{ "id": 2587243, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT BARRY, Defendant-Appellee", "name_abbreviation": "People v. Barry", "decision_date": "1990-08-15", "docket_number": "No. 1-87-3428", "first_page": "212", "last_page": "217", "citations": [ { "type": "official", "cite": "202 Ill. App. 3d 212" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "402 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "79 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070111 ], "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0103-01" ] }, { "cite": "302 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "55 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937164 ], "year": 1980, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0018-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1255" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 2, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "524 N.E.2d 1263", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1265-66" } ], "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 572", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586656 ], "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0572-01" ] }, { "cite": "264 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "429" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "pin_cites": [ { "page": "586" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 655, "char_count": 13773, "ocr_confidence": 0.74, "pagerank": { "raw": 9.450547923309579e-08, "percentile": 0.517192701196093 }, "sha256": "10c950602f86e9ca4509d99402e8864edef260b980742e4b44bdc218e9a713ce", "simhash": "1:eda1188afe161ff8", "word_count": 2266 }, "last_updated": "2023-07-14T20:29:37.094110+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT BARRY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Robert Barry was found guilty of two counts of aggravated battery and sentenced to serve a 30-month probation conditioned upon periodic imprisonment. Following a hearing, the court granted defendant\u2019s post-conviction motion. The State appeals from the order of the circuit court of Cook County which granted defendant\u2019s post-conviction motion for a new trial based on ineffective assistance of counsel. We affirm.\nAt trial, the State presented the testimony of Patricia Breason, Caroline Ganshir and Kimber Friedrich. On the evening of August 3, 1986, at approximately 10:30 p.m., the three young women went to a party at a friend\u2019s house. While they were waiting in line to get a beer, Patricia heard someone make a comment about all of the hairspray in Kimber\u2019s hair. When Patricia turned around to see who the speaker was, she saw defendant standing with a group of his friends. The young women ignored the comment and walked away. Later, while Patricia, Kimber and Caroline were talking with a group of friends, someone from defendant\u2019s group lunged into Caroline, causing her to spill her drink. Caroline turned around and asked aloud if she was being threatened, and someone from the group raised his hand at her and responded, \u201c[Y]ou damn right, I am threatening you, you f \u2014 ing bitch.\u201d Caroline asked her friend\u2019s brother, who was hosting the party, to tell defendant and his friends to leave. Eventually, defendant and his friends left the party.\nPatricia, Caroline and Kimber left the party 10 to 15 minutes after defendant departed. As the young women approached Kimber\u2019s car, they heard somebody from defendant\u2019s car yell, \u201c[H]ey, you f \u2014 ing whore.\u201d Patricia went up to the car which was parked just ahead of them to see who was calling her names, and she observed defendant in the front passenger seat. Patricia noticed a young woman in the driver\u2019s seat and two young men in the back seat. Patricia went over to defendant, pointed her finger at him and asked him why he was calling her and her friends names. Patricia testified that defendant reached out of the car and slapped her twice. Patricia tried to hit defendant but missed. Defendant opened the car door, knocking Patricia to the ground. Patricia got up and walked toward Caroline and Kimber, who were standing by Kimber\u2019s car. Patricia testified that defendant came up behind her, grabbed her from the back of the neck, turned her around, got on top of her and started punching her in the face.\nCaroline tried to get defendant off of Patricia by striking him with her shoe, but was unsuccessful. Patricia got free, and Caroline attempted to get a can of hairspray from her purse, but defendant grabbed her hand and flung her purse across the street. Patricia crossed the street and held her face because she could not move her jaw. Kimber followed defendant to his car to try to prevent him from leaving, but defendant got into the car and started rolling up the window. Kimber put her hand in the window, and defendant rolled the window up on her thumb, cutting it. Defendant exited the car and began to punch Caroline with a closed fist. While defendant was punching Caroline, a van pulled up and two men got out, pulled defendant off of Caroline and started punching him. Defendant returned to his car and the driver drove away. Patricia was later treated in the hospital emergency room for a sprained ankle and broken jaw.