People v. Leeper

Case Date: 11/17/2000
Court: 5th District Appellate
Docket No: 5-99-0260 Rel

                     NOTICE
Decision filed 11/17/00.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-99-0260

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

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THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

DONALD LEEPER,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Randolph County.

No. 98-CF-134

Honorable
Jerry D. Flynn,
Judge, presiding.

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JUSTICE CHAPMAN delivered the opinion of the court:

Three questions are presented in this appeal: two constitutional issues and onestatutory. The constitutional issues involve (1) a request for self-representation and (2) aclaim of the ineffective assistance of counsel. The statutory issue involves both section 5-8-7(b) of the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West 1992)) (thecredit-against-sentence provision) and section 5-8-4(e)(4) of the Unified Code ofCorrections (730 ILCS 5/5-8-4(e)(4) (West 1992)) (the consecutive-sentence provision). For the reasons that follow, we affirm the denial of the self-representation request, weconclude that the ineffective-assistance-of-counsel claim fails, and we affirm the lowercourt's decision declining to award the defendant sentencing credit for the time spent in thecustody of the Department of Corrections for his parole violation.

FACTS

On September 16, 1998, the State of Illinois charged the defendant, Donald Leeper,with the offense of driving while license revoked. The charge alleged that on August 8,1998, Leeper operated a motor vehicle in Percy, Illinois, while his driver's license wasrevoked due to a prior conviction for driving under the influence of alcohol and after havingpreviously been convicted of driving while license revoked. The court appointed theRandolph County Public Defender, Mr. Rayburn Fricke, to represent Leeper.

The cause was called for a jury trial on November 16, 1998. In addition to thedriving-while-revoked charge, Leeper was also tried for two traffic violations. Prior to thejury selection, Leeper stated that he had a conflict of interest with Fricke. He stated thatFricke was not assisting him in preparing for the trial. Leeper then requested a continuanceand different counsel. The court refused and stated that the jury was ready to be selected. Leeper then stated that he refused to have counsel represent him. Leeper stated that he hadonly limited communication with Fricke. Fricke indicated that he believed that he hadcovered everything with Leeper that needed to be covered.

The court prepared to conduct the voir dire. Fricke waived the transcription of thevoir dire. Leeper again stated that he refused to cooperate with Fricke and did not wantFricke to represent him. Although the voir dire was not transcribed, the strikes for cause andthe peremptory challenges were noted on the record. Following this, Leeper stated that hewanted to represent himself. The court refused and stated that the jury trial had begun. Thecourt then took a lunch recess.

Upon return, the court noted that, during the recess, a juror had contacted a bailiff andasked to speak with the judge. The judge then spoke with the juror. Neither the attorneysnor the court reporter were available at that time. The juror indicated to the judge that, dueto her religious beliefs, she could not sit in judgment of another person and, therefore, couldnot serve on the jury. According to the judge, through his questioning, the juror indicatedthat she would be unable to deliberate and to reach a verdict. Because of this, the judgeexcused her. Fricke stated that the juror could have been highly favorable to Leeper, but heoffered no objection to the court's actions.

In its opening statement, the State indicated that it would present evidence that aPercy police officer had seen a vehicle, driven by Leeper, fail to stop at a stop sign. Theofficer, in a marked squad car, then signaled for the vehicle to stop. The vehicle thenaccelerated away and went through an intersection before stopping in a parking lot. Thedriver tried to run from the officer. Additionally, the State stated that it would show thatLeeper's driver's license had been suspended on the date of the offense.

Fricke then presented his opening statement and stated that Leeper pled not guilty tothe offense. Fricke explained to the jury that the burden of proof in the case lay with theState to show that Leeper was guilty beyond a reasonable doubt. He also stated that heanticipated that Leeper would testify, and he asked the jury to listen carefully to bothLeeper's and the police officer's versions of the events.

Washington County Deputy Sheriff Ralph Jones testified that on August 8, 1998, hewas a police officer in Percy, Illinois. At 10:45 p.m., he had been patrolling in his markedsquad car and observed a vehicle drive through a stop sign at Second and Almond Streets. Jones saw a driver and no passengers in the vehicle. Jones then turned on his lights in orderto make a traffic stop. He then heard the vehicle accelerate. According to Jones, the vehiclethen proceeded up Fourth Street, disregarded another stop sign, and eventually drove ontoa parking lot. Jones testified that as he was standing next to the squad car with his weapondrawn, Leeper ran from the vehicle. Jones tackled Leeper, handcuffed him, and placed himin the squad car. During his testimony, Jones identified Leeper as the driver of the vehicle. Fricke did not cross-examine Jones. Leeper asked to cross-examine Jones, but the court didnot allow him to do so.

