People v. Cole
| Decision Date | 30 March 2016 |
| Docket Number | No. 1–14–1664.,1–14–1664. |
| Citation | 52 N.E.3d 493,402 Ill.Dec. 572 |
| Parties | PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Brandon COLE, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
52 N.E.3d 493
402 Ill.Dec. 572
PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Brandon COLE, Defendant–Appellant.
No. 1–14–1664.
Appellate Court of Illinois, First District, Third Division.
Filed March 30, 2016.
Rehearing Denied April 26, 2016.
Michael J. Pelletier, Alan D. Goldberg, and Stephen L. Gentry, all of State Appellate Defender's Office, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, John Nowak, and Carol L. Gaines, Assistant State's Attorneys, of counsel), for the People.
OPINION
Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.
¶ 1 After a jury trial, defendant Brandon Cole was found guilty of two counts of attempted first degree murder and two counts of aggravated battery with a firearm for the shooting of Zachary Parson and Tiffany Space. He was sentenced to two terms of 20–years' imprisonment on the attempted murder convictions, to be served concurrently. He appealed, arguing that that his trial counsel was ineffective and that the evidence was insufficient to convict him. People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ). We affirmed defendant's convictions, but vacated the trial court's imposition of concurrent sentences, remanding for imposition of consecutive sentences. People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ). On remand, the trial court held a new sentencing hearing after which it resentenced defendant to two consecutive terms of 15 years' imprisonment. Defendant now appeals from the resentencing, contending: (1) his original 20–year concurrent terms were not void and are, therefore, neither subject to increase nor appealable by the State; and (2) the resentencing court erred in increasing his “aggregate sentence” by 10 years on remand. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 Many of the underlying details are included in defendant's direct appeal and postconviction appeal. People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ) (the direct appeal); People v. Cole, 2012 IL App (1st) 102499, 365 Ill.Dec. 90, 977 N.E.2d 1189 (the postconviction appeal). We recite here only those facts pertinent to the current appeal.
¶ 4 In 2007, defendant and codefendant Christopher Flint1 were tried simultaneously but before separate juries. At trial, victim Parson testified that he was shot by defendant on November 14, 2004, while walking with covictim Space. Specifically
Parson testified that he heard six shots and saw the shots coming from a gun held by defendant, whom he had known for approximately 10 years. Defendant, holding the gun, was about three or four feet away at the time. Parson was struck four times, suffering bullet wounds to his stomach, leg, and arm. Parson fell to the ground.
¶ 5 From the ground, Parson saw codefendant Flint, whom he had also known approximately 10 years, shoot at Space. Space was shot six times: twice in the abdomen, once in the neck, back, hip, and buttocks.
¶ 6 When the shooting stopped, Parson saw defendant and Flint run into an alley across the street. Parson called the police. Both victims survived.
¶ 7 Defendant was found guilty of two counts of attempted first degree murder and two counts of aggravated battery with a firearm. Following a sentencing hearing, defendant was sentenced to two terms of 20 years' imprisonment on the attempted murder convictions, to be served concurrently.
¶ 8 Defendant appealed, arguing that the State failed to prove his guilt beyond a reasonable doubt; that trial counsel was ineffective for failing to move to quash his arrest and suppress evidence; and that trial counsel was ineffective for failing make particular objections at trial. People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ). We affirmed defendant's convictions, but remanded for a new sentencing hearing. As to the sentencing issue, in the direct appeal, we stated, “The State challenges the imposition of concurrent prison terms,” with the following footnote:
“The defendant first identified this issue in his initial brief, evidently anticipating the State would address it in its responsive brief.” People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ).
We clarify that statement and footnote today. While it is true that defendant “first identified” the issue in his opening brief on the direct appeal, he did so by more than a mere mention of the issue. Rather, the issue had its own heading plus two full pages of argument. The heading, in bold, read:
“The holding of the Illinois Supreme Court in People v. Arna [,168 Ill.2d 107, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995),] is not applicable to the case at bar because the trial court properly determined that the criteria for mandatory consecutive sentences were not present under the facts of this case.”
¶ 9 Defendant proceeded, then, to argue why Arna was not pertinent to his sentence and why it was appropriate for him to serve concurrent prison terms. He ended his argument with the following paragraph:
“Consequently, in the event that this court affirms the judgment of the circuit court of Cook County convicting Mr. Cole for the offenses of attempt first degree murder of both Mr. Parson and Ms. Space, this Court should also affirm the judgment of the circuit court of Cook County sentencing Mr. Cole to serve his prison terms concurrently.”
¶ 10 In its response brief, the State noted that defendant's legal argument was outdated and argued that Arna did apply to defendant's convictions. It urged this court to remand for resentencing for statutorily required consecutive sentences. In his reply brief, defendant acknowledged his legal argument was outdated and conceded the sentencing issue.
¶ 11 Defendant, rather than the State, raised the sentencing issue in his opening appellate brief on direct appeal. In that appeal, we found that the trial court erred in imposing concurrent sentences. We vacated the sentences and remanded “for a new sentencing hearing for the imposition of consecutive sentences.” People v. Cole, No. 1–08–0761, 397 Ill.App.3d 1106, 370 Ill.Dec. 465, 988 N.E.2d 241 (2010) (unpublished order under Supreme Court Rule 23 ).
¶ 12 Prior to being resentenced, defendant filed a pro se petition for postconviction relief under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2010)). People v. Cole, 2012 IL App (1st) 102499, 365 Ill.Dec. 90, 977 N.E.2d 1189. The trial court dismissed the petition as being frivolous and patently without merit, and this court affirmed. People v. Cole, 2012 IL App (1st) 102499, ¶¶ 27–28, 365 Ill.Dec. 90, 977 N.E.2d 1189.
¶ 13 Time passed before defendant was resentenced. In 2013, defendant filed a petition for habeas corpus to demand resentencing. The court appointed the public defender to represent defendant and the case proceeded to a resentencing hearing.
¶ 14 Upon resentencing, the trial court ordered a new presentence investigation report and conducted a new sentencing hearing. At the hearing, the State recited the facts of the case, including that the victims were shot a total of 10 times and both had to undergo surgery for their injuries. The State reiterated that this constituted severe bodily injury and that the new sentences imposed must be served consecutively. The State asked for a sentence of 20 years for each conviction, to be served consecutively, for a total of 40 years' incarceration.
¶ 15 The defense argued defendant's original sentence was, in reality, a total sentence of 17 years' incarceration, where the sentence was two concurrent terms of 20 years' incarceration to be served at 85%. The defense argued that, because the court would have known defendant would only serve 17 years, the court, in handing down the original sentence, was actually making manifest its intent to sentence defendant to 17 years' incarceration. Therefore, the defense asked the court to start with two 10–year terms, served consecutively at 85%, as the upper limit of its sentence calculations, rather than consider the full sentencing range for the crimes.
¶ 16 In mitigation, the defense argued that defendant had taken steps while incarcerated to improve himself, including learning to read and write, being waitlisted for the GED program, training to be a janitor and then working as a housing unit janitor, setting the goal of being a barber upon release from incarceration, and attending religion classes. The defense also argued that the public interest would be served by allowing defendant to get out of jail earlier, as it...
To continue reading
Request your trial