\nDefendant testified in his own behalf and stated that on the night of the party while he was sitting in a parked car with his friends, a girl walked up to him and started yelling, \u201c[Wjhat\u2019s your problemf?]\u201d Defendant testified that nobody liad yelled at her before she approached the car and that she started slapping and punching him. He further testified that he blocked her with his hands and then pushed her away. Defendant stated that he opened the car door and that as he brought his head out of the doorway, he was sprayed with something. Defendant continued to get out of the car and was sprayed again. The substance entered his eyes, nose and mouth, burning his face, eyes, and skin. Defendant testified that he put his head down, covered his face and started swinging in the direction of the spray. Defendant made contact with something or someone, twisted and fell to the ground. Defendant then got up and swung and hit someone again. Defendant returned to the car and got inside, while still being sprayed with the substance. He rolled up the window and they drove away. Two of the persons in the car with defendant both testified that defendant was sprayed with a substance before he started striking the young women.\nDefendant\u2019s girlfriend, the driver of the car, testified that they all went to McDonald\u2019s after the incident to help defendant wash the substance off of his face. She further testified that the yeast-like substance was all over the passenger car window. On May 19, 1987, the court found defendant guilty of two counts of aggravated battery.\nOn June 17, 1987, defendant\u2019s trial counsel filed a motion to reopen defendant\u2019s case in chief on the grounds of newly discovered evidence and a motion for a new trial. On July 1, 1987, the court denied the two post-trial motions and sentenced defendant to serve a 30-month probation conditioned upon periodic imprisonment. On July 22, 1987, defendant, by newly appointed counsel, filed a motion which was captioned, \u201cEmergency Motion to Vacate Judgment of Convictions and to Take Additional Evidence or in the Alternative to Grant a New Trial Based Upon Ineffective Assistance of Counsel.\u201d On August 7, 1987, the court conducted a hearing on defendant\u2019s motion wherein it heard additional testimony from defendant, Donald DeBat, and defendant\u2019s trial counsel. At the conclusion of the hearing, the court found that defendant\u2019s trial counsel should have investigated and interviewed Mr. DeBat and two McDonald\u2019s employees whose testimony was consistent with defendant\u2019s theory of defense. Based on its findings concerning the availability of these witnesses and their credibility, the trial court concluded that the reliability of the outcome of the trial was undermined. The court entered an order vacating the judgment-of conviction and granting defendant a new trial. From this order the State appeals.\nFirst we will address the defendant\u2019s motion to dismiss the State\u2019s appeal which was taken with the case. Defendant argues that the State\u2019s appeal should be dismissed because it was taken from the court\u2019s order which granted his post-trial motion for a new trial, which is not an appealable order. The State responds that its appeal is taken from the court\u2019s order which granted defendant\u2019s post-conviction petition. Because of the reasons which follow, we deny defendant\u2019s motion to dismiss the State\u2019s appeal.\nSection 116 \u2014 1 of the Code of Criminal Procedure of 1963 provides:\n\u201cMotion for a new trial, (a) Following a verdict or finding of guilty the court may grant the defendant a new trial.\n(b) A written motion for a new trial shall be filed within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.\n(c) The motion for a new trial shall specify the grounds therefor.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 116\u20141.\nThe above-quoted statute relating to motions for a new trial provides that such motions \u201cshall\u201d be filed within 30 days following the entry of a verdict or finding of guilty. The time limitations are mandatory and not directory. (People v. Dzielski (1970), 130 Ill. App. 3d 581, 586, 264 N.E.2d 426, 429.) In the present case, defendant was found guilty of aggravated battery on May 19, 1987. Therefore, the \u201cEmergency Motion\u201d filed on July 22, 1987, cannot be construed as a timely motion for a new trial since it was filed more than 30 days after entry of the court\u2019s finding of guilty. In addition, since it is clear from the record that the State objected to the timeliness of the motion and its treatment as a motion for a new trial, the motion cannot be considered timely under the revestment doctrine. See People v. Hubbard (1988), 170 Ill. App. 3d 572, 576, 524 N.E.2d 1263,1265-66.\nThe only logical construction which would preserve the court\u2019s jurisdiction of the defendant\u2019s case following sentencing is to treat the inappropriately captioned motion as a post-conviction petition. The treatment of defendant\u2019s motion as a post-conviction petition is supported by the fact that it raised constitutional issues and was made after sentencing. (See Ill. Rev. Stat. 1987, ch. 38, par. 122\u20141.) We therefore conclude that the July 22, 1987, \u201cEmergency Motion\u201d was properly considered by the court to be a post-conviction petition. Because appeals from the final judgment of the circuit court in post-conviction proceedings are allowed as of right, defendant\u2019s motion to dismiss the State\u2019s appeal is denied. 