People v. Holley ( 2007 )

No. 3--05--0382
_________________________________________________________________
filed December 7, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 04--CF--1020
)
AARON S. HOLLEY, ) Honorable
) James E. Shadid,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________
A jury found the defendant, Aaron S. Holley, guilty of
aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1) (West
2004)). The trial court denied the defendant's pro se motion for
a new trial in which he alleged, among other things, ineffective
assistance of counsel. The court sentenced the defendant to 24
years of imprisonment.
On appeal, the defendant argues that (1) the matter should be
remanded for the trial court to determine whether a new attorney
should be appointed to argue his ineffective assistance claim; (2)
his sentence was void because it was not authorized by statute; (3)
the statutory provision under which he should have been sentenced
violates the Illinois Constitution's prohibition against
disproportionate penalties; and (4) in imposing the sentence, the
court relied upon an improper factor in aggravation. The State
contends that the defendant lacks standing to make his
proportionate penalties argument. We (1) remand the matter for a
hearing to determine whether a new attorney should be appointed to
argue the defendant's ineffective assistance claim; (2) vacate the
defendant's sentence, and remand the cause for resentencing; and
(3) rule that the defendant does not have standing to assert his
proportionate penalties argument.
FACTS
In its indictment, the State charged the defendant with having
committed aggravated criminal sexual assault "by the use of force
or threat of force while displaying a dangerous weapon[,] being a
handgun *** in violation of 720 ILCS 5/12--14(a)(1)" in 2004. As
the defendant points out, however, section 12--14(a)(1) concerns
commission of the offense while displaying a dangerous weapon
"other than a firearm." See 720 ILCS 5/12--14(a)(1) (West 2004).
At the trial, the victim testified that the defendant and
another man sexually penetrated her while threatening her with a
handgun. The jury found the defendant guilty.
2
The defendant filed a pro se motion for a new trial in which
he alleged, among other things, ineffective assistance of counsel
for failing to file a motion to dismiss and a motion to suppress.
During the hearing on the defendant's motion, the court asked the
defendant about his motion. As part of one long, rambling sentence
in which the defendant discussed his attorney's failure to file a
motion to dismiss and a motion to suppress, as well as the lack of
"DNA" evidence in the case, the defendant also said, "I was telling
him that I should have had took a bench trial anyway, and he knows
that, I don't know anything about the law, but he knows that, and
he didn't--he didn't go basically to his law experience and take it
to a bench trial instead of jury trial." The defendant's reference
to a bench trial was not discussed again during the remainder of
the hearing. The court denied the defendant's motion.
The matter then proceeded directly to sentencing. As part of
the sentencing hearing, the judge said, "The Court is *** required
under the law to sentence to *** a minimum of 16 years because of
the jury's verdict for a violation of 720 ILCS 5/12-14(a)(1), which
sets forth a Class X felony *** for which ten years shall be added
to the term of imprisonment." Later, the judge stated, "The Court
will sentence Mr. Holley to serve a [prison] term *** of 14 years,
and then by statute, impose an additional ten years as required by
law, total sentence being 24 years." The court denied the
3
defendant's motion to reconsider the sentence, and the defendant
appealed.
ANALYSIS
I. Ineffective Assistance
The defendant submits that the matter should be remanded for
the trial court to determine whether a new attorney should be
appointed to argue his ineffective assistance claim.
When a defendant presents ineffective assistance claims, the
trial court should first examine the factual basis of the claims.
People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003). The trial
court is required to appoint new counsel to argue the defendant's
ineffective assistance claims if the court determines that the
underlying facts reveal possible neglect on the part of the
defendant's trial counsel. Moore, 207 Ill. 2d 68, 797 N.E.2d 631.
Where the trial court fails to rule on a defendant's pro se
posttrial motion, the appellate court must decline to consider the
motion's merits, and must remand the matter to the trial court.
People v. Jackson, 158 Ill. App. 3d 394, 511 N.E.2d 923 (1987).
In the present case, the defendant presented ineffective
assistance claims as part of his pro se motion for a new trial.
