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People v. Garcia

Court of Appeals of Illinois, First District, Third Division

March 22, 2017

IVAN GARCIA, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 18887 The Honorable Michael McHale, Judge Presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Pucinski and Cobbs concurred in the judgment and opinion.


          LAVIN JUSTICE.

         ¶ 1 Following a jury trial, defendant Ivan Garcia was found guilty of the aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)) of his 15-year-old niece, when he was nearly twice her age, and sentenced to a total of 20 years in prison. He appeals raising a number of contentions relating to the court's compliance with Illinois Supreme Court rules, the denial of his pretrial motions challenging the search warrant, his right to a lawyer and right to self-representation, as well as the use of propensity evidence and other trial errors. We address each in turn as we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was arrested and then charged with multiple counts of the above-stated sex offense after police executed a search warrant of his home and discovered a black fireproof safe box under defendant's bed containing a journal, memory card, letters, and a vibrating ring enclosed in a separate box. Police flipped through the journal discovering gang writing, drawings, and photographs of defendant, apparently with his niece. Defendant moved to suppress these items, which were seized and later used to establish his guilt for sexual abuse. He argued the box and its items were outside the scope of the warrant, which authorized the seizure of only drugs, drug paraphernalia, records of illegal drug transactions, money, and residency documents.

         ¶ 4 Police, however, testified at the motion to suppress hearing that the black box had an attached key inside the keyhole, which they used to open it, and they flipped through the journal in search of possible drug transaction records. This was because, in addition to the black box, officers had actually discovered drugs and $1750 of cash in defendant's bedroom. On seeing that the journal contained photos of defendant with his niece, police then appropriately obtained consent from K.M.'s mother to search the rest of the box's contents, as they had determined the journal belonged to K.M. The State argued the seizure of these items and review of them was consistent with the search warrant, which authorized officers to search the bedroom and the lockbox, and to peruse the journal. The State noted that officers had testified narcotics transactions can sometimes be embedded in codes. The court denied the motion to suppress the lockbox items, finding that it could have reasonably contained objects which were the subject of the search warrant. Likewise, the journal could have contained drug transaction records notwithstanding that its handwritten prose was described as visually feminine. Additionally, the police had obtained valid consent.

         ¶ 5 While the public defender's office represented defendant on his motion to suppress, defendant requested to act pro se in this case and two other pending cases, and he posed further challenges to the warrant's validity. He ultimately filed a motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), which gives a defendant a limited right to attack the veracity of search warrant affidavits. The trial court denied defendant's pro se motion for a Franks hearing, and defendant then once again requested counsel. These matters will be discussed in further depth as we address defendant's arguments, but suffice it to say, a public defender was eventually appointed to represent defendant at trial and at sentencing.

         ¶ 6 At trial, K.M. testified that defendant, then age 29, sexually abused her over a nine-month period starting when she was 15 years old. Trial evidence showed defendant repeatedly preyed on K.M. when no other adult was present, grabbing her or carrying her while she was asleep to his bedroom, where he touched her breasts and vagina. K.M. would push him away, but he persisted in these actions and eventually told her that she "couldn't be doing that to him, " at which time he placed her hand on his erect penis. Some weeks after the initial violation, defendant again took K.M. to his bed. K.M. "pushed him away and then *** just kind of gave up" because it "was happening for awhile, " and she "didn't know what else to do." Defendant then penetrated K.M.'s vagina digitally, performed oral sex on her, and then had sex with her. He continued to have sex with her daily for months.

         ¶ 7 During this period, defendant meanwhile acted as a father-like, boyfriend-like figure to K.M., teaching her to drive, attending her orchestra concerts along with K.M.'s siblings, and celebrating her birthday along with her siblings. Her mother, Virginia, was largely absent and thus defendant was the caretaker to Virginia's four children and also two of his own children.[1]K.M. did not tell anyone about the abuse because she was scared of getting into trouble since she was only 15, and defendant was her uncle. K.M. identified lubricant tubes and a vibrating ring that defendant used while penetrating her. Defendant took photographs and videos of K.M., including videos of them having sex, on his cell phone. These images were recorded on a memory card stored in the lockbox. Both defendant and K.M. had a key to the box, and the two watched videos of them having sex on the computer. Some of these images and the video were published to the jury, with K.M. giving a graphic description of what occurred during their sex acts.

