{ "id": 5732049, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY W. SHOEMAKER, Defendant-Appellant", "name_abbreviation": "People v. Shoemaker", "decision_date": "2005-06-30", "docket_number": "Nos. 4-03-0744, 4-03-0930 cons.", "first_page": "257", "last_page": "262", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 257" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "599 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "932" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599350 ], "year": 1992, "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0540-01" ] }, { "cite": "820 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1079-80", "parenthetical": "counsel conceded the defendant's possession of drugs but attacked element of knowledge" } ], "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3215208 ], "year": 2004, "pin_cites": [ { "page": "290", "parenthetical": "counsel conceded the defendant's possession of drugs but attacked element of knowledge" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0283-01" ] }, { "cite": "540 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8896672 ], "weight": 15, "year": 2003, "pin_cites": [ { "page": "3" }, { "page": "6" }, { "page": "3" }, { "page": "5-6" }, { "page": "7-8" }, { "page": "4" }, { "page": "9" }, { "page": "10" }, { "page": "6" }, { "page": "11" }, { "page": "11" }, { "page": "7" }, { "page": "6" }, { "page": "8" }, { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/us/540/0001-01" ] }, { "cite": "535 U.S. 685", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354940 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "701-02" }, { "page": "931" }, { "page": "1854" } ], "opinion_index": 0, "case_paths": [ "/us/535/0685-01" ] }, { "cite": "538 N.E.2d 1118", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1125" }, { "page": "1125", "parenthetical": "counsel asserted a theory of defense on a number of charges and vigorously contested that defendant was eligible for the death penalty" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228419 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "269" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0253-01" ] }, { "cite": "488 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "109 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125912 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/109/0449-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "659" }, { "page": "668" }, { "page": "2047" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "794 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "206 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578326 ], "year": 2002, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0293-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "689" }, { "page": "694-95" }, { "page": "2065" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 816, "char_count": 13642, "ocr_confidence": 0.76, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2832350457497715 }, "sha256": "77d2388ba45860333d642c090c1c26fc356210d8d14cf434279a8bb1e0ad52f9", "simhash": "1:eaecd5de274f8dd0", "word_count": 2278 }, "last_updated": "2023-07-14T22:37:08.387494+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. TONY W. SHOEMAKER, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nIn May 2000, defendant, Tony W. Shoemaker, entered an open plea to one count of aggravated criminal sexual assault (720 ILCS 5/12\u2014 14(a)(2) (West 1998)) and one count of home invasion (720 ILCS 5/12\u2014 11(a)(2) (West 1998)) committed on February 16, 2000. On June 16, 2000, the trial court sentenced defendant to consecutive 30-year prison terms, stating that in committing these crimes defendant had \u201cforfeited his right to live among us.\u201d The trial court applied the' \u201ctruth-in-sentencing\u201d provision of the Unified Code of Corrections (Unified Code), requiring defendant to serve at least 85% of his sentence. See 730 ILCS 5/3 \u2014 6\u20143(a)(2)(ii), (a)(2)(iii) (West 1998).\nDefendant filed a number of pro se motions that essentially alleged ineffective assistance of counsel. The trial court struck those motions, stating that defendant could not file pro se motions while he was represented by counsel. On April 8, 2002, this court reversed the trial court\u2019s order striking defendant\u2019s pro se motions and remanded for a hearing on defendant\u2019s ineffective-assistance-of-counsel claim. People v. Shoemaker, No. 4 \u2014 01\u20140300 (April 8, 2002) (unpublished order under Supreme Court Rule 23). On remand, the trial court appointed new counsel for defendant, who filed a posttrial motion urging the trial court to permit withdrawal of defendant\u2019s guilty plea, or in the alternative, reconsider the sentence imposed on defendant, on the basis defendant\u2019s trial counsel was ineffective. The court conducted a hearing on October 30, 2003, and denied the motion. Defendant filed a notice of appeal, docketed as No. 4 \u2014 03\u20140930. Previously, on August 26, 2003, defendant filed a notice of appeal from the August 11, 2003, summary dismissal of his May 2003 postconviction petition, docketed as No. 4 \u2014 03\u20140744. We have consolidated the appeals.\nI. BACKGROUND\nAt the June 16, 2000, sentencing hearing, evidence was presented that the victim had known defendant for about four years. Defendant\u2019s father owned a construction company that had done extensive work on the victim\u2019s home. Defendant broke into the home through a basement window. The victim was awakened when defendant entered her bedroom. From approximately 1 a.m. to 7 a.m., defendant sexually assaulted the victim, performing multiple sexual acts that were extremely painful to her. Defendant grabbed the victim by the hair and told her, \u201cshut up or I\u2019ll kill you.