SECOND DIVISION September 5, 2006
No. 1-03-2927
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Cook County. ) CHARLES DIXON, ) ) Honorable Defendant-Appellant. ) James D. Egan, ) Judge Presiding. )
MODIFIED UPON DENIAL OF REHEARING
JUSTICE SOUTH delivered the opinion of the court:
This appeal arises from defendant Charles Dixon=s convictions for first-degree murder
and armed robbery following a jury trial. He was sentenced to natural life imprisonment for
murder and a consecutive 30-year term for armed robbery.
On August 10, 1998, defendant entered the shoe repair shop of 67-year-old Ionya
Feldman in Chicago=s Rogers Park neighborhood, armed with a piece of wood that was 22 feet
long by approximately 4 to 5 inches wide. Defendant beat Feldman with the stick and stole his
wallet. Feldman died from his injuries in November of 1998, and defendant had not yet been
apprehended. Defendant was extradited from Minnesota in early 1999 and subsequently charged
with first-degree murder, including several counts of felony murder, armed robbery and several
counts of aggravated battery. On June 15, 2001, the State filed a notice of its intent to seek the
death penalty based upon felony murder, the victim was over 60 years old, and the death resulted 1-03-2927
from exceptionally brutal or heinous behavior indicative of wanton cruelty. The State, however,
withdrew its intent to seek the death penalty prior to trial. The jury subsequently returned a
verdict of guilty for first-degree murder and armed robbery.
Shortly thereafter, defendant filed a pro se motion alleging ineffective assistance of
counsel by his attorney on several grounds, including his failure to call alibi witnesses, failure to
subpoena medical specialists, failure to investigate crime scenes, deliberately and maliciously
failing to introduce evidence and subpoena witnesses at a hearing for a motion to suppress
statements, failure to develop evidence in support of assertions made during opening statements,
failure to impeach detectives, forcing defendant to change his testimony, and failure to challenge
the constitutionality of a meritorious issue during the motion to suppress statements. Defendant
was represented at trial by the office of the public defender of Cook County. The trial court
conducted a factual inquiry into defendant=s claims, allowing him to present his allegations to the
court and inquiring of trial counsel regarding the claims, although trial counsel declined to
comment. The trial court denied defendant=s request for new counsel.
Defendant then informed the trial court that he did not want the continued representation
of his trial counsel and refused to let trial counsel represent him, arguing he had sabotaged his
case. The trial court then asked defendant if he wanted to proceed pro se, to which he replied he
did. The court then allowed the public defender to withdraw, and defendant proceeded pro se,
requesting a continuance in order to research the legal issues.
Defendant subsequently filed a motion for a new trial, which was heard on August 22,
2003. The trial court asked defendant whether he wished to present any evidence, and defendant
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declined. The State then called the assistant public defender who represented defendant as its
witness. Defendant began cross-examining his former defense counsel, and in the middle of his
cross-examination, requested a continuance to bring in family members as witnesses. The trial
court denied the request and subsequently denied defendant=s motion for a new trial.
After consideration of the evidence presented in aggravation and mitigation, the trial
court sentenced defendant to natural life imprisonment for first-degree murder and a consecutive
30-year sentence for armed robbery.
Defendant has raised six issues for our review: (1) whether he was deprived of his right
to counsel where the trial court granted defense counsel=s motion to withdraw but refused to
appoint alternate counsel, forcing defendant to complete his posttrial proceedings pro se;
alternately, defendant contends that he did not validly waive his right to counsel for posttrial
proceedings where he pleaded with the court for an attorney to represent him and the trial court
failed to admonish him in accordance with the sixth amendment and Rule 401 (134 Ill. 2d R.
401); (2) whether he was entitled to the appointment of counsel during his posttrial allegations of
ineffective assistance of counsel, where his claims were supported by the record and showed
possible neglect of his case; alternatively, he contends that remand is necessary to determine if
new counsel is required, where the court used the wrong legal standard, failed to consider many
of defendant=s claims, and failed to conduct an interchange with defense counsel; (3) whether he
was denied his due process right to fair adjudication of his motion for a new trial where the trial
court permitted the State to present evidence but refused to allow defendant to present relevant,
competent, responsive evidence because the State=s witness had already denied the allegations in
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the motion; (4) whether his natural life sentence is void and must be reduced to 60 years where
the trial court expressly based the sentence on a factor not authorized by statute - defendant=s
prior armed robbery convictions; in the alternative, whether this matter should be remanded for
resentencing; (5) whether the plain language and purpose of the consecutive-sentencing statute
prohibit imposition of a sentence consecutive to a sentence of natural life; and (6) whether this
court should remand for proper Rule 605(a)(3) (188 Ill. 2d R. 605(a)(3)) admonishments and
give defendant a chance to file a motion to reconsider his sentence where the trial court failed to
admonish him.
