People v. Palen

• Citation: 407 Ill.Dec. 803,64 N.E.3d 181
• Decision Date: 30 September 2016
• Docket Number: No. 4–14–0228.,4–14–0228.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Scott PALEN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

64 N.E.3d 181
407 Ill.Dec. 803

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Scott PALEN, Defendant–Appellant.

No. 4–14–0228.

Appellate Court of Illinois, Fourth District.

Sept. 30, 2016.

64 N.E.3d 185

Michael J. Pelletier, Jacqueline L. Bullard, and Ryan R. Wilson (argued), all of State Appellate Defender's Office, of Springfield, for appellant.

John Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and John M. Zimmerman (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice POPE delivered the judgment of the court, with opinion.

407 Ill.Dec. 807

¶ 1 Following a September 2012 incident at a Springfield apartment building, the State charged defendant, Scott Palen, with attempt (residential burglary) (720 ILCS 5/8–4(a), 19–3(a) (West 2010)) and possession of burglary tools (720 ILCS 5/19–2(a) (West 2010)). Defendant's first trial began on September 30, 2013. Two assistant State's Attorneys, Karen Tharp and Steven McClure, represented the State. Prior to the trial's evening recess, the trial court swore eight jurors. Before trial resumed the next day, Tharp's father died. Prior to the resumption of jury selection, the court noted the somber circumstances, Tharp's resultant absence, and McClure's comparative inexperience, and then sua sponte declared a mistrial.

¶ 2 In November 2013, the trial court began jury selection for defendant's second trial. Defendant never filed a motion to dismiss pursuant to section 114–1(a)(2) of the Code of Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/114–1(a)(2) (West 2012)) based on double jeopardy principles. The second jury convicted defendant of attempt (residential burglary) and possession of burglary tools. Defendant filed a posttrial motion raising the double jeopardy issue by arguing the court erred in declaring a mistrial in the first case. Thereafter the trial court denied defendant's posttrial motion and sentenced

407 Ill.Dec. 808

64 N.E.3d 186

defendant to concurrent sentences of 10 and 6 years in prison.

¶ 3 Defendant appeals, arguing (1) the trial court abused its discretion by declaring a mistrial unmerited by a manifest necessity, and, as a result, double jeopardy barred his retrial; (2) his prior burglary conviction was improperly admitted; (3) the court erred in sentencing where (a) it made improper findings, (b) it failed to adequately consider the evidence presented in mitigation, and (c) his six-year sentence for possession of burglary tools violates the prohibition against imposing an extended-term sentence on a lesser class felony offense; and (4) the matter should be remanded to allow the court to conduct an ineffective-assistance-of-counsel inquiry pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). We affirm in part, vacate in part, and remand with directions.

¶ 4 I. BACKGROUND

¶ 5 On September 20, 2012, the State charged defendant by information with attempt (residential burglary) (720 ILCS 5/8–4(a), 19–3(a) (West 2010)) and possession of burglary tools (720 ILCS 5/19–2(a) (West 2010)), based on an incident on September 5, 2012.

¶ 6 On June 26, 2013, the State filed a motion seeking to introduce defendant's prior conviction for residential burglary of an apartment. The State argued defendant's 2009 conviction would establish his intent, motive, knowledge, modus operandi, and absence of mistake for the charged conduct in this case.

¶ 7 On July 8, 2013, the State filed a notice of intent to impeach defendant with prior convictions for residential burglary and felony disorderly conduct.

¶ 8 During the September 13, 2013, hearing on the State's motions, the State argued the facts underlying the prior residential burglary conviction were substantially similar to those of the instant case and therefore, the prior conviction was highly probative. In the prior case, defendant broke a window and entered the apartment while the occupant was home. The State maintained the prior conviction showed defendant had, in the past, "the intent to break in despite someone being home." Defendant argued there are only so many ways a residential burglary can occur. Defendant pointed out individuals committing residential burglary often attempt to gain entry through windows at night.

