People v. Bolton

• Decision Date: 08 May 2008
• Docket Number: No. 2-06-0462.,2-06-0462.
• Citation: 888 N.E.2d 672
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. W.B. BOLTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

888 N.E.2d 672

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. W.B. BOLTON, Defendant-Appellant.

No. 2-06-0462.

Appellate Court of Illinois, Second District.

May 8, 2008.

James K. Leven (Court-appointed), Chicago, for W.B. Bolton.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice GROMETER delivered the opinion of the court:

Defendant, W.B. Bolton, was convicted of burglary (720 ILCS 5/19-1(a) (West 2004)), following a jury trial in the circuit court of Du Page County. The trial court imposed an extended-term sentence of 12 years' imprisonment. He now appeals, challenging both his conviction and his sentence. He argues that the trial court did not conduct an adequate inquiry into his pro se claim of ineffective assistance of counsel (see People v. Moore, 207 Ill.2d 68, 77-79, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003)) and that his sentence violates the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000). We disagree with both contentions, and, accordingly, we affirm.

I. BACKGROUND

Defendant's burglary conviction stems from an incident in which defendant allegedly entered a grocery store in Wheaton with the intent to commit a theft. Specifically, defendant entered the store while in possession of a fake identification card and a check belonging to someone else. Defendant attempted to use the check to purchase various items and also obtain some cash. See People v. Smith, 264 Ill. App.3d 82, 86, 202 Ill.Dec. 392, 637 N.E.2d 1128 (1994), quoting People v. Weaver, 41 Ill.2d 434, 439, 243 N.E.2d 245 (1968) ("`But authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open. [Citation.] An entry with the intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat'"). Knowingly passing a bad check constitutes theft. People v. Reans, 20 Ill.App.3d 1005, 1006-08, 313 N.E.2d 184 (1974). Defendant does not challenge the sufficiency of the evidence, so we need not set it forth in more detail.

Following his trial, defendant filed a pro se motion. The motion contained, inter alia, the following statement: "Counsel failed to anything [sic] in preparation for a trial, field [sic] no motions to suppress video, indictment/information, etc." At a hearing on the motion, the trial court asked about several things defendant listed in the motion regarding his counsel's purported ineffectiveness. The court first inquired regarding defendant's claim that counsel should have called Officer Gruden to testify because there was a discrepancy between his police report and a surveillance videotape. After extensively discussing that claim, the trial court asked, "What else?" Defendant brought up counsel's failure to call other witnesses, including his sister, to testify. Also, defendant addressed counsel's failure to place into evidence the clothing he was wearing at the time of his arrest, as there was apparently some dispute regarding his description. The court then asked, "Okay, Anything else?" Defendant replied, "It's several things, if you want to get into it." The court stated, "I do want to get into it. You've raised the issues so I want you to tell me what your complaints are." Defendant brought up Gruden again. Defendant then complained that counsel did not keep him adequately apprised of what was transpiring. Defendant stated that he lost faith in counsel, that counsel failed to present evidence and withheld evidence, and that counsel refused to file a motion to dismiss as defendant requested. The court inquired as to the basis of the motion to dismiss, and defendant explained that he believed that the grand jury testimony did not support the charge. The court again asked, "Anything else?" Defendant again mentioned Gruden's police report. Once more, the court asked, "Anything else?" Defendant stated, "There is so much." Defendant explained that he and counsel did not get along. He also reiterated that counsel did not present "all the facts." Notably, during this lengthy conversation with the court, despite the court's repeated open-ended questions, defendant never mentioned suppressing his confession.

The case then moved to the sentencing phase. The presentence report indicated that defendant had previously been convicted of "Aggravated Vehicle Hijacking" and "Possession of Controlled Substance." The former is a Class X felony. 720 ILCS 5/18-4(b) (West 2004). The latter, depending on the circumstances, could be a Class 4 felony. See 720 ILCS 570/402(c) (West 2004). The State, however, had a copy of a sentencing order that it believed was a result of that latter conviction. According to the order, defendant was actually convicted of possession of a controlled substance with intent to deliver, a Class 2 felony. That document contained the notation, "PCS W/I." Defense counsel consulted with defendant, and defendant recalled being convicted only of simple possession. This difference is important because, if defendant had been previously convicted of two Class 2 or greater offenses, he was subject to sentencing as a Class X offender. 730 ILCS 5/5-5-3(c)(8) (West 2004).

