NO. 4-04-0414
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
DARRELL JAMES, ) No. 03CF769
Defendant-Appellant. )
) Honorable
) Dennis L. Schwartz,
) Judge Presiding.
______________________________________________________________
PRESIDING JUSTICE TURNER delivered the opinion of the
court:
In summer 2003, the State charged defendant with
unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West
2002)), armed robbery (720 ILCS 5/18-2(a)(1) (West 2002)), and
home invasion (720 ILCS 5/12-11(a)(3) (West 2002)). Shortly
after his arrest, the trial court appointed the public defender
to represent defendant. Before opening statements at his January
2004 bench trial, defendant elected to proceed pro se. At the
conclusion of his trial, the court found defendant guilty of all
three charges. At a joint hearing in April 2004, the court
denied defendant's posttrial motions and sentenced him to concur-
rent prison terms of 45 years for armed robbery, 7 years for
unlawful use of a weapon by a felon, and 45 years for home
invasion. In May 2005, the court denied defendant's motion to
reconsider his sentence.
Defendant appeals, contending (1) the trial court's
refusal to consider his pretrial, pro se motions violated his
fifth- and sixth-amendment rights (U.S. Const., amends. V, VI),
and (2) his prison term for home invasion should be reduced to 30
years since the 15-year sentence enhancement imposed on his
sentence violates the proportionate-penalties clause. We affirm.
I. BACKGROUND
On July 30, 2003, the State charged defendant with
unlawful use of a weapon and armed robbery (the home-invasion
charge was later brought on August 20, 2003). At a July 31,
2003, hearing, the trial court appointed the public defender to
represent defendant. At the August 14, 2003, preliminary hear-
ing, defendant was represented by Bob Scherschligt. On August
26, 2003, the Sangamon County public defender assigned defen-
dant's case to Assistant Public Defender Craig Reiser.
On September 8, 2003, defendant filed a pro se motion
to dismiss the home-invasion charge. In a letter to the trial
court, defendant alleged his attorney did not think the motion
was a good one and refused to file it. Defendant requested the
appointment of another public defender because he did not think
Reiser would represent him to the fullest. That same day, the
court addressed defendant's request at a hearing. Defendant
stated Reiser had indicated everyone thought defendant was
guilty, including himself. Reiser denied making such a state-
ment, and the court denied defendant's request.
- 2 -
In a letter filed October 21, 2003, to the trial court,
defendant complained about a police photographic lineup and
stated Reiser was not trying to help him. Defendant contended
Reiser "kept on telling [him] about the State['s] defen[s]e
trying to scare [him] into copping out for something that [he]
didn't do." On November 18, 2003, Reiser filed a motion to
suppress the identification of defendant in the photographic
lineup.
In a letter to the trial court filed November 19, 2003,
defendant alleged a witness at his preliminary hearing committed
perjury and again asserted Reiser was working against him by
trying to get him "to cop out." On December 8, 2003, defendant
filed pro se (1) a motion to suppress evidence regarding his
tribal band tattoo, (2) a motion to suppress the photographic
lineup, (3) a motion to "squash" the statements made by Brandon
Mason, (4) a motion to "squash" his arrest warrant, (5) a motion
to "squash" a letter, (6) a motion to "squash" a supposed state-
ment defendant made to the police, and (7) another motion to
"squash" his arrest.
On December 9, 2003, Reiser filed a motion in limine
regarding defendant's prior convictions, which the trial court
later granted. On December 10, 2003, defendant filed pro se a
motion for additional discovery and another letter to the court.
He asserted Reiser refused to file defendant's motions and was
- 3 -
working with the State to frame defendant. He also criticized
Reiser for his continuances. On December 15, 2005, defendant
filed pro se a motion to dismiss the case and two letters to the
court. Defendant again asserted Reiser was working with the
State and criticized Reiser's continuances.
