2018 IL App (2d) 180575-U 

No. 2-18-0575 

Order filed December 9, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 18-CF-511 

) 

JAMES R. WILLIAMS, ) Honorable 

) David Paul Kliment, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court. 

Justices McLaren and Brennan concurred in the judgment.

ORDER

¶ 1 Held: The trial court: (1) did not conduct a proper preliminary Krankel inquiry, but any 

error in conducting the inquiry was harmless, and, thus, it did not err in determining 

that defendant’s claims regarding an unedited surveillance video did not show 

possible neglect by trial counsel; and (2) did not err in denying defendant’s pro se

motion to reconsider sentence, where its error in refusing to view the unedited video 

was harmless. Affirmed. 

¶ 2 After a jury trial, defendant, James R. Williams, was convicted of aggravated battery (720 

ILCS 5/12-3.05(a)(1) (West 2018)) and sentenced to 10 years’ imprisonment. Defendant appeals, 

arguing that the trial court did not give proper consideration to his claims concerning uncut 

portions of a surveillance video, where: (1) it failed to conduct an adequate preliminary (i.e., first-
2018 IL App (2d) 180575-U 

- 2 -

stage) examination, consistent with the procedure in People v. Krankel, 102 Ill. 2d 181, 189 (1984), 

into his post-trial pro se ineffective-assistance-of-trial-counsel claim; and (2) in ruling on his pro 

se motion to reconsider sentence, where it refused to consider the unedited video on the grounds 

it was a matter dehors the record. We affirm. 

¶ 3 I. BACKGROUND

¶ 4 The actions in this case arose out of defendant striking the victim, Melissa Mercer, on 

March 13, 2018. A grand jury indicted defendant with one count of aggravated domestic battery 

(720 ILCS 5/12-3.3(a) (West 2018)), three counts of aggravated battery (720 ILCS 5/12-

3.05(a)(1), (c) (West 2018)), and two counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) 

(West 2018)). During discovery, the State disclosed several CDs to the defense. (Five video clips 

were subsequently admitted into evidence and played for the jury at trial. The unedited 

surveillance video that is the focus of defendant’s appeal was not admitted into evidence and is 

not contained in the record on appeal.) During an April 19, 2018, pretrial hearing, both the State 

and defendant answered ready for trial the following Monday. 

¶ 5 A. Trial

¶ 6 Britt Hawkins and Judy Kullenberg represented defendant at trial, which commenced on 

April 23, 2018. 

¶ 7 Mercer testified that she had known defendant for 10 years, they had lived together 5 years 

ago, and she had dated him 4 years ago. On March 12, 2018, Mercer rented a first-floor room at 

the Super 8 Motel in Elgin so that she and defendant could drink and “hang out.” 

¶ 8 On the evening of March 12, 2018, there was no physical altercation between Mercer and 

defendant. That night, both Mercer and defendant drank, fell asleep, woke up, and drank some 

more. The drinking continued to the morning of March 13, 2018. At some point, defendant left 
2018 IL App (2d) 180575-U 

- 3 -

the room. When he returned, he was text messaging and talking on his phone. He appeared angry. 

That morning, defendant punched Mercer in the face and mouth while she stood between the two 

beds in the room. Mercer’s mouth split open and bled. Mercer did not know why defendant 

punched her and asked him to leave. At some point, Mercer woke up on the floor, between the 

beds. She could not recall how she ended up on the floor. While she was on the floor, defendant 

said that he should kick Mercer in her face, and she asked him why he would do that. Mercer

testified that she thinks that defendant kicked her, but she could not recall some of the events and 

believes that she passed out.

¶ 9 When Mercer woke on the floor, defendant was standing near the window. Mercer ran out 

of the room, because she did not want to be alone with defendant any longer. Mercer went to the 

lobby, turned, and saw defendant chasing her. By the front door, defendant punched Mercer. (A 

surveillance video shows defendant punching Mercer’s head into a glass door in the hotel 

vestibule.) She kept telling him to leave. Defendant’s ride was outside. Mercer had overheard 

him on the phone, arranging a ride. 

¶ 10 At some point, defendant came back into the hotel, and Mercer was still in the lobby, in 

the hallway by the front desk. Defendant walked up to Mercer and hit her again in the lobby 

hallway area. (A surveillance video captured this act.) Eventually, defendant left, and Mercer 

returned to her room. After a while, Mercer went back to the front desk and asked an employee to 

call an ambulance. The police ultimately responded, and she spoke to them. Mercer was treated 

by paramedics and transported to Sherman Hospital. 

¶ 11 Mercer sustained injuries to her mouth, and her face was bruised. She testified that she 

still had scar tissue in her lip, and her eye was still “messed up.” Mercer identified several 

photographs depicting her injuries from that evening and of her hotel room. Several photographs 
2018 IL App (2d) 180575-U 

- 4 -

depict blood on the bed sheets. Mercer stated that the blood was not present when she checked 

into the room.

¶ 12 Mercer further testified that, when defendant punched her, it made her feel scared. She

also described defendant as wearing Jordan “boots” that day.

¶ 13 On cross-examination, Mercer testified that, prior to leaving the hotel room after the police 

arrived, she asked to take alcohol with her. Police officers asked Mercer if she wanted to go to the 

hospital, and she stated that she did not want to go. Mercer further testified that, while telling 

defendant to leave while they were in the lobby, he walked outside at one point, and Mercer 

followed him out. 

¶ 14 On re-direct examination, Mercer stated that she ultimately did go to the hospital. She 

wanted to call her mother to meet her there. The officer told her that she should go to the hospital 

based on what she had told him (i.e., that defendant kicked her in the face and was stomping on 

her face).

¶ 15 Vidhi Patel was the front-desk receptionist of the Super 8 Motel on March 13, 2018. The 

hotel is open to the public and does not require membership. A stairwell is off to one side of the 

lobby, and the front door is off to the other side of the lobby. 

¶ 16 At 9 a.m. that day, a black man and a Caucasian woman caught Patel’s attention in the 

lobby. The female was loud and pointing, and she and the male walked outside the hotel. From 

the front desk, Patel could not see what occurred outside or in the doorway area. At some point, 

the two people returned. They came to the front desk and were loud. Patel said hello, and the man 

responded that they were okay. The female wore a pink hoody with the hood raised. Patel returned 

to her paperwork and, when she looked at the camera, she saw the woman stepping back a bit. She 

did not see what caused her to step back. The woman returned to the front desk after 30 minutes 
2018 IL App (2d) 180575-U 

- 5 -

and asked Patel to call 911. Patel called her supervisor, Nina Strickland (who called the police 

and testified that the hotel video-surveillance system was working at the relevant time). While the 

two people were in the lobby, the woman never asked Patel for help and she did not call the police.

¶ 17 Elgin police officer Thomas Coffield retrieved video from the hotel’s security system, put 

the information on a thumb drive, and then burned the files onto a CD. He selected video for 

inclusion on the drive from just prior to the time that the call for service was received.

