People v. Schoonover

2019 IL App (4th) 160882

158 N.E.3d 253

441 Ill.Dec. 848

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Hayze L. SCHOONOVER, Defendant-Appellant.

NO. 4-16-0882

Appellate Court of Illinois, Fourth District.

Filed April 12, 2019

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

¶ 1 Following a jury trial in Champaign County circuit court, defendant Hayze L. Schoonover was found guilty of three counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014) ) and sentenced to two 35-year terms and one 15-year term of imprisonment. Defendant appeals, arguing (1) the trial court violated his right to a public trial by barring members of his family from the courtroom during the minor victim's trial testimony, (2) his defense counsel provided ineffective assistance, and (3) the court abused its discretion during sentencing. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 In September 2015, the State charged defendant with four counts of predatory criminal sexual assault of a child. Id. Specifically, it alleged that defendant, who was over the age of 17, committed "act[s] of contact" with the victim, M.L., who was under the age of 13, for the purpose of defendant's sexual gratification, in that defendant touched M.L.'s vagina with his hand (count I), touched M.L.'s breasts with his hand (count II), placed his penis in M.L.'s mouth (count III), and placed his penis in M.L.'s hand (count IV).

¶ 4 In August 2016, defendant's jury trial was conducted. The State presented evidence showing M.L. was 13 years old at the time of trial. Defendant was married to M.L.'s maternal aunt. When M.L. was 12 years old, defendant began talking to her about "sex things." Eventually, defendant asked M.L. to touch him. M.L. testified defendant also asked her to take her clothes off and take pictures of her "private areas" with his phone. She further described occasions when defendant touched her vagina with his hand, "made [her] put his penis in [her] mouth," and had M.L. touch his penis with her hand. M.L. denied that defendant ever touched her breasts.

¶ 5 The record reflects that M.L. was the first witness to testify for the State. At the outset of defendant's trial, the trial court stated its intention to have the courtroom "cleared" during M.L.'s testimony. Specifically, the record reflects the following colloquy between the court and the parties:

"THE COURT: When [M.L.] testifies, I want the courtroom cleared except for family members.

MR. LARSON [ (ASSISTANT STATE'S ATTORNEY) ]: Thank you, Your Honor.

MR. ALLEGRETTI [ (DEFENSE ATTORNEY) ]: I'm sorry, Judge. [Defendant's] family members are here. Is that—are you barring them?

THE COURT: Out."

¶ 6 The trial court and counsel went on to address other matters relevant to the proceedings before returning to the issue of closing the courtroom during M.L.'s testimony. The record reflects the following discussion:

"THE COURT: All right. Well pursuant to [section 115-11 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-11 (West 2014) ) ], where the alleged victim of the offense is a minor under eighteen years of age, the court may exclude from the proceedings while the victim is testifying all persons who, in the opinion of the court, do not have a direct interest in the case except the media. So I'm going to order that the courtroom be cleared, with the exception of the media, when [M.L.] testifies. I will note [defense counsel's] objection.

MR. LARSON: Your Honor, if I may.

THE COURT: Yes.

MR. LARSON: The victim's grandmother is here and would like to remain.

THE COURT: She would be someone who is allowed to remain."

Finally, following the parties' opening statements and immediately prior to M.L. taking the stand, the following occurred outside the presence of the jury:

"THE COURT: All right. At this point pursuant to [section 115-11], I'm going to clear the courtroom.

Mr. Larson, you said the grandmother is going to be present.

MR. LARSON: Yes, Your Honor.

THE COURT: Who else?

MR. LARSON: Your Honor, her father and stepfather we would also ask to be present.

THE COURT: Who is in the back of the courtroom? Who is the gentleman sitting there? And then the rest of the people on this side. All right. As soon as we get done with her testimony, I will bring the rest of the people in the courtroom."

¶ 7 Ultimately, the jury found defendant guilty of three counts of predatory criminal sexual assault of a child, counts I, III, and IV. In September 2016, defendant filed a motion for a new trial. In October 2016, the court denied defendant's motion and sentenced him to two 35-year terms of imprisonment (counts I and III) and one 15-year term of imprisonment (count IV). The court also ordered that each sentence be served consecutively. The same month, defendant filed a motion to reconsider his sentence, which the court also denied.

