No. 1-19-1733 Order filed July 6, 2021 Modified upon denial of rehearing August 16, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ 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. 11 CR 6740 ) GEORGE TROUT, ) Honorable ) Michele Pitman, Defendant-Appellant. ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: The circuit court properly dismissed defendant’s postconviction petitions when he failed to make a substantial showing that he was denied the effective assistance of appellate counsel.

¶2 Defendant George Trout appeals from the circuit court’s dismissal of his petition and

supplemental petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-1 et seq. (West 2016)). Defendant alleges the court erroneously granted the State’s motion No. 1-19-1733

to dismiss because he made a substantial showing of ineffective assistance of counsel on direct

appeal. Specifically, he claims that appellate counsel should have raised the trial court’s failure to

sua sponte instruct the jury on the definition of a “firearm.”

¶3 Defendant was charged with the offense of armed robbery in that he knowingly took

currency from Rosemary Smith (Rosemary) by the use of force or by threatening the imminent use

of force and he carried on or about his person or was otherwise armed with a firearm. See 720

ILCS 5/18-2(a)(2) (West 2010). Defendant elected to have a jury trial.

¶4 On February 8, 2011, Rosemary and her daughter Stephanie Smith (Stephanie) contacted

a Craigslist seller regarding a 2002 Taurus offered for $1500 and agreed to meet the seller that

evening in a restaurant parking lot. Defendant arrived alone in the Taurus at the designated time

and Rosemary offered him $1300 for the car. Defendant accepted and asked Rosemary and

Stephanie if they wanted to test drive the car. Rosemary was surprised that defendant drove the

car for the test drive, but did not “think too much of it” at the time. Defendant turned into a “very

dark” residential street and slowed down. When the vehicle stopped, Rosemary tried to exit from

the back seat, but a woman approached and blocked her from exiting. She also saw a masked man

on the driver’s side of the vehicle holding a “big, black gun” approximately 12 inches long.

¶5 After Rosemary exited the vehicle, the woman said, “ ‘You don’t want to die over money.

Hand over the money.’ ” Rosemary handed $1800 to the woman from her pocket. Stephanie exited

the front seat of the vehicle but reached back in to retrieve her purse. Defendant told the masked

man with the firearm to grab her purse, and a struggle ensued. The masked man eventually let go

of the purse, and he, the woman and defendant drove off in the Taurus. Rosemary and Stephanie

returned to their vehicle and contacted the police. Rosemary was “very familiar” with guns. She

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had seen guns before and knew what they looked like. She had also purchased “fake guns” for her

son and knew the difference between a “fake and a real gun.” Stephanie corroborated that the

object the masked man held “looked like a gun.”

¶6 At the jury instruction conference, the court granted the defendant’s request to instruct the

jury on the lesser-included offense of robbery, but no one asked for an instruction on the definition

of “firearm.” The jury was instructed in accordance with Illinois Pattern Jury Instructions,

Criminal, Nos. 14.05 and 14.06 (4th ed. 2000) (hereinafter IPI Criminal Nos. 14.05 and 14.06), in

effect at the time of trial.

¶7 The jury found defendant guilty of armed robbery. Defendant filed a motion for new trial,

which was denied, and the trial court sentenced defendant to 23 years in prison.

¶8 On direct appeal, defendant argued that his conviction should be reduced to robbery

because the State failed to establish that the weapon used in the offense was a firearm. We affirmed

the judgment of the trial court. See People v. Trout,

.

¶9 On September 29, 2016, defendant filed a pro se postconviction petition alleging, in

relevant part, that the trial court should have sua sponte instructed the jury regarding the “legal

definition” of a firearm. He also argued that trial counsel should have asked that the jury be

instructed on the statutory definition of “firearm” and that appellate counsel was ineffective in

failing to raise this issue on appeal. The circuit court docketed the petition and appointed

postconviction counsel.

¶ 10 On June 29, 2018, postconviction counsel filed a supplemental postconviction petition and

a certificate pursuant to Supreme Court Rule 651(c) (eff. July 1, 2017). The supplemental petition

alleged that defendant was denied effective assistance on direct appeal when counsel failed to

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challenge the foundation of certain evidence. On September 14, 2018, the State filed a motion to

dismiss.

¶ 11 On May 17, 2019, the circuit court granted the State’s motion, finding that “all defendant’s

claims in his pro se petition are all in the record. They all could have been brought on direct appeal,

and they lack merit as well.” The court found that the “jury was properly instructed.” With respect

to defendant’s claims of ineffective assistance of appellate counsel, the court concluded, “there is

no showing that appellate counsel was ineffective for not raising the numerous issues that the

defendant wished to be raised *** [a]nd Defendant also doesn’t show *** that he was prejudiced

by failing to raise these issues.”

