People v. Stevenson, 1–09–3413.

• Decision Date: 01 December 2011
• Docket Number: No. 1–09–3413.,1–09–3413.
• Citation: 960 N.E.2d 739,2011 IL App (1st) 093413,355 Ill.Dec. 857
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Rickey STEVENSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 093413

355 Ill.Dec. 857

960 N.E.2d 739

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Rickey STEVENSON, Defendant–Appellant.

No. 1–09–3413.

Appellate Court of Illinois, First District, Sixth Division.

Nov. 4, 2011.Rehearing Denied Dec. 1, 2011.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender (Lindsey J. Anderson, Rebecca I. Levy, of counsel), for Appellant.

Anita M. Alvarez, Cook County State's Attorney (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, Adam W. Delderfield, of counsel), for Appellee.

OPINION

Justice LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant Rickey Stevenson was convicted of burglary and sentenced to eight years in prison. On appeal, he contends that: (1) he was denied a fair trial when the trial court denied an agreed motion for a continuance; (2) the trial court failed to conduct an adequate inquiry into his posttrial pro se motion alleging ineffective assistance of counsel; and (3) the trial court failed to comply with waiver of counsel rules before the hearing commenced on defendant's pro se successive postsentencing motion.

¶ 2 The State argues that this court lacks jurisdiction to consider this appeal.

¶ 3 We hold that defendant's pro se posttrial motion to reconsider sentence did not toll the time for filing his notice of appeal, so we dismiss his untimely appeal for lack of jurisdiction.

¶ 4 I. BACKGROUND

¶ 5 Apparently four notices of appeal have been filed concerning defendant's direct appeal of his burglary conviction in No. 07 CR 20079. Pursuant to appellate defense counsel's motion, the initial direct appeal before this court, No. 1–08–1543, was dismissed following the confusion that resulted after defendant had filed pro se documents with the circuit court. This appeal, No. 1–09–3413, arises from the fourth notice of appeal, which was filed on December 7, 2009, following the circuit court's dismissal of defendant's pro se postsentencing motion. The first issue we must address is whether we have jurisdiction to consider this appeal. Accordingly, a summary of the tortuous procedural history of No. 07 CR 20079 follows.

¶ 6 Defendant was arrested and charged with burglary and criminal damage to property where he allegedly entered a commercial building with the intent to commit a theft and damaged some windows on September 12, 2007.

¶ 7 At the February 28, 2008 bench trial, the State's evidence established that two Chicago police officers arrived at the scene during the early morning hours in response to a burglar alarm at a closed commercial building. The officers looked in the windows and saw defendant inside the building looking through a desk. When defendant saw the officers, he fled through a broken window with jumper cables in his hand. The officers pursued defendant, who discarded the cables. The officers apprehended him, searched him and recovered keys, a flashlight and a credit card. The owner of the business property arrived at the scene, identified items recovered from defendant as her property, and stated that she neither recognized defendant nor gave him permission to enter the building or take her property. An inspection of the building revealed that the alarm system was disabled and torn from the walls, a few windows were broken or removed, and a cabinet was pried open. The owner stated that when she left the premises the day before, the alarm and windows were intact.

¶ 8 Defendant testified that he did not burglarize the building. According to defendant, he was walking from his aunt's house to a bus stop when the police stopped and arrested him.

¶ 9 The trial court found defendant guilty of burglary.

¶ 10 On March 19, 2008, defense counsel filed a motion for a new trial and also tendered to the court defendant's pro se motion alleging, inter alia, ineffective assistance of trial counsel. The trial court explained to defendant that he was still represented by his trial counsel and the matter would be continued so trial counsel could review defendant's allegations of ineffective assistance.

¶ 11 On April 22, 2008, the trial court inquired into the factual basis of defendant's allegations that he was not effectively represented by trial counsel. Defendant complained that trial counsel failed to subpoena documents that would have supported defendant's claim that the arresting police officers testified falsely against him in order to cover up their use of excessive force at the police station after his arrest. The trial court noted that the arresting police officers did not transport defendant to the police station and there was no evidence in this case of any postarrest confession or admission by defendant. Then, trial counsel briefly responded to defendant's allegations of ineffective assistance. The trial court noted defense counsel's effective representation of defendant throughout the trial and denied defendant's pro se motion.

