Modified upon denial of rehearing December 10, 2013
Where defendant’s conviction for unlawful delivery of a controlled substance was remanded for a Krankel hearing limited to a preliminary investigation as to whether a full evidentiary hearing was necessary to consider defendant’s pro se claims of ineffective assistance of counsel, the procedural errors made by the trial judge, including his reliance on defense counsel’s performance in other cases, were harmless beyond a reasonable doubt, and the denial of defendant’s request for the appointment of new counsel was upheld, especially in the absence of any well-founded claim of ineffective assistance of counsel.
Appeal from the Circuit Court of McLean County, No. 10-CF-239; the Hon. Scott Drazewski, Judge, presiding.
Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State Appellate Defender’s Office, of Springfield, for appellant.
Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Holder White concurred in the judgment and opinion.
¶ 1 On July 19, 2012, this court remanded this case to the trial court " 'for the limited purpose of allowing the trial court to conduct the required preliminary investigation' to determine if a full evidentiary hearing" into defendant John Willie Jolly's pro se claims of ineffective assistance of counsel should be held. People v. Jolly, 2012 IL App (4th) 110033-U, ¶ 14 (quoting People v. Moore, 207 Ill.2d 68, 81, 797 N.E.2d 631, 640 (2003)). On September 26, 2012, the court held a hearing pursuant to this court's order and ruled it would not appoint new counsel for defendant because "each of the allegations lacks merit and/or pertains to trial strategy." Defendant appeals, arguing the trial court's denial of defendant's request for new counsel must be reversed where the court "conducted a quasi-evidentiary hearing at which the State presented testimony and argument" instead of a preliminary hearing pursuant to People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984). We affirm.
¶ 2 I. BACKGROUND
¶ 3 On March 19, 2010, the State charged defendant with unlawful delivery of a controlled substance within 1, 000 feet of a church (count I) (720 ILCS 570/407(b)(2) (West 2008)) and unlawful delivery of a controlled substance (count II) (720 ILCS 570/401(d)(i) (West 2008)). On July 19, 2010, the State dismissed count I and proceeded only on count II.
¶ 4 At defendant's trial, the State called Robbie Gunn. Gunn testified he had a drug problem, which started when he was 17. He was 45 years old at the time of trial. Gunn sold drugs, stole things, and did whatever else was necessary to acquire drugs. He testified he was a convicted felon, had multiple convictions for delivery of a controlled substance, and had served time in prison.
¶ 5 Detective Raisbeck of the Bloomington police department arrested Gunn on September 22, 2009, for delivery of heroin or crack in June 2009. Gunn testified he was selling drugs to get drugs. Gunn was never charged for this offense. After Gunn assisted the police as a confidential source, Detective Raisbeck was instrumental in getting a pending misdemeanor against Gunn dismissed.
¶ 6 On March 3, 2010, Gunn told Detective Raisbeck someone named "Bud" would sell Gunn cocaine. Gunn identified defendant as "Bud." On March 18, 2010, Gunn met with Detective Raisbeck again and called defendant in the detective's presence. Gunn recognized defendant's voice on the phone. Gunn told defendant he had "200" to spend, but defendant said he only had a "50" but would try to get the rest. Gunn called defendant back 10 or 15 minutes later. Defendant said he still only had the "50." Defendant said he would bring it to Gunn.
¶ 7 Gunn went to their normal transaction spot on Mulberry. Detective Raisbeck gave Gunn $50. At the meeting place on Mulberry, defendant drove up and lowered the passenger side window of his vehicle. Gunn gave defendant $50, and defendant spit the drugs out of his mouth and gave them to Gunn. Defendant said he would try to get "150" more. After defendant drove away, Detective Raisbeck came and got the drugs from Gunn. Gunn stated Detective Raisbeck gave him some money for helping him.
¶ 8 On cross-examination, Gunn testified he needed money because he did not have a job and needed funds to live. Gunn was not wearing any kind of surveillance equipment during the transaction with defendant.
¶ 9 Detective Sergeant Kenneth Bays testified he was part of the surveillance detail watching defendant. After the controlled buy, Sergeant Bays stopped at a stop sign, and defendant stopped behind him. He then moved out of the way as the police "takedown units" got behind defendant. The "takedown units, " three police cars with lights and sirens on, attempted to stop defendant but he refused to stop. Instead of stopping, defendant accelerated his vehicle. After a short chase, Sergeant Bays told the officers to stop the pursuit because they knew who defendant was and did not want to endanger the public. Defendant was apprehended about 90 seconds later.
¶ 10 On cross-examination, Sergeant Bays testified the police cars pursuing defendant did not have oscillating police lights on the roofs of the vehicles and were not "black and whites."
