People v. Burnett

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2008 » People v. Burnett

People v. Burnett

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-3288 Rel

Case Date: 10/20/2008

Preview:FIRST DIVISION October 20, 2008

No. 1-06-3288 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN BURNETT, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Joseph M. Claps, Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court: Jonathan Burnett raises several constitutional issues concerning his sentence for residential burglary. We concentrate

primarily on his motion to reconsider that sentence. The trial court sentenced Jonathan Burnett to ten years in prison. His only issues concern the sentence and his motion to He contends: the court should have

reconsider the sentence.

ordered medical examinations before sentencing; the court denied Burnett his constitutional rights by deciding the motion for reconsideration of the sentence following a hearing that neither Burnett nor his attorney attended; and his counsel provided ineffective assistance both at sentencing and on the motion to reconsider the sentence. BACKGROUND On November 1, 2005, a man crawled in a window of a vacant house on the south side of Chicago. A few minutes later he We affirm.

1-06-3288 lowered a vanity sink from the window. to the ground it shattered. When he dropped the sink

The man walked away from the house.

Police detained Burnett a few minutes later, two blocks away, and arrested him after an eyewitness identified him as the person who entered the vacant house. The arresting officer found a wrench, The trial court

pliers, and a screwdriver in Burnett's pockets.

found Burnett guilty of burglary and possession of burglary tools. Burnett had three prior burglary convictions, one residential burglary conviction, one conviction for retail theft and one conviction for possession of a controlled substance. The

prior crimes required the court to sentence Burnett as a Class X offender. 2004). 730 ILCS 5/5-5-3(c)(8); 720 ILCS 5/19-1(b) (West

The sentencing statute restricted the available sentence 730 ILCS 5/5-8-1(d)(3)

for burglary to 6 to 30 years in prison. (West 2004).

The presentence investigator found that Burnett had longstanding addictions to heroin and cocaine. cocaine prior to the offense at issue. experimented with phencyclidine (PCP). Burnett had taken

When he was about 18 he The experiment, together

with an altercation with his father, resulted in Burnett's hospitalization for his mental health. He suffered from a

learning disability, but he had "excellent mechanical and

-2-

1-06-3288 artistic skills." He held no steady job. At the time of the

investigation, Burnett complained of chest pains and a pinched nerve. At the sentencing hearing, the prosecutor pointed out Burnett's drug history and suggested treatment for Burnett in prison. Defense counsel requested a minimal sentence, arguing

that Burnett had burglarized a vacant house, and he had strong family support and no history of violent crimes. added that he had joined a drug treatment program. Burnett himself The court

sentenced Burnett to concurrent terms of ten years for burglary and three years for possession of burglary tools, with a recommendation for drug treatment in prison. Burnett, through counsel, moved to reconsider the sentence. In the motion defense counsel wrote: "3. In light of the evidence presented to the

Court, the sentence imposed in this case is excessive. 4. In sentencing the Defendant, the Court failed

to follow Article I, Section 2 of the Illinois Constitution, which states as follows: 'All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.' 5. Further, the Court failed to consider the

-3-

1-06-3288 following factors in mitigation within 730 ILCS 5/5-53.1: [sic] 6. The sentence imposed is not in keeping with

alternatives available to the Court to assist the Defendant in his rehabilitation." The court originally scheduled the motion for hearing on September 20, 2006. The court granted defense counsel a

continuance, resetting the motion for hearing on September 27, 2006. Burnett remained in prison during the proceeding. His

attorney failed to appear on September 27.

The court did not

inquire on the record into the reasons for the absence of Burnett and his attorney. sentence. DECISION I. A. Sentencing Medical examinations Burnett contends that in light of his physical problems, his learning disability, his drug addiction, and his history of mental health treatment, the trial court abused its discretion in failing to order physical and mental examinations pursuant to sections 5-3-2(b) (730 ILCS 5/5-3-2(b) (West 2006)) and 5-3-3 (730 ILCS 5/5-3-3 (West 2006)) of the Unified Code of Corrections (Code). The court denied the motion to reconsider the

Burnett timely appealed.

