People v. Burnett ( 2008 )

FIRST DIVISION
October 20, 2008
No. 1-06-3288
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
JONATHAN BURNETT, ) Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Jonathan Burnett raises several constitutional issues
concerning his sentence for residential burglary. We concentrate
primarily on his motion to reconsider that sentence.
The trial court sentenced Jonathan Burnett to ten years in
prison. His only issues concern the sentence and his motion to
reconsider the sentence. He contends: the court should have
ordered medical examinations before sentencing; the court denied
Burnett his constitutional rights by deciding the motion for
reconsideration of the sentence following a hearing that neither
Burnett nor his attorney attended; and his counsel provided
ineffective assistance both at sentencing and on the motion to
reconsider the sentence. We affirm.
BACKGROUND
On November 1, 2005, a man crawled in a window of a vacant
house on the south side of Chicago. A few minutes later he
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lowered a vanity sink from the window. When he dropped the sink
to the ground it shattered. The man walked away from the house.
Police detained Burnett a few minutes later, two blocks away, and
arrested him after an eyewitness identified him as the person who
entered the vacant house. The arresting officer found a wrench,
pliers, and a screwdriver in Burnett's pockets. The trial court
found Burnett guilty of burglary and possession of burglary
tools.
Burnett had three prior burglary convictions, one
residential burglary conviction, one conviction for retail theft
and one conviction for possession of a controlled substance. The
prior crimes required the court to sentence Burnett as a Class X
offender. 730 ILCS 5/5-5-3(c)(8); 720 ILCS 5/19-1(b) (West
2004). The sentencing statute restricted the available sentence
for burglary to 6 to 30 years in prison. 730 ILCS 5/5-8-1(d)(3)
(West 2004).
The presentence investigator found that Burnett had
longstanding addictions to heroin and cocaine. Burnett had taken
cocaine prior to the offense at issue. When he was about 18 he
experimented with phencyclidine (PCP). The experiment, together
with an altercation with his father, resulted in Burnett's
hospitalization for his mental health. He suffered from a
learning disability, but he had "excellent mechanical and
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artistic skills." He held no steady job. At the time of the
investigation, Burnett complained of chest pains and a pinched
nerve.
At the sentencing hearing, the prosecutor pointed out
Burnett's drug history and suggested treatment for Burnett in
prison. Defense counsel requested a minimal sentence, arguing
that Burnett had burglarized a vacant house, and he had strong
family support and no history of violent crimes. Burnett himself
added that he had joined a drug treatment program. The court
sentenced Burnett to concurrent terms of ten years for burglary
and three years for possession of burglary tools, with a
recommendation for drug treatment in prison.
Burnett, through counsel, moved to reconsider the sentence.
In the motion defense counsel wrote:
"3. In light of the evidence presented to the
Court, the sentence imposed in this case is excessive.
4. In sentencing the Defendant, the Court failed
to follow Article I, Section 2 of the Illinois
Constitution, which states as follows: 'All penalties
shall be determined both according to the seriousness
of the offense and with the objective of restoring the
offender to useful citizenship.'
5. Further, the Court failed to consider the
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following factors in mitigation within 730 ILCS 5/5-5-
3.1: [sic]
6. The sentence imposed is not in keeping with
alternatives available to the Court to assist the
Defendant in his rehabilitation."
The court originally scheduled the motion for hearing on
September 20, 2006. The court granted defense counsel a
continuance, resetting the motion for hearing on September 27,
2006. Burnett remained in prison during the proceeding. His
attorney failed to appear on September 27. The court did not
inquire on the record into the reasons for the absence of Burnett
and his attorney. The court denied the motion to reconsider the
sentence. Burnett timely appealed.
DECISION
I. Sentencing
A. Medical examinations
Burnett contends that in light of his physical problems,
his learning disability, his drug addiction, and his history of
mental health treatment, the trial court abused its discretion in
failing to order physical and mental examinations pursuant to
sections 5-3-2(b) (730 ILCS 5/5-3-2(b) (West 2006)) and 5-3-3
(730 ILCS 5/5-3-3 (West 2006)) of the Unified Code of Corrections
(Code).
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Section 5-3-2(b) of the Code provides, in relevant part,
that a presentence investigation
"shall include a physical and mental
examination of the defendant when so ordered
by the court. If the court determines that
such an examination should be made, it shall
issue an order that the defendant submit to
examination at such time and place as
designated by the court and that such
examination be conducted by a physician,
psychologist or psychiatrist designated by
the court. *** " (Emphasis added.) 730 ILCS
5/5-3-2(b) (West 2006).
