People v. Godfrey

• Decision Date: 23 May 2008
• Docket Number: No. 3-06-0819.,3-06-0819.
• Citation: 382 Ill. App. 3d 511,888 N.E.2d 1230
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ted GODFREY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

888 N.E.2d 1230

382 Ill. App. 3d 511

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ted GODFREY, Defendant-Appellant.

No. 3-06-0819.

Appellate Court of Illinois, Third District.

May 23, 2008.

Melissa Maye (Court-appointed) (argued), Office of the State Appellate Defender, Ottawa, for Ted Godfrey.

Terry A. Mertel, Gary F. Gnidovec (argued), State's Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Attorney, Peoria, for the People.

Justice LYTTON delivered the Opinion of the court:

Defendant, Ted Godfrey, was convicted of home invasion (720 ILCS 5/12-11(a)(2) (West 2004)), criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West 2004)) and domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2004)). The trial court sentenced him to a statutory minimum term of six years imprisonment. On appeal, defendant asks us to (1) reduce his conviction and sentence under Supreme Court Rule 615, and (2) remand the case for additional proceedings on his claim of ineffective assistance of counsel. We affirm.

On April 28, 2005, defendant's ex-girlfriend, Erion Lovingood, invited defendant over to her house after he finished playing basketball. Lovingood had been pregnant with defendant's child, but that day discovered she had miscarried. Defendant finished his basketball game but did not go to Lovingood's house right away. After waiting several hours for defendant, Lovingood decided that she no longer wanted to see him, so she locked the front door and went upstairs. Around midnight, defendant arrived at Lovingood's home. He saw that the lights were on and her car was in the driveway.

After ringing the doorbell and receiving no response, defendant tried the front door and found it was locked. Defendant then called Lovingood on her cell phone. When Lovingood did not answer her phone, defendant kicked the door three times, breaking it open, and went searching for Lovingood. Defendant found Lovingood talking on the phone in her upstairs bathroom. Defendant became angry, snatched the phone from Lovingood and threw it down the stairs. Defendant and Lovingood then proceeded down the stairs, arguing along the way. Once downstairs, defendant threw another phone and fought with Lovingood. According to Lovingood, defendant pushed her, held her arms and threw something at her. When he became tired of fighting with Lovingood, defendant left.

Lovingood called the police. When police arrived at Lovingood's home, they found damage to the front door, spilled milk on the kitchen floor, blood spatters on the wall and floor and a television turned over on the floor. Police also saw a blood spot on Lovingood's shirt, a pink mark on her arm and a cut on her lip. Defendant testified that the blood on Lovingood's shirt was his.

Defendant was charged with home invasion, criminal trespass to a residence and domestic battery. After a bench trial, he was convicted on all three counts. Prior to sentencing, defendant sent a letter to the court, claiming that his attorneys were ineffective because they never told him his options or the amount of time he would have to serve if convicted. The trial court found that the letter did not contain sufficient allegations to establish incompetency of counsel.

The trial court sentenced defendant to six years in prison, the mandatory minimum sentence for a conviction of home invasion. See 720 ILCS 5/12-11(c) (West 2004); 730 ILCS 5/5-8-1(a)(3) (West 2004).

I.

Defendant asks us to reduce his conviction from home invasion to the lesser included offense of criminal trespass to a residence and then remand for sentencing on the reduced offense. He contends that we have the power and duty to do this under Supreme Court Rule 615.

Rule 615 states, in relevant part, "On appeal the reviewing court may * * * reduce the degree of the offense of which the appellant was convicted * * *." 134 Ill.2d R. 615(b)(3). Courts using the power granted by this rule must do so with "caution and circumspection" and not "purely out of merciful benevolence." People v. Jones, 286 Ill.App.3d 777, 783, 222 Ill.Dec. 131, 676 N.E.2d 1335, 1339-40 (1997).

When a trial court's judgment is tainted by reversible error but a conviction for a lesser included offense would not be, we may employ Rule 615 to remand the case for sentencing on the lesser-included offense. See People v. Davis, 112 Ill.2d 55, 61, 96 Ill.Dec. 693, 491 N.E.2d 1153, 1156 (1986). However, there is a difference of opinion within the appellate court about whether there must be reversible error to invoke Rule 615. Compare People v. Kick, 216 Ill.App.3d 787, 793, 159 Ill.Dec. 726, 576 N.E.2d 395, 399 (1991) (reversible error required); with People v. Plewka, 27 Ill.App.3d 553, 558-59, 327 N.E.2d 457, 461 (1975) (reversible error not required). We need not reach this issue because even under the more lenient standard applied by appellate courts, the facts in this case do not trigger the application of Rule 615.