On December 22, 2003, the trial court held a hearing on
the motion to suppress identification at which Reiser represented
defendant. At the beginning of the hearing, Reiser informed the
court defendant had filed a complaint with the Attorney Registra-
tion and Disciplinary Commission, which was unfounded. He
further stated he had no problem representing defendant, and the
court declined to investigate the matter any further. After the
court denied the suppression motion, Reiser pointed out to the
court defendant's pro se motions. Reiser noted he had looked
over the motions and put them in his motion to suppress defen-
dant's identification. In response, the court noted its rule not
to consider pro se motions filed by defendants when they are
represented by counsel. Reiser continued to file documents in
defendant's case until defendant's January 2004 trial.
On January 20, 2004, the trial court commenced defen-
dant's trial with Reiser representing defendant. After a jury
was selected, defendant waived his right to a jury trial, and the
court continued the trial to the next day. At the beginning of
the bench trial, defendant again brought up his complaints about
- 4 -
Reiser trying to get him "to cop out" and refusing to file
defendant's motions. Reiser indicated he was happy to represent
defendant and could answer all of defendant's allegations. The
prosecutor stated he had very few plea discussions with Reiser
since he did not feel defendant "was an individual that [he]
should be giving too many breaks to." The prosecutor also noted
Reiser had been thorough in his discovery and in preparing for
trial. The court then declined to discharge Reiser. Defendant
then indicated he wanted to proceed pro se. The court allowed
defendant to proceed pro se with Reiser as stand-by counsel.
Defendant then asked to be heard on his prior pro se motions.
The court refused and began the trial.
At the conclusion of the trial, the trial court found
defendant guilty of all three charges. Reiser filed a posttrial
motion, and defendant filed pro se several amendments to the
posttrial motion. At the April 2004 hearing on the posttrial
motions and sentencing, the court noted it had reviewed all of
defendant's pretrial, pro se motions and denied any that were
left unresolved. Defendant then argued the posttrial motions,
and the court denied those as well. At defendant's request,
Reiser represented defendant on the sentencing portion of the
hearing. The court sentenced defendant as stated. Reiser then
filed a motion to reconsider and reduce defendant's sentence,
which the court denied. This appeal followed.
- 5 -
II. ANALYSIS
The questions presented in this appeal are ones of law,
and thus our review de novo. See People v. Breedlove, 213 Ill.
2d 509, 512, 821 N.E.2d 1176, 1178 (2004) (pure questions of law
are reviewed de novo).
A. Defendant's Pro Se Motions
Defendant first asserts his fifth-amendment right to
due process and sixth-amendment right to self-representation were
violated when the trial court refused to hear his pro se motions.
We disagree.
A defendant has the right either to have counsel
represent him or to represent himself. However, a defendant does
not have the right to both self-representation and the assistance
of counsel. People v. Serio, 357 Ill. App. 3d 806, 815, 830
N.E.2d 749, 757 (2005). Stated differently, a defendant pos-
sesses "no right to some sort of hybrid representation, whereby
he would receive the services of counsel and still be permitted
to file pro se motions." People v. Handy, 278 Ill. App. 3d 829,
836, 664 N.E.2d 1042, 1046 (1996). Thus, when a defendant is
represented by counsel, the defendant generally has no authority
to file pro se motions, and the court should not consider them.
Serio, 357 Ill. App. 3d at 815, 830 N.E.2d at 757.
A defendant cannot circumvent the above rule by elect-
ing to proceed pro se right before opening statements and have
- 6 -
pretrial, pro se motions addressed. When a defendant elects to
have an attorney represent him, his role and his attorney's role
are defined. People v. Pondexter, 214 Ill. App. 3d 79, 87, 573
N.E.2d 339, 345 (1991). The defendant retains the right to make
decisions involving "fundamental rights" such as whether to plead
guilty or not guilty, whether to waive jury trial, whether to
testify, and whether to appeal. See Pondexter, 214 Ill. App. 3d
at 87, 573 N.E.2d at 345. However, counsel has control over "the
day-to-day conduct of the defense" and the handling of strategic
matters that involve "'the superior ability of counsel.'"
Pondexter, 214 Ill. App. 3d at 87, 573 N.E.2d at 345, quoting
People v. Campbell, 129 Ill. App. 3d 819, 821, 473 N.E.2d 129,
131 (1984).
