People v. Montgomery

NO. 4-05-0151 Filed 6/21/07

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
MARTEL MONTGOMERY, ) No. 04CF328
Defendant-Appellant. )
) Honorable
) Patrick W. Kelley,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In September 2004, a jury convicted defendant, Martel

Montgomery, of armed robbery (720 ILCS 5/18-2(a) (West 2004)),

conspiracy to commit armed robbery (720 ILCS 5/8-2(a) (West

2004)), aggravated discharge of a firearm (720 ILCS 5/24-1.2

(West 2004)), and home invasion (720 ILCS 5/12-11(a)(3) (West

2004)). At defendant's December 2004 sentencing hearing, the

trial court determined that defendant's conviction for conspiracy

(count II) merged into his conviction for armed robbery (count I)

and then sentenced defendant to 21 years in prison for home

invasion, 6 years in prison for armed robbery, and 4 years in

prison for aggravated discharge of a firearm. The court also

found that great bodily harm and severe bodily injury occurred

and, accordingly, ordered that (1) defendant's sentences were to

be served consecutively and (2) he was required to serve 85% of
each sentence.

Defendant appeals, arguing that (1) he was denied his

constitutional right to retain counsel of his choice; (2) his

trial counsel was ineffective because he failed to inform defen-

dant of the potential punishment for the crimes with which he was

charged; (3) the prosecutor's closing argument was improper; (4)

the trial court erred by failing to conduct an appropriate

examination of his posttrial allegations of ineffective assis-

tance of counsel; (5) the court erred when it determined that

defendant's conduct caused great bodily harm and severe bodily

injury; and (6) assuming that the truth-in-sentencing statute

applies, the court erred when it ordered defendant to serve 85%

of all three of his sentences. We disagree with each of defen-

dant's arguments and affirm.

I. BACKGROUND

Because defendant does not challenge the sufficiency of

the State's evidence to support his convictions, we will discuss

it only to the extent necessary to put his arguments in context.

The evidence at defendant's September 2004 jury trial

showed that defendant, Demario Danley, and his brother, Don

Danley, agreed to rob Nicholas Griffitts at Griffitts' trailer.

Don had previously bought marijuana from Griffitts at the

trailer. On March 19, 2004, defendant and the Danley brothers

went to Griffitts' trailer, and Griffitts let them in after Don

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said they were there to buy marijuana. Griffitts' friend, Sam

Grant, was also present. Once inside, they discussed a marijuana

purchase. During the discussion, Adrian Brown came to the

trailer to purchase some marijuana.

As the negotiations continued in the trailer's family

room, defendant got up, walked down a hallway, and then walked

back into the family room with a revolver in his hand. He struck

Griffitts on the head with the gun, knocking him to the floor.

Defendant then demanded of him, "Where is your stuff? Where is

your money?" When Griffitts did not respond, defendant repeat-

edly kicked him.

When Griffitts got to his feet, defendant pointed the

gun at him and fired two shots past his head into the trailer

wall. As he did so, defendant yelled, "Where is the money?

Where is the stuff? I know you got it." Defendant then fired a

third shot into the trailer wall.

At that point, Grant, who was lying on the floor in the

family room, told defendant where to find some hidden money.

Demario then located a money box, and defendant grabbed a bag of

marijuana off the table. The Danley brothers and defendant then

began leaving. On his way out, defendant said, "Don't think of

following me," and fired a fourth shot, this time into Griffitts'

television.

Shortly after defendant and the Danley brothers fled

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the trailer, the police and paramedics were called to the scene.

An officer described Griffitts as having a "large cut or gash to

his head" that was bleeding. Griffitts also appeared "a little

disoriented."

The officer also testified that approximately 10 to 15

minutes after he was dispatched to Griffitts' trailer, the phone

in the trailer rang. The officer answered the phone and identi-

fied himself. The caller stated that his name was Don and

although he had been at the trailer earlier that night, he was

not involved in what happened. The caller claimed he did not

know what was going on and did not want to get his friends

involved.

The officer later went to the hospital to speak with

Griffitts, who informed him that the caller was probably Don

Danley, who lived in a nearby apartment complex. The police went

to that location, found Don, and a short time later he gave a

full statement to the police, which implicated himself, Demario,

and defendant.

Griffitts testified that after defendant struck him in

the head, defendant tried to rip Griffitts' pants off to see if

he had anything in his underwear. While doing that, defendant

kicked him repeatedly, trying to kick Griffitts in the chest and

face. Most of Griffitts' injuries were to his forearms because

he had tried to block defendant's kicks. Defendant kept asking

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where the money and the rest of the drugs were, but Griffitts

said nothing. Griffitts estimated that the first two shots

defendant fired missed him by five or six inches, while defen-

dant's last shot missed him by three or four inches.

Griffitts further testified that he received 13 staples

in his head and one stitch in his lip. (However, the prosecutor

later conceded that Griffitts' medical records showed he received

only seven staples in his head.) Griffitts explained that these

injuries gave him a headache every day for two weeks, and his

vision was blurry "until right before I got staples in my head at

the hospital."

Don testified as a State's witness and identified

defendant as Demario's closest friend. Don explained that he did

not have any agreement with the State regarding his testifying,

but he hoped that his sentence would be reduced as a result.

Nonetheless, he stated that he was "only here to tell the truth."

He acknowledged that he had been told that if he was "honest, [he

would] receive a benefit," but he did not know what the benefit

would be.

