{ "id": 5371905, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant", "name_abbreviation": "People v. Parsons", "decision_date": "1994-04-15", "docket_number": "Nos. 1\u201492\u20141550, 1\u201493\u20141288 cons.", "first_page": "663", "last_page": "670", "citations": [ { "type": "official", "cite": "261 Ill. App. 3d 663" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "360 N.E.2d 1324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 630", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975804 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0630-01" ] }, { "cite": "363 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5635530 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0065-01" ] }, { "cite": "445 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0641-01" ] }, { "cite": "502 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503155 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0988-01" ] }, { "cite": "523 N.E.2d 1184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 996", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3552047 ], "pin_cites": [ { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0996-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "691" }, { "page": "696" }, { "page": "2066" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "442 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3098125 ], "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0271-01" ] }, { "cite": "572 N.E.2d 895", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "143 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/143/0082-01" ] }, { "cite": "474 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436205 ], "weight": 2, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0128-01" ] }, { "cite": "464 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] }, { "cite": "584 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 823", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261249 ], "weight": 8, "pin_cites": [ { "page": "831" }, { "page": "830-31" }, { "page": "831" }, { "page": "827-28" }, { "page": "831" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0823-01" ] } ], "analysis": { "cardinality": 675, "char_count": 17961, "ocr_confidence": 0.8, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15852989884738453 }, "sha256": "87259f926bad7e7b8fee7597d9d18ea918da5280df3fbae2c062f6178d12ba0d", "simhash": "1:abe871ea77461592", "word_count": 2968 }, "last_updated": "2023-07-14T17:03:20.371410+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Ronald Parsons, was found guilty of possession of a controlled substance with intent to deliver and sentenced to 12 years in prison, three years\u2019 mandatory supervised release and a fine of $40,000. Defendant subsequently appealed his conviction, and on December 6, 1991, this court issued its opinion (People v. Parsons (1991), 222 Ill. App. 3d 823, 584 N.E.2d 442) (Parsons I), remanding the case to the trial court for a hearing to determine whether trial counsel\u2019s failure to call a witness constituted trial strategy or neglect.\nOn March 30, 1992, a remand hearing was held before the trial court. At the hearing, the court asked trial counsel to comment on whether he had interviewed the witness and his reasons for not calling him. The trial court then concluded that trial counsel\u2019s failure to call the witness was a matter of trial strategy., This appeal followed. The issues on appeal are: (1) whether the trial court\u2019s decision to deny defendant\u2019s privately retained counsel leave to file a supplemental appearance, and memorandum of law on remand and not allow counsel to address the court or present oral argument, denied defendant counsel of his choice and a fair hearing; (2) whether the trial court erred in not making a proper inquiry of defense counsel as directed by the order of this court in the manner mandated by People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045; and (3) whether the trial court erred in its finding that trial counsel\u2019s omissions were trial strategy.\nIn Parsons I we remanded the case to the trial court for a hearing to determine trial counsel\u2019s reasons for not calling the informant, Ronald Nemerow. Our ruling was based on defendant\u2019s statement that trial counsel had failed to interview the witness, defendant\u2019s wife\u2019s comment that the informant told her he had dropped cocaine in defendant\u2019s car, and the existence of a written statement from the informant, whose contents were unknown to the court but which may have been helpful. We concluded that the record was not clear as to whether trial counsel\u2019s decision not to call the witness was neglect or trial strategy and whether trial counsel ever interviewed the witness. In remanding the case for clarification of this issue, we stated:\n\"In holding as we do, we emphasize that w\u00e9 are not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel\u2019s incompetence. Rather, we remand only for the purpose of the interchange mandated by Jackson [(131 Ill. App. 3d 128, 474 N.E.2d 466)] and Nitz [(143 Ill. 2d 82, 572 N.E.2d 895)]. If, for example, defendant\u2019s trial counsel indicates to the court that Nemerow was in fact interviewed and that counsel determined Nemerow\u2019s testimony would not be helpful to defendant, then the matter would clearly be one of trial strategy, and defendant\u2019s informal pro se motion would properly be denied.