People v. Owens ( 2008 )

Filed 12/19/08 NO. 4-07-0838
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
DIYEZ RAMON OWENS, ) No. 06CF1234
Defendant-Appellant. )
) Honorable
) Scott Drazewski,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
Following a May 2007 trial, a jury convicted defendant,
Diyez Ramon Owens, of two counts of armed robbery (720 ILCS 5/18-
2(a) (West 2004)) and two counts of aggravated robbery (720 ILCS
5/18-5(a) (West 2004)). In September 2007, the trial court
sentenced defendant to concurrent 10-year prison terms on each
armed-robbery count.
Defendant appeals, arguing that (1) the State failed to
prove him guilty beyond a reasonable doubt of armed robbery and
(2) he was denied effective assistance of posttrial counsel. We
disagree and affirm.
I. BACKGROUND
In December 2006, the State charged defendant with
armed robbery (720 ILCS 5/18-2(a) (West 2004)) and aggravated
robbery (720 ILCS 5/18-5(a) (West 2004)). In January 2007, the
grand jury charged defendant with an additional count of (1)
armed robbery (720 ILCS 5/18-2(a) (West 2004)) and (2) aggravated
robbery (720 ILCS 5/18-5(a) (West 2004)).
A. The Evidence Presented at Defendant's Trial
At defendant's May 2007 trial, the State presented
evidence that in September 2004, defendant, Tommy Slaton, Damoni
Clemon, and Johnnie Bankston robbed a Mac's convenience store at
gunpoint. (Slayton, Clemon, and Bankston are not parties to this
appeal.)
The general manager of Mac's, Joseph Jantze, testified
that (1) the armed robbers took a total of more than $8,800 from
the store register, safe, and automatic teller machine (ATM), and
(2) a surveillance camera captured the 2 1/2-minute robbery.
Mac's employees Patricia Smith and Dorothy Tucker--
both of whom had a criminal record--were working the night of the
robbery. Smith testified, in pertinent part, that (1) at least
two men came into the store wearing ski masks, hoods, and gloves
and (2) one of the men ordered her and Tucker to the floor at
gunpoint. Later, one of the men ordered Smith to get up and put
the money from the store's cash register into a bag. However,
Smith acknowledged that she could not positively identify any of
the men. Tucker did not testify and was later convicted for her
participation in the robbery. (Tucker is not a party to this
appeal.)
Smith's boyfriend, Larry Coleman--who also had a
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criminal record--was in the store at the time of the robbery.
Coleman testified that he saw (1) three or four men come into the
store wearing dark clothes and hoods and (2) at least two of the
men were armed with pistols and one man was armed with a metal
pipe.
Schmond Simmons, a Mac's customer, testified that his
back was to the door when the men entered Mac's but that he went
to the ground when he saw a "guy dressed in all dark clothing
with a gun in his hand." Simmons recalled that one of the men
searched him and took money from his pockets.
Jeff Goforth, who lived across the street from Mac's at
the time of the robbery and also had a criminal record, testified
that he (1) saw four men run into the store, (2) saw the custom-
ers disappear onto the floor, (3) told his girlfriend to call the
police, (4) ran across the street to warn other prospective
customers to stay outside the store, (5) saw four men with ski
masks leave the store, and (6) could tell that the men were
African-American because he could see their skin color through
the eye and mouth holes in their masks.
Slayton pleaded guilty to armed robbery in connection
with the Mac's robbery and agreed to testify against defendant in
exchange for a six-year sentence. Slayton testified that (1)
Clemon, his roommate, approached him about committing a robbery;
(2) Amanda Hodel, the mother of Bankston's child, came over; (3)
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Clemon went to Hodel's car, gave him a ski mask and a pipe
wrench, and said, "come on"; (4) he, Hodel, Clemon, Bankston, and
defendant drove to Mac's and parked beside the store; (5) he,
Clemon, Bankston, and defendant went into the store wearing ski
masks, while Hodel waited in the car; (6) the four men robbed the
store and drove away; (7) a short time later, the group ditched
the car and ran toward Clemon's house; (8) he dropped the ATM
box, pipe wrench, and ski mask as he ran; (9) he stayed with
friends for a while before returning to Clemon's house; and (10)
he went back to retrieve the ATM box, the proceeds from which the
group later divided.
