People v. Watts

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 200166-UOrder filed March 27, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0166
v. ) Circuit No. 15-CF-500
)
DARRELL D. WATTS, ) Honorable
) Kevin W. Lyons,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Peterson concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not abuse its discretion by denying defendant’s motion for a
continuance to hire new counsel. The court also did not impose an excessive
sentence.
¶2 Defendant, Darrell D. Watts, appeals from his conviction for unlawful possession with
intent to deliver cocaine (720 ILCS 570/401(a)(2)(B) (West 2014)). Defendant contends that the
Peoria County circuit court (1) denied his right to counsel of choice, and (2) imposed an
excessive sentence. We affirm.
¶3 I. BACKGROUND
¶4 On July 29, 2015, defendant, out of custody, appeared for preliminary hearing with
private attorney Christopher Leasor of Hall, Rustom & Fritz, LLC, who indicated that he would
be filing an appearance on a subsequent date. The matter was held over to September 3, 2015, for
arraignment. On September 1, 2015, the State charged defendant, by indictment, with unlawful
possession with intent to deliver 100 grams or more of cocaine, a Class X felony (id.) and
unlawful possession of a controlled substance being 100 grams or more of cocaine, a Class 1
felony (id. § 402(a)(2)(B)).
¶5 On September 3, 2015, defendant requested more time to raise the necessary funds to
retain private counsel. Following an inquiry into defendant’s financial situation, the court granted
defendant’s request for more time to obtain an attorney and stated,
“I want you to have the lawyer of your choice, but we got to move on. I don’t
want to come back and have you say, well, I still haven’t accomplished that.
***
So, we’ll set it for attorney appearance ***. *** look at it from my viewpoint.
June. July. August. September. No lawyer. So, there may be reasons for that, but
fix them and bring them in here.”
¶6 On September 24, 2015, the appearance of Attorney Jeff Hall, also of Hall, Rustom &
Fritz, LLC, was filed on defendant’s behalf and defendant was arraigned. On July 8, 2016,
Leasor filed a motion to suppress evidence. On August 24, 2016, Leasor filed a motion to
withdraw from the case due to “a breakdown in the parties’ communication,” rendering
continued representation “impossible.” The court told defendant, who remained out of custody,
“I’d like for you to hire a private attorney on this, but you don’t have a steady job. So I want to
2
move the case on. It’s a year old.” The court appointed the public defender, William Loeffel.
After speaking with Loeffel, defendant informed the court that he wanted to hire a different
attorney.
¶7 On November 28, 2016, private counsel Larry Smith appeared on behalf of defendant and
subsequently filed an appearance.
¶8 On August 10, 2017, defendant appeared in custody and informed the court that Smith
was unavailable. It turned out Smith suffered a stroke and was in a coma. The court granted
defendant a continuance to acquire new counsel.
¶9 The court again granted defendant continuances to hire counsel on August 24 and
October 5, 2017.
¶ 10 On November 30, 2017, defendant requested yet another continuance to retain new
counsel. The court stated, “[y]ou’ve been given two opportunities to hire a private attorney. I’ll
give you a third which I never do; however, the *** Smith situation is really unusual.”
¶ 11 On February 1, 2018, defendant indicated that he had not yet hired a new attorney. The
court told defendant that it could either appoint the public defender or defendant could represent
himself. The court added that if it appointed the public defender, defendant was “free” to hire
private counsel “as long as it’s not so close to the trial date that the attorney now comes in and
says I can’t be ready for it, I need a continuance.” Defendant indicated that he wanted to proceed
as a self-represented litigant.
¶ 12 On February 13, 2018, following the court’s admonishments, defendant persisted in his
request to represent himself. The court continued the matter for a pretrial conference on March
22, and a trial date of April 2, 2018.
3
¶ 13 On March 22, 2018, defendant indicated that he was not ready to proceed to trial and
requested the appointment of an assistant public defender. The court again appointed assistant
public defender Loeffel.
