People v. Jones

NOTICE
This Order was filed under FILED
Supreme Court Rule 23 and is
2021 IL App (4th) 190743-U December 28, 2021
not precedent except in the Carla Bender
limited circumstances allowed NO. 4-19-0743 4th District Appellate
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
GERALD JONES, ) No. 09CF244
Defendant-Appellant. )
) Honorable
) Robert M. Travers,
) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Turner and Holder White concurred in the judgment.

ORDER

¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw as counsel and affirmed the trial court’s judgment as no issue of arguable
merit could be raised on appeal.

¶2 Defendant, Gerald Jones, appeals from his conviction and sentence for aggravated

battery. On appeal, the Office of the State Appellate Defender (OSAD) moves to withdraw as

counsel on the ground no issue of arguable merit can be raised. Defendant disagrees with OSAD’s

motion, believing there are several issues which are arguably meritorious. The State has filed a

response explaining why the issues addressed by defendant have no arguable merit. For the reasons

that follow, we grant OSAD’s motion to withdraw and affirm the trial court’s judgment.

¶3 I. BACKGROUND

¶4 A. Information
¶5 In September 2009, the State charged defendant by information with aggravated

battery (720 ILCS 5/12-4(b)(18), (e)(2) (West 2008)), a Class 2 felony. The State alleged, on or

about July 19, 2009, defendant knowingly made an insulting or provoking physical contact with

Dion Sullivan by throwing a liquid on Sullivan at a time when defendant knew Sullivan was a

correctional officer and state employee engaged in the performance of his authorized duties.

Thereafter, counsel was appointed to represent defendant.

¶6 B. Waiver of Counsel

¶7 In December 2009, the trial court, honorable Jennifer Bauknecht presiding, allowed

defendant to waive his right to counsel and proceed pro se.

¶8 C. Jury Trial

¶9 In October 2010, the trial court, honorable Mark Fellheimer presiding, conducted a

jury trial. Based upon the evidence presented, the jury found defendant guilty. The court later

sentenced defendant to five years in prison, to be served consecutive to a term of life imprisonment

he was already serving in another case. Defendant appealed.

¶ 10 D. Appeal

¶ 11 In October 2013, this court reversed and remanded for a new trial, finding the trial

court failed to substantially comply with the requirements of Illinois Supreme Court Rule 401(a)

(eff. July 1, 1984) before finding defendant waived his right to counsel. People v. Jones, 2013 IL

App (4th) 120106-U.

¶ 12 E. Pretrial Proceedings on Remand

¶ 13 In December 2013, defendant, on remand, was appointed counsel. Over the next

several years, defendant, through counsel, pursued various pretrial matters. Through counsel’s

efforts, defendant (1) asserted the affirmative defense of insanity, (2) obtained a forensic

-2-
psychiatric evaluation by Dr. Terry Killian, and (3) obtained scientific testing for the presence of

human urine on Sullivan’s uniform, the result of which showed no urine was present on the part

of the uniform tested.

¶ 14 In September 2017, defendant asked to waive his right to counsel and proceed

pro se. The trial court, Judge Bauknecht presiding, admonished defendant as to the charge he was

facing and the possible penalties, as well as the right to counsel and the consequences of waiving

that right. Defendant indicated he understood the court’s admonishments and then persisted in his

desire to waive the right to counsel and proceed pro se. The court accepted the waiver. Shortly

thereafter, Judge Bauknecht recused herself, and the matter was reassigned to the Honorable

Robert Travers.

¶ 15 Between October 2017 and January 2019, defendant pursued various pretrial

matters. Defendant requested to subpoena numerous witnesses for trial, which the trial court

granted in part and denied in part. With respect to the denied requests, defendant did not make

formal offers of proof as to the expected testimony from the witnesses and, with regard to certain

psychiatric witnesses, acknowledged none of those witnesses would opine he was insane at the

time of the alleged offense. Defendant also requested additional testing of Sullivan’s uniform,

which the court denied. Last, defendant requested Judge Travers be substituted for cause and the

venue be changed. In support, defendant alleged Judge Travers had engaged in unusual conduct,

such as directing prison personnel to steal evidence in defendant’s possession and making a series

of adverse rulings. In addition, defendant alleged all Livingston County judges were biased against

him. At a hearing, defendant presented no evidence supporting his allegations, and defendant’s

requests were denied.

