Opinion
No. 1-11-3539
01-17-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN BRIGGS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 10 CR 20005
Honorable Matthew E. Coghlan, Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice ROCHFORD and Justice REYES concurred in the judgment.
ORDER
¶ 1 Held: Judgment affirmed over defendant's claims that counsel operated under a per se conflict of interest, that the trial court improperly relied on his claim of innocence as an aggravating factor at sentencing, and that his mandatory supervised release (MSR) term must be reduced based on his underlying conviction. ¶ 2 Following a bench trial, defendant, Sherman Briggs, was found guilty of possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2010)), then sentenced as a Class X offender to eight years' imprisonment. On appeal, defendant contends that his trial counsel operated under a per se conflict of interest when he raised his own ineffectiveness in a post-trial motion for a new trial, and, as a result, the court should have appointed new "conflict-free" counsel to argue the post-trial motion. Defendant also contends that the trial court improperly relied on his claim of innocence as an aggravating factor at sentencing, and that his mandatory supervised release (MSR) term of three years must be reduced to the two-year term applicable to his Class 2 offense. ¶ 3 At trial, Michael O'Grady testified that, on September 21, 2010, his minivan was stolen from the Metra station at Kedzie Avenue and 79th Street. He notified police, and, on October 21, 2010, he was informed that they had found his vehicle at 6718 South Laflin Street. O'Grady identified his vehicle, which had been damaged, and testified that he had never met defendant, and had not given him, or anyone else, permission to use his vehicle on September 21, 2010. ¶ 4 Jack Harris, the director of police for the Union Pacific Railroad, testified that he was investigating defendant after a series of train burglaries. On October 21, 2010, he set up a surveillance on the porch of the house next door to defendant's home, and, about 10:30 p.m., he observed defendant return home, driving a cream colored minivan with Illinois license plates. Defendant parked the van in the front yard, exited, and walked, with a limp, into the house. Harris ran the license plates, confirmed that the van had been stolen, and notified the Chicago Police Department. ¶ 5 About 30 minutes later, Harris and the responding police officers performed a "knock and talk" at defendant's home. Defendant opened the door, spoke to police and admitted operating the vehicle and knowing that it was stolen. On cross-examination, Harris clarified that defendant did not admit to driving the van that day, but stated that he had driven it on previous dates. ¶ 6 The parties then stipulated that Harris would testify that O'Grady was the owner of the van from which he observed defendant exit. Defendant clarified that he was stipulating to the identity of the owner of the vehicle, and not to Harris's observation that defendant had actually been inside of it. ¶ 7 After the State rested, defendant moved for a directed verdict. During argument on that motion, the court asked defense counsel whether the police report contained a statement that defendant admitted to driving the van. Counsel responded that defendant did not admit to driving on the day of his arrest, but did talk about driving "another van, as well as this van" on previous occasions. The court denied defendant's motion. ¶ 8 The defense then called Gregory Rolling, who admitted having a prior felony conviction for possession of a controlled substance. He testified that he lived with defendant, and that he observed the minivan in the yard on the date of defendant's arrest. Defendant, however, had an injury to his foot, and Rollings had not seen him drive within the last 10 to 15 years. Rolling testified that he would often help defendant up or down the stairs of the home, or bring him items he needed. ¶ 9 On the evening in question, Rolling heard knocking on the door, approached, and heard the police announce their presence and demand that he open the door. When Rolling asked if they had a warrant, they responded that they did not, but would kick down the door if he did not open it. After consulting with another resident, Christopher Hollister, Rolling opened the door, and the police entered, then directed the occupants, except for defendant, who was upstairs in his bedroom, to go out onto the porch. ¶ 10 Hollister, who had felony convictions for burglary and possession of a controlled substance, similarly testified that he lived at the residence with defendant. Between 10 p.m. and midnight, Hollister was watching television in his bedroom when he heard knocking at the door. His cousin, Rolling opened the door and several police officers ran inside, and ordered everyone except defendant Briggs, who was upstairs in bed, onto the porch. ¶ 11 Hollister further testified that the van had been in their yard for two to four days before October 21, 2010, and that it did not belong to any of the residents of the home. He had known defendant approximately ten years and, he had never seen him drive because of an injury to his foot. He claimed that "gangbangers" would sometimes park cars in their yard saying that "it was their neighborhood and we couldn't tell them what to do in their neighborhood." ¶ 12 In rebuttal, the State called Chicago police officer Pienta, who testified that on October 21, 2010, he was called to assist Union Pacific officers and drove to