Here, defendant received Reiser's assistance throughout
the pretrial period. Thus, to allow defendant to have his
pretrial, pro se motions that addressed strategic matters under
Reiser's control would constitute hybrid representation and
essentially allow defendant to relitigate pretrial issues. Such
a result is impermissible since, as we have explained, the right
to self-representation and the assistance of counsel cannot be
exercised at the same time. Pondexter, 214 Ill. App. 3d at 87,
573 N.E.2d at 345.
Additionally, we note one exception to the rule is pro
se ineffective-assistance-of-counsel claims if they include
- 7 -
supporting facts and are specific. Serio, 357 Ill. App. 3d at
815, 830 N.E.2d at 757. However, none of the pro se motions at
issue raised ineffective-assistance-of-counsel claims. Moreover,
before trial, the trial court did make an inquiry into defen-
dant's complaints about Reiser that defendant raised in his
numerous letters.
Accordingly, the trial court properly did not address
defendant's pretrial, pro se motions when defendant elected to
proceed pro se right before opening statements. A proper way of
handling such improper pro se motions is to strike them when they
are filed to avoid the confusion that may have resulted in this
case. See People v. Neal, 286 Ill. App. 3d 353, 355-56, 675
N.E.2d 130, 131 (1996).
B. Home-Invasion Sentence
Defendant last contends his sentence for home invasion
should be reduced by 15 years because the mandatory 15-year
sentence enhancement provided for in section 12-11(c) of the
Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-11(c) (West
2002)) violates the proportionate-penalties clause. The State
disagrees, asserting the 15 years above the statutory maximum for
home invasion was the result of an extended term based on defen-
dant's prior convictions. See 730 ILCS 5/5-5-3.2(b)(1), 5-8-
2(a)(2) (West 2002). We need not address whether the 15 years
was an enhancement or an extended term since our supreme court
- 8 -
recently rejected defendant's argument in People v. Guevara, 216
Ill. 2d 533, 544-45, 837 N.E.2d 901, 908 (2005). See People v.
Hampton, No. 1-03-0067, slip op. at 25-27 (December 5, 2005), ___
Ill. App. 3d ___, ___, ___ N.E.2d ___, ____.
In support of his argument, defendant cites the Second
District's People v. Dryden, 349 Ill. App. 3d 115, 124, 811
N.E.2d 302, 310 (2004), judgment vacated, No. 98795 (December 1,
2005) (nonprecedential supervisory order denying leave to appeal
and vacating Second District's judgment and remanding with
directions), where the court found the proportionate-penalties
clause was violated because the conduct prescribed by section 12-
11(a)(3) of the Criminal Code (720 ILCS 5/12-11(a)(3) (West
2000)) was punished more harshly than aggravated battery with a
firearm. Defendant does not raise any other arguments in support
of his contention that his sentence violates the proportionate-
penalties clause. As stated, in Guevara, our supreme court
rejected the very same argument defendant raises based on People
v. Sharpe, 216 Ill. 2d 481, 519, ___ N.E.2d ___, ___ (2005),
which abolished cross-comparison challenges to the proportionate-
penalties clause. Guevara, 216 Ill. 2d at 544-45, 837 N.E.2d at
908.
The dissent argues the Guevara decision is irrelevant
to this case because it was decided after defendant was sen-
tenced, and thus defendant's sentence enhancement should be
- 9 -
vacated based on People v. Moss, 206 Ill. 2d 503, 795 N.E.2d 208
(2003), which was the "final order" of our supreme court when
defendant was sentenced. Slip op. at 15. We could not disagree
more strongly.
First, as recognized by this court in People v. Stand-
ley, 359 Ill. App. 3d 1096, 1107, 835 N.E.2d 945, 953-54 (2005),
the Moss court only found the 15- and 20-year sentence enhance-
ments to (1) armed robbery (720 ILCS 5/18-2 (West 2000)), (2)
aggravated kidnapping (720 ILCS 5/10-2 (West 2000)), and (3)
aggravated vehicular hijacking (720 ILCS 5/18-4 (West 2000))
violated the proportionate-penalties clause. See also People v.
Powell, 355 Ill. App. 3d 124, 136, 822 N.E.2d 131, 142 (2004)
(First District). Thus, the 15-year sentence enhancement to home
invasion had not been found unconstitutional when defendant was
sentenced.
