SIXTH DIVISION July 16, 2015

No. 1-13-3409 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT __ __

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 3233 ) JOHN RANKIN, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Hall and Lampkin concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, the defendant, John Rankin, was convicted of residential

burglary (720 ILCS 5/19-3(a) (West 2012)) and sentenced to 84 months' imprisonment to be

followed by 3 years' mandatory supervised release (MSR). Additionally, the trial court

imposed $549 in fines and costs and ordered the defendant to pay a $450 fee to reimburse the

county for the funds expended for the services of his court-appointed defense counsel. On

appeal, the defendant argues that the evidence was insufficient to prove him guilty beyond a

reasonable doubt and the trial court erred in imposing the $450 fee without holding a hearing to No. 1-13-3409

determine his ability to pay. For the reasons which follow, we: reverse the defendant's

conviction and sentence for residential burglary along with the $549 of fines and costs assessed

against him; vacate the $450 fee which the trial court ordered the defendant to pay to reimburse the

county for the services rendered by his court-appointed counsel; and remand this cause to the trial

court with instructions.

¶2 The defendant was arrested and charged by information with one count of residential

burglary. The State filed a pretrial motion pursuant to section 113-3.1(a) of the Code of

Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/113-3.1(a) (West 2012)),

seeking reimbursement for the county funds expended for the cost of the defendant's

court-appointed attorney and requested that the motion be entered and continued. The

defendant filed a pretrial motion to quash his arrest and suppress identification evidence based

upon his arrest by the police without a warrant and without probable cause. The defendant

waived his right to a jury trial, and the trial court heard his motion to quash and suppress

contemporaneously with the trial. The following evidence was adduced at the defendant's

bench trial.

¶3 Patrick Mance lived in the basement apartment at 804 South Karlov Avenue in Chicago.

The door to the apartment opened to a gangway located on the side of the building.

¶4 Mance testified that, on January 3, 2013, he went out with a friend after working from

12:30 to 9:00 p.m. at the Chicago Transit Authority. He stated that, on January 4, 2013, at

about 3:30 or 4:00 a.m., he was riding as a passenger in a car driven by his friend when the car

passed the building in which he lived. Mance testified that he saw the defendant in the

gangway located on the side of the building carrying clothes. According to Mance, the lighting

was good, and he observed the defendant for a period of 4 to 5 seconds from 20 feet away.

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Mance testified that he had known the defendant all of his life. He stated that, after he saw the

defendant, his friend kept driving because he "didn't think nothing of it."

¶5 Mance testified that, when he returned home at about 10:00 a.m., he found that the door

to his apartment had been "pried open or kicked in." When he entered the apartment, he

discovered that all of his clothes were missing, the kitchen had been "torn up," and pipes were

missing from the ceiling. Mance stated that he called the police, and they came to his

apartment. When the police arrived, he told the officers that he had seen someone in the

gangway, but he did not give the officers a description of the individual or inform them that it

was the defendant that he had seen.

¶6 On cross-examination, Mance admitted that he did not see anyone enter his apartment on

January 3rd or 4th of 2013. When asked if he saw the defendant walk out of his apartment,

Mance answered: "I saw John Rankin coming out of my gangway at that time." When

pressed for an answer to the question of whether he saw anyone coming out of his apartment,

Mance responded: "Yes, I did, because where my apartment is at it's only one way out."

¶7 On January 11, 2013, Mance was contacted by Detective Robert Goerlich concerning the

incident. Mance admitted that he did not tell Detective Goerlich on that date that it was the

defendant that he had seen in the gangway. According to Mance, he "was going to deal with

the situation" himself. Detective Goerlich testified that, when he spoke to Mance on January

11, 2013, Mance did not tell him that he had seen the defendant in the gangway on the day of the

burglary. Detective Goerlich stated that Mance told him that the offender was "unknown."

¶8 On January 21, 2013, Mance called Detective Goerlich and told him that the defendant

was the individual who had broken into his apartment and gave the detective a description of the

defendant. According to Mance, he decided to "let the police deal with it." Detective

Goerlich testified that he constructed a photo array of possible suspects which included a picture

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of the defendant. On January 23, 2013, he showed the photo array to Mance, and Mance

identified the defendant's picture as the individual who had broken into his apartment. On

January 25, 2013, Detective Goerlich issued an investigative alert for the defendant, and on

January 30, 2013, the defendant was arrested.

