2024 IL App (4th) 230690-U 

NO. 4-23-0690 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

ERNEST D. STARKS, 

Defendant-Appellant. 

)

) 

) 

) 

) 

) 

) 

)

Appeal from the

Circuit Court of

Peoria County 

No. 16CF706 

Honorable 

Kevin W. Lyons, 

Judge Presiding.

 

PRESIDING JUSTICE CAVANAGH delivered the judgment of the court.

Justices Harris and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed as modified, finding (1) the trial court did not abuse 

its discretion when it denied defendant’s request to proceed pro se, (2) the court 

conducted an adequate preliminary Krankel inquiry (People v. Krankel, 102 Ill. 

2d 181 (1984)), (3) defendant forfeited his claim for a substitution of judge for 

cause, and (4) the court erred when it resentenced defendant to a more severe 

sentence on remand. 

¶ 2 Following a jury trial, defendant, Ernest D. Starks, was found guilty of child 

pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2016)) and aggravated criminal sexual assault 

(id. 11-1.30(a)(4)). The trial court sentenced defendant to 28 and 29 years’ imprisonment, 

respectively, for each conviction. On appeal, defendant argues the court erred when it (1) denied 

his clear and unambiguous request to proceed pro se, (2) failed to conduct an adequate 

preliminary Krankel inquiry, (3) failed to grant his motion for substitution of judge for cause, 

FILED

July 17, 2024

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
- 2 - 

and (4) improperly added 12 aggregate years to his sentence following remand. We affirm as 

modified. 

¶ 3 I. BACKGROUND

¶ 4 In September 2016, defendant was charged by indictment with child pornography 

for knowingly filming E.S., a person he knew to be under the age of 18, while she was engaged 

in an act of sexual penetration with another person; aggravated criminal sexual assault for 

committing an act of sexual penetration with E.S. by use or threat of force while committing the 

above alleged offense of child pornography; and two counts of criminal sexual assault (720 ILCS 

5/11-1.20(a)(3), (4) (West 2016)) for committing acts of sexual penetration with E.S.

¶ 5 A. Procedural Posture 

¶ 6 In April 2017, defendant requested to represent himself, which the trial court 

granted. Later that same month, defendant filed a handwritten pro se motion, requesting counsel 

be appointed to represent him. The motion stated defendant “didn[’t] finish enough school to 

creditably [sic] defend [himself]. Being only having [a general equivalency diploma],” he could 

not read case law, and he did not have access to an “adequate” law library. Defendant concluded 

he was not capable of representing himself in a “meaningful way.” In May 2017, the court 

appointed counsel for defendant. That same month, defendant filed multiple pro se motions 

requesting (1) different counsel be appointed to represent him and (2) a substitution of judge. In 

July 2017, defendant withdrew the motions. Defendant subsequently, through counsel, filed a 

motion in limine to suppress video and audio recordings purportedly showing him engaging in a 

sexual act with E.S. Following a hearing, his motion was denied. A subsequent motion to 

reconsider and dismiss the indictment was also denied.
- 3 - 

¶ 7 In January 2018, defendant waived his right to a jury and proceeded to a 

stipulated bench trial. Defendant was found guilty of all counts. In February 2018, he filed a 

motion to withdraw his agreement to a stipulated bench trial, claiming he was misinformed about 

the sentencing range for his charges. The trial court denied his motion. For sentencing, 

defendant’s criminal sexual assault convictions were merged into the aggravated criminal sexual 

assault conviction. The court sentenced defendant to consecutive terms of 22 years’ 

imprisonment for the child pornography conviction and 23 years’ imprisonment for the 

aggravated criminal sexual assault conviction. Defendant filed a motion for new trial, acquittal, 

and to reconsider his sentence. The court denied defendant’s motion. He appealed.

¶ 8 On appeal, defendant argued the trial court erred when it (1) denied his motion to 

suppress the video evidence and (2) failed to inform him he was subject to mandatory 

consecutive sentencing. See People v. Starks, 2020 IL App (3d) 180147-U, ¶ 2. The appellate 

court held “defendant’s cousin [Cassadia King] did not commit eavesdropping when she 

retrieved the incriminating videos from the trash bin of defendant’s online account.” Id. ¶ 1. 

However, the appellate court found the trial court incorrectly admonished defendant “repeatedly 

concerning his potential sentencing range.” Id. ¶ 25. Because defendant “relied on that 

misinformation when he waived his jury trial right and consented to the stipulated bench trial,” 

the appellate court concluded the trial court abused its discretion when denying his motion to 

withdraw his agreement to a stipulated bench trial. Id. ¶ 26. The appellate court reversed and 

remanded for further proceedings. Id. ¶ 29. 

¶ 9 B. Proceedings Following Remand

¶ 10 In September 2021, defendant filed a motion in limine to submit a certificate of 

absence of business records from Google regarding his Gmail account, which the trial court later 
- 4 - 

granted. Shortly thereafter, defendant filed a pro se motion for substitution of judge, arguing the 

judge’s “personal comments” about him as a father and a “man” demonstrated bias and 

prejudice. He also filed a pro se motion seeking substitution of his appointed counsel or to 

permit him to represent himself. Defendant argued his appointed counsel was not answering or 

returning his phone calls, was not filing motions he requested, and failed to call witnesses on his 

behalf. On September 16, 2021, the matter was continued to permit defense counsel to pursue 

further evidence in the matter.

¶ 11 In October and November 2021, defendant refiled his pro se motions. On January 

24, 2022, a hearing was held on defendant’s motion to substitute judge before Chief Judge 

Katherine Gorman. Judge Gorman denied defendant’s motion, finding he had not demonstrated 

prejudice resulting from extrajudicial influence.

¶ 12 Judge Kevin Lyons presided over a hearing on defendant’s motion to substitute 

appointed counsel or proceed pro se. The trial court informed defendant it would not substitute 

his appointed counsel. Defendant withdrew his request to proceed pro se. In March 2022, the 

matter was continued to allow defense counsel to follow up on defendant’s request to contact

“several witnesses.” In May 2022, the court granted defendant another continuance to “pursue 

some witnesses.” The matter was continued by agreement in July 2022. After several 

continuances, in October 2022, defendant sought another continuance because one of “four 

potential witnesses” was in the hospital and another would be available “after the holidays.” The 

State objected, arguing the case was more than six years old and defendant’s continuances were 

“only for delay.” The court denied defendant’s motion to continue.

¶ 13 On November 7, 2022, the matter proceeded to a jury trial. Prior to commencing 

voir dire, defendant requested a continuance because a witness was unavailable to attend due to 
- 5 - 

being hospitalized. Defendant stated the unavailable witness was around defendant and the 

victim when the alleged conduct occurred and would testify she had not observed any unusual 

behavior. The State argued the witness was not an expert and could not testify as to how a sexual 

assault victim should act and behave. The trial court denied defendant’s motion to continue.

