Opinion
NO. 4-14-0402
03-04-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER ANDERSON, Defendant-Appellant.
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 Circuit Court of Sangamon County
No. 13CF262
Honorable Patrick W. Kelley, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Presiding Justice Knecht concurred in the judgment.
Justice Steigmann specially concurred.
ORDER
¶ 1 Held: The appellate court affirmed one of defendant's aggravated battery convictions but found the other violated the one-act, one-crime rule and must be vacated. The court also found the trial court did not err in failing to conduct a fitness hearing and was not required to appoint new counsel on defendant's pro se posttrial claim of ineffective assistance of counsel.
¶ 2 In August 2013, a jury found defendant, Sylvester Anderson, guilty of two counts of aggravated battery. In November 2013, the trial court sentenced defendant to 3 1/2 years in prison.
¶ 3 On appeal, defendant argues (1) the trial court erred in failing to conduct a fitness hearing, (2) one of his convictions for the offense of aggravated battery must be vacated, and (3) the cause must be remanded for an inquiry into his claim that trial counsel neglected his case. We affirm in part, reverse in part, and remand with directions.
¶ 4 I. BACKGROUND
¶ 5 In March 2013, the State charged defendant by information with two counts of aggravated battery. In count I, the State alleged defendant committed the offense of aggravated battery (720 ILCS 5/12-3.05(d)(2) (West 2012)) when, in committing a battery, he knowingly caused bodily harm to R.H. in that he struck and kicked her, knowing R.H. to be pregnant. In count II, the State alleged defendant committed the offense of aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) when, in committing a battery, he knowingly caused bodily harm to R.H. in that he struck and kicked R.H. while she was on a public way or on public property.
¶ 6 In April 2013, defense counsel informed the trial court the State had made a plea offer and said the defense would benefit from a plea conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). At the hearing, the court informed defendant the purpose of the hearing was for the parties to discuss the evidence so the court could get a "preliminary feel" about a possible sentence. Defense counsel informed the court the State would attempt to prove defendant and R.H. had dated at some point and defendant struck and kicked her while she was pregnant. The battery did not result in permanent injuries and did not affect R.H.'s pregnancy. Counsel stated defendant was bipolar and involved in separate legal proceedings to obtain social security benefits due to his mental and physical disabilities. Counsel stated the defense would seek a sentence of probation conditioned on mental-health treatment. The court stated the State's offer of three years was "a very good offer." Defendant disputed the cause of R.H.'s injuries. The court ultimately set the matter for trial.
¶ 7 When the trial court convened the matter for a jury trial on June 25, 2013, defendant refused to change into street clothes and missed the beginning of a hearing on the State's motion in limine to limit defense evidence that R.H. was a prostitute and drug abuser.
The court stated it would allow evidence of R.H.'s drug use or prostitution only if it was occurring at the time of the alleged offense. Thereafter, defense counsel moved to continue, stating defendant had refused to cooperate with him and had purportedly fired him the previous evening. Defendant responded by stating counsel had not given him a chance to explain his situation. Defendant also stated he wanted to go to trial because he "want[ed] the truth to come out." The court ultimately granted a continuance.
¶ 8 In August 2013, defendant's jury trial commenced. Prior to trial, the trial court inquired of defendant as to whether he had street clothes to wear. Defendant indicated he wanted to wear his jail uniform. Defendant indicated he understood he had the choice to wear street clothes and chose not to do so. When the court indicated it would not revisit its prior ruling as to R.H.'s acts of drug use or prostitution, defendant complained the court was covering up R.H.'s background and depriving him of his constitutional rights. Defense counsel then stated he had a bona fide doubt about defendant's fitness to stand trial. The court stated defendant "seems to understand what's occurring here" but "disagrees with it." Defendant responded by stating he was fit to stand trial and felt everyone was against him. Defendant also claimed the court called him a "beast" and "a mad man," which the court found to be highly unlikely. Counsel stated the exchange showed defendant's unfitness and that he could not cooperate in his defense. The court stated, "there is a difference between ability to cooperate with counsel and willingness" and defendant chose not to cooperate. After a recess, the court asked counsel if he maintained his position that defendant needed a fitness evaluation. Counsel stated he talked with defendant, they had come to an understanding, and counsel would "fight for him" and defendant would "try to follow proper decorum." Defendant indicated he would do so.
