Appeal from the Circuit Court of Cook County 01 CR 7093 Honorable Lon William Shultz, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
Patrick Rucker (Rucker) was charged by information with one count of possession of a controlled substance with intent to deliver within 1,000 feet of a school and one count of possession of a controlled substance with intent to deliver. The court entered a directed finding in favor of Rucker on the first count and, after a bench trial, convicted Rucker of possession of a controlled substance with intent to deliver and sentenced him to 12 years' imprisonment. In this appeal, he argues (1) that the circuit court improperly failed to consider his posttrial pro se motion for reduction of his sentence; (2) that the circuit court should have conducted an inquiry into his allegations of ineffective assistance of counsel; (3) that the State failed to prove his guilt beyond a reasonable doubt; (4) that his trial counsel was ineffective; and (5) that he was improperly sentenced as a Class X offender.
The evidence at trial was as follows. Officer Golosinski testified for the State that in the evening of February 8, 2001, he was part of a narcotics surveillance operation at 3909 West Jackson Street in Chicago, Cook County, Illinois. From approximately 70 to 100 feet away, Golosinski saw Rucker standing alone on the south side of Jackson Street just west of Springfield Avenue. Golosinski was in uniform and used binoculars to aid his vision. He described that he saw a black male approach Rucker, engage in a conversation with him, and then exchange "what appeared to be United States currency in the form of green paper."
Rucker accepted the money, stuffed it in the front of his pants, reached into his right jacket pocket and withdrew an item, which he gave to the individual, who then departed. Golosinski observed two similar transactions with other individuals who approached Rucker. Golosinski lost sight of Rucker, who walked away momentarily, but returned several minutes later, at which time Golosinski saw a black two-door vehicle pull up on the north side of Jackson Street just west of Springfield Avenue. Rucker approached the driver of the vehicle and had a brief conversation with him. The individual then handed what Golosinski believed was United States currency to Rucker, who took it, shoved it down the front of his pants, reached into his right jacket pocket, removed an item, and gave it to the driver of the vehicle.
After observing the fourth transaction, Golosinski radioed his enforcement team with a description of Rucker and his location. Golosinski saw one of the enforcement officers, Officer Carroll, approach Rucker. At Golosinski's request, Carroll checked the contents of Rucker's right jacket pocket. Carroll informed Golosinski that the pocket contained "three capsules containing a white chunky substance," which was later "found to be cocaine." Rucker was then arrested and searched. One hundred thirty dollars United States currency was recovered from his person. Golosinski inventoried the three capsules removed from Rucker's jacket pocket under number 2479442. On cross-examination, Golosinski explained that he was conducting surveillance at the particular location where Rucker was apprehended because he "knew the location from prior arrests."
Carroll also testified for the State. He stated that he was an enforcement officer at the narcotics surveillance operation in the area of 3909 West Jackson Street on February 8, 2001. During the operation, he was directed to 3909 West Jackson, where he apprehended Rucker. Upon instruction by Golosinski, Carroll reached into Rucker's right front jacket pocket, where he discovered "[t]hree small capsules containing a chunky rock substance." Rucker was then arrested.
The State and defense entered into two stipulations. The first, which is at issue in this appeal, concerned the capsules recovered from Rucker's jacket pocket:
"[I]t would be stipulated by and between the parties that Officer Golosinski inventoried the recovered three items of suspect cocaine under inventory number 2479442. That there was a proper chain of custody maintained at all times.
That forensic chemist Gwendolyn Brister is employed by the Chicago -- Illinois State Police and is qualified to testify as an expert in the area of forensic chemistry.
That the chemist received the three items described above in a sealed condition. That the chemist weighed the three items and found the total estimated weight to be .6 grams. That the chemist performed tests commonly accepted in the area of forensic chemistry for ascertaining the presence of a controlled substance. And that after testing one of the three items the chemist's opinion within a reasonable degree of scientific certainty is that the tested item was positive for the presence of cocaine in the amount of .2 grams." The parties also stipulated:
"[I]nvestigator E.J. Tansy is employed by the Cook County State's Attorney as an investigator.
That he received a request to measure the distance from 3909 West Jackson to the Delano Grammar School located at 3905 West Wilcox. That Investigator Tansy went to 3909 West Jackson and measured the distance from the Delano Grammar School and found that distance to be 424 feet."
