People v. Allen

908 N.E.2d 579, 391 Ill. App. 3d 412, 330 Ill. Dec. 391, 2009 Ill. App. LEXIS 284
CourtAppellate Court of Illinois
DecidedMay 18, 2009
Docket3-07-0582
StatusPublished
Cited by2 cases

This text of 908 N.E.2d 579 (People v. Allen) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Allen, 908 N.E.2d 579, 391 Ill. App. 3d 412, 330 Ill. Dec. 391, 2009 Ill. App. LEXIS 284 (Ill. Ct. App. 2009).

Opinion

JUSTICE CARTER

delivered the opinion of the court:

The defendant, Calvin L. Allen, pled guilty, pursuant to a fully negotiated plea agreement, to two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2004)). The trial court sentenced the defendant to concurrent sentences of six years in prison for the two counts but stayed the mittimus for 30 days at the defendant’s request. While the mittimus was stayed, the defendant filed a pro se motion, alleging ineffective assistance of counsel. The trial court denied the motion, finding that the defendant’s allegations of ineffective assistance did not have merit and did not warrant the appointment of new counsel. The defendant appeals, arguing that the trial court was required to appoint new counsel prior to engaging in a preliminary investigation into the merits of his allegations when he made his pro se claims of ineffective assistance of counsel in postplea proceedings. We affirm.

FACTS

On March 30, 2005, the defendant was charged with two counts of the Class 2 felony offense of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2004)). One count alleged that the defendant committed the offense alone on January 19, 2005, and the other count alleged that the defendant committed the offense with Lashelle McDonald on January 21, 2005.

On February 26, 2007, the defendant pled guilty to the two counts, pursuant to an agreement with the State. The agreement provided that the defendant would be sentenced to concurrent sentences of six years in prison for the two counts because he had to be sentenced as a Class X offender due to his prior Class 1 and Class 2 felony convictions. See 730 ILCS 5/5 — 5—3(c)(8) (West 2006) (stating that a defendant shall be sentenced as a Class X offender following a conviction for Class 1 or Class 2 felony when he or she has been previously twice convicted of a Class 2 or greater Class felony). The agreement also provided that the State would dismiss the charges in case Nos. 05 — CM—452 and 07 — CF—05.

The trial court admonished the defendant, and the State provided the factual bases for the charged offenses. The factual bases showed that the defendant sold cocaine to an undercover police officer on both dates at issue and that on the second occasion, the officer contacted codefendant McDonald to set up the transaction with the defendant. The trial court advised the defendant of his rights and questioned him to determine whether he was making his plea voluntarily. The defendant stated that he entered the plea voluntarily and that he had not been threatened. The defendant also stated that he was satisfied with his attorney’s services. The trial court determined that the defendant’s plea was voluntary and accepted his plea. The trial court approved the agreement between the parties and sentenced the defendant to concurrent sentences of six years in prison for the two counts of unlawful delivery of a controlled substance. The trial court advised the defendant of his right to appeal and, at the defendant’s request, stayed the mittimus for 30 days.

On March 6, 2007, the defendant filed a pro se motion, alleging ineffective assistance of counsel. The allegations were supplemented by a document filed on March 20, 2007. The defendant claimed that his counsel was ineffective because counsel: (1) refused to file a motion for a lineup after the defendant asked her to do so; (2) refused to call McDonald, the codefendant, at trial, if one was held, even though defendant believed her testimony would relieve him from “discriminating evidence”; (3) did not communicate with the defendant despite his requests for an appointment; (4) did not move to have the case dismissed for a speedy trial violation; (5) violated attorney-client confidentiality when she discussed the case in open court with another person; (6) never requested an evaluation from Treatment Alternatives to Street Crime (TASC); (7) did not submit a defense of entrapment when defendant asked her to do so; and (8) did not give the defendant copies of discovery and other records from the case.

On March 28, 2007, the trial court held a hearing on the defendant’s motion. The trial court asked the defendant and his counsel to address each allegation in the petition so that it could determine whether the allegations had merit and whether to appoint new counsel for a hearing on the motion.

The defendant stated that he requested that counsel move for a lineup because he believed that he could not be positively identified by the officer as the person who committed one of the counts of unlawful delivery of a controlled substance. Counsel responded that she refused the defendant’s request for a lineup as a matter of trial strategy and because she did not believe she had the authority to request one. She also noted that discovery showed that the officer, who bought the cocaine from the defendant, indicated that he only dealt with the defendant for the two transactions at issue.

The defendant stated that he wanted to call codefendant McDonald because she could have explained what happened and furthered his defense of entrapment, which he wanted counsel to pursue. Counsel noted that the case was resolved by a plea and that she would not have called the codefendant as a matter of trial strategy had the case gone to trial. Counsel also noted that McDonald was only involved in one of the transactions at issue and that the evidence in the case showed that the officer only dealt with the defendant.

Counsel responded to the allegation that she did not communicate with the defendant by stating that she had an appointment at her office with the defendant on February 10, 2006, that she discussed the case with him at every court date, and that she had several telephone conversations with the defendant about the case.

With regard to the speedy trial allegation, counsel stated that the defendant did not request that she file a speedy trial demand after he was released on bail, that the defendant did not object to the State’s requests for continuances, and that the defendant even requested a continuance. The record did not contain a written demand for a speedy trial.

The defendant stated that counsel violated attorney-client confidentiality when she spoke to another public defender in open court about a possible entrapment defense. Counsel admitted that she spoke with another public defender about the entrapment defense to provide another perspective, but she explained that the duty of confidentiality was not breached because the attorney-client privilege extended to her colleagues in the public defender’s office. Counsel also stated that she did not pursue an entrapment defense because she and her colleague determined that it was not a viable defense.

Counsel responded to the defendant’s allegations regarding a TASC evaluation. She stated that the defendant had been evaluated for TASC treatment and was found to be acceptable for such treatment in a report dated September 1, 2005. However, he was statutorily prohibited from TASC treatment because he was a Class X offender. See 730 ILCS 5/5

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Cite This Page — Counsel Stack

Bluebook (online)
908 N.E.2d 579, 391 Ill. App. 3d 412, 330 Ill. Dec. 391, 2009 Ill. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-allen-illappct-2009.