¶ 9 R.H. testified she knew defendant and they had been in a dating relationship after
she moved to Springfield. She learned she was pregnant in January 2013. On March 15, 2013, R.H. stated she was on her porch when defendant "attacked" her and called her a "bitch and whore." Defendant hit her, and she fell to the ground. Defendant then stood over her and hit and kicked her. R.H. stated she sustained a head wound, a black eye, bruises to her face, and a fat lip. R.H. testified she had previous convictions for retail theft in 2009 and 2011, manufacture/delivery of a controlled substance in 2009, and possession of a controlled substance in 2005. R.H. testified she was on parole in March 2013, and she had marijuana in her system on the night of the attack.
¶ 10 Zachary Roberts testified he was playing video games on March 15, 2013, when he heard yelling outside the residence. He went outside and saw "a woman getting beaten." Roberts stated he saw a man kicking and hitting the woman in the head. He later saw the man "dragging her by her hair across the streets." Roberts identified defendant as the attacker.
¶ 11 Robert Brandon, an employee of City Water, Light and Power, testified he exited the building at approximately 9 p.m. on March 15, 2013, and heard a woman screaming about her baby. He saw one person hitting another person, who was on the ground. He went back inside and had someone call 9-1-1.
¶ 12 Gregory Reep testified he was in the parking garage at St. John's Hospital at approximately 9 p.m. on March 15, 2013, when he heard a woman yelling for help and about her baby. He saw a black male pushing a woman across the street.
¶ 13 Springfield police officer Carrie Landes testified she responded to a dispatch on March 15, 2013, and found a black male and a white female near the emergency-room entrance of St. John's Hospital. The two were arguing, and the male was holding the female's arm. Landes stated the female was "very frantic" and kept yelling about her baby. Landes identified
defendant as the man she encountered outside the hospital.
¶ 14 Springfield police officer William Woolsey testified he arrested defendant. At some point, defendant told Woolsey he had been driving the woman to the hospital in his car and she had jumped out.
¶ 15 After the State rested, the trial recessed for the evening. The next day, defendant told the trial court he wanted to talk about defense counsel recommending he not testify. Defendant stated counsel "got mad" at him. Counsel stated he did get mad after defendant called him names. The court advised defendant he had the right to testify, and defendant indicated he would do so.
¶ 16 Defendant testified he met R.H. at the Salvation Army shelter after she was released from prison in August 2012. They began an intimate relationship, which ended in February 2013. At some point, R.H. told defendant she was pregnant and he was the father of the child. On March 15, 2013, defendant saw R.H. standing on the corner near a gas station. After defendant called out to her, R.H. ran behind the gas station. Defendant followed her in hopes of talking to her. R.H. ran to a truck. While trying to get in, she fell backwards. The driver of the truck then left. When defendant reached R.H., she accused him of causing her to hurt her baby. When he tried to pick her up, she kicked defendant in the groin. After noticing that R.H. was bleeding, defendant wanted to get help and started walking her to the hospital. Defendant stated he never punched or kicked R.H. and never dragged her by the hair.
¶ 17 Following closing arguments and two jury questions, the jury found defendant guilty on both counts. In September 2013, defendant filed a pro se motion alleging trial counsel was ineffective. He also sent a letter to the chief judge raising a number of complaints. Defense counsel filed a motion to vacate the judgment or for a new trial.