107 Ill. 2d R. 651(a).\nOn appeal, the State argues that the trial court erred in sustaining defendant\u2019s post-conviction motion based on ineffective assistance of counsel because defendant failed to demonstrate either that his trial counsel\u2019s assistance was unreasonable or that he was prejudiced by the alleged deficiencies in his counsel\u2019s performance. We disagree.\nThe constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel\u2019s representation fell below an objective standard of reasonableness and that counsel\u2019s shortcomings were so serious as to deprive the defendant of a fair trial with a reliable result. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) The defendant must establish that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. (Albanese, 104 Ill. 2d at 525.) Failure to adequately prepare for trial, including failure to conduct an investigation and interview witnesses, has been held to constitute inadequate representation by counsel. (People v. Witherspoon (1973), 55 Ill. 2d 18, 21, 302 N.E.2d 3, 4.) The failure to interview witnesses may indicate actual incompetence, particularly when the witnesses are known to trial counsel and their testimony may be exonerating. People v. Greer (1980), 79 Ill. 2d 103, 123, 402 N.E.2d 203, 212.\nIn the present case, at the post-conviction hearing, defendant\u2019s trial counsel testified that defendant told him that Mr. DeBat observed him on the evening of the incident and saw red marks on his skin as well as a substance on the car window. However, defendant\u2019s trial counsel did not interview Mr. DeBat before trial. Trial counsel testified that he attempted to telephone DeBat at his office, but was unable to contact him. Defendant\u2019s trial counsel did not contact Mr. DeBat at home or subpoena him for trial. At the hearing on defendant\u2019s motion for a new trial, DeBat testified that when defendant entered his home on the evening of the incident, his face, neck and upper body were red.\nDefendant\u2019s trial counsel also testified that he was informed by defendant prior to trial that he and his friends went to a McDonald\u2019s restaurant following the incident to wash a substance from his face and eyes. Defendant also informed his trial attorney that they encountered two McDonald\u2019s employees, one of whom was an off-duty police officer who gave defendant a cloth for his eyes. However, defendant\u2019s attorney did not attempt to ascertain the names of the McDonald\u2019s employees or interview them prior to trial. Following trial, defendant\u2019s trial counsel sent an investigator to McDonald\u2019s who was able to locate and interview two witnesses whose testimony would corroborate defendant\u2019s theory of defense.\nAt the conclusion of the hearing, the trial court found that the testimony of DeBat and the McDonald\u2019s employees was consistent with defendant\u2019s theory of defense. The court further found that the witnesses were readily available and should have been interviewed. The court concluded that the failure to interview the witnesses was not a trial strategy. Based on these findings, the trial court concluded that the reliability of the outcome of the trial was undermined.\nWe concur in the trial court\u2019s findings. It is clear from the record that central to the court\u2019s determination of defendant\u2019s guilt was that it found \u201cnothing which raises any doubt *** that there was no mace used by any of the three girls.\u201d Because the issue of whether or not defendant was maced either before or after he struck the victims was central to the court\u2019s determination, his trial counsel\u2019s failure to interview and present at trial witnesses whose testimony would corroborate his theory of defense resulted in a failure on counsel\u2019s part to meet the objective standard of reasonable competence. In particular, we find that the disinterested testimony of the McDonald\u2019s employees would have assisted the court in making a determination as to both the victims\u2019 and defendant\u2019s credibility. We therefore conclude that, but for trial counsel\u2019s failure, the outcome of the proceeding may have been different.\nFor all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nCERDA, P.J., and WHITE, J., concur.", "type": "majority", "author": "JUSTICE RIZZI" } ], "attorneys": [ "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Nancy G. Kaplan, Assistant State\u2019s Attorneys, of counsel), for the People.", "Michael J. Pelletier and Marc Davidson, both of State Appellate Defender\u2019s Office, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT BARRY, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201487\u20143428\nOpinion filed August 15, 1990.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and Nancy G. Kaplan, Assistant State\u2019s Attorneys, of counsel), for the People.\nMichael J. Pelletier and Marc Davidson, both of State Appellate Defender\u2019s Office, of Chicago, for appellee." }, "file_name": "0212-01", "first_page_order": 234, "last_page_order": 239 }