People v. Brisco

• Decision Date: 29 March 2012
• Docket Number: No. 1–10–1612.,1–10–1612.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Cornell BRISCO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 101612
971 N.E.2d 20
361 Ill.Dec. 365

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Cornell BRISCO, Defendant–Appellant.

No. 1–10–1612.

Appellate Court of Illinois,
First District, Fourth Division.

March 29, 2012.

[971 N.E.2d 24]

Michael J. Pelletier, Alan D. Goldberg, Alison L.S. Shah, State Appellate Defender's Office, Chicago, for Appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michelle Katz, Jon Walters, Assistant State's Attorney's of counsel), for the Appellee.

OPINION
Justice STERBA delivered the judgment of the court, with opinion.

[361 Ill.Dec. 369]¶ 1 Defendant Cornell Brisco was charged by information with four counts of aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a) (1) (West 2008)) and two counts of unlawful use of a weapon by a felon (720 ILCS 5/24–1.1(a) (West 2008)). Following a bench trial, defendant was convicted on all counts and sentenced to 11 years in prison on the first count of aggravated unlawful use of a weapon (AUUW). On appeal, defendant contends that the State failed to prove him guilty of AUUW beyond a reasonable doubt where the statute under which he was charged had been amended at the time the crime was committed and where defendant fell under the invitee exception to the amended statute. Alternatively, defendant contends that the trial judge was not a neutral arbiter where the judge referenced defendant's eligibility for a Class X sentence in response to defendant's questions. Defendant also contends he received ineffective assistance of counsel where his attorney failed to bring pretrial motions to quash arrest and suppress evidence and was denied his right to counsel of his choice when the trial court required his chosen attorney for posttrial proceedings to become familiar with the case within two weeks as a condition of approving the motion for substitution. Next, defendant contends the trial court's imposition of an 11–year sentence was excessive in light of the character of defendant's prior offenses and his attempts at rehabilitation. Defendant also contends the statute for AUUW is unconstitutional under the second amendment. Finally, defendant contends that the trial court erred in imposing a three-year term of mandatory supervised release (MSR) attaching to Class X felonies when defendant was found guilty of a Class 2 offense, which attaches only a two-year term of MSR. For the reasons that follow, we affirm the judgment of the trial court, but vacate the sentence and remand for new posttrial proceedings.

¶ 2 BACKGROUND

¶ 3 This case arises out of events occurring on September 22, 2009, when defendant was arrested in the basement apartment of 1545 North Lorel Avenue in Chicago, Illinois. Defendant was charged with four counts of AUUW and two counts of unlawful use of a weapon by a felon. Specifically, count I of the information charged defendant with AUUW, alleging defendant: “knowingly carried on or about his person, a firearm, at a time when he was not on his own land or in his own abode or fixed place of business and the firearm possessed was uncased, loaded, and immediately accessible at the time of offense, and he had been previously convicted of a felony.”

¶ 4 In November 2009, a conference pursuant to Illinois Supreme Court Rule 402 (Ill. S.Ct. R. 402 (eff. July 1, 1997)) was held, and defendant was offered a seven-year sentence in exchange for a guilty plea. At a hearing held several months later, defendant inquired through counsel why he was eligible for Class X sentencing. The trial court responded that defendant was Class X because of his background, which included prior Class 2 felonies. The court recounted defendant's 2002 conviction[361 Ill.Dec. 370]

[971 N.E.2d 25]

for harassing a juror or witness, his 2004 conviction for delivery of a controlled substance, and also referred to a charge of possession of a controlled substance. At that point, the State interjected, saying “Judge, I don't have this as a Class X.” The trial court responded that it was basing its recollection on what was indicated at the Rule 402 conference, but then checked the charging instrument. There, it found that because the State had not used the 2007 possession of a controlled substance conviction to enhance the current charge, but instead used the 2002 harassment conviction, defendant could not be subject to Class X sentencing.

¶ 5 After the case was passed to allow the parties to reenter a conference, defendant was again offered seven years, this time under Class 2 sentencing, which ranges from a minimum of 3 to a maximum of 14 years. The trial court cautioned defendant that if he chose not to accept this offer, there was a risk the State would cure the “deficiency” in the charging document, resulting in Class X sentencing. Defendant rejected the offer of seven years, whereupon the State sought leave to amend the charging instruments to comport with the preliminary hearing transcript, which indicated defendant was convicted of possession of a controlled substance. The court granted the State's motion to amend over defendant's objection.

