People v. Franklin

2013 IL App (1st) 103013

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD FRANKLIN, Defendant-Appellant.

No. 1-10-3013

Appellate Court of Illinois FIFTH DIVISION

September 6, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County, Illinois

No.2009 CR 11857

Honorable

Victoria Stewart and

Honorable

Willaim J. Kunkle

Presiding

JUSTICE BILL TAYLOR delivered the judgment of the court.

Justices McBride and Palmer concurred in the judgment

ORDER

¶ 1 Held: (1) After defendant's request for new counsel, the trial court's allowing trial counsel to argue a posttrial motion he had filed on defendant's behalf and appointing a public defender, first as standby and then for sentencing purposes, violated defendant's sixth amendment right to counsel of his choice; and (2) the court properly imposed the term of mandatory supervised release for Class X sentencing pursuant to the statute for enhanced sentencing of repeat felony offenders; also defendant's mittimus will be reduced to reflect days spent in presentencingcustody.

¶ 2 BACKGROUND

¶ 3 Following a bench trial, defendant Richard Franklin was found guilty of four counts of unlawful use of a weapon by a felon. He was sentenced as a Class X felon to 10 years in the Illinois Department of Corrections.

¶ 4 The evidence at trial established that on June 2, 2009, several officers executed a search warrant at 520 West 104th Street in Chicago. The complaint for the search warrant and the search warrant itself were issued on June 2, 2009, and listed Michael Franklin and the premises of 520 West 104th Street as the person and place to be searched. Michael Franklin is defendant's brother.

¶ 5 Officer Foertsch, present when the search warrant was executed, testified that when the police entered, several people scattered. Eventually, everyone was gathered and placed in the dining room to secure the premises. The officers then conducted a search of the premises. Foertsch went upstairs and observed defendant lying on the floor being handcuffed. Foertsch testified there were three or four bedrooms on the second floor and after entering one he observed a plate of food and narcotics in plain view.

¶ 6 A K-9 team then searched the all the bedrooms and Foertsch did a systematic search of the bedroom he had entered. He found two loaded 9-millimeter handguns under blankets and 9-millimeter ammunition under the bed. Further search of the bedroom revealed several documents addressed to defendant at 520 West 104th Street in Chicago.

¶ 7 Officer Kasper testified he was also part of the team that executed the search warrant.

Kasper was informed that two handguns were recovered in one of the bedrooms on the second floor as well as documents containing defendant's name and the address of the residence. Kasper testified he found defendant in the dining room with the other individuals. He asked to speak to defendant in the kitchen along with Officer Mohammad. Kasper then advised defendant of his Miranda rights and asked defendant about the guns. Defendant admitted the guns were his; at which time he was taken into custody.

¶ 8 Thereafter, the State tendered a certified copy of a prior conviction for defendant, which was entered into evidence.

¶ 9 After the State rested, defendant called Ida Johnson. Johnson testified she was a resident of 520 West 104th Street in June of 2009, and lived there with her five children. She also testified that for at least five days prior to defendant's arrest he did not stay at the residence because he was staying at his sister's house. She stated defendant arrived about 15 to 20 minutes prior to the execution of the search warrant. She said defendant never left the dining room and she never heard him receive his Miranda rights or make a comment about the guns. On cross-examination, Johnson admitted that defendant resided at 520 West 104th Street and received mail there. Johnson also testified that no one except for Barbara Franklin, the owner of the house, had their own bedroom and that she herself slept on the couch.

¶ 10 Sakita Burks, a family friend, testified she was in an upstairs bedroom at the time of the execution of the search warrant. As police escorted her to the dining room she did not see defendant on the second floor but found him sitting in a chair in the dining room. She did not see officers take defendant into the kitchen.

¶ 11 Anita Franklin, defendant's sister, testified that defendant stayed at her house every night from May 29 until he was arrested. She admitted she could not account for his whereabouts between 6:30 a.m. and 8:30 p.m.

¶ 12 Barbara Franklin, defendant's mother, testified, she owned the residence at 520 West 104th Street. She testified defendant lived at the residence and received mail there. She stated that for the five days prior to defendant's arrest he was staying at his sister's house. She testified that when she was brought to the dining room and told to lie on the floor, defendant was in the dining room and she never saw him leave the dining room. She testified she did not hear officers give defendant his Miranda rights or hear defendant say the guns were his.

