No. 3--06--0740 _________________________________________________________________ Filed August 28, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05--CF--737 ) RAPHAEL L. OWENS, ) Honorable ) Charles H. Stengel, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
PRESIDING JUSTICE McDADE delivered the opinion of the court: _________________________________________________________________
A jury found the defendant, Raphael L. Owens, guilty of
residential burglary (720 ILCS 5/19--3(a) (West 2004)). The
trial court imposed an extended term sentence of 18 years'
imprisonment. On appeal, the defendant argues that, under Roe v.
Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029
(2000), this court must remand the cause for the appointment of
counsel to consult with the defendant concerning appealing his
sentence. We remand with directions.
BACKGROUND
At the sentencing hearing, the court imposed an 18-year
extended term sentence because the defendant had committed a Class 1 felony within 10 years of this offense, which also was a
Class 1 felony. Immediately after the court imposed sentence,
the following exchange took place between the defendant and the
court:
"THE DEFENDANT: 18 years for a residential
burglary, huh?
THE COURT: Absolutely. 18 years on a residential
burglary for a person who was on Class--
THE DEFENDANT: Appeal that."
The court then advised the defendant concerning his right to
appeal. Among other things, the court told the defendant that if
he did not raise a challenge to his sentence in a written motion
to reconsider the sentence within 30 days, his arguments
regarding the sentence would be deemed waived on appeal.
After the court advised the defendant of his appeal rights,
the defendant's retained counsel said, "I'd ask to be relieved,
Judge. I've done my job in this case." The court replied, "Yes.
You'll be relieved. Is he asking the clerk to file a notice of
appeal?" Defense counsel responded, "Yes." The court then: (1)
ordered the clerk of the court to file a notice of appeal for the
defendant; and (2) stated that the appellate defender was
appointed. We note that the record does not contain a written
order allowing the defendant's retained counsel to withdraw. The
2 record also shows that the defendant did not file a motion to
reconsider the sentence.
ANALYSIS
The defendant contends that, under Flores-Ortega, 528 U.S.
470, 145 L. Ed. 2d 985, 120 S. Ct. 1029, we must remand the cause
for the appointment of counsel to consult with the defendant
regarding appealing his sentence. Specifically, the defendant
submits that his trial counsel provided ineffective assistance by
withdrawing from the case before consulting with the defendant
about preserving his sentencing arguments for appeal by first
filing a motion to reconsider sentence.
A defendant's claim of ineffective assistance of counsel is
analyzed under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), as adopted by the Illinois Supreme Court in People v.
Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under this
test, the defendant must prove both that: (1) counsel's
representation fell below an objective standard of
reasonableness; and (2) the defendant's case was prejudiced
because of counsel's substandard representation. Albanese, 104
Ill. 2d 504, 473 N.E.2d 1246.
A motion to reconsider sentence is a critical stage of a
criminal proceeding, for which a defendant is entitled to
counsel. People v. Bailey, 364 Ill. App. 3d 404, 846 N.E.2d 147
3 (2006); People v. Williams, 358 Ill. App. 3d 1098, 833 N.E.2d 10
(2005); People v. Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d
1321 (1996). In the vast majority of cases defense counsel has a
duty to consult with the defendant during all critical stages of
the proceedings. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985,
120 S. Ct. 1029. The remedy for defense counsel's failure to
consult with the defendant during a critical stage of the
proceedings is a remand for such consultation. See Flores-
Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029.
In this case, the defendant clearly expressed his desire to
appeal his sentence in open court. The trial court then advised
the defendant that his failure to file a motion to reconsider the
sentence would result in waiver of his sentencing arguments on
appeal. Nonetheless, defense counsel asked to be allowed to
withdraw without consulting with the defendant about filing a
motion to reconsider the sentence in order to avoid waiver of his
sentencing arguments on appeal. The trial court indicated that
defense counsel would be allowed to withdraw at some point by
stating, in the future tense, "[y]ou'll be relieved." Showing
that defense counsel had not yet been allowed to withdraw, the
court asked defense counsel if the defendant wished to file a
notice of appeal. Defense counsel answered in the affirmative.
It is reasonable to infer from these pronouncements by the court
4 and by defense counsel that counsel's withdrawal took effect
after the sentencing hearing concluded.