Section 5-3-3 of the Code provides, in relevant part, that:
"(a) In felony cases where the court is of
the opinion that imprisonment may be
appropriate but desires more information as a
basis for determining the sentence than has
been or may be provided by a presentence
report under Section 5-3-1, the court may
commit for a period not exceeding 60 days a
convicted person to the custody of the court
clinic or the Department of Corrections if
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the Department has certified to the court
that it can examine such persons under this
Section." 730 ILCS 5/5-3-3 (West 2006).
Section 5-3-3 of the Code allows the trial court to conduct
a study if the court "desires" more information than has been
provided by the presentence investigation (PSI) report. 730 ILCS
5/5-3-3 (West 2006). Accordingly, we review a trial court’s
failure to order an examination or study pursuant to section 5-3-
2(b) and 5-3-3 of the Code for an abuse of discretion. People v.
Burton, 184 Ill. 2d 1, 29, 703 N.E.2d 49, 62 (1998); People v.
Stewart, 101 Ill. 2d 470, 489, 463 N.E.2d 677 (1984).
Burnett's drug experiments led to hospitalization in a
mental health facility, but the incident occurred more than 20
years before the burglary. The PSI report adequately recounted
Burnett’s history of drug abuse and his present physical
condition. The minor physical problems do not demonstrate any
special need for further investigation. Nothing in the record
indicates that complete medical and physical examinations would
have uncovered any facts not already shown in the PSI report. We
will not vacate a sentence based on speculation of what a medical
examination may have indicated. See Stewart, 101 Ill. 2d at 490.
Although a trial court may order a section 5-3-3 study if it
"desires" more information than has been provided by the PSI
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report, we see nothing in the facts before us that should have
compelled the court to order such a study in this case. We find
the trial court did not abuse its discretion by deciding not to
order a mental examination and study pursuant to sections 5-3-
2(b) and 5-3-3 of the Code.
B. Ineffective assistance at sentencing
Burnett contends counsel provided ineffective assistance at
sentencing because counsel did not request medical examinations,
and he failed to argue Burnett's learning disability and his drug
dependency in mitigation.
A defendant who seeks relief from a judgment due to
ineffective assistance of counsel must convince this court that,
but for counsel's incompetence, the defendant stood a reasonable
chance of achieving a better result. People v. Ward, 371 Ill.
App. 3d 382, 434, 862 N.E.2d 1102, 1150 (2007). The record on
appeal includes no evidence that a complete physical and
psychological examination would have revealed any facts that
should have inclined the court to impose a lesser sentence. In
this case, as in Burton, 184 Ill. 2d at 30, defendant "can only
speculate that an additional evaluation would have produced
significant new evidence concerning his mental health, rather
than cumulative evidence."
The PSI report and arguments at sentencing brought to the
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court's attention all of the factors Burnett now claims his
attorney should have raised. Burnett has not shown a reasonable
probability that further emphasis on these factors would have
changed the sentence. We find Burnett has not met his burden of
proving ineffective assistance of counsel at sentencing.
II. Motion to Reconsider Sentence
A. Ineffective assistance with written motion
Burnett contends counsel provided ineffective assistance
when he filed an incomplete written motion to reconsider the
sentence. Counsel prepared only a perfunctory, boilerplate
motion, without specifying sentencing alternatives or the
mitigating factors that would have persuaded the court to impose
a lesser sentence. Burnett suggests counsel should have
identified as mitigating factors his psychological problems and
the fact that he neither caused nor contemplated causing any
physical harm. At the sentencing hearing defense counsel
mentioned only the lack of harm. The prosecutor spoke of
Burnett's drug addiction; the PSI report indicated Burnett's
minor history of psychological treatment partly related to drug
abuse. The trial court apparently took these factors into
account in sentencing Burnett to a term near the minimum
available, despite his substantial criminal history and his
failure to respond to previous efforts at rehabilitation. Ten
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years is hardly a draconian sentence under the circumstances. We
see no reasonable probability that the suggested additions to the
written motion would have changed the trial court's judgment. See
People v. Brasseaux, 254 Ill. App. 3d 283, 287-89, 660 N.E.2d
1321, 1323-25 (1996).
