People v. Washington
| Decision Date | 09 March 1990 |
| Docket Number | No. 1-87-2950,1-87-2950 |
| Citation | 142 Ill.Dec. 326,195 Ill.App.3d 520,552 N.E.2d 1067 |
| Court | United States Appellate Court of Illinois |
| Parties | , 142 Ill.Dec. 326 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William WASHINGTON, Defendant-Appellant. |
Michael J. Pelletier, Deputy Defender, Martin S. Carlson, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago (James B. Haddad, Richard G. Agin, of counsel), for defendant-appellant.
After a bench trial, defendant, William Washington, was convicted of burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-1) and sentenced as a Class X offender, pursuant to section 5-5-3(c)(8) of the sentencing provisions of the Unified Code of Corrections (Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3(c)(8)), to 14 years in prison. On appeal, defendant contends: (1) he was denied his right to counsel of choice when the trial court summarily denied his trial day request for a continuance to allow his privately retained counsel to appear; (2) he was improperly sentenced as a Class X offender where the State failed to establish at sentencing the sequence of prior convictions as required by section 5-5-3(c)(8); (3) the double jeopardy clause prohibits his retrial or resentencing as a Class X offender; (4) his jury waiver was invalid because he had not been apprised that even though he was being charged with burglary, a Class 2 felony, he would be sentenced as a Class X offender; (5) he received insufficient notice that he would be sentenced as a Class X offender; and (6) he was improperly sentenced to an excessive prison term of 14 years. We reverse and remand this matter for a new trial.
Defendant was arrested for burglary on November 24, 1986. On December 31, he was arraigned on a charge of burglary, a public defender was appointed to represent him and the case was assigned to a trial court. Thereafter, from time to time, the trial court continued the case either on its own motion or by the parties' agreement. On March 25, 1987, the court again continued the case by agreement to April 2 and, for the first time, set the case "with subpoenas." Defendant remained in custody throughout this period.
On April 2, when the case was called for trial, the following discussion took place:
"THE CLERK: William Washington.
MR. ROZENSTRAUCH [the Public Defender]: Present before your Honor is Mr. William Washington. The matter was set for trial today. Mr. Washington informs me he, his family has retained an attorney for him who asked that the case be set for April 9th. I am ready to proceed.
When the case again was called for trial, the public defender informed the court that his client wished a bench trial. The trial court advised defendant of his right to a jury trial and explained that right to him. Defendant said that he understood the right and signed a written jury waiver. The matter then proceeded to trial.
The only evidence presented at trial was the testimony of Officer Carl Riggenbach, the arresting police officer, and the stipulated testimony of Fayik Hassan, the owner of the burglarized premises. The evidence showed that at about 1:55 a.m. on November 24, 1986, Officer Riggenbach received a call indicating that a burglary was in progress at a building at 5702 South Ashland in Chicago. When Riggenbach arrived, he looked into the building and saw defendant standing in a hallway by a hole in the wall leading to the Ashland Sandwich Shop. When Riggenbach approached the door leading to the hallway, defendant saw him and fled. Riggenbach chased defendant About a month after the trial, the trial court heard post-trial motions filed by defendant's public defender and by defendant himself. The court denied the motion filed by the public defender but continued the motion filed by defendant because the motion alleged incompetent representation and he wanted to give defendant time to secure representation from the Conflicts Unit of the Public Defender's Office. When defendant informed the court that he would be represented by a private attorney, the following discussion took place:
[142 Ill.Dec. 328] for about 100 feet and finally caught defendant when he stumbled and nearly fell to the ground outside the building. At the time, Riggenbach noticed that defendant was covered with plaster dust. Riggenbach searched defendant but found nothing on him. After arresting defendant, Riggenbach returned to the hole in the wall, and noticed plaster dust in that area. He then climbed through the hole into the sandwich shop, getting plaster dust on his clothes while doing so, and saw a tire iron on the floor and three video games which had been pried open. The evidence further showed that Fayik Hassan was the owner of the 5702 South Ashland building and did not give anyone permission to enter the building during the early morning hours of November 24, 1986. At the conclusion of the trial, the court found defendant guilty of burglary.
Thereafter, the private attorney appeared and he too filed a post- trial motion, alleging, among other things, that defendant had been denied his right to counsel of choice. The court conducted a hearing on this motion, hearing testimony from a number of witnesses including Linda Washington, defendant's sister. Ms. Washington testified that she had hired a private attorney by the name of Larry Dohman to represent defendant and had paid him $500 of the $700 he required for the representation. She said that she believed that her mother had the receipt for the $500 payment. She also stated that she was in court on April 2, 1987 and, when she heard that the case was going to trial, she contacted Dohman's secretary and asked her to call the trial court regarding the attorney's unavailability. The secretary told her that she had done so. After hearing the testimony, the court denied the motion, noting that it considered the statements about getting a private attorney to be dilatory.
At the sentencing hearing, conducted 5 days after the hearing on the post-trial motion, the court heard matters in aggravation and mitigation. The State first informed the court that defendant had two prior felony convictions, evidenced by a pre-sentence investigation report showing the dates of arrest and conviction. The State then advised the court that these two prior convictions qualified defendant for mandatory Class X sentencing. Defendant's private attorney did not express any surprise regarding the prior convictions or request for mandatory Class X sentencing but, instead, argued several matters in mitigation. After arguments by counsel, the court gave defendant an opportunity to make a statement. After defendant's statement, the court then stated it was necessary to sentence defendant to a relatively long period in prison as a deterrent to others and sentenced defendant to 14 years.
OPINIONDefendant's first issue is that he was denied his constitutional right to counsel of choice when the trial court summarily denied his trial day request for a one week continuance to allow time for his retained private counsel to appear. He argues that the denial of this request constitutes reversible error. The State contends that the denial of the request was proper because the request was made on the day of trial, defendant's appointed counsel of several months was prepared to go to trial and defendant had not expressed any dissatisfaction with appointed counsel. The State further contends that even if the denial of the request were improper, a reversal is not warranted because defendant was not prejudiced by the denial. We find that defendant was denied his constitutional right to counsel of choice.
A trial court's determination of whether to grant a defendant's trial day request for a continuance to allow time to obtain counsel requires a balancing of the interest in trying a case with due diligence with defendant's constitutional right to counsel of choice. (See People v. Friedman (1980), 79 Ill.2d 341, 347-48, 38 Ill.Dec. 141, 144, 403 N.E.2d 229, 233; People v. Lewis (1988), 165 Ill.App.3d 97, 102, 116 Ill.Dec. 119, 122, 518 N.E.2d 741, 744.) This balancing, of necessity, requires a review of the diligence shown by the defendant (Friedman, 79 Ill.2d at 347, 38 Ill.Dec. at 144, 403 N.E.2d at 233) and an inquiry into the actual request to see if the request is being used merely as a delaying tactic. (People v. Green (1969), 42 Ill.2d 555, 557, 248 N.E.2d 116, 117.) The trial court has discretion in its decision on a continuance motion and a reviewing court will not reverse a trial court's decision unless it is clear that there has been an abuse of discretion. (People v. Ritchie (1966), 65 Ill.App.2d 417, 422, 213...
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