The dissent criticizes the aforementioned conclusion,
stating the Moss decision was a "broad one" and thus implicitly
found all Public Act 91-404 (Pub. Act 91-404, eff. January 1,
2000 (1999 Ill. Laws 5126)) 15- and 20-year sentence enhancements
unconstitutional. This court rejected that argument before our
supreme court's decisions in Sharpe and Guevara, which refused to
apply the Moss analysis to other statutes (Sharpe, 216 Ill. 2d at
489, ___ N.E.2d at ___; Guevara, 216 Ill. 2d at 544-45, 837
N.E.2d at 908). See Standley, 359 Ill. App. 3d at 1106-07, 835
- 10 -
N.E.2d at 953-54. Thus, it would now be incongruous to apply
Moss after the supreme court refused to extend it to the other
Public Act 91-404 sentence enhancements, especially where both
this court and the supreme court have recognized the absurd
results the Moss decision yields. Standley, 359 Ill. App. 3d at
1107, 835 N.E.2d at 954; Sharpe, 216 Ill. 2d at 489, ___ N.E.2d
at ___.
Second, the sentencing provision of the home-invasion
statute (720 ILCS 5/12-11(c) (West 2002)) was not vague when
defendant was sentenced. That provision clearly applies a 15-
year sentence enhancement to home invasion as prescribed by
section 12-11(a)(3) of the Criminal Code (720 ILCS 5/12-11(a)(3)
(West 2002)). That section had not been expressly declared
unconstitutional by any reviewing court when defendant was
sentenced. Accordingly, the statute clearly applied to defendant
when he was sentenced. Moreover, we refuse to hold a statute is
unconstitutionally vague because a defendant could reasonably
challenge its constitutionality based on existing case law.
Last, our affirmation of defendant's sentence is
consistent with the supreme court's decision in Guevara. There,
the trial court had declared section 12-11(a)(3) of the Criminal
Code unconstitutional based on Moss and dismissed the home-
invasion indictment. Guevara, 216 Ill. 2d at 539, 837 N.E.2d at
905. After finding section 12-11(a)(3) was constitutional, our
- 11 -
supreme court reversed the trial court's decision and remanded
for further proceedings. Guevara, 216 Ill. 2d at 547, 837 N.E.2d
at 909. If the home-invasion sentence enhancement could not be
applied while Moss was our supreme court's "final order," then
our supreme court would not have remanded the Guevara case for
further proceedings.
III. CONCLUSION
For the reasons stated, we affirm defendant's convic-
tion and sentence.
Affirmed.
STEIGMANN, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I dissent and would reduce defendant's sentence to 30
years.
- 12 -
Effective January 1, 2000, the legislature added a
mandatory sentence enhancement to certain offenses if a firearm
was used in the commission of the offense. 720 ILCS 5/33A-1
(West 2000) (the "15/20/25-to-life" provisions). Defendant
argued that his 45-year sentence for home invasion included an
unconstitutional 15-year enhancement for use of a firearm during
that offense. 720 ILCS 5/12-11(c) (West 2002). The State agreed
that the 15-year sentence enhancement was unconstitutional but
argued that defendant was sentenced under an entirely different
statutory provision: "[b]efore defendant was sentenced the
Illinois Supreme Court had struck down mandatory sentencing
enhancements as unconstitutional, so the assistant [S]tate's
[A]ttorney had a good reason not to request such an enhancement
and the judge had a good reason not to impose one. People v.
Moss, 206 Ill. 2d 503, 795 N.E.2d 208 (2003)."
A great deal has transpired since the briefs were filed
in this case. On October 6, 2005, the supreme court overruled
Moss. "After much reflection, we have concluded that cross-
comparison analysis has proved to be nothing but problematic and
unworkable, and that it needs to be abandoned." Sharpe, 216 Ill.
2d at 519, ___ N.E.2d at ___. That same day the supreme court
reversed a trial court that had found that section 12-11(a)(3),
the home-invasion statute, violated the proportionate-penalties
clause under the Moss cross-comparison analysis. Guevara, 216
- 13 -
Ill. 2d at 544-45, ___ N.E.2d at ___. "These arguments fail
because a defendant may not challenge a penalty under the
proportionate[-]penalties clause by comparing it with the penalty
for an offense with different elements." Guevara, 216 Ill. 2d at
545, ___ N.E.2d at ___.
