People v. Kiefel

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Kiefel, 2013 IL App (3d) 110402Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TERRY W. KIEFEL, Defendant-Appellant.
District & No. Third District
Docket No. 3-11-0402
Filed March 25, 2013
Held Defendant’s conviction and sentence for unlawful possession of a
(Note: This syllabus controlled substance following a jury trial were affirmed over his
constitutes no part of contentions that he did not voluntarily and knowingly waive his right to
the opinion of the court a bench trial and that his counsel was ineffective in failing to move to
but has been prepared quash his arrest and suppress evidence, since his claims were meritless,
by the Reporter of especially when he never raised the issue of having a bench trial in the
Decisions for the trial court and defendant’s counsel clearly recognized that any motion to
convenience of the quash and suppress would have been futile.
reader.)
Decision Under Appeal from the Circuit Court of La Salle County, No. 10-CF-632; the
Review Hon. H. Chris Ryan, Judge, presiding.
Judgment Affirmed.
Counsel on Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, and
Appeal James K. Leven (argued), of Chicago, for appellant.
Brian Towne, State’s Attorney, of Ottawa (Terry A. Mertel and Justin A.
Nicolosi (argued), both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
OPINION
¶1 A La Salle County jury convicted the defendant, Terry W. Kiefel, on one charge of
unlawful possession of a controlled substance. The trial court sentenced the defendant to four
years in the Illinois Department of Corrections.
¶2 The defendant appeals, claiming that he did not voluntarily, knowingly and intelligently
waive his right to a bench trial and that he received ineffective assistance of counsel when
his trial attorney failed to file a motion to quash arrest and suppress evidence. We affirm.
¶3 BACKGROUND
¶4 Parole agents and police arrested defendant on December 29, 2010, when a search of his
apartment by parole officers yielded a tinfoil pipe believed to be cocaine residue. The State
ultimately charged defendant with unlawful possession of less than 15 grams of a substance
containing cocaine, a controlled substance (a Class 4 felony), in violation of the Illinois
Controlled Substances Act (720 ILCS 570/402(c) (West 2010)). When arrested, defendant
was on mandatory supervised release (MSR) following a previous conviction for possession
of a controlled substance.
¶5 At trial, the State called parole agent Steven Peters as its first witness. On the morning
of December 29, 2010, Peters, along with fellow parole agent Tim Plankenhorn, went to
defendant’s apartment in Peru, Illinois, to interview defendant. The defendant opened the
door and allowed Peters and Plankenhorn inside. Upon entering the apartment, the agents
immediately handcuffed the defendant. Peters testified that this was standard operating
procedure when searching a parolee or his surroundings. Peters proceeded to search the
apartment and found a plastic grocery bag on the floor that was tied shut. Along with food
wrappers and other trash, the grocery bag contained a piece of tinfoil that had been rolled up
and burned on one end. Peters called the Peru police department. When he discovers items
that he believes contain drugs, it is his responsibility as a parole agent to call the local police
department so that it can collect the evidence and take the offender into custody for
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questioning. Detective Sergeant Degroot and two uniformed officers from the Peru police
department arrived on the scene. Peru police took custody of both the evidence and
defendant.
¶6 Sergeant Degroot was the State’s next witness. Degroot responded to the call at
defendant’s apartment, where he met Agent Peters. Upon arrival, he observed that defendant
was handcuffed; Degroot advised defendant that he was under arrest. At the station, Degroot
interviewed defendant and had the “pipe” field tested. During the interview, Degroot read
defendant his Miranda rights, which defendant indicated he understood and he initialed
documentation to that effect. Defendant stated that he was drinking at a pub in La Salle
County when he ran into an old friend, Pat Innis. Defendant and Innis returned to defendant’s
apartment and smoked crack cocaine in the tinfoil pipe. Defendant declined Degroot’s offer
to reduce his oral statement to writing.
¶7 The State then called Angela Nealand to the stand. Nealand is a forensic scientist
specializing in drug chemistry with the Illinois State Police crime lab. The trial court found
her qualified as an expert witness. Nealand testified that the tinfoil pipe tested positive for
cocaine.
¶8 Defendant took the stand and testified on his own behalf. He acknowledged that at the
time of his arrest in December, he was on MSR for a prior conviction for possession of a
controlled substance. According to defendant, he was alone in his apartment when Agent
Peters visited him and had no idea that the tinfoil pipe that was discovered was in the
apartment. Defendant went on to testify that a few days prior to Agent Peters’ visit, he had
gone to a bar and had run into to Pat Innis, an old friend from California. Defendant was
waiting for a cab to take him home, but Innis offered to give him a ride.
¶9 Once back at defendant’s apartment, Innis pulled out a tinfoil pipe, lit it and asked if
defendant wanted to take a hit. Defendant admitted to taking one hit off of the pipe, then
handed it back to Innis and told him he had to take it when he left. Defendant thought Innis
took the pipe with him when he left. He did not see Innis put the pipe in the grocery bag.
