People v. Willis

601 N.E.2d 1307, 235 Ill. App. 3d 1060, 176 Ill. Dec. 609, 1992 Ill. App. LEXIS 1634
Appellate Court of Illinois·Decided October 8, 1992·No. 4-91-0925·Published·Cited by 18 cases

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

After a bench trial in Brown County on March 15, 1991, defendant, Carnell Willis, and his codefendant, Theron Jackson, were convicted of mob action. (Ill. Rev. Stat. 1989, ch. 38, par. 25 — 1(a)(2).) Defendant was sentenced to four years’ imprisonment. He appeals his conviction, arguing: (1) defense counsel was ineffective because he did not comply with the requirements of section 3 — 8—10 of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10), entitled “Intrastate Detainers,” thereby defeating dismissal of the charge against him based on denial of his right to a speedy trial; and (2) the State committed reversible error by cross-examining defendant about whether he had a drug problem and past arrests. Defendant appeals his sentence, arguing the trial judge improperly considered a facsimile (fax) of his prison disciplinary record as an aggravating factor in sentencing. He also contends the trial judge’s sentence was not sufficiently specific because it did not designate the sentence to which the imposed sentence was made consecutive. We affirm defendant’s conviction and remand only for clarification of which sentence the mob action conviction sentence is made consecutive.

I. Facts

A. Defense Counsel’s Pretrial Actions

The offense of which defendant was convicted arose from an attack on Gregory Pope, another inmate in the Western Illinois Correctional facility. Defendant was charged by information on March 15, 1991. On April 14, 1991, defense counsel was appointed to represent defendant. On April 15, defense counsel filed a motion for a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5).

On September 12, 1991, defense counsel filed a motion to dismiss because more than 160 days had elapsed since the State charged defendant. The court denied the motion, ruling that when the defendant is in a Department of Corrections (DOC) facility, the procedures listed in the intrastate detainers provision must be followed in order to preserve a speedy-trial issue.

B. Trial Testimony

Pope testified he met defendant, codefendant Jackson, and the inmate who struck him, Terrance Davis, a few days before the incident. Pope was being extorted by inmate Lee Johnson. Defendant, Jackson, and Davis approached Pope and told him they could protect him from Johnson. Pope stated defendant, Jackson, and Davis gave him a commissary list on three occasions and ordered him to obtain the items listed. They warned if he did not obtain the items he would get hurt.

On the day the incident occurred, defendant, Jackson and Davis followed Pope into his cell after dinner. Pope had notified prison officials of Johnson’s extortion attempt and the officials agreed to move him to another cell. When defendant, Jackson, and Davis noticed Pope’s things were packed, they called him a “stool pigeon” and said “stooling” was not tolerated in prison. According to Pope, defendant told Davis to “bring the G down” and Davis hit Pope twice in the face.

Randy Spertzel, an inmate and Pope’s friend, testified he saw three men in Pope’s cell the night of the attack. The men told Spertzel to leave them alone. Later that night, defendant came to Spertzel’s cell and told Spertzel if he said anything they would put “a hit” out on him.

After Davis struck Pope, the men gave him an aspirin and discouraged him from going to the infirmary. They ultimately allowed him to seek medical treatment, but told him he would be hurt if he did not report that he fell and hurt his face. He required surgical placement of metal plates and screws in his head.

Prison official Marty Winston interviewed Pope in the prison health unit shortly after the incident. Pope told Winston the cell numbers of the men involved. Pope also identified defendant, Jackson, and Davis from a six-photograph array.

Davis, who pleaded guilty to aggravated battery for striking Pope, testified that when he entered Pope’s cell, defendant and Jackson were present. Davis asked Pope what he told the prison officials about Johnson. When Pope admitted he told the officials about Johnson’s extortion, Davis hit Pope in the face. Davis testified neither defendant nor Jackson told him to strike Pope.

Defendant’s and Jackson’s testimony supported Davis’ testimony. Defendant testified he did not know Davis was going to strike Pope and that he and Jackson broke up the fight. During cross-examination, the State asked defendant if he had a drug problem. Defendant stated he had no drug problem. Over defense counsel’s objection, the trial judge permitted the State to question defendant about past drug arrests. After defendant admitted three drug-related arrests, defendant conceded he had also received a six-year term for delivery of controlled substances. Although the State tried to question defendant about an additional six-year term he was allegedly serving for delivery of controlled substances, defendant denied he was currently serving a 12-year term.

C. Sentencing Hearing

During the December 11, 1991, sentencing hearing, the State presented testimony by William Parker, a correctional officer at the Western Illinois Correctional Center. Parker obtained a fax of defendant’s prison disciplinary record from the Pontiac Correctional Center. The record indicated that during his incarceration, defendant had received 24 disciplinary reports. Seven of these infractions were major. The trial judge admitted this report over defense counsel’s objections and permitted it to be used as an aggravating factor in defendant’s sentencing.

II. Analysis

A. Ineffective Counsel

Defendant argues defense counsel was ineffective in his efforts to ensure defendant received a speedy trial because counsel filed the motion demanding speedy trial pursuant to section 103 — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a)), rather than the provision applicable to inmates during incarceration, a proper demand under which requires the defendant be tried within 160 days (Ill. Rev. Stat. 1989, ch. 38, par. 1003-8-10).

Resolution of defendant’s speedy-trial issue requires consideration of the speedy-trial provision of the Code in conjunction with the intrastate detainers provision. Section 103 — 5(a) of the Code states, in relevant part, every person in custody in the State for an alleged offense shall be tried within 120 days from the date he was taken into custody. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Section 103 — 5(b) of the Code provides that persons on bail or recognizance shall be tried within 160 days from the date defendant demands a trial. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) Unless the delay is caused by defendant, failure to try him within the statutory time is cause for the discharge of the accused. Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(d).

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People v. Willis, 601 N.E.2d 1307, 235 Ill. App. 3d 1060, 176 Ill. Dec. 609, 1992 Ill. App. LEXIS 1634 (Ill. Ct. App. 1992).

601 N.E.2d 1307 (People v. Willis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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