People v. Bond

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2010 » People v. Bond

People v. Bond

State: Illinois

Court: 4th District Appellate

Docket No: 4-09-0511 Rel

Case Date: 11/01/2010

Preview:NO. 4-09-0511 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONAS D. BOND, Defendant-Appellant.

Filed 11/1/10

) Appeal from ) Circuit Court of ) Macon County ) No. 04CF1424 ) ) Honorable ) Theodore E. Paine, ) Judge Presiding. _________________________________________________________________ JUSTICE POPE delivered the opinion of the court: In February 2005, a jury convicted defendant, Jonas D. Bond (born July 16, 1987), of possession of a controlled substance with intent to deliver (cocaine) (720 ILCS 570/401(c)(2) (West 2004)) (count I) and possession of a controlled substance (cocaine) (720 ILCS 570/402(c) (West 2004)) (count II). In April 2005, the trial court sentenced him to 10

years' imprisonment and imposed a $220 street-value fine. Defendant appeals, arguing (1) he was denied effective assistance of counsel, (2) the evidence was insufficient to prove him guilty of possession with intent to deliver beyond a reasonable doubt, and (3) the trial court erred in imposing a $220 street-value fine. directions. I. BACKGROUND Prior to the start of trial, defendant filed a motion We affirm as modified and remand with

in limine to exclude the State's use of defendant's juvenile adjudications for impeachment purposes. Defendant sought to

exclude the following adjudications: robbery, a Class 2 felony; possession of firearms, a Class 4 felony; and retail theft with a prior robbery conviction, a Class 4 felony. The trial court

granted defendant's motion with respect to the firearm-possession adjudication, but denied it as to the other adjudications. During defendant's February 2005 trial, Decatur police officer Thomas Pratt testified he arrested defendant on November 22, 2004, after defendant ran from a vehicle Pratt had pulled over. Defendant testified he ran because he was scared. During

a search of defendant, Pratt found a piece of white paper containing five small white rock-like items wrapped in a clear plastic bag. The bag contained 1.3 grams of cocaine. According

to defendant's testimony, at the time of his arrest, he did not know it was crack or cocaine but he did know it was some kind of drug. Defendant explained that when he got into the vehicle, the

driver asked him to hold the drugs as a favor for him because the driver was on parole. Defendant testified he had no intention of

selling the drugs and was simply holding them for the driver until defendant got home. Defendant testified he was just around

the corner from his home when police stopped the vehicle. While defendant's trial counsel questioned him regarding various facts during direct examination, defendant's - 2 -

counsel did not ask him if he had any prior delinquency adjudications. The State also did not raise the question of

defendant's juvenile adjudications during its cross-examination. Following the State's cross-examination, the trial court asked defense counsel if he had any "redirect," whereupon counsel requested leave to "open up [his] direct examination." The State

showed no objection and the court granted counsel's request. During the reopened direct examination, the following colloquy took place: "[MR. ELLISON (defendant's attorney):] [Y]ou got in trouble as a juvenile in your past, is that correct? [DEFENDANT:] Yes. [MR. ELLISON:] And you had--you were put on eighteen months['] probation for a robbery in March of [20]03, is that correct? [DEFENDANT:] Yes, sir, it is. [MR. ELLISON:] And then in January of [20]04, as a juvenile you got three more years['] probation for retail theft, is that correct? [DEFENDANT:] Yes. [MR. ELLISON:] And those both happened in juvenile case [No.] 02-JD-275, is that - 3 -

correct? [DEFENDANT:] Yes. [MR. ELLISON:] No other questions." In February 2005, a jury convicted defendant of possession of a controlled substance with intent to deliver (count I) and possession of a controlled substance (count II). In April 2005, the trial court sentenced defendant to 10 years' imprisonment on count I and imposed a $220 street-value fine. Defendant did not appeal his conviction or sentence. However, in July 2008, defendant filed a pro se petition for postconviction relief, arguing his trial counsel provided ineffective assistance of counsel by failing to timely file an appeal despite defendant's request. On April 8, 2009, the trial court granted defendant's petition and allowed him to file a late notice of appeal. On April 14, 2009, defendant filed a notice of appeal. On April 27, 2009, defendant filed an amended notice of appeal. On April 28, 2009, defendant filed a pro se motion to reduce sentence. On May 5, 2009, the trial court struck both notices of appeal and set the motion to reconsider sentence for hearing. Following a July 10, 2009, hearing, the trial court denied defendant's motion to reconsider sentence, appointed the appellate defender to represent defendant, and directed the clerk - 4 -

of the court to file a notice of appeal on defendant's behalf, which the clerk did on July 10, 2009. This appeal followed. II. ANALYSIS A. Jurisdiction While the parties do not address this court's jurisdiction, we have an independent duty to ascertain our jurisdiction before considering the merits of an appeal. See