Don described the plan that he, Demario, and defendant

made to rob Griffitts. On March 19, 2004, he asked his "side

girlfriend," Tressa Walsh, to watch his two-year-old daughter so

that he and the others could "go rob Nick."

Walsh, Don, and Don's daughter then drove to pick up

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Demario and defendant. Defendant's girlfriend, Marqueesha Davis,

also joined them. Demario and defendant had the gun. They all

drove back to Don's apartment and discussed their plan to rob

Griffitts. Don's involvement was necessary because Griffitts did

not know either Demario or defendant and would not have let them

in his trailer. Don then described the events inside the trailer

in detail, substantially corroborating Griffitts' testimony.

After the robbery was over, they went back to Don's

apartment and split up the proceeds--namely, the marijuana and

the money. Don then went to his cousin's house with Walsh, where

he smoked some marijuana in an effort to calm himself down. He

was worried about the police because Griffitts knew him. He

called Griffitts and spoke to a police officer who answered.

Don then took Walsh home and went back to his apart-

ment. When the police came, Don let them in, told them he knew

why they were there, and agreed to an interview, in which he told

the police what had happened. At the time he did so, he had not

spoken to any prosecutors, nor had the police made any promises

of any kind as to what would happen to him.

Walsh substantially corroborated Don's testimony. She

also testified that before Don, Demario, and defendant went to

Griffitts' trailer to rob him, she saw the gun in defendant's

hand. She also heard the three of them talking about how they

were going to commit the armed robbery. After the robbery, Walsh

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heard defendant say that he had to hit "this guy *** in the head

with the pistol because he wouldn't give his money up." She also

saw them split up the proceeds from the robbery.

Davis testified that she was then in custody because,

despite being subpoenaed, she did not come to court. Davis

testified about conversations she heard on March 19, 2004, and a

few days before that involving defendant, Don, and Demario, in

which they talked about "this white dude with the weed." Her

testimony about the events on March 19, 2004, substantially

corroborated Don's, except that she maintained that Don, Demario,

and defendant all left Don's apartment together "to go buy some

weed." Davis also acknowledged that defendant was the father of

her young child.

Davis also testified that when defendant and Don

returned to Don's apartment, she thought something might be

wrong, but she did not know for sure. As she, Don, Demario,

defendant, Don's baby, and Walsh all drove away from Don's

apartment, she heard some conversation about "the white guy

getting hit in the head and blood going everywhere."

The State's last witness was Deputy United States

Marshal John Beeman, who assisted Springfield police in appre-

hending defendant in Fort Wayne, Indiana. Beeman received

information from Springfield authorities that defendant was

traveling under the name of "Chris Brown" by Greyhound bus to

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Fort Wayne with his girlfriend, Latoya Morris. On March 27,

2004, Beeman and several other officers went to an address in

Fort Wayne associated with Morris and found defendant hiding in

the attic.

Defendant chose not to testify, and on this evidence,

the jury convicted him of all charges. The trial court later

sentenced him as stated. This appeal followed.

II. ANALYSIS

A. Defendant's Claim That He Was Denied His Constitutional
Right To Retain Counsel of His Choice

Defendant first argues that the trial court denied him

his constitutional right to retain counsel of his choice.

Specifically, he contends that the trial court erred by denying

his request to retain counsel of his choice without first (1)

inquiring into the circumstances surrounding his request or (2)

finding that his request was made for purposes of delay. We

disagree.

1. Background

During a recess from jury selection on the first day of

defendant's trial, defendant addressed the trial court and the

following colloquy occurred:

"[THE] COURT: What can I do for you?

[DEFENDANT]: Yes, sir--um--I believe

I'd be better off that I should have a paid

attorney in this case. I don't feel that

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 [appointed counsel is] representing me to his

best ability. I don't think he has my best

interests at heart. I am facing a lot of

time, and I just don't want to give my life

away like that, man. I don't feel comfort-

able.

THE COURT: So what's your point?

[DEFENDANT]: If I could get some time

to get a new lawyer?

THE COURT: No, [your current trial

attorney] is appointed to represent you.

He's an extremely able and competent counsel,

and we have started jury selection. I'm not

going to appoint a new lawyer for you, all

right?

[DEFENDANT]: (Nodding head up and

down)."

2. Analysis

In People v. Segoviano, 189 Ill. 2d 228, 245, 725

N.E.2d 1275, 1283 (2000), the supreme court addressed a defen-

dant's argument that the trial court erred by denying his pre-

trial motion for a continuance to obtain substitute counsel and

set forth the following guidelines for analysis of such claims:

"The determination whether to grant a contin-

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 uance for substitution of counsel is a matter

left to the discretion of the trial court,

and will not be overturned absent an abuse of

that discretion. [Citations.] The factors

to be considered in evaluating a trial

court's exercise of its discretion include

the diligence of the movant, the right of the

defendant to a speedy, fair[,] and impartial

trial, and the interests of justice. [Cita-

tions.] However, it is well established that

a trial court will not be found to have

abused its discretion in denying a motion for

substitution of counsel in the absence of

ready and willing substitute counsel. [Cita-

tions.]"

Applying these principles to the facts before it, the

Segoviano court rejected the defendant's claim and explained as

follows:

"In this case, the motion did not even con-

tain a representation that substitute counsel

had been secured, much less an averment that

such substitute counsel was ready and willing

to enter an appearance in the case. The

trial court thus did not abuse its discretion

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 in denying the motion." Segoviano, 189 Ill.

2d at 245, 725 N.E.2d at 1283.