During the hearing on the motion, the defendant stated that he had
asked his attorney about requesting a bench trial. From the
context of the defendant's statement, we cannot determine whether
4
the defendant discussed a request for a bench trial with his
attorney before or after the trial. Neither the parties nor the
court sought clarification of this point from the defendant or his
attorney at the hearing. In any event, although the trial court
denied the defendant's motion generally, the court did not rule on
the defendant's allegation concerning having discussed a
bench trial with his attorney.1 Therefore, under Moore and
Jackson, we must remand the matter to the trial court for a hearing
to determine the factual basis of the defendant's ineffective
assistance claim concerning requesting a bench trial. If the court
determines that the underlying facts reveal possible neglect on the
part of the defendant's trial counsel regarding the defendant's
request for a bench trial, the court would then be required to
appoint new counsel to argue the defendant's ineffective assistance
claims. See Moore, 207 Ill. 2d 68, 797 N.E.2d 631.
We note that, in spite of our supreme court's holding on this
issue in Moore that " '[i]n the absence of a ruling by the trial
court on the defendant's pro se post-trial motion, we decline to
1
We observe that the partial dissent erroneously states
that we suggest that the trial court did not rule on the
defendant's ineffective assistance of counsel claim because the
court denied the defendant's motion generally.
5
consider its merits *** ' " (207 Ill. 2d at 81, quoting Jackson,
158 Ill. App. 3d at 401), the partial dissent has broadly
considered the merits of the defendant's specific ineffective
assistance claim. It contends that the defendant in this case
could not prevail in his ineffective assistance argument because
although a defendant has a constitutional right to a jury trial, a
defendant does not have a constitutional right to a bench trial,
that is, a constitutional right to waive a jury trial.
Even if, arguendo, we were to consider this contention, the
Illinois Supreme Court has twice stated that a defendant, after
consulting with his attorney, has the right to decide, among other
things, whether to waive a jury trial. See People v. Brocksmith,
162 Ill. 2d 224, 642 N.E.2d 1230 (1994); People v. Ramey, 152 Ill.
2d 41, 604 N.E.2d 275 (1992). According to Brocksmith and Ramey,
the trial attorney in the present case arguably would have provided
ineffective assistance by failing to honor the defendant's wish to
waive a jury trial.
In support of its argument, the partial dissent cites obiter
dicta from People v. Powell, 281 Ill. App. 3d 68, 666 N.E.2d 365
(1996). However, the dicta in Powell is, by definition, not the
holding of the case. The holding in Powell concerned a trial
attorney's erroneous communication with a defendant, whereas the
present case concerned the defendant's communication with the
6
lawyer, which, the defendant argues, the lawyer ignored. We find
the holding of Powell to be distinguishable from the instant case,
and therefore inapplicable.
Because we cannot rule on the defendant's ineffective
assistance issue, our remand of the cause cannot conclude this
matter. Therefore, we next consider the defendant's sentencing
arguments.
II. Sentence
The defendant contends that he was incorrectly sentenced under
the subsection of the aggravated criminal sexual assault statute
(720 ILCS 5/12--14(a)(1) (West 2004)) that was listed in the
charging instrument. For the sake of clarity, we note that the
defendant is not arguing that the charging instrument was fatally
flawed, but rather, that the trial court erred in imposing his
sentence. Specifically, the defendant argues that (1) the sentence
the trial court imposed is void because it was not authorized by
subsection 14(a)(1); and (2) the subsection of the statute under
which he should have been sentenced (720 ILCS 5/12--14(a)(8) (West
2004)) violates the Illinois Constitution's proportionate penalty
clause.
A. Void Sentence
The defendant argues that his sentence was void because it was
not authorized by subsection 14(a)(1).
7
A sentence that does not conform to a statutory requirement is
void. People v. Thompson, 209 Ill. 2d 19, 805 N.E.2d 1200 (2004).
This issue concerns the interpretation of a statute, which is a
question of law, and therefore our review is de novo. See People
v. Jones, 223 Ill. 2d 569, 861 N.E.2d 967 (2006).
The defendant in this case was found guilty of committing
aggravated criminal sexual assault. Subsection (a) of the
aggravated criminal sexual assault statute states that an "accused
commits aggravated criminal sexual assault if he *** commits
criminal sexual assault and any of" 10 enumerated aggravating
factors. 720 ILCS 5/12--14(a) (West 2004). The defendant in the
present case was sentenced under the first aggravating factor of
subsection (a), which states that "the accused displayed,
threatened to use, or used a dangerous weapon, other than a
firearm." 720 ILCS 5/12--14(a)(1) (West 2004).