¶ 14 Defense counsel informed the trial court: “Your [H]onor, [defendant] is asking 

that he be first chair and I be second chair, that I assist and he be the lead counsel on this case 

going forward.” The court denied defendant’s request. After a recess, the following exchange 

occurred

“THE DEFENDANT: I’m saying that if I can’t [be first chair and 

appointed counsel be second chair], I am asking can I go forward without delay 

pro se? 

THE COURT: No.

THE DEFENDANT: Can I know the reason why?

THE COURT: Because it’s for the purpose of delay, and I am not going to 

do that. Do you have any other questions?

THE DEFENDANT: No. I said without delay. I’m competent enough to 

go today.

THE COURT: I am not going to do that, no. All right. Let’s bring the jury 

down. 

THE DEFEDANT: I don’t believe that I’m being—this is fair to me, man.

THE COURT: It’s not my goal.

THE DEFENDANT: It is your call, Your Honor.
- 6 - 

THE COURT: It’s not my goal. My goal is not to satisfy you. My goal is 

to follow the law, and we’re going to do that. Be quiet.”

¶ 15 Defendant filed a motion in limine to exclude the video purporting to show his 

alleged sexual conduct with E.S., which the trial court denied.

¶ 16 C. Jury Trial and Posttrial Proceedings

¶ 17 Because defendant does not challenge the sufficiency of the evidence, we only 

summarize the trial evidence as it pertains to his contentions on appeal. E.S. testified the 

incidents occurred during the summer of 2016, when she was 15 years old. Defendant went 

through her phone and found photographs she had sent to a boy. Defendant sought to punish her 

for this and offered to “whoop her” or have her “sleep” with him. When E.S. chose to be 

“whooped,” defendant raped her. She said defendant threatened to kill her “or somebody” if she 

told anyone what had happened. E.S. stated there were more than 20 incidents of sexual abuse by

defendant, including oral, anal, and vaginal penetration. E.S. recalled defendant recording 

several of the incidents. Defendant told her he was going to sell the videos to an online 

pornographic website to make money for school clothes. E.S. stated she was scared of defendant 

and did not tell anyone what was happening for several months. She stated three other people 

lived in defendant’s home, but she did not believe anyone was aware of what defendant had been 

doing to her and no one asked her if anything was wrong. She noted defendant would not engage 

in sexual conduct with her when defendant’s girlfriend or his girlfriend’s daughters were there. 

¶ 18 Eventually, she told her twin brother. He wanted them to leave defendant’s home 

immediately. E.S. cited her fear of defendant, and they agreed to let their older brother know the 

next day. E.S.’s older brother picked her and her twin brother up from school the next day and 

took them to E.S.’s mother’s home in Calumet City, Illinois. E.S. and several other individuals 
- 7 - 

recovered video recordings defendant had made of the abuse and burned them to a disc to give to 

the police. At the close of the State’s evidence, defendant moved for a directed verdict, which 

was denied.

¶ 19 Shannon Vaughn testified for defendant that she met him in May 2016. Vaughn 

stated her and her daughters stayed at defendant’s home for extended periods of time that 

summer and that E.S. appeared “normal to [her].” Both of Vaughn’s daughters also testified 

similarly to Vaughn and noted nothing unusual about E.S.’s behavior during the summer of 

2016. 

¶ 20 The defense rested, and the jury found defendant guilty on all counts.

¶ 21 On December 9, 2022, defendant filed a motion for new trial, which the trial court 

denied. Defendant also filed a pro se motion alleging ineffective assistance of counsel, claiming, 

inter alia, his appointed counsel failed to interview four witnesses who would have aided in 

proving his innocence. Additionally, defendant claimed his attorney failed to timely inform the 

court of defendant’s desire to proceed “first chair” or pro se. 

¶ 22 When the trial court began to address defendant’s pro se ineffective assistance 

claims, the following exchange occurred between the court and the State:

“THE COURT: Okay. Okay. So, what do we want to have a pre-Krankel

thing? Is that what we’re talking about? 

MS. SHELBY [(ASSISTANT STATE’S ATTORNEY)]: That’s what it 

looks like. Most of the issues in that motion that were addressed and ruled on 

either— 

THE COURT: and raised many times?
- 8 - 

MS. SHELBY: Yes. Were raised many times. Some of them were even 

addressed in the appellate court opinion from his last—from the reversal before.

THE COURT: Okay.

MS. SHELBY: He’s titled it, ‘Motion for ineffective assistance,’ but I 

think most of this has already been ruled on.”

¶ 23 The trial court then permitted defendant to argue his pro se motion for ineffective 

assistance. Defendant argued there were “multiple things that [he] felt should have been 

investigated that didn’t get investigated. Witnesses that should have been called that didn’t get 

called.” Defendant claimed he never received photographs used by the State during grand jury 

testimony. He explained, “[W]hen I asked [my attorney] about them, he said that the State said 

that they’re lost. So, I don’t understand how—” The court interrupted defendant and said, “You 

think that was the lynchman of your case, huh?” Defendant responded, “No. I think it’s 

everything that I written down was the lynchman in my case.” The court permitted defendant to 

proceed with his argument: 

“THE DEFENDANT: I said, like I said, that he didn’t raise—he didn’t 

raise a lot of these issues in—it’s hard pulling these papers apart with these 

handcuffs. But there was witnesses that could have testified to the fact that it was 

inappropriate things that were in the phone from the beginning—videos and 

pictures. And it stated that what happened in the phone and what you allowed into 

evidence was actually of me. It was never asked what were the inappropriate 

things that were in the phone. Where is the phone? Because in the letter it said 

that it was supposedly—the phone was supposed to be mailed back to her. Where 

are these materials? So, it could have been checked to see what were in there.
- 9 - 

And then [my cousin, King,] is one of the main culprits in this situation. 

She’s the one that supposedly downloaded this from a Google account that they 

said was mine saying Google—we had the papers that wasn’t even contested by 

the State that Google said they have no record of the account. And that wasn’t 

even presented into evidence. So, if it was downloaded from a Google account 

and Google—the founders—saying that they don’t have no record of it, how can 

they say it came from a Google account? It goes to the fact that where I said it 

was already in the phone. So, I don’t understand how it was—the fact that it 

still—[King] is the one that said she downloaded it from a Google account, but 

she wasn’t even called as a witness. Well, over and over she was mentioned 

throughout the trial of what she did and what part she played.

And not only that, like I said, the officer said that he took pictures of the 

supposed room to corroborate it with the video, and those pictures have never 

been presented at all.

And it’s just, like I say, it’s multiple things. It’s all these things that I 

wrote in here. It’s what I feel, you know. And I would just be reading them over 

and over. I’ve been reading them through to you when y’all have the motion of 

everything I listed on here.

THE COURT: Anything else?

THE DEFENDANT: No, because no matter what I say, it’s irrelevant.