¶ 18 The CD exhibit, which consists of five video clips, was admitted into evidence. The video 

clips were played for the jury. The first video clip, timestamped between 8:32:28 and 8:33:21 

a.m., shows the front-entrance vestibule of the hotel and depicts defendant swinging his arm and 

punching Mercer’s head into a glass door. She then points toward the outer front door, leads him 

out the front door, and defendant walks away. Mercer then walks outside, paces near the front 

door, walks out of camera view, and then returns. The second clip shows the same incident, but 

with a view from the lobby area. The third clip, timestamped between 8:33:56 and 8:35:14, shows 

the lobby area and depicts Mercer entering the lobby area from the vestibule, followed by 

defendant, who motions to someone who is presumably at the front desk, and then depicts Mercer 

pushing/directing defendant away (defendant does not jolt or jerk back), the couple conversing, 

then Mercer directing defendant away, and having another conversation. Afterwards, defendant, 

who appears to grow agitated, makes a call on his phone while Mercer continues to speak to him, 

and then punches Mercer with his right hand. She walks down the hallway and out of camera 

view. Defendant lingers between the lobby and hallway areas and then follows Mercer down the 

hallway. The fourth clip, timestamped between 8:34:02 and 8:34:46 a.m., shows the same events 

from the hotel’s first floor hallway. Mercer walks into and out of that area while presumably 

speaking to defendant, who is out of the camera’s range. Several times, Mercer, with outstretched 
2018 IL App (2d) 180575-U 

- 6 -

hands, appears to stop defendant’s movement toward her or to direct him away from her. The fifth 

clip, timestamped between 8:34:42 and 8:35:14 a.m., also shows the first-floor hallway, and 

depicts defendant hitting Mercer toward the back side of her head, Mercer walking away, 

defendant watching her walk down the hallway, and then defendant following after her. 

¶ 19 Elgin firefighter/paramedic Robert Newby responded to the call from the motel. He 

observed cuts to Mercer’s face, swelling around her left eye, and a slight shoe print and bruising 

on her forehead. Her vitals were normal, and she was alert and talkative, but her demeanor was 

agitated, wound up, and anxious. Mercer told Newby that she had been drinking most of the 

morning. Newby smelled an odor of alcohol on her breath. Newby gave Mercer something to 

control the bleeding and a cold pack for her swollen eye. Mercer denied any head, neck, or back 

pain, and she was alert and oriented.

¶ 20 Elgin police officer James Picardi responded to the call at the hotel at about 9 a.m., before 

the paramedics arrived. His body camera was on. Mercer was outside the hotel, smoking. She 

was talkative, excited, and crying, and Picardi observed injuries to her eyes, lips, and nose and 

blood on her shirt. Picardi took photographs of Mercer. Mercer mentioned that she had known 

defendant for 10 years. 

¶ 21 Picardi entered Mercer’s hotel room, which was orderly, except for a red substance on the 

bed closest to the door, as well as a dry liquid on the floor between the two beds. Mercer never 

stated that she had a relationship with defendant or that they had lived together. Initially, Mercer 

did not want to go to the hospital. 

¶ 22 Picardi spoke to hotel staff and then went to the hospital to speak with Mercer. At the 

hospital, Picardi’s body camera was turned off. Picardi also went to the jail and saw defendant. 

He saw defendant’s shoes. When shown photographs that depicted blue Nike leather basketball 
2018 IL App (2d) 180575-U 

- 7 -

shoes, Picardi identified them as the shoes that defendant had worn to the jail. The shoes also had

a dried red substance on them that looked like blood spatter.

¶ 23 Elgin police officer Jason Lentz assisted officer Picardi in locating defendant. Based on 

information he had received that a woman’s vehicle was involved in the incident, Lentz determined 

that defendant might have been at the woman’s apartment. At the apartment building, Lentz rang 

the doorbells of tenants until someone answered. Upon entering the foyer, Lentz saw Angelica 

Silva and asked her if defendant was home. Based on her answer, he proceeded upstairs to the 

apartment, and, once inside, defendant was standing near the couch. The officers took defendant 

into custody. 

¶ 24 Defendant was photographed at booking. Lentz noticed a scratch with scraping and what 

appeared to be blood on defendant’s right knuckle and apparent blood on his clothing. Lentz 

collected defendant’s sweatshirt, which had spatter on the shoulder and chest areas and apparent 

blood on the sleeve. The red substance was never tested. 

¶ 25 Dr. Jason Foreman treated Mercer at the emergency room. Dr. Foreman testified that, 

when she arrived, Mercer was upset, crying, and looked uncomfortable, but she was not actively 

bleeding (although there was blood in her nose). She had bruising to her left eye and a cut on her 

upper lip; she also complained of pain to her eye, lip, and head. Mercer reported that she was 

kicked in the face multiple times, and her injuries were consistent with being kicked in the face. 

Dr. Foreman diagnosed her with a left periorbital contusion (i.e., bruising and swelling, usually 

with some kind of blunt force), facial contusion, specifically at the nose, and upper lip laceration. 

He administered two stitches to her upper lip and provided instructions for outpatient care. Mercer 

told Dr. Freeman that she did not think she had loss of consciousness. A CT scan revealed no 

injuries to Mercer’s head, teeth, cervical spine, or facial bones. 
2018 IL App (2d) 180575-U 

- 8 -

¶ 26 Angelica Silva, defendant’s ex-girlfriend, testified that, on March 13, 2018, defendant 

called her and asked her to pick him up from the Super 8 Motel. When she arrived at 8 a.m., Silva 

did not see defendant, and she left. Defendant called her again, asking her to return. She stated 

that she would pick him up after she dropped off her children at school. Silva returned to the hotel 

at 8:15 or 8:30 a.m. Defendant came to the car, and she drove him to her home. Defendant 

appeared to be intoxicated.

¶ 27 The State rested, and defendant’s motion for a directed verdict was denied.

¶ 28 Defendant, age 39, testified that, in 2008 he was convicted of attempt aggravated discharge 

of a firearm. In 2013, he was convicted of escape. 

¶ 29 In late 2015, defendant moved in with his current girlfriend, “Naomi.” He had known 

Mercer since the mid-1990s. He dated Mercer’s sister (Danielle), and his best friend (Brian 

O’Dell) was Mercer’s boyfriend. Defendant denied ever dating, having sex with, or having lived 

with Mercer.

¶ 30 Around 9 p.m. on March 12, 2018, defendant drove Mercer to the Super 8 Motel. Because 

Mercer knew that one of defendant’s best friends had died that morning, she had called defendant 

to express her condolences and offered for defendant to drink with her in a hotel room she rented. 

Defendant picked up Mercer, and they stopped at a store so Mercer could purchase three bottles 

of tequila. Defendant also testified that Mercer brought one-half ounce of cocaine and Ecstasy 

and Xanax pills. 

¶ 31 In the hotel room, defendant ingested cocaine and tequila, and Mercer ingested cocaine and 

the pills. Both drank before they fell asleep around 2 or 3 a.m. Defendant awoke at about 5 a.m. 

and looked at his phone and drank. Ten minutes later, Mercer awoke and drank. Defendant did 
2018 IL App (2d) 180575-U 

- 9 -

not want to drive, so, at 6 a.m., he called Silva for a ride. Silva told defendant that she would pick 

him up around 8:15 a.m., after she dropped off her daughter at school. 

¶ 32 Mercer ingested cocaine and went to use the bathroom. When she returned, she accused 

defendant of taking some of her drugs. As defendant got ready to leave, Mercer started “acting 

crazy.” Defendant testified that he tried to calm her down and told her to stop being loud and 

attracting potential attention. Mercer panicked and tried to search defendant for her drugs. 