Aggravated criminal sexual assault is a Class X felony for
which the basic sentencing range is 6 to 30 years. 720 ILCS 5/12--
14(d)(1); 730 ILCS 5/5--8--1(a)(3) (West 2004). However, certain
subsections of the aggravated criminal sexual assault statute
increase the sentence beyond the Class X sentencing range. See 720
ILCS 5/12--14(d)(1) (West 2004). With regard to this case, "[a]
violation of subsection (a)(1) is a Class X felony for which 10
8
years shall be added to the term of imprisonment imposed by the
court." 720 ILCS 5/12--14(d)(1) (West 2004).
In the instant case, the trial court mistakenly sentenced the
defendant under subsection (a)(1) of the aggravated criminal sexual
assault statute. A sentence under subsection (a)(1) requires that
the defendant committed the crime while he "displayed, threatened
to use, or used a dangerous weapon, other than a firearm." 720
ILCS 5/12--14(a)(1) (West 2004). In this case, the record clearly
shows that the weapon displayed by the defendant was a firearm.
The defendant's sentence was void as a matter of law because it did
not conform with the statutory requirement that the dangerous
weapon displayed by the defendant must be a weapon other than a
firearm. See Thompson, 209 Ill. 2d 19, 805 N.E.2d 1200.
Therefore, we vacate the defendant's sentence and remand the cause
to the trial court for resentencing.
Because we have vacated the defendant's sentence, we need not
consider his argument concerning the court's use of an improper
sentencing factor in aggravation.
B. Disproportionate Penalty
The defendant submits that the trial court should have
sentenced him under subsection (a)(8) of the aggravated criminal
sexual assault statute (720 ILCS 5/12--14(a)(8) (West 2004))
because the record shows that he was armed with a firearm while he
9
committed the offense. The defendant contends that subsection
(a)(8) violates the proportionate penalty clause of the Illinois
Constitution. He argues that the sentence for subsection (a)(8)
must revert to the sentence under the version of the statute that
was in place before subsection (a)(8) was enacted, which was a
Class X sentence. The defendant claims, therefore, that we should
order the trial court to impose a Class X sentence on remand. The
State asserts that the defendant lacks standing to raise this issue
because he was not sentenced under subsection (a)(8).
Initially, the defendant's argument was based, in part, on
People v. Hampton, 363 Ill. App. 3d 293, 842 N.E.2d 1124 (2005)
(Hampton I). However, during the pendency of these proceedings, in
People v. Hampton, 225 Ill. 2d 238, 867 N.E.2d 957 (2007) (Hampton
II), the Illinois Supreme Court vacated that portion of Hampton I
that had found subsection (a)(8) to violate the proportionate
penalty clause. We granted the defendant's motion to add Hampton
II as authority.
A defendant does not have standing to challenge the
constitutionality of a sentencing statute under which he was not
sentenced unless he argues that the entire act by which the statute
was enacted is unconstitutional. People v. Mayberry, 63 Ill. 2d 1,
345 N.E.2d 97 (1976); People v. Sonntag, 238 Ill. App. 3d 854, 605
N.E.2d 1064 (1992).
10
In this case, the defendant is not arguing that the entire act
under which subsection (a)(8) was enacted is unconstitutional. He
is arguing that subsection (a)(8) violates the proportionate
penalty clause of the Illinois Constitution. However, the
defendant was not sentenced under subsection (a)(8). As we
discussed above, he was improperly sentenced under subsection
(a)(1). Therefore, we agree with the State and rule that the
defendant does not have standing to raise this issue.
In further support of our decision, we note that our supreme
court stated in Hampton II that we should not rest our decision on
constitutional grounds if the matter may be resolved on other
grounds. In this case, we need not reach the defendant's
constitutional argument because our decision rests on the
preliminary issue that the defendant lacks standing to bring such
a constitutional argument.
Additionally, we observe that in Hampton II the Illinois
Supreme Court reiterated its admonition against issuing advisory
opinions. Even though on remand it is possible that the trial
court will resentence the defendant under subsection (a)(8), our
consideration of the constitutionality of subsection (a)(8) would
be advisory at this point in the proceedings. For this additional
reason, we must decline the defendant's invitation to consider his
constitutional argument.