Under the more lenient standard, reversible error is not necessary when there is (1) an evidentiary weakness in the State's case, (2) a mandatory minimum sentence that is unsatisfactorily harsh, and (3) a conviction for a lesser-included offense. People v. Jackson, 181 Ill.App.3d 1048, 1051-52, 130 Ill.Dec. 725, 537 N.E.2d 1054, 1057 (1989). "Evidentiary weakness" means something that causes the appellate court to have grave concern about the reliability of the guilty verdict. See Jones, 286 Ill.App.3d at 784, 222 Ill. Dec. 131, 676 N.E.2d at 1340.

To sustain a conviction for home invasion, the State must prove the following:

"A person * * * commits home invasion when without authority he or she knowingly enters the dwelling of another when he or she knows or has reason to know that one or more persons is present * * * and * * * [i]ntentionally causes any injury * * * to any person or persons within such dwelling place * * *." 720 ILCS 5/12-11 (West 2004).

Defendant claims that there were several evidentiary weaknesses in the State's case that justify invocation of Supreme Court Rule 615. First, he argues that there is a factual question regarding whether his presence in Lovingood's home was authorized. We find no evidentiary weakness regarding this element. Lovingood testified that although she invited defendant over to her house earlier that evening, she did not want to see him when he finally came to her home. This is why she locked her door, did not open the door for defendant when he rang her door bell and did not answer her cell phone when defendant called. Based on Lovingood's undisputed testimony, the trial court properly concluded that defendant's presence in the home was unauthorized.

Defendant also claims that his entry was authorized because he entered Lovingood's home out of concern for her safety. He cites case law on the limited authority doctrine, which deals with the limited nature of an invited person's authority to be in a dwelling. See People v. Bush, 157 Ill.2d 248, 252, 191 Ill.Dec. 475, 623 N.E.2d 1361, 1364 (1993). The limited authority doctrine applies only after a defendant is invited into or granted access to a dwelling. People v. Priest, 297 Ill. App.3d 797, 805, 232 Ill.Dec. 385, 698 N.E.2d 223, 229 (1998). Here, the evidence established that although Lovingood asked defendant to come to her house earlier that evening, she did not invite him into her home or grant him entry into the home when he arrived at midnight. Because defendant entered Lovingood's home by force, the limited authority doctrine does not apply.

Finally, defendant claims that there was insufficient evidence that he injured Lovingood. Lovingood testified that defendant physically injured her by pushing her, holding her arm and throwing something at her. A police officer testified that he saw a mark on Lovingood's arm and a cut on her lip when he arrived on the scene. Defendant testified that he did not hurt Lovingood and that his own wounds accounted for the blood on Lovingood's shirt. The trial court chose to believe the testimony of Lovingood and the police officer over defendant's. This does not create an evidentiary weakness. See Jackson, 181 Ill.App.3d at 1052, 130 Ill.Dec. 725, 537 N.E.2d at 1057 (a conviction does not suffer from evidentiary weakness when the trial court finds testimony from a defense witness less credible than consistent testimony from prosecution witnesses).

Since there is no evidentiary weakness, we cannot invoke Rule 615 to reduce defendant's conviction and sentence. See Jackson, 181 Ill.App.3d at 1051-52, 130 Ill.Dec. 725, 537 N.E.2d at 1057.

II.

Defendant also asks us to remand this case so that the trial court may inquire into the adequacy of his trial counsel. He claims that if his attorneys told him that he faced a mandatory six-year prison sentence upon a conviction for home invasion he would have sought a plea deal on the lesser charges.

When a defendant presents a pro se motion alleging ineffective assistance of counsel, the court may dismiss it if the claim is spurious or pertains only to trial tactics. People v. Baltimore, 292 Ill. App.3d at 165, 226 Ill.Dec. 372, 685 N.E.2d 627, 631 (1997). If, however, the defendant's allegations of incompetence have merit, the court should appoint new counsel to argue defendant's claim of ineffective assistance. People v. Nitz, 143 Ill.2d 82, 134-35, 157 Ill.Dec. 431, 572 N.E.2d 895, 919 (1991).

To sustain an allegation of ineffective assistance, the defendant must present evidence of deficient performance and evidence that if counsel's performance had been adequate the outcome might have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); People v. Albanese, 104 Ill.2d 504, 525, 85 Ill.Dec. 441, 473 N.E.2d 1246, 1255 (1984).

However, even if defendant's public defender and later his retained counsel did not tell him about the sentence he faced if convicted of home invasion, defendant still has no...