Defendant cites this court's decision in People v.

Bingham, 364 Ill. App. 3d 642, 847 N.E.2d 903 (2006), for support

of his argument that the trial court abused its discretion by

failing to conduct sufficient inquiry into his request for a

continuance to obtain new counsel. In Bingham, the defendant's

public defender moved for a continuance on the day that the

defendant's trial was set to begin. He told the court that the

defendant had asked him to seek a continuance so that he could be

represented by out-of-town counsel by the name of Earl Washing-

ton. Bingham, 364 Ill. App. 3d at 644, 847 N.E.2d at 906. The

public defender further explained that Washington was already

representing the defendant in other cases. Bingham, 364 Ill.

App. 3d at 644, 847 N.E.2d at 906.

In response to the defendant's motion, the prosecutor

conceded that the defendant had other cases pending in which he

was being represented by Washington. The prosecutor further

indicated that he had tried without success to contact Washington

about those cases although he "'did get a palm message late

yesterday afternoon from Mr. Washington.'" Bingham, 364 Ill.

App. 3d at 644, 847 N.E.2d at 906. The trial court then ruled as

follows: "'Given the representations I've heard, the motion to

continue is denied.'" Bingham, 364 Ill. App. 3d at 644, 847

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N.E.2d at 906.

This court concluded that the trial court's denial of

the defendant's motion for a continuance to obtain substitute

counsel constituted an abuse of discretion. In so concluding, we

noted that "[t]he trial court should have conducted an inquiry

into the circumstances and the purposes of the motion before

making its ruling." Bingham, 364 Ill. App. 3d at 645, 847 N.E.2d

at 907. We further noted that (1) the defendant identified a

specific attorney whom he wished to hire if the court would grant

a continuance; (2) the attorney was already representing the

defendant on other, unrelated charges; (3) the prosecutor had

been contacted by the attorney the day before trial was set to

begin; (4) the case progressed quickly and had been pending only

three months; and (5) no prior continuances had been granted.

Bingham should be understood as concluding, under the

particular circumstances of that case, that an inquiry by the

trial court might well have disclosed that the attorney the

defendant identified by name (whose involvement in the case the

prosecutor corroborated) would, in fact, be "ready and willing"

substitute counsel. Segoviano, 189 Ill. 2d at 245, 725 N.E.2d at

1283. Bingham did not--indeed, could not--lower the bar set by

the supreme court in Segoviano when it held that no abuse of

discretion occurs when such a motion is denied in the absence of

any representation that "substitute counsel had been secured."

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Segoviano, 189 Ill. 2d at 245, 725 N.E.2d at 1283.

Defendant's reliance on Bingham is misplaced, given the

pertinent factual distinctions between this case and Bingham.

In this case, defendant did not identify an attorney whom he had

contacted or with whom he had a prior existing relationship.

Instead, the only thing the record shows is a vague hope by

defendant that, if given a continuance, he could hire some

attorney who might do a better job than his court-appointed

counsel. In addition, this case had been pending for several

months and the trial court had previously granted four continu-

ances (two at defendant's request). Moreover, the record con-

tains no indication that defendant had the financial resources to

hire an attorney of his own choice.

We mention defendant's apparent lack of resources

because his ability to hire private counsel would be essential in

order for him to change counsel. That is, despite defendant's

claimed dissatisfaction with his then-current court-appointed

counsel, defendant had no right to pick and choose among counsel

whom the court appoints to represent him. See People v. Wanke,

303 Ill. App. 3d 772, 782, 708 N.E.2d 833, 841 (1999) ("A crimi-

nal defendant has no right to choose his appointed counsel or

insist on representation by a particular public defender"). This

court reached the same conclusion in People v. DeRossett, 262

Ill. App. 3d 541, 544, 634 N.E.2d 1257, 1259 (1994) ("an indigent

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defendant does not have the right to court-appointed counsel of

his choice [citation], nor does a defendant have the right to

select a particular assistant public defender to represent him").

Despite our conclusion, we nevertheless suggest that it

is always better practice for the trial court--when questions

involving a defendant's representation arise--to engage in a

thorough inquiry, so that reviewing courts will not be forced to

draw inferences from a sparse record. One good reason for a

trial court to do so is that if a reviewing court were to con-

clude, as we did in Bingham, that the trial court abused its

discretion by denying a motion for continuance to obtain substi-

tute counsel, there is no such thing as "harmless error." In

that regard, we reaffirm what we wrote in Bingham--namely, that a

violation of a defendant's right to choice of counsel is not a

"trial error" occurring during the presentation of the case that

can be quantitatively assessed in light of the other evidence.

Bingham, 364 Ill. App. 3d at 649, 847 N.E.2d at 910. "Instead,

it is a fundamental constitutional error affecting a substantial

right that defies harmless-error analysis." Bingham, 364 Ill.

App. 3d at 649, 847 N.E.2d at 910; see also United States v.

Gonzales-Lopez, ___ U.S. ___, ___, 165 L. Ed. 2d 409, 419, 126 S.

Ct. 2557, 2563 (2006) (in which the United States Supreme Court

affirmed the decision of the Eighth Circuit (United States v.

Gonzalez-Lopez, 399 F.3d 924, 934 (8th Cir. 2005)), which Bingham

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cited approvingly, writing, in part, that "[w]here the right to

be assisted by counsel of one's choice is wrongly denied, *** it

is unnecessary to conduct an ineffectiveness or prejudice inquiry

to establish a [s]ixth [a]mendment violation").