Abe McDaniel, an acquaintance of Tucker, testified that
(1) he was in the Chestnut Health Systems rehabilitation center
(hereinafter Chestnut) in January 2005; (2) while in Chestnut, he
was defendant's roommate; and (3) defendant told him that he had
robbed Mac's with Bankston, Slayton, and Clemon.
Hodel--who also had a criminal record--testified that
(1) on the day of the Mac's robbery, she borrowed her friend's
car; (2) on her way to buy dog food, she stopped by Clemon's
house to see whether Bankston wanted to go; (3) Clemon, Bankston,
Slayton, and defendant were at Clemon's house and asked her if
she would take them to Mac's; (4) she agreed to take the group to
Mac's and let Clemon drive; (5) the group parked outside Mac's
and sat in the car for a long time before she left to use the
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restroom; (6) when she returned, the group told her that they
were waiting for someone; (7) a short time later, the group left
to get a drink; (8) because she had been waiting a while for them
to return, she went to see what was taking so long; (9) she was
stopped at the front of Mac's by a man who told her that Mac's
was being robbed; (10) she watched as the group left the store,
got into the car, and drove away; (11) she went to Clemon's house
sometime later; (12) Clemon gave her a pack of cigarettes and
$200 in cash but did not tell her why he was doing so; and (13)
she did not receive any other money from the robbery.
Bankston also pled guilty to armed robbery in connec-
tion with the Mac's robbery and agreed to testify against defen-
dant in exchange for a six-year sentence. Bankston testified
that (1) Hodel was the mastermind behind the robbery and provided
the guns and transportation; (2) Hodel told them that she would
go into the store and if she came out empty-handed, that was a
signal that the store was empty; (3) Hodel went into the store
and came out empty-handed; (4) he, Clemon, Slayton, and defen-
dant, knowing that was the signal to start the robbery, went into
the store; and (5) after the robbery, they each gave Hodel $200.
Defendant testified that (1) he was not involved in the
Mac's robbery; (2) he was not all that familiar with Hodel,
Clemon, Bankston, or Slayton; and (3) although he was McDaniel's
roommate at Chestnut, he did not tell McDaniel anything about a
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robbery.
The jury thereafter convicted defendant of two counts
of armed robbery (720 ILCS 5/18-2(a) (West 2004)) and two counts
of aggravated robbery (720 ILCS 5/18-5(a) (West 2004)).
B. Sentencing
In July 2007, the trial court appointed defendant a new
attorney in response to defendant's pro se letter alleging
ineffective assistance of trial counsel. After meeting with
defendant and reviewing all the discovery materials and some of
the trial transcripts, defendant's new counsel filed a motion for
a new trial. Following a September 2007 evidentiary hearing, the
court denied defendant's motion.
At defendant's sentencing hearing, defense counsel (1)
corrected inaccuracies in defendant's presentence investigation
report and (2) presented, in mitigation, a letter defendant had
written. Defense counsel recommended that the trial court
sentence defendant to six years in prison because Slayton,
Bankston, and Tucker were sentenced to six years in prison,
despite Slayton's and Bankston's "significant criminal histories"
and Tucker went to trial on her charge. Defense counsel also
asked the court to consider that defendant (1) suffered from
depression and had issues with cocaine and cannabis abuse; (2)
had a learning disability; (3) successfully completed (a) resi-
dential treatment, (b) outpatient treatment, and (c) domestic-
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violence classes; and (4) had a relationship with his three
children.
The State recommended that the trial court sentence
defendant to 20 years in prison. The court rejected the State's
recommendation, in part, because defendant's involvement was
similar to that of Slayton and Bankston, who each received six
years in exchange for their guilty pleas. The court found that
(1) Hodel was "given a pass"; (2) Tucker also received a six-year
prison term; (3) "justice and equity" required that defendant
receive a sentence similar to that of his codefendants; (4) the
minimum six-year sentence would be inappropriate, however, given
defendant's criminal history; (5) because defendant's conduct
threatened serious harm, the sentence imposed needed to deter
others from committing similar offenses; (6) defendant's term in
prison might impose excessive hardship on his dependants; and (7)
defendant's participation in anger-management and other programs
were positive factors in mitigation.
The trial court thereafter vacated defendant's
aggravated-robbery convictions as lesser-included offenses of
armed robbery and sentenced him to concurrent 10-year prison
terms on each armed robbery count.