11
CONCLUSION
We affirm the Peoria County circuit court's judgment of
conviction, vacate the sentence imposed by the court, and remand
the cause for resentencing. We also remand the matter for further
proceedings consistent with this order concerning the defendant's
ineffective assistance claim.
Affirmed in part, vacated in part, and remanded with
directions.
JUSTICE WRIGHT specially concurring:
I agree that People v. Moore, 207 Ill. 2d 68 (2003), requires the cause be remanded to the
trial court for a hearing to determine the factual basis of defendant’s ineffective-assistance-of-
counsel claim. I also agree that defendant was improperly sentenced in this case. However, I am
concerned that resentencing alone may not cure the sentencing error.
To analyze the sentencing issue raised in this case, it is necessary first to review the language
of the original charge. The State charged defendant with violating subsection 12--14(a)(1) of the
Criminal Code of 1961 (Code) (720 ILCS 5/1--1 et seq. (West 1998)) for acts committed on
October 5, 2004. Specifically, defendant was charged with committing the offense of aggravated
criminal sexual assault “while displaying a dangerous weapon being a firearm, (emphasis added)”
under a subsection of the current statute that requires the weapon used to other than a firearm.
Formal, nonsubstantive defects in a charging instrument may be corrected by the State at any
time with a motion to amend the charge. 725 ILCS 5/111--5 (West 2004); People v. Tellez-
Valencia, 188 Ill. 2d 523, 526 (1999). However, a defect caused by charging an offense based on
a statute no longer in effect when the alleged offense occurred is fatal, rendering the entire
12
instrument invalid, and warranting reversal of a resulting conviction. Tellez-Valencia, 188 Ill. 2d
at 527 (citing People v. Wasson, 175 Ill. App. 3d 851, 854-55 (1988)).
Importantly, the State did not move to amend the charge at any point during the proceedings.
Under the 1998 version of subsection 12--14(a)(1) of the Code, a Class 1 felony criminal sexual
assault became an aggravated Class X offense when “the accused displayed, threatened to use, or
used a dangerous weapon.” 720 ILCS 5/12--14(a)(1) (West 1998). The 1998 version of the Class
X offense remained in effect only until December 31, 1999. Nevertheless, the State used the
language of the 1998 statute to charge this defendant with a crime committed with a firearm in 2004.
A brief history of the evolution of the aggravated criminal sexual assault statute is helpful
to an understanding of the sentencing issue discussed above. The Illinois legislature, adopting an
active approach to deter crimes committed with firearms, amended the Code effective January 1,
2000, by enacting Public Act 91--404. This Act added the graduated “15/20/25-to-life” sentencing
enhancements for many sexual assaults and other felony offenses committed with a firearm.2 The
General Assembly declared its legislative intent as follows:
“In order to deter the use of firearms in the commission of a felony offense, the General
Assembly deems it appropriate for a greater penalty to be imposed when a firearm is used
or discharged in the commission of an offense than the penalty imposed for using other types
of weapons.” 720 ILCS 5/33A--1(b)(1) (West 2000).
2
. See Pub. Act 91--404, sec. 5, eff. January 1, 2000 (amending 720 ILCS 5/8--4 (Attempt), 720
ILCS 5/9--1.2 (Intentional Homicide of an Unborn Child), 720 ILCS 5/10--2 (Aggravated Kidnapping), 720
ILCS 5/12--4.3 (Aggravated Battery of a Child), 720 ILCS 5/12--11 (Home Invasion), 720 ILCS 5/12--14
(Aggravated Criminal Sexual Assault), 720 ILCS 5/12--14.1 (Predatory Crim inal Sexual Assault of a Child),
720 ILC S 5/18--2 (Arm ed Ro bbery), 720 ILC S 5/18--4 (Ag gravated Vehicu lar Hijacking )).
13
The same Act created three new categories of aggravated criminal sexual assaults involving
firearms, now labeled subsections 5/12--14(a)(8), (9) and (10) of the Code, which divide these
offenses committed with a firearm into graduated degrees of Class X felonies (720 ILCS 5/12--
14(a)(8), (9), (10), (d)(1) (West 2000). See Pub. Act 91--404, sec. 5, eff. January 1, 2000. When
creating these new categories of aggravated criminal sexual assaults, the legislature omitted all
firearms from subsection 12--14(a)(1) and restricted this subsection to aggravated criminal sexual
assaults committed with weapons other than firearms. 720 ILCS 5/12--14(a)(1) (West 2000).