B. Defendant's Claim That His Trial Counsel Was
Ineffective for Failing To Correctly Inform Him of the
Potential Punishment for the Crimes With Which He Was Charged

Defendant next argues that his trial counsel provided

ineffective assistance when counsel informed defendant that the

minimum sentence he could receive was 27 years in prison, not 31

years. We disagree.

Ineffective-assistance-of-counsel claims are reviewed

under the standard set forth in Strickland v. Washington, 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v.

Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). "To

obtain reversal under Strickland, a defendant must prove (1) his

counsel's performance failed to meet an objective standard of

competence and (2) counsel's deficient performance resulted in

prejudice to the defendant." People v. Thompson, 359 Ill. App.

3d 947, 952, 835 N.E.2d 933, 937 (2005). To satisfy the

deficient-performance prong, the defendant must show that counsel

made errors so serious that he was not functioning as the "coun-

sel" guaranteed by the sixth amendment (U.S. Const., amend. VI).

Thompson, 359 Ill. App. 3d at 952, 835 N.E.2d at 937. To satisfy

the prejudice prong, the defendant must show that but for coun-

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sel's errors, a reasonable probability exists that the outcome of

the proceedings would have been different. Thompson, 359 Ill.

App. 3d at 952, 835 N.E.2d at 937. The failure to satisfy either

Strickland prong will preclude a finding of ineffective assis-

tance of counsel. People v. Young, 347 Ill. App. 3d 909, 927,

807 N.E.2d 1125, 1140 (2004).

In People v. Curry, 178 Ill. 2d 509, 531, 687 N.E.2d

877, 888 (1997), the Supreme Court of Illinois held that "in

order to establish prejudice [under Strickland's second prong],

defendant must demonstrate that there is a reasonable probability

that, absent his attorney's deficient advice, he would have

accepted the plea offer." See also People v. Frieberg, 305 Ill.

App. 3d 840, 850, 713 N.E.2d 210, 218 (1999) (concluding that no

actual prejudice was established where no evidence existed

showing that the defendant would have accepted the State's plea

offer, even if he had known the parameters of the applicable

sentencing statutes).

In this case, nothing in the record suggests that

defendant was prepared to plead guilty had he known that the

minimum sentence was 31 years instead of 27 years in prison.

Defendant has thus failed to establish prejudice under Strick-

land's second prong.

C. Defendant's Claim That the Prosecutor's Remarks
During Closing Argument Were Improper

Defendant next argues that he was denied his right to a

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fair trial when the prosecutor, during closing argument, (1) made

improper comments regarding his failure to testify and defense

tactics and (2) made "inflammatory statements not based on the

evidence." We will address each contention in turn.

1. Prosecutor's Comments Generally

Prosecutors are afforded wide latitude in making

closing remarks and may comment on the evidence and draw all

legitimate inferences from the evidence, even if unfavorable to

the defendant. People v. Taylor, 345 Ill. App. 3d 1064, 1081,

804 N.E.2d 116, 129 (2004). Reviewing courts must consider the

closing argument as a whole, rather than focusing on selected

phrases or remarks. People v. Perry, 224 Ill. 2d 312, 347, 864

N.E.2d 196, 218 (2007). Improper closing remarks require rever-

sal only if they substantially prejudice a defendant, taking into

account (1) the content and context of the comment, (2) its

relationship to the evidence, and (3) its effect on the defen-

dant's right to a fair and impartial trial. People v. Johnson,

208 Ill. 2d 53, 115, 803 N.E.2d 405, 440-41 (2003). In addition,

our supreme court has stated that "[a] reviewing court will find

reversible error only if the defendant demonstrates that the

improper remarks were so prejudicial that real justice was denied

or that the verdict resulted from the error." Perry, 224 Ill. 2d

at 347, 864 N.E.2d at 218.

2. Defendant's Claim That the Prosecutor Improperly
Commented on His Failure To Testify

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 During the prosecutor's initial closing argument, he

reviewed in detail the evidence the State had presented and then

stated the following:

"[PROSECUTOR:] So all of these pieces

fit, ladies and gentlemen. All the evidence

in the case points in absolutely one direc-

tion, and one direction only. All of the

witnesses by themselves constitute overwhelm-

ing evidence of this defendant's guilt, and

the question was he there or not, really I

think we can answer pretty quickly, but the

defendant's own actions are really, really

telling of his consciousness of guilt, and

that's the Deputy U.S. Marshall you heard

from at the end of the case.

What explanation consistent with inno-

cence exists for this man's behavior?

[DEFENSE ATTORNEY:] Judge, I'm going to

object to that. My client doesn't have to

explain anything. He has the presumption of

innocence. He does not have to explain any

of his actions, Judge, that's a shifting of

the burden. I would object.

THE COURT: The objection is overruled

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 at this point. The jury is allowed to draw

inferences from your client's behavior."

Along this same line, defendant also complains of the

following statement in the prosecutor's rebuttal closing argu-

ment: "There is no evidence anywhere in this case that would

explain an animosity or a bias to falsely put a case on [defen-

dant]. It doesn't exist."

Defendant contends that these remarks "cross the line

and were intended to point out that [defendant] did not testify."

We disagree.

In People v. Keene, 169 Ill. 2d 1, 21, 660 N.E.2d 901,

911-12 (1995), the supreme court wrote the following:

"The State may not 'point the finger of blame

directly at the defendant for his failure to

testify when it was within his power to en-

lighten the jury.' [Citation.] Such 'prose-

cutorial design' crosses the '"danger line"'

marking the outer boundary of proper commen-

tary. [Citations.] But short of that the

State may comment that evidence is uncontra-

dicted and may do so even if the defendant

was the only person who could have provided

contrary proof."