\u201d (Parsons, 222 Ill. App. 3d at 831.)\nAt the hearing, the trial court stated that the purpose was to determine whether Nemerow was interviewed and what trial counsel\u2019s reason was for not presenting him as a witness at the trial. Trial counsel was then asked to respond to the questions raised by this court in Parsons I. Trial counsel informed the court that while the trial was in progress he interviewed Nemerow. During the interview Nemerow informed trial counsel that, if called as a witness, he would not admit to being in possession of cocaine while in defendant\u2019s car. Therefore, trial counsel decided not to call him as a witness for the defense.\nAlso attending the remand hearing was defendant\u2019s new privately retained counsel (Zisook). The court then asked defendant if he would like to make a statement. After defendant\u2019s statement, Zisook requested leave to address the court. The trial court then stated:\n\"Well I\u2019ll tell you, Mr. Zisook, I that it\u2019s out of place. I understand that you\u2019ve been very faithful in coming here but my understanding is that\u2014as the Court that is indicated that this is not for an evidentiary hearing and appointment of counsel. It\u2019s only for the purpose of determining whether Nemerow was interviewed and whether counsel determined that his testimony would not be helpful to the defendant.\u201d\nThen Zisook stated that he had a motion pending to file a supplemental appearance, that defendant had asked Zisook to represent him at that proceeding, and that Zisook had facts that he would like to bring to the court\u2019s attention. The court responded that its interpretation of the opinion was that it was only directed to have a \"colloquy\u201d with trial counsel and possibly defendant which had already been done. The trial court then concluded that based on the statements of trial counsel and defendant, the decision not to call Nemerow was a decision of trial strategy. Zisook attempted to pursue the matter further and stated that he had requested leave to file a remand memorandum and Nemerow\u2019s affidavit. The trial court denied Zisook\u2019s request stating that most of the content of the affidavit had already been addressed by the appellate court. The trial court stated that it was only going to deal with the sole issue that the appellate court gave it to address and that having addressed that issue, the trial court\u2019s participation in the case was concluded.\nDefendant first contends that the trial court on remand denied him a fair hearing and counsel of his choice by denying defendant\u2019s privately retained counsel leave to file a supplemental appearance, memorandum of law and by not allowing counsel to present oral argument or otherwise address the court at the remand hearing. Defendant argues that his privately retained counsel should have been allowed to represent him at the remand hearing because there was an inherent conflict in trial counsel\u2019s representing defendant on defendant\u2019s ineffective assistance of counsel claim. Defendant further argues that he filed an affidavit with the court stating that he had retained private counsel rather than trial counsel to represent him on remand. Defendant claims that by denying his private counsel leave to file a memorandum of law or to address the court on defendant\u2019s behalf, the court has denied him effective representation as well as a voice in the hearing through which he could make a meaningful argument as to whether trial counsel\u2019s omissions were trial strategy or ineffective representation.\nWhile one may argue that a better course of action would have been to allow counsel to appear and argue, the question is whether it is reversible error not to do so. We conclude that it was not, where the trial court complied with the remand order and conducted an evidentiary hearing as required by Jackson and Nitz. The Parsons I mandate specifically stated that it was not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel\u2019s incompetence. It was this mandate which the trial court was following when it denied defendant\u2019s private counsel leave to participate in the remand hearing. As noted by the court in People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 276, 442 N.E.2d 185:\n\"[A] trial court must obey the clear and unambiguous directions in a mandate issued by a reviewing court. [Citations.] '[T]he rule is that \"[w]here *** the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed.\u201d \u2019 [Citation.] Thus, when a reviewing court issues a mandate, it vests the trial court with jurisdiction to only such action as conforms to that mandate.