\u201d Defendant repeatedly struck the victim. At one time, he knocked the wind out of her. She passed out once while being choked. Throughout the incident, defendant repeatedly told the victim he was going to kill her because he was not going to go back to prison.\nTrial counsel\u2019s strategy at the June 2000 sentencing hearing was to discuss sentences other defendants had received in murder cases that had been before the trial court for sentencing. Counsel emphasized that defendant did not kill anyone and asked for a sentence similar to those given in the murder cases. At the sentencing hearing, defendant\u2019s trial counsel made the following remarks:\n\u201cYour Honor, a few years ago I was appointed the [p]ublic [d]efender of Morgan County, and I took an oath to defend individuals to the best of my ability. I\u2019d like to think that during that time\u2014 I\u2019ve represented a few traffic cases, a few misdemeanors, maybe even a few felonies \u2014 that I actually helped somebody and they were happy that I represented them. But there are those cases that I\u2019m appointed to represent that are just not much fun, and this is the coup de grace, so to speak. What [defendant] did in February is one of the most filthy, disgusting, things Fve ever heard of, and I in no way am going to stand here and try to argue that it was not. It\u2019s sickening, it\u2019s disgusting, it\u2019s wrong, and he\u2019s going to prison today. And he knows that. I mean, being around him Pm not real happy. Pm not friends with [defendant]. But, Your Honor, as I stated, I took an oath, and due to that I have to make sure [defendant] gets a fair sentence before this [c]ourt today.\nNow, one thing I will say during my time appearing before this [c]ourt is I\u2019ve been here on sentencing hearings for murder cases. I\u2019ve been here for felonies, misdemeanors, [and] traffic cases. And this [c]ourt has always been very consistent with its sentencing guidelines, and that\u2019s one of the things I\u2019ve always took pride in being before this [c]ourt is I know I\u2019m going to get a fair sentence.\nNow, with all the evidence we\u2019ve heard here today from [the victim] and the victim [-] impact statement that she wrote and the information in the [presentence investigation report], one thing stands out, and that is the fact that she was able to write a victim [- ]impaet statement; that she was able to come here today and testify. And the point I\u2019m trying to make, Your Honor, is that [the victim] is not dead. [She] is alive. She has her life. It\u2019s damaged. I\u2019m not trying to say it\u2019s not. And I in no way wish to diminish the impact this is going to have on the rest of her life. But [defendant] is here today to be sentenced for aggravated criminal sexual assault and home invasion, not for murder.\u201d (Emphases added.)\nCounsel then discussed the two previous murder cases before the court. Counsel pointed out one of the victims had been raped before being murdered and one of the defendants in that case received a 25-year sentence while the other received a 30-year sentence. In the other case, one defendant received 20 years\u2019 imprisonment while the other received a 25-year sentence.\nCounsel then stated:\n\u201cOnce again, Your Honor, I want to reiterate, I am in no way trying to dimmish what happened here. But all we\u2019re asking for from the [c]ourt is consistency. If the [c]ourt takes the State\u2019s recommendation and sentences [defendant] to 80 years in prison, what\u2019s the message we\u2019re sending out there? What\u2019s the message we\u2019re sending? Well, if you\u2019re going to do something like this you\u2019d better kill your victim, because if you don\u2019t you\u2019re going to prison for a long time. But if you kill them now there\u2019s no evidence of home invasion, we don\u2019t know how long this whole thing took place, and you\u2019re going to get a lighter sentence. We\u2019re asking the [c]ourt to be consistent. We\u2019re asking the [c]ourt to sentence [defendant] consistently with the cases that have been before the [c]ourt in the past.\u201d\nDefense counsel stated a sentence in the range of 20 to 24 years would be consistent with \u201cthe sentences that this [c]ourt has handed down in the past for murders. Defendant is not a murderer.\u201d\nII. ANALYSIS\nClaims of ineffective assistance of counsel are examined under the two-pronged performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Harris, 206 Ill. 2d 293, 303, 794 N.E.2d 181, 189 (2002); see W. LaFave, J. Israel & N. King, Criminal Procedure \u00a7 11.10(c), at 132 (2d ed. supp. 2005). Under Strickland, reviewing courts entertain a strong presumption that the attorney\u2019s performance was a product of sound trial strategy and professional judgment. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. However, where \u201ccounsel entirely fails to subject the prosecution\u2019s case to meaningful adversarial testing, then there has been a denial of [s]ixth [a]mendment rights that makes the adversary process itself presumptively unreliable.\u201d (Emphasis added.) United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). A Cronic violation was found in People v. Hattery, 109 Ill. 2d 449, 488 N.E.2d 513 (1985), where defense counsel conceded the defendant was guilty of murder and eligible for the death penalty. The supreme court, however, concerned that an unscrupulous defense counsel might deliberately concede his client\u2019s guilt in order to lay the groundwork for a later reversal, has narrowly construed Hattery. People v. Johnson, 128 Ill. 2d 253, 269, 538 N.E.2d 1118, 1125 (1989). \u201cIn situations where there is overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to lose credibility with the trier of fact when it comes to charges where a legitimate defense exists.