People v. Leeper
| Decision Date | 17 November 2000 |
| Docket Number | No. 5-99-0260.,5-99-0260. |
| Citation | 317 Ill. App.3d 475,740 N.E.2d 32,251 Ill.Dec. 202 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald LEEPER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel M. Kirwan, Deputy Defender, Edwin J. Anderson, Assistant Defender, Office of the State Appellate Defender, Mount Vernon, for Appellant.
Darrell Williamson, State's Attorney, Chester; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mount Vernon, for Appellee.
Three questions are presented in this appeal: two constitutional issues and one statutory. The constitutional issues involve (1) a request for self-representation and (2) a claim of the ineffective assistance of counsel. The statutory issue involves both section 5-8-7(b) of the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West 1992)) (the credit-against-sentence provision) and section 5-8-4(e)(4) of the Unified Code of Corrections (730 ILCS 5/5-8-4(e)(4) (West 1992)) (the consecutive-sentence provision). For the reasons that follow, we affirm the denial of the self-representation request, we conclude that the ineffective-assistance-of-counsel claim fails, and we affirm the lower court's decision declining to award the defendant sentencing credit for the time spent in the custody of the Department of Corrections for his parole violation.
On September 16, 1998, the State of Illinois charged the defendant, Donald Leeper, with the offense of driving while license revoked. The charge alleged that on August 8, 1998, Leeper operated a motor vehicle in Percy, Illinois, while his driver's license was revoked due to a prior conviction for driving under the influence of alcohol and after having previously been convicted of driving while license revoked. The court appointed the Randolph County Public Defender, Mr. Rayburn Fricke, to represent Leeper.
The cause was called for a jury trial on November 16, 1998. In addition to the driving-while-revoked charge, Leeper was also tried for two traffic violations. Prior to the jury selection, Leeper stated that he had a conflict of interest with Fricke. He stated that Fricke was not assisting him in preparing for the trial. Leeper then requested a continuance and different counsel. The court refused and stated that the jury was ready to be selected. Leeper then stated that he refused to have counsel represent him. Leeper stated that he had only limited communication with Fricke. Fricke indicated that he believed that he had covered everything with Leeper that needed to be covered.
The court prepared to conduct the voir dire. Fricke waived the transcription of the voir dire. Leeper again stated that he refused to cooperate with Fricke and did not want Fricke to represent him. Although the voir dire was not transcribed, the strikes for cause and the peremptory challenges were noted on the record. Following this, Leeper stated that he wanted to represent himself. The court refused and stated that the jury trial had begun. The court then took a lunch recess.
Upon return, the court noted that, during the recess, a juror had contacted a bailiff and asked to speak with the judge. The judge then spoke with the juror. Neither the attorneys nor the court reporter were available at that time. The juror indicated to the judge that, due to her religious beliefs, she could not sit in judgment of another person and, therefore, could not serve on the jury. According to the judge, through his questioning, the juror indicated that she would be unable to deliberate and to reach a verdict. Because of this, the judge excused her. Fricke stated that the juror could have been highly favorable to Leeper, but he offered no objection to the court's actions.
In its opening statement, the State indicated that it would present evidence that a Percy police officer had seen a vehicle, driven by Leeper, fail to stop at a stop sign. The officer, in a marked squad car, then signaled for the vehicle to stop. The vehicle then accelerated away and went through an intersection before stopping in a parking lot. The driver tried to run from the officer. Additionally, the State stated that it would show that Leeper's driver's license had been suspended on the date of the offense.
Fricke then presented his opening statement and stated that Leeper pled not guilty to the offense. Fricke explained to the jury that the burden of proof in the case lay with the State to show that Leeper was guilty beyond a reasonable doubt. He also stated that he anticipated that Leeper would testify, and he asked the jury to listen carefully to both Leeper's and the police officer's versions of the events.