defendant's home. He and other officers knocked on defendant's door and made contact with defendant, who answered. Defendant was subsequently arrested and was able to walk to the police vehicle without assistance. ¶ 13 During closing argument, defense counsel attacked the credibility of the police officers, and stated that "there was something in the reports about [defendant] driving the van" on previous occasions, but that he had not been driving on the evening in question. The trial court, however, found the testimony of Officers Harris and Pienta more credible than that of Rolling and Hollister, and that defendant was guilty of unlawful possession of a stolen vehicle. ¶ 14 Thereafter, defendant filed a motion for a new trial through counsel, in which counsel stated, in pertinent part, that he had erroneously conceded to the court that defendant admitted driving the van prior to the day of his arrest. Defense counsel claimed that there were three vans which were reportedly used in the train burglaries that Harris was investigating: a tan van that was "described by color and license plate," a white van that was "described by color and license plate," and a gold van that was "described only by color." Counsel argued that defendant admitted to driving the "gold" van, but not the "tan" van that was at issue here. The trial court denied the motion, finding that the evidence against defendant was "overwhelming[.]" ¶ 15 At sentencing, the defense requested the minimum term based, inter alia, on defendant's cooperation in giving grand jury testimony on an unrelated murder investigation. The State, however, urged the court to issue a "substantial sentence[,]" noting that defendant had eight prior felony convictions, and was Class X mandatory. ¶ 16 In allocution, defendant stated:
"I don't know how the police saw me drive a car on the day. I never left the house that day. How could you find me guilty. *** You didn't want to perjure the police officers[.] *** They come in and say I answered the door and I am upstairs in so much pain. I can't move.¶ 17 The court sentenced defendant to eight years' imprisonment, to be followed by three years of MSR. In doing so, the trial court explicitly stated that it considered the PSI, the statements of counsel, the factors in aggravation and mitigation, defendant's drug use and his social and criminal histories. The court also stated, "And as I find the defendant may have cooperated and given some information which led to an indictment in a murder, I also considered the fact that defendant has not accepted responsibility for his actions." ¶ 18 In this appeal from that judgment, defendant first contends that his attorney was under a per se conflict of interest when, in a post-trial motion, counsel asserted that he had mistakenly conceded that defendant admitted having previously been inside the van, thereby raising his own ineffectiveness. Due to this conflict, defendant claims that the trial court should have appointed "conflict-free" counsel to represent him on the post-trial motion. ¶ 19 A criminal defendant's sixth amendment right to effective assistance of counsel includes the right to conflict-free representation. People v. Taylor, 237 Ill. 2d 356, 374 (2010). The Illinois Supreme Court has identified two categories of conflicts of interest: per se and actual. Taylor, 237 Ill. 2d at 374. A per se conflict of interest exists when defense counsel (1) has a prior or contemporaneous relationship with the victim, the State, or an entity assisting the State; (2) contemporaneously represents a State witness; and (3) is a former assistant State's Attorney who was personally involved in prosecuting the defendant. Taylor, 237 Ill. 2d at 374. ¶ 20 The State correctly observes that none of the scenarios outlined in Taylor are present in this case. Defendant, however, maintains that a per se conflict of interest arises whenever an attorney must argue his or her own ineffectiveness. For example, in People v. Lawton, 212 Ill. 2d 285, 296 (2004), the supreme court determined that counsel faced an inherent conflict of interest in representing defendant on appeal when counsel's actions before the trial court were the basis of defendant's claim of ineffective assistance of counsel and to advance defendant's claim on appeal would require counsel to argue his own incompetence. Similarly, in People v. Moore, 207 Ill. 2d 68, 79 (2003), the supreme court found that defendant did not waive review of the trial court's failure to conduct an inquiry regarding his pro se post-trial claim of ineffective assistance of counsel, where it would have been "inappropriate" for trial counsel to argue a motion that contained allegations of his own incompetence. Utilizing these same principles, defendant maintains that, as in People v. Krankel, 102 Ill. 2d 181 (1984), and People v. Moore, 389 Ill. App. 3d 1031, 1040-41 (2009), further inquiry and the appointment of new counsel was required. We disagree. ¶ 21 Both of these cases relate to post-trial pro se claims of ineffective assistance of counsel, and claims that the trial court should have appointed new counsel to argue the post-trial motion. Krankel and its progeny hold that where a defendant raises pro se allegations raising counsel's ineffectiveness, the court is required to appoint independent counsel only if the court determines that the allegations in the pro se petition have possible merit. Moore, 207 Ill. 2d at 77-78. Here, defendant did not file a pro se motion, or make a claim of ineffective assistance of counsel sufficient to trigger either a Krankel hearing