Defendant testified that he did not take Mercer’s drugs.

¶ 33 Defendant became frustrated hearing Mercer nag and complain about something he 

allegedly did to her. Defendant sat on the bed nearest the door and got up to leave, and Mercer sat

in a chair by the other bed. He was getting ready to leave so he would not have to “hear[ ] her 

mouth,” but “she attempted to like come back towards me and fell down; and I checked on her. 

She was okay. *** I think she hit her face maybe like the side of her face or something.” When 

defendant started to leave, Mercer stood up “in a hurry to try to stop me.” She fell into the table 

that held the microwave and refrigerator. (Defendant also testified that she tripped over the table 

and “fell and hit herself like between the frigerator [(sic)] and the table where the TV at [(sic)].”) 

“But she jumped back up. So I didn’t think nothing [(sic)] was wrong.” Defendant does not know 

where Mercer hit herself, and he did not notice any injuries to her face. Mercer was loud, and 

defendant tried to calm her down. Defendant was upset with Mercer. They started talking again. 

At one point, Mercer left the room, stating she was going to call Naomi and she sent (from her 

phone) pictures (of defendant at the hotel doing drugs) to Naomi, Angelica, defendant’s sister, and 

defendant’s son. This upset defendant. When she returned, defendant left. Mercer had nothing 

in her hands at this time.
2018 IL App (2d) 180575-U 

- 10 -

¶ 34 Defendant drove to the Thornton’s gas station next to the hotel, but returned to the hotel, 

because he saw a police car at the station. He realized that Mercer had his other phone (he uses 

one phone for the internet and one as a “regular” phone) and returned to her room. Mercer let 

defendant in. Defendant placed his keys on the microwave or refrigerator. Mercer would not give 

him his phone, because she believed he had her drugs. According to defendant, when he tried to 

take his phone from Mercer, she took his keys, stabbed him, and scraped his wrists. (Defendant 

claimed that there was blood and that he showed his wrists the police.) He tried to calm her down, 

but she would not calm down, “[a]nd so I hit her, and she fell down, and she was holding onto my 

leg.” This occurred between the table and bed, by the refrigerator. Defendant testified that he 

punched Mercer once toward the back of her head. 

¶ 35 “And so, finally, I get my leg free from her, and I got up—well, she got up, grabbed the 

bottle that was sitting—like there’s a table between the two beds, and she grabbed the bottle, and 

I rushed her to the bed, and I got the bottle from her while she was still going crazy, and then I 

just, I started punching her.” According to defendant, Mercer tried to swing the bottle before he 

took it from her. He punched and slapped her three or four times with his right hand. Defendant 

testified that he was trying to defend himself. Defendant tried to calm down Mercer, but she kept 

scratching at him and biting at him. (On cross-examination, defendant testified that Mercer tried 

to bite him.) When asked where Mercer scratched him, defendant replied, “Just like my arms, 

chest area; back maybe. I mean, I don’t remember exactly where. She was just scratching at me 

and trying to bite at me.” When he could not get Mercer to stop biting at and scratching him, 

“that’s when I started hitting her.” The scratches led him to punch Mercer three or four times in 

the face. Defendant testified that he showed his injuries to the police and did not tell them 

“exactly” how they happened, but “I just said she attacked me.” 
2018 IL App (2d) 180575-U 

- 11 -

¶ 36 Mercer eventually left the room and, a minute or two later, defendant left. Defendant 

testified that he walked toward the front door. Once at the front hotel doorway, he saw Mercer 

standing there. When asked “what happened there?”, defendant replied: “I punched her.” Prior to 

punching her, Mercer had made no contact with defendant outside the hotel room. 

¶ 37 He left the hotel and then returned. He waited for his ride. According to defendant, when 

others were not around, Mercer was trying to get him to stay to find drugs for her. “[W]hen I was 

leaving, she was pulling me telling me, trying to get me to come back in. And I was telling her 

leave me alone; let me just go. And I did like this, like threw a punch towards her. I didn’t hit 

her, but I threw a punch towards her for her to let me go and leave me alone. We was [(sic)]

outside and then my ride came.” 

¶ 38 Defendant further testified that, at Angelica’s house, an officer asked him if he got into a 

fight earlier that day. Defendant replied that nothing had happened. Also, defendant denied that, 

while in jail, he told an officer that he did not know Mercer. Defendant further testified that he 

started living with Silva in 2015, but moved out at the end of that year and moved in with his 

current girlfriend, who is not Mercer. 

¶ 39 In rebuttal, the State called Theresa DeLaRosa, Mercer’s mother. DeLaRosa testified that 

she met defendant when he dated Mercer. Though she was aware that defendant was incarcerated 

several times during the past 10 years, DeLaRosa believed that he and Mercer were in love. They

lived together four or five years ago. DeLaRosa denied that defendant dated any of her other 

daughters. 

¶ 40 Mercer testified in rebuttal that, while in the hotel room with defendant, she never fell and 

hit her head on a table or refrigerator. She also denied grabbing defendant’s keys and stabbing 

him with them. Mercer also testified that she never grabbed a bottle and attempted to hit defendant 
2018 IL App (2d) 180575-U 

- 12 -

with it, and she denied ever scratching him or grabbing his leg and begging him not to leave. She 

explained that defendant was bigger than her and that she cannot fight him.

¶ 41 In the hospital, the officer photographed her hands. Other than a bandage over the finger 

from which hospital staff took blood, there were no other injuries to her hands. 

¶ 42 Officer Lentz testified in rebuttal that he photographed defendant during booking. He saw 

only one injury: to defendant’s knuckle. During the booking process, defendant never stated that 

Mercer attacked, stabbed, scratched, or bit him, nor did he say that he was trying to defend himself. 

Defendant told Lentz that he did not know Mercer. (Photos showed no injuries to his head, torso, 

arms, chest, or back.)

¶ 43 During closing arguments, defense counsel requested a recess, informing the court that 

defendant wanted to give his own closing argument. The court granted a recess. Upon reconvening, counsel repeated that defendant wished to give his own closing argument. Noting that 

he had been represented by counsel during trial, the court denied defendant’s request. Defendant 

stated that his reason for his request was, “because I see the [S]tate withheld a lot of evidence, 

videos.” He also asserted, “There’s videos of the evidence I’m talking about.” The trial court 

noted that the jury could view the videos that were admitted into evidence. Defendant argued that 

the State showed an “edited version” of the video and that he viewed the unedited video at the jail. 

The court noted that the jury could not view videos that were not admitted into evidence. 

Defendant replied, “but when the [S]tate sit there and lie and say there’s no video of her [(i.e., 

Mercer)] pulling me back in when I’m trying to leave--.” The court denied defendant’s request 

and recessed. Upon reconvening, defense counsel noted that defendant wished to address the 

court. He asked again to give his own closing, because the State, according to defendant, lied and:
2018 IL App (2d) 180575-U 

- 13 -

“then I got the video to support it. There was testimony about it. She [(i.e., the 

assistant State’s Attorney)] said that she asked me when I was leaving what happened. I 

said [Mercer] was pulling me to come back in, and I threw a punch at her before I actually 

got in the car. She said to the jury there was no video of that which is a blatant lie. They 

ended it after the thing she showed there, and I want to be able to show the jury that this 

lady told a flat out lie to try to get a conviction, and I seen [(sic)] the video myself with my 

attorneys.” 