¶ 14 On February 4, 2019, Loeffel filed a motion to withdraw the motion to suppress, which
was filed by defendant’s first private counsel in July of 2016.
¶ 15 On February 6, 2019, defendant informed the court that he wanted to hire private counsel.
The court responded, “but how come we’re 30 days away from the trial and now—only now are
there efforts to have a different lawyer?” Later, the court stated,
“I’ll just simply *** give you what *** appears to be your 3 options. 1: Sticking
with Mr. Loeffel until you have the funds to change lawyers, if you want to. 2: Go
pro se. Or 3: Arrange with counsel to represent you and enter their appearance
***. For right now, Mr. Loeffel continues to be your lawyer.”
The court continued defendant’s motions pending the resolution of his request for private
counsel.
¶ 16 On February 25, 2019, John Lonergan filed his appearance. The court allowed Loeffel to
withdraw and continued the case so that Lonergan could become acquainted with the case before
trial.
¶ 17 On April 23, 2019, Lonergan filed a new motion to suppress evidence, which adopted the
same motion that had been filed by defendant’s first private counsel almost three years earlier.
¶ 18 On July 3, 2019, Lonergan filed a motion to withdraw as defendant’s attorney due to “a
breakdown in communications,” and stated that defendant wished to proceed as a self-
represented litigant.
4
¶ 19 On July 17, 2019, the parties appeared in court on defendant’s motion to suppress. Prior
to the hearing, the court stated, “[t]he matter was set at long last for Motion to Suppress. To say
it has gone on and on and on and on would be an understatement.” Lonergan addressed his
motion to withdraw and stated that although defendant previously indicated that he wanted to
proceed as a self-represented litigant, defendant had just informed Lonergan that he “would like
an opportunity to get new counsel.” Lonergan indicated that he was “able and willing” to
continue his representation. The following colloquy occurred:
“THE COURT: We’re having a Motion to Suppress today. Are you ready
to go on that, [defendant]?
THE DEFENDANT: No, sir.
THE COURT: All right. Mr. Lonergan will remain as your lawyer, and we
will proceed with the Motion to Suppress. Call your first witness.
***
THE DEFENDANT: I didn’t get a chance to go over nothing with my
lawyer.”
The court proceeded to the hearing.
¶ 20 On August 12, 2019, defendant informed the court that he wanted to proceed as a self-
represented litigant and add evidence to the hearing on his motion to suppress. Specifically,
defendant alleged that Lonergan had not subpoenaed certain records. The court continued the
matter for admonishments on proceeding as a self-represented litigant.
¶ 21 On August 19, 2019, the court admonished defendant regarding his right to proceed as a
self-represented litigant. Defendant requested witness information to use for subpoenas. The
court appointed Lonergan as standby counsel to assist defendant with the subpoenas. The court
5
continued the matter to allow defendant to present evidence as a self-represented litigant in his
motion to suppress.
¶ 22 On September 24, 2019, the State indicated that standby counsel had informed it that
defendant had only provided subpoenas six days earlier and that these were essentially
“hodgepodge and directionless.” The court determined that defendant was unprepared to present
additional evidence in support of his motion and concluded the hearing. Defendant stated that it
was “tougher” than he thought to represent himself and requested counsel. Given defendant’s
history of hiring and firing attorneys during the pendency of the case, the court continued the
matter to consider defendant’s request.
¶ 23 On September 26, 2019, the court reappointed assistant public defender, Loeffel.
¶ 24 On October 9, 2019, the court issued a written order denying defendant’s motion to
suppress. The court addressed its denial of defendant’s request for a continuance to hire new
counsel, noting defendant’s vacillation between private counsel, the public defender, and self-
representation, and the timing of his request to hire new counsel on the day of the suppression
hearing. The court determined these actions, in the context of all the prior representation
motions, were attempts to delay the proceedings. The court continued that it “did not want to
formalize a break between lawyer and client [on the day of the suppression hearing]” and
instead, proceeded to the hearing that day and continued defendant’s request for new counsel to a
later date. In conclusion, the court found that defendant’s failure to add any additional evidence
or even indicate any compelling evidence at the follow-up hearing date and “his last-minute
subpoena effort was a pure delay tactic with no purposeful objective.”
6
¶ 25 On December 16, 2019, the matter proceeded to a jury trial.1 The evidence adduced at
trial showed that when defendant approached a roadside safety checkpoint, he stopped his
vehicle and reversed “10 to 30 yards.” Officers stopped defendant and directed him to the
checkpoint. Defendant appeared nervous upon contact with the officers and had an outstanding
warrant. Following his arrest, officers located several small bags of cocaine, a large amount of
cash in the vehicle, and a bag of cocaine in defendant’s sock. When asked what he was selling,
defendant indicated that the substance was “coke,” and the money was from a recently sold boat.
While officers spoke to defendant, he attempted to flee the scene but was detained. The jury
found defendant guilty of the lesser included offense of unlawful possession with intent to
deliver more than 15 grams but less than 100 grams of cocaine, a Class X felony (720 ILCS
570/401(a)(2)(A) (West 2014)).
¶ 26 Defendant’s presentence investigation report (PSI) showed that his criminal history
involving drugs began in 2001. Defendant received probation for unlawful possession of a
controlled substance in 2001 and convictions for unlawful possession of a controlled substance
in 2004, unlawful possession of marijuana with intent to deliver in 2008 in Illinois and federal
convictions for unlawful possession of a controlled substance with intent to distribute in 2005,
and unlawful possession of cocaine, crack cocaine, and marijuana with intent to distribute and
unlawful possession of a firearm during a drug offense in 2017. Defendant served prison
sentences ranging from three to four years for his 2004, 2005, and 2008 convictions. Defendant
was sentenced to 20 years’ imprisonment for his 2017 federal convictions. While out on bond in
the present case, defendant accrued new offenses in Peoria County for unlawful possession of a
1
Defendant’s first trial began on November 19, 2019, ending in a mistrial due to a hung jury.
7
controlled substance in two separate instances that remained pending at the time of sentencing.
Defendant was 36 years old at the time of sentencing, had five children ranging from 3 to 15
years old, received his general education diploma in prison in 2007, and attended a welding
program in 2011. Defendant did not complete the program. Defendant had been self-employed as
a barber for eight years before his present incarceration.
¶ 27 On March 11, 2020, the case proceeded to sentencing. Defendant’s former stepmother
testified that defendant was active in the lives of his five children. Defendant’s sister-in-law
testified that defendant provided a home for two of his five children. Defendant’s uncle testified
that his family supported defendant and would help him upon his release.
¶ 28 The State began its sentencing argument by noting the nature of the offense and that the
witnesses testified that defendant provided for only two of his five children. The State continued
by addressing defendant’s prior criminal history, and the additional offenses defendant
committed while the present case was pending. The State asked for a sentence on the higher end
of the sentencing range.
¶ 29 Defense counsel argued that defendant still had family members that cared for and
supported him. Counsel asked the court to allow defendant another opportunity to prove himself
and requested a sentence at the lower end of the sentencing range.
¶ 30 In allocution, defendant apologized for committing the present offense and discussed his
difficult upbringing. Defendant claimed the loss of his mother contributed to his criminal
delinquency. Defendant noted that his prior criminal history and the present offense were
nonviolent. Defendant stated that he wanted to “pay [his] debt to society, and be a man, and take
the responsibility for breaking the law.”
8
¶ 31 In its ruling, the court considered the factors in aggravation and mitigation, the PSI, the
parties’ arguments, the evidence presented, defendant’s statement in allocution, and the history
and character of defendant with “due regard for the circumstance and nature of the offense.” The
court discussed defendant’s lengthy criminal history and prior prison sentences. The court also
noted the underlying facts of the offense, in that defendant attempted to circumvent the roadside
safety checkpoint and flee the scene. The court acknowledged defendant’s supportive family
members. The court continued, “You can’t keep from being the provider and the dealer of
cocaine and serious contraband here. *** Because if you could, surely that stop on June 20th of
2015 would have been a seminal moment for you. *** [B]ut it wasn’t because it just happened
over and over again.” The court sentenced defendant to 27 years and 6 months’ imprisonment.
