Appeal from the Circuit Court of Lake County; the Hon.
Lawrence D. Inglis, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
The defendant, Douglas Coleman, brings this appeal from an order denying his post-conviction petition. Defendant previously had been found guilty in a jury trial of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and subsequently had entered a plea of guilty to unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24-3.1(a)(3)) for which he had been sentenced to concurrent terms of imprisonment of nine and three years, respectively. No direct appeal was taken from these convictions.
Defendant raises two issues on appeal: (1) whether he was denied the effective assistance of counsel in his post-conviction proceeding where his counsel failed to comply with Supreme Court Rule 651(c) by not reading the trial transcript which would have disclosed the improper admission of illegally seized evidence; and (2) whether the decision in Lane v. Sklodowski (1983), 97 Ill.2d 311, 454 N.E.2d 322, operated to extend his sentence, thereby constituting an ex post facto violation of the United States and Illinois constitutions.
As this appeal is from the denial of defendant's post-conviction petition, we need only briefly summarize the trial proceedings which resulted in the defendant's convictions for armed robbery and unlawful use of weapons. Defendant was arrested on a warrant for an unrelated charge. At the time of his arrest, he was riding as a passenger in the backseat of his mother's automobile. A pistol was found underneath the front seat, and the arresting officers also found a wristwatch on the backseat where one of the officers saw defendant place it just before exiting the car. Defendant was identified by the victim of the armed robbery as the person who robbed him. The victim also identified the pistol and testified that the wristwatch found in the car belonged to him and was taken in the robbery. Defendant was found guilty of armed robbery by a jury. Following the imposition of a nine-year term of imprisonment, defendant entered a plea of guilty to unlawful use of weapons and was sentenced to a concurrent three-year term of imprisonment.
Defendant filed a pro se post-conviction petition in which he asserts that he was denied his right of due process under the United States and Illinois constitutions. The petition contended that a supreme court decision eliminated the Department of Corrections' policy of awarding meritorious good time beyond 90 days and which policy the trial court had considered in fixing his sentence. He therefore concluded that his constitutional rights were violated because the elimination of the meritorious good time will result in a longer sentence than what the trial court had intended him to serve. Counsel was appointed for defendant; however, only the transcripts of both sentencing hearings were prepared for review below. Counsel orally represented that he consulted with the defendant and would stand on the pro se petition. Following arguments, the post-conviction petition was denied.
On appeal, defendant's appellate counsel contends that defendant was denied the effective assistance of counsel in the post-conviction proceedings because his counsel failed to review the full record of the trial proceedings to ascertain any cognizable constitutional violations as mandated by Supreme Court Rule 651(c) (104 Ill.2d R. 651(c)). Appellate counsel maintains that had the transcript of the armed robbery proceedings been prepared and read, counsel below would have discovered that there was an illegal seizure of the wristwatch which the trial court erroneously failed to suppress at a pretrial suppression hearing. Defendant has included in the record on appeal the transcripts of the trial proceedings of the armed robbery offense which were not filed in the post-conviction proceeding below and do not appear to have been examined by defendant's counsel at those proceedings. Appellate counsel has fully briefed the issue of the asserted illegal seizure and requests that this court reverse his conviction and remand for a new trial or, alternatively, remand for a new post-conviction proceeding.
• 1 We agree that defendant's counsel at the post-conviction proceedings failed to comply with the explicit requirement of Supreme Court Rule 651(c) that mandates a showing that counsel has examined the trial record. (People v. Brown (1972), 52 Ill.2d 227, 230, 287 N.E.2d 663; People v. Jones (1984), 129 Ill. App.3d 368, 371, 472 N.E.2d 818.) Counsel's examination of only the sentencing hearing transcripts was not enough to determine if amendments should be made to the petition, and a complete record of the proceedings should have been obtained and examined. (See People v. Gonzales (1973), 15 Ill. App.3d 265, 267, 304 N.E.2d 294.) Nevertheless, we need not remand for a new post-conviction proceeding where the full trial record is before us, the alleged constitutional violation has been briefed by the parties, and the defendant has requested that we address the illegal seizure issue, along with the other issue he raises in this appeal. Under these circumstances, there appears to be no reason why this question of law may not be decided here. Cf. People v. Lippert (1982), 89 Ill.2d 171, 178, 432 N.E.2d 605.
The alleged illegal seizure occurred when a wristwatch was seized from the backseat of his mother's vehicle in which defendant was riding at the time he was arrested on a warrant charging him with attempted robbery. A motion to suppress this evidence and other evidence, not pertinent to this appeal, was filed and, in a pretrial hearing, the following evidence relevant to the issue raised here was adduced.
On September 10, 1982, Waukegan police officers on patrol were advised by radio that defendant, for whom there was an outstanding warrant for attempted robbery, was riding in an automobile at a certain location. The automobile was stopped by the police. Defendant was seated in the right rear passenger seat, his mother was seated in the right front passenger seat, and Samuel Frierson, another son of defendant's mother, was in the driver's seat. The vehicle was owned by defendant's mother. Each person was ordered out of the vehicle separately. As defendant exited, one officer saw him remove something from his right arm and place it on the rear seat. The officer could see it was a wristwatch from outside the car, and a few minutes later retrieved it. He had no reason at the time of the seizure to believe the watch was stolen. Defendant testified that he was 22 years old and had no ownership interest in his mother's automobile.
The trial court denied the motion to suppress finding that defendant lacked standing to challenge the seizure because he neither owned the vehicle in which the watch was found nor demonstrated a reasonable expectation of privacy in the area of the search. The court also found that even if defendant had standing, the seizure was proper because defendant was arrested pursuant to a valid warrant and the search was incident to a valid arrest. The court also found that the watch was in plain view.
As we conclude the standing issue is dispositive, we need only address the defendant's contention in this regard. He argues that his presence in the "family" car gives rise to a legitimate expectation of privacy which entitles him to standing to make the motion to suppress. Defendant does not claim an interest in the property seized. The State contends that defendant failed to meet his burden of proving a legitimate expectation of privacy in the area searched or the item seized. Although defendant and his mother testified at the hearing on the motion to suppress, the State argues that there is no evidence that defendant had a possessory or privacy interest in the vehicle.
In Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421, the supreme court held that a passenger in a car, who asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized, did not have a protected privacy interest which would be violated by an unreasonable search of the vehicle because he did not have a legitimate expectation of privacy in the invaded place. The passenger, therefore, lacked "standing" to test the constitutionality of the search. (People v. Carlton (1985), 133 Ill. App.3d 1061, 1062, 479 N.E.2d 1178.) Defendant asserts, however, that he has a legitimate expectation of privacy in the "family" car.
In discussing what expectations of privacy are legitimate, the court in Rakas stated:
"Legitimation of expectations of privacy by law must have a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether ...