Opinion filed December 31, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Iroquois County, Illinois Plaintiff-Appellee, ) ) Appeal No. 3-18-0215 v. ) Circuit No. 17-CF-04 ) JASON D. SANDERS, ) Honorable ) James B. Kinzer Defendant-Appellant. ) Judge, Presiding ____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Presiding Justice Lytton concurred in the judgment and opinion. Justice Holdridge specially concurred, with opinion. ____________________________________________________________________________

OPINION

¶1 Defendant Jason D. Sanders was tried by a jury and acquitted of attempted first degree

murder, aggravated discharge of a firearm, and unlawful possession of a weapon by a felon. The

jury convicted Sanders of aggravated battery, unlawful possession of a stolen motor vehicle and

the lesser-included criminal trespass to a vehicle. He was sentenced to two consecutive seven-year

terms, to be served “day-for-day.” He challenges both the conviction and the sentence. We reverse

and remand. ¶2 I. BACKGROUND

¶3 On January 3, 2017, Jason Sanders, a black man from Memphis, Arkansas, accepted a job

as a truck driver for Mika Logistics. Sanders was instructed to come to the company headquarters

in Addison, Illinois, with one of their truck drivers. Sanders rode with a company truck driver,

Dexter Ortiz, from Memphis, Arkansas, to a Pilot gas station in Gilman, Illinois, where he was

told that he would switch trucks and ride with another driver to Addison. Sanders entered the other

truck, where the driver was not present and began to move items from the front seat to the sleeping

cabin. The driver, Krzystof Bogucki, entered his truck to find Sanders moving his items. Bogucki

did not have knowledge that Sanders would be in his truck or that Sanders was expected to ride

with him to Addison. This led to an altercation, which escalated to a physical fight in the ditch of

the gas station. Bogucki was shot twice, Sanders drove away in Bogucki’s truck.

¶4 Sanders was charged with attempted first degree murder (720 ILCS 5/8-4(a), 9-1 (West

2016)), aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2016)), aggravated discharge of a

firearm (720 ILCS 5/24-1.2(a)(2) (West 2016)), unlawful possession of a weapon by a felon (720

ILCS 5/24-1.1(a) (West 2016)), and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-

103(a)(1) (West 2016)). The case proceeded to trial on May 16, 2017. During voir dire, the trial

court inconsistently asked the panels of jurors if they “accepted and agreed to apply” the principles

of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Evidence was presented by the State,

and defense rested without submitting evidence. Defense counsel provided a closing statement as

follows:

2 “They had so many pictures and so many things or the other thing is he’s black

and black man belongs in a squad car in a cage. So that’s either prejudicial, they want

to be prejudiced against it. I don’t see any other reason. ***

***

*** It’s undisputed that Krzystof Bogucki, or whatever, goes—he sees a black

guy in the passenger seat going through things and he thinks—he thinks he’s being

robbed or he’s stealing something. ***

***

*** I guarantee you, as he said it’s undisputed, he went there, he thought he was

being robbed or something, was stealing, the very first thing you do call 911. You

don’t go up there, oh, black guy, I don’t know who it is. I’m in a white community, a

big black guy is in my car passenger seat, but I’m not going to get in the cab with him

and, you know what, I’m also very calm, I’m calm hoping to calm him down. ***

***

*** Well, you know something, and I like to think I’m not a bigot, but or racist,

but if I was in the south side of Chicago in an all-black area that I thought was

dangerous and I’m the only white guy, I guarantee you I don’t care what’s happening

I’m out of there and they can talk to me later. But I’m not going to stay because

here’s a black man in a whole white area afraid to possibly—because he’s the only

black guy and white guy thinks he can be in trouble.

***

*** [I]f I’ve gone through the town and I see confederate flags and that’s fine,

everybody can have their own, but to a black man that symbolizes slavery or racism.

3 He’s a white man in a totally white place, never been there before. I would have been

scared if I was a white guy in a totally bad place and they had black men, there are

signs all over the place, I would be scared to death and I want to get out of there.***.