¶ 32 On March 20, 2020, defendant filed a motion to reconsider his sentence, alleging that the
court did not properly consider the circumstances regarding defendant’s life and expressed
remorse. The court denied defendant’s motion to reconsider. Defendant appealed.
¶ 33 II. ANALYSIS
¶ 34 A. Counsel of Choice
¶ 35 Defendant first argues that his conviction should be reversed where the circuit court
violated his sixth amendment right to counsel of his choice when it failed to inquire into whether
defendant’s reasons for seeking new counsel were intended to delay the proceedings. Defendant
acknowledges that he did not properly preserve this issue for appellate review but asks for
review under the second prong of the plain error doctrine. Alternatively, he argues that counsel
was ineffective for failing to preserve this claim and include it in a posttrial motion.
¶ 36 The first step under the plain error doctrine is to determine whether a clear or obvious
error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). If the circuit court committed
9
such an error, then we must determine whether the error is reversible. Id. An unpreserved error is
reversible when (1) “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) the 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.” Id.¶ 37 The sixth amendment of the United States Constitution guarantees criminal defendants
the right to the effective assistance of counsel, which encompasses the right to be represented by
counsel of choice. U.S. Const., amend. VI; United States v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006); People v. Baez, 241 Ill. 2d 44, 104-05 (2011). However, “[a] defendant who abuses the
sixth amendment in an attempt to delay trial and thwart the effective administration of justice
may forfeit his right to counsel of choice.” People v. Tucker, 382 Ill. App. 3d 916, 920 (2008).
¶ 38 The decision whether to grant a continuance for purposes of substitution of counsel is a
matter left to the discretion of the circuit court and will not be overturned absent an abuse of
discretion. People v. Segoviano, 189 Ill. 2d 228, 245 (2000). “It is within the trial court’s
discretion to determine whether the defendant’s right to selection of counsel unduly interferes
with the orderly process of judicial administration.” Tucker, 382 Ill. App. 3d at 920. “In
balancing the judicial interest of trying the case with due diligence and the defendant’s
constitutional right to counsel of choice, the court must inquire into the actual request to
determine whether it is being used merely as a delaying tactic.” People v. Burrell, 228 Ill. App.
3d 133, 142 (1992). Where a court conducts an inquiry into the circumstances of defendant’s
motion, and substitution counsel does not stand “ ‘ready, willing, and able to make an
unconditional entry of appearance’ on defendant’s behalf” the court does not abuse its discretion
10
by denying defendant’s request. People v. Curry, 2013 IL App (4th) 120724, ¶ 51 (quoting
People v. Koss, 52 Ill. App. 3d 605, 607-08 (1977)).
¶ 39 In the present case, the court inquired whether defendant was ready to proceed to the
hearing as a self-represented litigant, as he had indicated in the motion. Defendant told the court
that he was unprepared to proceed. Given the number and nature of representations pursued by
defendant in this case, the court’s inquiry was sufficient to establish that defendant’s continuance
request on the hearing date was a delay tactic. See People v. Adams, 2016 IL App (1st) 141135,
¶ 15 (“[E]ven where new counsel is not identified, reversal of a trial court’s denial of a
continuance is warranted where the trial court fails to inquire into whether defendant is using the
request as a delaying tactic.”). The record contains no indication that new counsel was standing
“ ‘ready, willing, and able to make an unconditional entry of appearance’ on defendant’s behalf.”
Curry, 2013 IL App (4th) 120724, ¶ 51 (quoting Koss, 52 Ill. App. 3d at 607-08). Instead,
Lonergan indicated that defendant wanted a continuance to hire new counsel. Given the absence
of new counsel standing ready to represent defendant, defendant’s disinclination to represent
himself, and Lonergan’s ability and willingness to represent defendant, the court denied
defendant’s request for a continuance to obtain new counsel and the motion to suppress hearing
went forward with Lonergan as defendant’s counsel. See United States v. Wheat, 486 U.S. 153,
159 (1988) (The aim of the sixth amendment is “to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he prefers”).