-4-

1-06-3288 Section 5-3-2(b) of the Code provides, in relevant part, that a presentence investigation "shall include a physical and mental examination of the defendant when so ordered by the court. If the court determines that

such an examination should be made, it shall issue an order that the defendant submit to examination at such time and place as designated by the court and that such examination be conducted by a physician, psychologist or psychiatrist designated by the court. *** " (Emphasis added.) 5/5-3-2(b) (West 2006). Section 5-3-3 of the Code provides, in relevant part, that: "(a) In felony cases where the court is of the opinion that imprisonment may be appropriate but desires more information as a basis for determining the sentence than has been or may be provided by a presentence report under Section 5-3-1, the court may commit for a period not exceeding 60 days a convicted person to the custody of the court clinic or the Department of Corrections if 730 ILCS

-5-

1-06-3288 the Department has certified to the court that it can examine such persons under this Section." 730 ILCS 5/5-3-3 (West 2006). Section 5-3-3 of the Code allows the trial court to conduct a study if the court "desires" more information than has been provided by the presentence investigation (PSI) report. 5/5-3-3 (West 2006). 730 ILCS

Accordingly, we review a trial court's

failure to order an examination or study pursuant to section 5-32(b) and 5-3-3 of the Code for an abuse of discretion. People v.

Burton, 184 Ill. 2d 1, 29, 703 N.E.2d 49, 62 (1998); People v. Stewart, 101 Ill. 2d 470, 489, 463 N.E.2d 677 (1984). Burnett's drug experiments led to hospitalization in a mental health facility, but the incident occurred more than 20 years before the burglary. The PSI report adequately recounted

Burnett's history of drug abuse and his present physical condition. The minor physical problems do not demonstrate any Nothing in the record

special need for further investigation.

indicates that complete medical and physical examinations would have uncovered any facts not already shown in the PSI report. We

will not vacate a sentence based on speculation of what a medical examination may have indicated. See Stewart, 101 Ill. 2d at 490.

Although a trial court may order a section 5-3-3 study if it "desires" more information than has been provided by the PSI

-6-

1-06-3288 report, we see nothing in the facts before us that should have compelled the court to order such a study in this case. We find

the trial court did not abuse its discretion by deciding not to order a mental examination and study pursuant to sections 5-32(b) and 5-3-3 of the Code. B. Ineffective assistance at sentencing Burnett contends counsel provided ineffective assistance at sentencing because counsel did not request medical examinations, and he failed to argue Burnett's learning disability and his drug dependency in mitigation. A defendant who seeks relief from a judgment due to ineffective assistance of counsel must convince this court that, but for counsel's incompetence, the defendant stood a reasonable chance of achieving a better result. People v. Ward, 371 Ill. The record on

App. 3d 382, 434, 862 N.E.2d 1102, 1150 (2007).

appeal includes no evidence that a complete physical and psychological examination would have revealed any facts that should have inclined the court to impose a lesser sentence. In

this case, as in Burton, 184 Ill. 2d at 30, defendant "can only speculate that an additional evaluation would have produced significant new evidence concerning his mental health, rather than cumulative evidence." The PSI report and arguments at sentencing brought to the

-7-

1-06-3288 court's attention all of the factors Burnett now claims his attorney should have raised. Burnett has not shown a reasonable

probability that further emphasis on these factors would have changed the sentence. We find Burnett has not met his burden of

proving ineffective assistance of counsel at sentencing. II. A. Motion to Reconsider Sentence Ineffective assistance with written motion Burnett contends counsel provided ineffective assistance when he filed an incomplete written motion to reconsider the sentence. Counsel prepared only a perfunctory, boilerplate

motion, without specifying sentencing alternatives or the mitigating factors that would have persuaded the court to impose a lesser sentence. Burnett suggests counsel should have

identified as mitigating factors his psychological problems and the fact that he neither caused nor contemplated causing any physical harm. At the sentencing hearing defense counsel The prosecutor spoke of

mentioned only the lack of harm.

Burnett's drug addiction; the PSI report indicated Burnett's minor history of psychological treatment partly related to drug abuse. The trial court apparently took these factors into

account in sentencing Burnett to a term near the minimum available, despite his substantial criminal history and his failure to respond to previous efforts at rehabilitation. Ten

-8-

1-06-3288 years is hardly a draconian sentence under the circumstances. We

see no reasonable probability that the suggested additions to the written motion would have changed the trial court's judgment. See People v. Brasseaux, 254 Ill. App. 3d 283, 287-89, 660 N.E.2d 1321, 1323-25 (1996). The written motion serves to preserve sentencing issues for appellate review. People v. Reed, 177 Ill. 2d 389, 395, 686 N.E.2d 584, 586 (1997). While Burnett complains that the motion

here lacks sufficient detail to preserve meritorious issues, he does not specify any new or additional issues he would have raised on this appeal had counsel better prepared the motion. Burnett has not shown inadequate preparation of the written motion had any prejudicial effect. We find the written motion

did not show ineffective assistance of counsel. B. Absence of defendant and counsel from hearing 1. Due process and the right to appear

The trial court decided the motion to reconsider sentence in the absence of Burnett and his counsel. Burnett contends that by

so proceeding the court violated his right to due process under both the federal and state constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,

Download People v. Burnett.pdf