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People v. Nesbit

Court of Appeals of Illinois, Third District

September 8, 2016

JUAN NESBIT, Defendant-Appellant.

         Appeal from the Circuit Court of Peoria County, No. 07-CF-516; the Hon. David A. Brown, Judge, presiding.

         Affirmed in part and reversed in part. Cause remanded.

          Michael J. Pelletier and Mark D. Fisher, both of State Appellate Defender's Office, of Ottawa, for appellant.

          Jerry Brady, State's Attorney, of Peoria (Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Wright concurred in the judgment.



         ¶ 1 Defendant, Juan Nesbit, appeals from the second-stage dismissal of his postconviction petition. He argues that the claims presented in that petition made substantial showings of constitutional violations and thus warranted third-stage review. In a consolidated appeal of the denial of his motion to reconsider sentence, defendant also argues that the sentence imposed by the trial court was excessive and an abuse of discretion. For the reasons set forth below, we reverse the trial court's dismissal of defendant's postconviction petition as to one claim and affirm as to the remainder. Further, we affirm defendant's sentence.

         ¶ 2 FACTS

         ¶ 3 The State charged defendant with being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2006)), unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2006)), and aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1) (West 2006)). Each of the counts alleged that defendant knowingly possessed a handgun on May 5, 2007.

         ¶ 4 Defendant appeared in court in custody on May 7, 2007, represented by an attorney from the public defender's office. The trial court set defendant's bond at $35, 000, 10% to apply. Defendant remained in custody when he was arraigned on May 24, 2007, represented by a different attorney from the public defender's office. Defendant posted bond on June 7, 2007.

         ¶ 5 Upon posting bond in the present case, defendant was immediately taken into custody by the Department of Corrections (DOC), as he had been on parole for an earlier conviction. On June 21, 2007, defendant wrote a letter to trial judge Michael Brandt, informing him that he was in the custody of the DOC at the Pinckneyville Correctional Center. The court ordered the ex parte communication delivered to the attorneys of record. Defendant next appeared in court on August 3, 2007. At that appearance, assistant Public Defender Mark Rose relayed to the court that defendant was "on bond on this matter and is in custody of the [DOC] on a previous cause." The court granted defendant's motion for a continuance.

         ¶ 6 On October 25, 2007, attorney Ronald Hamm entered his appearance as counsel of record for defendant. On February 4, 2008, with the trial scheduled for the following day, the court ordered defendant remanded to the custody of the Peoria County Sheriff in anticipation of trial.

         ¶ 7 On February 5, 2008, the State answered that it was ready for trial. Hamm made an oral motion to continue the trial to a later date. Hamm stated:

"I informed the Court yesterday morning that [defendant] had requested that I *** make a motion for a continuance.
[Defendant] also yesterday for the first time informed me that at the time that he was taken to the hospital after his arrest that his blood sugar was extremely elevated, which may have affected some of-some statements that he allegedly made to the officers.
I first became aware of that yesterday morning. I would need to check that and determine whether or not that would have any [effect] on [defendant's] condition at the time ***."

         The court denied the motion as untimely.

         ¶ 8 On February 6, 2008, defendant filed an assignment of security for bail, assigning the $3500 previously posted as bond to Hamm in exchange for value received. The trial started the same day.

         ¶ 9 Prior to calling any witnesses, the prosecutor read two stipulations to the jury. The first stipulation was that Michael Arrington would testify that he was defendant's parole officer and that defendant was on parole on May 5, 2007, the date of the alleged offenses. The second stipulation was that defendant had previously been convicted of burglary in 1985, 1993, and 2002.

         ¶ 10 Peoria police officer Jarvis Harrison testified that at approximately 8:30 p.m. on May 5, 2007, he received a dispatch informing him that a black Corvette had been seen leaving the scene of a domestic dispute. The dispatch indicated that the car was being driven by a person named Nesbit. After locating the vehicle, Harrison ran the license plate. The car was registered to Sonja Nesbit. Harrison activated his lights and sirens and pursued the vehicle.

         ¶ 11 Harrison testified that the vehicle did not immediately pull over. After stopping at a stop sign, the car "took off at a high rate of speed." Harrison continued to pursue the vehicle for approximately 10 to 15 minutes, with officer Rory Poynter later joining the chase. The vehicle eventually came to a stop after hitting a curb.