\u201d Johnson, 128 Ill. 2d at 270, 538 N.E.2d at 1125 (counsel asserted a theory of defense on a number of charges and vigorously contested that defendant was eligible for the death penalty). It is not necessarily ineffective assistance for a defense counsel to waive closing argument at a capital sentencing hearing; waiving argument may have the advantage of preventing an impassioned rebuttal argument by the prosecutor. See Bell v. Cone, 535 U.S. 685, 701-02, 152 L. Ed. 2d 914, 931, 122 S. Ct. 1843, 1854 (2002).\nThe Supreme Court has refused to find ineffective assistance where counsel argued his client was a \u201c \u2018bad person, lousy drug addict, stinking thief, jail bird.\u2019 \u201d Yarborough v. Gentry, 540 U.S. 1, 3, 157 L. Ed. 2d 1, 6, 124 S. Ct. 1, 3 (2003). Although the right to effective assistance extends to closing arguments, deference is particularly important because of the broad range of defense strategy at that stage. Yarborough, 540 U.S. at 5-6, 157 L. Ed. 2d at 7-8, 124 S. Ct. at 4. The Court rejected the Ninth Circuit\u2019s criticism of the quoted remarks, which the Ninth Circuit apparently viewed\n\u201cas a gratuitous swipe at Gentry\u2019s character. While confessing a client\u2019s shortcomings might remind the jury of facts they otherwise would have forgotten, it might also convince them to put aside facts they would have remembered in any event. This is precisely the sort of calculated risk that lies at the heart of an advocate\u2019s discretion. By candidly acknowledging his client\u2019s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case.\u201d Yarborough, 540 U.S. at 9, 157 L. Ed. 2d at 10, 124 S. Ct. at 6.\nThe Supreme Court cited a number of works on trial techniques to support its position, concluding with Aristotle: \u201c \u2018A speech should indicate to the audience that the speaker shares the attitudes of the listener, so that, in turn, the listener will respond positively to the views of the speaker.\u2019 \u201d Yarborough, 540 U.S. at 11, 157 L. Ed. 2d at 11, 124 S. Ct. at 7, quoting P. Lagarias, Effective Closing Argument \u00a7\u00a7 2.05 through 2.06, at 99-101 (1989) (citing Aristotle\u2019s Rhetoric).\nThis case has differences from Yarborough. Yarborough was a habeas corpus case, where the Ninth Circuit had reversed a finding of the state court. Judicial review of a defense attorney\u2019s summation is \u201cdoubly deferential when it is conducted through the lens of federal habeas.\u201d Yarborough, 540 U.S. at 6, 157 L. Ed. 2d at 8, 124 S. Ct. at 4. Yarborough also involved a closing argument to a jury, while the present case involved an argument to a judge, on sentencing. The remarks in the present case also appear to be more extensive than those in Yarborough. Nevertheless, we cannot say that defense counsel\u2019s representation in this case was ineffective.\nThis is not a case where defense counsel completely failed to test the prosecution\u2019s case. Certainly the argument that murderers received lesser sentences than the maximum nonextended consecutive sentences in this case was a reasonable argument. Nor can we conclude that counsel\u2019s disparaging remarks were nothing more than \u201ca gratuitous swipe at [defendant\u2019s] character.\u201d The argument was made to the trial court, not to a jury, and the trial court already knew that defendant\u2019s actions were filthy and disgusting. As in Yarborough, by candidly acknowledging his client\u2019s shortcomings, counsel may have built credibility with the court and persuaded the court to focus its attention not on defendant\u2019s character, but the sentencing structure that might punish defendant more severely than a murderer. Counsel\u2019s strategy does not constitute ineffective assistance simply because it was unsuccessful. People v. Milton, 354 Ill. App. 3d 283, 290, 820 N.E.2d 1074, 1079-80 (2004) (counsel conceded the defendant\u2019s possession of drugs but attacked element of knowledge).\nDefendant also argues defense counsel was ineffective for failing to call him and several character witnesses to testify at the sentencing hearing. At the October 30, 2003, evidentiary hearing, defendant was given an opportunity to state what he could have testified to. Defendant was unable to add anything to the facts already known to the court. Defendant attached affidavits from his suggested character witnesses, but those affidavits said only that they had testimony they believed would have helped defendant. Defense counsel testified that he made a conscious choice not to put on family members to testify as to defendant\u2019s character. Defendant has failed to show that the witnesses would have made a difference in the sentence he received. See People v. Jackson, 149 Ill. 2d 540, 553-54, 599 N.E.2d 926, 932 (1992). The trial court did not err in summarily dismissing defendant\u2019s post-conviction petition.\nIII. CONCLUSION\nWe affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER and MYERSCOUGH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE COOK" } ], "attorneys": [ "Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Chris Reif, State\u2019s Attorney, of Jacksonville (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY W. SHOEMAKER, Defendant-Appellant.\nFourth District\nNos. 4\u201403\u20140744, 4\u201403\u20140930 cons.\nOpinion filed June 30, 2005.\nDaniel D. Yuhas and Karen Munoz, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nChris Reif, State\u2019s Attorney, of Jacksonville (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0257-01", "first_page_order": 275, "last_page_order": 280 }