¶ 12 Immediately thereafter, the trial court addressed defense counsel's motion for a new trial. When defendant attempted to interrupt, the trial court informed him that the consideration of his pro se motion was done. After defense counsel argued that the arresting officers' testimony was impeached, the trial court denied defense counsel's motion for a new trial. Defendant again interrupted, objected to defense counsel's continued representation, and complained about a conflict of interest and irreconcilable differences. The trial court again informed defendant that his motion to appoint new counsel was denied.

¶ 13 Next, the trial court also heard argument concerning sentencing. The trial court determined that defendant's prior convictions mandated sentencing him as a Class X offender and sentenced him to an eight-year prison term. The trial court informed defendant of the right to appeal and the necessity of preserving that right by filing a notice of appeal in 30 days. Moreover, if he wanted to appeal his sentence, a written motion to reconsider the sentence must be filed within 30 days. After any motion to reconsider was ruled upon, defendant would have 30 days to file a notice of appeal. Defendant's mittimus was issued.

¶ 14 On May 16, 2008, defense counsel filed a motion to reconsider sentence, alleging that the sentence was excessive, the court improperly considered in aggravation matters that were implicit in the offense, the State failed to prove defendant's eligibility for any enhanced penalty or extended term, and the sentence improperly penalized defendant for exercising his right to trial. When the hearing on this motion was held on May 22, 2008, defendant, who was in prison, was not present. The trial court denied the motion, and defense counsel filed a notice of appeal that day. Furthermore, the trial judge said the “case will be off call” and appellate counsel would be appointed to represent defendant.

¶ 15 Also on May 22, 2008, defendant placed in the prison mail system a pro se motion to reconsider his sentence and a pro se notice of appeal. The motion alleged that the trial court's sentence was an abuse of discretion because the State failed to present sufficient evidence to establish defendant's eligibility for an enhanced sentence. Specifically, defendant alleged the State failed to prove he was the same person as the alias listed on the certified statements of his prior convictions. He also alleged the State failed to prove the exact dates he allegedly committed the prior offenses. Defendant filed the motion without a notice of motion setting a hearing date. Instead, the motion and notice of appeal were accompanied by a form certificate of service.

¶ 16 The circuit court clerk's office received both pro se documents on May 28, 2008. The pro se notice of appeal was filed with the criminal division of the circuit court on June 2, 2008; however, the pro se motion to reconsider sentence was not filed with the criminal division and was never listed on the circuit court's half sheet.

¶ 17 On June 6, 2008, the circuit court clerk sent copies of the pro se notice of appeal to the State and the appellate court clerk, and the presiding judge of the circuit court appointed the office of the State Appellate Defender to represent defendant on appeal. On June 11, 2008, No. 1–08–1543 was assigned to the appeal. On June 20, 2008, defendant filed a pro se motion to file a late notice of appeal, which this court granted on July 2, 2008. A certificate in lieu of record was filed on March 12, 2009.

¶ 18 Meanwhile, on October 26, 2008, defendant placed in the prison mail system a pro se complaint at law or, in the alternative, motion for a supervisory order. In that document, he complained that the circuit court clerk, based on the “pretext” that defendant was represented by appellate counsel, ignored defendant's requests for documents that were necessary for his appeal. On November 24, 2008, the circuit court denied defendant's motion for a complaint at law or supervisory order.

[355 Ill.Dec. 862] ¶ 19 On June 24, 2009, defendant's appellate counsel filed a motion in the circuit court to place defendant's May 2008 pro se motion to reconsider sentence on call for a proper disposition. Appellate counsel argued that: the pro se motion was timely filed within 30 days of sentencing but the circuit court failed to process that motion; the timely filing of that motion voided the notice of appeal in No. 1–08–1543; and defendant could not perfect his appeal by filing a new notice of appeal until his pro se motion was ruled upon.

¶ 20 The circuit court took the motion off call on June 30, 2009; however, after appellate counsel renewed the motion, defendant's pro se motion to reconsider sentence was placed back on call.

¶ 21 On October 16, 2009, the circuit court had defendant writ into the courtroom for a status hearing concerning his pro se motion to reconsider sentence. Defendant appeared without counsel. The...