¶ 12 The Act provides a procedural mechanism through which a defendant may assert a

substantial denial of his constitutional rights in the proceedings which resulted in his conviction.

725 ILCS 5/122-1 et seq. (West 2016). At the first stage of proceedings, the circuit court may

summarily dismiss a defendant’s petition only if it is frivolous or patently without merit. 725 ILCS

5/122-2.1(a)(2) (West 2016). If, as here, the petition advances to the second stage, a defendant

bears the higher burden of making a “substantial showing” of a constitutional violation. People v.

Domagala,

. At this stage, the court must liberally construe the record in the

defendant’s favor and accept all well-pleaded facts in the petition and accompanying affidavits as

true unless such facts are positively rebutted by the trial record. People v. Brown,

. We review the dismissal of a petition without an evidentiary hearing de novo.

See People v. Begay,

, ¶ 34.

¶ 13 A claim of ineffective assistance presented in a postconviction petition is judged under the

standard set forth in Strickland v. Washington,

(1984). To succeed on this type of

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claim, a defendant must show counsel’s failure to raise an issue on direct appeal was objectively

unreasonable, and that he was prejudiced by this decision. People v. Harris,

(2002). In other words, a defendant must establish that but for counsel’s error, there is a reasonable

probability that his appeal would have been successful. People v. English,

.

¶ 14 Generally, counsel’s decision not to raise an issue on appeal is given substantial deference.

Harris,

. It is not incompetence to refrain from raising issues which in counsel’s

judgment are without merit, unless counsel’s appraisal is patently wrong. People v. Simms,

(2000); see also People v. Williams,

(2004) (rather than raise

“every conceivable issue on appeal,” appellate counsel “exercise[s] professional judgment to select

from the many potential claims of error that might be asserted”). Absent a showing that the

underlying issue is meritorious, a defendant is not prejudiced by appellate counsel’s failure to raise

it on appeal. People v. Barrow,

(2001).

¶ 15 Relying on the “strong mandate” that a jury is to be fully and properly instructed, defendant

argues that it is reasonably probable that a new trial would have been ordered on direct appeal if

appellate counsel had challenged the trial court’s failure to sua sponte instruct the jury on the

statutory definition of the term “firearm.”

¶ 16 “The purpose of jury instructions is to provide the jury with correct legal principles that

apply to the evidence, thus enabling the jury to reach a proper conclusion based on the applicable

law and the evidence presented in a case.” People v. Jackson,

(2002).

The responsibility to prepare jury instructions “primarily” rests on the parties rather than the trial

court. People v. Underwood,

(1978). As a general rule, the court has no

obligation to instruct the jury on its own motion. People v. Parks,

(1976).

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“Generally, the only situations where a fair trial requires the court to sua sponte offer an instruction

include ‘seeing that the jury is instructed on the elements of the crime charged, on the presumption

of innocence, and on the question of the burden of proof.’ ” People v. Turner,

, 562-

63 (1989) (quoting Parks,

).

¶ 17 “[A] defendant forfeits review of any putative jury instruction error if the defendant does

not object to the instruction or offer an alternative instruction at trial and does not raise the

instruction issue in a posttrial motion.” People v. Herron,

(2005). Moreover,

pursuant to Supreme Court Rule 366(b)(2)(i) (eff. Feb. 1, 1994), “[n]o party may raise on appeal

the failure to give an instruction unless the party shall have tendered it.”

¶ 18 Although it is undisputed that trial counsel did not tender an instruction on the definition

of a firearm, defendant contends that the trial court erred in failing to instruct the jury, sua sponte,

on that term. Since this claim was never raised in the trial court, it was forfeited for purposes of

defendant’s direct appeal. See, e.g., People v. Enoch,

(1988) (to preserve an

error for appellate review, a defendant must make both a contemporaneous objection and raise the

issue in a posttrial motion). Appellate counsel would have had to establish that the jury instruction

claim constituted plain error in order to raise it on direct appeal.

¶ 19 The plain error doctrine permits this court to consider an unpreserved error when an error

occurred and (1) the evidence was so closely balanced that the error alone threatened to tip the

scales of justice against the defendant, or (2) the error was 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. People v. Piatkowski,

(2007). The first step in

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plain error review is to determine whether an error occurred. See People v. Hood,

(without error, there can be no plain error).

¶ 20 “When words used in a jury instruction have a commonly understood meaning, the court

need not define them with the use of additional instructions; this is particularly true where the

pattern jury instructions do not provide that an additional definition is necessary.” People v.

Manning,

(2002). While the statutory definition of the term “firearm”

contains some limited exceptions, the term is defined “broadly” and has “a commonly understood

meaning that is consistent with the broad statutory definition.” People v. Clark,

.

