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People v. Pena

Court of Appeals of Illinois, First District, Third Division

October 15, 2014

DANIEL PENA, Defendant-Appellant

As Corrected.

Appeal from the Circuit Court of Cook County. No. 07 CR 20877. Honorable James B. Linn, Judge, presiding.


Defendant's conviction for aggravated battery of a peace officer arising from an incident in which he spit on a correctional officer after being placed in a holding cell was upheld over his contentions that he was not proved guilty beyond a reasonable doubt, that he was denied his right to represent himself, and that the trial court failed to make a proper inquiry with respect to his claim of ineffective assistance of counsel, since a videotape of the incident corroborated the officer's testimony that defendant spit on him after being placed in the cell and there was no basis for disturbing any of the trial court's findings, the record did not show that defendant ever made an articulate and unmistakable demand to proceed pro se, and the trial court properly relied on its own knowledge in rejecting defendant's allegations with respect to the assistance provided by his counsel.

Michael J. Pelletier and Kathleen Weck, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Ahmed M. Baset, Assistant State's Attorney, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.



Page 759

[¶1] After a bench trial, defendant Daniel Pena appeals his conviction for aggravated battery of a peace officer, contending that the State failed to prove him guilty beyond a reasonable doubt because the officer's testimony was not credible and was disputed by a videotape of the incident. Pena also contends that he was denied his constitutional right to self-representation, and that the trial court failed to conduct a proper inquiry into his pro se posttrial claim of ineffective assistance of counsel. The trial court sentenced Pena to six years' imprisonment as a Class X offender based on his criminal history. We affirm.

[¶2] With regard to Pena's contention that the State fell short of proving guilt beyond a reasonable doubt, the trial court as the trier of fact occupies a superior position to assess Officer Lee's credibility and resolve any conflicts in the evidence, and it had the benefit of the videotape, even though Lee's testimony conflicted somewhat from the first trial. In addition,

Page 760

the trial court did not deny Pena his right to self-representation; no error occurred and the plain error doctrine does not apply. Finally, we find the trial court acted properly when it dismissed, without further inquiry, Pena's pro se posttrial motion of ineffective assistance of counsel.


[¶4] Following a 2009 jury trial, Pena was convicted of aggravated battery of a peace officer. 720 ILCS 5/12-4(b)(18) (West 2006). A videotape of the incident, however, went missing during that trial, only to be located by the State after the trial concluded. While his direct appeal was pending, Pena filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) claiming actual innocence and a due process violation based on the discovery of the missing videotape. The circuit court summarily dismissed Pena's petition, but on appeal, this court granted the State's motion for summary remand and remanded the petition for further proceedings under the Act. People v. Pena, No. 1-09-3276 (2010) (dispositional order). On remand, the parties agreed that the videotape was relevant, and the circuit court granted Pena a new trial. (Following that ruling, this court dismissed defendant's initial direct appeal. People v. Pena, No. 1-09-0932 (2011) (dispositional order).)

[¶5] On the next court date, Pena informed the court that he wanted to fire his public defender. The trial court denied his request, stating that Pena would then have to represent himself, and commented on the excellent job counsel had done for him. Pena replied that he understood, but that he needed a one-week continuance to file a motion. The court explained to Pena that he could not choose his own court-appointed attorney, and therefore, would have to represent himself. Pena said he was going to represent himself, and the trial court admonished him about the possible sentences he faced, the disadvantages of self-representation, and that he would be held to the same standards as a lawyer. Pena told the court that he did not understand why his trial counsel disagreed with everything his appellate counsel told him. When appointed counsel asked the court if Pena was going to be allowed to represent himself, the court responded " [n]o, I don't think he's capable of it." Thereafter, Pena asked a few questions about the videotape and never again raised the issue of self-representation. Three months later, Pena hired private counsel, and the public defender withdrew.

[¶6] At trial, Cook County correctional officer Alan Lee testified that on September 22, 2007, he responded to an " all available" call in Division 9 of the jail and saw Pena resisting officers while on the ground, handcuffed and shackled. Lee and a group of officers escorted Pena to a downstairs holding cell, and Officer Lee could see that Pena was angry and upset, and that he was bleeding from his mouth. Officer Lee's responsibility was to unlock and open the holding cell door to allow officers to place Pena inside the cell, and he did not physically touch Pena or assist with Pena's movement to the cell. When Pena refused to enter the cell, the officers picked him up, carried him in, and placed him on the bench in the back of the cell. Pena repeatedly yelled obscenities, and as the officers left the cell, Pena rose from the bench, and from a distance of seven feet, spit blood at the direction of Officer ...

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