¶ 9 At the conclusion of the hearing, the trial court granted the State's request to admit defendant's prior conviction. The court noted it would provide the jury with an instruction limiting consideration of the prior conviction to the issue of intent and knowledge. The court also found the State could use defendant's prior disorderly conduct convictions for impeachment if defendant chose to testify but barred the State from using the prior residential burglary conviction for impeachment purposes.

¶ 10 On September 30, 2013, defendant's first trial began. Prior to voir dire, the trial court described how jury selection would proceed, stating, "we'll continue the process until we have 12 jurors plus [2] alternates." During voir dire, defendant and assistant State's Attorneys Karen Tharp and Steven McClure agreed on eight jurors, who were sworn by the trial court before the proceedings recessed for the evening. Before the trial resumed the next day, Tharp's father died. Prior to the resumption of jury selection, the court noted Tharp's resultant absence and, addressing the somber circumstances, stated, "While I appreciate Mr. McClure being here, I'm not sure this would be the best

407 Ill.Dec. 809

64 N.E.3d 187

way for him to do his first felony trial by himself. So due to very unfortunate circumstances, I'm going to call a mistrial in this matter."

¶ 11 After speculating that Tharp would likely return to work within several days, the trial court continued, "I'm going to give [defendant] a court date. I apologize for the [in]convenience. This is obviously something that we have no control over."

¶ 12 We note the trial court declared a mistrial without eliciting the position or advice of defense counsel or assistant State's Attorney McClure. After the court declared a mistrial, defendant acknowledged the court's action and replied, "Yes, ma'am."

¶ 13 Defendant's second trial began on November 13, 2013. During trial, Melissa Morgan testified she heard banging on the side of her apartment near her bedroom window on September 5, 2012, shortly after 10 p.m. Morgan assumed it was just neighborhood kids making noise outside, which she characterized as a common occurrence. A short time later, Morgan's telephone rang. At about the same time, someone started flashing a light in her bedroom window. Morgan testified she did not immediately answer the phone because she was in bed with her one-year-old daughter and was scared. When Morgan returned the call, a member of the police department explained an officer was outside her apartment. Morgan met with the officer, who explained someone had tried to force open her bedroom window. Morgan observed, from the outside, the window appeared "pried open." When Morgan returned inside the apartment, she noticed the window lock was broken. Morgan testified she always checks all the windows to make sure they are locked prior to going to bed. The lock was not broken when she went to bed that night.

¶ 14 Ryan Alexander and Corey Roberts each testified they were at Morgan's apartment complex at approximately 10 p.m. on September 5, 2012. Alexander testified he observed a truck parked on the side of the one of the apartment buildings. A man, whom Alexander and Roberts both identified as defendant, got out of the truck. Defendant was wearing a "hoodie" and shorts. Alexander testified defendant walked around the apartment buildings. Alexander and Roberts followed him. Alexander observed defendant stop near Morgan's apartment and stand on an air conditioning unit. Roberts climbed onto the roof of an adjacent shed to watch defendant. Both Alexander and Roberts observed defendant remove a flat bar from inside his "hoodie" and attempt to force open the window with it. Alexander and Roberts both heard a "loud pop" sound. After defendant saw Alexander looking at him, defendant walked away from the apartments down a nearby road. Alexander followed defendant. While he lost sight of defendant for a moment, Alexander observed defendant walking back to the apartments. Defendant returned to his truck and drove it "recklessly," cutting through the grass and out of the apartment complex without turning on the truck's headlights. By that point, Roberts had already called the police and provided them with a description of the truck and its license plate number. Alexander testified he chased the truck on foot until he saw two police cars stop the truck. Both Alexander and Roberts identified defendant to police as the man they earlier observed in the apartment complex.

¶ 15 Springfield police officer Jennifer Wallace testified, although she was unable to find any latent fingerprints around Morgan's bedroom window, she observed a shoe print on the air conditioner which had a...