¶9 After presenting the testimony of Mance and Detective Goerlich, the State rested, and the

trial court heard argument on the defendant's motion to quash and suppress. The court denied

the motion, after which the defendant made a motion for a directed finding of not guilty, which

the court also denied. Thereafter, the defendant rested.

¶ 10 Following closing argument, the trial court found the defendant guilty of residential

burglary, stating:

"I've listened to the evidence and observed the demeanor of

the witnesses while testifying.

Mr. Mance did give an explanation why he did not identify

[the defendant] at the time that he reported the offense. But the

other critical thing was [the defendant]—is there circumstantial

evidence or direct evidence that [the defendant] was in the

residence of Mr. Mance. As reviewed—the testimony just was

reviewed by myself with our outstanding court reporter and it said

he did see him coming out of the apartment.

Based on the totality of the evidence and also

circumstantial evidence I find there's a finding of guilty of

residential burglary."

¶ 11 The defendant filed a motion for a new trial, which was denied. The trial court then

sentenced the defendant to 84 months' incarceration to be followed by 3 years of MSR.

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Additionally, the court imposed $549 in fines against the defendant and ordered him to pay a

$450 fee to reimburse Cook County for the funds it expended for the services rendered by his

court-appointed defense counsel. As to the $450 fee, the court inquired of defense counsel:

"How many times did you appear in the case?" The assistant public defender responded:

"Nine times, judge." The court then stated: "Attorneys' fees of $450. Nine appearances plus

a trial, that would be appropriate."

¶ 12 The defendant filed a motion to reconsider his sentence, which the trial court denied.

This appeal followed.

¶ 13 The defendant first argues that the evidence was insufficient to prove him guilty of

residential burglary beyond a reasonable doubt. He contends that the only evidence presented

by the State connecting him to the alleged burglary was "so incredible and lacking in logic and

common sense that it cannot serve as proof of [his] *** guilt beyond a reasonable doubt."

¶ 14 In order to convict a criminal defendant, due process requires proof beyond a reasonable

doubt. People v. Cunningham,

(2004). When presented with a challenge

to the sufficiency of the evidence, it is not the function of this court to retry the defendant.

People v. Collins,

(1985). Rather, " 'the relevant question is 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 crime beyond a reasonable doubt.' " (Emphasis

in original.)

(quoting Jackson v. Virginia,

(1979)). It is the duty of the

trier of fact to determine the credibility of the witnesses, to weigh the evidence and draw

reasonable inferences therefrom, and to resolve any conflicts in the evidence. People v. Slim,

(1989). We will not substitute our judgment for that of the trier of fact on

issues involving the weight to be given to the evidence. People v. Siguenza-Brito,

(2009). However, "merely because the trier of fact accepted certain testimony or

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made certain inferences based on the evidence does not guarantee the reasonableness of its

decision." People v. Ross,

(2008). A conviction will be reversed on

appeal when the evidence is so unreasonable, improbable, or unsatisfactory that there remains a

reasonable doubt as to the defendant's guilt.

¶ 15 The defendant was charged with the commission of residential burglary. As such, the

State was required to prove beyond a reasonable doubt that he knowingly and without authority

entered the dwelling of another with the intent to commit a felony or theft. 720 ILCS 5/19-3(a)

(West 2012); People v. Natal,

(2006). A conviction for the offense

cannot be sustained unless all of the elements, including unlawful entry, have been proven

beyond a reasonable doubt. People v. Soznowski,

(1961).

¶ 16 In this case, the only evidence connecting the defendant to the offense charged was the

testimony of Mance. Mance's testimony, viewed in a light most favorable to the State,

established that between 3:30 at 4:00 a.m. on January 4, 2013, he saw the defendant carrying

clothes while in a gangway on the side of the building in which Mance lived. The access to

Mance's basement apartment was through a door opening into that gangway. Approximately

six hours later, Mance returned to his apartment and found that the front door had been "pried

open or kicked in" and that all of his clothes were missing, the kitchen had been "torn up," and

pipes were missing from the ceiling. Contrary to the trial court's statement when pronouncing

its finding of guilt, a fair reading of Mance's testimony is that he saw the defendant coming out

of the gangway, not that he saw him come out of his apartment. Mance concluded that the

defendant had come out of the apartment because the only way out of the apartment is through

the gangway.