-3-
¶ 16 In April 2018, defendant asked to waive his right to a jury trial and have a bench

trial. The trial court admonished defendant about his right to a jury trial and the consequences of

waiving that right. Defendant indicated he understood the court’s admonishments. Defendant

signed a written jury waiver. The court accepted the waiver. Defendant later requested to revoke

his waiver, asserting his wavier was not made “intentionally.” The court denied defendant’s

request.

¶ 17 F. Bench Trial

¶ 18 Over a four-day period between February and September 2019, the trial court,

Judge Travers presiding, conducted a bench trial.

¶ 19 The State presented testimony from Dion Sullivan. Sullivan testified, on July 14,

2009, he was working as a correctional officer at Pontiac Correctional Center. At the time, he was

wearing a uniform identifying him as a correctional officer. Sullivan testified, while walking past

a cell occupied by defendant, defendant threw a liquid at him from a milk container, striking him

on his right side. Sullivan testified he did not remember what color the liquid was or whether it

had chunks or spots in it, but whatever it had looked like, it appeared to him to be urine and feces.

Sullivan did not recall precisely what he was doing at the time of the incident but acknowledged

he may have been passing out mail or food trays.

¶ 20 The State also presented testimony from Karl Webber. Webber testified he

investigated the July 14, 2009, incident. As part of his investigation, he spoke with defendant.

According to Webber, defendant reported he threw a carton full of urine at a correctional officer

because he was upset the officer gave his food tray to another inmate and had “words” with him.

Defendant also reported he did not know if the carton or its contents struck the officer.

-4-
¶ 21 Defendant testified on his own behalf. According to defendant, on July 14, 2009,

Sullivan gave his mail to another inmate and, when confronted by him, told him to shut up.

Defendant became frustrated and “blanked out.” He then grabbed a milk carton and threw it at

Sullivan. Defendant testified he was going to fill the carton with feces and urine but was unable to

do so because Sullivan was passing by his cell too quickly. Defendant was later escorted from his

cell by other correctional officers, who reportedly beat him. Defendant then cut his arms and was

placed on a suicide watch. He told Webber that Sullivan had given his mail to someone else.

Defendant denied telling Webber he threw a carton full of urine at Sullivan.

¶ 22 Defendant also presented testimony from several correctional officers, as well as a

report about the testing to Sullivan’s uniform. Through his examination of the correctional officers,

defendant showed (1) the officers had difficulty recalling specific details about the incident and

(2) defendant filed a grievance after the incident alleging Sullivan gave defendant’s mail to another

inmate and cursed and threatened him. The report indicated the presence of a protein indicative of

human urine was not discovered on part of Sullivan’s uniform.

¶ 23 Finally, defendant presented testimony from Dr. Terry Killian. Dr. Killian testified

about defendant’s various diagnoses. Dr. Killian opined defendant was legally sane at the time of

the July 14, 2009, incident and able to appreciate the criminality of his conduct. Dr. Killian further

opined defendant’s actions were motivated by anger.

¶ 24 Following closing arguments, the trial court found defendant guilty.

¶ 25 G. Posttrial Proceedings

¶ 26 In September 2019, defendant filed a motion for a new trial, arguing (1) the State

failed to prove him guilty beyond a reasonable doubt, (2) the State knowingly presented perjured

testimony from Sullivan and Webber, (3) his requests to subpoena witnesses for trial were

-5-
erroneously denied, (4) his requests to substitute Judge Travers and change the venue were

erroneously denied, (5) his request for additional testing of Sullivan’s unform was erroneously

denied, and (6) Dr. Killian’s testimony was biased.

