The opinion of the court was delivered by: Justice Leavitt
Appeal from the Circuit Court of Cook County
Honorable Dennis Dernbach, Judge Presiding.
Defendant Johnnie Wright is the owner and proprietor of J&J Company, which is an auto parts recycling yard located in Blue Island, Illinois. On July 29, 1996, defendant was indicted on two counts of possession of a stolen motor vehicle pursuant to section 4-103(a)(1) (625 ILCS 5/4-103(a)(West 1995)), two counts of failure to keep records pertaining to these two automobiles in accordance with section 5-401.2 (625 ILCS 5/401.2 (West 1995)), 25 separate counts of failure to keep records pursuant to section 401.2(d)(625 ILCS 5/401.2(d) (West 1995)), and 25 counts of possession of title without complete assignment pursuant to section 4-104(a)(2) (625 ILCS 5/4-104(a)(2) (West 1995)) of the Illinois Vehicle Code.
Defendant's bench trial concluded on October 15, 1996, with the trial court finding defendant not guilty of counts one and two for possession of a stolen motor vehicle and not guilty of counts three and four for failure to keep records for these two vehicles. Defendant was found guilty of counts five through twenty-nine for failure to keep records and guilty of counts thirty through fifty-four, for possession of title without complete assignment. Defendant was sentenced to three years' incarceration for counts five through twenty-nine and one year of incarceration for counts thirty through fifty-four. These sentences were to run concurrently. Defendant now appeals.
On January 25, 1996, Illinois Secretary of State auditor Russell Hoekstra and his two assistants arrived at defendant's lot in order to inspect it. There is little else that defendant and the State agree upon with regard to what occurred next on January 25.
The State presented evidence that when auditor Hoekstra arrived he identified himself and the purpose for his presence. Hoekstra then requested that defendant produce a police book, as well as motor vehicle titles, and other records that would be helpful in facilitating his inspection. Defendant produced his police book and an expired business license from 1995. Defendant explained that although he could produce the title certificates, Hoekstra would have to wait until his secretary returned to the office.
While investigating the cars on defendant's lot, Hoekstra discovered there were 101 vehicles present, two of which had been reported stolen according to a record check of the vehicle identification numbers. Ultimately, 217 titles were produced by defendant and of those there were only 18 which matched the 101 vehicles. Based upon this information, Hoekstra contacted Illinois State Police Officer Terry Lemming, who then obtained a search warrant. The warrant stated in pertinent part:
"I therefore command that you search the premises located at 13723 South Sacremento, Robbins, Illinois, Cook County, which is a fenced in yard with a sign in front that says J&J Company and any other structures within the fenced in yard.
And seize a stolen blue 1987 Ford Taurus Station Wagon, VIN 1FABP55UXHG214127 and a stolen white 1987 Ford Escort, VIN 2FAPP209XHB253735 and any other indicia of auto theft stripping including tools used to dismantle stolen vehicles and rivets used to retag stolen vehicles."
Lemming executed this warrant and placed defendant under arrest. Hoekstra then gave Lemming the police book and titles that were given to him by defendant.
Defendant and co-worker Jesse Dawkins maintain that two individuals arrived from the Illinois Secretary of State's Office around 8:30 a.m. and that auditor Hoekstra arrived shortly thereafter at 9:00 a.m. According to Dawkins, Hoekstra and his team of investigators inspected the cars on defendant's lot, as well as cars on other adjoining lots not owned by defendant. Defendant arrived at work between 11:00 and 11:30 a.m. Defendant was met by auditor Hoekstra, who introduced himself as a Secretary of State employee but did not request any records of any kind, nor were any given to him. Defendant did testify that he explained to Hoekstra that when a car was towed in he would place the title on his secretary's desk, where his secretary would enter the information in the police book and file the title in the desk drawer. In addition to his own titles, defendant testified that other auto part recyclers who had nearby or adjoining lots also kept their titles at his office.
Officers arrived at J&J Company around 1:00 p.m., and shortly thereafter defendant was placed under arrest. While being placed under arrest, defendant protested that auditor Hoekstra and his assistants were investigating vehicles in other lots and junkyards not owned by him. According to defendant, this plea went unheeded by Hoekstra.
On appeal defendant argues he is entitled to relief because: (1) he was denied effective assistance of counsel when his attorney failed to file a motion to suppress; (2) he was wrongly convicted with respect to counts five through twenty-nine for failure to keep records where it was not proven beyond a reasonable doubt he actually owned the vehicles in question and where the trial court made inconsistent evidentiary findings; and (3) that he was wrongly convicted for counts thirty through fifty-four for possession of titles without complete assignment when there was no finding by the trial court he acted with the requisite mental state.
Defendant contends his trial attorney critically erred by failing to file a motion to suppress the evidence recovered by Officer Lemming. In order to establish ineffective assistance of counsel, a defendant must show that his attorney's representation fell below an objective standard of competence and that but for this representation, the outcome of his trial or sentencing would have been different. People v. Albanese, 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246 (1984); People v. Babiarz, 271 Ill. App. 3d 153, 162-63, 648 N.E.2d 137 (1995); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Generally, courts entertain a ...