In this case, the prosecutor's comments clearly did not

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constitute a comment on defendant's not testifying. The focus of

these remarks was defendant's conduct and reasonable inferences

the jury should draw from it, as the trial court ruled. These

remarks contain no suggestion that somehow the defendant needed

to explain anything.

Having so concluded, we nonetheless suggest that terms

like "explanation," as used by the prosecutor in the above-quoted

portion of his argument, not be used in a prosecutor's closing

argument. A defendant is likely to object to their use at trial,

on appeal, or both, and their use could prove problematic. In

the heat of argument, when a prosecutor uses such a term, he or

she might well inadvertently say something that would in fact

constitute an impermissible comment on a defendant's refusal to

testify. See, for example, People v. Herrett, 137 Ill. 2d 195,

213, 561 N.E.2d 1, 9 (1990) (concluding that the prosecutor

"exceeded the bounds of fair comment when he referred to the

failure of the defendant to explain his presence" at the crime

scene because that comment referred to the defendant's failure to

testify).

3. Defendant's Claim That the Prosecutor Improperly
Commented Upon Defense Tactics

Defendant next contends that he was denied a fair trial

when the prosecutor made the following comments in his rebuttal

argument:

"How many times do we have to hear about

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 who is having sex with who, calling people

[']dope heads['] and calling people [']not

very bright['] before we understand what the

defense in this case is all about, smear

tactics and distractions, that's all that

was. Personal attacks, trying to make you

not like witnesses, trying to get you to

disregard the facts of the case, and trying

to distract you from what you should be fo-

cused on, and what you should be focused on

is a simple question, what is the truth, what

are the facts, and what really happened in

this case.

* * *

Do not get distracted from your job,

which is to determine truth about who was

present there, ladies and gentlemen."

Specifically, he contends that Illinois courts have consistently

held that prosecutors are not allowed to claim that defense

counsel is attempting to free his client through trickery or

deception. People v. Kidd, 147 Ill. 2d 510, 542, 591 N.E.2d 431,

446 (1992). Defendant thus asserts that the prosecutor's rebut-

tal argument was similar to arguments the Supreme Court of

Illinois has condemned and that, because of this improper argu-

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ment, he was denied his fundamental right to a fair trial. We

are far from persuaded.

These remarks were made in rebuttal in response to

defense counsel's characterization of "every single one" of the

State's witnesses as "dope heads." Defense counsel also argued

that Don and Walsh "spearheaded this whole case" against defen-

dant and collaborated to pin it on him. Regarding Don's testi-

mony in particular, defense counsel argued the following:

"[L]et's see, how about taking your

daughter to a robbery planning party, like he

says he did, or how about sleeping with some-

body's brother and then sleeping with him, or

maybe use a girl's apartment to watch her

kids while she goes to work to have sex with

the father of that person's child? Are you

kidding me?"

Defense counsel then characterized Davis as upset and

"clueless." He added the following: "She is not very bright,

and I am sorry to say that, but she is not, but that is just a

piece of a dopey, dopey, dopey, dopey, not so bright girl that

they are using to convict my client."

As the State points out, a prosecutor may comment on

defense characterizations of the evidence. See People v. Jones,

156 Ill. 2d 225, 251-52, 620 N.E.2d 325, 336 (1993) (prosecutor's

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rebuttal argument that the jury should not "'be fooled by the

defense'" that insinuated beatings, among other things, "was a

proper comment concerning defense characterizations of the

evidence"). As earlier stated, the prosecutor's rebuttal argu-

ment must be considered in the context of the closing arguments

as a whole. Thus, when defense counsel provokes a response, as

here, defendant cannot complain that the prosecutor's reply

denied him a fair trial. People v. Evans, 209 Ill. 2d 194, 225,

808 N.E.2d 939, 956 (2004).

Last, we acknowledge the State's argument that defen-

dant has forfeited this contention because he failed to object at

trial. We also note that defendant urges us to review the matter

under the plain-error doctrine. Because we conclude that the

complained-of argument constitutes no error at all, we need not

do so.

4. Defendant's Claim That the Prosecutor Made
Inflammatory Statements Not Based on the Evidence

Defendant next contends that he was denied a fair trial

when the prosecutor made repeated statements that were not based

on the evidence. Specifically, defendant complains of the

prosecutor's statement that this was "a conspiracy case, because

[defendant] was either the participant in a conspiracy to rob

[Griffitts] or he was a victim of one of the most elaborate and

unprobable [sic] conspiracies in the history of the criminal

justice system." Defendant contends the prosecutor improperly

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continued with this "grand conspiracy" theme when he argued as

follows:

"[L]et us consider the witnesses, and let us

consider the things really that would have to

be true in order for this [d]efendant to be

an innocent man, wrongly accused.

The first thing that would have to be

true, [Don] would have had to come in here

and commit one of the most egregious forms of

perjury imaginable.

The second thing that would have to be

true is that [Walsh] also came in here and

committed one of the most egregious acts of

perjury imaginable.

Third, [Grant], who identified the

[d]efendant, had to have either been part of

this grand conspiracy or been mistaken.