¶ 27 In October 2019, the trial court conducted a hearing on defendant’s posttrial

motion. The court denied defendant’s motion and then proceeded to sentencing. The court received

a presentence investigation report, which detailed defendant’s extensive history of disciplinary

infractions while in custody, including staff assaults. No other evidence was offered. The State

recommended five years in prison. Defendant declined to give a recommendation. Defendant also

declined to give a statement in allocution. The court, in its oral pronouncement of its decision,

indicated it considered the evidence, the recommendation, and the factors in aggravation and

mitigation. The court sentenced defendant to five years in prison, to be served consecutive to his

term of life imprisonment. Defendant immediately moved to reconsider his sentence, which the

court denied.

¶ 28 This appeal followed.

¶ 29 II. ANALYSIS

¶ 30 A. The Sufficiency of the Evidence

¶ 31 OSAD contends it considered raising a challenge to the sufficiency of the evidence

but concluded such a challenge would be without arguable merit. Defendant disagrees with

OSAD’s evaluation, suggesting a reasonable argument could be made that the State failed to prove

every element of the charged offense.

¶ 32 When considering a challenge to the sufficiency of the evidence, a reviewing court

must determine “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the offense beyond a reasonable

-6-
doubt.” (Internal quotation marks omitted.) People v. Hardman, 2017 IL 121453, ¶ 37, 104 N.E.3d

372. “A criminal conviction will not be reversed for insufficient evidence unless the evidence is

so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the

defendant’s guilt.” People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876.

¶ 33 Here, the evidence, viewed in the light most favorable to the prosecution, showed

Sullivan was in uniform and passing out mail or food trays to inmates when defendant threw a

milk container containing a liquid at Sullivan, striking him on the right side. Based upon this

evidence, a rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt—that defendant intentionally or knowingly made physical contact of an insulting

or provoking nature with Sullivan while Sullivan was engaged in the performance of his authorized

duties as a state employee. 720 ILCS 5/12-3(a), 12-4(b)(18) (West 2008). Further, because

defendant did not present any evidence to support an affirmative defense, the State was not

required to disprove a defense to obtain defendant’s conviction. See People v. Lee, 213 Ill. 2d 218,

224, 821 N.E.2d 307, 311 (2004). Accordingly, we agree with OSAD and find any challenge to

the sufficiency of the evidence would be without arguable merit.

¶ 34 B. Testimony from the State’s Witnesses

¶ 35 OSAD contends it considered raising a challenge to the State’s elicitation, or failure

to correct, alleged perjured testimony from Sullivan and Webber but concluded such a challenge

would be without arguable merit. Defendant does not dispute OSAD’s evaluation.

¶ 36 The due process clause prohibits the State from knowingly eliciting, or failing to

correct, perjured testimony from one of its witnesses. U.S. Const., amends. V, XIV; People v.

Brown, 169 Ill. 2d 94, 103, 660 N.E.2d 964, 968 (1995). Mere inconsistencies in testimony do not,

-7-
however, equate to perjury, nor do they show the State knowingly used perjured testimony. People

v. Moore, 2012 IL App (4th) 100939, ¶ 31, 975 N.E.2d 1083.

¶ 37 Here, defendant suggested Sullivan and Webber perjured themselves because of

inconsistencies in their testimony. Without more, the inconsistencies do not equate to perjury, nor

do they show the State knowingly used perjured testimony. Accordingly, we agree with OSAD

and find any challenge to the State’s elicitation, or failure to correct, alleged perjured testimony

from Sullivan and Webber would be without arguable merit.

¶ 38 C. Substitution of Judge for Cause

¶ 39 OSAD contends it considered raising a challenge to the denial of defendant’s

request to substitute Judge Travers for cause but concluded such a challenge would be without

arguable merit. Defendant disagrees with OSAD’s evaluation, suggesting a reasonable argument

could be made that Judge Travers was biased against him.

