People v. Brasseaux

• Decision Date: 25 January 1996
• Docket Number: 2-92-0600 and 2-92-0601,2-92-0599,Nos. 2-92-0596,s. 2-92-0596
• Citation: People v. Brasseaux, 254 Ill.App.3d 283, 660 N.E.2d 1321 (Ill. App. 1996)
• Parties: , 214 Ill.Dec. 372 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert BRASSEAUX, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1321

660 N.E.2d 1321

254 Ill.App.3d 283, 214 Ill.Dec. 372

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Robert BRASSEAUX, Defendant-Appellant.

Nos. 2-92-0596, 2-92-0599, 2-92-0600 and 2-92-0601.

Appellate Court of Illinois Second District.

Jan. 25, 1996.

G. Joseph Weller Deputy Defender, Kathleen J. Hamill, Office of the State Appellate Defender, Elgin, for Robert Brasseaux.

Michael J. Waller, Lake County State's Attorney, Waukegan, William L. Browers, Deputy Director, David A. Bernhard, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice GEIGERdelivered the opinion of the court:

On March 30, 1992, the defendant, Robert Brasseaux, in four separate cases, entered negotiated pleas of guilty to one count each of forgery, felony theft, robbery, and burglary.On the same date, he was sentenced to concurrent terms of 10 years' imprisonment on each count.On April 15, 1992, the defendant's pro se motions to reconsider sentence were heard and denied.The defendant filed timely notices of appeal.On December 27, 1993, this court reversed and remanded for further proceedings.(People v. Brasseaux(1993), 254 Ill.App.3d 283, 192 Ill.Dec. 960, 625 N.E.2d 1115.)In addition, this court ordered the circuit court to correct the mittimuses in case Nos. 92-CF-74and92-CF-194 to reflect sentences of five years each.(Brasseaux, 254 Ill.App.3d at 292, 192 Ill.Dec. 960, 625 N.E.2d 1115.)On March 7, 1994, the State filed a petition for leave to appeal to the Illinois Supreme Court.On October 4, 1995, in denying the State's petition for leave to appeal, the Illinois Supreme Court vacated this court's judgment dealing with the extended term sentence for the defendant's Class 3 felony convictions and remanded the cause to this court with directions to reconsider our decision in light of People v. Coleman(1995), 166 Ill.2d 247, 209 Ill.Dec. 782, 652 N.E.2d 322.In compliance with the order of the Illinois Supreme Court, we withdraw our December 27, 1993, opinion and issue this modified opinion.

The defendant appeals from the denial of his motions to reconsider sentence.A motion to consolidate these cases on appeal was granted.The issue on appeal is whether the proceedings held on the defendant's pro se motions to reconsider sentence, which resulted in the denial of the motions, violated his right to effective assistance of counsel and due process.

On February 5, 1992, the defendant was charged, by four indictments, with various offenses, all of which occurred in December 1991 and January 1992.In case No. 92-CF-74, the defendant was charged with two counts of forgery.Both offenses allegedly occurred on January 4, 1992: one at a currency exchange in North Chicago and the other at a currency exchange in Vernon Hills.In case No. 92-CF-194, the defendant was charged with a single count of theft of property valued at over $300.That offense allegedly occurred on January 15, 1992, at a "7-Eleven" store in Waukegan.In case No. 92-CF-212, the defendant was charged with one count each of armed robbery and robbery.Both offenses allegedly occurred at the same Waukegan "7-Eleven" store as did the theft, but five days earlier, on January 10, 1992.In case No. 92-CF-216, the defendant was charged with two counts of burglary.Both burglary offenses allegedly occurred at the Enfield Industrial Corporation building in Lake Bluff, one on December 27, 1991, and the other on January 8, 1992.

On March 30, 1992, the defendant, who was represented by an assistant public defender, entered pleas of guilty in each of his four cases.In case No. 92-CF-74, he pleaded guilty to one count of forgery; in case No. 92-CF-194, he pleaded guilty to one count of felony theft; in case No. 92-CF-212, he pleaded guilty to one count of robbery; and in case No. 92-CF-216, he pleaded guilty to one count of burglary.It was agreed that in return for his pleas, he would receive four concurrent sentences of 10 years' imprisonment for his convictions and all of the remaining charges against him would be nol prossed.

The court admonished the defendant pursuant to Supreme Court Rule 402(134 Ill.2d R. 402).The court explained the potential penalties that the defendant could receive for each of his convictions.As a factual basis for the pleas, the court asked the defendant if he had committed each offense, and the defendant stated that he had.