¶ 21 The trial court provided the jury with IPI Criminal Nos. 14.05 and 14.06, which were in

effect at the time of trial. These instructions defined armed robbery and the issues in armed

robbery. The committee notes to IPI Criminal Nos. 14.05 and 14.06 did not require that a definition

for “firearm” be given when the offense involved a firearm, even though there is a pattern

instruction defining “firearm” consistently with section 1.1 of the Firearm Owners Identification

Card Act. See Illinois Pattern Jury Instructions, Criminal, No. 18.35G (4th ed. 2000) (citing 430

ILCS 65/1.1 (West 1999)) (hereinafter IPI Criminal No. 18.35G) (defining “firearm”); People v.

Wright,

, ¶ 88 n.6.

¶ 22 IPI Criminal No. 18.35G defining “firearm” states: “The word ‘firearm’ means any device,

by whatever name known, which is designed to expel a projectile or projectiles by the action of an

explosion, expansion of gas, or escape of gas. [The term does not include __________.]” Illinois

Pattern Jury Instructions, Criminal, No. 18.35G (4th ed. 2000). The committee notes to that

instruction indicate that the bracketed portion should be used “when appropriate.”

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¶ 23 Here, defendant argues that whether an actual firearm was used during the commission of

the offense was a “central dispute” at trial. Defendant also argues that since the jury was instructed

on the lesser-included offense of robbery, the court should have also provided an instruction

explaining what constitutes a firearm and what does not. We disagree.

¶ 24 The text of IPI Criminal No. 18.35G and the committee notes indicate that the bracketed

portion of the instruction is only appropriate when there is some evidence to support the theory

that the object used was not a firearm but was one of the excluded items, such as a BB gun or

paintball gun. However, there was no evidence supporting such a theory in this case. Therefore,

even if the instruction had been given, it would not have been appropriate to include the bracketed

portion. Moreover, the term firearm has a “commonly understood meaning that is consistent with

the broad statutory definition” (Clark,

), and there is no requirement

that the term be defined, much less that the trial court sua sponte offer the definitional instruction.

¶ 25 Even if we agreed with defendant that the trial court erred, he cannot meet his burden under

either prong of the plain error doctrine. See People v. Thompson,

(2010).

Under the first prong, the evidence was not closely balanced as to whether a firearm was used in

the commission of the offense. As discussed, both Rosemary and Stephanie testified that the man

who approached the vehicle carried a firearm. Rosemary described the gun as a “big, black gun”

approximately 12 inches long. She was “very familiar” with how guns look because her boyfriend

had a gun and she had purchased fake guns for her young son. Stephanie corroborated that “it

looked like a gun.” Their undisputed testimony was sufficient to establish that the man was armed

with a firearm during the robbery. Clark,

(holding that the evidence

was not closely balanced where firearm was not recovered and the witnesses unequivocally

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testified that they observed defendant carrying a firearm); see also People v. White,

(noting that “[a] qualitative—as opposed to strictly quantitative—commonsense

assessment of the evidence demonstrates that the evidence was not closely balanced”).

¶ 26 In his petition for rehearing, defendant asserts that in People v. Clifton,

, this court “specifically rejected the reasoning in Clark as unfairly shifting the burden

to defendant” to disprove the presence of a firearm. Clifton stands for that proposition but only as

it relates to the sufficiency of the evidence. Clark also held, analyzing a similar instructional issue

to the one we see here, that the evidence proving the existence of a firearm was not closely balanced

in addition to being sufficient. Clark,

. Clifton did not call that

portion of Clark into question, and we find Clark persuasive as to its analysis of first prong plain

error.

¶ 27 Additionally, our supreme court has equated second prong plain error review with

structural error. Id. 613-14. A structural error is “a systemic error which serves to ‘erode the

integrity of the judicial process and undermine the fairness of the defendant’s trial.’ ” People v.

Glasper,

(2009) (quoting Herron,

). Examples of structural

error include “a complete denial of counsel, trial before a biased judge, racial discrimination in the

selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective

reasonable doubt instruction.” Thompson,

(citing Washington v. Recuenco,

, 218 n.2 (2006)); see also Neder v. United States,

(1999) (a jury instruction which

omits an element of the offense does not rise to the level of structural error). “[M]erely failing to give

a jury instruction defining an element of the offense does not rise to the level of structural error.” Clark,

.

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¶ 28 Since there was no error in this case, there can be no plain error. See Hood,

. It follows that defendant’s claim of ineffective assistance of appellate counsel fails. Harris,

. For all the reasons set forth herein, we find that the circuit court properly

dismissed defendant’s postconviction petition. Domagala,

.

¶ 29 Affirmed.

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