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02/02/88 the People of the State of v. Don Howard

February 2, 1988





519 N.E.2d 982, 166 Ill. App. 3d 328, 116 Ill. Dec. 767 1988.IL.115

Appeal from the Circuit Court of Cook County; the Hon. Philip Carey, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.


Following a bench trial, defendants Darren Mace and Don Howard were convicted of burglary and sentenced to a term of years in the Illinois Department of Corrections. Defendant Howard appeals from his conviction and sentencing, raising the following issues: (1) whether the joint representation of co-defendants Don Howard and Darren Mace violated Howard's right to effective assistance of counsel; (2) whether the trial court erred in sentencing him to the Illinois Department of Corrections rather than placing him in the TASC program; (3) whether the trial court relied upon inaccurate information in sentencing him to seven years' imprisonment.

Howard was charged by information with the burglary of Daurham's Hair Clinic on October 15, 1984. Almost a year prior to trial he was interviewed by TASC for evaluation of his addiction. TASC did not recommend Howard for treatment, finding that although he "is an addict, [he] does not reflect a likelihood of rehabilitation, and . . . is unacceptable for TASC services, [as] he does not exhibit a readiness for treatment."

Howard waived a jury and was tried along with his codefendant Mace in September 1986. The two defendants were jointly represented at trial by one public defender. No objection was made to their joint representation, nor did either defendant seek separate counsel.

At trial the People presented two witnesses: Chicago police officer James Simmons and William Daurham, the owner of Daurham's Hair Clinic. Officer Simmons testified that during the early morning hours of October 15, 1984, he went to Daurham's Hair Clinic in response to a "burglary in progress" call. Upon arrival Simmons saw Darren Mace running on the roof of the hair clinic, toward the back of the store. The officer testified that he chased Mace, stopped him and asked him to come down from the roof. After Mace came down and was handcuffed, Simmons went up to the roof, where he saw defendant Howard lying down next to a hole which led into the store. The officer arrested Howard, handcuffed him and helped him off the roof. Simmons testified that although Howard's speech was slurred and difficult to understand, he did not believe that Howard was intoxicated at the time of his arrest. He searched both Howard and Mace and recovered merchandise which had been taken from the store. Simmons testified that when he asked Mace what had happened, Mace told him he "went into the shop and handed the stuff back out to Mr. Howard." Only Simmons, Howard and Mace were present for this conversation.

In response, the defense presented evidence that much of Officer Simmons' testimony was incorrect. George Stewart, Mace's brother, testified that he and Mace had been drinking throughout the day of October 14, 1984, and into the morning of the next day. In the early morning hours of October 15, 1984, Stewart and Mace were standing outside a friend's house drinking alcohol. When Mace went across the street to an alley (two or three buildings from Daurham's Hair Clinic) to relieve himself, the police arrived and arrested Mace in the alley. Stewart denied that Mace was ever on the roof of the hair clinic. He further testified that he went across the street to help his brother and the officers ordered him to leave or he too would be arrested. Defense counsel did not examine this witness with regard to Howard's involvement in the incident.

Darren Mace testified that he was drinking with his brother when he went into the alley to urinate. He further stated that he was arrested and did not inquire into the charge because he was intoxicated. Mace denied knowing Howard, and he also denied making a statement to Officer Simmons inculpating both himself and Howard in the offense. After Mace's testimony the defense rested. Defense counsel's closing argument focused entirely on Mace.

The trial court found both Mace and Howard guilty of burglary. Howard failed to appear at his sentencing hearing on November 14, 1985. At that hearing, the State presented his criminal history, stating that Howard had a conviction for robbery and possession of narcotics in 1970; a conviction for burglary in 1975; a conviction for theft of lost property in 1976; a plea of guilty to burglary in 1977; a conviction for possession of a controlled substance in 1981; and convictions for possession of a hypodermic needle in April and June of 1984. In mitigation, the defense informed the court that Howard had been accepted by the Gateway Foundation in January 1985 for long-term residential treatment. (Gateway is not identified in the record and it is unclear whether it is a private foundation or is in some way connected to the State.) Defense counsel conceded that it was difficult to make a recitation of mitigating factors without Howard's being present. The trial Judge responded:

"Well, even if he were here, his long history of convictions would not permit me to put him in a residential treatment with Gateway. He can get -- He'll have a [ sic ] residential treatment but it will be in-house treatment under the Illinois Department of Corrections."

He thereupon sentenced Howard to 10 years in the Illinois Department of Corrections.

On November 22, 1985, Howard appeared before the trial Judge and stated that he was in custody at the time of his sentencing hearing. The court accordingly vacated his sentence and held a new hearing. At this second hearing, the State supplemented its presentation of Howard's criminal history given at the previous hearing by informing the court that Howard was convicted of theft in 1964, 1965 and 1968; criminal trespass in 1968; theft, 1976; theft, possession of cannabis and violation of bail bond, 1979; theft on two separate cases, 1979; theft, 1980; and possession of a hypodermic needle in February 1984. Howard disputed the accuracy of the prosecutor's information. After the prosecutor's recitation, defense counsel reminded the court that defendant was questioning the accuracy of the record; consequently, the trial Judge had the following exchange with Howard:

"MR. HOWARD: A couple of those convictions were wrong.

THE COURT: The three Class IIs were not wrong: two burglaries and a robbery.

MR. HOWARD: I never had no robbery. Went to the penitentiary once for armed robbery in 1970 -- was not in '75 -- got one and a day; went in '77 for one to five; and I went for possession of narcotics in '81; ...

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