or the appointment of new counsel, and we thus find Krankel and Moore factually distinguishable (Taylor, 237 Ill. 2d at 76-77) and inapplicable to this case. ¶ 22 Rather, we find this case more akin to People v. Perkins, 408 Ill. App. 3d 752 (2011), where defendant argued that a per se conflict of interest arose when trial counsel filed a motion for a new trial alleging, inter alia, that he was ineffective because he would have conducted a certain cross-examination differently had he known that the cause would proceed on certain charges. ¶ 23 This court first distinguished Lawton, as the issue in that case was whether a defendant forfeited a postconviction or postjudgment claim of ineffective assistance of counsel when represented by the same attorney at trial and on direct appeal. Perkins, 408 Ill. App. 3d at 762. This court then found that it was "far from clear" that the recognition of a conflict of interest in the context of either forfeiture or an attorney representing a defendant on appeal or in another post-judgment action "means that it is a constitutional per se conflict of the sort warranting automatic reversal outside those situations." Perkins, 408 Ill. App. 3d at 762. To the contrary, this court noted that it had previously declined to hold, especially in those cases where defendant did not request new counsel, that a per se conflict of interest existed any time counsel raised his own ineffectiveness or that new counsel was automatically required. Perkins, 408 Ill. App. 3d at 762. ¶ 24 This court then observed that defendant had not made a pro se complaint against his counsel, and instead, his attorney voluntarily and zealously argued the claim on defendant's behalf. Perkins, 408 Ill. App. 3d at 762. The court also noted that defendant was represented by new counsel on appeal and appellate counsel had no conflict in arguing trial counsel's ineffectiveness. Perkins, 408 Ill. App. 3d at 762. Accordingly, this court concluded that the concerns raised in Lawton were not present and found no per se conflict of interest. Perkins, 408 Ill. App. 3d at 762. ¶ 25 We reach the same conclusion here, where defendant did not allege that defense counsel was ineffective before the trial court. Rather, as in Perkins, counsel "voluntarily and zealously" argued the post-trial claim before the trial court on behalf of his client, who is now represented by different counsel on appeal. Accordingly, we find no per se conflict of interest (Perkins, 408 Ill. App. 3d at 762), and reject defendant's contrary contention. ¶ 26 Defendant next contends that the trial court improperly considered his claim of innocence as an aggravating factor in sentencing. He does not dispute that his sentence falls within the permissible statutory range for the offense of which he was convicted, but maintains that this court should vacate the sentence imposed and remand for resentencing or reduce his sentence because the trial court considered an improper factor. The State responds that the trial court only considered proper aggravating and mitigating factors in imposing defendant's sentence, and that defendant is not entitled to a new sentencing hearing. ¶ 27 Initially, we note that defendant forfeited this issue for review by failing to properly preserve it in the trial court. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant acknowledges his omission, but urges this court to consider his claim under the second-prong of plain error review. The first step in conducting plain-error review, however, is to determine whether any error occurred at all. People v. Walker, 232 Ill. 2d 113, 124 (2009). ¶ 28 It is well-settled that the trial court is the proper forum for sentencing, and where, as here, the sentence imposed falls within the statutory limits, that sentence will not be disturbed on review absent an abuse of discretion. People v. Coleman, 166 Ill. 2d 247, 258 (1995), and cases cited therein. Under the Illinois Constitution, a sentence is to be balanced between the seriousness of the offense and defendant's rehabilitative potential (Ill. Const. 1970, art. I, §11). People v. Lee, 379 Ill. App. 3d 533, 539 (2008). In setting a proper term, the trial court must consider the appropriate aggravating and mitigating factors, including the nature and circumstances of the crime, and defendant's personal history, demeanor, credibility, and criminal history. People v. Maldonado, 240 Ill. App. 3d 470, 485-86 (1992). On review, this court may not re-weigh those factors or substitute our judgment for that of the trial court, merely because we could have weighed the factors differently. People v. Jones, 376 Ill. App. 3d 372, 394 (2007). ¶ 29 Defendant contends that the trial court improperly considered his claim of innocence as an aggravating factor in sentencing, referring to the court's statement, "And as I find the defendant may have cooperated and given some information which led to an indictment in a murder, I also considered the fact that defendant has not accepted responsibility for his actions." ¶ 30 Generally, it is proper for a court to consider a defendant's lack of remorse in imposing a sentence, but it may not rely on a defendant's failure to admit to guilt in deciding to impose a harsher sentence. People v. Speed, 129 Ill. App. 3d 348, 349-50 (1984); People v. Byrd, 139 Ill. App. 3d 859, 859 (1986). Appellate courts have recognized that defendant's attitude, as it reflects his rehabilitative potential, is the standard by which courts of review determine whether sentencing was improperly influenced by a failure to admit guilt following