Appeal from Circuit Court of Morgan County. No. 94CF145. Honorable J. David Bone, Judge Presiding. Original Opinion of March 20, 1996,
The Honorable Justice Steigmann delivered the opinion of the court: McCULLOUGH and Garman, JJ., concur.
The opinion of the court was delivered by: Steigmann
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING:
The Honorable Justice STEIGMANN delivered the opinion of the court:
Defendant filed a petition for rehearing in which (1) he challenges this court's statement that he waived two issues on appeal--namely, that the trial court erred by not considering Treatment Alternatives for Special Clients (TASC) and by considering inherent factors--because he failed to include them in a motion to reconsider the sentence; and (2) he contends this court should consider whether these sentencing issues, if otherwise waived, constitute plain error. Although we deny the petition for rehearing, we choose to address the points defendant raises in that petition, as follows.
I. DEFENDANT'S MOTION TO REDUCE SENTENCE
On March 21, 1995, the trial court conducted a sentencing hearing and sentenced defendant to six years in prison. At all times during defendant's trial and sentencing hearing, he was represented by counsel. On March 29, 1995, defendant's attorney filed a motion to modify sentence, which stated in its entirety: "Comes now Defendant *** and prays this court to modify that sentence previously entered herein for reasons that said sentence be excessive under those guidelines set out in section 5-5-3 of the Unified Correction Code." Upon receiving this motion, the trial court set it for hearing on May 2, 1995.
On April 20, 1995, defendant filed a pro se motion for reduction of sentence. In that motion, defendant asked in general terms that his sentence be reduced and stated, in part, the following: "The defendant cooperated with law enforcement officers, and in his past tried to obtain help from TASC but was denied." That motion made no other reference to TASC in particular or drug treatment in general.
On May 2, 1995, prior to the hearing on the motion to modify sentence, defendant's counsel filed a certificate, in compliance with Rule 604(d), which stated that (1) he had consulted in person with defendant to ascertain his contention of errors, (2) he had examined the trial court file and report of proceedings of the plea of guilty, and (3) he had amended defendant's motion as necessary for presentation of any defects in said proceedings. However, defense counsel did not amend the March 29 motion, and at the May 2 hearing on that motion, he made no reference to TASC or drug treatment. Instead, he suggested that if the court thought his initial recommendation of probation subject to 180 days in jail was not appropriate, then the court should sentence defendant to four years in prison, not the six-year sentence imposed. The trial court denied the motion, and neither the court nor defense counsel made any reference to defendant's pro se motion for reduction of sentence. Defendant, although present at that hearing, made no statement to the court about that motion, either.
On this record, defendant claims that the TASC issue was properly before the trial court at the hearing on defendant's motion to reduce sentence because (1) defendant filed his own pro se motion raising that issue, and (2) the court "understood" from defense counsel's argument at that hearing about the appropriateness of probation, as well as his earlier argument at the sentencing hearing about the possibility of TASC, that counsel was asking the court to reconsider its denial of TASC for this defendant. We disagree with both of these arguments.
A. Defendant's Pro Se Motion
The trial court correctly ignored defendant's pro se motion for reduction of sentence because it was not properly before the court. Defendant was represented by counsel at all pertinent times. Accordingly, defendant had no authority to file pro se motions, and the court not only did not need to consider them, it should not have considered them. Defendant had the right to proceed either pro se or through counsel; he had no right to some sort of hybrid representation, whereby he would receive the services of counsel and still be permitted to file pro se motions.