People v. Haldorson, 395 Ill. App. 3d 980, 981, 918 N.E.2d 1280, 1281 (2009). In July 2008, defendant filed a petition for postconviction relief, arguing ineffective assistance of counsel where his trial counsel failed to file an appeal. Defendant

contended his counsel would have argued (1) defendant's juvenile adjudications should not have been admitted because they were prejudicial and (2) juvenile convictions are not usually admissible against a criminal defendant. The docket entry shows arguments were had on defendant's petition on April 9, 2009, after which the trial court took the matter under advisement. of that hearing appears in the record. According to an April 9, 2009, docket entry, the trial court made the following findings: "1) The case the [c]ourt referred to at - 5 However, no transcript

the conclusion of oral arguments on the [a]mended [p]ost[c]onviction [p]etition in this case is People v. Ross, 229 Ill. 2d 255[, 891 N.E.2d 865 (2008)]. 2) Based upon that case, the [c]ourt concludes that the appropriate remedy available to the [c]ourt in this case is to allow [p]etitioner leave to file a late notice of appeal without analysis of likelihood of success on appeal." In Ross, the defendant's trial counsel did not file an appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The

defendant filed a pro se petition for postconviction relief two years later, arguing his trial counsel was ineffective for failing to file a timely notice of appeal and that the item involved in his conviction was not a dangerous weapon. Ill. 2d at 259, 891 N.E.2d at 868. Ross, 229

The trial court found defense

counsel was ineffective for failing to file a notice of appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The court reasoned

the proper remedy was to allow the defendant to file a late notice of appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.

In the defendant's direct appeal, he argued the State had failed to prove the pellet gun at issue was a dangerous weapon. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. - 6 The State

argued the appellate court did not have jurisdiction because the notice of appeal was untimely under Supreme Court Rule 606 (210 Ill. 2d R. 606). Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.

The appellate court allowed the appeal, finding the trial court's grant of leave to file a notice of appeal was a proper remedy under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2004)). 869. The supreme court considered the issue of what relief a postconviction court may order to remedy defense counsel's failure to file a notice of appeal. The court concluded "that Ross, 229 Ill. 2d at 259-60, 891 N.E.2d at

when a postconviction petitioner demonstrates that defense counsel was ineffective for failing to file a notice of appeal, the trial court may allow the petitioner leave to file a late notice of appeal." 891 N.E.2d at 876. (Emphasis added.) Ross, 229 Ill. 2d at 271,

The court reasoned section 122-6 of the Post-

Conviction Hearing Act (725 ILCS 5/122-6 (West 2004)) "is flexible enough to include leave to file a late notice of appeal among the remedies available to a trial court in a postconviction proceeding." Ross, 229 Ill. 2d at 271, 891 N.E.2d at 875-76.

In this case, defendant's trial counsel did not appeal defendant's conviction or sentence. Defendant filed a pro se

petition for postconviction relief, arguing his trial counsel provided ineffective assistance of counsel by failing to timely - 7 -

file an appeal despite defendant's request.

Like the petitioner

in Ross, defendant successfully demonstrated to the trial court his trial counsel was ineffective for failing to file a notice of appeal. Like the trial court in Ross, the court here allowed Following the

defendant leave to file a late notice of appeal.

supreme court's reasoning in Ross, we find we have jurisdiction to hear defendant's appeal. Turning to the merits, defendant argues his trial counsel was ineffective for eliciting inadmissible impeachment testimony from him regarding his two prior juvenile adjudications. Specifically, defendant contends although the

State did not introduce the evidence when it cross-examined him, his trial counsel "inexplicably introduced the juvenile adjudications for robbery and retail theft." Defendant maintains

the introduction of this inadmissible evidence prejudiced him. We initially note defendant's counsel does not challenge the correctness of the trial court's ruling on defendant's motion in limine allowing the introduction of the juvenile adjudications. Instead, defendant argues his trial

counsel was ineffective for introducing the adjudications during trial because they were inadmissible. The State argues the

court's ruling allowing the impeachment of the accused with a juvenile adjudication was correct and therefore counsel was not ineffective. - 8 -

Defendant argues the State failed to cross-examine him about his juvenile adjudications and it was inexplicable for defense counsel to reopen his direct examination for the purpose of disclosing these adjudications. However, it would have been

improper for the State to cross-examine defendant with respect to his prior adjudications. If it was proper to introduce such

evidence, the State was limited to introducing certified copies of the adjudications in its rebuttal case. See M. Graham, Cleary

& Graham's Handbook of Illinois Evidence

Download People v. Bond.pdf