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NOTICE

Decision filed 12/28/07. The text of

this decision may be changed or

corrected prior to the filing of a

Peti tion for Rehearing or the

disposition of the same.

NO. 5-07-0182

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

 Plaintiff-Appellee, ) Fayette County.

)

v. ) No. 06-CF-108

)

RODNEY D. TEDRICK, ) Honorable

) Michael D. McHaney,

 Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

JUSTICE DONOVAN delivered the opinion of the court:

Defendant, Rodney D. Tedrick, was convicted, after a bench trial in the circuit court

of Fayette County, of domestic battery under section 12-3.2(a)(1) of the Criminal Code of

1961 (720 ILCS 5/12-3.2(a)(1) (West 2006)), and he was sentenced to five years'

imprisonment. Defendant appeals, arguing he was denied a fair trial because he was

shackled and dressed in an orange jail uniform at the trial. He further contends he is entitled

to additional sentencing credit for time served in custody after his arrest on July 9, 2006.

On July 9, 2006, the 16-year-old victim decided to drive to her grandmother's house.

She encountered Jake and Zach, who were looking for her father, defendant. The victim

drove them to Vandalia Lake, where she believed her father might be, arriving after 12 a.m.

Defendant, who was fishing, was present at the lake site along with Matt, Tracy, another

individual, and a two-year-old girl.

Defendant had been drinking beer and appeared to be intoxicated. At some point,

defendant began pushing the victim around in a playful manner until she told him to stop.

For some unknown reason, defendant then took off his pants and began walking around half
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naked. The victim asked him several times to put his pants back on. Instead of doing so,

defendant became angry and slapped the victim. She picked up the little girl and told Jake

and Zach she wanted to leave. Defendant grabbed her, slapped her, and then took the child

away from her. Matt came to her rescue, which caused defendant to start hitting Matt. The

victim, in turn, tried to push defendant off Matt, but defendant turned around and struck her

on the head with his fist. The victim testified that it "really hurt" when defendant hit her and

that she cried profusely in response. Defendant punched Matt several more times while the

victim was on the ground screaming for him to stop. She testified that defendant then kicked

her while she was on the ground. The victim ran to her car and drove to her grandmother's

place to call for help. Her aunt decided to call the police. When the responding officer

arrived, he found Matt bleeding from his nose and mouth and defendant asleep in a camper,

naked from the waist down. He asked defendant to get dressed and placed him under arrest.

According to the officer, defendant appeared to be quite intoxicated and was making little

sense.

Defendant testified he had lost about 50 pounds when he was last in jail and on July

9 was wearing clothes that he had worn before he went to prison. Defendant had just been

released from prison two days earlier. Defendant had helped Matt move some furniture

earlier in the day before they went to the lake. Defendant had not seen his daughter earlier

in the day and was upset that she had been out past curfew the night before. When the victim

arrived at the lake site, he and she got into "a little bit of an argument." Defendant told her

that if she could not mind him, she should go home to her mother's house. Defendant stated

that she kept arguing and that he "pecked her on top of her head." Defendant claimed that

she threw herself down on the ground in response and that she was not hurt. Defendant

denied hitting her and stated he was just trying to "tell her to stop." Matt ran up and knocked

him over a picnic table. When he got up, his pants had fallen off. Defendant responded to
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the attack by hitting Matt three or four times until he went down on the ground. He then

picked up his pants and went into the trailer and fell asleep. He denied taking off his pants

in front of the victim or that he smacked or kicked her.

The court specifically found the testimony of the State's witnesses to be credible, as

opposed to the testimony of defendant. The court noted that defendant admitted to being

intoxicated at the time of the offense and later passing out and further admitted to making

contact with the victim's head. The court also noted that at the trial defendant's

demonstration–using his knuckles to strike the witness rail as he allegedly had done to the

victim's head–was "alarming in its force." The court therefore concluded that the State had

proved beyond all reasonable doubt that defendant was guilty of domestic battery.

Defendant argues on appeal that he was denied a fair trial because he was shackled

at the trial and wore an orange jail uniform, as pointed out in the victim's identification

testimony. The State correctly points out, however, that defendant forfeited any claim of

error by failing to object at the trial to the wearing of the uniform or shackles.

