Opinion
No. 1-12-2546
05-27-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MONTELL BEDELL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County
No. 10 C 661497-01
Honorable
Frank Zelezinski,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Harris and Justice Simon concurred in the judgment.
ORDER
¶ 1 Held: Defendant's ineffective assistance of counsel claim is better raised in a postconviction petition. The Extended Juvenile Jurisdiction provision of the Juvenile Court Act does not violate the eighth amendment or due process. ¶ 2 Following a bench trial, defendant Montell Bedell was convicted of residential burglary (720 ILCS 5/19-3 (West 2010)), and was sentenced to four years' incarceration. Defendant was seventeen years old at the time of the offense. Defendant's co-defendant, Kenneth Gilmore, was acquitted. On appeal, defendant argues: (1) trial counsel was ineffective for failing to file a motion to suppress his statement; (2) the Extended Juvenile Jurisdiction (EJJ) portion of the Juvenile Court Act (Act) (720 ILCS 405/5-120 (West 2010)) violates the eight amendment and due process. For the following reasons, we affirm the judgment of the circuit court.
Kenneth Gilmore is not a party to this appeal.
¶ 3 BACKGROUND
¶ 4 On November 29, 2010, defendant had a conversation with his friend James Desavieu on the internet. Defendant and James knew each other from school and from the neighborhood. James told defendant he was planning to have some girls over to his house. Defendant testified that he told James he would come over to his house the next morning. However, James stated that he and defendant did not set an exact date to hang out with the girls, and he did not invite defendant over to his house the following day. ¶ 5 On November 30, 2010, defendant called James and sent him an instant message, but James did not respond. Defendant met up with co-defendant Kenneth Gilmore, and they walked to James's house. Defendant and Kenneth arrived at James's house at about 11:00 a.m. Defendant rang the front doorbell, but there was no answer. James was asleep in the basement, but the doorbell woke him. When he went upstairs to look out the window, he saw defendant and Kenneth but did not answer the door. ¶ 6 Defendant and Kenneth then went to the back door and knocked. James said he heard the back doorbell ring and looked outside, but did not see anyone. Defendant and Kenneth went to the side of the house. While in the kitchen, James heard a noise coming from the basement and yelled, "Who is that?" James then heard defendant and Kenneth run from the house. James went into the basement and noticed that the ground-floor window was wide open. James testified that this window had two "stoppers" that prevented the window from being opened more than a few inches and that the "stoppers" had been broken. Also, James saw a footprint on the washing machine that sat directly beneath the open window. After seeing the footprint, James called the police. ¶ 7 Glenwood police Detective Derrick Peddycord arrived at James's house. Detective Peddycord saw the open, ground-floor window and a footwear impression on the washing machine. Earlier in the day, around 11:03 a.m., Glenwood police Detective Tom Morache was on his way to pick up a witness when he noticed defendant and Kenneth walking toward James's house. Detective Morache knew defendant and Kenneth from the neighborhood. About ten minutes later, Detective Morache received a radio call "which called for a response to a burglary in progress to all Glenwood units." The radio call gave a description of two subjects. According to Detective Morache, the description matched the clothing he observed defendant and Kenneth wearing. ¶ 8 On November 31, 2010, Detective Morache and Detective Peddycord went to Kenneth's house. Defendant was also there. Both defendant and Kenneth were arrested and brought back to the Glenwood police station. Defendant's parents were not present at the police station at any point after his arrest. ¶ 9 In an interrogation room at the Glenwood police station, Detective Morache read defendant his Miranda rights using a juvenile rights form since defendant was seventeen at the time. Defendant testified that he told both detectives that he went to James's house to meet up with girls. However, he testified that the detectives did not believe him and kept asking him to tell the truth. Defendant testified that the detectives told him he would be in more trouble if he kept telling them the same story. Detective Morache and Detective Peddycord then left the interrogation room, for reasons that are unclear. ¶ 10 When they returned, defendant changed his story. Detective Morache typed a statement and read it to defendant. Defendant stated that he never read the statement. The statement read, "No one came to [James's] door still. I saw a window that goes to the basement and opened the window. I put my leg inside the window and then heard somebody inside the house yell into the basement and me and Kenneth then ran from the house. I was going to go inside to see if there was anything that I could take." Defendant initialed each paragraph where the detectives told him to, and signed the statement. ¶ 11 At the trial, defendant testified that he went to James's house, "because James said he was going to have some females over there, and we were supposed to kick it with them." He testified that he opened a ground-level window that led into James's basement; however, he denied putting his foot inside the window. Defendant testified that he was afraid of being in more trouble: "I was scared because they kept saying that it's going to be-if I don't tell the truth, it's going to be worse because they didn't believe my story," so he told detectives that he decided to try and enter James's house to see what he could take. Defendant testified that this statement was not true. ¶ 12 Detective Morache testified that he spoke to defendant's parents at their home, but did not specify when he did so. During cross-examination, defense counsel asked Detective Morache whether he told defendant that his initial statement that he was going to James's house was unacceptable. Detective Morache testified that he could not remember the entire conversation but "didn't recall telling defendant it was unacceptable. I asked him or my partner asked him if there was any other reason that he was going over to the residence, and that is when he stated that he was going to see what he could take." Detective Morache admitted that when he initially questioned defendant, defendant did not mention wanting to steal anything from James's house. ¶ 13 After hearing all of the evidence, the court found that while defendant might not have gone to James's house for any ill nature, when the opportunity arose he did enter the house to take something. The court found defendant guilty and sentenced him to four years' incarceration. The court denied defendant's motion for a new trial. This appeal followed.