Defendant=s first three issues center around his posttrial proceedings. He first contends
he was deprived of his right to counsel during posttrial proceedings where the trial court granted
his trial counsel=s motion to withdraw but refused to appoint alternate counsel. Next, he
maintains that he was entitled to the appointment of counsel during his posttrial allegations of
ineffective assistance of counsel. Third, defendant argues he was denied his due process right to
the fair adjudication of his motion for new trial where the trial court refused to allow him to
present relevant, competent, responsive evidence but allowed the State to present evidence.
As stated earlier, defendant was represented at trial by the office of the Cook County
public defender. After the jury=s verdict, defendant made a comment that his trial counsel was a
"saboteur of [his] case." Defendant subsequently filed a pro se posttrial motion for a new trial
based on ineffective assistance of counsel. The trial court allowed defense counsel to withdraw
after defendant presented factual allegations, and new counsel was not appointed for the
remainder of defendant=s posttrial proceedings.
"A defendant is entitled to counsel pursuant to the sixth amendment of the United States
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Constitution. U.S. Const., amends. VI, XIV. An indigent defendant has the right to have
counsel appointed for him." People v. Hughes, 315 Ill. App. 3d 86, 91 (2000), citing Gideon v.
Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). The Illinois Supreme Court
has noted that "it is now well established that a defendant has a constitutional right to be
represented by counsel 'at every stage of a criminal proceeding where substantial rights of a
criminal accused may be affected' [citation] and that sentencing is one such stage." 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). A defendant may waive this right and proceed without counsel
but only if the defendant "voluntarily and intelligently elects to do so." Baker, 92 Ill. 2d at 90;
134 Ill. 2d R. 401(a). "However, even if defendant does not elect to waive his right to counsel,
defendant may not use this right as a weapon to undermine the trial court=s responsibility to
administer justice." Hughes, 315 Ill. App. 3d at 91. "We review the trial court=s finding that
defendant waived his right to counsel under an abuse of discretion standard." Hughes, 315 Ill.
App. 3d at 91.
"Under the appropriate circumstances, a pro se motion for a new trial based on
allegations of ineffective assistance of trial counsel will mandate appointment of new counsel to
assist in the motion." People v. Bell, 197 Ill. App. 3d 613, 617 (1990). "If a defendant presents a
pro se motion for a new trial alleging ineffective assistance of counsel, the trial court should
examine the factual matters underlying the claim, and, if the claim lacks merit or pertains to
matters of trial strategy, then no new counsel need be appointed." Bell, 197 Ill. App. 3d at 617.
"Only if the allegations show possible neglect of the case, for which counsel could undertake an
independent evaluation of defendant=s complaint and present the matter to the court, should new
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counsel be appointed." Bell, 197 Ill. App. 3d at 617.
"When a defendant presents a pro se posttrial claim of ineffective assistance of counsel,
the operative concern for the reviewing court is whether the trial court conducted an adequate
inquiry into the pro se defendant=s allegations of ineffective assistance of counsel." People v.
Young, 341 Ill. App. 3d 379, 382 (2003). At a minimum, the trial court must afford the
defendant an opportunity to specify and support his complaints. People v. Cummings, 351 Ill.
App. 3d 343, 351 (2004). Additionally, some interchange between defense counsel and the trial
court is permissible but a brief discussion between the trial court and the defendant may be
sufficient. Cummings, 351 Ill. App. 3d at 351-52. The trial court may also base its evaluation of
the defendant=s pro se allegations "on its knowledge of defense counsel=s performance at trial
and the insufficiency of the defendant=s allegations on their face." Cummings, 351 Ill. App. 3d at
352, quoting People v. Moore, 207 Ill. 2d 68, 79 (2003). "A trial court=s finding that it is
unnecessary to appoint new counsel will not be disturbed on appeal unless it is manifestly
erroneous." Young, 341 Ill. App. 3d at 382.
In the case at bar, prior to sentencing, the trial court noted defendant=s comment at the
previous court appearance regarding his counsel=s "sabotage" of his case and inquired as to
whether defendant had a motion related to his allegations of ineffective assistance against the
public defender=s office. Defendant proceeded to outline several allegations of ineffective
assistance, including the failure to interview or call witnesses, the failure to present specific
evidence at pretrial hearings and during trial, and that trial counsel told him to lie during his trial
testimony. Defendant was allowed to explain each allegation and what he believed was
improper. Defense counsel declined to comment on defendant=s allegations, and the State was
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allowed to respond. The trial court found that trial counsel was not at fault for failing to call
defendant=s alibi witnesses since defendant did not know what they would testify to or what they
had already told police. The court also noted that two of the State=s witnesses had testified to
seeing defendant in the area just before the incident, and one witness testified she was with
defendant that day and waiting outside when the incident occurred. The court then concluded
that the testimony of medical experts, as alleged by defendant, was irrelevant to the case based
on the testimony at trial; that both trial counsel and his assistant had a good idea of the crime
scene based upon their questioning of witnesses during trial; that the motions to suppress
statements were properly presented by defense counsel but denied based on the credibility of the
State=s witnesses; and that defendant=s motion to suppress statements was properly denied. The
trial court concluded trial counsel was not ineffective, that none of defendant=s motions would
alter the guilty verdict as the evidence was overwhelming, and denied defendant=s motion. The
trial court also denied defendant=s request for another attorney and stated that trial counsel could
represent defendant throughout the remainder of the posttrial proceedings. Defendant then stated
the following:
"Why don=t we do sentencing, but [defense counsel] can=t represent
me. I don=t want [defense counsel] representing me. Give me my
life sentence and let me file my post-conviction, but I don=t want to
have [defense counsel] to do anything. I would like a copy of this
stamp-filed, and we will deal with that. I will let the courts deal
with that."