¶ 40 We conclude that the court did not abuse its discretion in determining that defendant’s
continuance request to obtain new counsel was a delay tactic; indeed, the three-year timeline,
over which defendant hired three private lawyers, represented himself twice, and accepted the
11
appointment of the public defender three times, more than supports the court’s denial of
defendant’s motion to continue.
7/29/15 - Defendant appeared with private attorney Leasor for
arraignment, who indicated he would be filing an appearance thereafter.
9/3/15 - Defendant asked the court for more time to hire private attorney
(needed to raise more money for attorney).
9/24/15 - Attorney Hall (Hall, Rustom & Fritz, LLC/Leasor’s firm) files
appearance for defendant.
7/8/16 - Motion to suppress filed.
8/24/16 - Leasor files motion to withdraw due to “breakdown in parties’
communications.” Court appoints assistant public defender Loeffel for the first
time. Defendant insisted he wanted to hire new private counsel.
11/28/16 - Second private counsel, Larry Smith, files appearance.
8/10/17, 8/24/17, 10/5/17, 11/30/17 - Court grants multiple continuances
to hire new counsel due to counsel Smith’s stroke.
2/1/18 - Defendant has not hired new counsel but declines reappointment
of public defender. Asks to represent himself.
2/13/18 - Court admonished defendant about self-representation and
defendant elects to represent self. Court sets pretrial conference date of 3/22/18
and trial date of 4/2/18.
3/22/18 - Defendant tells the court he is not ready for trial and requests
and receives reappointment of assistant public defender Loeffel.
2/4/19 - Loeffel files motion to withdraw motion to suppress.
12
2/6/19 - Defendant informs the court he wants to hire private counsel.
Court tells defendant they are 30 days out from trial date and he has three options:
stick with the public defender, proceed pro se, or find private counsel.
2/25/19 - Third private counsel, Lonergan, files appearance on defendant’s
behalf.
4/23/19 - Lonergan refiles motion to suppress from July 2017.
7/3/19 - Lonergan files motion to withdraw due to “breakdown in
communications.”
7/17/19 - Lonergan informs the court that defendant had told him he had
wanted to proceed pro se but now wanted to hire new counsel. Lonergan said he
was “able and willing” to continue his representation. Court indicated that the
hearing was going to go forward, and asked defendant if he was ready to go
forward. Defendant says no. The court informed defendant that Lonergan would
remain his lawyer and the hearing commenced.
8/12/19 - Defendant says he wants to represent himself moving forward
and asked to add evidence to the motion to suppress hearing, claiming that
Lonergan did not subpoena certain records.
8/19/19 - Court again admonished defendant on self-representation.
Defendant elects to represent himself for the second time, and the court appoints
Lonergan as standby counsel to effect defendant’s subpoenas for the continuation
of defendant’s motion to suppress.
9/24/19 - Defendant presents no additional evidence, having failed to work
with Lonergan to timely issue subpoenas that were sensical. Court concludes
13
suppression hearing and defendant asks for reappointment of public defender for
the third time.
9/26/19 - Assistant public defender Loeffel reappointed.
¶ 41 Throughout the pendency of defendant’s case, the court exercised tremendous patience
and indulged defendant’s numerous continuances to obtain various counsel of his choosing.
Indeed, if one adds up all the different private counsel, defendant’s periods of self-representation,
and the times the public defender was appointed, defendant had no less than eight different
stages of representation prior to the court’s ruling on his motion to suppress. Simply put, where
new counsel was not ready, willing, and able to make an unconditional entry of appearance on
defendant’s behalf, the court did not abuse its discretion when it denied defendant’s continuance
request on the date of the suppression hearing. See Curry, 2013 IL App (4th) 120724, ¶ 51.