¶ 18 In November 2013, the trial court conducted a hearing on the motions. Defendant argued trial counsel "didn't do his job properly" and exhibited a conflict of interest at trial by not standing near him during questioning. The court stated it observed the trial and found counsel "did a very fine job." The court denied defendant's motion as well as counsel's motion to vacate the judgment. The court sentenced defendant to 3 1/2 years in prison on each count. Defense counsel filed a motion to reduce the sentence, which the court denied. This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 A. Defendant's Fitness To Stand Trial
¶ 21 Defendant argues the trial court erred in failing to initiate fitness proceedings when it became evident there was a bona fide doubt that he was fit to stand trial. We disagree.
¶ 22 "The due process clause of the fourteenth amendment bars prosecution of a defendant unfit to stand trial." People v. Weeks, 393 Ill. App. 3d 1004, 1008, 914 N.E.2d 1175, 1180 (2009). Section 104-10 of the Code of Criminal Procedure of 1963 states as follows:
"A defendant is presumed to be fit to stand trial or to plea, and be sentenced. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 2012).
¶ 23 "Fitness speaks only to a person's ability to function within the context of a trial; a defendant may be fit to stand trial even though the defendant's mind is otherwise unsound." People v. Griffin, 178 Ill. 2d 65, 79, 687 N.E.2d 820, 830 (1997). "A defendant bears the burden of proving there is a bona fide doubt of his fitness." Weeks, 393 Ill. App. 3d at 1009, 914 N.E.2d at 1180. If a bona fide doubt of a defendant's fitness is raised, the trial court must hold a fitness
hearing before proceeding. People v. Burton, 184 Ill. 2d 1, 13, 703 N.E.2d 49, 55 (1998).
¶ 24 Our supreme court has noted factors relevant in determining whether a bona fide doubt of fitness exists include: "(1) the rationality of the defendant's behavior and demeanor at trial; (2) counsel's statements concerning the defendant's competence; and (3) any prior medical opinions on the issue of the defendant's fitness." People v. Hanson, 212 Ill. 2d 212, 223, 817 N.E.2d 472, 478 (2004). "Whether a bona fide doubt exists is a question reviewed for abuse of discretion." Weeks, 393 Ill. App. 3d at 1009, 914 N.E.2d at 1180.
¶ 25 As to the first factor, defendant contends his disruptive behavior, "bizarre allegations against defense counsel and the judge," and his decision to wear his jail uniform at trial showed he was unfit. However, the trial court found defendant understood what was occurring but disagreed with it. Further, the court stated there was "a difference between ability to cooperate with counsel and willingness" and found defendant chose not to cooperate. See People v. Smith, 253 Ill. App. 3d 948, 953, 625 N.E.2d 897, 901 (1993) (evidence of "extreme disruptive behavior" does not indicate a bona fide doubt of fitness exists). Defendant did not interrupt or engage in disruptive behavior in front of the jury. Moreover, he gave coherent answers to counsel's questions while telling his side of the story. Defendant disagreed with several matters during multiple hearings, but the record indicates he understood the proceedings and could assist in his defense, despite his disagreements with counsel's strategic decisions and the court's evidentiary rulings.
¶ 26 As to the second factor, defendant argues counsel stated he had a bona fide doubt that defendant was fit to stand trial because he had not cooperated with him. However, as the trial court noted, defendant's interruptions and disagreements with counsel did not evidence a lack of fitness. Prior to jury selection, the court asked counsel whether he continued to think
defendant needed a fitness evaluation. Counsel stated he had talked with defendant, they had an understanding, and he would fight for him and defendant would try to maintain proper decorum. Defendant agreed he would do so. Thus, counsel appears to have withdrawn his prior position, and defendant was able to testify in a coherent manner, answer questions from the prosecutor, and conduct himself accordingly.