¶ 10 Defendant denied telling Degroot that he and Innis made the pipe. He further denied that
he told Degroot during the interview that he and Innis went to the apartment to smoke
cocaine. Defendant testified that he did not know what was in the pipe when he smoked it.
¶ 11 The jury found defendant guilty of possession of a controlled substance. The trial court
entered judgment on the verdict and ultimately imposed a sentence of four years’
imprisonment and one year of MSR. Defendant filed a posttrial motion; the trial court denied
it. This timely appeal followed.
¶ 12 ANALYSIS
¶ 13 I. Waiver of a Bench Trial
¶ 14 The defendant first argues that his conviction should be reversed because the record fails
to demonstrate that he knowingly, intelligently and voluntarily waived his constitutional right
to a bench trial. As we explain below, this argument lacks even the slightest scintilla of
merit.
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¶ 15 We review de novo defendant’s claim that the lower court violated his constitutional
rights. People v. Carini, 357 Ill. App. 3d 103, 113 (2005). At the outset, we note that
defendant did not request a bench trial below. He did not raise this issue in a posttrial motion.
Defendant similarly does not contend that he signed a written jury waiver prior to trial, or
that his trial counsel, the judge, or the State prevented him from waiving his right to a jury
trial. Nonetheless, defendant asserts that this court should reach the merits of the issue under
the plain-error rule.
¶ 16 A defendant must object at trial and in a posttrial motion to preserve potential errors for
review. People v. Enoch, 122 Ill. 2d 176, 186 (1988). In this case, defendant clearly failed
to preserve his arguments for appeal, and therefore, this court may only review the issue for
plain error. “Plain-error review is appropriate under either of two circumstances: (1) when
‘a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error’; or (2) when ‘a clear or obvious error occurred and that error is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence.’ ” People v. Eppinger, 2013 IL 114121,
¶ 18 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)).
¶ 17 Defendant does not argue that the evidence was closely balanced. Instead, he argues that
the second prong of the plain-error rule applies. Specifically, defendant contends that the
right to a bench trial is a fundamental state constitutional right and is coextensive with the
right to a jury trial; therefore, this court should find that his right to a bench trial was not
validly waived on the record. “In order to obtain relief [under the second prong], defendant
must demonstrate not only that a clear and obvious error occurred [citation], but that the error
was a structural error [citation].” Id. ¶ 19. Before reaching that issue, we must first determine
whether there was error; obviously without error there can be no plain error.
¶ 18 Defendant cites to a number of cases, none of which support his theory. For example, in
People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988), our supreme court held that the
right to a jury trial necessarily encompasses the right to waive it. The decision to waive his
right to a jury trial lies solely with the accused, and unlike under federal law, the State does
not have the right to object to the accused’s waiver of a jury trial. Specifically, the Joyce
court held that section 115-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987,
ch. 38, ¶ 115-1 (as amended by Pub. Act 84-1428 (eff. July 1, 1987))) providing the State
with the right to a jury in certain criminal trials, was unconstitutional. Id. This holding clearly
implies the fundamental right to a bench trial; the decision as to whether to be tried by judge
or jury now rests solely with the accused. It does not, as defendant asserts, require that a
defendant be given admonishments of his right to a bench trial or that a written waiver of a
bench trial be executed in order to receive a jury trial.
¶ 19 Additionally, our supreme court has rejected similar arguments in at least two separate
opinions. In People v. Wallace, 48 Ill. 2d 252 (1971), the defendant argued that his guilty
plea was invalid since he was not advised of his constitutional right to a bench trial by the
trial judge. In denying the defendant’s claim, the court held that “an appropriate admonition
and understanding of a right to trial by jury comprehends advice and understanding of a right
to trial without jury.” Id. at 253; see also People v. Goodwin, 50 Ill. 2d 99, 103 (1971).
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¶ 20 We also find People v. Powell, 281 Ill. App. 3d 68 (1996), particularly instructive. In
Powell, the defendant was convicted of aggravated criminal sexual assault following a jury
trial. Id. at 69. In his posttrial motion for a new trial, the defendant argued that his
convictions should be overturned because his trial counsel disregarded his desire and right
to a bench trial under the Illinois Constitution, citing to People ex rel. Daley v. Joyce. Id. at
72. In rejecting this argument, the court explained, “a jury trial is the norm for a felony case
and a bench trial is the exception; therefore, a defendant who wishes a bench trial instead of
a jury trial must make his position known to the trial court if his trial attorney fails to do so.
If a defendant fails to speak out, as here, to make his desire for a bench trial known when the
trial court begins the process of selecting and impaneling a jury, we will not entertain his
later, after-the-fact claim that he really wanted a bench trial all along.” Id. at 73.