¶ 13 Defendant, testifying on his own behalf, stated that on June 2, 2009, he was at 520 West 104th Street having arrived about 30 minutes before the police arrived. He said he had been staying at his sister's house for the five-day period before his arrest. He testified he never went upstairs, never was taken to the kitchen, never was read his Miranda rights, and never told the police the guns were his. On cross-examination, defendant testified he had given 520 West 104th Street to his parole officer as his place of residence. He also stated he lived at his mother's and his sister's homes.

¶ 14 Michael Franklin was called as a witness and was not questioned once he asserted his fifth amendment right to remain silent. Defense then rested.

¶ 15 After hearing closing arguments, the trial court found defendant guilty of all charges. The court specifically determined that defendant's principal place of abode was 520 West 104th Street. The court found defendant possessed the weapons within the meaning of the statute andwas a convicted felon.

¶ 16 On December 29, 2009, defendant's retained trial counsel filed a motion for new trial. On January 22, 2010, defendant filed a pro se motion to vacate the judgment and a pro se motion for a new trial. Defendant alleged he was not proven guilty beyond a reasonable doubt and trial counsel was ineffective for not moving to quash the arrest or suppress evidence.

¶ 17 On January 28, 2010, at a hearing at which trial counsel waived defendant's appearance, the trial court informed counsel of the pro se motions filed by defendant. Trial counsel indicated he had never received a copy and the motions were withdrawn at trial counsel's request.

¶ 18 On February 14, 2010, trial counsel filed an amended motion for a new trial. On February 17, 2010, at a hearing on the motion, trial counsel argued that the trial court erred in rulings on the admission of evidence and that the State failed to prove defendant guilty beyond a reasonable doubt. Furthermore, trial counsel informed the court that defendant did not want trial counsel to represent him. Defendant then chose to be represented by a public defender. The trial court then appointed a public defender, as standby counsel for the motion on a new trial and then as counsel for sentencing. Trial counsel then argued his motion for a new trial, the State argued in response and the trial court denied the motion for a new trial.

¶ 19 Trial counsel then withdrew. The trial court indicated defendant's previously withdrawn pro se motion was untimely and the court continued the matter for sentencing.

¶ 20 On May 27, 2010, the case came before the trial court for sentencing. The court noted that defendant had five felony convictions which were greater than Class 2. Based on this background, the trial court found defendant was a Class X felon and sentenced him to 10 years inthe Illinois Department of Corrections. Defendant asked to present witnesses in mitigation. The trial court noted that she had already sentenced defendant, and she would re-open sentencing to allow defendant time to gather witnesses and any evidence that he wished to present.

¶ 21 On September 17, 2010, the case was before another judge for sentencing. Defendant presented three witnesses in mitigation and also spoke on his own behalf. After hearing arguments in aggravation and mitigation, the court sentenced defendant to 10 years imprisonment and three years mandatory supervised release.

¶ 22 ANALYSIS

¶ 23 On appeal, defendant contends the trial court erred in the following ways: (1) denying his sixth amendment right to counsel by permitting his retained trial counsel to argue posttrial motions when defendant had previously indicated that he no longer wished to be represented by that attorney, (2) failing to conduct a hearing under People v. Krankel, 102 Ill. 2d 181 (1984), on defendant's pro se posttrial motion alleging ineffective assistance of counsel, and (3) imposing a three-year mandatory release term instead of the two-year mandatory supervised release term imposed for Class 2 felonies because he was convicted of a Class 2 felony and only sentenced as a Class X offender because of his criminal history. He also contends his mittimus should be corrected to reflect accurately presentencing credit. We consider these contentions in turn.

¶ 24 Initially, we respond to the issue of timeliness of the filing of defendant's pro se motion of ineffective assistance of counsel. During a hearing on defendant's motion for a new trial, the trial court stated that his pro se motion of ineffective assistance of counsel was untimely. Our supreme court said in Patrick: "It is true that section 116-1(b) says a...