Appeal from the Circuit Court of Cook County No. 07 CR 20079 Honorable James M. Obbish, Judge Presiding.
The opinion of the court was delivered by: Justice Lampkin
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice R. Gordon and Justice Garcia concurred in the judgment and opinion.
¶ 1 After a bench trial, defendant Rickey Stevenson was convicted of burglary and sentenced to eight years in prison. On appeal, he contends that: (1) he was denied a fair trial when the trial court denied an agreed motion for a continuance; (2) the trial court failed to conduct an adequate inquiry into his posttrial pro se motion alleging ineffective assistance of counsel; and (3) the trial court failed to comply with waiver of counsel rules before the hearing commenced on defendant's pro se successive post-sentencing motion.
¶ 2 The State argues that this court lacks jurisdiction to consider this appeal.
¶ 3 We hold that defendant's pro se posttrial motion to reconsider sentence did not toll the time for filing his notice of appeal, so we dismiss his untimely appeal for lack of jurisdiction.
¶ 5 Apparently four notices of appeal have been filed concerning defendant's direct appeal of his burglary conviction in No. 07 CR 20079. Pursuant to appellate defense counsel's motion, the initial direct appeal before this court, No. 1-08-1543, was dismissed following the confusion that resulted after defendant had filed pro se documents with the circuit court. This appeal, No. 1-09-3413, arises from the fourth notice of appeal, which was filed on December 7, 2009, following the circuit court's dismissal of defendant's pro se post-sentencing motion. The first issue we must address is whether we have jurisdiction to consider this appeal. Accordingly, a summary of the tortuous procedural history of No. 07 CR 20079 follows.
¶ 6 Defendant was arrested and charged with burglary and criminal damage to property where he allegedly entered a commercial building with the intent to commit a theft and damaged some windows on September 12, 2007.
¶ 7 At the February 28, 2008 bench trial, the State's evidence established that two Chicago police officers arrived at the scene during the early morning hours in response to a burglar alarm at a closed commercial building. The officers looked in the windows and saw defendant inside the building looking through a desk. When defendant saw the officers, he fled through a broken window with jumper cables in his hand. The officers pursued defendant, who discarded the cables. The officers apprehended him, searched him and recovered keys, a flashlight and a credit card. The owner of the business property arrived at the scene, identified items recovered from defendant as her property, and stated that she neither recognized defendant nor gave him permission to enter the building or take her property. An inspection of the building revealed that the alarm system was disabled and torn from the walls, a few windows were broken or removed, and a cabinet was pried open. The owner stated that when she left the premises the day before, the alarm and windows were intact.
¶ 8 Defendant testified that he did not burglarize the building. According to defendant, he was walking from his aunt's house to a bus stop when the police stopped and arrested him.
¶ 9 The trial court found defendant guilty of burglary.
¶ 10 On March 19, 2008, defense counsel filed a motion for a new trial and also tendered to the court defendant's pro se motion alleging, inter alia, ineffective assistance of trial counsel. The trial court explained to defendant that he was still represented by his trial counsel and the matter would be continued so trial counsel could review defendant's allegations of ineffective assistance.
¶ 11 On April 22, 2008, the trial court inquired into the factual basis of defendant's allegations that he was not effectively represented by trial counsel. Defendant complained that trial counsel failed to subpoena documents that would have supported defendant's claim that the arresting police officers testified falsely against him in order to cover up their use of excessive force at the police station after his arrest. The trial court noted that the arresting police officers did not transport defendant to the police station and there was no evidence in this case of any post-arrest confession or admission by defendant. Then, trial counsel briefly responded to defendant's allegations of ineffective assistance. The trial court noted defense counsel's effective representation of defendant throughout the trial and denied defendant's pro se motion.
¶ 12 Immediately thereafter, the trial court addressed defense counsel's motion for a new trial. When defendant attempted to interrupt, the trial court informed him that the consideration of his pro se motion was done. After defense counsel argued that the arresting officers' testimony was impeached, the trial court denied defense counsel's motion for a new trial. Defendant again interrupted, objected to defense counsel's continued representation, and complained about a conflict of interest and irreconcilable differences. The trial court again informed defendant that his motion to appoint new counsel was denied.
¶ 13 Next, the trial court also heard argument concerning sentencing. The trial court determined that defendant's prior convictions mandated sentencing him as a Class X offender and sentenced him to an eight-year prison term. The trial court informed defendant of the right to appeal and the necessity of preserving that right by filing a notice of appeal in 30 days. Moreover, if he wanted to appeal his sentence, a written motion to reconsider the sentence must be filed within 30 days. After any motion to reconsider was ruled upon, defendant would have 30 days to file a notice of appeal. Defendant's mittimus was issued.
¶ 14 On May 16, 2008, defense counsel filed a motion to reconsider sentence, alleging that the sentence was excessive, the court improperly considered in aggravation matters that were implicit in the offense, the State failed to prove defendant's eligibility for any enhanced penalty or extended term, and the sentence improperly penalized defendant for exercising his right to trial. When the hearing on this motion was held on May 22, 2008, defendant, who was in prison, was not present. The trial court denied the motion, and defense counsel filed a notice of ...