¶ 11 Patrol sergeant Mike Gray, who was a detective in the vice unit at the time of defendant's arrest, testified he observed Gunn from the time he left the presence of Detective Raisbeck until the transaction with defendant. Sergeant Gray identified defendant as the driver of the vehicle that stopped for Gunn. Defendant leaned toward Gunn, who was on the passenger side of defendant's vehicle. Sergeant Gray saw movement from defendant's shoulders and arms but did not actually see the hand-to-hand transaction. After defendant's car pulled away, Gunn met with Detective Raisbeck.
¶ 12 Officer Rick Beoletto testified he was a passenger in an unmarked Camaro driven by Officer Chambers on the day in question. The police lights on the vehicle are located at the roof line on the inside of the vehicle. The officers were instructed to stop a red vehicle with a white top. Officer Chambers activated the emergency lights on the Camaro. The driver of the red vehicle looked in the rearview mirror and began "shaking his head in a no fashion." Officer Chambers then moved his vehicle out of the way so a different police vehicle with a siren could pursue the red vehicle. After it became clear the vehicle was not going to stop, the police vehicles pulled over to the side of the road and started looking for items they thought were thrown from the suspect vehicle.
¶ 13 On cross-examination, Officer Beoletto stated the items thrown out the window of defendant's vehicle appeared to be shredded paper. He did not personally recover any of the items thrown out of the vehicle's window, nor could he identify what was thrown from the window.
¶ 14 Officer Brad Melton assisted in one of the "takedown cars." He was in uniform in an unmarked Chevrolet Impala, which had a light bar on the top of the windshield and lights in the grill on the front and back of the vehicle and a regular police siren. Officer Melton's vehicle was never directly behind defendant's vehicle. He testified he arrested defendant later while defendant was on foot. Defendant had a cell phone in his hand at the time of his arrest.
¶ 15 Officer Bill Wright testified he was asked by Detective Raisbeck to make a traffic stop on a maroon Buick with a white top. While pursuing the vehicle, he observed what appeared to be paper coming out of the driver's side of the vehicle. He and the other officers did not pursue the vehicle for safety reasons. Officer Wright testified he picked up some of the paper that was thrown from the car. The paper turned out to be torn United States currency. Officer Wright turned the pieces of currency he collected over to Detective Stephen Brown.
¶ 16 Detective Brown testified he was assigned to do presurveillance on defendant at an apartment complex. He observed defendant get into an older model red car with a white or off-white top. He testified he did not witness the other officers' pursuit of defendant's vehicle. He pulled up to where the officers had stopped and were trying to pick things up out of the road. Officer Wright gave Detective Brown what he picked up. Detective Brown documented and logged the evidence. Detective Brown compared the bits and pieces of currency picked up from the street with the photocopy of the money used by Gunn in the controlled buy. Detective Brown testified the serial numbers on the bills used in the controlled buy matched the pieces recovered on the street which had been thrown from defendant's car. Officer Melton provided Detective Brown with a cell phone recovered from defendant at the time of his arrest. The phone had the same number Gunn called to set up the controlled buy.
¶ 17 Detective Kevin Raisbeck testified he worked with Gunn as a confidential informant after arresting Gunn in June 2009 for selling drugs. He had given Gunn $400 so far for his help. On March 18, 2010, Gunn took part in a controlled buy for Detective Raisbeck. Before the buy, Detective Raisbeck searched the vehicle he and Gunn would be riding in and Gunn himself. They then placed a series of calls to defendant. The money to be used in the controlled buy was photocopied. Gunn called the number twice. Detective Raisbeck then drove Gunn to the 900 block of West Mulberry and dropped him off. Detective Gray was in the area to observe Gunn and the transaction. After Detective Gray told Detective Raisbeck the other vehicle had left, Detective Raisbeck met with Gunn, who gave him a bag of cocaine he had just purchased from defendant.
¶ 18 Detective Raisbeck testified he later interviewed defendant. Defendant said he did not stop for the officers because he thought they were thugs trying to make him stop. Defendant claimed he could not hear the sirens because his music was too loud. As for the police lights, defendant said he could not see them because he did not have his glasses on. Defendant told Detective Raisbeck he did not remember throwing money out the window of his car.
¶ 19 Defendant chose not to call any witnesses.
¶ 20 The jury found defendant guilty of delivery of a controlled substance. Defendant was sentenced to 16 years in prison on September 27, 2010.
¶ 21 On October 25, 2010, defendant filed a pro se motion to reduce sentence, alleging his trial attorney, Harvey Welch, was ineffective because he did not file a motion to reduce defendant's bond, waived defendant's right to a speedy trial, failed to appear in court to represent defendant, failed to provide defendant access to discovery, and did not diligently seek a consultation with defendant to discuss trial strategy if trial became inevitable.
¶ 22 On November 23, 2010, defendant filed a pro se motion to amend the motion to reduce sentence. In that motion, defendant argued Welch was not thorough in his representation of defendant because he did not object to the State deeming itself an expert on currency, did not attack the credibility of the State's confidential source based on his criminal behavior and the fact he remained free to testify against defendant, did not object to the lack of testimony from ...