         ¶ 8 K.M. was not his only victim. Her younger sister, D.M.[2] testified that she slept in defendant's bed when she was only seven years old. He touched her vagina both over and under her clothes. He took her clothing off and digitally penetrated her. On about five separate occasions, he took off D.M.'s clothes and performed oral sex on her. D.M. also did not tell her mom or sister because she was afraid she would get in trouble, and defendant had instructed her not to tell anyone.

         ¶ 9 As stated, the sexual abuse eventually came to light when police executed the search warrant, and discovered the lockbox evidence. When confronted, K.M. told police the lockbox was hers, even though it was not. Initially, she attempted to hide the truth of their relationship because she did not want her uncle going to jail, she "cared for him, " and thought she "loved him." A physical examination of K.M. revealed she was missing hymenal tissue, indicating there was an injury from penetrating trauma. The examining doctor testified K.M.'s injuries were consistent with a history of being sexually abused. K.M. eventually acknowledged what defendant did to her when she "found out he was raping" her sister.

         ¶ 10 The jury found defendant guilty on all four counts of aggravated criminal sexual abuse. Defendant filed a motion for a new trial, which was denied. At sentencing, a cousin of K.M. testified that defendant digitally penetrated her several times when she was only seven or eight years old. Defendant was sentenced to consecutive terms on the multiple counts, totaling 20 years in prison. This appeal followed.

         ¶ 11 ANALYSIS

         ¶ 12 Defendant does not challenge the sufficiency of the evidence against him. Rather, he raises a number of claimed errors, but all save one have been forfeited by failure to raise a contemporaneous and/or posttrial objection. See People v. Enoch, 122 Ill.2d 176, 186-87 (1988) (holding that generally to preserve an error, a defendant must raise both a contemporaneous and written posttrial objection); see also People v. Almond, 2015 IL 113817, ¶ 54 (reaffirming Enoch). Defendant nonetheless relies on two exceptions to the forfeiture rule. One exception is the plain error doctrine, which permits a reviewing court to consider unpreserved error in exceptional circumstances where the evidence is closely balanced or the alleged error was so prejudicial that it deprived defendant of a fair trial. People v. Piatkowski, 225 Ill.2d 551, 565 (2007); People v. Easley, 148 Ill.2d 281, 323 (1992). The initial step in any plain error analysis is to establish that there was error in the first place. People v. Johnson, 218 Ill.2d 125, 139 (2005). Defendant does not argue the evidence was closely balanced such that any alleged error threatened to tip the scales of justice against him. Indeed, he cannot argue that because the evidence in this case was quite simply overwhelming given K.M.'s testimony, the videotape, the lockbox evidence, the supporting medical testimony, and D.M.'s testimony showing defendant's propensity for sex crimes against minor females. Defendant therefore largely argues second-prong plain error.

         ¶ 13 Defendant also cites the constitutional exception to the forfeiture rule, relying on the supreme court's recent case, Almond, 2015 IL 113817, ¶ 54, and argues the interests of judicial economy favor addressing on direct appeal certain claims, like those relating to his suppression motion and the warrant affidavit, since these constitutional issues were raised at trial and can later be raised in a postconviction petition. See also Enoch, 122 Ill.2d at 190. Like the plain error rule, this is yet another exception to forfeiture, but instead results in reviewing a claim on its merits. Almond, 2015 IL 113817, ¶ 54; People v. Cregan, 2014 IL 113600, ¶¶ 18-19; but see People v. Cosby, 231 Ill.2d 262, 272-73 (2008) (where the supreme court criticized the appellate court for considering a forfeited fourth amendment issue under the constitutional exception and not the plain error rule and stated, "the mere fact that an alleged error affects a constitutional right does not provide a separate ground for review, for 'even constitutional errors can be forfeited.' "); cf. People v. McDonald, 2016 IL 118882, ¶ 47 (declining to decide whether the constitutional exception applies where the same result is reached under plain error too).

