People v. Johnson, 1-05-1050.

Decision Date30 March 2007
Docket NumberNo. 1-05-1050.,1-05-1050.
Citation867 N.E.2d 49
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Todd JOHNSON, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michele Grimaldi Stein and Michele I. Lavin, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Following bench trial, defendant Todd Johnson was convicted of possession with intent to deliver a controlled substance and sentenced to 18 years in the Illinois Department of Corrections. Defendant argues the trial court failed to properly inquire into his pro se claim of ineffective assistance of counsel as required by People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). Defendant also contends his extended sentence violated Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In addition, defendant challenges his $20 penalty under the Violent Crime Victims Assistance Fund Act (725 ILCS 240/1 et seq. (West 2002)), his $5 spinal cord injury fee, and the trial court's refusal to apply a $5-per-day sentence credit towards his $2,000 controlled substance assessment for his 453 days in custody before sentencing. Finally, defendant seeks correction of the description of his offense in the mittimus. We affirm as modified.

BACKGROUND

In January of 2004, defendant was arrested in Chicago for selling heroin. Police officers testified to observing him make several sales on the streets of Chicago. Upon his arrest, police found defendant in possession of approximately seven grams of heroin and cash from the drug deals. On June 15, 2004, Johnson was convicted of possession with intent to deliver a controlled substance and the case was continued for sentencing. Before sentencing, defense counsel and defendant informed the court that defendant was taking psychotropic medication. Defendant also informed the court that he did not believe that his attorney was working in his best interests and filed a pro se motion for a new trial alleging ineffective assistance of counsel. In his motion, defendant claimed that his defense attorney never visited him in jail, failed to file certain pretrial motions, failed to investigate the crime scene, and failed to conduct sufficient cross-examination.

In response to defendant's claims, the trial court appointed a new attorney to represent defendant on his posttrial motions. Sentencing occurred on April 6, 2005, during which defendant again made his pro se allegation to the trial judge. The trial judge denied defendant's pro se motion, as well as his attorneys' motions for new trial, and imposed an extended sentence of 18 years in the Illinois Department of Corrections. Defendant was also assessed a total of $2,704 in fines, fees, costs and other monetary penalties. This included a $20 penalty for the Violent Crime Victims Assistance Fund, a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund and a $2,000 controlled substance assessment. Defendant was incarcerated for 453 days before being sentenced. This appeal followed.

I. Ineffective Assistance of Counsel

Defendant contends that under the principles articulated in People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), the trial court was obligated to conduct a preliminary inquiry into the bases for his pro se claims of ineffective assistance of counsel. He argues the failure to do so requires remand.

In People v. Krankel, 102 Ill.2d 181, 189, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), the defendant, accused of burglary, filed a pro se motion alleging ineffective assistance of counsel because his public defender failed to investigate the defendant's claim that he had an alibi that would prove his innocence. In Krankel, the Illinois Supreme Court found defendant's potential alibi formed a crucial part of his case and appointed him new counsel to aid in his ineffective assistance of counsel argument. Krankel, 102 Ill.2d at 189, 80 Ill.Dec. 62, 464 N.E.2d 1045.

The Illinois Supreme Court in People v. Moore, 207 Ill.2d 68, 77-79, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003), discussed the procedures trial courts could use to resolve a posttrial, pro se ineffective assistance of counsel motion. The trial court could conduct a brief discussion with trial counsel or defendant to determine the potential merit of defendant's allegations, or the trial court could resolve the defendant's pro se allegations based on its knowledge of defense counsel's performance at trial and the insufficiency of the allegations on their face. Moore, 207 Ill.2d at 78-79, 278 Ill. Dec. 36, 797 N.E.2d 631.

Applying the Illinois Supreme Court's ruling in Moore, the trial court is not required to perform all of the above actions to determine whether there is ineffective assistance of counsel. Rather, the trial court can base the decision on a discussion of the claim with the defendant or defendant's counsel or base its evaluation on its knowledge of defense counsel's performance at trial and the insufficiency of the allegations on their face. Moore, 207 Ill.2d at 79, 278 Ill.Dec. 36, 797 N.E.2d 631. In Moore, the Illinois Supreme Court made it clear that new counsel is not automatically required in every case in which a defendant alleges ineffective assistance of counsel in a pro se motion. Moore, 207 Ill.2d at 77, 278 Ill.Dec. 36, 797 N.E.2d 631. If a defendant's claim lacks merit or relates to only matters of trial strategy, then the trial court is not required to appoint new counsel and may deny the pro se motion. Moore, 207 Ill.2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631.

In the instant case, on September 29, 2004, the defendant filed a written posttrial motion claiming his trial attorney was ineffective; however, the case was continued. On December 3, 2004, the trial court appointed a new attorney to represent defendant on his posttrial motions and continued the case. On April 6, 2005, defendant's new attorney argued the amended motion for new trial and reminded the court about defendant's pro se motion claiming ineffectiveness of trial counsel. The trial court reviewed the defendant's motion and allowed the defendant an opportunity to further state his claims in court with newly appointed counsel to assist him. As to defendant's pro se motion alleging ineffective assistance of trial counsel, defendant's new counsel inquired of defendant as follows: "I would ask if he would want to add anything to that." The trial court responded: "Any argument that you want to make, Mr. Johnson?" Defendant declined the trial court's offer to argue, explain, or support his motion. The trial court specifically stated: "I reviewed all the documents you ever tendered to me." Defendant's new attorney at that point indicated that he believed defendant would stand on his written motion.

Additionally the trial court expressly addressed the fact that it believed that the original defense counsel performed adequately. The trial court indicated that defendant had been ably represented both at trial and at the hearing on the posttrial motions. The trial court noted the original defense counsel did a great deal of work in the criminal court's building and described his representation as able. As to both the original defense counsel and newly appointed defense counsel the trial court indicated as follows: "I respect their ability a great deal."

Upon review of the defendant's argument, the operative concern is whether the trial court conducted an adequate inquiry into the defendant's pro se allegations of ineffective assistance of counsel. People v. Johnson, 159 Ill.2d 97, 125, 201 Ill.Dec. 53, 636 N.E.2d 485 (1994). The record in the instant case reflects the trial court reviewed defendant's motion and specifically gave defendant the opportunity to argue, explain, and support his allegations. See People v. Cummings, 351 Ill.App.3d 343, 352-53, 286 Ill.Dec. 311, 813 N.E.2d 1004 (2004) (trial court conducted adequate inquiry because it read defendant's motion and gave defendant the opportunity to argue, explain, and support his allegations). Moreover, in the instant case, defendant was appointed a new attorney to aid in presenting his claims of ineffective assistance and to argue trial counsel's posttrial motion for new trial, as well as the amended motion for new trial. The record reflects that the trial court's actions were appropriate and demonstrated adequate review and inquiry into defendant's allegations of ineffective assistance of counsel. Accordingly, we reject defendant's argument that the case should be remanded for the trial court to conduct further proceedings in connection with defendant's pro se claims of ineffective assistance of counsel.

Defendant alleged in his pro se motion that his trial counsel was ineffective for failing to visit him in jail to discuss his case, failing to litigate a motion to quash arrest and suppress evidence, and failing to properly investigate and conduct sufficient cross-examination. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's representation was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test must be satisfied to establish an ineffective assistance of counsel claim. People v. Albanese, 104 Ill.2d 504, 525-27, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). Counsel's performance is deficient if it fails to satisfy an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must overcome a strong presumption that the challenged action or inaction was...

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