¶ 42 Because no error occurred, defendant cannot establish plain error. Defendant’s ineffective
assistance of counsel claim counsel similarly fails because counsel was not ineffective for failing
to raise this meritless issue. See People v. Hale, 2013 IL 113140, ¶ 17 (“[W]e may dispose of an
ineffective assistance of counsel claim by proceeding directly to the prejudice prong without
addressing counsel’s performance”); see also People v. Enis, 194 Ill. 2d 361, 377 (2000) (“If the
underlying issue is not meritorious, then defendant has suffered no prejudice.”).
¶ 43 B. Excessive Sentence
¶ 44 Defendant next argues that his sentence is excessive because the circuit court failed to
give adequate weight to defendant’s nonviolent criminal history, family ties, remorse, and the
nature of the offense.
¶ 45 The Illinois Constitution requires that “[a]ll penalties shall be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
14
citizenship.” Ill. Const. 1970, art. I, § 11. The circuit court has wide latitude in sentencing a
defendant to any term prescribed by statute, “[a]s long as the court does not consider
incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors.”
People v. Hernandez, 204 Ill. App. 3d 732, 740 (1990). Relevant sentencing considerations
include the nature of the crime, the public’s protection, deterrence, punishment, and the
defendant’s rehabilitative potential. People v. Kolzow, 301 Ill. App. 3d 1, 8 (1998).
¶ 46 In mitigation, a court shall consider whether: (1) defendant’s criminal conduct caused or
threatened serious physical harm; (2) defendant’s criminal conduct was the result of
circumstances unlikely to recur; and (3) the character and attitudes of defendant indicate that he
is unlikely to commit another crime. 730 ILCS 5/5-5-3.1(1), (8)-(9) (West 2014). The weight that
the court attributes to any factors in mitigation depends on the particular circumstances of the
case. Kolzow, 301 Ill. App. 3d at 8. The court is not required to cite each factor it considered in
fashioning a defendant’s sentence. People v. Perkins, 408 Ill. App. 3d 752, 763 (2011).
¶ 47 We review the circuit court’s sentencing determination for an abuse of discretion. People
v. Stacey, 193 Ill. 2d 203, 209 (2000). We will find an abuse of discretion only where the court’s
ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view
adopted by the court. People v. Hall, 195 Ill. 2d 1, 20 (2000). We will not disturb a sentence
within the applicable sentencing range unless the circuit court abused its discretion. Stacey, 193
Ill. 2d at 209-10.
¶ 48 At the outset, the statutory sentencing range for unlawful possession of cocaine with
intent to deliver, a Class X felony, is 6 to 30 years’ imprisonment. See 720 ILCS
570/401(a)(2)(A) (West 2014); 730 ILCS 5/5-4.5-25(a) (West 2014). Defendant’s 27-year and 6-
15
month prison sentence is within the statutory range. Therefore, the sentence is presumptively
valid. People v. Busse, 2016 IL App (1st) 142941, ¶ 27.
¶ 49 During the sentencing hearing, the court explicitly said that it considered the factors in
aggravation and mitigation, the evidence presented, defendant’s statement in allocution, the PSI,
the history and character of defendant, and the circumstances and the nature of the offense.
Defendant cites nothing in the record that shows the court affirmatively dismissed defendant’s
nonviolent criminal history, family ties, remorse, or the nature of the offense. See Hernandez,
204 Ill. App. 3d at 740. Instead, the record shows that the court expressly considered defendant’s
supportive family and discussed the nature of the present and past offenses. Further, the court
noted defendant’s likelihood to recommit the offenses when it discussed defendant’s subsequent
violations. Ultimately, the court determined that defendant’s mitigating evidence did not
significantly deprecate the seriousness of the offense or warrant the imposition of a lesser
sentence. We conclude that the court properly weighed the factors in mitigation and, thus, did not
abuse its discretion in sentencing defendant. Defendant’s sentence is not excessive.
¶ 50 III. CONCLUSION
¶ 51 The judgment of the circuit court of Peoria County is affirmed.
¶ 52 Affirmed.
16