         ¶ 12 When the vehicle stopped, Poynter's squad car was directly behind it, and Harrison's squad car was directly behind Poynter's. Harrison and Poynter each alighted from their cars. Poynter gave the driver of the vehicle a number of commands, but the driver did not obey. The driver did not exit the vehicle. Harrison testified that he observed the driver reach under the driver's side seat with both hands. Harrison stated that the driver appeared to be moving his hands back and forth in some fashion. The driver eventually got out of the vehicle, and Poynter took him into custody. A subsequent search of the vehicle revealed a handgun located, in Harrison's words, "[r]ight by the driver's seat." Harrison testified that he could see the butt of the handgun sticking out from under the driver's seat. Harrison identified defendant as the driver of the vehicle.

         ¶ 13 On cross-examination, Harrison admitted that he never saw defendant with the gun in his hands. Though he saw defendant reach toward the area under the seat, he did not know if defendant's hands actually went under the seat.

         ¶ 14 Poynter testified that he joined the pursuit of defendant's vehicle after Harrison. Poynter eventually overtook Harrison, becoming the primary officer in pursuit. Poynter testified that he was in pursuit of defendant's vehicle for two to three minutes, describing the chase as taking place at "[r]elatively slow speeds, approximately 25, 30 [miles per hour]." Defendant applied the brakes as the vehicle approached a curb and came "to a screeching halt" when it impacted.

         ¶ 15 Poynter testified that he exited his squad car with his gun drawn. The driver's door of defendant's vehicle swung open. Poynter ordered defendant to exit the vehicle with his hands up. Defendant did not comply. Defendant's left arm was raised, but his right arm was not clearly visible. Poynter testified that defendant "continued to reach down towards the floorboard." Poynter holstered his gun and drew his Taser. Poynter struck defendant twice with the Taser to no effect, and he switched back to his gun. As Poynter continued to order defendant out of the vehicle, defendant reached toward the driver's floorboard once more, this time with both hands. After a number of other officers arrived, defendant complied with Poynter's order to exit the car and lie on the ground.

         ¶ 16 Upon searching the vehicle, Poynter noticed the butt of a handgun protruding from under the driver's seat. Poynter identified People's exhibit No. 2 as a photograph of the handgun as it existed when Poynter first observed it. The photograph shows the butt of the handgun visible, emerging from under the driver's seat, with the remaining portion of the gun obscured by the seat itself. The visible portion of the silver gun stands out against the vehicle's red interior. Further inspection revealed that the handgun was loaded. Poynter identified the handgun as .45-caliber. Poynter testified that defendant's mother, Sonja Nesbit, and wife, Cheryl Nesbit, eventually arrived at the scene of the accident.

         ¶ 17 On cross-examination, Hamm asked Poynter about defendant's blood sugar at the time of the accident. Poynter responded that paramedics had come to the location, checked defendant's blood sugar, and indicated that Poynter could transport defendant to the hospital. Poynter also testified on cross-examination that he never saw defendant with the gun in his hands.

         ¶ 18 Officer Scott Bowers of the Peoria police department testified that he found a partial fingerprint on the frame of the handgun found in the vehicle driven by defendant. The partial fingerprint did not yield any matches. Bowers did not find any latent fingerprints on any of the bullets found within the handgun.

         ¶ 19 The State called defendant's mother, Sonja Nesbit, as its final witness. Sonja testified that the black Corvette was registered in her name and that she, defendant, and Cheryl all drove the vehicle. Sonja had last driven the vehicle on May 4, 2007, one day before the defendant's accident. Sonja recalled that Cheryl had driven the car "[t]hat same day."[1]

         ¶ 20 Sonja testified that she went to the scene of the accident on the evening of May 5, 2007, but that she did not talk to any officers there. Cheryl was with her. Sonja wanted to remove her belongings from the car before it was towed. When asked if she was able to retrieve items from the car without ever speaking to an officer, Sonja replied: "They might have asked me if [the car] was mine." When asked by the prosecutor if she had told Poynter, "I pay for it but [defendant] is the only one who drives it, " Nesbit replied, "No, I didn't say that." Sonja explained: "But I don't say he's the only one that drives it when I drive it and Cheryl drives it."

         ¶ 21 On cross-examination, Sonja testified that she owned a .45-caliber handgun and that she kept it "underneath the front seat." She had never seen defendant in possession of ...

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