People v. Bailey

846 N.E.2d 147, 364 Ill. App. 3d 404, 301 Ill. Dec. 185
CourtAppellate Court of Illinois
DecidedMarch 28, 2006
Docket4-02-0967
StatusPublished

This text of 846 N.E.2d 147 (People v. Bailey) 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. Bailey, 846 N.E.2d 147, 364 Ill. App. 3d 404, 301 Ill. Dec. 185 (Ill. Ct. App. 2006).

Opinion

846 N.E.2d 147 (2006)
364 Ill. App.3d 404
301 Ill.Dec. 185

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Shurese Yvette BAILEY, Defendant-Appellant.

No. 4-02-0967.

Appellate Court of Illinois, Fourth District.

March 28, 2006.

*148 Daniel D. Yuhas (Court-appointed), Keleigh L. Biggins, Assistant Defender, office of State Appellate Defender, Springfield, for Shurese Yvette Bailey.

Julia Rietz, State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Thomas R. Ewick, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice MYERSCOUGH delivered the opinion of the court:

On October 17, 2002, a jury convicted defendant, Shurese Yvette Bailey, of felony first degree murder (720 ILCS 5/9-1(a)(3) (West 2000)), concealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 2000)), and robbery (720 ILCS 5/18-1(a) (West 2000)). The trial court sentenced her to 30 years' imprisonment for murder, 5 years' imprisonment for concealment, and 5 years' imprisonment for robbery. Defendant appeals, arguing (1) her conviction and sentence for robbery must be vacated under the one-act, one-crime rule; (2) counsel was ineffective for filing a perfunctory postsentencing motion that failed to assert or preserve any sentencing issues *149 for appeal; (3) her sentence should be reduced because it is excessively disparate to that of her more culpable codefendants; and (4) she is owed a day of sentence credit. We affirm as modified.

I. BACKGROUND

In April 2001, Danny Nelson's body was found in a drainage ditch on Windsor Road in Champaign. The State charged defendant, Jamie Boyd, Misty Dawn Marie Moreman Blandin, and Nathan Adams with various offenses related to Nelson's murder. Specifically, defendant was indicted on 14 counts of first degree murder, concealment of a homicidal death, and two counts of armed robbery. The facts of the crime are set out in detail in our decision in People v. Adams, No. 4-02-0684 (May 14, 2004) (unpublished order under Supreme Court Rule 23).

As part of an agreement with the State, defendant (1) provided police with a statement concerning her knowledge of Nelson's death, (2) agreed to testify against Boyd, Blandin, and Adams, and (3) agreed to plead guilty to first degree murder. In exchange, the State would recommend 20 years' imprisonment. Defendant testified for the State at Adams' trial, and Adams was convicted of first degree murder, concealment of a homicidal death, and robbery. The trial court sentenced him to consecutive terms of 60 years for the murder, 5 years for the concealment, and 30 years for the robbery. This court affirmed Adams' conviction and sentence.

Defendant also testified for the State at Boyd's trial. After the jury convicted Boyd of concealment and robbery but hung on the murder charge, Boyd entered a negotiated guilty plea in which she received 35 years for murder and 5 years for concealment.

Blandin pleaded guilty to first degree murder and was sentenced to 30 years' imprisonment.

Defendant did not plead guilty as per her agreement with the State and proceeded to a jury trial. Following the trial, the jury found defendant guilty of felony first degree murder, robbery, and concealment of a homicidal death, the only three charges on which the State proceeded to trial.

Following denial of defendant's motion for a new trial, the trial court proceeded to a sentencing hearing. In mitigation, defendant presented a stipulation that, if called, Lieutenant Veda Barrett, a correctional officer at the Champaign County Correctional Center, would testify that during her period of incarceration, defendant had been a cooperative and peaceful inmate. Defendant also identified various family members who were present at sentencing in support of her. As a third piece of mitigation evidence, defendant presented a letter from defendant's family expressing their regrets regarding Nelson's murder.

Following arguments and a statement from defendant, the trial court stated that it had considered the presentence investigation report, which indicated both misdemeanor and felony retail-theft convictions, a felony resisting-a-peace-officer conviction, and a federal conviction for theft of mail. The court stated it had considered in mitigation defendant's assistance to the State in the prosecution of her codefendants. The court then sentenced defendant as stated, granting her 557 days of sentence credit. That same day, counsel filed a motion to reduce sentence, which the court denied. This appeal followed.

II. ANALYSIS

A. Ineffective Assistance

1. Per Se

On appeal, defendant claims she received ineffective assistance of counsel in *150 that counsel filed a perfunctory postsentencing motion that failed to assert or preserve any sentencing issues for appeal.

Where "counsel entirely fails to subject the prosecution's 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." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984). We will not presume prejudice unless the attorney completely failed, "throughout" the proceeding "as a whole," to oppose the prosecution's case. See Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914, 928 (2002). It is not enough that the attorney "failed to do so at specific points." Bell, 535 U.S. at 697, 122 S.Ct. at 1851, 152 L.Ed.2d at 928.

Here, defendant argues counsel's perfunctory motion amounted to no representation at all and prejudice should be presumed. On appeal, defendant raises three sentencing issues that she claims were waived because of counsel's inadequate representation: (1) her sentence was disparate to that of her more culpable codefendants; (2) her conviction and sentence for robbery violate the one-act, one-crime rule; and (3) she is entitled to an extra day of sentence credit.

We agree that a motion to reconsider sentence is a critical stage of the criminal proceeding at which a defendant is entitled to counsel. People v. Williams, 358 Ill.App.3d 1098, 1105, 295 Ill.Dec. 528, 833 N.E.2d 10, 16 (2005); People v. Brasseaux, 254 Ill.App.3d 283, 288, 214 Ill.Dec. 372, 660 N.E.2d 1321, 1324-25 (1996). However, we decline to presume prejudice in a situation where the filing of the motion is a matter of discretion. Clearly, general failure to file a motion to reconsider sentence does not per se amount to ineffective assistance of counsel, as some basis must exist to make the motion. Accordingly, counsel's failure to raise the disparate sentence issue constitutes ineffective assistance only where such failure prejudiced defendant.

2. Performance and Prejudice

Defendant argues that because her sentence was excessively disparate to that of her more culpable codefendants, it should be reduced.

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Bluebook (online)
846 N.E.2d 147, 364 Ill. App. 3d 404, 301 Ill. Dec. 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bailey-illappct-2006.