People v. Synowiecki

235 N.E.3d 752

2023 IL App (4th) 220834

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.James SYNOWIECKI, Defendant-Appellant.

NO. 4-22-0834

Appellate Court of Illinois, Fourth District.

Filed December 7, 2023

Appeal from the Circuit Court of Livingston County, No. 20CF228, Honorable Jennifer H. Bauknecht, Judge Presiding.

James E. Chadd, Santiago A. Durango, and Anne R. Brenner, of State Appellate Defender’s Office, of Ottawa, for appellant.

Michael P. Regnier, State’s Attorney, of Pontiac (Patrick Delfino, Thomas D. Arado, and Nicholas A. Atwood, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE DOHERTY delivered the judgment of the court, with opinion.

¶ 1 Defendant James Synowiecki was convicted of theft (720 ILCS 5/16-1(a)(1), (4) (West 2020)) and possession of a stolen firearm (id. § 24-3.8) and sentenced to five years in prison on each count, to be served concurrently. On appeal he argues (1) trial counsel provided ineffective assistance by failing to move to suppress inculpatory statements elicited by law enforcement in conversations initiated after counsel had been appointed, (2) the State failed to prove his theft conviction relating to the coin collection beyond a reasonable doubt, and (3) the trial court’s order of restitution should be vacated because it was based on insufficient evidence.

¶ 2 We affirm in part, reverse in part, and remand for further proceedings on the issue of restitution.

¶ 3 I. BACKGROUND

¶ 4 On Friday, September 4, 2020, defendant was charged by information with possession of methamphetamine (count I) (720 ILCS 646/60(a) (West 2020)), theft of a coin collection belonging to Edward Carstens (count II) (720 ILCS 5/16-1(a)(4) (West 2020)), possession of a stolen firearm (count III) (id. § 24-3.8), and theft of a Barbie doll collection belonging to Marilyn Weber (count IV) (id. § 164(a)(4)). A docket entry from the same day shows that, at defendant’s request, Livingston County Public Defender Scott Ripley was appointed to represent him "for [the] bond hearing only." A separate application for appointment of the public defender was also granted, and a written order appointing the public defender’s office to represent defendant was entered later on September 4. The order states that the appointment was made "having heard the motion of defendant for appointment of counsel."

¶ 5 Defendant posted bond and was released on Tuesday, September 8, 2020. The following day, the public defender filed a notice that representation of defendant was assigned to attorney William H. Bertrand.

¶ 6 A. Police Interview

¶ 7 Defendant first spoke to the police on the day of his arrest; however, no recording was made of that interrogation. On Friday, September 11, 2020, after he had been released on bond, defendant spoke with a Pontiac Police Officer concerning the theft of the shotgun. The record is unclear as to whether the police or defendant initiated the interview. At the outset of the interview, Pontiac Police Officer Markus Armstrong told defendant that he was not under arrest and that he was free to go at any time during the interview. Armstrong then read defendant his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), stopping after each statement and Waiting for defendant’s acknowledgement, which was given. After reading defendant his Miranda warnings, defendant then signed what the State contends is a written release and waiver. That document, however, is not included in the record. Defendant then proceeded to answer police questions; at no time during the interview did defendant request an attorney or exercise his right to remain silent, At the conclusion of the interview, defendant left the police station.

¶ 8 B. Trial

¶ 9 Defendant’s bench trial commenced in July 2021 and continued throughout the fall of that year. The following is a summary of the relevant testimony.

¶ 10 There hacLbeen a series of burglaries in Pontiac during the summer of 2020. Based on information received from witnesses, Pontiac Police Officer Markus Armstrong obtained a search warrant for defendant’s residence, which he executed in early September with Officer John Marion. Present at the residence were defendant; his girlfriend, Erin Roff; Rocky Daniels; and another individual. The police recovered several of the items listed in their search warrant, including a coin collection, various dolls, and ammunition belonging to Carstens. The coin collection and some ammunition were found in defendant’s basement, an area where Daniels lived. The dolls and other ammunition were located in a shed behind defendant’s home, reportedly used by Daniels.

