People v. McCormick
| Decision Date | 26 September 2014 |
| Docket Number | No. 1-12-2937,1-12-2937 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD MCCORMICK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
The Honorable Arthur F. Hill Jr., Judge, presiding.
¶ 1 Held: The trial court did not err in the second-stage dismissal of defendant's postconviction petition which alleged ineffective assistance of counsel due to counsel's alleged failure to file a motion to dismiss on statute-of-limitations grounds, where defendant represented himself pro se for four months prior to trial, and where the record does not disclose a reasonable probability that, had defendant made such a motion at that time, the trial court would have found it untimely.
¶ 2 Defendant Donald McCormick was convicted after a jury trial of aggravated criminal sexual assault, aggravated kidnapping and robbery, and sentenced on April 2, 2009, to a total of 80 years in the Illinois Department of Corrections.
¶ 3 In this appeal, defendant contests the second-stage dismissal of his post-conviction petition. Defendant claims that his trial counsel and appellate counsel were both ineffective for failing to raise the claim that defendant was charged outside the applicable statute of limitations for both the robbery and aggravated kidnapping charges. The State moved to dismiss the petition on the ground that defendant represented himself pro se for several months prior to trial and during the trial itself, thereby waiving this claim. The trial court agreed, and dismissed on this basis.
¶ 4 This appeal raises the question of whether the pro se representation by a defendant during the months immediately preceding trial and during the trial itself waives a claim of ineffective assistance of counsel against a prior counsel for not previously challenging the indictment on statute of limitations grounds.For the following reasons, we also agree with the State and the trial court, and affirm.
¶ 7 On August 30, 2005, defendant was indicted for a sexual assault, robbery and kidnapping that had occurred almost four years earlier on September 28, 2001. The statute of limitations for robbery and kidnapping is generally three years (720 ILCS 5/3-5(b) (West 2004)). The indictment did not allege circumstances to extend or toll the statute of limitations. On this appeal, defendant does not challenge the timeliness of his indictment for sexual assault.
¶ 8 Since this appeal raises a very limited issue and since the underlying facts and evidence at trial were already described in our prior order on direct appeal, we see no need to repeat them here and instead provide only the facts relevant to our decision. People v. McCormick, No. 1-09-1143 (2011) ().
¶ 9 As noted above, defendant was indicted on August 30, 2005; and the public defender was appointed to represent him at defendant's subsequent arraignment on October 3, 2005. The public defender represented defendant until September 12, 2008, when the trial court granted defendant's motion to proceed pro se. During these three years, the trial court ordered two separatebehavioral clinical examinations (BCXs) and the defense hired its own expert as well; none of the evaluations found defendant either insane at the time of the offense or unfit to stand trial.
¶ 10 On March 10, 2008, when defendant first requested in open court to proceed pro se, the trial court told defendant that he would be held to the same standards as an attorney and advised him against it. There was a short recess so defendant could consider his options and, when the parties returned on the record, the trial court asked "[s]o at this point you're withdrawing your request to go pro se" and defendant responded unequivocally: "Yes." Defendant thereby withdrew his motion.
¶ 11 On March 31, 2008, defense counsel requested a second fitness evaluation of "my client" because he had informed her that he was "hearing voices" when not on medication, and the trial court granted her request.
¶ 12 On September 12, 2008, defendant renewed his request in open court to proceed pro se, after the trial court had denied his request for what would have been a third fitness evaluation. The trial court reminded defendant that he faced possible life in prison and told him: "You don't get any break because you represent yourself." The court stressed: Defendant stated that he was dissatisfied with his counsel because the doctors were not asking the right questions during hisevaluations. Even after the court explained that the attorneys have nothing to do with the questions the doctors ask, defendant still wanted to proceed pro se, and the trial court granted his motion at this time.
¶ 13 On November 5, 2008, defendant requested the opportunity to talk to the assistant State's attorney (ASA) in order to work out a possible disposition, and the trial court admonished him about the dangers of speaking directly with the ASA. However, the trial court permitted the parties to use the jury room for this purpose on a future date, which occurred on November 13. On November 13, 2008, before defendant met with the ASA, the trial court reminded defendant that and defendant replied "yes." After meeting with the ASA, defendant again requested another fitness evaluation which the trial court denied, and defendant then stated: "I demand [a] speedy trial."
¶ 14 On December 15, defendant asked for a court order to receive shoes, which was granted, and the State indicated it was not ready, so the case was continued.
¶ 15 On January 12, 2009, on the morning before the jury trial was scheduled to begin, defendant asked the trial court if it would assign a different assistantpublic defender to represent him. The trial court stated that, although it would not appoint a different attorney, it was willing to re-appoint defendant's prior counsel, even though this would mean a delay of a few weeks or a month and this would force the State to bring its witnesses back. However, after defendant's prior counsel was momentarily re-appointed, defendant changed his mind and stated: "Excuse me, your Honor, I will just defend myself." The trial court asked defendant if he wanted to represent himself, and he stated, "yeah, I'll represent myself."
¶ 16 The trial then began on January 12, 2009, and the evidence is described in our prior order. McCormick, No. 1-09-1143, slip op. at 7-8. The trial ended on January 15, 2009, with a verdict of guilty on all three counts: aggravated criminal sexual assault, aggravated kidnapping, and robbery.
¶ 17 As stated above, defendant received a total sentence of 80 years on April 2, 2009. Specifically, the mittimus states that defendant received (1) 40 years for count I, the sexual assault count; (2) 40 years for count XLIX,1 the kidnapping count, which "shall run consecutive to" the sexual assault count, and (3) seven years for count LV, the robbery count. At sentencing, the trial judge stated that count LV, the robbery count, was to "be consecutive," but he did notstate whether it was to be consecutive to one or both of the other counts. However, the mittimus states In their briefs to this court, both the State and the defense agree that the sentence for count LV, the robbery count, is to run concurrently with count XLIX, the kidnapping count, which is also what this court stated when we affirmed his conviction and sentence on direct appeal. McCormick, No. 1-09-1143, slip op. at 1-2. Our Rule 23 order on direct appeal stated that defendant was "sentenced to an aggregate of eighty years in the Illinois Department of Corrections, which included a forty year term for aggravated criminal sexual assault consecutive to concurrent terms of forty years for aggravated kidnapping and seven years for robbery." McCormick, No. 1-09-1143, slip op. at 1-2.
¶ 18 On direct appeal, defendant claimed that he was denied counsel and that he did not make an understanding waiver of the right to counsel, because he was not adequately admonished by the trial court regarding that right. McCormick, No. 1-09-1143, slip op. at 2. For relief, he asked us to vacate his conviction and remand for a new trial. McCormick, No. 1-09-1143, slip op. at 2. On March 18, 2011, we held that the trial court ensured that defendant's waiver was made knowingly by giving defendant repeated and detailed warnings of the consequences of self-representation. McCormick, No. 1-09-1143, slip op. at 2. We concluded that the trial court substantially complied with the requirement to admonish a defendant before accepting a waiver of counsel, and we affirmed. McCormick, No. 1-09-1143, slip op. at 2.
¶ 20 Five months after our decision on direct appeal, defendant filed a pro se postconviction petition on August 11, 2011, in which his first claim was "that he was convicted and sentence[d] for the offenses of aggravated kidnapping, and robbery beyond the statute of limitations period," thereby violating his right to due process. Defendant argued that, ...
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