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06/09/89 the People of the State of v. Joseph Franzen

June 9, 1989





540 N.E.2d 548, 183 Ill. App. 3d 1051, 132 Ill. Dec. 808 1989.IL.876

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.


JUSTICE NASH delivered the opinion of the court. DUNN and McLAREN, JJ., concur.


After trial by jury defendant, Joseph Franzen, was convicted of aggravated criminal sexual assault, aggravated kidnapping, kidnapping, unlawful restraint and aggravated battery. Defendant was thereafter sentenced to natural-life imprisonment, without parole, for aggravated criminal sexual assault, as an habitual criminal offender, and also received concurrent extended-term sentences of 30 and 10 years for the offenses of aggravated kidnapping and aggravated battery. Defendant appeals, contending (1) that he was improperly denied a continuance of trial to enable new counsel to prepare to defend; (2) that extended-term sentences were improperly imposed for the aggravated kidnapping and aggravated battery convictions as they were not the most serious offenses of which defendant was convicted; and (3) that the Illinois habitual criminal statute (Ill. Rev. Stat. 1987, ch. 38, par. 33B-1 et seq.) is unconstitutional. We affirm.


The record discloses that Assistant Public Defender Wayne Brucar was appointed to represent defendant in September 1986, and on November 26, 1986, defendant answered ready and demanded trial, which the court then set for January 12, 1987. It appears that on January 9 Brucar and defendant's family had a disagreement concerning whether defendant should present evidence, whether defendant should testify, and whether members of defendant's family should testify. According to Brucar's in-court statements, he had instructed defendant's family that they would have to hire somebody else if they were displeased with his representation. The next day, attorney Gerald Kielian was retained as defendant's counsel, and on the morning of trial, Monday, January 12, 1987, Kielian requested both leave to file his appearance on behalf of defendant and a continuance to prepare for trial. The assistant State's Attorney informed the court the State had paid air fare for two witnesses, that one witness had already been flown in to testify, and that another witness had been promised he could rejoin his family on Wednesday as he had been forced to cancel a vacation. The court accepted Kielian's appearance as defendant's counsel on the qualified basis that there would not be a continuance, and Kielian was informed that he could renew his motion for a continuance after reviewing discovery so long as it was made before the trial commenced.

Although the trial Judge denied the motion for continuance, he did accommodate Kielian in his review of the case. On the day Kielian made his motion, which was scheduled for trial that morning, the court heard only pretrial defense motions. Later, Kielian met with Brucar to discuss the case, and he received copies of Brucar's reports and abstracts; he was also introduced to Brucar's investigator, who was made available for his use. Trial commenced on the following day, but was limited to jury selection. At that time, Keilian neither renewed his motion for a continuance nor sought to withdraw his appearance. The State was not to begin its case until Wednesday in order to give the defense additional time to prepare. No trial proceedings were held on Thursday because of the court's calendar.

On Friday, January 16, 1987, Brucar informed the court that there had been a lack of communication during the trial between himself and Kielian, and Brucar asked for permission to withdraw from the case. Kielian objected to the withdrawal, stating he had been prepared for cross-examination of the State's witnesses but that he was not prepared to proceed with defendant's case alone. The trial Judge suggested the attorneys confer regarding defense strategy, stating he would give them more time to present additional evidence. After conferring, the attorneys agreed that Brucar's role would be to assist and advise, and no request for additional time was made. Later that day, the State rested. The only witness presented by the defense on that day was defendant, and earlier that morning Kielian had stated that he was prepared to call defendant as a witness. The trial did not resume until the following Tuesday, giving the defense an additional three days to prepare.

On appeal, defendant contends he was denied his sixth and fourteenth amendment right to counsel when the trial court arbitrarily and unfairly denied a reasonable motion for continuance, making it impossible for either retained or appointed counsel to properly represent him.

The right to counsel guaranteed by the constitution includes the right to be represented by counsel of one's choice, but like all constitutional rights, it is not without limits. (People v. Koss (1977), 52 Ill. App. 3d 605, 607, 367 N.E.2d 1040.) It is within the trial court's sound discretion to grant or deny a continuance for the substitution of counsel. (People v. Solomon (1962), 24 Ill. 2d 586, 589, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.) Defendant argues that the continuance was not sought for purposes of delaying the trial and the motion should have been granted. However, in determining whether a continuance has been improperly denied, it must appear that the refusal to grant additional time has in some manner embarrassed the accused, impeded the preparation of his defense or prejudiced his rights. (People v. Clayborne (1977), 47 Ill. App. 3d 202, 204-05, 361 N.E.2d 1141.) Nothing in the record suggests that defendant was prejudiced in any manner by the refusal to allow the continuance after he employed new counsel shortly before trial. (People v. Hart (1973), 10 Ill. App. 3d 857, 859, 295 N.E.2d 63.) Where a motion for a continuance is made on the date of trial, defendant must state substantial reasons for change of counsel (People v. Wallace (1976), 44 Ill. App. 3d 89, 92, 357 N.E.2d 858), and no substantial reasons are shown here.

The disagreement between defendant's family and public defender Brucar concerned whether he should present character evidence, whether defendant should testify, and whether members of defendant's family should testify. However, the trial Judge did inform defendant that he had a right to testify on his own behalf, even against the advice of his counsel (People v. Knox (1978), 58 Ill. App. 3d 761, 763, 374 N.E.2d 957), and defendant did so testify. Even if Brucar acquiesced in attorney Kielian's defense strategies, trial strategy cannot be the basis for a claim of ineffective assistance of counsel. (See Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, defendant received the benefits of the strategies of Kielian, who was his counsel of choice.

Defendant characterizes his joint representation by the attorneys as an improper experiment. However, in People v. Hanson (1983), 120 Ill. App. 3d 84, 89, 457 N.E.2d 1048, 1051, it was held that the trial court had not abused its discretion in denying a continuance for substitution of counsel when that motion was first made on the morning of trial, where a competent public defender had actively represented the defendant for 10 months and where private counsel was allowed to work with the public defender on the trial. Defendant also suggests that Kielian and Brucar were unable to work together. However, at the time Brucar ...

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