People v. Lowery

2013 IL App (4th) 120514

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARQUIS L. LOWERY, Defendant-Appellant.

NO. 4-12-0514

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

FILED: November 21, 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

Circuit Court of

Macon County

No. 11CF1201

Honorable

Lisa Holder White,

Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.

Presiding Justice Steigmann and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: (1) The right to poll the jury is not a fundamental decision reserved solely for a defendant and may be waived by counsel.

(2) The merits of defendant's ineffective assistance of trial counsel claim were not considered because it would be better addressed in proceedings on a petition for postconviction relief.

(3) The six-year extended-term sentence was improper because it was entered on an offense other than the most serious felony of which defendant was convicted. The appellate court vacated this sentence and remanded with directions to modify the sentencing judgment to reflect a three-year prison sentence.

(4) The fines imposed by the circuit clerk were vacated and the cause remanded for imposition of the mandatory fines.

¶ 2 In September 2011, defendant filed a motion to substitute Judge Timothy Steadman as a matter of right (725 ILCS 5/114-5(a) (West 2010)). In October 2011, Judge Steadman granted defendant's motion for substitution. In December 2011, the parties appearedbefore Judge Lisa Holder White and announced they were ready for trial. The case was reassigned to Judge Steadman and defendant's jury trial commenced the same day. The following day, as the jury was deliberating, Judge Steadman read through the docket entries and discovered he had allowed the motion for substitution. With the consent of defense counsel and the State, the verdicts were then sealed and the case continued until further order.

¶ 3 During several status hearings (December 2011, January 2012, and February 2012) before Judge Holder White, defense counsel acknowledged she had not informed the trial court of the substitution. Defendant expressed his wish for a mistrial. Defense counsel did not think the law supported a mistrial and believed defendant waived his right to substitution by failing to bring the issue up himself before Judge Steadman. Counsel believed the court should open the verdicts. The State initially advocated for a new trial, but it later changed its position and suggested opening the verdicts. In March 2012, after hearing arguments from both parties and reviewing the audio recording of defendant's jury trial herself, Judge Holder White found defendant's participation in the trial before Judge Steadman was a waiver of his motion for substitution of judge and ordered the verdicts unsealed. Defendant was found guilty of unlawful possession of a controlled substance with a prior conviction (720 ILCS 570/402(a)(2)(A) (West 2010)) and unlawful possession of cannabis with a prior conviction (720 ILCS 550/4(c) (West 2010)).

¶ 4 In May 2012, the trial court sentenced defendant to concurrent prison terms of 8 years and 6 years respectively, in addition to various fines and fees. The Macon County circuit clerk imposed additional assessments not ordered by the trial court.

¶ 5 Defendant appeals, arguing (1) he was deprived of his fundamental right to pollthe jury; (2) he received ineffective assistance of counsel where defense counsel abandoned her role as defendant's advocate; (3) his six-year extended-term sentence for unlawful possession of cannabis must be vacated; and (4) this court should vacate the fines improperly assessed by the circuit clerk. We affirm as modified and remand with directions.

¶ 6 I. BACKGROUND

¶ 7 In August 2011, the State filed a four-count information against defendant, charging him with (1) unlawful possession of a controlled substance with intent to deliver (15 grams or more, but less than 100 grams of cocaine), a Class X felony (720 ILCS 570/401(a)(2)(A) (West 2010)) (count I); (2) unlawful possession of a controlled substance with a prior conviction (15 grams or more, but less than 100 grams of cocaine), a Class 1 felony (720 ILCS 570/402(a)(2)(A) (West 2010)) (count II); (3) unlawful possession of cannabis with intent to deliver within 1,000 feet of school property, a Class 3 felony (720 ILCS 550/5.2(c) (West 2010)) (count III); and (4) unlawful possession of cannabis (more than 10 grams but not more than 30 grams) with a prior conviction, a Class 4 felony (720 ILCS 550/4(c) (West 2010)) (count IV).