C. Postsentencing
After sentencing defendant, the trial court admonished
him pursuant to Supreme Court Rule 605(a)(3) (210 Ill. 2d R.
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605(a)(3)). The court then called a brief recess to give defen-
dant an opportunity to confer privately with defense counsel
regarding his options. Following the recess and private confer-
ence, the court asked defense counsel "what, if any, decision"
defendant had made respecting his right to appeal. Defense
counsel replied as follows:
"Judge, we had some preliminary discussions
of this prior to anything we've done here
today. And I just was confirming with him
that we were going to proceed on that path.
At this time I believe [defendant] would
waive the issues of sentencing and will not
be asking to file a motion to reconsider
sentence but will be asking for the clerk to
file a motion with the court to appeal."
This appeal followed.
II. ANALYSIS
A. Defendant's Claim That the State Failed To
Prove Him Guilty Beyond a Reasonable Doubt
Defendant argues that the State failed to prove that he
committed armed robbery beyond a reasonable doubt. Specifically,
defendant contends that the evidence the State presented placing
him at the scene of the robbery was contradictory testimony from
criminals and codefendants who testified to avoid incarceration.
We disagree.
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When reviewing challenges to the sufficiency of the
evidence in a criminal case, the reviewing court's function is
not to retry the defendant. People v. Sutherland, 223 Ill. 2d
187, 242, 860 N.E.2d 178, 217 (2006). Rather, the reviewing
court must determine whether, after viewing the evidence in the
light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime upon which
the defendant was convicted beyond a reasonable doubt. People v.
Ross, 229 Ill. 2d 255, 272, 891 N.E.2d 865, 876 (2008). The
reviewing court may not substitute its judgment for that of the
trier of fact. People v. Jones, 219 Ill. 2d 1, 33, 845 N.E.2d
598, 616 (2006). "The weight to be given the witnesses' testi-
mony, the credibility of the witnesses, resolution of inconsis-
tencies and conflicts in the evidence, and reasonable inferences
to be drawn from the testimony are the responsibility of the
trier of fact." Sutherland, 223 Ill. 2d at 242, 860 N.E.2d at
217.
To sustain a conviction for armed robbery, the State is
required to prove beyond a reasonable doubt that the accused (1)
took property from the person or presence of another by the use
of force or by threatening the imminent use of force (720 ILCS
5/18-1 (West 2004)) and (2) carried on or about his person or was
otherwise armed with a firearm (720 ILCS 5/18-2(a)(2) (West
2004)). When a person engages in a common criminal design to
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commit a crime such as armed robbery, he is responsible for that
other person's criminal conduct in furtherance of that goal. See
People v. Perez, 189 Ill. 2d 254, 266, 725 N.E.2d 1258, 1264-65
(2000) (noting that intent may be inferred from the defendant's
acts as well as the circumstances surrounding the criminal act).
In this case, the State presented evidence that (1)
four men took approximately $8,800 from Simmons and Smith, and
(2) at least two of the men were armed with handguns, while one
was wielding a metal pipe. Slayton, Hodel, and Bankston each
testified that defendant was one of the four men. Although all
three of these witnesses' testimony varied to some degree, their
testimony was consistent on the following points: (1) Clemon,
Hodel, Slayton, Bankston, and defendant rode to Mac's together
from Clemon's house and (2) Clemon, Slayton, Bankston, and
defendant went into Mac's with the intent to commit an armed
robbery. Moreover, McDaniel testified that defendant admitted to
him that he participated in the armed robbery while the two were
roommates at Chestnut.
The jury was fully aware that (1) Slayton and Bankston
cooperated with the State to secure a reduced sentence for their
role in the armed robbery; (2) Holder agreed to testify in an
effort to avoid being charged at all; and (3) McDaniel tried--to
no avail--to make a deal with the State in exchange for his
testimony. Considering the jury was fully aware of these wit-
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nesses' background and potential motives, we conclude that it was
in a position to competently judge their credibility and draw
reasonable inferences therefrom.
B. Defendant's Claim That Posttrial Counsel Was Ineffective
for Waiving Any Challenge to Potential Sentencing Issues
Defendant next argues that his posttrial counsel was
ineffective for waiving any challenge to potential sentencing
issues. Specifically, defendant contends that his posttrial
counsel's failure to file a motion to reconsider sentence was
tantamount to not being represented at all. We disagree.