The written motion serves to preserve sentencing issues for
appellate review. People v. Reed, 177 Ill. 2d 389, 395, 686
N.E.2d 584, 586 (1997). While Burnett complains that the motion
here lacks sufficient detail to preserve meritorious issues, he
does not specify any new or additional issues he would have
raised on this appeal had counsel better prepared the motion.
Burnett has not shown inadequate preparation of the written
motion had any prejudicial effect. We find the written motion
did not show ineffective assistance of counsel.
B. Absence of defendant and counsel from hearing
1. Due process and the right to appear
The trial court decided the motion to reconsider sentence in
the absence of Burnett and his counsel. Burnett contends that by
so proceeding the court violated his right to due process under
both the federal and state constitutions (U.S. Const., amend.
XIV; Ill. Const. 1970, art. I, §2), and his right to appear in
person and by counsel, expressly protected by the state
constitution (Ill. Const. 1970, art. I, §8). Every defendant in
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a criminal proceeding
"has a due process right ' "to be present in his own
person whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to
defend against the charge." ' [Citation.] Although the
Court has emphasized that this privilege of presence is
not guaranteed 'when presence would be useless, or the
benefit but a shadow' (citation), due process clearly
requires that a defendant be allowed to be present 'to
the extent that a fair and just hearing would be
thwarted by his absence' (citation). [Citation.]
Therefore, a defendant is guaranteed the right to be
present at any stage of the criminal proceeding that is
critical to its outcome if his presence would
contribute to the fairness of the procedure." People
v. Lofton, 194 Ill. 2d 40, 66-67, 740 N.E.2d 782, 797
(2000).
Our supreme court has not addressed the issue of whether the
motion to reconsider the sentence counts as a critical stage of
criminal proceedings, but several appellate courts have.
The case that opens the door to our critical stage analysis
is Reed, 177 Ill. 2d at 389, where our supreme court construed a
1993 amendment to section 5-8-1 of the Unified Code of
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Corrections (730 ILCS 5/5-8-1(c) (West 1994)). The court held
defendants forfeit appellate review of all sentencing issues not
raised in post-sentencing motions in the trial court. Reed, 177
Ill. 2d at 393. Because the motion to reconsider sentence now
involves the defendant's substantial right to preserve sentencing
issues for appeal, the motion to reconsider sentence forms a
critical stage of the criminal proceedings, where the defendant
has a right to counsel. Brasseaux, 254 Ill. App. 3d at 288;
People v. Williams, 358 Ill. App. 3d 1098, 1105, 833 N.E.2d 10,
16 (2005); People v. Owens, No. 3-06-0740 (Aug. 28, 2008), slip
op. at 2.
The trial court ruled at a critical stage of criminal
proceedings despite the absence of Burnett and his counsel, with
no apparent attempt to learn the reasons for their absence. We
must now decide whether their absence requires reversal. We have
searched for a principled path to the right result.
Illinois Supreme Court cases appear to fall in two separate
lines of analysis for deciding whether this court must reverse a
judgment due to an alleged violation of the defendant's right to
appear in person and by counsel at all critical stages of
criminal proceedings. None involves a motion to reconsider
sentence.
In People v. Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994),
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the trial court had responded ex parte to a question from the
jury. Our supreme court held:
"Because an ex parte communication between a judge and
a jury deprives a defendant of his constitutional
rights to be present at and to participate for his
protection in a critical stage of trial, the burden is
on the State to prove beyond a reasonable doubt that
the error was harmless." Childs, 159 Ill. 2d at 228.
Following the reasoning of Childs, some courts have
concluded that a trial court that conducts a critical stage of
criminal proceedings in the absence of the defendant or his
counsel, when the defendant has not waived the right to appear,
has violated that defendant's constitutional rights. Once the
defendant has shown such a violation, the burden shifts to the
prosecution to prove beyond a reasonable doubt that the violation
caused no harm. Our supreme court reaffirmed Childs in People v.
Kliner, 185 Ill. 2d 81, 162, 705 N.E.2d 850, 890-91 (1998), which
also involved an ex parte communication between a judge and a
jury.
On the other hand, in People v. Bean, 137 Ill. 2d 65, 560
N.E.2d 258 (1990), our supreme court held that the right of an
accused to appear in person at critical stages of criminal
proceedings
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"is not itself a substantial right under the Illinois
Constitution. [Citation.] Instead, it is a lesser right
the observance of which is a means to securing the
substantial rights of a defendant. Thus a defendant is
not denied a constitutional right every time he is not
present during his trial, but only when his absence
results in a denial of an underlying substantial right,
in other words, a constitutional right ***. *** Some of
these substantial rights are the right to confront
witnesses, the right to present a defense, and the
right to an impartial jury." Bean, 137 Ill. 2d at 80-
81.