¶ 40 To prevail on a motion to substitute a judge for cause, a defendant must show facts

and circumstances indicating the judge is actually prejudiced against him. People v. Patterson, 192

Ill. 2d 93, 131, 735 N.E.2d 616, 638 (2000). “To meet this burden, the defendant must establish

animosity, hostility, ill will, or distrust towards this defendant.” (Internal quotation marks omitted.)

Id. On review, we will not disturb a finding on a motion for substitution of judge unless that

finding is against the manifest weight of the evidence. People v. Mercado, 244 Ill. App. 3d 1040,

1047, 614 N.E.2d 284, 288 (1993).

¶ 41 Here, defendant alleged Judge Travers had engaged in unusual conduct, such as

directing prison personnel to steal evidence in defendant’s possession that could potentially

demonstrate prejudice. However, defendant did not present any evidence to support his allegation.

He otherwise only complained about a series of adverse rulings by Judge Travers. Adverse rulings,

-8-
without more, do not establish prejudice. See Patterson, 192 Ill. 2d at 131. Accordingly, we agree

with OSAD and find any challenge to the denial of defendant’s request to substitute Judge Travers

for cause would be without arguable merit.

¶ 42 D. Change of Venue

¶ 43 OSAD contends it considered raising a challenge to the denial of defendant’s

request to change the venue but concluded such a challenge would be without arguable merit.

Defendant disagrees with OSAD’s evaluation, suggesting a reasonable argument could be made

that the Livingston County judges were biased against him.

¶ 44 A criminal defendant may move “for a change of place of trial on the ground that

there exists in the county in which the charge is pending such prejudice against him on the part of

the inhabitants that he cannot receive a fair trial in such county.” 725 ILCS 5/114-6(a) (West 2018).

If a court determines such prejudice exists, the court must transfer the case to a different county.

725 ILCS 5/114-6(b), (c) (West 2018). The decision whether to grant a change of venue is within

a trial court’s discretion and will not be disturbed absent an abuse of that discretion. People v.

McPherson, 306 Ill. App. 3d 758, 765, 715 N.E.2d 278, 284 (1999).

¶ 45 Here, defendant requested a change of venue on the grounds that all the judges in

Livingston County were biased against him. Even assuming bias among judges could constitute

prejudice among the “inhabitants” of the “county,” defendant presented no evidence showing, as

indicated above, the judge presiding over the matter, Judge Travers, was biased and could not give

him a fair trial. Accordingly, we agree with OSAD and find any challenge to the denial of

defendant’s motion for a change of venue would be without arguable merit.

¶ 46 E. Right to Compulsory Process

-9-
¶ 47 OSAD contends it considered raising a challenge to the denial of defendant’s

request for the issuance of subpoenas but concluded such a challenge would be without arguable

merit. Defendant disagrees with OSAD’s evaluation, suggesting a reasonable argument could be

made that the denial of his request for the issuance of subpoenas to his psychiatric witnesses

violated his right to compulsory process.

¶ 48 While the sixth amendment “guarantees a criminal defendant compulsory process

for obtaining witnesses in his favor, by its terms it does not grant him the right to secure the

attendance and testimony of any and all witnesses.” People v. McLaurin, 184 Ill. 2d 58, 89, 703

N.E.2d 11, 26 (1998). Rather, “[t]he defendant must make at least some plausible showing of how

the testimony of the witness would have been both material and favorable to his defense.” Id. “The

pertinent inquiry with respect to materiality is not whether the evidence might have helped the

defense but whether it is reasonably likely that the evidence would have affected the outcome of

the case.” Id.

¶ 49 Here, defendant did not make an offer of proof that any of the witnesses for whom

he was denied subpoenas would provide evidence material to his case. Moreover, with respect to

the psychiatric witnesses, defendant acknowledged those witnesses would testify he was sane at

the time he threw the container at Sullivan and, therefore, their testimony would not have been

favorable to his defense. Accordingly, we agree with OSAD and find any challenge to the denial

of defendant’s request for the issuance of subpoenas would be without arguable merit.