The question now before us, which the parties were
unable to address because of these developments since the filing
of their briefs, is whether the mandatory 15-year enhancement was
unconstitutional when defendant was sentenced. Defendant could
not be sentenced under an unconstitutional statute. The fact
that the supreme court later changed its mind is irrelevant. Was
there a mandatory sentence enhancement in effect at the time
defendant was sentenced?
More broadly, is there a mandatory-sentence-enhancement
statute in effect even after Sharpe and Guevara? If a defendant
receives a mandatory sentence enhancement for armed robbery (720
ILCS 5/18-2 (West 2000)), specifically held to be unconstitu-
tional in Moss, it would appear that the sentence cannot stand,
despite the overruling of Moss. The supreme court has the power
to declare a statute unconstitutional, rendering the statute null
and void as though no such law had ever been passed. People v.
Zeisler, 125 Ill. 2d 42, 46, 531 N.E.2d 24, 26 (1988). Once that
has been done, the supreme court has no power to reenact the
statute. It is the legislature that must make that decision.
- 14 -
See Zeisler, 125 Ill. 2d at 48, 531 N.E.2d at 27.
In the case before us, the question is whether Moss
held the mandatory 15-year enhancement to the home-invasion
statute invalid or whether the supreme court in Moss expressly
limited its holding to the statutes before it, which did not
include the home-invasion statute. The Second District concluded
that Moss held the enhancement to the home-invasion statute
invalid. "We find no such limiting language in the supreme
court's opinion, and, in any event, we see no reason that the
rationale of Moss should not apply to the instant case." Dryden,
349 Ill. App. 3d at 122, 811 N.E.2d at 309. On December 1, 2005,
the supreme court directed the Second District to vacate its
judgment and reconsider in light of Sharpe. People v. Dryden,
No. 98795 (December 1, 2005) (nonprecedential supervisory order).
The supreme court did not disagree that Moss had held the sen-
tence enhancement invalid in home-invasion cases; the supreme
court held only that Moss was overruled.
Our court has held that the Moss court expressly
limited its decision to sentence enhancements applied to convic-
tions for (1) armed robbery, (2) aggravated kidnaping, and (3)
aggravated hijacking. Standley, 359 Ill. App. 3d at 1106-07, 835
N.E.2d at 954. Although those were the offenses involved in
Moss, the Moss decision seems to be a broad one, and I see no
reason to conclude it was limited to those offenses. Standley
- 15 -
also concluded that, even under the Moss test, the sentence
enhancement to home invasion was appropriate, but no other
decisions have agreed. "In sum, we have little difficulty
concluding that shooting someone with a firearm is more serious
than merely possessing a firearm, regardless of the circumstances
under which the firearm is possessed." Dryden, 349 Ill. App. 3d
at 124, 811 N.E.2d at 310.
In the unusual circumstances of this case, where the
Supreme Court of Illinois had entered a final order declaring a
mandatory sentence enhancement to be unconstitutional when
defendant was sentenced, I conclude that defendant could not be
sentenced to that mandatory enhancement, even though the supreme
court later overruled its decision. Moss was the law until
Sharpe was decided, more than a year after the April 9, 2004,
sentencing in this case.
I am also uncomfortable with the State's changing
positions on how the sentence may be supported. In the charging
instrument, the State asked for a mandatory sentence enhancement
under section 12-11(c). On appeal, the State abandoned that
argument, conceding that section 12-11(c) was unconstitutional
under Moss and arguing that defendant in fact was sentenced under
another provision. Now that Moss has been overruled, the State
(or more accurately, this court) takes a different position on
how defendant was sentenced. Even assuming there was some
- 16 -
question as to the extent of Moss, due process requires that
sentencing provisions not be so vague that persons of common
intelligence must necessarily guess at their meaning or applica-
tion. People v. Hickman, 163 Ill. 2d 250, 256, 644 N.E.2d 1147,
1150 (1994). The State should not be allowed to sustain a
sentence on the basis of events it had expressly denied occurred.
- 17 -