¶ 44 The trial court noted that the evidence was closed and that the video that was admitted 

during trial was the only video that the jury would be allowed to view. “For them to say I’m lying, 

why they just didn’t show the video? I’m wondering why—I brought it up to my attorneys several 

times.” The court denied defendant’s request to give his own closing argument. Defendant then 

stated that he wanted to “fire” his attorneys for ineffectiveness, because the State withheld 

evidence. The court denied this request and began to tell defendant to file something, when 

defendant cut off the court, “You say I can’t file this; can’t file that. You know they lying.” The 

court instructed defendant to file the appropriate motions after trial. Defense counsel provided 

closing argument. During the State’s rebuttal argument, defendant stated, “Show the video,” and 

the court admonished him not to speak. 

¶ 45 B. Verdict and Subsequent Proceedings 

¶ 46 The jury found defendant not guilty of aggravated domestic battery and two counts of 

domestic battery. However, it found him guilty of aggravated battery (great bodily harm) and two 

counts of aggravated battery (public place of accommodation). 

¶ 47 1. Posttrial Motion and Preliminary Krankel Inquiry
2018 IL App (2d) 180575-U 

- 14 -

¶ 48 Defense counsel filed a posttrial motion and attached as an exhibit defendant’s pro se

posttrial motion alleging ineffective assistance of trial counsel. In his pro se motion, defendant 

argued that trial counsel knew the State withheld evidence and committed perjury but did nothing 

about it. He claimed the police lied to the grand jury and that counsel failed to move to dismiss. 

Defendant also asserted that counsel failed to show him discovery and that he was not given a fair 

chance to prepare for trial. Defendant also argued that trial counsel was ineffective, where the 

State elected to go to trial without giving defendant a fair chance to prepare, turned over discovery 

on the day of jury selection, and selected a trial date before discovery was complete and before 

defendant was arraigned on the indictment. Defendant also asserted that counsel was ineffective 

for failing to call witnesses to impeach Mercer with a statement she gave prosecutors stating that 

she did not remember anything. He maintained that, had Mercer been impeached, the verdict may 

have been different. Defendant also argued that trial counsel failed to object to the State’s perjury 

and misconduct regarding Lentz’s rebuttal testimony (that defendant told him he did not know 

Mercer, that he did not mention he was trying to defend himself, and that defendant never 

mentioned that Mercer attacked or pushed him), which impeached him. Finally, he asserted that 

counsel failed to move for a mistrial regarding the seating and excusing of a juror. 

¶ 49 During the posttrial hearing, defendant presented the arguments he raised in his motion. 

He argued that he told his attorneys that he did not think that it was fair that the State elected to go 

to trial when he had not seen all of the evidence. He also asserted that he pointed out to counsel 

that the police lied to the grand jury and that counsel did nothing about it. Without identifying 

specific witnesses, defendant asserted that counsel had a witness to impeach Mercer, but did not 

call that witness. He noted that Mercer was texting his sister and telling her that the State and 

police were harassing her and coercing her to do things; he asked counsel to call his sister about 
2018 IL App (2d) 180575-U 

- 15 -

this, but they did not call her. Defendant also asserted that he asked counsel to call Naomi to ask 

about it, but they did not call her. He asserted that he did not feel that his attorneys represented 

him diligently in his case.

¶ 50 When defendant brought up the video, the trial court cut him off, noting that he had to limit 

his argument to what was raised in his motion. Nevertheless, defendant argued that the State had 

impeached him on matters he brought to counsel’s attention, such as the State’s “blatant” lie (at 

trial and during closing argument) that the video did not exist. He asserted that he asked defense 

counsel to raise the issue, but they did not. Defendant also asserted that the State’s impeachment 

of him by officer Lentz was deception, because he told “sergeant Hartman” what happened instead.

¶ 51 The trial court asked one of the attorneys representing defendant if she wished to respond 

to defendant’s allegations, and counsel responded that she stood on her motion. The State did not 

substantively participate in the inquiry regarding defendant’s ineffective-assistance claims.

¶ 52 The court found that defendant had “very effective” assistance of counsel in his case. 

Addressing defendant’s claim concerning discovery, the court found that he had demanded a 

speedy trial, and did not give his trial counsel “a choice as to whether or not they were going to 

wait for more discovery[.]” The court explained that counsel has no control over which case the 

State elects to prosecute. The court also noted that trial counsel had everything that was required 

for trial and did “a very fine job” during trial. Turning next to defendant’s claim concerning an 

alleged lie the police told the grand jury, the court found that was no evidence of such in the record. 

As to the unnamed impeachment witness, the court found that it was a matter of trial strategy 

whether to call the witness. As to the dismissed juror, the court found the juror (who was a therapist 

who might have had contact with someone with whom defendant was involved) was dismissed in 

a timely fashion. 
2018 IL App (2d) 180575-U 

- 16 -

¶ 53 Addressing the video, the trial court found that defendant’s assertion that there were other 

portions of the video that would have exonerated him was “completely unsubstantiated.” It 

determined that defendant did not raise anything “that gives rise to any issue of merit.” 

Accordingly, the court denied defendant’s pro se motion (and defense counsel’s motion) and did 

not appoint Krankel counsel. 

¶ 54 2. Sentencing

¶ 55 At sentencing, the court noted that defendant was found guilty of three counts of aggravated 

battery and that the counts merged into one sentence. Defendant corrected the pre-sentence 

investigation (PSI) report. The PSI included defendant’s pro se letter to the court in which he 

claimed he asked trial counsel to show the video to support his testimony, but that counsel ignored 

him and silenced him. He repeated his allegations concerning trial preparedness, grand-jury 

testimony, and the State’s commission of “many injustices.” Defendant also listed things for 

which he claimed he was unjustly charged. 

¶ 56 Mercer testified that she started dating defendant in 2011 and ended the relationship in 

2015. She broke up with defendant after a physical altercation (he punched her twice) and his 

harassment of her in 2017. Addressing the 2018 incident at issue in this case, Mercer testified that 

she still has bruising under her eye, gets headaches, has issues with her eye, her lip is numb, and 

she had stitches in her mouth. Mercer kept going back to defendant, because she loved him and 

thought every time that it would be different. “He would be fine for a few days, and then a whole 

different person.” 

¶ 57 Elgin police detective Christopher Hughes testified about investigating defendant’s 

involvement in the 2004 shooting of Terry Johnson. Elgin police detective Ryan Davenport

testified about investigating the 2011 aggravated battery of Larisa Dungey with a brick. Elgin 
2018 IL App (2d) 180575-U 

- 17 -

police officer Shaun Schroeder testified about investigating the 2015 domestic battery of Silva. 

Elgin police officer Michael Fuller testified about investigating a domestic battery of Silva in 

February 2016. Elgin police officer Mark Sopek testified about investigating unwanted phone 

calls from defendant to Silva in June 2016. Theresa DeLaRosa testified about defendant 

threatening to kill Mercer in October 2016. 