¶ 50 F. Waiver of Counsel

¶ 51 OSAD contends it considered raising a challenge to defendant’s waiver of counsel

but concluded such a challenge would be without arguable merit. Defendant does not dispute

OSAD’s evaluation.

- 10 -
¶ 52 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) requires the trial court to

ensure a criminal defendant understands the following before accepting a waiver of counsel:

(1) the nature of the charges, (2) the possible penalties for the charges, and (3) the right to counsel.

“The purpose of Rule 401(a) is to ensure that a waiver of counsel is knowingly and intelligently

made.” People v. Haynes, 174 Ill. 2d 204, 241, 673 N.E.2d 318, 335 (1996). An

effective waiver of counsel requires substantial compliance with the rule. Id. at 236.

¶ 53 Here, the trial court, prior to accepting defendant’s waiver of counsel, discussed

with defendant the nature of the charges, the possible penalties for the charges, and the right to

counsel. Given the colloquy between the court and defendant, defendant’s waiver appears both

knowingly and intelligently made. Accordingly, we agree with OSAD and find any challenge to

defendant’s waiver of counsel would be without arguable merit.

¶ 54 G. Waiver of Jury Trial and Denial of Request to Revoke Waiver

¶ 55 OSAD contends it considered raising a challenge to defendant’s waiver of a jury

trial and the denial of his subsequent request to revoke that waiver but concluded such a challenge

would be without arguable merit. Defendant does not dispute OSAD’s evaluation.

¶ 56 A criminal defendant’s waiver of his right to a jury trial, in order to be valid, must

be done knowingly and understandingly in open court. People v. Bracey, 213 Ill. 2d 265, 270, 821

N.E.2d 253, 256 (2004); 725 ILCS 5/103-6(i) (West 2016). Once a defendant waives jury trial, he

does not have the ability to withdraw the waiver as a matter of right but rather the decision of

whether to permit withdrawal of the waiver is within a trial court’s discretion. People v. Hall, 114

Ill. 2d 376, 414, 499 N.E.2d 1335, 1351 (1986).

¶ 57 Here, the trial court, prior to accepting defendant waiver of a jury trial, discussed

with defendant the right to a jury trial and the consequences of waiving that right and received a

- 11 -
written jury trial waiver from defendant. Given the colloquy between the court and defendant and

the written jury trial waiver, defendant’s waiver appears both knowingly and understandingly

made. Defendant later requested to revoke his waiver, asserting it was not made “intentionally.”

Defendant’s assertion, however, was not supported by the record. Accordingly, we agree with

OSAD and find any challenge to defendant’s waiver of a jury trial and the denial of his subsequent

request to revoke that waiver would be without arguable merit.

¶ 58 H. Additional Testing

¶ 59 OSAD contends it considered raising a challenge to the denial of defendant’s

request for additional testing of Sullivan’s uniform but concluded such a challenge would be

without arguable merit. Defendant does not dispute OSAD’s evaluation.

¶ 60 To demonstrate a right to expert assistance, “there must be some showing that the

requested expert assistance is necessary in proving a crucial issue in the case.” People v. Lawson,

163 Ill. 2d 187, 221, 644 N.E.2d 1172, 1188 (1994). “The touchstone *** is not with what is useful,

helpful, valuable, or even important to the defense effort but what is ‘crucial’ to it.” People v.

Keene, 169 Ill. 2d 1, 7, 660 N.E.2d 901, 905 (1995).

¶ 61 Here, a portion of Sullivan’s uniform had already been tested for the presence of a

protein consistent with human urine, the result of which indicated the protein was not found.