First, we note that defense counsel failed to consult with
the defendant during the critical stage of the proceedings
concerning his motion to reconsider the sentence. See Bailey,
364 Ill. App. 3d 404, 846 N.E.2d 147; Williams, 358 Ill. App. 3d
1098, 833 N.E.2d 10; Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d
1321. In the circumstances of this case, the attorney's failure
to consult with the defendant during a critical stage of the
proceedings constituted representation that was below an
objective standard of reasonableness. See Flores-Ortega, 528
U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029.
Next, defendant’s ability to preserve his sentencing
arguments for appeal was prejudiced under these circumstances.
The court, having heard the defendant's desire to appeal his
sentence, and having just advised the defendant about the
consequences of failing to file a motion to reconsider sentence,
nonetheless did not ask defense counsel if the defendant wished
to file a motion to reconsider sentence, but instead asked if he
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No. 3--06--0740 _________________________________________________________________ Filed August 28, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05--CF--737 ) RAPHAEL L. OWENS, ) Honorable ) Charles H. Stengel, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
PRESIDING JUSTICE McDADE delivered the opinion of the court: _________________________________________________________________
A jury found the defendant, Raphael L. Owens, guilty of
residential burglary (720 ILCS 5/19--3(a) (West 2004)). The
trial court imposed an extended term sentence of 18 years'
imprisonment. On appeal, the defendant argues that, under Roe v.
Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029
(2000), this court must remand the cause for the appointment of
counsel to consult with the defendant concerning appealing his
sentence. We remand with directions.
BACKGROUND
At the sentencing hearing, the court imposed an 18-year
extended term sentence because the defendant had committed a Class 1 felony within 10 years of this offense, which also was a
Class 1 felony. Immediately after the court imposed sentence,
the following exchange took place between the defendant and the
court:
"THE DEFENDANT: 18 years for a residential
burglary, huh?
THE COURT: Absolutely. 18 years on a residential
burglary for a person who was on Class--
THE DEFENDANT: Appeal that."
The court then advised the defendant concerning his right to
appeal. Among other things, the court told the defendant that if
he did not raise a challenge to his sentence in a written motion
to reconsider the sentence within 30 days, his arguments
regarding the sentence would be deemed waived on appeal.
After the court advised the defendant of his appeal rights,
the defendant's retained counsel said, "I'd ask to be relieved,
Judge. I've done my job in this case." The court replied, "Yes.
You'll be relieved. Is he asking the clerk to file a notice of
appeal?" Defense counsel responded, "Yes." The court then: (1)
ordered the clerk of the court to file a notice of appeal for the
defendant; and (2) stated that the appellate defender was
appointed. We note that the record does not contain a written
order allowing the defendant's retained counsel to withdraw. The
2 record also shows that the defendant did not file a motion to
reconsider the sentence.
ANALYSIS
The defendant contends that, under Flores-Ortega, 528 U.S.
470, 145 L. Ed. 2d 985, 120 S. Ct. 1029, we must remand the cause
for the appointment of counsel to consult with the defendant
regarding appealing his sentence. Specifically, the defendant
submits that his trial counsel provided ineffective assistance by
withdrawing from the case before consulting with the defendant
about preserving his sentencing arguments for appeal by first
filing a motion to reconsider sentence.
A defendant's claim of ineffective assistance of counsel is
analyzed under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), as adopted by the Illinois Supreme Court in People v.
Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under this
test, the defendant must prove both that: (1) counsel's
representation fell below an objective standard of
reasonableness; and (2) the defendant's case was prejudiced
because of counsel's substandard representation. Albanese, 104
Ill. 2d 504, 473 N.E.2d 1246.
A motion to reconsider sentence is a critical stage of a
criminal proceeding, for which a defendant is entitled to
counsel. People v. Bailey, 364 Ill. App. 3d 404, 846 N.E.2d 147
3 (2006); People v. Williams, 358 Ill. App. 3d 1098, 833 N.E.2d 10
(2005); People v. Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d
1321 (1996). In the vast majority of cases defense counsel has a
duty to consult with the defendant during all critical stages of
the proceedings. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985,
120 S. Ct. 1029. The remedy for defense counsel's failure to
consult with the defendant during a critical stage of the
proceedings is a remand for such consultation. See Flores-
Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029.