The State rested, and Rucker moved for a directed finding. The court granted the motion with regard the charge of possession of a controlled substance with intent to deliver within 1,000 feet of a public school and denied the motion with regard to the remaining charge. The defense rested without presenting any evidence. The court found Rucker guilty of possession of a controlled substance with intent to deliver.
On August 30, 2001, the trial court denied Rucker's motion for a new trial. Also, the parties and the court agreed that Rucker was Class X eligible because of at least two previous Class 2 felony convictions. After hearing aggravation and mitigation, the court sentenced Rucker to 12 years' imprisonment.
On September 18, 2001, Rucker's attorney, identified as the "State Appellate Defender/Public Defender of Cook County," filed the notice of appeal in this case. The trial court granted Rucker's attorney's requests to appoint counsel for Rucker on appeal and to provide copies of the record and report of proceedings without cost, which were filed simultaneously with the notice of appeal. That same day, the clerk file stamped three pro se motions, which were mailed by Rucker on September 10, 2001: (1) a motion for common law record and trial transcript; (2) an application to proceed as a poor person and for appointment of counsel; and (3) a motion for reduction of sentence. In his motion for reduction of sentence, Rucker claimed that his sentence should be reduced because he "had inadequate representation by counsel" and "[t]he facts were not sufficient to support the finding of guilt." On September 26, 2001, the court denied Rucker's pro se motion for common law record and trial transcript. The trial court never ruled on Rucker's pro se motion for reduction of sentence. Rucker requests that we remand his case for the court to consider his motion and to conduct a preliminary inquiry into his allegations of ineffective assistance of counsel. We note, however, that there are no specific allegations in the motion as to how defense counsel was ineffective.
The State argues that the court had no obligation to consider Rucker's pro se motion because Rucker was represented by counsel when he filed the motion. It further argues that Rucker is not entitled to a hearing on his allegations of ineffective assistance of counsel because his claim was not properly raised. Finally, the State argues that it would be a waste of judicial resources to remand this case because Rucker has separately raised the issue of ineffective assistance of counsel in this appeal and his claim is meritless.
In reply, Rucker argues that he was not represented by counsel at the time he filed his pro se motion, and it was properly before the court. Rucker also claims that while he has raised the issue of ineffective assistance of counsel in this appeal, unless this court is inclined to reverse on that ground, it should remand this matter to the trial court for further inquiry on Rucker's claim because "Rucker may [now] only raise those ineffective assistance claims that are apparent on the face of the record," whereas remand would allow him the opportunity "to create a record regarding counsel's alleged ineffectiveness." (Emphasis in original.)
Rucker also claims that we have jurisdiction over this appeal despite his unresolved pro se motion for reduction of sentence because "the trial court did not rule on the motion to reduce sentence and thus no order was entered disposing of it." Supreme Court Rule 606 provides that where a defendant's attorney or a defendant not represented by counsel files a motion directed against the judgment, a notice of appeal filed before disposition of that motion has no effect and should be stricken by the trial court, regardless of whether the postjudgment motion was filed before or after the notice of appeal was filed. 188 Ill. 2d R. 606(b). In its response brief, the State did not address Rule 606 or Rucker's contention that we have jurisdiction over this appeal. However, where there is a question of our jurisdiction, we have a duty to consider it and dismiss the appeal if we find jurisdiction lacking. People v. Jenkins, 303 Ill. App. 3d 854, 856 (1999). Accordingly, we consider what effect Rucker's pro se motion for reduction of sentence has on our jurisdiction over this appeal.
In People v. Jenkins, 303 Ill. App. 3d at 856, which was decided before the current version of Rule 606 was adopted, the court held that it had jurisdiction over an appeal despite an unresolved posttrial motion, filed seven days after the notice of appeal. It cited two supreme court cases, People v. Bounds, 182 Ill. 2d 1 (1998), and People v. Laurie, 106 Ill. 2d 33 (1985), as establishing a rule that " '[w]hen the notice of appeal is filed, the appellate court's jurisdiction attaches instanter, and the cause is beyond the jurisdiction of the trial court.'" Jenkins, 303 Ill. App. 3d at ...