After the pleas were accepted, the defendant waived his right to a presentence report.The court then imposed extended terms of 10 years each for the defendant's two convictions of Class 2 felonies, robbery and burglary, and stated that the sentences for the remaining offenses, both of which were Class 3 felonies, were "the maximum term."The mittimuses filed in all four cases state that each sentence is 10 years and runs concurrently with the terms imposed in the other three cases.

On April 7, 1992, the defendant filed, pro se, a document titled, "Motion to Reconsider Sentence," which was captioned with the numbers of all four of the cases.The motion resembles a notice of appeal.It contains no allegations of error and no prayer for relief.It includes the defendant's name, the date of the judgments, the offenses committed, and the sentences received.The defendant alleged that he was indigent and requested the appointment of counsel.

Despite the motion's deficiencies, the trial court set it for a hearing on April 15, 1992.The defendant was not present at the hearing and he was not represented by the assistant public defender who had been his attorney up until the hearing.Instead, a different assistant public defender appeared for the defendant for the first time in any of the four cases.The entirety of the hearing follows:

"MR. POLENZANI [Prosecutor]: People of the State of Illinois versus Brasseaux, 92 CF 194, 212, 216, 74.The Defendant is in custody of the Illinois Department of Corrections, represented by Assistant Public Defender, David Brodsky.People of the State of Illinois by Assistant State's Attorney, Joe Polenzani.

Judge, this matter is up on defendant's motion.

MR. BRODSKY: Your Honor, I obviously didn't motion it up.I believe the Defendant wrote a letter to the Court, which has a file stamp date of April 17th [sic: 7th], entitled--handwritten something entitled motion to reconsider sentence.There is [sic ] six paragraphs contained in there and no real prayer for relief.However--

THE COURT: How about if I reconsider it?Robbery, burglary, forgery, and theft.I'll deny the motion.

If you would advise him he has 30 days in which to appeal?"

On May 8, 1992, notice of appeal was filed in all four cases.The record also contains copies of a pro se notice of appeal which was file stamped May 15, 1992, and a letter from the defendant to the trial judge, dated May 9, 1992, and file stamped May, 15, 1992.In the letter, the defendant stated in relevant part:

"I am writing you in regards of your denial of my motion to reconsider sentence.You denied that motion on April 15, 1992.I only filed the motion on thought that I felt I was not properly represented.The attorney that was representing me Assistant Public DefenderRichard Daniels told me himself that he couldnt [sic ] do much for me.Mr [sic ] Daniels told me that he held a 402 conference with you and told me that you said if I did not except [sic ] the 10 year sentance [sic ] that I would recive [sic ] much more."

The defendant went on to list facts which he thought warranted the imposition of lesser terms.No response to the letter is included in the record.

On appeal, the defendant argues that he was denied the effective assistance of counsel and due process of law because his pro se "Motion to Reconsider Sentence" was insufficient, the assistant public defender who represented him at the hearing did not afford him the effective assistance of counsel, and he was not present at the hearing on the motion.

Before we consider the defendant's claim that he was denied the effective assistance of counsel at the hearing on his "Motion to Reconsider Sentence,"we will address the issue of whether the defendant was entitled to court-appointed counsel at the hearing.This court was presented with this issue in People v. Thomas(1990), 193 Ill.App.3d 525, 140 Ill.Dec. 547, 550 N.E.2d 29.In Thomas, this court stated:

"Both sides agree that the sixth amendment's guarantee of the assistance of counsel applies to all 'critical stages' of criminal proceedings.(United States v. Wade(1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926.)The parties also agree that sentencing is a critical stage of criminal proceedings.(People v. Smith(1985), 133 Ill.App.3d 574[88 Ill.Dec. 689, 479 N.E.2d 24].)However, defendant contends that a hearing on a motion to reduce a sentence is a critical stage, and the State argues that such a hearing does not rise to being a critical stage.

Initially, we note that defendant does not cite any authority for his contention but merely asserts that a hearing to reduce or modify any sentence is as crucial as the sentencing hearing itself.

In response, the State cites Mempa v. Rhay(1967), 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254, wherein the Supreme Court noted that counsel is required at every stage where substantial rights of a criminal accused might be affected.Mempa also observed that an important consideration is whether legal rights could be lost if not exercised at the relevant stage of criminal proceedings.The State contends that neither of these considerations is at issue in a hearing to reduce the sentence, and, therefore, a trial court is not required to appoint counsel to an indigent defendant at such a hearing.We agree.

As the State asserts, the motion to reduce a sentence, unlike a post-trial motion, is not required as part of a trial, and a defendant's failure to raise an issue in said motion will not result in its waiver of the issue...