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05/28/87 the People of the State of v. Frank Ortiz

May 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FRANK ORTIZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 633, 156 Ill. App. 3d 170, 108 Ill. Dec. 937 1987.IL.691

Appeal from the Circuit Court of Cook County; the Hon. Michael Close, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Following a bench trial, defendant, Frank Ortiz, was convicted of armed robbery and sentenced to 12 years in prison. On appeal, he contends that: (1) he was not proved guilty beyond a reasonable doubt because the State failed to establish the elements of armed robbery; (2) he was not proved guilty of armed robbery beyond a reasonable doubt because the trial court acquitted him of burglary with the intent to commit armed robbery on his motion for directed finding but found him guilty of armed robbery at the end of the trial; (3) he was denied his right to effective assistance of counsel when the trial court failed to assign a bar association attorney to argue defendant's pro se motion for replacement of his public defender with new counsel; and (4) his sentence for armed robbery should be vacated and remanded for resentencing because the trial court considered the evidence of other alleged crimes.

We affirm.

Background

Ortiz was charged with attempted murder, residential burglary, armed robbery, and two counts of armed violence.

At trial, Steve Lewis, the complaining witness, testified that the incident occurred on April 30, 1984. Lewis was at home with his mother between 10:30 and 11 a.m. when she received a telephone call. When she hung up, she told Lewis that his sister had gotten into a fight at school and that she had to go and pick her up. After his mother left, Lewis lay down in his bedroom with his door partially open.

Within minutes, Lewis heard noises in the living room below and went to investigate. There he saw a person in the living room whom he identified at trial as Jose Moreno. Lewis also saw Ortiz in his mother's bedroom. Lewis and Moreno began to scuffle, punching each other. Ortiz then started running toward the back door and Lewis ran after him. Lewis testified that Ortiz, then approximately 10 feet away, pulled a gun, turned halfway around, and pointed the gun at him. Lewis heard a clicking sound and ducked behind a jukebox in the hallway. Ortiz and Moreno fled through the back door.

Lewis telephoned the police, who searched the apartment upon their arrival. In addition to finding some objects that did not belong to the victim's family, the search revealed that jewelry belonging to Lewis' mother had been moved or dropped on the back porch. Lewis testified that before the incident, the earrings had been in his mother's jewelry box.

Approximately one week later, Lewis identified Ortiz and Moreno in a lineup. Subsequently, he identified them at trial.

Ortiz was questioned about his participation in the incident after his arrest in connection with an unrelated matter. After indicating his understanding of his Miranda rights, Ortiz told Detectives Thomas and Graffeo that he and Moreno first discussed how they would enter the Lewis' apartment and steal stereo and video equipment. To effect their plan, Ortiz telephoned Lewis' mother to get her out of the house on the pretense that her daughter had been injured at school. Ortiz told the detectives of Moreno's whereabouts and they picked him up to be interviewed.

After questioning Moreno, the detectives again interrogated Ortiz. Ortiz basically repeated his earlier account of what had happened, but claimed that Moreno was the one who pulled the gun on Lewis. Moreno told the detectives that Ortiz had the gun.

Next, an assistant State's Attorney interviewed Ortiz, after giving him the Miranda warnings. Ortiz told the State's Attorney that he had stayed home from school on April 30, 1984. A friend of his from the Latin Kings, Jose Moreno, came over to his house and the two of them discussed a plan to commit a burglary. They had first discussed such a plan the previous week. Ortiz decided he definitely wanted to be a part of the ...


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