[Brown] would have had to have been part

of this grand conspiracy or been mistaken,

and it just so happened that [Grant] and

[Brown] made the same mistake when they both

positively identified the [d]efendant as the

gunman, and then [Davis], a person who has no

connection whatsoever to [Don] in the sense

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 that she is certainly no friend of Don's, she

is certainly no friend of [Walsh's], she is a

person that is closely and intimately related

to this [d]efendant, and what did she tell

you? She corroborated what [Walsh] testified

to, that Don, Demario and [defendant] were

all three together before and all three to-

gether afterward.

For this man to be an innocent man,

wrongly accused, all of those things would

have had to have occurred."

The prosecutor concluded this theme by later arguing as

follows:

"[F]or [defendant] to be an innocent

man, wrongly accused, [Brown] would have

either had to have been part of some grand

conspiracy with [Don] or he just coinciden-

tally picked out the same guys that [Grant]

picked out, that Don and [Walsh] somehow are

manufacturing some kind of a grand conspiracy

against. It is totally, totally implausi-

ble."

Defendant also contends that the prosecutor improperly

gave his personal opinion regarding Don's testimony, as follows:

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"He got confused a couple of times, I would submit, but he was

doing his very best to be honest." Finally, defendant contends

that the prosecutor "even went so far as to inform the jury that

a guilty verdict was 'morally right,'" when he stated the follow-

ing:

"When you consider that testimony, when

[Davis] is so actively trying to protect this

man [(defendant)], there is only one conclu-

sion that you can draw, there is only one

conclusion that's supported by the evidence

in this case, and that conclusion should

drive your verdicts to the only just verdict

in this case, the correct verdict in this

case, the morally right verdict in this case,

and that is a *** verdict of guilty on each

of the counts.

Thank you." (Emphasis added.)

Specifically, defendant contends that the prosecutor's

"grand conspiracy" theme exceeded the bounds of permissible

argument because the Supreme Court of Illinois in People v.

Williams, 181 Ill. 2d 297, 330, 692 N.E.2d 1109, 1126 (1998),

held that a prosecutor must restrict his comments to the facts in

evidence or reasonable inferences to be drawn therefrom. Regard-

ing the "morally right verdict" comment, defendant contends that

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the only effect of this argument was to arouse the prejudice and

passion of the jury against him without shedding any light on the

paramount question presented to the jury.

To slightly revise a common saying regarding campaign-

ing for elective office, trying felony cases before a jury "ain't

beanbag." These are serious matters with high stakes, and we

expect advocates in our adversary system of justice to use all of

their forensic skills to persuade the jury of the wisdom or

justice of their respective positions. Certainly, defense

counsel in this case vigorously attacked the State's case and the

State's witnesses, and we should expect no less vigor from the

prosecutor. Of course, counsel are not free in their closing

arguments to say anything they might wish. Limitations exist,

but there is no restriction on argument because a party takes

offense to the harshness of the opponent's closing argument.

Not only do we disagree with defendant's claim that the

prosecutor's argument was improper, but we deem that claim as

potentially insulting to the jury. After all, one of the "common

experiences in life" (see Illinois Pattern Jury Instructions,

Criminal, No. 1.01 (4th ed. 2000)) that the members of the jury

bring with them to the jury box is exposure to hortatory language

on an all-too-frequent basis from politicians, salespeople, talk

radio, television commercials, and others. We have difficulty

believing that a jury composed of adults would somehow be in-

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flamed by the prosecutor's hyperbole that the only just and

"morally right verdict" was guilty on each of the counts. We

consider it more likely that a juror who had not been otherwise

persuaded might think to himself, "So you say, Bub."

In any event, we are disinclined to become the speech

police and to impose unnecessary restrictions upon closing

arguments in criminal cases. In our adversary system, we should

let the lawyers "have at it," and the trial courts and reviewing

courts should step in only when it can truly be said that com-

ments during closing argument "were so prejudicial that real

justice was denied or that the verdict resulted from the error."

Perry, 224 Ill. 2d at 347, 864 N.E.2d at 218. Further, we view

the "morally right verdict" comment as the prosecutor's hyperbole

on the strength of the State's case, and nothing more. See

People v. Cloutier, 178 Ill. 2d 141, 170-71, 687 N.E.2d 930, 943

(1997) (concluding that no error occurred when the prosecutor

argued that the jury was "sworn" to uphold the law by finding the

defendant eligible for the death penalty).

We also note that the prosecutor's remarks, which

defendant on appeal argues were so egregiously improper, were not

even objected to by his trial counsel, who, as the record shows,

was no "shrinking violet." As we indicated earlier, we need not

conduct a plain-error analysis regarding defendant's contentions

concerning the prosecutor's closing argument because we conclude

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that no error occurred.

Further, we reject defendant's contention that the

prosecutor improperly gave his opinion regarding Don's testimony.

The record shows that the prosecutor did not explicitly state his

personal opinion that Don was a credible witness. Instead, when

read in context, the prosecutor's personal opinion referred only

to Don's getting "confused a couple of times." See People v.

Pope, 284 Ill. App. 3d 695, 707, 672 N.E.2d 1321, 1329 (1996)

(holding that "for a prosecutor's closing argument to be im-

proper, he must explicitly state that he is asserting his per-

sonal views" (emphasis in original)).

D. Defendant's Claim That the Trial Court Erred by
Failing To Inquire Into His Posttrial Allegations
of Ineffective Assistance of Counsel

Defendant next argues that the trial court erred by failing

to conduct an inquiry into his posttrial claims of ineffective

assistance of trial counsel. We disagree.

1. Background

After defendant was convicted but before sentencing, he

sent a letter to the trial court that stated in pertinent part as

follows:

"I'm writing you asking you to point

[sic] me a new public defendar [sic] to hear

my postrial [sic] motions. I wrote out the

postrial [sic] motions myself because its

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 been allmost [sic] 30 days and I haven't

heard from or seen my [trial counsel]. I

feel that he did not reprasent [sic] good as

he could, and that I did not want to go to

trial with him. In trial there were numerous

amount [sic] of errors and I pray that you

grant me a new trial with another counsal

[sic]. I'm asking that you take my motions

into consideration."

Defendant also filed six pro se posttrial motions of a

similar bent. For instance, he complained that (1) his lawyer

filed no motions; (2) witnesses were not sure about their identi-

fication; (3) he "did not have a trial of [his] pears [sic]"; (4)

"there was bad investigation in my case"; (5) nothing was shown

in court that physically linked him to the scene of the crime;

(6) the jury was racist; and so on. Defendant's trial counsel

also filed a motion for a new trial.

In October 2004, the trial court denied the motion

filed by defense counsel. The court also referred to some of

defendant's pro se motions and denied them. Before doing so, the

court did not inquire into any of defendant's pro se posttrial

claims.

2. Analysis

In People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d

- 30 -
631, 637 (2003), the supreme court explained when a trial court

needs to conduct an inquiry after a defendant presents a pro

se posttrial motion alleging ineffective assistance of counsel

and wrote as follows:

"New counsel is not automatically required in

every case in which a defendant presents a

pro se posttrial motion alleging ineffective

assistance of counsel. Rather, when a defen-

dant presents a pro se posttrial claim of

ineffective assistance of counsel, the trial

court should first examine the factual basis

of the defendant's claim. If the trial court

determines that the claim lacks merit or

pertains only to matters of trial strategy,

then the court need not appoint new counsel

and may deny the pro se motion. However, if

the allegations show possible neglect of the

case, new counsel should be appointed."

In addition, the Moore court explained that "the trial court can

base its evaluation of the defendant's pro se allegations of

ineffective assistance on its knowledge of defense counsel's

performance at trial and the insufficiency of the defendant's

allegations on their face." (Emphasis added.) Moore, 207 Ill.

2d at 79, 797 N.E.2d at 638.

- 31 -
 Judged in accordance with the foregoing standards, we

conclude that the trial court did not err by failing to conduct

an inquiry into defendant's pro se posttrial complaints. We view

defendant's rambling pro se motions and his letter as a reflec-

tion of the unhappy position in which he found himself, not as

any serious statement of "possible neglect of the case" by

defendant's trial counsel. Moore, 207 Ill. 2d at 78, 797 N.E.2d

at 637. In this regard, we agree with the observation made by

the First District in People v. Ward, 371 Ill. App. 3d 382, 431,

862 N.E.2d 1102, 1147 (2007), where, in rejecting the same

argument that defendant raises here, the court discussed Moore

and noted that "there are still minimum requirements a defendant

must meet in order to trigger a preliminary inquiry by the

circuit court." See also People v. Ford, 368 Ill. App. 3d 271,

276, 857 N.E.2d 871, 876 (2006) (no posttrial inquiry by the

trial court was necessary where defendant's pro se complaints

about his trial counsel were facially insufficient and set forth

in a general and conclusory manner).

E. Defendant's Claim that the Trial Court Erred When it
Determined that His Conduct Caused Severe Bodily Injury

Defendant next argues that the trial court erred when

it determined that his conduct caused severe bodily injury. We

disagree.

Section 5-8-4(a)(i) of the Unified Code of Corrections

(730 ILCS 5/5-8-4(a)(i) (West 2004)) requires the trial court to

- 32 -
impose consecutive sentences if "one of the offenses for which

defendant was convicted was first degree murder or a Class X or

Class 1 felony and the defendant inflicted severe bodily injury."

Defendant was convicted of two Class X felonies (armed robbery

and home invasion) and a Class 1 felony (aggravated discharge of

a firearm).

At defendant's December 2004 sentencing hearing, the

State argued that the trial court was required to impose consecu-

tive sentences because defendant inflicted "severe bodily injury"

on Griffitts within the meaning of section 5-8-4(a)(i) of the

Unified Code. The trial court agreed with the State and ex-

plained its decision as follows:

"[T]he threshold question is *** did

this [d]efendant cause great bodily harm or

severe bodily harm to the victim. I think

taking the totality of the circumstances into

account and also the case law I have read,

*** I believe the injuries do constitute

great bodily harm and severe bodily harm, so

I'm going to make that finding here.

We have a victim who was pistol-whipped,

and as a result of that had to have *** at

least seven staples placed in his head in

order to treat the injury.

- 33 -
 In addition to that, after the pistol-

whipping, this [d]efendant did kick the vic-

tim in the face causing bruises, hematomas,

causing an additional cut to the lip which

required more stitches.

So I think there [are] ample grounds ***

to make a finding that I'm making here today

of great bodily harm and severe bodily harm,

and so I'm going to make that finding.

Having done that, the sentencing in this

case actually becomes fairly simple, because

I'm going to sentence the [d]efendant to the

minimum terms that are available to me based

on that finding, which even with the minimum

are very severe in this case."

Defendant asserts that the appropriate standard of

review for the trial court's determination that defendant in-

flicted severe bodily injury is de novo, but we disagree.