¶ 8 In September 2011, defendant waived a preliminary hearing and the matter was scheduled for a pretrial hearing before Judge Steadman in October 2011. That same month, defense counsel filed a motion to substitute judge, requesting "as a matter of right, to substitute the Honorable Timothy Steadman, who was assigned to this cause on September 7, 2011." (725 ILCS 5/114-5(a) (West 2010)). At the October 2011 pretrial hearing, Judge Steadman allowed defendant's motion for substitution of judge over the State's objection.

¶ 9 On December 1, 2011, defendant, defense counsel, and a new prosecutor (whowas not present at the October 2011 hearing) appeared before Judge Holder White and announced they were ready for trial. Judge Holder White announced the case would be assigned to Judge Steadman and defense counsel replied, "okay."

¶ 10 Later that day, the parties appeared before Judge Steadman and defendant's jury trial commenced. The next day, at the close of evidence, the jury began deliberations. While the jury was deliberating, Judge Steadman reviewed the docket entries associated with the case and discovered he had allowed the motion for substitution of judge as a matter of right on October 3, 2011. Judge Steadman suggested to counsel they seal the verdicts and continue the case until further order to allow them some time to determine how to proceed . Judge Steadman asked the State and defense counsel whether they had any objections to sealing the verdict and they responded they did not. Less than two hours after deliberations began, the bailiff instructed the court the jury had reached a verdict. The jury returned to the courtroom and Judge Steadman announced he was not going to read the verdicts at that time and discharged the jury. With the consent of defense counsel and the State, the verdict forms and instructions were sealed in an envelope and placed in the court file and the case continued until further order.

¶ 11 In December 2011, Judge Holder White convened a status hearing in which defense counsel and the prosecutor who tried the case were present but defendant was not. Judge Holder White asked each party for its position. The State announced its position was the case would need to be retried, whereas defense counsel believed the court should open the verdicts. Because defendant was not present, Judge Holder White continued the hearing so defendant could be present and addressed by the court.

¶ 12 In January 2012, Judge Holder White reconvened the matter. Defendant, defensecounsel, and the prosecutor were present. Defense counsel informed the court defendant was aware she filed the motion for substitution of judge. Counsel acknowledged she had not called the substitution to Judge Holder White's attention when the judge assigned the case to Judge Steadman for trial, nor did she inform Judge Steadman prior to the commencement of the jury trial. The prosecutor also admitted he had not called the substitution to the court's attention.

¶ 13 The prosecutor announced the State was still taking the position a new trial was required. The trial court noted there seemed to be a distinction in the case law between substitution for cause and substitution as a matter or right. Defense counsel agreed and opined as follows:

"I am adopting the position of the defendant [who would like a new trial]. Do I believe that's the law? No, I don't. But that is his position. And, I guess, the Court will have to make a decision as to what the law is. It is an agreement. [Defendant] wants a new trial and the State wants to give him a new trial.

I don't agree that that's the law, but I have to bow to my defendant's position. Where there is no clear[-]cut answer here where neither one of us have a case that's directly on point and all we can do is argue the—the two sides. I—I think it's going to be a problem no matter what. The whole thing makes me sick. But [defendant] has made it very clear that he believes he should get a new trial because he didn't want to go in front of Judge Steadman and here we are."

The court then asked the prosecutor whether he believed the law required a new trial. The prosecutor responded he had not researched whether a difference between substitution for cause and substitution as a matter of right was supported by the case law. The court asked defendant whether he wanted a new trial and he answered affirmatively. The court gave the parties 14 days to file written arguments in support of their decisions.

¶ 14 In February 2012, Judge Holder White reconvened and asked the parties to state their positions. Defense counsel responded, "I believe the law says that he waived argument and that he received a fair trial. There was never any question about that and that, therefore, the verdict should be opened. That's what I believe the law requires. I know what he says he wants, but I don't think that's—." The State announced it had changed its position to some extent, opining "I don't think that the defendant has a right to ask for—or ask that a mistrial be held at this point owing to the fact that, for the most part, with all deference of counsel, I think the defendant in this case invited that error, and can't use that to then backstop that error." The State opined Judge Steadman acted properly during the trial...