¶ 11 Brenda Persico testified that, when she visited defendant’s house, he offered and she accepted some of the Barbie dolls. According to Persico, who was familiar with the contents of the shed behind defendant’s home, there was "more stuff in it than usual. Antiques and stuff like that." She said the shed was full of items and that defendant had told her he and Daniels had gotten the stuff "from a dumpster and they were just sort of going through it deciding what they wanted and didn’t want." Persico said she heard defendant and Daniels talking about coins but did not offer any details.

¶ 12 A shotgun was later recovered from Patrick Roff, the father of defendant’s girlfriend. Roff said that defendant had called him and asked him to come get the shotgun. According to Roff, defendant said "that someone had brought a shotgun to his house, and he didn’t want it there." Defendant further told Roff that "[h]e did not know who brought [the shotgun] at the time," and he asked Roff to "come and get it because he had [my] daughter there and a baby." Defendant said, "there’s people, you know, coming in and out of his house," and he did not "want anybody to be playing around with the gun." Roff went to defendant’s house the next day and retrieved the gun from Daniels, who brought the gun out of the house and delivered it to Roff. Roff took the shotgun home and eventually surrendered it to police.

¶ 13 Armstrong said he interviewed defendant at the Livingston County Law and Justice Center on September 4, 2020, but this interview was not recorded. He again interviewed defendant on September 11, 2020, at the police department; the interview was recorded. Armstrong acknowledged that at no time during the interview did defendant admit that he took the shotgun or coin collection.

¶ 14 The video of defendant’s September 11, 2020, police interview was admitted into evidence without objection and played for the trial court. During the interview, defendant said that Daniels had shown up at defendant’s house with the shotgun and ammunition and that defendant did not know where they had come from. Defendant said that Daniels claimed he found them in an abandoned garage. Out of concern for his daughter and girlfriend, who lived in the house, defendant asked her father to come and get the shotgun. Defendant said he was suspicious when Daniels showed up with the coin collection; he had confronted Daniels about it because defendant did not believe that this type of item could be found through "dumpster diving." He also confirmed that the coin collection was located in his basement where Daniels was living. The ammunition was found in defendant’s basement and in the shed.

¶ 15 Carstens confirmed that all of the items depicted in a photograph in evidence were items taken from his home. Carstens said he had started coin collecting after he retired in September 2001 and had spent somewhere around $50,000 on the collection. According to Carstens, he had a complete Indian Head penny collection, valued at approximately $15,000; Morgan and Peace dollars; Susan B. Anthony dollars; several complete statehood quarter collections and Jefferson Nickel collections; and 300 Silver Eagle bullion coins. Although he did not pay more than $750 for any of the Silver Eagle coins individually, he testified that the price of silver had since skyrocketed. He also described three gold coins, which he valued at about $9000. Carstens confirmed that the collection and other items were taken from his home without his permission.

¶ 16 C. Conviction and Sentence

¶ 17 Counts I and IV were dismissed by the State. However, defendant was convicted of theft (count II) and possession of a stolen firearm (count III) and was sentenced to five years’ imprisonment on each count, to run concurrently. He was also ordered to pay restitution to Carstens in the amount of $33,650. His motion to reconsider his sentence was denied.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 Defendant raises three issues following his conviction for theft: (1) ineffective assistance related to his counsel’s failure to move to suppress a police interview conducted without his counsel present, (2) insufficiency of the evidence relating to his theft conviction, and (3) insufficiency of the evidence supporting the trial court’s restitution order.

¶ 21 A. Ineffective Assistance of Counsel

¶ 22 Defendant initially argues his counsel was ineffective because he did not move to suppress the police interview video. Defendant contends that the video was inadmissible because police interrogated him without counsel present, despite counsel having previously been appointed by the trial court on September 4, 2020.

¶ 23 Claims of ineffective assistance of counsel are analyzed under the familiar framework established in Strickland v, Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Henderson, 2013 IL 114040, ¶ 11, 370 Ill. Dec. 804, 989 N.E.2d 192. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) defense counsel’s performance was deficient and (2) but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Id. "A defendant’s failure to...