¶ 14 ANALYSIS
¶ 15 Defendant first argues that trial counsel rendered ineffective assistance when counsel failed to move to suppress his statements as involuntary. Defendant alleges that because he was only seventeen at the time of the arrest, his parents were not present at the police station, and the police coerced him to change his story with threats of increased punishment, that his confession was involuntary. The State argues that this issue is not ripe for appeal given that "the undeveloped record in this case does not allow for the conclusion that counsel was either deficient for failing to file the motion or that defendant suffered any resulting prejudice where he is unable to establish that he had a meritorious motion to make," ¶ 16 The Supreme Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, (1984). Generally, to prevail on a claim of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance was so deficient that it 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. Strickland v. Washington, 466 U.S. 668 (1984); People v. Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim that his trial counsel was ineffective for failing to file a motion to suppress statements, the defendant must show that there was a reasonable probability that the motion would have been granted and that the outcome of the trial would have been different if the arrest had been quashed or the statements suppressed. In re A.R., 295 Ill. App. 3d 527, 531 (1998). ¶ 17 We first turn to the question of whether there was a reasonable probability that the motion would have been granted. When analyzing whether a defendant's statement is made voluntarily, the test is whether, under the totality of the circumstances, the statement was made freely, without compulsion or inducement, with consideration given to the characteristics of the accused as well as the details of the interrogation. People v. Slater, 228 Ill. 2d 137, 160 (2008). Relevant factors in determining whether a confession was voluntary under the totality of the circumstances include the age, intelligence, experience and physical condition of the accused, the length and intensity of the interrogation, and the existence of any threats, promises, or physical coercion. Id. When a juvenile is involved, additional factors come into play, such as the time of day and the presence of a parent or other adult interested in the juvenile's welfare. People v. Murdock, 2012 IL 112362. Although a juvenile does not have a per se right to consult with a parent before questioning or to have a parent present during questioning, the presence or absence of a parent is a factor in evaluating the voluntariness of a confession under the totality of the circumstances. Id., ¶ 32, 33. ¶ 18 Because the voluntariness of defendant's confession was not challenged before the trial court, the record before us does not contain the information necessary to allow us to make a proper analysis. There is no specific information regarding defendant's physical condition, the length or intensity of the interrogation, or the involvement of any parent of other adult interest on behalf of defendant. This court has noted the difficulty of resolving ineffective assistance of counsel claims on direct appeal instead of on collateral review when doing so requires consideration of matters outside of the record on appeal. See People v. Millsap, 374 Ill. App. 3d 857, 863 (2007) (where a defendant's claim of ineffective assistance of counsel involves matters outside of the record on direct appeal, that claim can be addressed in a proceeding under the Act because a complete record can be made). ¶ 19 In People v. Durgan, 346 Ill. App. 3d 1121, 1142 (2004), this court, quoting the United States Supreme Court's decision in Massaro v. United States, 538 U.S. 500, 504-05 (2003), explained why it is preferable that an ineffective-assistance-of-counsel claim be brought on collateral review instead of on direct appeal, as follows:
"When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Under [Strickland], a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial. The evidence introduced at trial, however, will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the¶ 20 After thorough review of the record before us, we conclude that the record is not sufficiently complete to allow us to resolve defendant's ineffective assistance of counsel claim. We express no opinion on the merits of defendant's claim but simply find that defendant's claim would be more appropriately addressed in proceedings under the Post Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). ¶ 21 Defendant next argues that the EJJ provision (720 ILCS 405/5-120 (West 2010)), which excludes seventeen-year-old minors from juvenile court jurisdiction and automatically treats all seventeen-year-old defendants as adults, violates a juveniles' rights to be free from cruel and unusual punishment under the eighth amendment. Defendant contends the recent Supreme Court decisions Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. _, 132 S. Ct. 2455, 2475 (2012), support his argument. ¶ 22 All statutes are presumed