THE COURT: Anything else? All right. The defendant’s motion has been 

considered. There’s no basis for his—to support his claim of ineffective 

assistance.
- 10 - 

The short answer to a trial that answers everything that he’s raised is that 

the victim, herself, came and testified. And as awkward as it was and as 

embarrassing as I’m assuming it was, as demeaning as I’m assuming it was, the 

victim, herself, the defendant’s daughter, sat in this witness chair and in front of 

12 strangers and alternates had to point to a film, a video and say, that is me and 

that is my father. And not only is that a video of what he’s doing to me, I was 

there.

So, while the defendant makes claims and wants to be self-pitied for what 

some lawyer may have done, could have done, should have done, didn’t do, 

should’ve done when in his presence or not, the defendant needs to be afraid of 

the facts because the facts told on him. The motion is respectfully denied.”

¶ 24 The trial court then addressed defendant’s motion for a new trial. Defendant’s 

appointed counsel stood on the written motion, and the court denied that motion as well. The 

matter proceeded to sentencing.

¶ 25 D. Sentencing 

¶ 26 The only addition to the original presentence investigation report (PSI) was an 

additional victim impact statement provided by E.S. Neither of the parties presented any 

additional evidence in aggravation or mitigation. The State argued that, while defendant was 

entitled to continue denying his guilt, he had become “a bigger monster than he was before” by 

putting E.S. through a trial. The State also noted the multiple continuances following remand 

were aggravating, and that the trial court had “wiggle room” to increase his sentence due to 

“defendant’s behavior, these constant games.” Defendant argued he had done nothing to warrant 
- 11 - 

a harsher sentence and that he had only exercised his due process rights by having a trial. The 

court then interrupted to state:

“THE COURT: What about the impact it would have on [E.S.] who says 

she doesn’t even want to have his name. And she says in her letter—and it doesn’t 

get much more direct than this—I am damaged mentally, physically[,] and 

emotionally. And then she says, six years, why are we here? You did it and you 

know you did. If you’re a real man who cared, you wouldn’t be putting me 

through this.

So, since we last met or since he was last sentenced, she has been put 

through this. And he’s not to be punished for exercising his right to trial. But if 

the Court recognized that the defendant has been flippant, demanding[,] strident[,]

and has actually extracted some sort of satisfaction from having his daughter 

and/or any relatives appear to prove he did what he did, would that be a factor? 

Would that allow for an increase in his sentence?” 

¶ 27 Defendant argued his motion filing and jury trial demand, “without more,” were 

not sufficient to justify an increase his sentence. The trial court then stated:

“THE COURT: Just so that the record reflects that when we last had a 

sentence to—if we’re going to use as a benchmark that the defendant got 22 and 

23 years, respectively, and if he argues for less than that, which I understand that 

you do. But if there’s a distinction or a difference to be noted for a record reader, 

the difference would be that we had a trial; that videos that were clear and distinct 

and graphic and forceful were presented one after the other after the other after 

the other in the presence of the defendant’s own daughter while the defendant 
- 12 - 

stayed seated and has not expressed one ounce of contrition. In fact, if anything, 

by his accusations toward everyone else but himself seems to be a little bit more 

than just acquiescence in having his trial because the difference between the last 

sentence hearing and this sentencing hearing are the videos and the direct 

innuendo and the crush and the grasp and the twist that it has taken upon the 

victim to identify herself and to explain her father’s behavior and—to strangers. 

That there is a difference.

Now, whether that would be a factor that would rise to the level of a 

different sentence, I just want to make those observations.”

¶ 28 Defendant contended his jury trial demand was not intended to hurt E.S. and 

nothing in the record warranted increasing his sentence beyond the original sentence that was 

previously imposed. Defendant further argued he had a difficult childhood without his father

being present and his mother, who abused drugs, was also potentially a prostitute. Defendant 

noted his positive relationship with his fiancée, to which the trial court said, “The lady he met 

online that bogged down his two daughters either for a week or two weeks for the summer 

depending on who you believe, that lady?” Defendant confirmed the fiancée was Vaughn, who 

had testified at trial, and argued Vaughn’s daughters testified that defendant had a positive 

influence on their lives. The court then remarked, “Well, I guess there’s that viewpoint.” 

Defendant additionally noted he had earned 17 college credit hours while incarcerated and 

requested his sentence be reduced.

¶ 29 Defendant made a statement in allocution where he apologized to E.S. but denied 

his guilt. When addressing the State’s claim that he had “played with the Court,” defendant 
- 13 - 

stated there were a number of reasons the case went on as long as it did. Defendant denied he 

was the individual in the video. The trial court interrupted, and the following exchange occurred: 

“THE COURT: So, that wasn’t you?

THE DEFENDANT: No, it was not me.

THE COURT: Oh, I see.

THE DEFENDANT: But that’s what it—it’s being sarcasm and stuff like 

it—all these times, you know what I’m saying? I always respect you. I never said 

anything out of line or anything.

It was—in that video, I’ve been saying from the get-go it was videos in 

that phone, and it was not me in that phone, period.

And then, like I said, it said it was from a Google account. If it was, I—if 

it was and I done something, I never had a problem in any of my life accepting 

what I had coming and admitting to anything that I done wrong.

THE COURT: What did you do wrong?

THE DEFENDANT: I done a lot of wrong in my life.

THE COURT: Well, you just said it, so tell me what it was.

THE DEFENDANT: A lot.

THE COURT: Start with a few.

THE DEFENDANT: Start with a few? In the streets I— 

THE COURT: You had sex with your daughter?

THE DEFENDANT: No, that is not one.

THE COURT: Didn’t do that.

THE DEFENDANT: No, I did not.
- 14 - 

THE COURT: So, she’s lying about that.

THE DEFENDANT: You’re going to try to make me say something or get 

into a verbal situation with you, and I’m not going to do it— 

THE COURT: No. You said that you— 

THE DEFENDANT:—I already stated what I had to say. So I’m through. 

No matter what you—whatever I say is irrelevant like I said to you.

THE COURT: When you get to the hard part, you have nothing to say.

THE DEFENDANT: No. It’s not a hard part. You made it hard.

THE COURT: Yeah, I sure did.

THE DEFENDANT: You right.

THE COURT: Here’s the mirror.

THE DEFENDANT: Yep.

THE COURT: Well, you’ve made it a little easier here for me, 

[defendant]. I’ve considered the [PSI], the evidence and arguments of the lawyers, 

the statement of allocution, such as it was presented by the defendant, and I’ve 

considered the statutory matters in aggravation, mitigation, history and character 

of the defendant, and I’ve given due regard for the circumstances and nature of 

the offense—horrendous as it is—and I make the following observations and 

findings: the defendant today is a different person than he was when he was 

sentenced before. He is callous. He’s abrasive. He’s confrontational. He wants to 

blame everyone else but himself. He wants to pretend and announce that he’s a 

person that’s willing to assume responsibility, to take responsibility for those 
- 15 - 

things he’s done wrong as though all of this happening in the courtroom is some 

third thing.