In this case, the defendant clearly expressed his desire to
appeal his sentence in open court. The trial court then advised
the defendant that his failure to file a motion to reconsider the
sentence would result in waiver of his sentencing arguments on
appeal. Nonetheless, defense counsel asked to be allowed to
withdraw without consulting with the defendant about filing a
motion to reconsider the sentence in order to avoid waiver of his
sentencing arguments on appeal. The trial court indicated that
defense counsel would be allowed to withdraw at some point by
stating, in the future tense, "[y]ou'll be relieved." Showing
that defense counsel had not yet been allowed to withdraw, the
court asked defense counsel if the defendant wished to file a
notice of appeal. Defense counsel answered in the affirmative.
It is reasonable to infer from these pronouncements by the court
4 and by defense counsel that counsel's withdrawal took effect
after the sentencing hearing concluded.
First, we note that defense counsel failed to consult with
the defendant during the critical stage of the proceedings
concerning his motion to reconsider the sentence. See Bailey,
364 Ill. App. 3d 404, 846 N.E.2d 147; Williams, 358 Ill. App. 3d
1098, 833 N.E.2d 10; Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d
1321. In the circumstances of this case, the attorney's failure
to consult with the defendant during a critical stage of the
proceedings constituted representation that was below an
objective standard of reasonableness. See Flores-Ortega, 528
U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029.
Next, defendant’s ability to preserve his sentencing
arguments for appeal was prejudiced under these circumstances.
The court, having heard the defendant's desire to appeal his
sentence, and having just advised the defendant about the
consequences of failing to file a motion to reconsider sentence,
nonetheless did not ask defense counsel if the defendant wished
to file a motion to reconsider sentence, but instead asked if he
wished to file a notice of appeal. Defense counsel prejudiced
the defendant's case by: (1) failing to answer the court's
question in the negative; (2) failing to ask the court to be
allowed to consult with the defendant about his desire to appeal
the sentence; and (3) compounding his error by prematurely asking
5 to withdraw from the case without first engaging in such
consultation.
In summary, the defendant has shown that his defense
counsel's representation violated both prongs of the Strickland
test by: (1) providing representation that fell below an
objective standard of reasonableness by failing to consult with
the defendant about the critical stage concerning his motion to
reconsider sentence; and (2) prejudicing the defendant's case
because the defendant's sentencing arguments on appeal would be
waived without first filing such a motion. Therefore, we hold
that defense counsel provided ineffective assistance.
We note that the defendant could have filed a pro se motion
to reconsider the sentence within 30 days of imposition of
sentence, even after the notice of appeal was filed by the clerk
of court, which would have acted as an implicit motion to dismiss
the notice of appeal. See People v. Golden, 369 Ill. App. 3d
639, 860 N.E.2d 1119 (2006). However, the defendant was deprived
of defense counsel's consultation during that critical stage when
he could have filed such a motion to reconsider, which also was
prejudicial to his case. See Flores-Ortega, 528 U.S. 470, 145 L.
Ed. 2d 985, 120 S. Ct. 1029.
The State contends that defense counsel was under no
obligation to consult with the defendant about filing a motion to
reconsider the sentence because the trial court allowed counsel
6 to withdraw at the conclusion of the sentencing hearing.
However, we reject the State's argument because, as we pointed
out above, counsel's very act of prematurely withdrawing from the
case was prejudicial to the defendant.
Therefore, we rule that, under Flores-Ortega, 528 U.S. 470,
145 L. Ed. 2d 985, 120 S. Ct. 1029, the defendant is entitled to
a remand for: (1) either the appointment of counsel, if the
defendant is indigent, or for the defendant to retain private
counsel, if the defendant is not indigent; and (2) consultation
with such attorney concerning his expressed desire to appeal his
sentence. If the defendant wishes to file a motion to reconsider
the sentence after consultation with his counsel, the trial court
shall allow him to do so.
CONCLUSION
For the foregoing reasons, we remand the cause to the Rock
Island circuit court for further proceedings consistent with this
opinion.
Remanded with directions.
LYTTON and CARTER, J.J., concur.