Consequently, on October 5, 2004, the date of the offense in this case, an aggravated criminal sexual
assault with a firearm should have been charged under subsection 12(a)(8), (9) or (10), but could not
be charged under subsection 12--14(a)(1), because a subsection 12--14(a)(1) offense could only be
committed with a dangerous weapon other than a firearm.
The legislature also decided the nature of the charge and resulting conviction would
determine the range of punishment a judge must impose. See 720 ILCS 5/12--14(d) (West 2004).
Legislative mandates currently include multiple ranges of punishment which are dependent on multi-
faceted, fact-based nuances tied directly to the numerical subsection of the statute as charged, not
to the title of the offense. Such mandates compound the sentencing judge’s difficulty in fashioning
an appropriate sentence. Under the current scheme, an error in the statutory numerical subsection
of the aggravated criminal sexual assault charged virtually assures the court will commit a
sentencing error.
Judges now need flow charts to determine proper punishment. Nevertheless, fundamental
fairness demands that full and correct disclosure of mandatory penalties be given to the defendant
in advance of trial. Here, complex legislation enacted by a well-intended legislature has resulted
in an unforeseen difficulty.
14
In error, the prosecution adopted the language of the 1998 statute to charge this defendant
with a crime committed in 2004. Not only does the defect in the charging instrument raise serious
concerns about the validity of the conviction in this case, the charging error resulted in a sentence
which added a mandatory 10 years, instead of 15 years to defendant’s sentence. While this may
seem to benefit defendant, he could not have been put on notice that his sentence must be increased
by 15 years upon conviction. In my opinion, the record reflects a substantive variance between the
charge and the ultimate sentence imposed based on the charging instrument.
This variance is further compounded by outdated IPI instructions (Illinois Pattern Jury
Instructions, Criminal, Nos. 11.57 and 11.58 (4th ed. 2000)) given by the court in this case, which
did not require the jury to find that a firearm was used in this offense. Based on the instructions
given, the jury determined defendant used a “dangerous weapon” in the commission of the offense.
A dangerous weapon adds 10 years to a sentence. A firearm adds 15 years. The jury did not find
that a "firearm" was used. See Apprendi v. New Jersey, 530 U.S. 466, 494-95, 147 L. Ed. 2d 435,
458, 120 S. Ct. 2348, 2365 (2000) (holding a criminal defendant is entitled to a jury determination
that he is guilty beyond a reasonable doubt of not only every element of which he is charged, but
also every factor which can be used to enhance his sentence) .
Finally, I believe it unfair to characterize the sentencing error as the trial court’s mistake.
It is unfortunate error occurred, but it originated with the prosecution’s selection of outdated
language in a “form” indictment which should have been discarded or modified long ago. The judge
understandably relied on the numerical subsection charged when applying the 10-year sentencing
enhancement. Accordingly, I respectfully suggest that on remand, in addition to addressing the
ineffective-assistance-of-counsel issues, the trial court and counsel carefully examine whether the
15
error occasioned by the outdated language of the indictment affected not only the sentence imposed,
but the propriety of defendant’s conviction as well.
JUSTICE SCHMIDT, concurring in part and dissenting in part:
I concur with the majority opinion with the exception of
that portion which remands for further proceedings on the
ineffective assistance of counsel claim. The trial court
previously satisfied its obligations under Moore. The defendant
filed a pro se motion for a new trial alleging, among other
things, that his trial counsel was ineffective for failing to
file a motion to suppress evidence and failing to file a motion
to dismiss. When asked to address his allegations of ineffective
assistance of counsel, defendant added that, "I was telling him
that I should have had took a bench trial anyway, and he knows
that, I don't know anything about the law, but he knows that, and
he didn't - - he didn't go basically to his law experience and
take it to a bench trial instead of a jury trial." There was no
further discussion about this. The majority concludes that
somehow a trial attorney could have been guilty of neglect for
trying defendant's case to a jury rather than a single judge.
Neither Moore nor any other case requires remand in this case.
While the defendant's language makes it appear that his comment
to his lawyer about a bench trial was made after the fact, I
believe it is legally irrelevant as to when the comment was made.