***

***

*** They are going to say that that showed intent to flee in a guilty mind and I’m

saying you could also interpret that to be someone is afraid, scared in a white area, in

an area that he doesn’t know anyone and there’s stories on both sides. The black

abusing people and whites abusing people of race I’m talking about and could have

been scared.

***

*** Do you believe that he would be calm? If you saw a black man, any man to

be honest with you, sitting in the car, I don’t know him and he’s going through things,

yeah I’m calm. No. Uh-uh. I am not calm. I am far from calm when I see that and it

scares me. ***

***

*** He’s a black guy in a white area and I hate to say it but it’s true. Blacks don’t

trust whites and a lot of whites don’t trust blacks. I wouldn’t trust them if I was on the

south side of Chicago, I’m out of there. Even if I did something wrong I’m out of

there. I don’t trust that I would be safe, I’m sorry. I don’t think he did either.

***

I’m asking that the black man comes into this county is given the same, same

courtesy as if a white man was sitting there. *** And I think a lot of people live here,

4 I’m not sure, just because it’s a better environment to raise kids or to live safe. But

it’s also important that if you are going to live in this community besides those goals

you want to be fair, you want to give a man who’s a stranger a fair hearing ***. ***

*** Wouldn’t you call the police? There’s a black guy in there. Big black guy,

kind of big. I would be afraid. I’m sorry, I would be afraid. ***

***

*** Let’s find this black son of a gun guilty because he can’t explain where the

gun is.”

¶5 As Sanders describes in his police interview, he was told to ride in Bogucki’s truck, and so

he began to prepare his place. Bogucki entered the truck and did not know Sanders or why he was

present and began to react. Bogucki did not speak English, making the interaction more

complicated. Sanders claims Bogucki pulled a gun and demanded that he exit the truck. The

altercation moved outside the truck, where Bogucki charged Sanders, and the two began to tussle.

Sanders describes that, amongst the chaos, the gun accidentally fired twice and shot Bogucki.

Bogucki lay in the ditch where the altercation took place. Sanders claims that the gun fell into the

ditch and that he does not own or possess a gun. Sanders then left the scene in the truck, headed

south on Interstate 57 toward his home, and called his girlfriend to say he thought he “shot a dude”

and that he believed he was going to be arrested. He did not call the police and was arrested in the

Champaign area (about 51 miles from Gilman).

¶6 Bogucki testified that he entered the truck to find Sanders. After a verbal altercation,

Sanders pulled out a gun and demanded that he exit the truck. Bogucki was then forced out of the

truck by Sanders, where a physical altercation ensued. Bogucki tried to take the gun from Sanders,

when he was shot in the chest and shoulder. He claims to have played dead, leading Sanders to

5 flee the scene with the truck. Bogucki then cried out and walked into the gas station, where the

cashier and manager aided him and called the police. This incident led the police to search for and

arrest Sanders.

¶7 Witnesses and law enforcement officers testified to their involvement in the response to.

and investigation of, the incident and the arrest and interrogation of Sanders. Only the victim and

defendant were present for the altercation involved in the arrest and charges in this case. The ditch

and retention pond were both pumped, however, the gun was never found.

¶8 Sanders was found guilty of aggravated battery, unlawful possession of a stolen motor

vehicle, and criminal trespass to a vehicle. He was found not guilty of all other charges. He was

sentenced on August 11, 2017, to two concurrent seven-year terms of imprisonment for aggravated

battery and unlawful possession of a stolen motor vehicle. The sentences were to be served day

for day (clarified as 50%). The written sentencing order did not include the percentage of service

for either sentence.

¶9 Sanders filed a motion to reconsider the sentence on September 11, 2017. The record

included a handwritten letter from Sanders to the court, stating that the department of corrections

had incorrectly calculated his sentence and was requiring him to serve 85% of that sentence.

