Illinois Official Reports

Appellate Court

People v. Sanders, 2020 IL App (3d) 180215

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JASON D. SANDERS, Defendant-Appellant.

District & No. Third District 

No. 3-18-0215

Filed December 31, 2020

Decision Under 

Review

Appeal from the Circuit Court of Iroquois County, No. 17-CF-04; the 

Hon. James B. Kinzer, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

James E. Chadd, Thomas A. Karalis, and Andrew J. Boyd, of State 

Appellate Defender’s Office, of Ottawa, for appellant.

James Devine, State’s Attorney, of Watseka (Patrick Delfino, Thomas 

D. Arado, and Mark A. Austill, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel 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.
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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:

“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. ***

* * *
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*** 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. 

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, 

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 
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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 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 consecutive 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), 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.

¶ 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 
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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, 466 U.S. 668, 687 (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, 316 Ill. App. 3d 

901, 913 (2000).

¶ 13 In general, wide latitude is afforded counsel in closing arguments. People v. Crawford, 343 

Ill. App. 3d 1050, 1058 (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.” Id. Improper closing arguments will not result in reversal unless they 

prejudice the 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, 121 Ill. 

2d 401, 445 (1988). Facts not in evidence may not be argued. People v. Marshall, 2013 IL App 

(5th) 110430, ¶ 15. 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, 200 Ill. App. 3d 268, 275 (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 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 
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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.

¶ 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 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, 101 Ill. 2d 44, 66 

(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 
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prejudice the defendant); People v. Caffey, 205 Ill. 2d 52, 105 (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, 86 Ill. App. 2d 163, 

173 (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, 379 Ill. App. 3d 91, 99 (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, 

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://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., 

392 Ill. App. 3d 965, 968 (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).

¶ 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.
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¶ 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 extralegal 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, 379 Ill. App. 3d at 99; Michael H., 392 Ill. App. 3d at 

968; see generally In re A.C., 2016 IL App (1st) 153047, ¶ 47 (“ ‘[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., 357 Ill. App. 3d 381, 395 (2005))).