\u201d\nIn the case sub judice, this court issued a specific mandate to the trial court as follows:\n\"Absent any explanation from trial counsel as to why Nemerow was not called and the lack of a showing that Nemerow was actually interviewed, we hold that the case is to be remanded for clarification of this issue.\u201d (Parsons, 222 Ill. App. 3d at 830-31.)\nThe Parsons I mandate, as previously quoted, stated that it was only remanding for the purpose of the interchange mandated by Jackson and Nitz. If trial counsel did interview Nemerow and determined that Nemerow\u2019s testimony would not be helpful to defendant, then the decision not to call him as a witness would be trial strategy. (Parsons, 222 Ill. App. 3d at 831.) In People v. Jackson, the court stated:\n\"The trial court should examine the factual matters underlying the defendant\u2019s claim. *** If the claim goes to matters of trial tactics or strategy, the defendant\u2019s claim should be found spurious and his request for new counsel denied. *** If, however, the factual matters show possible neglect of the defendant\u2019s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant\u2019s claim and present the matter to the court from a detached, yet adversarial, position.\u201d Jackson, 131 Ill. App. 3d at 139.\nSee also People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895.\nThus, According to Nitz and Jackson, an evidentiary hearing and appointment of counsel should be provided only after a determination, is made that trial counsel\u2019s omissions were not trial strategy. Because the court determined that trial counsel\u2019s failure to call Nemerow was trial strategy, the trial court\u2019s denial of Zisook\u2019s requests was in compliance with the appellate court mandate.\nDefendant next contends that the trial court failed to make proper inquiry of defense counsel as directed by the order of this court in the manner mandated by Krankel (102 Ill. 2d 181, 464 N.E.2d 1045). Defendant claims that rather than question trial counsel regarding the various omissions raised by defendant, the trial court only asked trial counsel to make a statement regarding the concerns expressed in this court\u2019s opinion. (See Parsons, 222 Ill. App. 3d 823.) Defendant argues that the trial court\u2019s inquiry of trial counsel was improper because, although the court did question him as to whether he had interviewed Nemerow, the court failed to inquire as to why Nemerow was not interviewed prior to trial. Defendant claims that he was prejudiced by trial counsel\u2019s reference in his opening statement to Nemerow\u2019s testimony and what the evidence would show. Defendant reasons that if Nemerow had been interviewed prior to trial, trial counsel would not have referred to evidence in his opening statement that he was unable to produce.\nHowever, at the time of defendant\u2019s first appeal, this court noted that, contrary to defendant\u2019s allegation, defense counsel did not tell the jury that they would hear Nemerow testify. (See Parsons, 222 Ill. App. 3d at 827-28.) Furthermore, as noted above, the trial court was required to strictly follow the mandate of this court which was to determine whether Nemerow was interviewed by counsel and why trial counsel had not called him as a witness. Parsons, 222 Ill. App. 3d at 831.\nDefendant also argues that the trial court should have inquired as to why trial counsel failed to use Nemerow\u2019s statement at the trial. Defendant claims that the statement would have been helpful because it would have established Nemerow\u2019s presence in defendant\u2019s car and his leaving a plastic bag there. In addition, if trial counsel had presented Nemerow as a witness and Nemerow had denied leaving the cocaine in defendant\u2019s car, trial counsel could have used Nemerow\u2019s statement to impeach him. However, in arguing as he has, defendant has ignored the conclusion of this court that any issues regarding Nemerow\u2019s statement would not be addressed because the document was not part of the record on appeal. Parsons, 222 Ill. App. 3d at 828.\nFor these reasons, we conclude that the trial court did make a proper inquiry of trial counsel as directed by this court\u2019s remand order in Parsons I.\nDefendant\u2019s final contention is that the trial courts finding that trial counsel\u2019s omissions were trial strategy was against the manifest weight of the evidence. We first note that the only omission that the trial court was directed by this court to rule on was trial counsel\u2019s failure to call Nemerow as a witness. At the hearing on remand trial counsel informed the trial court that he did not call Nemerow to testify because Nemerow refused to testify that he placed the cocaine in defendant\u2019s car. Defendant argues that Nemerow\u2019s testimony would have been helpful to the defense even if it was unfavorable because he could have been impeached with his statement. However, Nemerow\u2019s statement was not part of the record on appeal, and trial counsel\u2019s failure to present the document at the trial was not one of trial counsel\u2019s alleged omissions which this court reviewed or directed the trial court to consider on remand. Therefore, Nemerow\u2019s statement was not available to the trial court when it ruled that trial counsel\u2019s failure to call Nemerow was trial strategy.