Because the time of filing a motion to reconsider
sentence is considered a "critical stage" of a criminal proceed-
ing, a defendant is entitled to consult with counsel to determine
whether such a motion should be filed. People v. Bailey, 364
Ill. App. 3d 404, 408, 846 N.E.2d 147, 150 (2006). However, it
does not follow that counsel is per se ineffective for failing to
file a motion to reconsider sentence when, in counsel's judgment,
such a filing would be frivolous. Bailey, 364 Ill. App. 3d at
408, 846 N.E.2d at 150.
A defendant retains sole discretion in a criminal case
to decide--after consultation with his attorney--(1) what plea to
enter, (2) whether to waive a jury trial, (3) whether to testify,
(4) whether to appeal, and (5) whether to submit an instruction
on a lesser-included offense. See People v. Ramey, 152 Ill. 2d
41, 54, 604 N.E.2d 275, 281 (1992) (articulating the first four);
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see also People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d
1230, 1232 (1994) (adding whether to submit an instruction on a
lesser-included offense to the list). "Beyond these *** deci-
sions, however, trial counsel has the right to make the ultimate
decision with respect to matters of tactics and strategy after
consulting with his client." Ramey, 152 Ill. 2d at 54, 604
N.E.2d at 281 (explaining that such matters include what wit-
nesses to call, whether and how to conduct cross-examination,
what jurors to accept, and what motions should be made).
For example, when cross-examining a State witness,
defense counsel is not required to explain defendant counsel's
tactical judgment on how best to challenge the witness's testi-
mony. Defendant possesses no right to be consulted about coun-
sel's tactical judgment nor to reject it in favor of some other
strategy more to defendant's liking. Likewise, the decision not
to file a motion to reconsider sentence--thereby waiving any
later challenge to a defendant's sentence--is similarly a matter
left ultimately to counsel's professional judgment and discre-
tion.
Defendant cites the Second District's decision in
People v. Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d 1321(1996), for the proposition that defense counsel is required at a
posttrial hearing to "ensure that the trial court made an appro-
priate reconsideration of the sentence." Defendant then tries to
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turn this rather unremarkable proposition into a contention that
Brasseaux requires counsel to file a motion to reconsider sen-
tence in every case, even if counsel believes the motion to be
groundless. We are not persuaded that Brasseaux stands for this
proposition, but if it does, we decline to follow it.
In Brasseaux, the defendant was appointed new counsel
to represent him at a hearing that was set in response to the
defendant's pro se filing labeled "Motion to Reconsider Sen-
tence." Brasseaux, 254 Ill. App. 3d at 286, 660 N.E.2d at 1323.
The defendant was not present at the hearing on his pro se motion
and his newly appointed counsel, without contacting the defendant
to discuss the viability of his claims, failed to amend the
defendant's motion--which was otherwise deficient. Brasseaux,
254 Ill. App. 3d at 289, 660 N.E.2d at 1325. On review, the
court held that counsel was ineffective for failing to consult
with the defendant when, given the facts of that case, a reason-
able probability existed that the result would have been differ-
ent had all the defendant's issues been presented to the court.
Brasseaux, 254 Ill. App. 3d at 289, 660 N.E.2d at 1325.
Here, unlike the attorney in Brasseaux, trial counsel
exercised her professional judgment about the groundless nature
of any postsentencing motion after consulting with her client.
Specifically, counsel explained to the trial court--after the
court had called a brief recess to give defendant an opportunity
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to confer privately with counsel--that (1) she had previously
discussed the issue with defendant, (2) he had confirmed his
earlier decision during the recess, and (3) they were not going
to contest his sentence.
To clarify our holding, we reject any notion that
counsel is ever required to file a nugatory motion, particularly
when, as here, the record reveals that counsel had (1) previously
considered the issue and (2) discussed it with her client just
before deciding not to pursue such a motion. See People v.
Greer, 212 Ill. 2d 192, 205, 817 N.E.2d 511, 520 (2004) ("An
attorney *** who determines that defendant's claims are meritless
cannot in good faith file an amended petition on behalf of
defendant").
In closing, we commend the trial court for giving
counsel the time and opportunity to discuss this issue with her
client at the posttrial hearing, although the court was not
required to do so because the decision whether to file a
postsentencing motion was for counsel to make in her discretion.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
TURNER and APPLETON, JJ., concur.
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