¶ 17 Mance did not testify that he recognized the clothes that he saw the defendant carrying as

his. Although the police were called to the apartment on January 4, 2013, after Mance

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discovered the burglary, there was no evidence that the defendant's fingerprints were found at the

scene. Nor was there evidence that any of the clothes taken from Mance's apartment were

found in the defendant's possession. Mance testified that he had known the defendant all of his

life and that he recognized him as the person that he saw coming out of the gangway carrying

clothes in the early morning hours of January 4, 2013. Yet, he never told the officers who

responded to his call on that day that it was the defendant who he had seen coming out of the

gangway. Nor did he tell Detective Goerlich that he had seen the defendant when he was

interviewed on January 11, 2013. It was not until January 21, 2013, that Mance informed the

police that he saw the defendant in the gangway carrying clothes.

¶ 18 Accepting as true, as the trial court did, that Mance did not inform the police until

January 21, 2013, that it was the defendant that he had seen in the gangway on January 4, 2013,

because he had decided to "deal with the situation" himself, we are still left with the fact that the

only evidence even remotely connecting the defendant to the alleged burglary of Mance's

apartment is Mance's uncorroborated testimony that he saw the defendant in the gangway

carrying clothes after which he found that his apartment had been burglarized and his clothes

stolen. In order to convict the defendant of residential burglary based on the evidence in this

record, one would have to infer that the clothes that the defendant was carrying belonged to

Mance and that the defendant had entered Mance's apartment and stole the clothes. These

inferences are mere speculation. There is no evidence in this record that the defendant ever

entered Mance's apartment, that the clothes that he was seen carrying were Mance's clothes, or

that the defendant stole any clothes from the apartment.

¶ 19 Although we draw all reasonable inference from the evidence of record which are

favorable to the State, we will not draw unreasonable or speculative inferences. Cunningham,

. Based upon the foregoing analysis, we conclude that the evidence of record

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is so unsatisfactory that it creates a reasonable doubt of the defendant's guilt. Accordingly, we

reverse the defendant's conviction and sentence for residential burglary and the fines which were

assessed against him.

¶ 20 Next, the defendant argues that the trial court erred in entering an order requiring him to

pay a $450 fee for the services rendered by his court-appointed defense counsel without first

conducting a hearing to consider his financial circumstance and ability to pay. See 725 ILCS

5/113-3.1(a) (West 2012); People v. Gutierrez,

. He asserts that, because no

hearing was held on the State's motion to assess fees for his court-appointed defense attorney

within 90 days after the entry of the court's final order disposing of the case as required by section

113-3.1(a) of the Code of Criminal Procedure, the appropriate remedy is to vacate the $450 fee.

The State concedes that the court failed to comply with the hearing requirements of section

113-3.1(a) for the reasons asserted by the defendant, but argues that the appropriate remedy is to

remand the matter to the court with instructions to conduct an evidentiary hearing in compliance

with the statute. See People v. Somers,

. We agree with the State as to the

appropriate remedy under the circumstances of this case.

¶ 21 Section 113-3.1(a), by its very terms, requires that, before ordering a defendant to

reimburse the county for the cost of his court-appointed counsel, the trial court must hold a hearing

within 90 days of a final judgment disposing of the case "to determine the amount of payment."

725 ILCS 5/113-3.1(a) (West 2012). "The hearing must focus on the costs of representation, the

defendant's financial circumstances, and the foreseeable ability of the defendant to pay." Somers,

; see also People v. Love,

(1997). As in Somers, the trial

court in this case did hold an abbreviated hearing on the States motion for the assessment of a fee

for the defendant's court-appointed attorney when it asked the assistant public defender how many

times that he had appeared in court. See Somers,

. Only after hearing

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the assistant public defender's answer to the question did the trial court assess the $450 fee.

Consequently, we agree with State's contention that a hearing was held on the very day that the

court sentenced the defendant. However, since the hearing did not comply with the requirements

of section 113-3.1(a), the appropriate remedy is to vacate the $450 fee and remand the matter back

to the trial court with instructions to hold a hearing compliance with the statute.

¶ 22 In summary, we: reverse the defendant's conviction and sentence for residential burglary

along with the $549 of fines and costs assessed against him; vacate the $450 fee which the trial

court ordered the defendant to pay to reimburse the county for the services rendered by his

court-appointed counsel; and remand this cause to the trial court with instructions to hold a hearing

in compliance with the provisions of section 113-3.1(a) of the Code of Criminal Procedure.

¶ 23 Reversed in part and vacated in part; cause remanded with instructions.

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