I’ve done other things in my life he wants to say, but this stuff you’re 

talking about here, Judge, and others, I wasn’t part of that. I didn’t have sex with 

my daughter, he says. I didn’t do that.

Let the record reflect that this is the environment we have right here, 

today, December 14th of 2022. The record should reflect that the environment in 

this courtroom tone is this. A man, 48 years old, is seated in jail clothing, 

handcuffed about 15 feet away from his daughter. A daughter that was required to 

testify at the trial and sit 30 inches beneath a video depicting sexual conduct, 

penetration repeatedly over and over on several occasions from him on to her 

while she was a minor. And in this environment the record should show this 48-

year-old man—creature has the goal to be 30 feet, 15 feet from his daughter and 

say by his actions and his conduct and his words, daughter, you’re a liar and I am 

not. 

Let the record reflect that the opposite is true. The defendant is the liar 

here. The defendant is the instigator here. The defendant is the criminal here. The 

defendant is the rapist here. It is the defendant who is the wrongdoer. 

The rescuer are the police and the justice system. It has hobbled this case 

through. But the heroine here is the daughter of this defendant.

There aren’t many people that could grow the backbone and the ability to 

walk themselves into a courtroom and stare down this man who wants to stare at 

everybody else thinking that his laser beam stares will knock them over. But this 
- 16 - 

woman—and in a strange twist, I might add, that even though [defendant] didn’t 

build her, he simply was the provider of her origin. But he didn’t build her 

because if he shaped her, she wouldn’t be able to come into this courtroom.

He wanted to master over her, to lord over her, to be her owner. And for 

him to say differently today is a lie. He knows it. I know it. And the world knows 

it. I want his daughter to know that no reasonable person on this planet believes 

your father, and that is the last time I will refer to him as that. He is the defendant. 

He is a convicted predator. And he is to be sentenced to a prison because that’s 

what prisons are for. They are built for you.

You are a man of many words, not good ones, [defendant]. You can’t put 

a sentence together very well. You think like a child. If you just keep talking and 

battling out phrases, it will in someway mesmerize the listener, and they will 

think you have an argument. You have none. You have made it simple. You have 

presented yourself far worse than you were before. You have confronted your 

daughter in this courtroom and in construction and in fact told her and told me

that she is lying and that you are not.

The Court finds that you are the liar. The Court finds that you are the 

assaulter. The court finds that your daughter has come to her own rescue when 

you wouldn’t. You didn’t even rescue her from you. What a shame to have the 

privilege of such a daughter and to turn yourself into such garbage while she 

shines and lifts herself from the city dump that you are. Says a lot about her and a 

lot more about you. It’s the daughter of this man who said, you damaged me and 
- 17 - 

you don’t care. It’s bad enough that you damaged her, but it is so shameful of you 

that you don’t care.

The record can reflect the defendant sits here with his lower lip pushed 

out. If there was a bubble above his head it would say, I don’t care what you do. 

Screw the rest of you. I’m [defendant].

And then I noticed that your daughter says, you are a monster. It’s all in 

your eyes. Well, [defendant], it would be in your soul, but you don’t have one. It 

would be in your heart, but you gave that away years ago.

It’s apparent why you’re making the claims that you’re making today; that 

[appointed counsel] is deficient; that [previously appointed counsel] is deficient; 

that somehow the scheduling of your case made things unfair to you. We all know 

why you’re doing that so that from your prison cell in somewhere in a dark corner

of Illinois you’ll have something to while away the days away with, to write 

letters about, to add to your brief and your pleadings.

Well, have at it because the Court does find that the defendant has 

worsened himself then before. The Court does find that the daughter of the 

defendant has done a marvelous job at presenting the truth while the defendant 

has tried to present himself as a magic act, and magic is not the truth. You are a 

real piece of work. And the Court finds that when the daughter said, this didn’t 

have to happen, but you made me do this, that the defendant replied, this didn’t 

have to come to this. And then trying to thread the needle between I didn’t do it 

and you’re a liar. He said, I took advantage of the situation. Any reasonable soul 
- 18 - 

would say that was code for, I had sex with my daughter, but I don’t want to tell 

anybody about it. Well, consider that secret out.

This is not a close call. The defendant did what he did. He was guilty of 

the elements of the offense of each count. The jury said so. It wasn’t difficult for 

them, obviously, at all. And if there was a trophy to be given to courage and 

justice, I would give it to [E.] last name whatever she wants it to be.” 

¶ 30 The trial court sentenced defendant to 28 years’ imprisonment for the child 

pornography conviction and 29 years’ imprisonment for the aggravated criminal sexual assault 

conviction, to be served consecutively. The court added, “Right down to the wire the defendant 

maintains he didn’t do it. Without having to define the word, ‘overwhelming,’ the evidence in 

this case is overwhelming. The defendant did it. He’s guilty and he knows it.”

¶ 31 Defendant filed a motion to reconsider his sentence, wherein he argued the trial 

court failed to account for several mitigating factors and improperly increased his sentence. The 

court denied the motion.

¶ 32 This appeal followed.

¶ 33 II. ANALYSIS

¶ 34 On appeal, defendant argues the trial court erred when it (1) denied his clear and 

unambiguous request to proceed pro se; (2) failed to conduct an adequate preliminary Krankel

inquiry by accepting input from the State, not remaining neutral, and failing to ask meaningful 

questions of defendant or his counsel; (3) failed to grant his motion for substitution of judge for 

cause; and (4) improperly added 12 aggregate years to his sentence following remand. We 

address each claim in turn.

¶ 35 A. Denial of Request to Proceed Pro Se Claim
- 19 - 

¶ 36 Defendant argues his request to proceed pro se on the first day of his jury trial 

was clear and unambiguous. The trial court denied his request as a delay tactic. However, 

defendant specifically stated he wanted to proceed pro se without delay and was prepared to 

move forward with his jury trial. The State contends defendant forfeited this issue by not 

properly objecting to the court’s denial of his request or raising the issue in a posttrial motion.

¶ 37 We disagree with the State that defendant has forfeited this issue. “To preserve a 

purported error for consideration by a reviewing court, a defendant must object to the error at 

trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445, ¶ 48. Defendant 

raised this issue in his motion for a new trial. On the day of trial, defendant verbally requested to 

proceed pro se after the trial court denied his request to be “first chair” in his own defense. When 

the court denied his request, he asked the court the reason for the denial. The court stated 

defendant’s request was “for purposes of delay.” Defendant said he was prepared to proceed 

pro se without delay and argued the court’s denial was unfair to him. A contemporaneous 

objection “should be sufficiently specific to inform the court of the ground for the objection.” 

Obermeier v. Northwestern Memorial Hospital, 2019 IL App (1st) 170553, ¶ 131 (quoting 

Carlson v. City Construction Co., 239 Ill. App. 3d 211, 239 (1992)). Here, defendant’s objection 

was sufficiently specific and not merely a general objection. Thus, we find defendant did not 

forfeit this claim.