¶ 21 Whereas the Powell defendant argued that he expressed his desire for a bench trial to
counsel, defendant herein does not contend that he told his trial counsel that he preferred a
bench trial and those wishes went unheeded. In fact, his preference for a bench trial was not
voiced until this appeal. The Powell court observed, “[t]he 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. We decline to impose on the trial courts the burden of
making such inquiries, both because those courts are already sufficiently burdened with
other, important procedural concerns and because imposing such a burden would be
unwarranted.” Id.
¶ 22 We find no error, plain or otherwise.
¶ 23 II. Ineffective Assistance of Counsel
¶ 24 Defendant argues that his trial counsel provided ineffective assistance for not moving to
quash his arrest and suppress the evidence that was, according to defendant, obtained as a
result of his warrantless arrest. This argument, too, lacks merit.
¶ 25 Under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 688
(1984), a defendant alleging ineffective assistance of counsel will prevail only where he or
she is able to show that: (1) counsel’s performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. People v.
Albanese, 104 Ill. 2d 504, 525 (1988), adopting Strickland, 466 U.S. 668.
¶ 26 “To prevail on a claim that trial counsel was ineffective for failing to file a motion to
quash and suppress, a defendant must show a reasonable probability that the motion would
have been granted and the trial outcome would have been different.” People v. Bailey, 375
Ill. App. 3d 1055, 1059 (2007) (citing People v. Sterling, 357 Ill. App. 3d 235, 247 (2005)).
This he cannot do.
¶ 27 The defendant’s ineffective assistance argument hinges entirely on his assertion that
when Agent Peters placed him in handcuffs before conducting a search of defendant’s
residence, he was under arrest. Defendant argues that this was an unlawful, warrantless arrest
in his home and, therefore, the evidence discovered and statements made after the arrest must
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be suppressed as fruit of the poisonous tree.
¶ 28 Before turning to the issue of whether defendant was actually arrested prior to the search,
it is necessary to address the severely curtailed fourth amendment protections afforded
parolees. In Samson v. California, 547 U.S. 843 (2006), the Supreme Court held that the
fourth amendment does not prohibit a police officer from conducting a suspicionless search
of a parolee. Considering the totality of the circumstances, including the parolee’s agreement
to the search condition as a requirement for his release from confinement, the parolee did not
have an expectation of privacy that society would recognize as legitimate. Id. at 852. Our
supreme court affirmed the principles espoused in Samson in People v. Wilson, 228 Ill. 2d
35, 52 (2008), for Illinois parolees, and extended the constitutionality of suspicionless
searches of the parolee to the parolee’s home.
¶ 29 Indeed, such searches have been codified pursuant to section 3-3-7(a)(10) of the Unified
Code of Corrections, which provides that “[t]he conditions of every parole and mandatory
supervised release are that the subject: *** (10) consent to a search of his or her person,
property, or residence under his or her control.” 730 ILCS 5/3-3-7(a)(10) (West 2010). It
necessarily follows that parole agents Peters and Plankenhorn were justified in their search
of defendant’s residence. Agent Peters was further justified in handcuffing defendant prior
to conducting the search of his residence in the name of officer safety and, in doing so, did
not effectuate an arrest. See People v. Arnold, 394 Ill. App. 3d 63, 71 (2009) (recognizing
that there are situations in which concerns for the safety of the police officer or the public
justify handcuffing the detainee for the brief duration of an investigatory stop); see also
People v. Walters, 256 Ill. App. 3d 231, 237 (1994) (finding that not all circumstances
wherein handcuffing and detention occur necessarily convert a lawful Terry stop into an
arrest). Agent Peters testified that it was routine procedure to handcuff a parolee when
conducting a search of his or her residence, so that in the event contraband was found, he
would have control over the situation. The rationale behind this protocol is clear–no
reasonable law enforcement officer would turn his or her back on an unrestrained parolee to
conduct a search.
¶ 30 With that being said, whether or not defendant was under arrest has no bearing on his
status as a parolee or the legality of the search. The limited expectation of privacy, coupled
with defendant’s conditions of mandatory supervised release, gave the parole officers the
right to search defendant’s residence. While we find that the handcuffing in this instance did
not constitute an arrest, even if it had the outcome would not change. For example, had the
officers told defendant he was under arrest, the search of the residence was still legal under
Wilson, 228 Ill. 2d at 52, and within the terms of defendant’s mandatory supervised release.
That is, whether under arrest or not, defendant was a parolee; his person as well as property
under his control were subject to search.
¶ 31 Trial counsel undoubtedly recognized that a motion to suppress would be futile. Counsel
cannot be ineffective for failing to file a meritless motion. See People v. Givens, 237 Ill. 2d
311, 331 (2010). Accordingly, defendant’s claim of ineffective assistance of counsel must
fail.
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¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, the judgment of the circuit court of La Salle County is
affirmed.
¶ 34 Affirmed.
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