Moreover, the contents of the liquid was not a critical aspect of the State’s case—the factfinder

could find the throwing of any liquid onto Sullivan amounted to an insulting or provoking physical

contact with him. See People v. Nichols, 2012 IL App (4th) 110519, ¶ 43, 979 N.E.2d 1002

(finding the State’s showing that the defendant struck the officer with an unknown liquid was

sufficient to support the guilty verdict). Accordingly, we agree with OSAD and find any challenge

- 12 -
to the denial of defendant’s motion for additional forensic testing of Sullivan’s uniform would be

without arguable merit.

¶ 62 I. Sentence Imposed

¶ 63 OSAD contends it considered raising a challenge to the sentence imposed against

defendant but concluded such a challenge would be without arguable merit. Defendant does not

dispute OSAD’s evaluation.

¶ 64 A trial court’s sentencing decision is reviewed for an abuse of discretion as the trial

court is generally in a “better position than a court of review to determine an appropriate sentence

based upon the particular facts and circumstances of each individual case.” (Internal quotation

marks omitted.) People v. Price, 2011 IL App (4th) 100311, ¶ 36, 958 N.E.2d 341. “[A] sentence

within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit

and purpose of the law or manifestly disproportionate to the nature of the offense.” (Internal

quotation marks omitted.) People v. Little, 2011 IL App (4th) 090787, ¶ 22, 957 N.E.2d 102.

¶ 65 Here, the trial court sentenced defendant to a prison term within the sentencing

range (720 ILCS 5/12-4(e)(2) (West 2008) (providing aggravated battery is a Class 2 felony); 730

ILCS 5/5-8-1(a)(5) (West 2008) (providing the sentencing range for a Class 2 felony)) and

properly ordered that sentence be imposed consecutive to his term of life imprisonment (730 ILCS

5/5-8-4(f) (West 2008)). The court also, in reaching its sentencing decision, indicated it considered

the evidence and recommendation as well as the factors in aggravation and mitigation. Based upon

this record, we agree with OSAD and find any challenge to the sentence imposed against defendant

would be without arguable merit.

¶ 66 J. Dr. Killian’s Testimony

- 13 -
¶ 67 Defendant asserts a reasonable argument could be made to challenge the

admissibility of Dr. Killian’s testimony as it amounted to perjury and was biased.

¶ 68 In a criminal case, “a defendant preserves an issue for review by (1) raising it in

either a motion in limine or a contemporaneous trial objection, and (2) including it in the

posttrial motion.” People v. Denson, 2014 IL 116231, ¶ 11, 21 N.E.3d 398. The “[f]ailure to do

either results in forfeiture.” People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675.

¶ 69 Here, defendant forfeited any issue with Dr. Killian’s testimony by failing to

properly preserve it for review. Moreover, forfeiture aside, our review of the record fails to disclose

any perjury or improper bias by Dr. Killian. Accordingly, we find any challenge to the

admissibility of Dr. Killian’s testimony would be without arguable merit.

¶ 70 K. Ineffective Assistance of Appellate Counsel

¶ 71 Last, defendant contends his appellate counsel provided ineffective assistance by

failing to pursue the issues which he believes are arguably meritorious and by failing to allow him

the opportunity to present counsel with documents not contained in the record which would

support some of his claims.

¶ 72 “Claims of ineffective assistance of appellate counsel are measured against the

same standard as those dealing with ineffective assistance of trial counsel.” People v. Childress,

191 Ill. 2d 168, 175, 730 N.E.2d 32, 36 (2000). To prevail on a claim

of ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below

an objective standard of reasonableness and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶ 73 Here, for the reasons addressed above, the record fails to disclose a single issue

which is arguably meritorious. Further, defendant does not explain what documents are in his

- 14 -
possession which are not contained in the record, when he obtained possession of the documents,

how the documents would support any of his claims, or the legal authority for his counsel to

supplement the record on appeal with the documents. Accordingly, we reject defendant’s claim of

ineffective assistance of appellate counsel.

¶ 74 III. CONCLUSION

¶ 75 We grant OSAD’s motion to withdraw as counsel and affirm the trial court’s

judgment.

¶ 76 Affirmed.

- 15 -