¶ 38 We review a trial court’s denial of a defendant’s motion to represent himself for 

an abuse of discretion. People v. Fisher, 407 Ill. App. 3d 585, 589 (2011). “This standard of 

review is deferential. Our mere disagreement with the court’s decision would not make the 

decision an abuse of discretion.” Id. A court abuses its discretion when its decision is arbitrary or 
- 20 - 

clearly illogical, such that it “goes outside the range of reasonableness and disregards established 

principles of law, thereby causing a party substantial prejudice.” Id.

¶ 39 Ordinarily, “[a] defendant has a constitutional right to represent himself.” People 

v. Baez, 241 Ill. 2d 44, 115 (2011). A defendant’s “waiver of counsel must be clear and 

unequivocal, not ambiguous.” Id. at 116. “Although a court may consider a defendant’s decision 

to represent himself unwise, if his decision is freely, knowingly, and intelligently made, it must 

be accepted.” Id.

¶ 40 The State argues the trial court did not err when denying defendant’s request to 

proceed pro se because the request was disruptive to the proceedings. Defendant contends his 

request was clear and unequivocal and cites People v. Davis, 169 Ill. App. 3d. 1 (1988) and 

People v. Hunt, 2016 IL App (1st) 132979 in support.

¶ 41 In Davis, the defendant—on the morning his trial was to begin—filed a written

motion seeking to represent himself and discharge his appointed counsel. Davis, 169 Ill. App. 3d. 

1, 3 (1988). The trial court inquired whether the defendant had discussed his desire to represent 

himself with his attorney, and the defendant replied he had conflicts with his attorney regarding 

trial strategy and which witnesses to call. Id. at 6. The court summarily dismissed the defendant’s 

motion. Id. On appeal, the appellate court noted “the trial court never made a finding that [the] 

defendant did not have the capacity to make an intelligent and knowing waiver of counsel.” Id.

The Davis court considered the defendant’s age, education level, and familiarity with the 

criminal justice system. Id. at 7-8. The court specially noted the defendant had “been represented 

by the public defender, to his apparent dissatisfaction,” where he had been convicted in a closely 

related case just prior to his instant case. Id. at 7. While the defendant had sought to represent 

himself on the morning of his jury trial, the court noted he “did not wish to delay proceedings,” 
- 21 - 

and the trial court did not consider delay in the proceedings as a determinative factor. Id. Thus, 

the appellate court reversed the trial court’s denial of defendant’s motion and remanded his case 

for a new trial. Id.

¶ 42 In Hunt, the defendant’s counsel informed a substitute judge presiding over the 

courtroom that the defendant wanted to represent himself. Hunt, 2016 IL App (1st) 132979, ¶ 6. 

The defendant was admonished of the consequences of representing himself, but the substitute 

judge did not rule on his request; rather, the substitute judge continued the matter for defendant 

to “think about” the request and permit the trial judge to rule on the issue. Id. When the trial 

judge returned, defendant’s request was denied as a “delay tactic” and the matter was set for jury 

trial. On appeal, the appellate court found the trial court had abused its discretion because the 

record did not support the finding the defendant’s request was made to delay his trial. Id. ¶ 21. 

The Hunt court noted five of the six continuances were by agreement, with the last continuance 

coming on the trial court’s own motion to permit defense counsel an opportunity to respond to 

the State’s pretrial motion. Id. The appellate court also found the defendant had not engaged in 

any “obstructionist” behavior. Id. ¶ 22. The court reversed and remanded the matter for a new 

trial. Id. ¶ 27. 

¶ 43 We find the case sub judice distinguishable from both Davis and Hunt primarily 

due to defendant’s apparent delay tactics here. The courts in Davis and Hunt both found the 

defendants were not seeking pro se status to delay the trial proceedings. In Davis, the appellate 

court found the defendant had apparent complaints with his appointed counsel stemming from 

his very recent trial that predicated his request to represent himself. Regarding Hunt, the 

appellate court found the record did not support the finding defendant’s request to represent 

himself was a delay tactic.
- 22 - 

¶ 44 Here, unlike Davis, defendant sought to “first chair” his own defense while 

maintaining the services of his appointed counsel as “second chair.” While defendant had voiced 

dissatisfaction with his previously appointed counsel, he clearly desired to keep his appointed 

counsel nearby in some advisory role for his trial. Once the trial court denied that request, he 

then pivoted to reasserting his request to represent himself. Additionally, unlike in Davis, the 

trial court here considered delay as a determinative factor. While a court must honor a 

defendant’s right to represent himself where waiver of counsel is knowingly and intelligently 

made, this right is not absolute. This court has previously stated that a trial court may deny a 

defendant’s request to proceed pro se when it comes “so late in the proceedings that to grant it 

would be disruptive of the orderly schedule of proceedings.” People v. Ward, 208 Ill. App. 3d 

1073, 1084 (1991). In Ward, we cautioned “that when a request to proceed pro se is made and 

there is no request for additional time to prepare, a motion to proceed pro se should generally be 

viewed as timely as long as it is made before trial.” Id. Defendant’s request to proceed pro se in 

this instance cannot be viewed as timely and “before trial” in any reasonable sense because the 

trial had essentially already begun, with potential jurors awaiting as voir dire was about to 

commence.

¶ 45 Here, unlike Hunt, defendant sought and was granted multiple continuances of his

trial date. Only one continuance following remand was by agreement between the parties. In 

October 2022, defendant sought yet another continuance of his trial, which was denied given the 

case was six years old at the time. Unlike Hunt, defendant, in the instant case, demonstrated a 

propensity to usurp his appointed counsel in many instances. In April 2017, he requested to 

proceed pro se, which was granted. However, shortly thereafter, he immediately requested 

counsel be appointed to his case. When his request was granted, he subsequently filed a motion
- 23 - 

to have a different attorney appointed to his case that he later withdrew. Following remand of his 

case, defendant again sought to represent himself or get a different attorney appointed to his 

case. He refiled his request to proceed pro se later in 2021 but withdrew that request. It appears, 

upon recognizing that the trial court cannot simply appoint different attorneys to represent 

defendant at his whim, he devised a plan to sit “first chair” in his own defense with his appointed 

counsel taking an advisory role as “second chair.” When this idea failed, defendant renewed his 

request to represent himself at the onset of his trial.