¶ 27 As to the third factor, defendant argues information available to the trial court indicated he suffered from psychiatric conditions. Defendant testified at trial that he had been robbed and shot in 2006 and "end[ed] up being paranoid schizophrenic." At the Rule 402 hearing, counsel stated defendant was bipolar and was seeking benefits for his psychiatric issues. We note, "[t]he mere fact that the petitioner suffers from mental disturbances or requires psychiatric treatment, however, does not necessarily raise a bona fide doubt of his ability to consult with counsel." People v. Eddmonds, 143 Ill. 2d 501, 519, 578 N.E.2d 952, 960 (1991). No medical evidence of defendant's alleged psychiatric infirmities was put forth prior to trial. Moreover, defendant claimed he was previously taking medication but was no longer taking it at the time of the trial.
¶ 28 The record here does not support the finding a bona fide doubt existed as to defendant's fitness to stand trial. The record shows defendant was able to understand the nature and purpose of the proceedings. That he did not agree with some of the proceedings and made his disagreements known did not show he was unfit to stand trial. We find the trial court did not abuse its discretion in not conducting a fitness hearing.
¶ 29 B. Defendant's Aggravated Battery Convictions
¶ 30 Defendant argues one of his aggravated battery convictions must be vacated because the two charges were not based on separate physical acts. We agree.
¶ 31 "The one-act, one-crime rule prohibits multiple convictions when the convictions are based on precisely the same physical act." People v. Millsap, 2012 IL App (4th) 110668, ¶ 18, 979 N.E.2d 1030. Our supreme court has stated multiple convictions for aggravated battery can be sustained where the charges apportion the offense between separate acts. People v. Crespo, 203 Ill. 2d 335, 341-42, 788 N.E.2d 1117, 1121 (2001). In addition to the charges apportioning the offense among various physical acts, the State must present and argue the case to the jury such that the counts differentiate between the separate acts. Crespo, 203 Ill. 2d at 342, 788 N.E.2d at 1121.
¶ 32 In the case sub judice, the State charged defendant with two counts of aggravated battery. Count I alleged defendant committed aggravated battery by knowingly causing bodily harm to R.H. by striking and kicking her while knowing she was pregnant. Count II alleged defendant committed aggravated battery by knowingly causing bodily harm to R.H. by striking and kicking her on a public way. The jury found defendant guilty on both counts, and the trial court sentenced him to 3 1/2 years on each count.
¶ 33 Here, both counts alleged the same physical acts—that defendant struck and kicked R.H. While the State could have chosen to differentiate between the physical acts by charging that one battery resulted from striking and another resulted from kicking, it did not do so. Moreover, the State did not present the case to the jury in a fashion that differentiated between the physical acts. As the appellate prosecutor concedes, defendant's convictions violate the one-act, one-crime doctrine. Thus, one of defendant's convictions must be vacated.
¶ 34 Our supreme court has held "that under the one-act, one-crime doctrine, sentence should be imposed on the more serious offense and the less serious offense should be vacated." People v. Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009). "In determining which
offense is the more serious, a reviewing court compares the relative punishments prescribed by the legislature for each offense." Artis, 232 Ill. 2d at 170, 902 N.E.2d at 686. "If the punishments are identical, we are instructed to consider which offense has the more culpable mental state." In re Samantha V., 234 Ill. 2d 359, 379, 917 N.E.2d 487, 500 (2009).
¶ 35 In this case, defendant's convictions were both Class 3 felonies with identical sentences. See 720 ILCS 5/12-3.05(h) (West 2012); 730 ILCS 5/5-4.5-40(a) (West 2012). They both required defendant to "knowingly" cause bodily harm. Thus, the punishments are identical and both acts required defendant to have the same mental state. In a similar situation, the supreme court has stated that, when it cannot be determined which is the more serious offense, the matter should be remanded to the trial court for that determination. Samantha V., 234 Ill. 2d at 379-80, 917 N.E.2d at 500 (citing Artis, 232 Ill. 2d at 177, 902 N.E.2d at 690). Accordingly, we remand this cause to the trial court to determine the less serious offense and order that conviction vacated. See Millsap, 2012 IL App (4th) 110668, ¶ 20, 979 N.E.2d 1030.