During a hearing on April 5, 2018, the court observed that the motion to reconsider was filed past

the 30-day deadline. The defense pointed out that since the motion was filed on the Monday after

the deadline (deadline was reached on a Saturday or Sunday), that the motion was timely. The

court denied the motion as untimely and did not reach the merits of the motion. Notice of appeal

was filed on April 16, 2018.

6 ¶ 10 II. ANALYSIS

¶ 11 Sanders argues that the court erred by not properly administering the Illinois Supreme

Court Rule 431(b) (eff. July 1, 2012) principles. He also argues that the court erred in denying his

motion for reconsidering sentencing. We acknowledge these arguments, but they will not be

analyzed, as the court is overturning on the ineffective assistance of counsel issue. Sanders argues

that he did not receive a fair trial because of ineffective assistance of counsel, as counsel inserted

his race into the trial improperly, causing prejudice.

¶ 12 To prove ineffective assistance of counsel, the defendant must meet both prongs of the

Strickland test. The defendant must prove:

“First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.” Strickland v. Washington,

(1984).

Matters of trial strategy are generally immune from claims of ineffective assistance of counsel.

Defendant must also prove that there is a reasonable probability that, but for counsel’s ineffective

assistance, the result would have been different. People v. King,

(2000).

¶ 13 In general, wide latitude is afforded counsel in closing arguments. People v. Crawford,

(2003). “Argument and statements that are based upon the facts in

evidence, or upon reasonable inferences drawn therefrom, are within the scope of proper closing

argument.”

Improper closing arguments will not result in reversal, unless they prejudice the

7 defendant, considering the context to the language employed, its relationship to the evidence, and

its effect on the defendant’s right to a fair trial. People v. Thompkins,

(1988).

Facts not in evidence may not be argued. People v. Marshall,

.

The introduction of race into an argument is not permissible. Id. ¶ 13. Counsel should not align

itself with the jurors against another group. Id. ¶ 16. Closing arguments are not evidence, and any

argument that is not based in evidence should be disregarded. People v. Thomas,

(1990).

¶ 14 In the case at bar, Sanders meets the first prong of the Strickland test. Defense counsel

inserted the defendant’s race, along with harmful stereotypes and personal bias opinions, into

closing arguments. Sanders’s race was not discussed as a factor to this incident, and racial

stereotypes are not proper inferences made by any presented evidence of race. Defense counsel

based a large majority of the closing argument on the race of Sanders. Counsel argued claims,

describing the likely fears Sanders felt being “a black man in a white community,” that were not

based on evidence presented at trial and lacked merit. Counsel did not provide any statistical

analysis to be assessed on claims of neighborhood diversity effects or racial issues. None of the

racial comments were based on the evidence. Defense counsel not only inserted race, but also

incorporated his own personal prejudice into the closing arguments. Following this, defense

counsel tried to associate the jurors with his beliefs, with statements including. but not limited to,

“Wouldn’t you call the police? There’s a black guy in there.” These actions fall outside the bounds

of sound trial strategy, and therefore show deficient performance by counsel. This falls below the

standard of reasonable assistance.

¶ 15 Sanders also meets the second prong of the Strickland test. By addressing race and his own

personal biases, matters not based on the evidence, defense counsel inadvertently prejudiced the

8 jury. Counsel addressed, in great detail, the intimidating appearance of his client. Counsel went so

far as to refer to the client as a “[b]ig black guy, kind of big” and following this by saying, “I would

be afraid.” Defense counsel described Sanders as “a big scary black guy” and, while trying to

group himself with the jury, discussed the natural fears that would take place. The aggregate of

this sort of language could only create prejudicial effects, even if it was used as well-intentioned

trial strategy. By emphasizing the defendant’s race and the fear he would feel in the victim’s shoes,

based on no more that his personal views and not any evidence presented at trial, defense counsel

created a prejudicial lens for the jury against Sanders.