The court held the trial court did not violate any of the
defendant's constitutional rights by hearing part of the voir
dire in camera in defendant's absence. Bean, 137 Ill. 2d at 81.
Our supreme court affirmed the vitality of the Bean analysis
in People v. Lindsey, 201 Ill. 2d 45, 56, 772 N.E.2d 1268, 1276
(2002). In that case the court found that the defendant's
appearance by closed-circuit television for his arraignment did
not violate his constitutional rights:
"[E]ven where a defendant has the general right to
be present because the proceeding is a 'critical'
stage, a defendant's absence is not a per se
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constitutional violation. Rather, a defendant's
absence from such a proceeding will violate his
constitutional rights only if the record demonstrates
that defendant's absence caused the proceeding to be
unfair or if his absence resulted in a denial of an
underlying substantial right." Lindsey, 201 Ill. 2d at
57.
Thus, under Bean and Lindsey, a trial court that rules
against a defendant in the absence of that defendant or his
counsel, at a critical stage of the proceedings, may not have
violated the defendant's constitutional rights, even if the
defendant has not waived his right to appear. To show a
violation of his constitutional rights, the defendant must meet
his burden of proving that his absence resulted in unfair
proceedings that denied him substantial rights. That is, the
defendant must show that his presence or his counsel's presence
at the critical stage would have benefitted him. Lindsey, 201
Ill. 2d at 57-58.
The appellate court considered the defendant's
constitutional right to appear for the motion to reconsider
sentence in two cases that arose after the 1993 amendment to
section 5-8-1. In Brasseaux, 254 Ill. App. 3d at 286, the
defendant filed a document titled "Motion to Reconsider
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Sentence." Defense counsel appeared at the hearing and made no
effort to argue in favor of the motion. The appellate court
reversed the denial of the motion to reconsider because defense
counsel was ineffective. The defendant also contended that the
trial court erred by hearing the motion in defendant's absence.
While noting that the contention need not be decided, the court
proceeded to discuss the issue:
"[I]f a motion to reconsider sentence alleges facts
outside of the record or raises issues which may not be
resolved without an evidentiary hearing, the
defendant's presence should be required. [Citation.]
If, however, a motion to reconsider sentence does not
allege facts outside of the record and does not raise
issues which may not be resolved without an evidentiary
hearing, his presence should not be required."
Brasseaux, 254 Ill. App. 3d at 292.
A situation similar to that in Brasseaux arose in People v.
Lambert, 364 Ill. App. 3d 488, 847 N.E.2d 136 (2006), where the
trial judge heard a motion to reconsider a sentence without
bringing the defendant to court. The court cited Childs for the
proposition that the defendant had a constitutional right to
appear at the hearing, and that the prosecution bore the burden
of proving beyond a reasonable doubt that the constitutional
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error caused no harm. Lambert, 364 Ill. App. 3d at 491. Because
the prosecution met its burden of proving the constitutional
error harmless beyond a reasonable doubt, the court affirmed
denial of the motion to reconsider the sentence. The court did
not mention Lindsey or Bean.
If we were to follow the Bean, Lindsey, and Brasseaux line
of reasoning, we would find Burnett has not shown a violation of
his constitutional rights. The motion raised no new factual
allegations. Burnett points to his drug addiction, his learning
disability, and the lack of any threat of violence as grounds for
reducing his sentence. The PSI report and the arguments at
sentencing had brought these factors to the trial court's
attention. The court apparently considered these factors when it
sentenced defendant to a term at the lower end of the available
range. Defendant does not now claim he would have presented
additional evidence at the motion to reconsider sentence, nor
does he explain what other steps he would have taken to better
protect his rights had he appeared at the proceeding. No
evidentiary hearing was required. By hearing the motion in the
absence of Burnett and his counsel, the trial court in these
circumstances did not violate Burnett's federal or state
constitutional rights.
Under Childs and Lambert, on the other hand, the trial court
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violated Burnett's constitutional right to appear at a critical
stage when the court decided the motion to reconsider sentence in
the absence of Burnett and his attorney. It is a critical stage
because legal rights on appeal -- the right to challenge the
sentence -- can be lost or limited. See Mempa v. Rhay, 389 U.S.