¶ 58 In mitigation, defendant submitted three letters from his family members and updated 

information about his anger-management course. He also spoke in allocution, apologizing to 

Mercer, stating, “I know I did her wrong.” Defendant also asserted that the State and police 

overcharged him and coerced Mercer to fabricate the charges and that the police lied to the grand 

jury. He claimed that defense counsel did not investigate text messages that he told them about 

(concerning the State and police coercing Mercer) and denied that he had a romantic relationship 

with Mercer. He repeated that he knew he “did [Mercer] wrong,” but that DeLaRosa’s testimony 

that she was scared of defendant was a lie. Turning to the video, defendant noted that the State 

impeached his testimony that Mercer was pulling him as he was trying to leave, and he threw a 

punch at Mercer. Defendant denied hitting Mercer and complained that the State “waited to see 

the jury to make me out to be a liar and denied that the video existed. My attorney has got the 

video right here.” Defendant stated that he “did wrong, but they did wrong, but they going [(sic)] 

unpunished for their wrongdoing.” 

¶ 59 During its argument, the State denied that there was a video that showed Mercer begging 

defendant to stay: 

“And then he wants The Court to be convinced that there is some magical video out 

there in which Ms. Mercer is begging the defendant to stay. There is no such video, no 
2018 IL App (2d) 180575-U 

- 18 -

such video. If there was, I am pretty confident that the defense would have played it in 

their case. Guess what? They didn’t. You know why? Because it doesn’t exist.” 

¶ 60 The trial court sentenced defendant to 10 years’ imprisonment, to be served at 50%. (The 

court noted that the range was 2 to 10 years.) It found that imprisonment was necessary to protect 

the public. The court noted that defendant had 11 prior felony offenses and several pending felony 

cases, almost all of which were violent offenses. The court found that defendant is a danger to 

society, proving it “time and time again with the shooting incident, violent behavior, beats 

women.” It further determined that probation or conditional discharge would deprecate the 

seriousness of his conduct. “[T]he truth is in the video where you punched her in the head.” The 

court noted that defendant’s conduct was brazen and that he smashed the side of Mercer’s head 

with a fist “for no reason.” The court also commented that it would have been better had defendant 

not made the statement in allocution, where he stated he knew he did wrong, but blamed everyone 

else for his conduct. Reviewing his criminal history, the court noted that defendant was eligible 

for an extended sentence based on his previous conviction. 

¶ 61 At the conclusion of the sentencing hearing, defense counsel informed the court that 

defendant wished to proceed pro se. The court discharged the Public Defender. Defendant stated 

that he had proof of everything he told the court. The court informed him that he must file a written 

motion, and defendant responded, “I have got the video right here.” 

¶ 62 3. Pro Se Motion to Reconsider Sentence

¶ 63 On June 20, 2018, defendant, pro se, moved to reconsider sentence, arguing that his 

sentence was excessive, the trial court failed to give weight to his rehabilitative potential, Mercer 

was not seriously injured, and the court failed to consider in mitigation: his educational efforts; his 

conduct did not cause serious physical harm; he did not contemplate it would do so; he acted under 
2018 IL App (2d) 180575-U 

- 19 -

the strong provocation of alcohol, the victim’s attacks and threats, and the loss of his friend the 

previous day; his conduct was the result of circumstances unlikely to recur; his character and 

attitude show he is unlikely to commit another crime due to his new outlook on life; he is likely to 

comply with probation; and imprisonment would entail excessive hardship on his son. Defendant 

also asserted that the State committed perjury by denying the existence of a video showing him 

trying to leave and Mercer trying to stop him. Defendant argued that defense counsel had the 

video, they conferred that they could show it, but counsel refused to do so. Defendant asserted 

that he had no disciplinary history while incarcerated and that he took an anger-management 

course. He argued the trial court abused its discretion in its failure to acknowledge the State’s 

perjury against him, its improper double enhancement of the sentences, and its unfair decisions 

against him. He also complained that the court failed to consider his letter.

¶ 64 At the hearing on defendant’s motion, defendant noted that the State had a copy of the CD 

and that he wanted to play the entire disk. The trial court declined his request, noting that it would 

not consider evidence not presented at trial. (The State also objected, noting the only a portion of 

the video was played at trial, not the entire video.) The State informed the court that it had 

reviewed the entire video (“to see if maybe I missed something[,] and the things that the defendant 

alleges in his motion are not there”) and that the “only thing that I missed is that there was another 

incident outside of the Super 8 Motel that could have been presented and wasn’t” and maintained 

that, if there was something showing what defendant believed the video showed, defense counsel 

would have shown it. Later, the State asserted that, “[t]here was nothing on that video that shows 

that Ms. Mercer was holding the defendant back or begging him to stay.” 

¶ 65 Defendant asserted that, if the court viewed the video (“[i]t’s probably like a minute”), it 

would realize that the events that the State denied existing actually occurred and that “my attorney 
2018 IL App (2d) 180575-U 

- 20 -

at the time [and at the sentencing hearing] said that they could have showed [(sic)] it but for some 

reason they didn’t.”

¶ 66 When defendant argued that Mercer’s injury did not constitute great bodily harm, the trial 

court commented that it saw defendant “hit somebody for no reason on the video.” Defendant 

responded that he did it, but it was not for no reason; “[n]ot a good reason but it was out of anger.”

¶ 67 The trial court denied defendant’s motion, but granted his request for counsel. Defendant 

appeals.

¶ 68 II. ANALYSIS

¶ 69 Defendant argues that the trial court failed to give due consideration to his claims 

concerning the unedited surveillance video and that this constituted reversible error. Specifically 

he maintains that the trial court: (1) did not conduct a proper preliminary Krankel inquiry regarding 

his pro se posttrial motion; and (2) refused to consider the unedited video recording in denying his 

motion to reconsider sentence. (Again, the uncut version of the surveillance video is not part of 

the record on appeal.) For the following reasons, we reject defendant’s arguments. 

¶ 70 A. Preliminary Krankel Inquiry 

¶ 71 Defendant asserts that the preliminary Krankel inquiry was inadequate, because the trial 

court did not explore the facts underlying his ineffective-assistance claim as to the video. 

¶ 72 We review de novo whether the trial court properly conduced a Krankel inquiry. People 

v. Roddis, 2020 IL 124352, ¶ 33. If the trial court did so and reached a determination on the merits 

of the defendant’s ineffective-assistance claims, we will reverse only if the determination was 

manifestly erroneous. See People v. McCarter, 385 Ill. App. 3d 919, 941 (2008) (trial court’s 

ruling in preliminary Krankel inquiry that is based on its assessment that ineffective-assistance 
2018 IL App (2d) 180575-U 

- 21 -

claim was “spurious” will be reversed where it is manifestly erroneous). Manifest error is error 

that is “clearly evident, plain, and indisputable.” People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997). 

¶ 73 A common-law procedure has developed following our supreme court’s Krankel decision, 

and it “is triggered when a defendant raises a pro se posttrial claim of ineffective assistance of trial 

counsel.” People v. Jolly, 2014 IL 117142, ¶ 29. Under the common-law procedure, the trial court 

must first (in what is called the preliminary inquiry), at a minimum (People v. Roddis, 2020 IL 

124352, ¶ 54) examine the factual basis of the defendant’s claim. People v. Moore, 207 Ill. 2d 68, 

77-78 (2003). Further, “a trial court [is] able to consider the merits in their entirety when 

determining whether to appoint new counsel[.]” (Emphasis in original.) Roddis, 2020 IL 124352, 

¶ 61. If the court determines that the claim lacks merit or pertains only to matters of trial strategy, 

it need not appoint new counsel and may deny the defendant’s pro se motion. Moore, 207 Ill. 2d

at 78. “A claim lacks merit if it is conclusory, misleading, or legally immaterial or does not bring 

to the trial court’s attention a colorable claim of ineffective assistance of counsel.” People v. 

