People v. Pence
| Decision Date | 30 January 2009 |
| Docket Number | No. 2-06-0994.,2-06-0994. |
| Citation | 387 Ill. App. 3d 989,902 N.E.2d 164 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eric M. PENCE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Sherry R. Silvern, Office of State Appellate Defender, Elgin, IL, for Appellant.
Joseph E. Birkett, DuPage County State's Atty., Lisa Anne Hoffman, Assistant State's Atty., Wheaton, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.
Defendant, Eric M. Pence, appeals from his convictions of one count of aggravated criminal sexual abuse and two counts of criminal sexual assault. The issue on appeal is whether the trial court made an appropriate inquiry into defendant's posttrial allegations of ineffective assistance of counsel. For the reasons that follow, we remand.
On June 14, 2006, following a bench trial, defendant was found guilty of one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2006)) and two counts of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2006)).
Prior to the sentencing hearing, on September 15, 2006, the parties appeared before the court. Defense counsel informed the court that defendant had filed a complaint against him with the Attorney Registration and Disciplinary Commission (ARDC) and that defendant had refused to disclose to defense counsel the contents of the complaint. Thereafter, the following colloquy occurred between the court and defendant:
If you are unhappy with his representation, you think he hasn't done the job that you feel he should have done, then the question is, why would you want him to represent you at the sentencing hearing? That's why I'm asking.
DEFENDANT PENCE: Well, okay. Fine.
I understand that.
But the matter in which I had hired him still is that intention [sic]. I have not fired him. He is still under obligation to fulfill his duty that he was hired for.
THE COURT: He is willing to do that.
But I have to know that that's your choice, your decision, even if you perhaps have filed such a complaint, do you continue to want [defense counsel] to represent you at that sentencing hearing?
On September 18, 2006, prior to the start of the sentencing hearing, the following colloquy occurred between the trial court and defendant:
Following the presentation of evidence in aggravation and in mitigation, defendant made the following statement:
The trial court sentenced defendant to nine years' imprisonment on each conviction of criminal sexual assault and to three years' imprisonment on the conviction of aggravated criminal sexual abuse, to be served consecutively.
Defendant filed a motion to reconsider his sentence. At the outset of the hearing on the motion, on September 28, 2006, the following colloquy occurred:
"[ASSISTANT STATE'S ATTORNEY]: * * *
* * *
* * * We would ask, based upon the defendant's statement of allocution indicating that there was some defect or omission by counsel in presenting evidence or presenting information to this Court either—whether it be at sentencing or at trial or both, we believe that's—at this juncture it's appropriate for the Court to inquire of the defendant what that is so that if that's something that the defendant, now of his own accord, is saying to this Court is some defect in proceedings, that should be made of record now and we're asking the Court to make an inquiry.
And it's our position that it was fairly obvious that he was talking about his counsel.
And, again I know we've been through this before, but, Judge, now is the time to address that issue.
And if the defendant does not want to address that issue and doesn't want to make a disclosure to the Court or doesn't want to present that information, that's fine. But then that's his right and that's his knowing waiver of that.
But we believe it's important now that we're down to the trial proceedings, for purposes of any appeal, that the defendant present that information so we can handle it now while it's appropriate to handle it and while the witnesses have things fresh in their mind and while the proceedings are close in time to the judgment of the Court.
We would ask the Court to inquire of the defendant about those matters and about anything that he believes was not presented to [the] Court.
THE COURT: Okay. We did, I think, in essence cover some of this before the sentencing hearing when Mr.—the indication was that [defendant's] father complained of the terms of registration regarding the case. And [defendant] indicated at that time that he didn't want to get into the matter and wanted [defense counsel] to continue to represent him.
But we are at a stage, [defendant], at this point where sentence has been entered. Your appellate rights were explained to you.
If there is an issue that this Court can correct at this point in time, now is the point in time to do it.
You run the risk, sir, by not raising it at this point in time that it might be considered waived on appeal. Because the purpose of posttrial motions is to give the Court the opportunity to correct any errors that may have been made during the course of trial or sentencing.
So again, sir, I would ask you as to whether you wish to do that or not?
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