¶ 46 While defendant may claim he intended to proceed with his trial without delay, 

his behavior up until trial following remand did not demonstrate he intended to comply with an 

orderly schedule of proceedings. As we noted earlier, it is not enough for us to disagree with the 

trial court whether defendant should have been granted his request to proceed pro se. The abuse 

of discretion standard requires the court’s decision be arbitrary and clearly illogical. We cannot 

say the court’s decision to deny defendant’s request to represent himself because it was a delay 

tactic is either arbitrary or clearly illogical. The trial court is in a far better position than this 

court to observe defendant’s conduct and behavior. See People v. Wiggins, 312 Ill. App. 3d 

1113, 1116 (2000) (noting, in the pretrial context of a bona fide doubt of a defendant’s fitness, 

the trial court is in a far better position than a reviewing court to “observe and evaluate the 

defendant’s conduct”). Moreover, we must “indulge in every reasonable presumption against” 

defendant’s waiver of counsel. Baez, 241 Ill. 2d at 116. Accordingly, we find the court did not 

abuse its discretion when it denied defendant’s request to proceed pro se. 

¶ 47 B. Inadequate Preliminary Krankel Inquiry Claim

¶ 48 A pro se posttrial claim alleging ineffective assistance of counsel is governed by 

the common-law procedure developed by our supreme court in Krankel and its progeny. People 
- 24 - 

v. Roddis, 2020 IL 124352, ¶ 34. “The procedure encourages the trial court to fully address these 

claims and thereby narrow the issues to be addressed on appeal.” Id. Under this procedure, the 

trial court does not automatically appoint new counsel when a defendant alleges ineffective 

assistance of counsel; rather, the court first examines the factual basis of the defendant’s claim. 

Id. ¶ 35. “Specifically, the trial court must conduct an adequate inquiry ***, that is, inquiry 

sufficient to determine the factual basis of the claim.” (Internal quotation marks omitted.) People 

v. Ayers, 2017 IL 120071, ¶ 11. In doing so, the court considers the merits of the defendant’s 

allegations in their entirety. Roddis, 2020 IL 124352, ¶ 61. 

¶ 49 If the trial court determines the claim lacks merit or pertains only to matters of 

trial strategy, then the court need not appoint new counsel and may deny the defendant’s pro se

claim. Id. ¶ 35. “However, if the allegations show possible neglect of the case, new counsel 

should be appointed.” Id. This permits new counsel to independently evaluate the defendant’s 

claim and avoid a conflict of interest trial counsel would otherwise have, and new counsel would 

represent the defendant at a hearing on the pro se ineffective assistance of counsel claim. Id.

¶ 36. “The issue of whether the trial court properly conducted a preliminary Krankel inquiry 

presents a legal question that we review de novo.” Id. ¶ 33.

¶ 50 Following his jury trial, defendant filed a pro se motion alleging his trial counsel 

rendered ineffective assistance for, inter alia, failing to contact witnesses who would have 

testified to viewing the video evidence at an earlier date, and thus calling into question the 

State’s entire case. The trial court acknowledged a preliminary Krankel inquiry was appropriate. 

Defendant argues the court’s inquiry erroneously permitted input from the State and consisted

only of a brief and hostile hearing before the court summarily dismissed his allegations. Because 
- 25 - 

the court failed to conduct an adequate inquiry, defendant argues this court should remand the 

matter for a proper preliminary Krankel inquiry. 

¶ 51 Regarding its input, the State argues it was de minimis and does not require 

reversal. Our supreme court explained that

“[b]ecause a defendant is not appointed new counsel at the preliminary Krankel

inquiry, it is critical that the State’s participation at that proceeding, if any, be 

de minimis. Certainly, the State should never be permitted to take an adversarial 

role against a pro se defendant at the preliminary Krankel inquiry.” People v. 

Jolly, 2014 IL 117142, ¶ 38. 

In Jolly, the trial court had permitted the State to question the defendant and his trial counsel 

extensively. Id. ¶ 40. Furthermore, the State “presented evidence and arguments contrary to [the] 

defendant’s claims and emphasized the experience of [the] defendant’s trial counsel.” Id. The 

Jolly court reversed, concluding “the State and [the] defendant’s trial counsel effectively argued 

against defendant” during the preliminary Krankel inquiry. Id.

¶ 52 In this case, the State provided input after the trial court queried whether to 

conduct a preliminary Krankel inquiry. The State commented that many of the issues in 

defendant’s pro se motion had been addressed during his previous appeal. The State then 

relented that defendant was entitled to his motion and did not participate any further. Defendant 

argues the State’s input framed the issues for the court and, thereby, made the proceedings 

adversarial and nonneutral. We disagree. The State did not question defendant and only 

addressed his claims generally rather than addressing any specific claim he made in his motion. 

It did not address the substance of defendant’s claims and did not question defendant or discuss 

his trial counsel at all. Furthermore, the court stated it had read defendant’s motion and gave him 
- 26 - 

an opportunity to argue his claims fully. We find the State’s input was de minimis and did not 

convert the preliminary Krankel inquiry into an adversarial proceeding.

¶ 53 Defendant next contends the trial court’s conduct during the inquiry was not 

neutral, as the court interrupted defendant and was dismissive of his claims. Defendant focused 

his claim on counsel’s failure to investigate and/or call to testify four alleged witnesses who 

would have allegedly exonerated him. He cites People v. McKinney, 2023 IL App (4th) 

220356-U, and People v. Lawson, 2019 IL App (4th) 180452, in support. 

¶ 54 In McKinney, this court found the trial court’s preliminary Krankel inquiry was 

inadequate because “it failed to ask either defendant or defense counsel any specific questions 

regarding the factual basis of the [defendant’s] claims.” McKinney, 2023 IL App (4th) 220356-U, 

¶ 36. We remanded the matter for the court to assign new counsel to the defendant and conduct a 

Krankel hearing. Id. ¶ 50. 

¶ 55 In Lawson, the State’s primary witness testified that he did not know the 

defendant and had never seen him before the defendant robbed him. Lawson, 2019 IL App (4th) 

180452, ¶ 50. Prior to trial, the defendant informed his attorney of a witness who would impeach 

that witness’s testimony. However, trial counsel never called defendant’s witness. Id. ¶ 51-52. 

Trial counsel gave a self-contradictory reason for not calling the defendant’s witness, which the 

Lawson court concluded may have been an unreasonable trial strategy. Id. ¶ 53. The matter was 

remanded for the trial court to appoint new counsel and conduct further proceedings. Id. ¶ 59.

¶ 56 We find McKinney and Lawson distinguishable from the instant case. First, the 

record does not contradict the trial court’s findings. Trial counsel in May 2021, March 2022, and 

May 2022, requested continuances in order to locate potential witnesses defendant had identified 

as having information to discredit the video evidence. In September 2021, defendant filed a 
- 27 - 

pro se motion seeking to substitute counsel or proceed pro se, stating counsel informed him the 

witnesses “won’t answer the phone or respond to [counsel’s] message.” Defendant argued, “But 

that not what im [sic] told by them.”

¶ 57 In October 2022, counsel again sought a continuance, claiming defendant had 

“four potential witnesses”—one who was in the hospital and another who would “ha[ve] more 

time available after the holidays.” On the day of trial, counsel again asked for a continuance, 

noting one of the witnesses was unable to appear because she was in the hospital. When asked 

about the nature of this witness’s testimony, counsel stated she would testify to being “around 

both the victim and [defendant]” when the alleged incidents occurred and “didn’t sense anything 

was off.”