¶ 36 C. Assistance of Counsel
¶ 37 Defendant argues the cause should be remanded for a proper inquiry into his allegations that trial counsel neglected his case. We disagree.
¶ 38 When confronted with a defendant's posttrial allegations of ineffective assistance of counsel, our supreme court set out the procedural steps to follow in People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003) (noting the rule that had developed since People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)).
"New counsel is not automatically required in every case in which a defendant presents a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a defendant presents a pro se
posttrial claim of ineffective assistance of counsel, the trial court should first examine the factual basis of the defendant's claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed." Moore, 207 Ill. 2d at 77-78, 797 N.E.2d at 637.
A court can conduct an inquiry into allegations counsel was ineffective by doing one or more of the following: "(1) questioning the trial counsel, (2) questioning the defendant, and (3) relying on its own knowledge of the trial counsel's performance in the trial." People v. Peacock, 359 Ill. App. 3d 326, 339, 833 N.E.2d 396, 407 (2005).
¶ 39 In this case, defendant sent a pro se letter to the chief judge, alleging his counsel had been ineffective at trial. He alleged he had suffered prejudice and was deprived of a fair trial when counsel, inter alia, refused to call his witnesses and refused to file any pretrial motions. Defendant requested new counsel be appointed to represent him.
¶ 40 Prior to the hearing on defense counsel's posttrial motion, the trial court allowed defendant to speak to his pro se complaint of counsel's representation. Defendant argued counsel "didn't give [him] a fair shake" and "didn't do his job properly." He complained counsel wanted him to plead guilty, stated he "had a few witnesses at the shelter," and "didn't feel [he] got a fair chance to defend [himself] when [he] took the stand" because counsel stood a distance away from him during questioning. The court responded, in part, as follows:
"Well, two points there. First it is the defense lawyer's obligation to convey plea offers and to make recommendations
based on an analysis of the evidence as to what you should do.
You decided you wanted to go to trial and we had a jury trial, right?
So then we get to the second point. I observed the jury trial. The record will be clear as to the kind of job [defense counsel] did, and I can tell you that he did a very fine job for you. I can't imagine anybody having done a better job for you than [counsel] did. He tried the case as well as he could within his ability.
The fact that you chose not to take the plea was of no apparent consequence during the trial. You got a fair trial. The jury rendered the verdict, and it was guilty."
The court denied the motion.
¶ 41 Defendant, however, stated he had not finished, and the trial court allowed him to continue. Defendant complained the court did not allow the jury to review a witness statement during deliberation and called him a "beast" and "mad man" at the Rule 402 conference. Shortly thereafter, the court indicated its ruling remained the same and told defendant to stop talking.
¶ 42 Here, the trial court conducted an adequate inquiry into defendant's pro se allegations of ineffective assistance of counsel. The court allowed defendant an extended amount of time to put forth his concerns about counsel's representation. See Moore, 207 Ill. 2d at 78, 797 N.E.2d at 638 (stating "[a] brief discussion between the trial court and the defendant may be sufficient"). While the court did not question counsel, it is clear the court was intimately aware of counsel's performance throughout the trial. See Moore, 207 Ill. 2d at 79, 797 N.E.2d at
638 (stating "the trial court can base its evaluation on the defendant's pro se allegation of ineffective assistance on its knowledge of defense counsel's performance at trial and the insufficiency of the defendant's allegations on their face"). Moreover, the court found counsel "did a very fine job" for defendant. As the court conducted an adequate inquiry into defendant's allegations, we find remand is not required.
¶ 43 III. CONCLUSION
¶ 44 For the reasons stated, we affirm one of defendant's aggravated battery convictions. We remand this cause to the trial court to vacate the least serious aggravated battery conviction as a violation of the one-act, one-crime rule. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 45 Affirmed in part and reversed in part; cause remanded with directions.
¶ 46 STEIGMANN, J., specially concurring.
