Opinion
3-12-0404
12-06-2013
THE PEOPLE OF THE STATE OF, ILLINOIS Plaintiff-Appellee, v. HIRTHA RICHARDSON, 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 the 10th Judicial Circuit,
Peoria County, Illinois,
Appeal No. 3-12-0404
Circuit No. 11-CF-899
Honorable
Michael Brandt
Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Lytton and McDade concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion when it denied defendant's motion for a continuance because defendant did not assert new counsel was ready and willing to appear. Defendant's DNA analysis fee is vacated. ¶ 2 A jury convicted defendant Hirtha Richardson of aggravated unlawful use of a weapon and unlawful possession of a weapon by a felon. The court sentenced defendant to serve a 14-year term of imprisonment. Defendant appeals, contending the trial court erred when it denied his motion for a continuance to secure private counsel and by ordering him to pay a deoxyribonucleic acid (DNA) analysis fee. We affirm defendant's convictions, but vacate the DNA analysis fee.
¶ 3 BACKGROUND
¶ 4 On September 21, 2011, the State charged defendant with aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(2) (West 2010)) and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)). The charges stemmed from an incident on September 20, 2011, where Peoria police officers found defendant in possession of a gun in a parked car on a public road. ¶ 5 On September 21, 2011, the court informed defendant of the charges against him and appointed the public defender to represent defendant, who appeared in court on defendant's behalf on that day. At a hearing on November 21, 2011, defendant appeared with appointed counsel and moved for a continuance of the jury trial date, which the trial court granted by setting a January 3, 2012, jury trial date. The corresponding order indicated defense counsel planned to file a motion for bond reduction, which appointed counsel filed on November 23, 2011. On January 3, defendant moved for a continuance, which the court again granted. The court then set the matter for a February 27, 2012, jury trial date. ¶ 6 On February 27, 2012, the court inquired whether the "[p]arties [were] ready to go[.]" Defense counsel stated the "[d]efense [was] ready[.]" Similarly, the State indicated it was also ready to proceed to trial. Immediately thereafter, Judge Kouri, the trial judge, informed the parties he was scheduled to begin another trial the next day. Consequently, the parties approved an agreed order continuing the jury trial to the next day, in front of Judge Brandt. ¶ 7 The next day, February 28, 2012, the parties appeared before Judge Brandt. When the trial court asked if the defense was ready for trial, defense counsel requested a moment to confer with defendant, which the trial court granted. After the recess, defense counsel indicated to the court that defendant was "uncomfortable with [counsel's] representation." Counsel explained that defendant "did not want to put on clothes for trial" and stated that he was not sure whether defendant "actually want[ed] to proceed with a trial today[,]" but defendant "indicate[d] that he does not want [counsel] representing him." Defense counsel continued that "if he must, [defendant] would represent himself." Counsel did not "know if this [was] a request that [defendant] have another attorney appointed to represent him, and if that[ was] denied [defendant] would represent himself[.]" ¶ 8 The court noted it appeared defense counsel had represented defendant "for quite a few months." The court asked defendant the basis for his dissatisfaction in counsel's representation, and defendant responded that the first time he spoke with counsel about trial was the day before and that the "only thing [defense counsel] has come up to talk to [defendant] about was copping out." The court recessed for the purpose of allowing defendant and defense counsel to confer about the State's evidence and "what, if any, defenses that exist in the case." ¶ 9 After an hour long recess, defense counsel informed the court that after discussing a "possible strategy," defendant was "still displeased with [counsel's] representations." Defendant then addressed the court and indicated that counsel's strategy was to show defendant's fingerprints were not on the gun, but defendant wanted counsel to point out to the jury he was "texting on [his] cell phone" when the police officer was talking to him at the time of the offense and thus, he could not also have had a gun in his hand. Defendant continued he and counsel were "not clicking" and he wanted time to hire an attorney or to proceed by representing himself. ¶ 10 The court found defendant's request to hire an attorney to be untimely because the case had been pending since September 2011. The court observed defendant was unable to post the $3,000 bail. The court did "not perceive it viable at all to allow [defendant] to have a continuance at this very last minute when the jury was literally in the corridor waiting to be selected before our recess to delay the case any further. So any oral request to continue the case to hire private counsel [was] respectfully denied." ¶ 11 Defendant ultimately decided to proceed with current defense counsel. After trial, during which defense counsel questioned both of the State's witnesses about defendant's cell phone use at the time of the offense, the jury convicted defendant as charged. A presentence investigation report filed in preparation for the sentencing hearing stated, among other things, "DNA: Registered." ¶ 12 The court sentenced defendant only on the charge of unlawful possession of a weapon by a felon. The court imposed a 14-year term of imprisonment and various fines and costs. The court did not order defendant to pay a DNA testing fee. However, the "Case Payments" sheet issued by the Peoria County clerk lists a charge of $200 for "DNA." ¶ 13 Defendant appeals.