At that juncture, the trial court granted defense counsel=s pending motion for leave to
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withdraw. The case was then continued to allow defendant time to review the motion for a new
trial that had been previously filed by defense counsel and to do some research into his case. At
the next court date, the trial court allowed the State to make further inquiry into defendant=s
allegations of ineffective assistance, and subsequently, defendant filed a pro se motion for a new
trial, to which he appended part of defense counsel=s original motion for a new trial, as well as a
pro se post-conviction petition.
The State called defendant=s trial counsel to testify in response to defendant=s allegations.
Defense counsel testified that: (1) he never advised defendant to testify falsely at any time; (2)
he spoke with defendant=s family members many times prior to and during the trial, and they
were unable to provide any alibi for him; (3) none of defendant=s proffered alibi theories checked
out during investigation; and (4) the proposed use of medical testimony in the defense theory
changed once the State decided not to seek the death penalty. Defendant began to cross-examine
defense counsel but stopped during questioning to request that he be allowed to bring his family
members in to testify concerning counsel=s actions during trial. The trial court denied
defendant=s request for further witnesses, and defendant had nothing further to add to his motion.
The State placed a certified copy of defendant=s convictions, which included his inmate history
and transfer from custody in the Illinois Department of Corrections on February 25, 1993, to
federal custody, into evidence in response to allegations made in defendant=s motion for a new
trial concerning his prior offenses. The trial court subsequently denied defendant=s motion for a
new trial, and a date was set for sentencing.
We find that the trial court=s determination that trial counsel provided effective assistance
to defendant during the pendency of his case was not manifestly erroneous, and the record does
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not reveal that the appointment of counsel was necessary for investigation into defendant=s
claims. The trial court conducted numerous inquiries and allowed defendant ample time to
present and develop his allegations against his trial counsel over several court dates. The State
called defense counsel as a witness, and he was questioned by both the State and defendant as to
the factual allegations of defendant=s claims. Furthermore, the record does not support
defendant=s contention that he was deprived of counsel during his posttrial proceedings, nor does
the record reflect any possible neglect of his case by trial counsel. The record indicates that he
unequivocally waived his right to counsel in open court and clearly understood that he would be
proceeding pro se as evidenced by his repeated requests for time to research the issues
concerning his posttrial motions, all of which were granted by the trial court. We conclude that
the trial court did not abuse its discretion in finding that defendant waived his right to counsel
during his posttrial proceedings. Defendant=s claim that he was denied due process rights
because he was not allowed to present evidence during the hearing on his motion for a new trial
is without merit. Defendant was aware of the hearing date, as was the State. In fact, the hearing
was scheduled so as to allow defendant ample time to prepare. If defendant wanted to have
witnesses at the hearing, he had time to secure their presence well in advance of the hearing date,
and the trial court did not abuse its discretion in refusing to grant him a continuance to secure
witnesses. See People v. Rodgers, 288 Ill. App. 3d 167, 172 (1997).
Defendant next contends that his natural life sentence is void and should be reduced to 60
years, the nonextended maximum sentence for first-degree murder, where the trial court
expressly based his sentence on a factor not authorized by statute B defendant=s prior armed
robbery convictions. Alternately, defendant contends this matter should be remanded for a new
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sentencing hearing. Second, defendant contends that the plain language of the consecutive-
sentencing statute prohibits the imposition of a sentence consecutive to a sentence of natural life,
so his armed robbery sentence must run concurrently.
We note that defendant did not raise his present sentencing issues at his sentencing
hearing or in a postsentencing motion. However, we agree with defendant that we may review
his claim that the trial court=s sentence was void. "A sentence imposed without statutory
authority is not subject to defendant=s forfeiture." People v. Palmer, 218 Ill. 2d 148, 154 (2006).