The trial court granted a continuance, and a transcript of the sentencing hearing in the earlier possession case was obtained. When the hearing resumed, defense counsel pointed out to the trial court that the transcript stated that the sentencing order was entered on July 25, 1996, but that the court reporter's certification stated that the hearing at issue took place on July 25, 1997. Defense counsel stated that, based on this discrepancy, defendant was "still disputing the class of that offense." The trial court inquired as to the terms of the guilty plea that were reflected in the transcript. Defense counsel informed the court that the transcript stated that defendant was charged with a Class 1 felony but that, after a Rule 402 conference (177 Ill.2d R. 402), it was amended to a Class 2 felony. The trial court then asked the State whether it had a certified copy of the conviction. The State indicated that it had only a fax copy,¹ but that the copy showed the date of the conviction as July 25, 1996 (which is also the date indicated in the presentence report). The trial court noted that the cover page of the transcript was dated July 25, 1996, as well. The transcript is not a part of the record on appeal. The court then found that the conviction was of a Class 2 felony, specifically noting that nothing corroborated defendant's recollection that the conviction was of simple possession. It sentenced defendant to 12 years' imprisonment. Defendant now appeals.

II. ANALYSIS

Defendant first argues that the trial court failed to make an adequate inquiry into his pro se posttrial motion alleging that his trial attorney was ineffective. Defendant also argues that the sentence imposed by the trial court violated his right to a jury trial (U.S. Const., amends. VI, XIV). We will address these arguments in turn.

A. Defendant's Pro Se Posttrial Motion

In People v. Krankel, 102 Ill.2d 181, 189, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), the supreme court held that, where a defendant has set forth a colorable claim of ineffective assistance of counsel, new counsel should be appointed before conducting a hearing on that claim. Nevertheless, when a defendant makes a pro se allegation of ineffective assistance of counsel, it is not always necessary to appoint new counsel. Moore, 207 Ill.2d at 77, 278 Ill.Dec. 36, 797 N.E.2d 631. New counsel is required only where the defendant's allegation shows "possible neglect" of the case. Moore, 207 Ill.2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. Conversely, if a claim lacks merit or concerns matters of trial strategy, new counsel need not be appointed. People v. Williams, 147 Ill.2d 173, 251, 167 Ill.Dec. 853, 588 N.E.2d 983 (1991). Thus, the trial court must inquire regarding the factual basis of a defendant's claim. Moore, 207 Ill.2d at 77-78, 278 Ill.Dec. 36, 797 N.E.2d 631. Generally, the inquiry will take one of three forms. Often, some discussion between the trial court and defense counsel is necessary. Moore, 207 Ill.2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. The trial court may also discuss the allegations with the defendant. Moore, 207 Ill.2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. Finally, the trial court may rely on its own recollection of trial counsel's performance. Moore, 207 Ill.2d at 79, 278 Ill.Dec. 36, 797 N.E.2d 631. Usually, the relevant question on appeal concerns the adequacy of the trial court's inquiry into the defendant's claims. People v. Johnson, 159 Ill.2d 97, 125, 201 Ill.Dec. 53, 636 N.E.2d 485 (1994).

However, in this case, a preliminary question presents itself. Defendant is arguing that the trial court should have inquired regarding counsel's failure to file a motion to suppress his confession. Defendant never mentioned this issue in his pro se posttrial motion or during his discussion with the trial court regarding his motion. Instead, he merely articulated, in his written motion, "Counsel failed to anything [sic] in preparation for a trial, field [sic] no motions to suppress video, indictment/information, etc." Thus, the question we must first resolve is whether the trial court was obligated to specifically inquire regarding counsel's not attempting to suppress the confession, based on defendant's pro se motion's general reference to motions to suppress. Indeed, characterizing the reference as "general" is probably inappropriate, since defendant articulated three specific things that he thought should have been suppressed—a video, the indictment, and/or the information. Cf. People v. Cuadrado, 214 Ill.2d 79, 89, 291 Ill.Dec. 638, 824 N.E.2d 214 (2005) ("This court has...