         ¶ 14 We will reference these principles where necessary as we address each of defendant's multiple issues in turn.

         ¶ 15 Pro Se Representation

         ¶ 16 As stated, defendant acted pro se for a limited period when he filed his motion for a Franks hearing. Defendant first contends he did not validly waive his right to counsel because the trial court failed to admonish him of the nature of the charges against him and minimum sentence, as required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Defendant argues that the alleged error constitutes plain error and asks that we remand the matter for a new Franks hearing with counsel. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006) (holding that structural errors include denial of counsel); People v. Thompson, 238 Ill.2d 598, 613-14 (2010) (equating second-prong plain error with structural error).

         ¶ 17 The State responds that defendant forfeited this issue by failing to preserve it, that there was no clear and obvious error amounting to plain error because the court substantially complied with Rule 401, and that defendant's waiver of counsel was knowing and voluntary without any demonstrated prejudice. We agree with each of these arguments.

         ¶ 18 The federal constitution's sixth amendment guarantees a criminal accused the right to counsel and the correlative right to act pro se. People v. Haynes, 174 Ill.2d 204, 235 (1996). A defendant may waive his constitutional right to counsel as long as it is voluntary, knowing, and intelligent. Id. Rule 401(a) governs the trial court's acceptance of a defendant's waiver. Id. The court must admonish defendant of the nature of the charges, the minimum and maximum sentences (including penalties due to prior convictions or consecutive sentences), and that he has a right to counsel and, if indigent, appointed counsel. Ill. S.Ct. R. 401 (eff. July 1, 1984). Nonetheless, strict compliance with Rule 401(a) is not always required and substantial compliance will be sufficient to effectuate a valid waiver if the record indicates that the waiver was made knowingly and voluntarily, and the admonishment defendant received did not prejudice his rights. Haynes, 174 Ill.2d at 236. For the reasons to follow and in light of the entire record, we conclude there was substantial compliance.

         ¶ 19 First, although the actual arraignment is not part of the record on appeal, the record indicates that defendant was arraigned in this case[3] and thus made aware of the charges against him. See People v. Banks, 378 Ill.App.3d 856, 861 (2007) (any doubts arising from an incomplete record are construed against the defendant as the appellant); 725 ILCS 5/113-1 (West 2008); People v. Maust, 216 Ill.App.3d 173, 181-82 (1991) (the purpose of arraignment is to inform the defendant of the enumerated charges against him and of his right to an attorney); cf. People v. Langley, 226 Ill.App.3d 742, 749-50 (1992) (admonishments at arraignment could not suffice for Rule 401(a) purposes). Moreover, the record shows defendant was present for the motion to suppress hearing and pretrial motion hearing on other-crimes evidence, both of which showed the criminal sex abuse charges resulted from defendant's various sex acts committed against his 15-year-old family member. See 720 ILCS 5/12-16(d) (West 2008) ("The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim."). Defendant never indicated to the court that he did not understand the charges against him, and he understandably has not done so here. See People v. Johnson, 119 Ill.2d 119, 131 (1987).