16
Assuming for the sake of argument that we remand, and it is
established that defendant did talk to his counsel before trial
and expressed wishes for a bench trial, then what relief could
defendant obtain? "The argument defendant makes here could be
made in every case in which a defendant is convicted by a jury
and the trial court did not explicitly inquire of defendant,
before or during the jury selection process, whether he in fact
wished to have a jury trial." People v. Powell, 281 Ill. App. 3d
68, 73, 666 N.E.2d 365, 369 (1996).
The record clearly shows that defendant was present in the
trial court on October 29, 2004, when his attorney stated, "At
this time, your Honor, my client will enter a plea of not guilty,
waive reading of the charge, and request a jury trial setting and
reciprocal discovery."
Defendant was also present in court on January 24, 2005,
when the trial in this case commenced by the court stating,
"We're on the record now and the People of the State of Illinois
versus Aaron Holley, 04--CF--1020, the bailiff is going to get
the jurors out of the hallway so that we can begin jury
selection. Mr. Holley is present in open court with his
attorney, Mr. Morris, Ms. Patton for the People." (Emphasis
added.) Once the jury venire was called in, the court introduced
the defendant and his attorney to the venire and defendant
17
greeted the venire with a "good afternoon." On January 24, a
jury was selected, motions in limine were argued, and opening
statements were made in defendant's presence. The trial
continued on January 25. The jury began deliberations at
approximately 4:10 p.m. on that date. The jury returned on
January 26, 2005, for continued deliberations. The jury returned
a guilty verdict on that date. Defendant was present with his
counsel for the return of the verdict. Upon entry of the
verdict, defendant's bond was revoked and sentencing and
posttrial motions were set for March 23, 2005.
At no time during any of these proceedings did defendant
ever advise the court that he was objecting to proceeding with a
jury trial. Not when his attorney requested a jury trial; not
when the case was called for jury trial; not during the arguing
of motions in limine; not during voir dire; not during the jury
trial itself; not when the verdict was received.
As the appellate court pointed out in Powell, "Even at its
most efficient, the process of selecting a jury in a criminal
case takes a considerable amount of time - usually at least an
hour or more. A defendant sitting in a courtroom watching this
process could hardly be confused as to what is taking place.
Thus, we have no sympathy for this defendant or any other who
sits through that entire process and - while supposedly wishing
18
for a bench trial - says nothing to the trial court even though,
as defendant claims here, his trial counsel has failed to request
a bench trial in accordance with defendant's wishes." (Emphasis
in original.) Powell, 281 Ill. App. 3d at 73, 666 N.E.2d at
369.3
Remanding this case for further inquiry into the issue of
whether defendant wanted a bench trial is a waste of limited
judicial resources. This cannot be ineffective assistance of
counsel. Suppose defendant was attempting to obtain a new trial
because he had a bench trial but then argued on appeal that he
was entitled to a new trial based on ineffective assistance of
counsel because he had told his attorney that he wanted a jury
trial. The result would be clear if defendant, like here, had
sat through pretrial proceedings and the bench trial without
objecting. See People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195
(1984); People v. Johnson, 347 Ill. App. 3d 442, 807 N.E.2d 693
(2004). The majority opinion here sets up the untenable
necessity for trial judges to secure bench trial waivers before
jury trials. This makes no sense. Under our system, the jury
trial is both the "default mode" and the "gold standard."
3
The majority argues that I am citing dicta in Powell. Slip
op. at 6. In the next breath, the majority cites Brocksmith and
Ramey in support of its position. Slip op. at 6. I am content
to let the trial bar decide who is citing dicta in support of his
position.
19
Furthermore, the trial judge did discuss defendant's ineffective
assistance of counsel claim with defendant, fulfilling any
obligations under Moore, at least under the facts of this case.
I, therefore, dissent from that portion of the opinion remanding
this matter for further proceedings on defendant's ineffective
assistance of counsel claim.4
4
At pages 4 and 5, Presiding Justice Lytton suggests that
the trial court did not rule on defendant's ineffective
assistance of counsel claim apparently because it "denied
defendant's motion generally." Slip op. at 4. This was a ruling
on defendant's motion and the trial court knew everything it
needed to know to make the ruling. Defendant does not argue that
the trial court did not rule. To the contrary, defendant
complains that the trial court erred in denying his motion.
20