Because the court's determination relied on a factual finding,

this court will defer to the court's decision unless we conclude

that it was against the manifest weight of the evidence. See In

re Katrina R., 364 Ill. App. 3d 834, 842, 847 N.E.2d 586, 593

(2006) (deferring to the trial court's factual findings and

noting that such findings are against the manifest weight of the

- 34 -
evidence only when the opposite conclusion is clearly evident or

the findings are unreasonable, arbitrary, and not based on the

evidence presented).

Judged in accordance with the foregoing standards, we

conclude that the trial court's finding of severe bodily injury

was not against the manifest weight of the evidence.

F. Defendant's Claim That the Trial Court Erred by Ordering That
the Truth-In-Sentencing Statute Applies to All Three Sentences

Last, defendant argues that the trial court erred by

applying section 3-6-3(a)(2)(iii) of the Unified Code (730 ILCS

5/3-6-3(a)(2)(iii) (West 2004)) to all three of his sentences.

Section 3-6-3(a)(2)(iii) of the Unified Code provides

as follows:

"a prisoner serving a sentence for home

invasion, armed robbery, aggravated vehicular

hijacking, aggravated discharge of a firearm,

*** when the court has made and entered a

finding, pursuant to subsection (c-1) of

[s]ection 5-4-1 of this [Unified] Code, that

the conduct leading to conviction for the

enumerated offense resulted in great bodily

harm to a victim, shall receive no more than

4.5 days of good[-]conduct credit for each

month of his or her sentence of imprison-

ment." (Emphasis added.) 730 ILCS 5/3-6-

- 35 -
 3(a)(2)(iii) (West 2004).

At defendant's sentencing hearing, the State asked the

trial court to make a "great[-]bodily[-]harm finding" so that the

provisions of section 3-6-3(a)(2)(iii) of the Unified Code would

apply, requiring defendant to serve 85% of whatever sentence the

court imposed. The court heard arguments from counsel on this

point, ultimately granted the State's request, and made the

great-bodily-harm finding, as earlier quoted.

Defendant specifically contends that the trial court

erred by finding that the conduct leading to the conviction for

all three crimes resulted in great bodily harm to the victim.

According to defendant, however, the evidence at trial clearly

showed "that great bodily harm cannot have occurred during the

commission of all three crimes, but instead only during the

commission of the armed robbery." The State responds that

defendant has forfeited this argument on appeal by failing to

raise it in the trial court, and we agree.

In People v. Rathbone, 345 Ill. App. 3d 305, 308-10,

802 N.E.2d 333, 336-37 (2003), this court deemed a defendant's

sentencing argument on appeal forfeited, pointing out that

section 5-8-1(c) of the Unified Code required a defendant's

challenge to any aspect of sentencing to be made by a written

motion filed within 30 days of the imposition of sentence. 730

ILCS 5/5-8-1(c) (West 2004). We also noted that the Supreme

- 36 -
Court of Illinois, in People v. Reed, 177 Ill. 2d 389, 394, 686

N.E.2d 584, 586 (1997), held that the language of section 5-8-

1(c) is mandatory. Citing section 5-8-1(c) and Reed, this court

concluded in Rathbone that the defendant had forfeited the

sentencing argument he raised on appeal, and we explained as

follows:

"In so concluding, we note that defendant's

claim is precisely the type of claim the

forfeiture rule is intended to bar from re-

view when not first considered by the trial

court. Had defendant raised this issue in

the trial court, that court could have an-

swered the claim by either (1) acknowledging

its mistake and correcting the sentence, or

(2) explaining that the court did not improp-

erly sentence defendant ***. If the court

did not change the sentence, then a record

would have been made on the matter now before

us, avoiding the need for this court to spec-

ulate as to the basis for the trial court's

sentence." Rathbone, 345 Ill. App. 3d at

310, 802 N.E.2d at 337.

The rationale and holding of Rathbone are equally

applicable in this case. Defendant's failure to raise this issue

- 37 -
in the trial court was in violation of section 5-8-1(c) of the

Unified Code and denied that court the opportunity to correct or

clarify its ruling. Accordingly, defendant has forfeited his

truth-in-sentencing argument.

On a final note, we rejected the defendant's request in

Rathbone to apply the plain-error doctrine, and we do likewise

here. In People v. Allen, 222 Ill. 2d 340, 353, 856 N.E.2d 349,

356 (2006), the supreme court explained as follows: "[t]he

plain-error doctrine is not '"a general saving clause preserving

for review all errors affecting substantial rights whether or not

they have been brought to the attention of the trial court."'

[Citations.] Instead, it is a narrow and limited exception to the

general rule of forfeiture." Further, as we noted in Rathbone,

"our supreme court has 'consistently empha-

sized the limited nature of the plain[-]error

exception.' People v. Easley, 148 Ill. 2d

281, 337, 592 N.E.2d 1036, 1061 (1992).

Plain error exists only when the essential

fairness of a trial has been undermined, and

this 'occurs only in situations which "reveal

breakdowns in the adversary system," as dis-

tinguished from "typical trial mistakes."'

People v. Keene, 169 Ill. 2d 1, 17, 660

N.E.2d 901, 909-10 (1995), quoting P.

- 38 -
 Wangerin, 'Plain Error' and 'Fundamental

Fairness'; Toward Definition of Exceptions to

the Rules of Procedural Default, 29 DePaul L.

Rev. 753, 778 (1980)." Rathbone, 345 Ill.

App. 3d at 311, 802 N.E.2d at 338-39.

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.

APPLETON and McCULLOUGH, JJ., concur.

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