         ¶ 20 Our examination of the record also reveals that defendant was adequately informed of the penalties. On November 10, 2011, the day defendant declared he wanted to act pro se, the trial court admonished defendant that he was facing various charges in three different criminal cases, including the present 09 CR 18887, and that these cases could carry consecutive and extended terms of up to 60 plus years.[4] With regard to this specific case, the trial court admonished defendant that he was subject to Class 1 felonies punishable by up to 15 years' imprisonment and that he could be "found guilty of different counts and those counts could run consecutively, " meaning defendant could "possibly serve 15 years for each one of the counts alleged in the six-count indictment." In actuality, the first two charges of criminal sexual assault were Class 1 felonies (4- to 15-year terms) (see 720 ILCS 5/12-13(b)(1) (West 2008); 730 ILCS 5/5-8-1(d)(4) (West 2008)), while the next four charges of aggravated criminal sexual abuse were Class 2 felonies (three- to seven-year terms) (see 720 ILCS 5/12-16 (West 2008); 730 ILCS 5/5-8-1(d)(5) (West 2008)). The court made clear to defendant that he could face substantial prison time, and defendant received a substantially shorter sentence than the provided admonishments. Defendant concedes he was advised of the most serious class of offense.

         ¶ 21 The court also made clear that he had a right to a lawyer even if he was indigent. Over five pages in the transcript, the court advised defendant of the seriousness of the charges, noting "[t]his is your life at stake, " and that defendant was at an extreme disadvantage in representing himself before an experienced State's Attorney given the technical rules of evidence and tactical decisions involved. The court also inquired about defendant's educational history. The record shows defendant finished high school and that he was articulate and cognizant of the proceedings. The court stated, "You have a constitutional right to throw your life away, and if that's what you're going to do, then that's what you're going to do. But I need to make sure that you understand that if you throw your life away and if you decide that you are going to throw your life away, you do it freely and knowingly and intelligently and voluntarily." Defendant stated he understood that. The court stated defendant would not receive special consideration or the public defender's investigative services. The court stated it was not inclined to appoint standby counsel, but would make that decision at a later date. The court gave defendant 12 days to contemplate, as it should not be a "snap decision" or an "emotional decision, " but rather, a "rational" one. Twelve days later, defendant made a clear and articulate statement of his desire to waive counsel, and the trial court also clearly stated that defendant would not have the public defender's services and then allowed the public defender to withdraw.

         ¶ 22 The record shows that this short waiting period, rather than vitiating the effectiveness of the trial court's Rule 401 admonishments as defendant argues, actually buttressed those admonishments and defendant's knowing and intelligent waiver of counsel. See Haynes, 174 Ill.2d at 241 (concluding admonishments given almost three months before the defendant accepted waiver of counsel were sufficient under Rule 401). The State concedes the court did not inform defendant of the minimum sentences, but notes that even assuming it had, nothing in the record shows defendant would have changed his mind as to representation. See id. at 243-44; Johnson, 119 Ill.2d at 134. We agree. Defendant had challenged his attorney's strategy relating to the Franks motion for about a year. Defendant indicated he wished to proceed pro se some five months before the November 2011 hearing, which is where he declared he would represent himself. Even in the face of an extensive term, defendant chose to proceed pro se on his Franks hearing motion. The motion itself demonstrated a degree of legal sophistication with regard to arguments and legal citations. In addition, defendant was ultimately represented by counsel at trial, sentencing, and posttrial, and he cannot establish any prejudice due to the lack of counsel on his application for a Franks hearing.

         ¶ 23 In conclusion, defendant has forfeited this matter and, even putting forfeiture aside, the record demonstrates that there was substantial compliance with Rule 401 and thus no error. To the extent there was any inadequacy in how the trial court presented the Rule 401 admonishments, it did not impede defendant from giving a knowing and intelligent waiver of counsel on his Franks motion. See People v. Maxey, 2016 IL App (1st) 130698, ¶¶ 40, 42. Any inadequacy therefore did not affect defendant's right to a fair trial or challenge the integrity of the judicial process. Defendant's claim fails.

         ¶ 24 Denial of Franks Motion

         ¶ 25 Defendant next contends the trial court erred in denying his Franks motion and requests remand for another hearing. Defendant asks that we review this under the constitutional-issue exception, framing the matter as one involving the fourth amendment. Whether we view the motion for a full Franks hearing under a ...

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