be presumed. See United States v. Cronic , 466 U.S. 648, 656–57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (prejudice may be presumed in limited circumstances, such as where counsel effectively provides no representation). The State appealed this ruling and, on November 23, 2016, our supreme court entered the following order:

"In the exercise of this Court's supervisory authority, the Appellate Court, Second District, is directed to vacate its judgment in [ Downs IV ]. The appellate court is directed to consider the effect of this Court's opinion in [ Cherry , 2016 IL 118728, 407 Ill.Dec. 439, 63 N.E.3d 871 ], on the issue of whether Krankel counsel's performance was constitutionally adequate under Strickland , and determine if a different result is warranted." People v. Downs , 412 Ill.Dec. 539, 75 N.E.3d 1052 (Ill. 2016) (supervisory order).

¶ 5 Accordingly, pursuant to our supreme court's supervisory order, we vacate our judgment in Downs IV , 2016 IL App (2d) 121156-B, ––– Ill.Dec. ––––, –––N.E.3d ––––, and return to the procedural position following Downs III 's reversal and remand directing us to consider defendant's claim of ineffective assistance of Krankel counsel; this time, however, we have the benefit of our supreme court's decision in Cherry .

¶ 6 In this appeal, we will consider defendant's challenge to the conduct of Krankel counsel at the second Krankel hearing. Defendant argues that Krankel counsel was ineffective because he abdicated his role to represent defendant when he abandoned defendant's specific claims of ineffective assistance of trial counsel. We reverse and remand the cause.

¶ 7 I. BACKGROUND

¶ 8 In Downs I , we provided a full account of the events underlying the case. In Downs II , we summarized those events.

In light of both of these factual summaries, we need not reprise the substantive facts of the offense; instead, we will provide an outline of the evidence as necessary and focus on the procedures now at issue.

¶ 9 In April 2009, defendant was convicted of the first-degree murder ( 720 ILCS 5/9–1(a)(1) (West 1996)) of six-year-old Nico Contreras. Early in the morning of November 10, 1996, Nico was shot while he slept. The intended target was Robert Saltijeral, Nico's uncle, who was a member of the Latin Home Boys gang. The shooter was Ruben Davila, accompanied by defendant and Elias Diaz, who were members of the Almighty Ambrose gang. A week before Nico's death, Davila's car had been shot up by Latin Home Boys gang members; Davila and defendant were tasked by the Ambrose gang to shoot Saltijeral to pay back the Latin Home Boys for shooting at Davila. Davila balked and, according to Davila's testimony, defendant shot at the house, ultimately killing Nico.

¶ 10 Davila and Alejandro Solis testified at defendant's trial. Davila received an incredibly lenient plea deal to testify against defendant. Davila admitted to the murder of Jose Yepiz, which occurred a few weeks after Nico's murder, along with a number of other shootings. Davila was charged only with aggravated discharge of a firearm in the Yepiz murder and received a recommendation to be placed in a boot camp program or, if he failed to satisfactorily complete the program, to receive an eight-year sentence. Additionally, Davila received nearly $39,000, paid to him or paid on his behalf for expenses and to support his family in Mexico.

¶ 11 Solis denied that he received a quid pro quo deal in exchange for his testimony; rather he testified that he cooperated because he believed that it was the right thing to do and it cleared his conscience. Still, even in the absence of an explicit deal, a 2½-year term of imprisonment was vacated and Solis was resentenced to a 30-month term of probation instead. Solis also received $5,000 to pay a child support arrearage allowing his release from incarceration, and he was paid $3,200 for working as an informant, some of which was paid for information relating to Nico's murder.

¶ 12 Based on Davila's and Solis's descriptions of Nico's murder, defendant was convicted of the murder.¹ Following the verdict, but before the sentencing, defendant filed two pro se motions alleging that his trial counsel had provided ineffective assistance. Defendant's second motion incorporated all of the allegations from the first motion and added more allegations. Defendant's second motion was 60 pages in length and contained 34 allegations. On July 31, 2009, pursuant to Krankel , the trial court appointed Krankel counsel, but it had not yet held a preliminary inquiry into the factual bases of defendant's allegations. On October 27, 2009, Krankel counsel filed a second amended motion on defendant's behalf, adopting five of defendant's pro se allegations. On November 25, 2009, defendant filed a third pro se motion, alleging 13 additional claims of ineffective assistance.

¶ 13 Among the five claims that Krankel counsel adopted were two claims pertinent here: (1) trial counsel ignored or refused defendant's request to choose a bench trial; and (2) trial counsel failed to sufficiently investigate and present defendant's alibi defense. In submitting defendant's second amended motion alleging ineffectiveness of trial counsel, Krankel counsel stated with respect to the bench-trial claim:

"Counsel adopts in part and amends Defendant's #11, to wit: ‘On first and second day of trial defendant asked (trial) counsel to dismiss the Jury and instead continue with a Bench Trial, but counsel ignored defendant.’ Defendant acknowledges that once the trial had begun the decision to waive defendant's jury right reverts to the discretion of the court ( People v. Zemblidge , 104 Ill.

...