¶ 14 ANALYSIS
¶ 15 I. Motion for a Continuance
¶ 16 Defendant first contends the trial court abused its discretion when it denied his request for a continuance to obtain new counsel. Defendant acknowledges this issue is subject to plain error review because he did not offer a contemporaneous objection and raise this issue in a posttrial motion. The State asserts the trial court did not err by denying defendant's trial-day request for a continuance to obtain new counsel. The State contends the court's ruling was proper because defendant did not establish he had new counsel ready and willing to enter an appearance. ¶ 17 A trial court's consideration of a motion to continue to secure substitute counsel must balance the defendant's constitutional right to counsel of his choice and the interest of diligently and efficiently completing the trial. People v. Jackson, 216 Ill. App. 3d 1, 6 (1991). Factors for this court to consider when evaluating the trial court's use of its discretion by denying a request by either party for a continuance include: the diligence of the movant; defendant's right to a fair, speedy, and impartial trial; and the interests of justice. People v. Segoviano, 189 Ill. 2d 228, 245 (2000). ¶ 18 The decision to grant a continuance for a defendant to obtain substitute counsel is a matter left to the discretion of the trial court. People v. Staple, 402 Ill. App. 3d 1098, 1102 (2010). The case law provides, "that a trial court will not be found to have abused its discretion in denying a motion for substitution of counsel in the absence of ready and willing substitute counsel." Segoviano, 189 Ill. 2d at 245; see also Staple, 402 Ill. App. 3d 1098 (court affirmed trial court's decision to deny trial-day request for a continuance to obtain substitute counsel where defendant did not show that substitute counsel was ready, willing and able to represent defendant). ¶ 19 The record shows both parties indicated to the court they were ready to proceed to trial on February 27. However, the court continued the cause on its own motion to February 28 while indicating another judge would likely preside over the jury trial on the next day. Ironically, when defendant made a similar request for a continuance the next day, the court refused to delay the trial after finding defendant's request, on the day of trial, was not timely. ¶20 We note the court did not ask how much additional time defendant would need to secure private counsel or consider the absence of a speedy trial demand. The failure to make any inquiries on these pertinent issues before denying the continuance now gives rise to defendant's genuine concern that the court was acting in an arbitrary fashion. See People v. Illgen, 145 Ill. 2d 353 (1991) (an abuse of discretion occurs when, among other things, the court's decision is arbitrary or fanciful); see also People v. Newborn, 379 Ill. App. 3d 240 (2008) (this court noted a trial court's failure to exercise its discretion at all may amount to an abuse of discretion). ¶ 21 Nonetheless, we cannot ignore that defendant indicated he was ready to proceed to trial with Judge Kouri, when represented by the same defense counsel. Once defendant was informed the trial would be continued to the next day with Judge Brandt, defendant did not make his own timely request for a continuance to secure private counsel. Most importantly, defendant also did not inform Judge Brandt that substitute counsel was ready and willing to enter an appearance in the case. ¶ 22 Based on these facts, we conclude the trial court did not abuse its discretion when it denied defendant's request for a continuance. Therefore, because the trial court did not err, we need not examine this issue for plain error. See People v. Cosby, 231 Ill. 2d 262, 285 (2008).
¶ 23 II. DNA Analysis Fee
¶ 24 Defendant next contends the trial court erred when it imposed a DNA Analysis fee because his DNA had already been collected and the fee paid in a previous case. The State agrees. ¶ 25 Pursuant to section 5-4-3 of the Unified Code of Corrections, the trial court is authorized to order the taking of DNA from any person convicted of a felony and to order the individual to pay the corresponding analysis fee. 730 ILCS 5/5-4-3(a), (j) (West2010). However,"section 5-4-3 authorizes a trial court to order the taking, analysis and indexing of a qualifying offender's DNA, and the payment of the analysis fee only where that defendant's DNA] is not currently registered in the DNA database." People v. Marshall, 242 Ill. 2d 285, 303 (2011). A defendant does not forfeit the issue by failing to raise it in the trial court because an order to this effect is void and therefore, not subject to forfeiture. Marshall, 242 Ill. 2d at 302. ¶ 26 In this case, the State correctly notes the trial court did not order defendant to pay the DNA analysis fee. Instead, the circuit clerk included this fee on defendant's "Case Payments" sheet. Based on these circumstances, this DNA fee should be vacated.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed as modified. ¶ 29 Affirmed as modified.