¶ 58 The record clearly shows defense counsel diligently investigated and sought to 

utilize the witnesses defendant now argues were ignored. The crux of defendant’s arguments at 

trial both during opening statements and closing arguments was that the video evidence did not 

depict defendant. Defendant claims these witnesses would have been integral to supporting his 

innocence. However, one of these witnesses was a State’s witness, and another witness’s 

purported testimony would have merely been duplicative of defendant’s three witnesses, who 

each testified they had observed E.S. when the incidences occurred and did not perceive her to 

behave abnormally.

¶ 59 Unlike McKinney, the record in this case does not contradict the trial court’s 

findings. Unlike in Lawson, there is no showing of possible neglect of an alibi witness. The trial 

court is “permitted to make its determination based on its knowledge of defense counsel’s 

performance at trial and the insufficiency of the defendant’s allegations.” People v. Ayers, 2017 

IL 120071, ¶ 12. The trial court gave defendant ample opportunities to emphasize his strongest 
- 28 - 

arguments at the preliminary Krankel inquiry. Rather than focusing on counsel’s failure to 

contact requested witnesses, defendant chose to focus on grand jury testimony that was never 

utilized as evidence at trial. Nevertheless, the requested witnesses would not have testified to 

anything equivalent to an alibi. Accordingly, we find the trial court conducted an adequate 

preliminary Krankel inquiry. 

¶ 60 C. Substitution of Judge for Cause Claim

¶ 61 Defendant next argues Judge Lyons demonstrated prejudice against him to the 

extent he could not have received a fair trial. He concedes this issue was not raised in his 

posttrial motion and asks that we review it under the plain-error doctrine. The plain-error 

doctrine requires a defendant first establish a clear or obvious error. Sebby, 2017 IL 119445, 

¶ 49. Second, the defendant must show either “(1) the evidence is close, regardless of the 

seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.” 

People v. Herron, 215 Ill. 2d 167, 187 (2005). Here, defendant seeks review under the second 

prong. 

¶ 62 To prevail on a motion to substitute a judge for cause, a defendant must show 

facts and circumstances indicating the judge is actually prejudiced against him. People v. 

Patterson, 192 Ill. 2d 93, 131 (2000). “To meet this burden, the defendant must establish 

animosity, hostility, ill will, or distrust towards this defendant.” Id. On review, we will not 

disturb a finding on a motion for substitution of judge unless that finding is against the manifest 

weight of the evidence. People v. Mercado, 244 Ill. App. 3d 1040, 1047 (1993).

¶ 63 Defendant highlights the trial court’s comments during his original sentencing. He 

notes the court said, “I’d make the following findings and observations. [Defendant], you are a 
- 29 - 

full can of nuts or something.” After defendant indicated he had difficulty finding employment 

while having a prior sex offense conviction, the court stated: 

“But here’s what’s interesting to me, and not in a good way: You seem to 

imply that you didn’t have an economic opportunity, you didn’t get a job because 

you had this scarlet letter on you from this sex offense. It’s because you have 

some sort of illness. You’re allergic to work. Not only are you not a worker, 

you’re whatever the opposite of worker would be. Whatever that term is, that 

would be you.

But you do some things with great consistency. The defendant has 

fathered a total of nine children with six different women. That they know of, I’m 

guessing.” 

Defendant contends the court’s comments are not supported by the record and merely constitute 

an ad hominem attack. Specifically, the PSI showed he worked numerous jobs and was close to 

five of his nine children. Defendant admitted “he could have been a better father,” and he did not 

want his children to grow up “in a home with drugs and violence.” In support of his arguments, 

defendant cites People v. Fisher, 2023 IL App (4th) 220717, and People v. Montgomery, 2023 IL 

App (3d) 200389.

¶ 64 In Fisher, this court noted the judge—who was the same judge as in the case

sub judice— made “remarks toward [the] defendant, [which,] taken together, constitute a 

tour de force of sarcasm and scorn establishing the trial court’s prejudice against [the] 

defendant.” Fisher, 2023 IL App (4th) 220717, ¶ 40. In Fisher, we noted numerous incidents 

where the court made improper derogatory and sarcastic remarks regarding the defendant’s

behavior in jail, his decision to have a jury trial, the sex offender evaluation, the defendant’s 
- 30 - 

mother’s death, the fact that the defendant fathered many children, and the defendant’s limited 

intellectual ability. Id. ¶¶ 36-39. Due to the court’s conduct, we remanded the matter for a new 

sentencing hearing before a different judge. Id. ¶ 45.

¶ 65 In Montgomery, the appellate court also reversed and remanded the matter for a 

new sentencing hearing before a different judge. Montgomery, 2023 IL App (3d) 200389, ¶ 35. 

That case also involved the same judge as the instant case. The Montgomery court concluded the 

trial court “failed to hide its animosity toward defendant” and explained:

“The court’s animosity was laid bare in the sentencing hearing when it 

(1) mimicked defendant’s demands to the arresting officer, (2) referred 

dismissively to defendant’s wife, (3) envisaged a hypothetical prison scenario 

where it would personally discredit [the] defendant’s claims of mistreatment, 

(4) criticized the arresting officer’s patience in dealing with [the] defendant, 

(5) suggested the officer should have tased defendant upon noncompliance, and 

(6) most disconcerting of all, stated it would have killed defendant if it were in the 

store clerk’s shoes.” Id. ¶ 32. 

¶ 66 We recognize that Fisher and Montgomery both concern the same judge and his 

comments toward defendants, and we agree with both cases that a “judge should be patient, 

dignified, and courteous to litigants, jurors and witnesses, lawyers and others with whom he 

deals in his official capacity.” People v. Eckert, 194 Ill. App. 3d 667, 674 (1990). Indeed, we 

admonish the trial court judge again here today that his choice of words and sarcastic demeanor 

do not adhere to the high standards expected of judges. However, the judge’s comments in this 

case were relatively reserved in comparison to the comments made in Fisher and Montgomery. 
- 31 - 

¶ 67 Defendant carries the burden of showing prejudice, and that burden requires he 

“establish not merely the possibility of prejudice, but also that prejudice tangibly exists.” 

Mercado, 244 Ill. App. 3d at 1045. This court’s decision to disqualify a judge based on

“prejudice is a judgment not to be made lightly.” People v. Kluppelberg, 257 Ill. App. 3d 516, 

535 (1993). At sentencing, a trial court is given great latitude, though not without limit. Fisher, 

2023 IL App (4th) 220717, ¶ 40. Furthermore, the trial court, “having observed the defendant 

and the proceedings, is in a far better position to consider such factors as the defendant’s 

credibility, demeanor, general moral character, mentality, social environment, and habits than a 

reviewing court, which must rely on a ‘cold’ record.” People v. Little, 2011 IL App (4th) 

090787, ¶ 24. A “trial judge is not limited to considering statutory aggravating factors, and he 

may consider any fact which would tend to aggravate the offense.” People v. Helm, 282 Ill. App. 