¶ 8 This appeal followed.

¶ 9 II. ANALYSIS

¶ 10 Right to a Public Trial

¶ 11 On appeal, defendant argues he was denied his constitutional right to a public trial when the trial court "cleared" the courtroom during M.L.'s testimony. He contends the court violated statutory requirements when clearing the courtroom and improperly excluded persons with a direct interest in his trial.

¶ 12 1. Forfeiture v. Waiver

¶ 13 Initially, defendant acknowledges that he failed to properly preserve this issue for appellate review by failing to raise it in a posttrial motion. See People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 (stating that, "[t]o preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion" and a defendant's "[f]ailure to do either results in forfeiture"). However, he contends that his unpreserved claim of error may be considered under the plain error doctrine. See Ill. S.Ct.R. 615(a) (eff. Jan. 1, 1967) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."). A defendant's forfeiture may be excused under the plain error doctrine "when a clear or obvious error occurred" and either (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 14 The State responds to defendant's request for a plain error analysis by arguing that defendant waived, rather than forfeited, his alleged claim of error and, as a result, the plain error doctrine cannot be applied. It contends that, even though an objection was noted by the trial court, defendant never actually objected to the court's closure of the courtroom. Further, it points out that defendant and his counsel remained silent when the court asked "[w]ho else" should remain in the courtroom during M.L.'s testimony. The State asserts that, due to defendant's inaction, he "acquiesced to the trial court's decision to clear the courtroom" and cannot now argue that plain error occurred.

¶ 15 "Waiver is the intentional relinquishment of a known right, whereas forfeiture is the failure to make a timely assertion of a known right." People v. Bowens , 407 Ill. App. 3d 1094, 1098, 348 Ill.Dec. 339, 943 N.E.2d 1249, 1256 (2011). "In the course of representing their clients, trial attorneys may (1) make a tactical decision not to object to otherwise objectionable matters, which thereby waives appeal of such matters, or (2) fail to recognize the objectionable nature of the matter at issue, which results in procedural forfeiture." Id. A plain error analysis applies only to cases involving forfeiture and not those that involve affirmative acquiescence or waiver. People v. McGuire , 2017 IL App (4th) 150695, ¶ 29, 419 Ill.Dec. 83, 92 N.E.3d 494. "When defense counsel affirmatively acquiesces to actions taken by the trial court, any potential claim of error on appeal is waived, and a defendant's only available challenge is to claim he received ineffective assistance of counsel." Id.

¶ 16 "In determining whether a legal claim has been waived, courts examine the particular facts and circumstances of the case." People v. Phipps , 238 Ill. 2d 54, 62, 342 Ill.Dec. 893, 933 N.E.2d 1186, 1191 (2010). "Waiver principles are construed liberally in favor of the defendant." Id.

¶ 17 To support its contention that defendant waived the courtroom closure issue, the State cites this court's decision in People v. Dunlap , 2013 IL App (4th) 110892, 372 Ill.Dec. 645, 992 N.E.2d 184. There, we held that the defendant waived, rather than forfeited, his challenge to the trial court's imposition of a $ 400 public defender reimbursement "because he affirmative[ly] acquiesced not only to the amount of the reimbursement, but also to the materials the court relied upon to arrive at the amount of the reimbursement." Id. ¶ 11. We noted that, after the court expressed its intent to impose a $ 400 reimbursement, it "asked whether there was ‘anything [defendant] want[ed] to say [as to] whether or not [the court] should impose that [reimbursement],’ " and both the defendant and his counsel "responded that they had nothing to say." Id. ¶ 10. Under such circumstances, a plain error analysis did not apply. Id. ¶ 12.

¶ 18 We find Dunlap is distinguishable from the present case and disagree that defendant waived rather than forfeited his claim of error. Initially, we note that the record shows the trial court actually understood defendant as objecting to its decision to clear the courtroom during M.L.'s testimony because it explicitly "note[d] [defense counsel's] objection" for the record. However, even absent that express acknowledgment by the court we would find that the record reflects...