People v. Downs

• Decision Date: 30 June 2016
• Docket Number: No. 2-12-1156,2-12-1156
• Citation: 2016 IL App (2d) 121156 -B,175 N.E.3d 684
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark A. DOWNS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (2d) 121156 -B

175 N.E.3d 684

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 June 30, 2016

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

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

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

¶ 1 This case returns to us 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 initial 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 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. The trial court had indicated that some of defendant's allegations raised issues of possible neglect by his trial counsel. 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.

¶ 2 On remand, the trial court appointed counsel ( Krankel counsel) and held a Krankel hearing. 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 this 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 had been convicted on proof less than beyond a reasonable doubt. 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 Accordingly, before us now, defendant appeals the conduct of 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.

¶ 5 I. BACKGROUND

¶ 6 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.

¶ 7 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 Almighty 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.

¶ 8 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.

¶ 9 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. Nevertheless, 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. In addition, Solis received $5000 to pay a child support arrearage and allow his release from incarceration, and he was paid $3200 for working as an informant, some of which was paid for information relating to Nico's murder.

¶ 10 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, and 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.

¶ 11 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. At a hearing on Krankel counsel's motion, the trial court, on its own initiative and purportedly based on a recent Rule 23 order in another case, reconsidered the procedure it was going to follow. The trial court believed that, in conducting the preliminary inquiry into the factual bases of defendant's allegations, it was required to first allow the defendant to discuss his allegations, without legal representation. The trial court thus rescinded Krankel counsel's appointment and ordered defendant to present his pro se allegations. In the procedure that followed, defendant would first read and elaborate on an allegation, trial counsel was invited to comment and argue against defendant's allegation, the State was invited to offer its argument in support of trial counsel and against defendant's allegation, and defendant was given an opportunity to have the last word in support of his allegation. In this fashion, the trial court thus converted the preliminary inquiry into an adversarial hearing on the merits of each allegation, during which defendant was not allowed to have legal representation.

¶ 12 Regarding the bench-trial allegation, defendant averred that, on the first and second days of the jury trial, defendant informed trial counsel that he wanted to dismiss the jury and proceed with a bench trial for the balance of the proceedings. Defendant alleged that trial counsel completely ignored him and the jury trial proceeded to completion notwithstanding defendant's expressed wishes. The trial court sought trial counsel's commentary on the allegation. Trial counsel explained that he acknowledged defendant's requests to convert the jury trial into a bench trial and then proceeded to talk defendant out of his desire on each day. Trial counsel noted that Diaz had been convicted by the same trial court at a bench trial and that defendant's jury trial involved essentially the same evidence that had been presented during Diaz's bench trial. Trial counsel believed that it was extremely likely that, based on the same evidence, the trial court would return a guilty finding if the proceedings were converted into a bench trial. Trial counsel explained this to defendant, and defendant seemed to acquiesce to this reasoning. Trial counsel noted that he believed that, had he not tried to talk defendant out of converting the proceedings into a bench trial, he would have been ineffective. Trial counsel also explained that defendant was never "insistent" about converting the proceedings into a bench trial; for his part, defendant stated that he was "almost 100 percent certain" that he wanted a bench trial. The trial court specifically dismissed this allegation, holding:

"defendant has argued that it should have been a bench trial; and his attorney countered by saying the Court tried Elias Diaz at bench trial and found Elias Diaz guilty on a bench trial. Defense trial strategy was sound in that this Court had already heard that evidence regarding Elias Diaz and found the evidence credible and believable and relevant and

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