3d 32, 34 (1996).

¶ 68 We note the context of the trial court’s statements at issue on this appeal occurred 

during the first sentencing hearing. At a sentencing hearing, the court is generally expected to 

articulate its reasons regarding a defendant’s credibility, demeanor, general moral character, 

mentality, social environment, and habits when imposing sentence. We find defendant has failed 

to show prejudice from the court’s comments at his original sentencing hearing. We also observe 

that where a defendant’s case is remanded for error following a sentencing hearing, a reviewing 

court should be cautious to permit a defendant to weaponize a judge’s findings at a vacated 

sentencing hearing as casting a pall of prejudice on future proceedings.

¶ 69 Following remand, the trial judge did not display any of the behaviors or make 

comments remotely approaching those which were discussed in either Fisher or Montgomery. 

Defendant does not point to any comments by the judge that show tangible prejudice existed 
- 32 - 

following remand. The record demonstrates that on remand, the judge was patient and 

accommodating to defendant’s requests for continuances and pro se filings. Defendant’s motion 

for substitution of judge for cause was held before a different judge, who reviewed the entire 

record along with defendant’s motion. Because Judge Gorman’s decision to deny defendant’s 

motion was not against the manifest weight of the evidence, we find no clear error occurred and 

honor defendant’s forfeiture of this issue.

¶ 70 D. Improper Increase of Sentence Claim

¶ 71 Defendant argues the trial court imposed a harsher sentence following remand 

because he chose to exercise his right to a jury trial. The State argues this issue was forfeited. We 

disagree with the State that this issue was forfeited. Recall, “[t]o preserve a purported error for 

consideration by a reviewing court, a defendant must object to the error at trial and raise the error 

in a posttrial motion.” Sebby, 2017 IL 119445, ¶ 48. Defendant clearly articulated at sentencing 

that he had done nothing to warrant an increased sentence other than exercise his due process 

rights and raised the issue again in his motion to reconsider sentence. As such, defendant has not 

forfeited this claim.

¶ 72 “The legislature sets forth by statute the range of permissible sentences for each 

class of criminal offense.” People v. Fern, 189 Ill. 2d 48, 53 (1999). “A sentence within statutory 

limits will not be deemed excessive and an abuse of the court’s discretion unless it is ‘greatly at 

variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the 

offense.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54). A 

reviewing court affords great deference to a trial court’s sentencing judgment because, “having 

observed the defendant and the proceedings, [it] is in a far better position to consider such factors 

as the defendant’s credibility, demeanor, general moral character, mentality, social environment, 
- 33 - 

and habits than a reviewing court, which must rely on a ‘cold’ record.” Little, 2011 IL App (4th) 

090787, ¶ 24. A sentence that falls within the applicable statutory limits is reviewed for an abuse 

of discretion. People v. Price, 2011 IL App (4th) 100311, ¶ 36. 

¶ 73 However, a trial court on resentencing is limited by section 5-5-4 of the Unified 

Code of Corrections (Code). 730 ILCS 5/5-5-4 (West 2022). “[T]he purpose of section 5-5-4 of 

the Code is to ensure the due process rights” of a defendant and prevent “vindictiveness in 

resentencing a defendant for having exercised his appeal rights.” People v. Woolsey, 278 Ill. 

App. 3d 708, 710 (1996). The Code provides in relevant part that the resentencing court “shall 

not impose a new sentence for the same offense *** which is more severe than the prior sentence 

*** unless the more severe sentence is based upon conduct on the part of the defendant occurring 

after the original sentencing.” 730 ILCS 5/5-5-4(a) (West 2022); People v. Moore, 359 Ill. App. 

3d 1090, 1092 (2005). Whether due process has been violated is a question of law reviewed 

de novo. People v. Totzke, 2012 IL App (2d) 110823, ¶ 17. 

¶ 74 The State argues the trial court did not err because defendant had become more 

callous, abrasive, and confrontational following remand, thereby permitting the court to impose a 

harsher sentence. Defendant contends the record supports his argument that the only difference 

following remand was his jury trial demand. He claims the record does not support a finding that 

his conduct warranted a harsher sentence. He cites People v. Strawbridge, 404 Ill. App. 3d 460 

(2010) in support.

¶ 75 In Strawbridge, the defendant was originally sentenced to 9 years’ imprisonment

and, following remand, he was resentenced to 12 years’ imprisonment. Id. at 470. The appellate 

court construed the plain meaning of “conduct” from the Code to require a defendant 

demonstrate a “behavior” or “some type of act on [a] defendant’s part” warranting a more severe 
- 34 - 

sentence and not merely displaying “a certain attitude toward one’s crime or a belief about one’s 

past.” Id. at 471. In that case, the trial court noted the defendant’s statement in allocution failed 

to indicate any remorse and the testimony of a caseworker indicated the defendant was more 

likely to recidivate due to his denial of “his own victimization.” Id. at 470. The court found these 

reasons did not meet the definition of conduct and modified his sentence to the original sentence

that was imposed prior to remand. Id. at 471.

¶ 76 In this case, the trial court followed its comments that defendant was a “different 

person” following remand by stating he was callous, abrasive, and confrontational. The court 

went on to state defendant was unwilling to take responsibility for his actions and sought to 

blame others. The court stated defendant was essentially—while not literally—calling E.S. a liar. 

However, the court’s reasons that defendant was different following remand all go toward how 

the court perceived defendant’s attitude regarding his guilt. While we do not diminish those 

reasons for the court’s decision to impose a harsher sentence, they do not identify any conduct on 

the part of defendant that would warrant a harsher sentence. We reiterate the sentiments of the 

special concurrence from Strawbridge noting a defendant has no incentive to plead guilty to get 

leniency at sentencing; “[t]hat is, he has nothing to lose by going to trial after the first conviction 

is vacated by the appellate court regardless of the reasons—he might get acquitted, but even if he 

is convicted, he is guaranteed to come out no worse than he did” prior to remand. Id. at 473

(Zenoff, J., concurring). 

¶ 77 Accordingly, we agree with defendant that the trial court erred when it

resentenced him to a more severe sentence. Defendant asks that we exercise our powers under 

Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967) and reimpose the original sentence. We agree 

and, accordingly, reduce defendant’s sentence for the child pornography conviction to 22 year’s 
- 35 - 

imprisonment and for the aggravated criminal sexual assault conviction to 23 years’ 

imprisonment. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). All other aspects of defendant’s 

sentences will remain as imposed by the trial court, including that they run consecutively.

¶ 78 III. CONCLUSION

¶ 79 For the reasons stated, we reduce defendant’s sentence for each conviction 

entered to 22 and 23 years’ imprisonment, respectively. We otherwise affirm the judgment of the 

trial court.

¶ 80 Affirmed as modified.