conviction. People v. Coleman, 135 Ill. App. 3d 186, 188 (1985). If the sentencing court indicated that an admission of guilt would reduce defendant's sentence, then the sentence was improperly influenced by the defendant's claim of innocence. Coleman, 135 Ill. App. 3d at 188. If a court, however, simply considers defendant's degree of remorse in relation to his potential for rehabilitation, then it may properly refer to defendant's denial of guilt. Coleman, 135 Ill. App. 3d at 188. ¶ 31 Here, we do not find that the court implicitly or explicitly imposed a harsher sentence based on defendant's continued claim of innocence; rather, the court's statements, when read as a whole (People v. Ward, 101 Ill. 2d 443, 454 (1984)), indicate that it focused on defendant's attitude, lack of remorse, and attempt to assign responsibility for his conviction on others. Because these are appropriate sentencing factors, we find that the court did not err in commenting on them in announcing its sentencing determination. People v. Morando, 169 Ill. App. 3d 716, 728 (1988). Moreover, the statement was appropriate commentary on defendant's statement in allocution, in which he questioned the court's findings, accused the witnesses of lying, and contended that he was found guilty because the court did not want to "perjure the police officers[.]" Under such circumstances, we find no error by the court rising to the level of plain error to excuse defendant's procedural default of his sentencing challenge in this case. Walker, 232 Ill. 2d at 124. ¶ 32 Defendant disagrees, and claims that his case is analogous to Byrd, 139 Ill. App. 3d 859, and Speed, 129 Ill. App. 3d 348, where the reviewing courts found that the trial courts improperly considered defendant's denial of guilt as an aggravating factor at sentencing. However, viewed in the context of the entire record, we find that the remarks made by the trial court in the instant case were distinguishable from those held to be improper in Byrd and Speed. Unlike those cases, the trial court's statements cannot be interpreted to mean that defendant would have received a more lenient sentence had he admitted his guilt before trial or not elected to proceed with a jury trial. Rather, our review of the record shows that the trial court's comment on defendant's failure to accept responsibility was made in reference to his potential for rehabilitation, and, as such, clearly distinguishes it from those in Byrd and Speed. ¶ 33 Defendant next contends that the three-year term of MSR that attached to his Class X sentence should be reduced to two years because he was convicted of a Class 2 offense. Although he failed to properly preserve this issue for review, he maintains that the State is seeking to enforce a void order, which may be challenged at any time. People v. Thompson, 209 Ill. 2d 19, 27 (2004). This issue raises a question of law, which we review de novo. People v. Artis, 232 Ill. 2d 156, 161 (2009). ¶ 34 Defendant does not dispute that he was properly sentenced as a Class X offender (730 ILCS 5/5-4.5-95(b) (West 2010)), but claims that the language in the Class X offender statute does not change the classification of his underlying Class 2 felony offense, and thus, the two-year MSR term should apply to his Class 2 felony conviction (625 ILCS 5/4-103(a)(1), (b) (West 2010)). ¶ 35 The State responds that this court has consistently held that where a defendant is sentenced as a Class X offender, he must serve the Class X MSR term rather than the MSR term of the underlying felony. See e.g., People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011) and cases cited therein. Defendant, nevertheless, calls our attention to the supreme court decision in People v. Pullen, 192 Ill. 2d 36 (2000), to support his contention that these cases were wrongly decided. In Pullen, the supreme court held that a defendant's maximum consecutive sentence is determined by the classification of the underlying felonies. Pullen, 192 Ill. 2d at 46. Defendant argues that the reasoning of Pullen should be analogized to the MSR context, and that his MSR term should be based on his underlying conviction. ¶ 36 This court has repeatedly rejected claims that Pullen requires the imposition of a two-year MSR term, rather than a three-year term, when defendant is convicted of a lower class offense, but is sentenced as a Class X offender. See e.g., People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); People v. McKinney, 399 Ill. App. 3d 77, 82-83 (2010). This issue has also been addressed and repeatedly rejected in multiple districts, which have held that the statutes require the imposition of the three-year MSR term applicable to Class X sentences. See, e.g., People v. Wade, 2013 IL App (1st) 112547, ¶ 36-38 and cases cited therein. We thus find no reason to depart from these well-reasoned decisions, and, accordingly, find that defendant was properly ordered to serve a three-year MSR term in this case. Wade, 2013 IL App (1st) 112547 at ¶ 38. ¶ 37 Defendant's further argument that the doctrine of lenity requires that a two-year MSR term be applied has also been considered and rejected by this court in People v. Allen, 409 Ill. App. 3d 1058, 1078 (2011), and McKinney, 399 Ill. App. 3d at 81. We reach the same conclusion here. ¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Cook County. ¶ 39 Affirmed.
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They dragged me out of bed and violated my rights[.] *** My constitutional rights were violated. Nobody had no respect and regard for me. I sat up here and accepted it."