¶ 16 The special concurrence agrees with our disposition but challenges what it states is an

incorrect conclusion that the use of race is “categorically barred” and grounds to reverse “in all

cases.” Infra ¶ 25. This conclusion misinterprets the analysis, which does not suggest a categorical

ban. The opinion does not discard the need to balance the probative value of the evidence against

its prejudicial effect to determine admissibility. In the case at bar, the racial comments lacked any

probative value, as they were unconnected to the facts presented. Under these circumstances, the

comments would serve only to prejudice a defendant.

¶ 17 Here, the comments of defense counsel were directed solely to the jury’s racial prejudice.

Closing arguments were improper in the context and relationship to the evidence, which created

prejudice and made a fair trial nearly impossible. The statements left the jury with a negative view

of Sanders right before they decided the case. Though the argument was not based in fact, it had a

prejudicial effect and could not reasonably be disregarded by the jury. If defense counsel uses race

or any other factors not based on the evidence, and creates prejudice, there is inevitably ineffective

assistance of counsel. We find the defendant received ineffective assistance of counsel.

9 ¶ 18 On a final note, in his special concurrence, Justice Holdridge includes an explanation for

his dissent from the majority order granting Sanders’s motion to cite as additional authority the

Illinois Supreme Court’s June 22, 2020, “Statement on Racial Justice.” Infra ¶ 26. Although he

surmises the majority allowed the improper injection of irrelevant and extrajudicial considerations

of race into the proceedings by allowing the additional authority, the statement was not cited in

the opinion. Moreover, if the statement was used by the court, we would not consider its use

improper.

¶ 19 III. CONCLUSION

¶ 20 For the foregoing reasons, the judgment of the circuit court of Iroquois County is reversed

and remanded for a new trial.

¶ 21 Reversed and remanded.

¶ 22 JUSTICE HOLDRIDGE, specially concurring:

¶ 23 I agree with the majority’s judgment. I write separately to clarify what I believe to be the

proper analysis that should guide our decision in this case.

¶ 24 I join the majority’s reversal of the defendant’s conviction because certain remarks made

by the defendant’s trial counsel during closing argument were not based on the evidence presented

at trial and those remarks prejudiced the defendant by painting him in a negative light. In my view,

these facts should be the only considerations justifying reversal in this case. Any other aspects of

the trial counsel’s remarks are neither legally relevant nor dispositive.

¶ 25 The majority states that (1) none of the racial comments in this case were based on the

evidence presented in this case and (2) these comments prejudiced the defendant. Supra ¶¶ 14-15,

17-18. I agree with each of those statements. That is why I have voted to reverse the defendant’s

conviction. However, I dispute the majority’s suggestion that the introduction of race into an

10 argument is categorically barred and is grounds for reversal in all cases. See supra ¶ 13 (“The

introduction of race into an argument is not permissible.”) In my view, the injection of race is

reversible, as ineffective assistance of counsel only if it is (1) not based on the evidence and

(2) prejudicial to the defendant. See, e.g., People v. Eddmonds,

(1984) (holding

that, “[w]hile appeals to racial prejudice are to be condemned,” defense counsel “was not

incompetent for failing to object to a vague reference to race” that did not prejudice the defendant);

People v. Caffey,

(2001) (upholding defendant’s death sentence despite

prosecutor’s “unnecessary and potentially offensive” reference to the race of an uncalled witness

where the prosecutor’s isolated remark did not incite racial prejudice and the court could not say

that the guilty verdict would likely have been different had the prosecutor not made the remark);

see generally People v. Brown,

(1967) (ruling that, while evidence offered

solely for the purpose of appealing to a jury’s prejudice against an accused must be excluded,

evidence which is relevant, based on the evidence, and otherwise admissible need not be excluded

even if it mentions race). Because I believe that both criteria for reversal were met in this case, I

join the majority’s judgment.