128, 134-36, 19 L. Ed. 2d 336, 340-41, 88 S. Ct. 254, 257 (1967).
The burden then shifts to the prosecution to establish, beyond a
reasonable doubt, that the error caused no harm.
In Lambert the court explained its holding that the
prosecution met its burden of proving the constitutional error
harmless:
"[D]efendant has not attempted to show how his
presence at the proceeding would have improved his
chances of persuading the trial court that his motion
was meritorious. *** [The motion] merely asked the
court to reevaluate the evidence in aggravation and
mitigation and to consider various legal arguments.
The trial court evidently believed that it had
sufficient information to rule on the motion without
further input from either side, and defendant does not
challenge this conclusion. Defendant does not claim
that he would have adduced evidence at the proceeding."
Lambert, 364 Ill. App. 3d at 492.
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In his motion to reconsider, Burnett did not rely on any new
facts, and nothing in the record demonstrates that he could have
proved other facts that might have inclined the court to reduce
his sentence to a level even closer to the minimum the law
allows. As was true in Lambert, if Burnett had made the
arguments raised on appeal in the trial court, he simply would
have asked the trial court to reevaluate the evidence in
aggravation and mitigation and to reconsider various legal
arguments already raised at sentencing. Nothing more. Nothing
new. If Childs and Lambert present the proper analysis, the
prosecution has established, beyond a reasonable doubt, that the
constitutional error here caused defendant no harm. Under either
line of precedent, we end up in the same place. We find that
defendant has not shown constitutional grounds for reversal of
the sentence.
2. Ineffective assistance
Finally, Burnett claims counsel provided ineffective
assistance by failing to appear at the hearing on the motion to
reconsider the sentence. To show grounds for reversal, Burnett
must show that because counsel failed to appear, Burnett
forfeited some significant right for his appeal from the
sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 483, 145 L. Ed.
2d 985, 998-99, 120 S. Ct. 1029, 1038 (2000); People v. Edwards,
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197 Ill. 2d 239, 251-52, 757 N.E.2d 442, 449-50 (2001). We see
no such forfeiture.
A question that arises but need not be decided concerns just
what it is a defense lawyer can do when he or she appears at the
hearing on the motion to reconsider. Lambert, 364 Ill. App. 3d
at 494, holds counsel has no right to oral argument on the
motion. The proposition that the defense lawyer must observe the
critical stage proceedings in silence if the trial court so
decrees is troublesome. But the question is not raised in this
case and we see no need to comment on it further.
At the least, defense counsel preserved Burnett's right to
appeal from his sentence by filing the motion to reconsider.
Burnett does not claim he was deprived of his right to consult
with his lawyer concerning the motion to reconsider. See Owens,
No. 3-06-0740, slip op. at 2. In sum, Burnett makes no showing
that his lawyer's failure to appear at the hearing or that his
own absence from it caused him any harm.
We find nothing in this record to support Burnett's claims
that he was denied effective assistance of counsel. Our holding
in this case, however, should not be taken as approval of the
procedure the trial court followed when it denied the motion to
reconsider in the absence of both defendant and his lawyer.
For the reasons stated above, no matter which line of
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Illinois Supreme Court cases we follow, we find the trial court's
sentence and ruling on the motion to reconsider sentence must be
affirmed.
Affirmed.
R. GORDON, P.J., and GARCIA, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please use THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
Plaintiff-Appellee,
Complete v.
TITLE
of Case JONATHAN BURNETT,
Defendant-Appellant.
Docket Nos. No. 1-06-3288
COURT Appellate Court of Illinois
First District, 1st Division
Opinion
Filed October 20, 2008
(Give month, day and year)
JUSTICES JUSTICE WOLFSON delivered the opinion of the court:
R. GORDON, P.J., and GARCIA, J., concur.
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding. The Hon. Joseph M. Claps, Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of include attorneys of counsel. Indicate the word NONE if
Chicago. not represented.
For APPELLEES, For Appellant, Michael J. Pelletier, Deputy Defender,
Smith and Smith, and Shawn O'Toole, Assistant Appellate Defender,
of Chicago Office of the State Appellate Defender, of Chicago.
For Appellee, Richard A. Devine, State's Attorney
Joseph Brown, of Cook County, of Chicago. (James E. Fitzgerald,
of counsel). Michele Grimaldi Stein and Karisa F. Flores, of Counsel).
Also add attor-
neys for third-
party appellants
and/or appellees.
(USE REVERSE SIDE IF NEEDED)
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