Before a defendant may be restrained at a trial, the trial court must hold a hearing on

the issue, consider various factors in determining the necessity of the restraint, give the

defendant an opportunity to object, and state on the record its reasons for employing the

restraints. People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977). The shackling of a

defendant should be avoided because "(1) it tends to prejudice the jury against the accused;

(2) it restricts his ability to assist his counsel during trial; and (3) it offends the dignity of the

judicial process." Boose, 66 Ill. 2d at 265, 362 N.E.2d at 305. The wearing of restraints

without a showing of necessity on the record, however, is not per se reversible error if the

defendant never objects. People v. Allen, 222 Ill. 2d 340, 353-54, 856 N.E.2d 349, 356-57

(2006); see People v. DuPree, 353 Ill. App. 3d 1037, 820 N.E.2d 560 (2004). The same is

true for appearing at a trial in jail clothing. Estelle v. Williams, 425 U.S. 501, 512-13, 48 L.
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Ed. 2d 126, 135, 96 S. Ct. 1691, 1697 (1976); Allen, 222 Ill. 2d at 354-55, 856 N.E.2d at

357. The State concedes it was error for the trial court to allow defendant to appear in

handcuffs without first holding a hearing concerning the restraints, but as the State further

points out, under Allen, defendant's failure to object resulted in the forfeiture of that error.

Defendant's only hope for relief would be to prove the existence of plain error. Defendant

argues that his appearance in handcuffs and jail clothing at his bench trial amounted to plain

error because the evidence was closely balanced. The record, however, shows otherwise;

this was not, as defendant contends, a close domestic battery case. Not only did the police

officer's testimony lend credence to the victim's version of the events, but defendant admitted

striking the victim on the head. Defendant might have denied some of what the victim said

he had done to her, such as slapping her more than once and kicking her, but the case ceased

to be a true swearing contest when he described and demonstrated what he did do.

Defendant also admitted that he would "smack" the victim if she dared approach him while

angry, and his demonstration at the trial of how he hit her was, according to the court's

observations, "alarming in its force." Defendant failed to show that his appearance in

handcuffs and jail clothing constituted plain error on the ground of the evidence being

closely balanced.

We also agree that defendant failed to prove that he is entitled to relief under the

second prong of the plain error test, because, just as in Allen, he does not, and cannot, point

to anything in the record showing that his presumption of innocence, his ability to assist his

counsel, or the dignity of the proceedings was compromised. See Allen, 222 Ill. 2d at 353,

856 N.E.2d at 357; see also People v. Woods, 373 Ill. App. 3d 171, 176-77, 866 N.E.2d

1205, 1209-10 (2007).

Defendant next asserts he received the ineffective assistance of counsel by counsel's

failure to object to defendant's appearance in handcuffs and jail clothing at the trial. In order
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to prove the ineffectiveness of counsel, a defendant must show that counsel's representation

was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S.

668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish prejudice, the

defendant must show that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Strickland,

466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Defendant's ineffective-assistance

claim here must fail because there is no reasonable probability that he would have been

found not guilty if counsel had objected to the handcuffs and jail clothing. The victim's

version of events was the more credible one, especially considering defendant's drunken state

at the time of the offense. More importantly, defendant essentially admitted committing the

crime. We agree that in light of all of the testimony presented, the trial court would have

found defendant guilty regardless of whether he was restrained or how he was attired. We

therefore find no reason to grant defendant a new trial on this basis. See DuPree, 353 Ill.

App. 3d at 1045, 820 N.E.2d at 566-67.

Defendant next argues he is entitled to 219 days of sentencing credit for all of the time

served in custody beginning on the date of his arrest on July 9, 2006. A defendant is entitled

to one day of credit against his sentence for every day or portion of a day he spends in

custody on the offense between the date of his arrest and his sentencing. People v. Ligons,

325 Ill. App. 3d 753, 759, 759 N.E.2d 169, 174 (2001). The rule applies if a defendant never

posts bond on one or more offenses and is in simultaneous custody on more than one offense.

People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996). Defendant was arrested on

July 9, 2006, and sentenced on January 24, 2007. He therefore is entitled to only 200 days

of sentencing credit.

For the forgoing reasons, we affirm the judgment of the circuit court of Fayette

County convicting defendant of domestic battery, but we remand this cause for the correction
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of the mittimus to award defendant the proper amount of sentencing credit.

Affirmed in part; cause remanded.

GOLDENHERSH and SPOMER, JJ., concur.
 NO. 5-07-0182

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

 Plaintiff-Appellee, ) Fayette County.

)

v. ) No. 06-CF-108

)

RODNEY D. TEDRICK, ) Honorable

) Michael D. McHaney,

 Defendant-Appellant. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: December 28, 2007

___________________________________________________________________________________

Justices: Honorable James K. Donovan, J.

Honorable Richard P. Goldenhersh, J., and

Honorable Stephen L. Spomer, J.,

Concur

___________________________________________________________________________________

Attorneys Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Assistant Defender, Office of

for the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite

Appellant #300, Mt. Vernon, IL 62864

___________________________________________________________________________________

Attorneys Hon. Steve Friedel, State's Attorney, Fayette County Courthouse, Vandalia, IL 62471;

for Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Deirdre A. Hosler,

Appellee Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois

Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________