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