¶ 47 Although I fully agree with the majority's decision, I specially concur to express my strong disapproval of the plea conference, sometimes referred to as a "402 conference," that the trial court conducted in this case. As is almost always the case, the 402 conference was totally unnecessary and had the potential to bring the trial court and the judiciary into disrepute.
¶ 48 Both the United States Supreme Court and the Illinois Supreme Court have recognized that plea negotiations are an important part of the criminal justice system. See, e.g., Blackledge v. Allison, 431 U.S. 63, 70 (1977) ("Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned."); see also Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1388 (2012) ("[T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences."); see also People v. Boyt, 109 Ill. 2d 403, 416, 488 N.E.2d 264, 271 (1985) ("Plea bargaining plays an important role in our criminal justice system. *** [W]hen [it is] properly administered, [it] is to be encouraged."). But such negotiations should occur between the parties and should not involve the trial court. This case is no exception. As is almost always the case, defense counsel sought to get the trial court involved—obstensibly so that the court could get a "preliminary feel" about a possible sentence—but defense counsel's transparent motive was to convince the court that it should tell the prosecutor he should go along with
defendant's request for probation and not insist on at least a three-year prison sentence. When the court indicated that it thought the State's offer of three years was "a very good offer," the case ultimately proceeded to a jury trial.
¶ 49 So, what was gained? Clearly, nothing that would enable the trial court to get a "preliminary feel" about a possible sentence. After all, once a jury convicted defendant, the court ordered a presentence investigation report. After receiving that report, the court had all the "feel" it needed to impose sentence.
¶ 50 A problem with 402 conferences is that when they typically occur, a defendant has not yet indicated whether he wants a jury trial or bench trial if a plea agreement cannot be reached. Had defendant here chosen a bench trial, as was his right, the trial court, serving as the trier of fact in this case, could have been affected by the various representations the parties made during the 402 conference, especially if some of those representations were not fulfilled through admissible evidence at trial.
¶ 51 The judiciary opens itself to disrepute if, as a result of a 402 conference, a trial court indicates that a sentence of three years, for example, would be appropriate, only to later impose a sentence of eight years after a defendant rejects the plea agreement of which the court approved and opts instead for a jury trial. Cynics call this "the jury tax," and courts should do everything they can to avoid giving any credence to such cynicism.
¶ 52 The easiest way, of course, is for trial courts never to be involved in plea bargaining. That way, when a court imposes sentence after a jury trial, it will be based upon the court's assessment of the various sentencing factors, and the court cannot be
accused of imposing a jury tax because it never was involved in the plea-bargaining process to begin with.
¶ 53 In all criminal cases involving plea negotiations, the process should be simple and straightforward, as follows:
• (1) The trial court should not be involved in plea bargaining and should not participate in any 402 conferences.
• (2) The trial court should go along with the plea agreement reached by the defendant and the prosecutor with almost no exceptions.
• (3) On the very rare occasion when the trial court cannot go along with the plea agreement, it should so inform the parties and offer the defendant, if he wishes, the right to withdraw his guilty plea.
• (4) In accordance with the above procedure, a defense attorney may explain to his client with certainty that if the parties reach a plea agreement, one of two things must happen: (a) the court will accept the plea agreement (which should almost always be the case) or (b) the defendant will be given his absolute right to withdraw his guilty plea.
¶ 54 402 conferences are pernicious. The rules of the Illinois Supreme Court should not permit them. Despite the regrettable situation that such conferences are currently permissible, no trial court ever need participate in one, and a court seeking to avoid the appearance of impropriety should simply refuse to do so.
¶ 55 Last, I emphasize that I was a trial judge for 12 1/2 years, and my primary assignment was to preside over felony cases in Champaign County. During that time, I handled thousands of felony cases throughout central Illinois and Cook County. The latter opportunity arose from 1978 to 1989, when I was assigned to the Cook County Criminal Court at 26th Street and California Avenue for two weeks at a time during those summers. I never participated in 402 conferences as a trial judge (even in Cook County) and was able to achieve the same number of negotiated guilty pleas as the judges who participated in such conferences.