\nIn order to establish ineffective assistance of counsel, defendant must show that his counsel\u2019s conduct fell below an objective standard of reasonableness and counsel\u2019s erroneous conduct was prejudicial to the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) It is not enough for defendant to show that counsel\u2019s errors had some effect on the outcome of the trial. In order to meet the two-part test of Strickland, defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the trial would have been different. (People v. Thurman (1988), 169 Ill. App. 3d 996, 1004, 523 N.E.2d 1184.) \"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.\u201d Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 696, 104 S. Ct. at 2066.\nIn order to establish that trial counsel in the case sub judice was ineffective, defendant must prove that if trial counsel had called Nemerow to testify, the outcome of the trial would have been different. Because Nemerow\u2019s statement was never introduced into evidence and was not included in the record on appeal, the impact of Nemerow\u2019s trial testimony on the outcome of the trial must be considered without this document. Therefore, even if Nemerow had been called as a witness, his testimony would not have altered the outcome of the trial where all of the State\u2019s witnesses testified that Nemerow did not enter defendant\u2019s vehicle, cocaine was found in the steering column of defendant\u2019s car, and no drugs were found in Nemerow\u2019s van. We also conclude that trial counsel\u2019s failure to call Nemerow as a witness did not fall below the objective standard of reasonableness. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.\nDefendant argues that trial counsel\u2019s failure to call Nemerow after informing the jury in his opening statement that Nemerow would testify was prejudicial to defendant. However, as this court noted, while trial counsel referred to Nemerow\u2019s arrests for drug offenses, trial counsel did not inform the jury that Nemerow would testify.\nDefendant cites several cases in support of his argument that trial counsel\u2019s failure to present evidence at the trial that he addressed in his opening statement was reversible error. However, in those cases trial counsel\u2019s unsupported statements were considered prejudicial to the opposing party as opposed to this case where we have reached a contrary conclusion. In Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 385, a suit against the city for injuries due to a motor vehicle accident, the basis of the plaintiffs\u2019 case was that the accident was due to poor maintenance of the road and the presence of potholes. In his opening statement defense counsel made several comments that one of the plaintiffs had been intoxicated at the time of the accident but did not support these prejudicial remarks with evidence during the trial. In Sawicki v. Kim (1983), 112 Ill. App. 3d 641, 445 N.E.2d 63, plaintiff\u2019s counsel made a comment in opening statement referring to defendant\u2019s settlement offer and that it was an admission of liability. The court held that counsel\u2019s statements were prejudicial because of the inadmissibility of statements regarding offers of settlement. In People v. Parks (1977), 49 Ill. App. 3d 65, 363 N.E.2d 93, the State commented in opening statement that several witnesses saw defendant sell the victim\u2019s coat to someone but the witnesses were never produced at the trial. In Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 360 N.E.2d 1324, a dramshop action based on wilful and wanton assault, plaintiffs counsel stated that a witness would testify that defendant had threatened him but did not produce the witness. The court held that counsel\u2019s statement was prejudicial particularly because of the weakness of plaintiffs case. In the case sub judice, trial counsel\u2019s unsupported references to Nemerow\u2019s arrests for possession of cocaine did not result in prejudice to defendant and did not affect the outcome of the trial.\nWe, thus, conclude that the trial court\u2019s finding that trial counsel\u2019s failure to call Nemerow as a witness was trial strategy is not against the manifest weight of the evidence.\nAccordingly, the order of the circuit court on remand is affirmed.\nAffirmed.\nEGAN, P.J., and GIANNIS, J., concur.", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "Deutsch, Levy & Engel, Chartered, of Chicago (Phillip J. Zisook, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Holly L. Rappin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant.\nFirst District (6th Division)\nNos. 1\u201492\u20141550, 1\u201493\u20141288 cons.\nOpinion filed April 15, 1994.\nDeutsch, Levy & Engel, Chartered, of Chicago (Phillip J. Zisook, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Holly L. Rappin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0663-01", "first_page_order": 681, "last_page_order": 688 }