¶ 6 The State's evidence at trial established that on September 22, 2009, at around midnight, Chicago police officer Vince Stinar and his partner were driving in an unmarked vehicle in the area of 1545 North Lorel Avenue when they saw two men in the street near the mouth of an alley. One man was on a bicycle with his hands in the air, while another man, later identified as defendant, stood five feet away, facing the man on the bike.

¶ 7 Officer Stinar testified at trial that while he was driving toward the men's location, defendant looked in the direction of the officer's vehicle and ran into a side entrance of an immediately adjacent building. As Officer Stinar pursued defendant into the building, he noticed a large object in defendant's hands. Once inside the building's first-floor apartment, Officer Stinar saw defendant drop a rifle while running through the building and out the door. Officer Stinar recovered the rifle and placed it in the trunk of the police vehicle, while his partner observed defendant return to the building and proceed to the basement. After backup units arrived to assist, Officer Stinar entered the basement and found defendant hiding behind a stack of boxes and placed him under arrest.

¶ 8 Defendant testified that on the evening of September 22, 2009, he was sleeping in his friend Gregory's basement apartment at 1545 North Lorel Avenue. According to defendant, he had known Gregory for several years, though he did not know his last name. Defendant testified he first saw the police when they woke him out of his sleep, handcuffed him, and dragged him out of the apartment. Defendant denied having a rifle at any time during the night of his arrest.

¶ 9 The court found defendant guilty on all counts and continued the matter for further proceedings. One month after trial, on June 2, 2010, when the case was first up for posttrial motions and sentencing, counsel Irving Federman requested leave to enter an appearance for defendant for the purpose of posttrial motions. Federman requested time to supplement the pending motion for a new trial filed by defendant's court-appointed attorney and to review the transcript. The court immediately denied the motion, but then held a discussion off the record. Back on the [361 Ill.Dec. 371]

[971 N.E.2d 26]

record, the court revealed the results of a scheduling conference with Federman, stating that Federman was scheduled for surgery on June 21, and the court would be retiring effective July 1. Therefore, the court offered Federman the opportunity to appear if he could be ready by June 15, but noted the impossibility of obtaining a trial transcript by that date. Federman ultimately asked for leave to withdraw his appearance and the case was continued for the following day.

¶ 10 The next day, the court denied defendant's motion for a new trial and heard from defendant at the sentencing hearing. Defendant stated he had received a certificate in janitor and correction maintenance during his prior incarceration. Arguing further in mitigation, defendant pointed out he had not fathered any children and had several extended-family members visiting him regularly. The trial court imposed a sentence of 11 years with a 3–year term of MSR. Defendant filed a motion to reconsider the sentence, which the trial court denied. Defendant timely filed this appeal.

¶ 11 ANALYSIS ¶ 12 A. Guilt Beyond Reasonable Doubt

¶ 13 Defendant first contends that he was charged and convicted on counts I and II under an earlier version of the AUUW statute that had been amended by the time of his offense. As this issue was not raised either at trial or in a posttrial motion, we review for plain error. See People v. McLaurin, 235 Ill.2d 478, 485, 337 Ill.Dec. 221, 922 N.E.2d 344 (2009). This doctrine allows a reviewing court to consider otherwise unpreserved issues on appeal if the evidence is closely balanced or the error so seriously affects the integrity of the judicial process that it denies the defendant his right to a fair trial. People v. Santiago, 409 Ill.App.3d 927, 930–31, 350 Ill.Dec. 802, 949 N.E.2d 290 (2011). Defendant argues this error affected his substantial rights, namely, the prohibition on convicting a defendant for a crime that does not exist. See People v. Wasson, 175 Ill.App.3d 851, 854, 125 Ill.Dec. 369, 530 N.E.2d 527 (1988). Before turning to the merits of this contention, we must first determine whether an error occurred.

¶ 14 Where the sufficiency of a charging instrument is attacked for the first time on appeal, we must review the indictment or information to ascertain if it apprised the defendant of the offense charged with sufficient specificity to: (1) allow preparation of his defense; and (2) allow pleading a resulting conviction or acquittal as a bar to future prosecution. People v. DiLorenzo, 169 Ill.2d 318, 322, 214 Ill.Dec. 846, ...