McLaurin, 2012 IL App (1st) 102943, ¶ 40. 

¶ 74 However, if the allegations show “possible neglect” of the case, then new counsel should 

be appointed. Id. Following the appointment of counsel (Krankel counsel), the case proceeds to 

the second Krankel stage, which consists of an adversarial and evidentiary hearing on the 

defendant’s claims and during which Krankel counsel represents the defendant. People v. Downs, 

2017 IL App (2d) 121156-C, ¶¶ 43, 47 (Krankel counsel acts as “an advocate for the defendant, 

not for the State or the trial court”) (emphasis omitted). At the second-stage adversarial hearing, 

Krankel counsel must independently review the defendant’s pro se ineffective-assistance 

allegations and then must present any nonfrivolous claims (i.e., those with an arguable basis in law 

or in fact) to the trial court. Id. ¶¶ 49-50, 54. 
2018 IL App (2d) 180575-U 

- 22 -

¶ 75 This case, again, involves a preliminary Krankel inquiry. The preliminary inquiry’s 

purpose is to allow the trial court to ascertain the factual basis for the defendant’s claims and to 

afford the defendant the opportunity to explain and support his or her claims. People v. Ayres, 

2017 IL 120071, ¶ 24. In this way, the court can determine whether to appoint independent counsel 

to argue the defendant’s claims. People v. Patrick, 2011 IL 111666, ¶ 39. “By initially evaluating 

the defendant’s claims in a preliminary Krankel inquiry, the circuit court will create the necessary 

record for any claims raised on appeal.” Jolly, 2014 IL 117142, ¶ 38; see also People v. Jackson, 

2020 IL 124112, ¶ 95. “[T]he inquiry is not burdensome upon the circuit court, and the facts and

circumstances surrounding the claim will be much clearer in the minds of all involved when the 

inquiry is made just subsequent to trial or plea, as opposed to years later on appeal.” Ayres, 2017 

IL 120071, ¶ 21. The trial court can “base its evaluation of the defendant’s pro se allegations of 

ineffective assistance on its knowledge of defense counsel’s performance at trial and the 

insufficiency of the defendant’s allegations on their face.” Moore, 207 Ill. 2d at 79. The 

“preliminary Krankel inquiry should operate as a neutral and nonadversarial proceeding” and, 

because the defendant is not appointed counsel at this stage, the State’s participation, if any, must 

be de minimus. Jolly, 2014 IL 117142, ¶ 38. 

¶ 76 As the defendant need only raise a colorable claim of ineffective assistance at a preliminary 

Krankel inquiry, the correct inquiry, in determining whether there was “possible neglect,” is to ask 

whether defense counsel’s performance was arguably ineffective. See McLaurin, 2012 IL App 

(1st) 102943, ¶ 40 (claim lacks merit if it “does not bring to the trial court’s attention a colorable 

claim of ineffective assistance of counsel”). 

¶ 77 Generally, claims of ineffective assistance of counsel are considered under the familiar 

standard established in Strickland v. Washington, 466 U.S. 668, 687-94 (1984). People v. Cherry, 
2018 IL App (2d) 180575-U 

- 23 -

2016 IL 118728, ¶ 24. To prevail on a claim of ineffective assistance under Strickland, a defendant 

must show both that: (1) counsel’s performance was deficient; and (2) the deficient performance 

prejudiced the defendant. Id. “In other words, the defendant must demonstrate that counsel’s 

performance fell below an objective standard of reasonableness and that, but for counsel’s 

unprofessional errors, there is a reasonable probability that the result of the proceeding would have 

been different.” Downs, 2017 IL App (2d) 121156-C, ¶ 39. A reasonable probability is “a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The 

defendant must satisfy both prongs of Strickland; if the defendant fails to satisfy either prong, he 

or she cannot prevail on his or her claim. Downs, 2017 IL App (2d) 121156-C, ¶ 39. 

¶ 78 Here, in his pro se motion for a new trial, defendant raised several allegations of ineffective 

assistance of trial counsel. During the preliminary Krankel inquiry, trial counsel stood on her 

motion and did not address defendant’s assertions. At the conclusion of the Krankel inquiry, the 

trial court denied defendant’s motion, finding that he had “very effective” assistance of counsel

and that defendant had not raised “any issue of merit.” Specifically addressing the video, the court 

determined that defendant’s claim that the unedited video would have exonerated him was 

“completely unsubstantiated.” 

¶ 79 Defendant notes that the trial court did not have any interchange at all with defense counsel, 

who stood on her motion. Thus, defendant argues, the court did not determine whether or not 

defense counsel had reviewed the uncut recording. Defendant also complains that the court did 

not discuss with him the specifics about what he was alleging the uncut version of the video 

actually portrayed. He claims that the complete recording would have shown other events that 

exonerated him or, at least, that would have supported his version of the events. 
2018 IL App (2d) 180575-U 

- 24 -

¶ 80 Defendant further notes that defense counsel did not even provide assurance to the court 

that she had viewed the entirety of the video. He asserts that there was no justification for the 

court’s failure to explore the contents of the complete recording with defendant or defense counsel 

or, alternatively, for the court itself to view the entire video in assessing defendant’s 

ineffectiveness claim. Defendant argues that the trial court failed to make any factual inquiry at 

all as to whether the unedited video contains exculpatory evidence. Addressing the opportunity to 

present his claim to the court, defendant asserts that he repeatedly advanced his pro se claim to the 

effect that the unedited video would demonstrate the fundamental untruthfulness of the State’s 

case against him. This is, he maintains, a facially-meritorious allegation that was rejected by the 

trial court without any basis, other than to note that defendant’s exoneration claim was

unsubstantiated. The substantiation, defendant urges, would have been accomplished by the trial 

court’s simple viewing of the recording. Instead, he notes, the court rejected his claim on its merits 

without conducting any investigation or having any relevant knowledge regarding those merits. 

Defendant also claims that his assertion that the unedited video would have been exculpatory is 

not disproven by the record. He denies that his claims about the video relate only to events that 

occurred after the conduct for which he was convicted. In support, he points to the fact that, when

he first raised the issue, he had a “much broader complaint about the video evidence” and that the 

event to which he testified would have been supported by the video. Thus, in his view, he claimed 

that the unshown video “was fundamentally crucial to his case.” 

¶ 81 The State responds that the trial court adequately inquired into defendant’s claim 

concerning the video and that the court was not required to have an exchange with defense counsel. 

The trial court, according to the State, permitted defendant to speak to his allegations and gave 

him an adequate opportunity to provide factual detail concerning his allegations; it also gave 
2018 IL App (2d) 180575-U 

- 25 -

defense counsel the opportunity to respond, which counsel declined. The court, it asserts, 

maintained a neutral non-adversarial proceeding. The State further notes that the trial court was 

already familiar with the substance of defendant’s complaint regarding the unedited video. 

¶ 82 The State also contends that the trial court properly decided that defendant’s allegations 

lacked merit and that this finding was not manifestly erroneous. It argues that defense counsels’ 

decision concerning the video was one of trial strategy and, thus, could not serve as the basis of a 

Krankel claim. The video incident, the State notes, allegedly portrays an event that occurred after

defendant had already completed the offenses for which he was charged and ultimately convicted. 

