People v. Cleveland

913 N.E.2d 646, 393 Ill. App. 3d 700, 332 Ill. Dec. 714, 2009 Ill. App. LEXIS 730
CourtAppellate Court of Illinois
DecidedAugust 3, 2009
Docket1-07-3116
StatusPublished
Cited by26 cases

This text of 913 N.E.2d 646 (People v. Cleveland) 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. Cleveland, 913 N.E.2d 646, 393 Ill. App. 3d 700, 332 Ill. Dec. 714, 2009 Ill. App. LEXIS 730 (Ill. Ct. App. 2009).

Opinion

PRESIDING JUSTICE ROBERT E. GORDON

delivered the opinion of the court:

After a bench trial, defendant was convicted of one count of possession of a controlled substance, and the trial court sentenced him to a prison term of five years. On appeal, defendant raises two issues. First, defendant claims that the trial court failed to admonish him concerning his waiver of counsel for his sentencing hearing. Second, defendant claims that the fines imposed by the trial court were improper. For the reasons set forth below, we reverse and remand for a new sentencing hearing; we order defendant’s fines and fees reduced from $645 to $599; and we order that his mittimus be corrected accordingly.

BACKGROUND

On February 22, 2007, defendant Bernie Cleveland was charged by indictment with possession of a stolen motor vehicle and possession of a controlled substance. The trial court appointed the Cook County public defender to represent defendant, and an assistant public defender represented defendant from his first court appearance until his appearance on April 13, 2007. On March 27, 2007, defendant informed the trial court that he no longer wanted representation from his assistant public defender and that he wished to represent himself.

On April 13, 2007, defendant reiterated his desire to appear pro se. At that appearance, the trial court admonished defendant regarding his right to counsel pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), including explaining the charges defendant faced, explaining the potential penalties for conviction of those charges, and informing defendant that he had a right to an attorney and that if he could not afford one the court would appoint an attorney for him. Finally, the trial court asked defendant if he wished to consult his assistant public defender before making his decision, to which defendant replied that he did. After an off-the-record discussion, the assistant public defender informed the court that she had spoken to defendant and that defendant did not want her assistance, which the defendant stated was correct. After this point in time, defendant proceeded pro se. Defendant then informed the trial court that he desired a bench trial, and after hearing further admonishments from the trial court, he waived his right to a jury and signed a jury waiver. Since the defendant has not raised any issue regarding his conviction, a detailed recitation of the evidence adduced at trial is omitted.

On May 23, 2007, the trial court found defendant guilty of both charges. At a court appearance on June 20, 2007, which was originally scheduled for posttrial motions and sentencing, defendant requested the assistance of counsel, both for the preparation and filing of any posttrial motions and for the sentencing hearing. The trial court again appointed an assistant public defender to represent defendant and the matter was continued to July 26, 2007, for a hearing on posttrial motions. On that date, defendant once again waived counsel, citing the assistant public defender’s unwillingness to argue the motions as defendant had prepared them. The trial court informed defendant that a lawyer could read the transcript, discuss the case, look at the law and prepare appropriate posttrial motions, and twice asked defendant if he wished to have representation — to which defendant responded “no” both times. As a result, the trial court allowed defendant to proceed pro se, without providing further admonitions.

Defendant then argued his pro se posttrial motion to reconsider. Pursuant to defendant’s motion, the trial court on August 9, 2007, granted defendant’s motion to reconsider the guilty finding for possession of a stolen motor vehicle and dismissed that charge, but denied defendant’s motion to reconsider the guilty finding for possession of a controlled substance. Also on August 9, 2007, the trial court conducted a sentencing hearing and heard arguments concerning factors in aggravation and mitigation. Defendant again appeared pro se, and the trial court did not inquire into defendant’s desire to continue without representation for the sentencing stage process. During his argument, defendant contested the merits of this conviction on the remaining charge, and the trial court instructed the defendant not to reargue his motion to reconsider. Defendant refused to make any arguments with respect to sentencing, saying, “You can do whatever you want to do,” and the trial court remarked to defendant, “you appear to be frustrated.” As a result of defendant’s apparent frustration, the trial court continued the proceedings to August 16, 2007.

On that date, the trial court allowed both parties to revisit sentencing. In his second opportunity to argue factors in mitigation, defendant asserted that the State must prove two prior Class 2 felony convictions for defendant’s conviction “to be extendable,” and noted that he did not have two prior Class 2 convictions. In addition, defendant again disputed the merits of his conviction for possession of a controlled substance. After hearing arguments from both parties, the trial court found defendant eligible for an extended Class 4 term. 720 ILCS 570/402(c) (West 2006) (conviction for possession of less than 15 grams of a substance containing cocaine, a controlled substance, is a Class 4 felony); 730 ILCS 5/5 — 5—3.2(b)(1) (West 2006) (a court may impose an extended-term sentence when defendant has been convicted of another felony of the same or greater class within the previous 10 years). The trial court then sentenced defendant to five years in prison out of a possible three- to six-year sentencing range. 730 ILCS 5/5— 8 — 2(a)(6) (West 2006). In addition, the trial court imposed fines and fees totaling $645, including a $5 court system fee, $20 for the Violent Crime Victims Assistance Fund, $10 for mental health court, $5 for youth diversion/peer court, and $10 for the Arrestee’s Medical Costs Fund.

ANALYSIS

I

Defendant first claims that he never made a valid waiver of counsel for his sentencing hearing. The United States Constitution guarantees criminal defendants the right to assistance of counsel “ ‘at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected’ ” (People v. Baker, 92 Ill. 2d 85, 90 (1982), quoting Mempa v. Rhay, 389 U.S. 128, 134, 19 L. Ed. 2d 336, 340, 88 S. Ct. 254, 257 (1967)), and “sentencing is one such stage” {Baker, 92 Ill. 2d at 90, citing Gagnon v. Scarpelli, 411 U.S. 778, 781, 36 L. Ed. 2d 656, 661, 93 S. Ct. 1756, 1759 (1973)). Complementing this right, a criminal defendant has the corresponding right to self-representation and may proceed pro se provided the defendant acts knowingly and intelligently in foregoing counsel. Faretta v. California, 422 U.S. 806, 819, 835, 45 L. Ed. 2d 562, 572, 581-82, 95 S. Ct. 2525, 2533, 2541 (1975). However, when a trial court permits defendant to waive counsel and the waiver is not knowing and intelligent, the trial court denies defendant a substantial right and commits reversible error. People v. Jiles, 364 Ill. App.

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Bluebook (online)
913 N.E.2d 646, 393 Ill. App. 3d 700, 332 Ill. Dec. 714, 2009 Ill. App. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cleveland-illappct-2009.