Next, the State introduced into evidence a certified copy of Leeper's driver's licenseabstract, which indicated that Leeper's license had been revoked on August 8, 1998. TheState then rested, and the court took a recess.

During the recess, Leeper told Fricke that he would not testify. After the recess,Leeper asked the court if he could show letters he had written to Fricke about the case,which, according to Leeper, indicated that he had not received satisfactory responses fromFricke. Leeper stated that he believed he had evidence and witnesses with which to attackJones's credibility but that a defense had not been prepared. Leeper again stated that hewanted to represent himself and that he did not think Fricke was competent. The court askedLeeper if he would testify, and he did not respond. The court then stated that it wouldproceed with the trial, and Fricke indicated that the defense would rest.

Next, the jury-instruction conference was held. After the conference, the courtallowed the State to reopen its case to add to the record, for the court's use only, a certifiedcopy of Leeper's driver's license abstract. The abstract showed Leeper's prior convictionsfor driving under the influence of alcohol and driving while license revoked. The defensemade no objection.

Following another recess, Leeper stated that he no longer wanted to be present in thecourtroom. The court informed the jury that Leeper had voluntarily elected not to stay in thecourtroom. The defense then rested.

Brief closing arguments were given. The judge read the jury instructions to the jury,and the jury retired at 2:40 p.m. The jury then returned with guilty verdicts at 2:55 p.m.

On November 25, 1998, Leeper filed a pro se motion to remove the public defenderas counsel, in which he alleged that he had been denied the effective assistance of counsel. On December 8, 1998, Leeper filed a pro se motion for a new trial, in which he also allegedthat he had been denied the effective assistance of counsel and that the court had violatedhis constitutional rights in failing to remove Fricke.

On December 21, 1998, a hearing was held on the motion, and the judge decided thatseparate counsel should be appointed to represent Leeper. On January 8, 1999, the courtappointed Mr. Randall Rodewald to represent Leeper.

On March 18, 1999, a hearing was held on the motion to remove the public defenderas counsel. Fricke was called as a witness. He testified that between August and November1998 he had three or four short meetings with Leeper regarding the case. Frickeacknowledged that he had used all of his peremptory challenges prior to the impaneling ofa correctional officer and the wife of a deputy sheriff as jurors. He also acknowledged thathe had not asked to question the juror that the judge had excused during the recess. Lastly,he acknowledged that he did not cross-examine the State's witness and did not object whenthe State reopened its case to submit the driver's abstract exhibit.

The court found that Fricke had done "the job he could based on the level ofcooperation that he was receiving from his client." The court, however, granted the motionremoving Fricke and appointed Rodewald to represent Leeper at the sentencing hearing.

On April 12, 1999, the sentencing hearing was held. Rodewald argued Leeper'sposttrial motion, contending that Fricke had been ineffective. The court denied the motionfor a new trial. A presentence investigation report had been filed December 18, 1998. Thecourt noted Leeper's numerous prior felony convictions and found that he was eligible foran extended-term sentence. The court then imposed an extended-term sentence of six years'imprisonment for the driving-while-license-revoked conviction.

STANDARD OF REVIEW

The determination of whether a defendant's constitutional rights have been violatedis subject to de novo review. Quantum Pipeline Co. v. Illinois Commerce Comm'n, 304 Ill.App. 3d 310, 314, 709 N.E.2d 950, 953 (1999). The standard of review is also de novo forthe appeal of the statutory claim. Boaden v. Department of Law Enforcement, 171 Ill. 2d230, 237, 664 N.E.2d 61, 65 (1996).

ANALYSIS

I. Self-Representation

In Faretta v. California, the Supreme Court held that the sixth amendment right tocounsel (U.S. Const., amend. VI) implicitly provides for the right of self-representation incriminal proceedings. Faretta v. California, 422 U.S. 806, 821, 45 L. Ed. 2d 562, 95 S. Ct.2525, 2534 (1975). The Illinois Constitution also has a similar provision that guarantees anaccused this right. Ill. Const. 1970, art. I,