Thus, it would not have exonerated him of kicking Mercer in the room and the two incidents 

captured on the video. The State maintains that counsel had a sound trial strategy in not showing 

a potential fourth confrontation between the physically smaller and bloodied Mercer and 

defendant.

¶ 83 We conclude that, although the trial court did not conduct an adequate preliminary Krankel

inquiry, under the circumstances of this case, there was no prejudice to defendant, and the court 

did not manifestly err in denying defendant’s pro se motion alleging ineffective assistance of trial 

counsel. See Moore, 207 Ill. 2d at 80 (citing cases applying harmless-error analysis to assess trial 

court’s denial, in preliminary Krankel inquiry, of a defendant’s pro se posttrial ineffectiveassistance claims); see also Jackson, 2020 IL 124112, ¶¶ 124-29 (applying harmless-error review 

of preliminary Krankel inquiry, where the trial court had erroneously permitted the State’s 

adversarial participation; prosecutor’s remarks did not distort the record and preclude appellate 

review of the defendant’s claims).

¶ 84 The entire inquiry was not properly conducted and, thus, not entirely adequate. As 

defendant concedes, the method for conducting a preliminary inquiry is not precisely defined. 
2018 IL App (2d) 180575-U 

- 26 -

However, case law instructs that, during a preliminary Krankel inquiry, “some interchange 

between the trial court and trial counsel regarding the facts and circumstances surrounding the 

allegedly ineffective representation is permissible and usually necessary in assessing what further 

action, if any, is warranted on a defendant’s claim.” Jolly, 2014 IL 117142, ¶ 30; see also Jackson, 

2020 IL 124112, ¶ 110; Moore, 207 Ill. 2d at 78 (“[t]rial counsel may simply answer questions and 

explain the facts and circumstances surrounding the defendant’s allegations.”). “The trial court 

may inquire of trial counsel about the defendant’s pro se allegations, and the court may briefly 

discuss the allegations with the defendant. Also, the trial court may base its determination on its 

knowledge of defense counsel’s performance at trial and the facial insufficiency of the defendant’s 

allegations.” Jackson, 2020 IL 124112, ¶ 110; see also Ayres, 2017 IL 120071, ¶ 12. There is no 

requirement that defense counsel respond to the allegations. Indeed, the trial court may rely on its 

knowledge of defendant’s allegations, the trial itself, and trial counsel’s performance. Id.; see,

e.g., People v. Banks, 237 Ill. 2d 154, 214-15 (2010) (holding that court, at preliminary Krankel

inquiry, adequately inquired into the defendant’s claims; even though court asked defense counsel 

only whether he had examined any possible witnesses or other avenues, where issue had twice 

previously been presented and counsel had previously informed that court that he had discussed 

the witness issue at length with the defendant but counsel did not want to present the witness, court 

was already familiar with substance of the defendant’s complaint and inquiry “did not need to be 

lengthy” and, thus, was sufficient).

¶ 85 Here, defendant first raised the incident he alleges is shown in the unedited video during 

cross-examination. He testified that, as he was leaving the hotel and after the events for which he 

was charged occurred, Mercer “was pulling me telling me, trying to get me to come back in. And 

I was telling her leave me alone; let me just go. And I did like this, like threw a punch towards 
2018 IL App (2d) 180575-U 

- 27 -

her. I didn’t hit her, but I threw a punch towards her for her to let me go and leave me alone. We 

was [(sic)] outside and then my ride came.” Next, during closing arguments, defendant asserted 

that he wanted to give his own closing argument, because the State had lied in stating that there 

was no video of Mercer “pulling me back in when I’m trying to leave” and that the unedited video, 

which he had viewed with his attorneys while in jail, supported his claim. He also asserted that he 

brought up several times to his attorneys the issue of showing the unedited video and that he 

wanted to “fire” trial counsel for ineffective assistance. At the Krankel inquiry, defendant asserted 

that he had asked trial counsel to raise the video issue, but counsel did not. Counsel, in response

to the court’s inquiry if she wished to address to defendant’s allegations, stood on her motion. The 

trial court denied defendant’s motion, finding that he had “very effective” assistance of counsel 

and that his assertion that there existed video that would exonerate him was “completely 

unsubstantiated” and his motion raised no meritorious issues. 

¶ 86 We conclude that, at the point that counsel answered that she stood on her motion, it was 

incumbent on the trial court, at a minimum, to ask counsel if she had viewed the unedited video or 

to view it itself. Its failure to make this obvious inquiry of counsel (or to view the evidence itself)

renders inadequate this aspect of the preliminary inquiry. However, we disagree with defendant 

that the trial court did not fully explore the facts underlying his claim at the preliminary inquiry. 

Even though the court did not even ascertain whether defense counsel viewed the video (or that 

the court itself did not view the video), the record shows that, during closing arguments, defendant 

stated that he had viewed the video with his attorneys while he was in jail. Although it is unclear 

to us why defense counsel did not respond to defendant’s claims at the preliminary Krankel

inquiry, especially when it is generally expected that counsel would do so, and, again, why the 

trial court did not inquire of counsel or view the video itself, in this case, these omissions are
2018 IL App (2d) 180575-U 

- 28 -

inconsequential. Notwithstanding trial counsel’s silence on the video issue, defendant himself 

stated that he had viewed the video with counsel; further, defendant characterized the portion not 

shown to the jury as depicting him acting defensively and attempting to strike Mercer as he was 

leaving the hotel, which occurred after the batteries for which he was convicted. This was 

sufficient information from which the trial court could assess whether defendant had shown 

possible neglect by trial counsel. Defendant offers no more. He did not, as he asserts, make a 

broader complaint about the unedited video. His claim centered on Mercer’s alleged pulling of 

him before he left the hotel. Defendant does not allege, for example, that other portions of the 

unedited video show that he acted defensively when he punched Mercer’s head into the glass door 

in the hotel lobby (indeed, the video shown at trial refutes this assertion). 

¶ 87 We further conclude that, even though the trial court conducted an inadequate inquiry,

there was no prejudice to defendant and, thus, the trial court did not manifestly err in denying 

defendant’s pro se motion. The events allegedly depicted in the unedited video would not have 

exonerated defendant, where, as noted, they occurred after the events for which he was charged 

and convicted. Generally, the questions whether to call certain witnesses, whether to present an 

alibi defense, and what matters to object to and when to object are matters of trial strategy reserved 

to trial counsel’s discretion. Jackson, 2020 IL 124112, ¶ 106; see also People v. West, 187 Ill. 2d 

418, 432, (1999) (decisions concerning which witnesses to call and what evidence to present are 

matters of trial strategy and are generally immune from claims of ineffective assistance of counsel). 

Thus, they “cannot serve as the basis of Krankel claim.” Jackson, 2020 IL 124112, ¶ 106 

(preliminary Krankel inquiry). Defense counsel could have reasonably determined that the video 

claim was not meritorious. This was a clearly a decision concerning trial strategy and cannot show 
2018 IL App (2d) 180575-U 

- 29 -

deficient performance or prejudice resulting from the failure to show the video during trial, as it 

would not have exonerated defendant. Defendant failed to show possible neglect by trial counsel. 