¶ 26 One additional point bears mentioning. I have dissented from the majority’s order granting

the defendant’s motion to cite the Illinois Supreme Court’s June 22, 2020 “Statement on Racial

Justice” as additional authority in this case. “The purpose of allowing parties to cite additional

authority is to bring this court’s attention to relevant or dispositive case law that was decided after

the parties’ briefs were filed” (People v. Molina,

(2008)) or to other relevant

and precedential legal authority promulgated after briefing. “Legal authority” is a “provision of

law or regulation that carries the force of law, including, for example, statutes, rules and

regulations, and court rulings.” Law Insider Online Dictionary,

11 https://www.lawinsider.com/dictionary/legal-authority (last visited Dec. 13, 2020)

[https://perma.cc/SA6J-4ETQ]; see also Collins Dictionary of Law,

https://www.collinsdictionary.com/us/word-lists/law-law-terms (last visited Dec. 13, 2020)

[https://perma.cc/VEG9-DDF8] (defining legal “authority” as “a judicial decision, statute, or rule

of law that establishes a principle; precedent”); see also The Free Dictionary by Farlex, https://legal

dictionary.thefreedictionary.com/authority (last visited Dec. 13, 2020) [https://perma.cc/SF29-

2GWZ]; Black’s Law Dictionary 153 (9th ed. 2009) (defining “authority” as “[a] legal writing

taken as definitive or decisive; esp., a judicial or administrative decision cited as a precedent ***.

The term includes not only the decisions of tribunals but also statutes, ordinances, and

administrative rulings.”).

¶ 27 The Illinois Supreme Court’s June 22, 2020 “Statement on Racial Justice” is not legal

authority. It is not a decision or ruling of the Illinois Supreme Court or of any other court. Nor is

it a formal rule or jury instruction promulgated by the Illinois Supreme Court. It does not even

articulate a policy formally adopted by our supreme court. Rather, it is nothing more than an

informal “statement” posted on the Illinois Supreme Court’s website in the wake of recent events.

It is not, nor does it purport to be, legally binding on anyone. Accordingly, it may not be submitted

or considered by this court as additional “authority.” See, e.g., In re Michael H.,

(2009) (noting that even unpublished orders of our appellate court, which are legally

binding upon the parties to a lawsuit and upon the Illinois trial courts, are not precedential

“authority” and therefore may not be cited as authority or submitted as supplemental authority in

our appellate court other than to establish double jeopardy, law of the case, res judicata, or

collateral estoppel).

12 ¶ 28 Allowing the defendant to submit the Illinois Supreme Court’s “Statement on Racial

Justice” as additional “authority” in this case establishes a bad precedent that will undermine the

rule of law. There will be no limit to what parties may present as “authority” in future cases.

Speeches by judges, legislators, or others, unpublished court orders, PR or policy statements, and

internal court practices will all be fair game. “Authority” will no longer be limited to positive law,

much less binding or precedential law.

¶ 29 Moreover, if this court were to consider the Supreme Court’s statement on “racial justice”

in deciding this case, it would allow the defendant to improperly inject irrelevant and extra-legal

considerations of race into a legal proceeding, which is exactly what the defendant rightly accuses

his trial counsel of doing. Thus, by considering the supreme court’s statement, the majority

contradicts our rationale for reversing the defendant’s conviction.

¶ 30 There is ample binding legal authority on point that enables us to decide this case. We do

not need to consult nonbinding “statements” by the supreme court to reach a ruling. Nor would it

be proper for us to do so. See Molina,

; Michael H.,

;

see generally In re A.C.,

(“ ‘[W]hen there is Illinois case law

directly on point, we need not look to case law from other states for guidance,’ when we have our

own precedent to follow” (quoting Kostal v. Pinkus Dermatopathology Laboratory, P.C.,

(2005))).

13 No. 3-18-0215

Cite as: People v. Sanders,

Decision Under Review: Appeal from the Circuit Court of Iroquois County, No. 17-CF-04; the Hon. James B. Kinzer, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Andrew J. Boyd, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys James Devine, State’s Attorney, of Watseka (Patrick for Delfino, Thomas D. Arado, and Mark A. Austill, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

14