to be constitutional, and the burden of rebutting that presumption is on the party challenging the validity of the statute to demonstrate a constitutional violation. People v. Cornelius, 213 Ill. 2d 178, 189 (2004). Whether a statute is constitutional involves a question of law, and review is de novo. People v. McCarty, 223 Ill.2d 109, 135 (2006). ¶ 23 The eighth amendment prohibits the government from inflicting a cruel and unusual method of punishment upon a defendant. U.S. Const., amend. VIII. Other constitutional provisions ensure a defendant's right to fair process before any punishment is imposed. Graham v. Florida, 560 U.S. 48, 101 (2010). Within the last decade, the United States Supreme Court has considered a number of eighth amendment challenges involving sentences imposed on juvenile offenders. In Roper v. Simmons, the Supreme Court held the eighth amendment bars capital punishment for juvenile offenders. Roper, 543 U.S. at 551. In Graham v. Florida, the Court held a sentence of life without parole violates the eighth amendment when imposed on juvenile non-homicide offenders. Graham, 560 U.S. at 101. Most recently, in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 2475 (2012), the Court extended these holdings, ruling that automatically sentencing a juvenile to life-without-parole, even for a homicide, violated the eighth amendment. The Court expressed concern that such mandatory penalties "preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at ___, 132 S. Ct. at 2467. ¶ 24 We note that Illinois courts have rejected the same argument defendant raises here. In People v. Harmon, 2013 IL App (2nd) 120439, this court recognized that in Roper, Graham, and Miller, the Supreme Court was dealing with cases concerning the harshest possible penalties, the death penalty and life sentences without the possibility of parole . Harmon, 2013 IL App (2d) 120439, ¶ 54; see also People v. Pacheco, 2013 IL App (4th) 110409, ¶ 51. The Harmon court rejected the defendant's argument that Roper, Graham, and Miller justified his constitutional challenge, explaining that because the defendant was not sentenced to the death penalty or to a life sentence, the trial court was able to consider the defendant's age and other circumstances in determining the range of sentence to impose. Harmon, 2013 IL App (2d) 120439, ¶ 54. ¶ 25 Similarly here, defendant was neither given a life sentence nor the death penalty. The record shows that in imposing sentence in this case that the trial court considered all of the factors in aggravation and mitigation, as well as the presentence investigation report prior to sentencing defendant to four years' imprisonment, a sentence within the statutory sentencing range. (720 ILCS 5/19-3 (West 2010). We find no reason to depart from Harmon and therefore reject defendant's constitutional challenge. ¶ 26 Harmon is also dispositive of defendant's due process challenge. Defendant argues that the EJJ provision of the Act violates a juvenile's right to due process because Illinois' statutory sentencing scheme requires courts to prosecute and sentence seventeen-year-old offenders as adults without any inquiry concerning juveniles' culpability, maturity, or capacity for rehabilitation. Defendant suggests that under Roper, Graham and Miller, juveniles have a fundamental liberty interest in not being automatically treated as adults, without any court consideration of their youthfulness and circumstances of their case for sentencing purposes. ¶ 27 This court in Harmon has considered and rejected the same due process challenge to the EJJ provision that defendant raises here. In rejecting the defendant's due process argument, the Harmon court noted that "Illinois precedent holds that the automatic transfer provision does not violate a juvenile's due process rights, and the same reasoning applies with equal force to the closely related exclusive jurisdiction provision." Harmon, 2013 IL App (2d) 120439, ¶ 59, (citing People v. J.S., 103 Ill. 2d 395 (1984) (the automatic transfer provision survived the rational basis test because it was rationally based on the juvenile's age and the threat posed by the offenses because of the violence and frequency of their commission.). See also People v. Jackson, 2012 IL App (1st) 10039, ¶ 16 (holding that the automatic transfer provision does not violate either substantive or procedural due process); People v. Croom, 2012 IL App (4th) 100932, ¶ 16 (automatic transfer provision does not violate due process); People v. Patterson, 2012 IL App (1st) 101573, ¶ 27. We find no reason to depart from the holding in Harmon. ¶ 28 CONCLUSION ¶ 29 For the foregoing reasons, the judgment of the circuit court is affirmed. ¶ 30 Affirmed.
counsel's alternatives were even worse. See [Guinan v. United States, 6 F .3d 468, 473 (7th Cir.1993) ] (Easterbrook, J., concurring) ('No matter how odd or deficient trial counsel's performance may seem, that lawyer may have had a reason for acting as he did * * * Or it may turn out that counsel's overall performance was sufficient despite a glaring omission * * * ')." (Internal quotations omitted.)