¶ 88 In summary, although we cannot condone the trial court’s lack of inquiry in the face of trial 

counsel’s silence, given the lack of prejudice to defendant under the circumstances of this case, 

the trial court did not err in denying defendant’s pro se motion alleging ineffective assistance of 

trial counsel. 

¶ 89 B. Pro Se Motion to Reconsider Sentence 

¶ 90 Next, defendant argues that the trial court committed reversible error when it refused to 

consider the unedited video at the hearing on his pro se motion to reconsider sentence. He contends 

that the court’s belief that it could not consider evidence outside the record was erroneous. The 

State responds that no error occurred and, alternatively, even if it did, any error was harmless. We 

agree with the State’s harmless-error argument.

¶ 91 In his pro se motion to reconsider sentence, defendant complained that trial counsel did not 

show the unedited video, which allegedly depicted him trying to leave and Mercer trying to stop 

him. At the hearing on the motion, defendant noted that the State had a copy of the disk and that 

he wanted to play it. The court declined defendant’s request, noting that it would not consider 

evidence not presented at trial. The State informed the court that it had viewed the entire video 

and that it depicted another incident, outside the hotel, but it did not show that Mercer was holding 

defendant back, “begging him to stay, or “the things that defendant alleges in his motion.” 

Defendant again asked the court to view the video and asserted that defense counsel told him that 

they could have shown it, but they did not. The trial court persisted in disallowing the video.

¶ 92 Here, defendant contends that the trial court erred in refusing to consider the evidence 

contained in the full video recording on the basis that it had not been previously introduced into 
2018 IL App (2d) 180575-U 

- 30 -

evidence. The court relied on the edited portion of the video in denying defendant’s motion to 

reconsider sentence. Defendant urges that the reasons for his actions cannot be determined without 

consideration of the entire context of those actions, which would be shown by the complete 

recording. He notes that the uncut video was produced in court at the hearing on the motion to 

reconsider. Defendant also notes that the trial court imposed the maximum extended-term 

sentence in this case, indicating that its reason for doing so was the protection of the public. He 

reasons that the court was strongly influenced by, and heavily relied upon (by noting that “I saw 

you hit somebody for no reason on the video”), the portion of the video that the State chose to put 

into evidence. Defendant believes that the full recording may have undercut the State’s evidence. 

He also contends that the video evidence was relevant, where it would have supported his position 

that the edited-out portion showed he was acting in response to Mercer’s conduct and would have 

constituted strong provocation evidence to be considered in mitigation. See 730 ILCS 5/5-5-

3.1(a)(2), (3) (West 2018) (factors in mitigation include that “defendant did not contemplate that 

his [or her] criminal conduct would cause or threaten serious physical harm to another” and that 

“the defendant acted under a strong provocation”).

¶ 93 “Strong provocation” is a mitigating factor to be considered at sentencing, but is not 

defined in the Unified Code of Corrections. 730 ILCS 5/5-5-3.1(a)(3) (West 2010). “Serious 

provocation” is a mitigating factor to be considered at trial in reducing a charge of first-degree 

murder to second-degree. 720 ILCS 5/9-2(a)(1) (West 2010). As the State notes, the “strong 

provocation” to be considered at sentencing differs from the “serious provocation” to be 

considered at trial, in that “strong provocation” “encompasses a wider range of conduct” than 

“serious provocation.” People v. Powell, 2013 IL App (1st) 111654, ¶ 36. “Strong provocation” 

must be direct and immediate provocation. Id. Here, in denying defendant’s motion to reconsider 
2018 IL App (2d) 180575-U 

- 31 -

sentence, the trial court found that defendant “hit [Mercer] for no reason on the video,” thus, 

rejecting his assertion that he was strongly provoked when he punched her (in the videos admitted 

at trial).

¶ 94 Initially, we note that the trial court erred in determining that it could not view the unedited 

video, because it was not admitted at trial. The ordinary rules of evidence that govern at trial are 

relaxed during the sentencing hearing. People v. Blanck, 263 Ill. App. 3d 224, 234 (1994). The 

only requirement for admission is that the evidence be reliable and relevant as determined by the 

trial court within its sound discretion. Id.

¶ 95 That having been said, “the purpose of a motion to reconsider sentence is not to conduct a 

new sentencing hearing, but rather to bring to the circuit court’s attention changes in the law, errors 

in the court’s previous application of existing law, and newly[-]discovered evidence that was not 

available at the time of the hearing.” People v. Burnett, 237 Ill. 2d 381, 387 (2010). Ordinarily, 

then, a trial court’s refusal to allow evidence that was available but not previously introduced at 

the original sentencing hearing would not be error. Id. Under the unique circumstances of this 

case, however, we reach a different conclusion. Here, the trial court’s refusal to allow the 

additional evidence was an abuse of discretion, in that the court had specifically advised defendant, 

when it denied defendant’s Krankel motion, that he could present the unedited video at sentencing. 

That hearing was defendant’s final opportunity to raise the issue before the trial court, but the trial 

court disallowed it.

¶ 96 We further hold that any error in the trial court’s refusal to consider the unedited video as 

mitigation evidence was harmless. See People v. Shatner, 174 Ill. 2d 133, 156 (1996) (admission 

of evidence at sentencing may be harmless). Defendant’s assertions concerning the unedited video 

are that it depicts the time immediately before he got into a car, with Mercer pulling on him before 
2018 IL App (2d) 180575-U 

- 32 -

he punched her in reaction. However, the videos shown at trial and Mercer’s testimony that 

defendant kicked her in the head all occurred inside the hotel and well before defendant got into a 

car. Furthermore, in none of the videos shown at trial did Mercer pull on the defendant before he 

punched her. Rather, she directed or pushed him away. Defendant’s claim concerning an event 

that occurred just prior to him entering a car was an event that occurred after he had completed the 

acts giving rise to his convictions. Even assuming that his claim is true and Mercer later pulled 

him and this provoked another strike from defendant, there is no reasonable probability that this 

would have constituted sufficient mitigating evidence to cause the trial court to impose a lesser

sentence. 

¶ 97 We reject defendant’s assertion in his reply brief that the unedited video does not merely

show events after the conduct for which he was convicted and that he made a much broader 

complaint about the video evidence before the trial court. He points to his comments at the hearing 

that the video supported all of his claims. However, the claim about Mercer’s pulling him back as 

provocation for hitting her before he got into the car was the only specific claim defendant made 

about the unedited video. For example, even his assertions concerning the State’s alleged perjury 

pertain to the video allegedly showing him trying to leave and Mercer stopping him. Neither 

before the trial court nor on appeal does defendant specify what exonerating or mitigating

evidence, other than the incident before he left the hotel, is shown in the unedited video that 

impacts the earlier events. Defendant asks this court to speculate that such evidence exists merely 

from the fact that there exist portions of a surveillance video that were not shown at trial and from 

his vague claim that they support his general assertions. We decline to take this leap.

¶ 98 In summary, there is no reasonable probability that the trial court would have imposed less 

than the maximum sentence had it viewed the unedited video. Thus, we conclude that the trial 
2018 IL App (2d) 180575-U 

- 33 -

court’s erroneous refusal to view and consider the unedited video was harmless and that it did not 

err in denying defendant’s pro se motion to reconsider sentence.

¶ 99 III. CONCLUSION

¶ 100 For the reasons stated, the judgment of the circuit court of Kane County is affirmed. 

¶ 101 Affirmed.