Washington County Deputy Sheriff Ralph Jones testified that on August 8, 1998, he was a police officer in Percy, Illinois. At 10:45 p.m., he had been patrolling in his marked squad car and observed a vehicle drive through a stop sign at Second and Almond Streets. Jones saw a driver and no passengers in the vehicle. Jones then turned on his lights in order to make a traffic stop. He then heard the vehicle accelerate. According to Jones, the vehicle then proceeded up Fourth Street, disregarded another stop sign, and eventually drove onto a parking lot. Jones testified that as he was standing next to the squad car with his weapon drawn, Leeper ran from the vehicle. Jones tackled Leeper, handcuffed him, and placed him in the squad car. During his testimony, Jones identified Leeper as the driver of the vehicle. Fricke did not cross-examine Jones. Leeper asked to cross-examine Jones, but the court did not allow him to do so.
Next, the State introduced into evidence a certified copy of Leeper's driver's license abstract, which indicated that Leeper's license had been revoked on August 8, 1998. The State then rested, and the court took a recess.
During the recess, Leeper told Fricke that he would not testify. After the recess, Leeper asked the court if he could show letters he had written to Fricke about the case, which, according to Leeper, indicated that he had not received satisfactory responses from Fricke. Leeper stated that he believed he had evidence and witnesses with which to attack Jones's credibility but that a defense had not been prepared. Leeper again stated that he wanted to represent himself and that he did not think Fricke was competent. The court asked Leeper if he would testify, and he did not respond. The court then stated that it would proceed with the trial, and Fricke indicated that the defense would rest.
Next, the jury-instruction conference was held. After the conference, the court allowed the State to reopen its case to add to the record, for the court's use only, a certified copy of Leeper's driver's license abstract. The abstract showed Leeper's prior convictions for driving under the influence of alcohol and driving while license revoked. The defense made no objection.
Following another recess, Leeper stated that he no longer wanted to be present in the courtroom. The court informed the jury that Leeper had voluntarily elected not to stay in the courtroom. The defense then rested.
Brief closing arguments were given. The judge read the jury instructions to the jury, and the jury retired at 2:40 p.m. The jury then returned with guilty verdicts at 2:55 p.m.
On November 25, 1998, Leeper filed a pro se motion to remove the public defender as counsel, in which he alleged that he had been denied the effective assistance of counsel. On December 8, 1998, Leeper filed a pro se motion for a new trial, in which he also alleged that he had been denied the effective assistance of counsel and that the court had violated his constitutional rights in failing to remove Fricke.
On December 21, 1998, a hearing was held on the motion, and the judge decided that separate counsel should be appointed to represent Leeper. On January 8, 1999, the court appointed Mr. Randall Rodewald to represent Leeper.
On March 18, 1999, a hearing was held on the motion to remove the public defender as counsel. Fricke was called as a witness. He testified that between August and November 1998 he had three or four short meetings with Leeper regarding the case. Fricke acknowledged that he had used all of his peremptory challenges prior to the impaneling of a correctional officer and the wife of a deputy sheriff as jurors. He also acknowledged that he had not asked to question the juror that the judge had excused during the recess. Lastly, he acknowledged that he did not cross-examine the State's witness and did not object when the State reopened its case to submit the driver's abstract exhibit.
The court found that Fricke had done "the job he could based on the level of cooperation that he was receiving from his client." The court, however, granted the motion removing Fricke and appointed Rodewald to represent Leeper at the sentencing hearing.
On April 12, 1999, the sentencing hearing was held. Rodewald argued Leeper's posttrial motion, contending that Fricke had been ineffective. The court denied the motion for a new trial. A presentence investigation report had been filed December 18, 1998. The court noted Leeper's numerous prior felony convictions and found that he was eligible for an extended-term sentence. The court then imposed an extended-term sentence of six years' imprisonment for the driving-while-license-revoked conviction.
The determination of whether a defendant's constitutional rights have been violated is subject to de novo review. Quantum Pipeline Co. v. Illinois Commerce Comm'n, 304 Ill.App.3d 310, 314, 237 Ill.Dec. 481, 709 N.E.2d 950, 953 (1999). The standard of review is also de novo for the appeal of the statutory claim. Boaden v. Department of Law Enforcement, 171 Ill.2d 230, 237, 215 Ill.Dec. 664, 664 N.E.2d 61, 65 (1996).
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