"It is well established that a sentencing judge cannot impose a penalty not otherwise allowed by
the sentencing statute in question." Palmer, 218 Ill. 2d at 154. We, thus, address (1) whether the
trial court correctly imposed a natural life sentence for first-degree murder, and (2) if so, whether
the trial court properly imposed a consecutive term for armed robbery.
Defendant was convicted of first-degree murder under a felony murder theory and armed
robbery. To convict a defendant of felony murder, the State must prove beyond a reasonable
doubt that the defendant killed an individual without lawful justification if, in performing the
acts that caused the death, he was attempting or committing a forcible felony other than second-
degree murder. 720 ILCS 5/9-1(a)(3) (West 2004); People v. Derr, 316 Ill. App. 3d 272, 277
(2000). A forcible felony includes armed robbery (see 720 ILCS 5/2-8, 18-2 (West 2004)).
"Death does not have to be contemporaneous with the commission of the forcible felony." Derr,
316 Ill. App. 3d at 277. "A robbery victim can linger for months before dying and it is still
felony murder, provided the acts that caused the belated death were performed during the
commission of the robbery." (Emphasis omitted.) People v. Derr, 346 Ill. App. 3d 823, 832
(2004).
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Here, the evidence presented at trial established that defendant, while armed with a large
piece of wood, entered the shoe shop of the victim, beat him with the wood and stole his wallet.
The victim was a 67-year-old man whose injuries resulted in a coma from which he never
recovered. We find the evidence was sufficient to convict defendant of armed robbery and
felony murder.
Section 9-1 of the Criminal Code of 1961 also lists aggravating factors to first-degree
murder that will make a defendant eligible for the death penalty including felony murder (720
ILCS 5/9-1(b)(6) (West 2004)) and that the murdered individual was 60 years of age or older
(720 ILCS 5/9-1(b)(16) (West 2004)). Thus, defendant was death-penalty eligible. However,
the State withdrew its intention to seek the death penalty prior to trial. Under the Unified Code
of Corrections, the sentence for first-degree murder is not less than 20 years and not more than
60 years (730 ILCS 5/5-8-1(a) (West 2004)), or, if the trier of fact finds that any of the
aggravating factors listed in subsection (b) of section 9-1 of the Criminal Code are present, the
court may sentence the defendant to a term of natural life imprisonment (730 ILCS 5/5-8-
1(a)(1)(c) (West 2004)). Thus, contrary to defendant=s assertions, he was eligible for a sentence
of natural life imprisonment for felony murder, so his sentence was not void. Accordingly, we
affirm the trial court=s sentence of natural life imprisonment.
Defendant further contends that the plain language of the consecutive-sentencing statute
prohibits the imposition of a sentence consecutive to a sentence of natural life, so his armed
robbery sentence must run concurrently. The State concedes, citing People v. Palmer, 218 Ill. 2d
148 (2006). In Palmer, the supreme court held that it is impossible to serve or enforce sentences
consecutive to life without parole (Palmer, 218 Ill. 2d at 164), and there is only one way a
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defendant can serve a natural life sentence, with his one life (Palmer, 218 Ill. 2d at 168).
"Therefore, the sentences may not be consecutive, but must be concurrent because concurrent
sentences are sentences which operate simultaneously." Palmer, 218 Ill. 2d 168. Accordingly,
we vacate the circuit court=s order that defendant=s sentences be served consecutively and impose
concurrent sentences in the exercise of our supervisory authority pursuant to Supreme Court
Rule 615(b)(4). 134 Ill. 2d R. 615(b)(4).
Next, defendant contends that at a minimum, this court should remand his case for proper
Rule 605(a)(3) admonishments and give him a chance to file a motion to reconsider his sentence
where the trial court failed to admonish him and defendant raised meritorious sentencing errors
in this appeal.
"The purpose of the Rule 605 admonishment is to ensure a defendant is aware of the
requirements of Supreme Court Rule 604(d) [(188 Ill. 2d R. 604(d))], which set forth the
deadlines and requirement for appeals from sentences imposed upon a plea of guilty." People v.
Valentin, 347 Ill. App. 3d 946, 954-55 (2004). Our supreme court recently addressed this issue
in People v. Henderson, 217 Ill. 2d 449, 470 (2005), holding that "where a defendant has
received incomplete Rule 605(a) admonishments regarding the steps necessary to preserve
sentencing issues for appeal, remand is required only if the defendant was prejudiced or denied
real justice as a result of the trial court=s inadequate admonishments."
Here, the record indicates that the trial court failed to admonish defendant according to
the requirements of Rule 605(a). However, we find that remand is not required because
defendant was not prejudiced as a result of the trial court=s inadequate admonishments since his
sentencing issues have been fully addressed in this appeal.
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For the foregoing reasons the judgment of the circuit court is affirmed in part and vacated
in part and the sentence is modified.
Affirmed in part and vacated in part; sentence modified.
GARCIA, P.J., and HALL, J., concur.
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