{ "id": 2891848, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ASSENATO, Defendant-Appellant", "name_abbreviation": "People v. Assenato", "decision_date": "1994-01-14", "docket_number": "No. 2\u201492\u20140455", "first_page": "1026", "last_page": "1031", "citations": [ { "type": "official", "cite": "257 Ill. App. 3d 1026" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "240 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5139017 ], "pin_cites": [ { "page": "950" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0947-01" ] }, { "cite": "249 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409338 ], "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0152-01" ] }, { "cite": "156 Ill. 2d 531", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777541 ], "year": 1993, "pin_cites": [ { "page": "538-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0531-01" ] }, { "cite": "211 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529784 ], "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0899-01" ] }, { "cite": "30 Ill. App. 3d 1063", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621208, 2622225 ], "pin_cites": [ { "page": "1064" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/1063-01", "/ill-app-3d/30/1063-02" ] }, { "cite": "96 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12143160 ], "pin_cites": [ { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0851-01" ] }, { "cite": "178 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2430994 ], "year": 1981, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0314-01" ] }, { "cite": "149 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599350 ], "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0540-01" ] }, { "cite": "211 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527237 ], "year": 1992, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0641-01" ] }, { "cite": "75 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2989804 ], "year": 1991, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/75/0180-01" ] }, { "cite": "218 Ill. App. 3d 71", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498240 ], "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0071-01" ] }, { "cite": "247 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930590 ], "year": 1991, "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0907-01" ] }, { "cite": "143 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591273 ], "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0210-01" ] }, { "cite": "186 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2657393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0331-01" ] } ], "analysis": { "cardinality": 509, "char_count": 10465, "ocr_confidence": 0.786, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3070982130618426 }, "sha256": "845eb911afaeec848f95b0e6fc36be10ddfad310f0b859ca2b85a54e31e102cd", "simhash": "1:8bdad62fb64a59d5", "word_count": 1705 }, "last_updated": "2023-07-14T22:49:13.043500+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ASSENATO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe defendant, Peter Assenato, appeals the trial court\u2019s dismissal, without an evidentiary hearing, of his petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq. (now codified, as amended, at 725 ILCS 5/122 \u2014 1 et seq. (West 1992))). The defendant argues that he was denied his sixth amendment right to counsel because the counsel who represented him at trial was not his counsel of choice.\nOn December 22, 1986, the State charged the defendant with the unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(c) (now codified, as amended, at 720 ILCS 570/401(d) (West 1992))) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A \u2014 2 (now 720 ILCS 5/33A \u2014 2 (West 1992))). On December 29, 1987, the State filed a five-count indictment against the defendant. Count I charged the defendant with the unlawful possession of less than 10 grams of a substance containing cocaine with the intent to deliver; count II, with armed violence based upon count I; count III, with the unlawful possession of less than 30 grams of a substance containing cocaine (Ill. Rev. Stat. 1985, ch. 561/2, par. 1402(b) (now codified, as amended, at 720 ILCS 570/402(b) (West 1992))); count IV, with the unlawful use of a firearm by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1.1(a) (now codified, as amended, at 720 ILCS 5/24 \u2014 1(a) (West 1992))); and count V, with armed violence based upon count III.\nThe defendant\u2019s four-day trial commenced on March 22, 1988. The defendant was convicted of the unlawful possession of a controlled substance, armed violence based on that charge, and the unlawful use of a weapon by a felon. He was acquitted of the remaining two counts. On April 28, 1988, the trial court denied defendant\u2019s motion for a new trial. On May 12, 1988, the trial court sentenced defendant to 10 years\u2019 imprisonment for armed violence. The trial court found that the possession and unlawful use of a firearm by a. felon counts had merged into the armed violence count.\nThe defendant appealed his conviction alleging that the trial court erred in failing to suppress certain evidence and quash the defendant\u2019s arrest; that the State improperly and prejudicially implied at trial that the defendant had committed other crimes; and that the State\u2019s closing argument was prejudicial. This court affirmed defendant\u2019s conviction in People v. Assenato (1989), 186 Ill. App. 3d 331.\nOn January 8, 1992, the defendant filed a pro se petition for post-conviction relief. The defendant first claimed that he was deprived of his constitutional right to counsel because the attorney ijvho represented him, Ronald Nosek, was not the attorney he hired. In support of this claim, the defendant stated that Nosek had sued him and his family to recover attorney fees, and the trial court in that suit had found in favor of the defendant and his family. The defendant claimed that the \"fabric of those proceedings\u201d revealed that the defendant had not retained Nosek. The defendant further claimed that he was denied the effective assistance of counsel because his trial counsel (1) failed to object to the propriety of the jury instructions; (2) failed to object to the sentence that the trial court imposed; (3) failed to preserve for review a potential conflict of interest between himself and Angie Cassaccio; and (4) was unprepared.\nThe trial court dismissed the defendant\u2019s post-conviction petition on the ground that it was \"frivolous and patently without merit.\u201d In particular, the trial court found that the defendant never raised either at his trial or on direct appeal that he had not hired the attorney who represented him. The trial court further found that the arbitration proceeding that dismissed Nosek\u2019s civil suit against the defendant and his family did not establish that the defendant had not hired Nosek. This proceeding, according to the trial court, only established that neither the defendant nor his family owed more than the $20,000 that they had already paid in attorney fees. In addition, the trial court stated that \"[t]he record does not support defendant\u2019s allegations regarding jury instructions, sentencing hearing, conflict of interest and defense preparation.\u201d\nIn this appeal, the defendant claims that the trial court erred in summarily dismissing his post-conviction petition without holding an evidentiary hearing. The defendant maintains that he did not hire Nosek to represent him. He argues, therefore, that (1) because he was not represented by the counsel of his choice, he was denied his sixth amendment right to counsel; (2) the Post-Conviction Hearing Act is designed to address issues that were not raised at trial; and (3) although the trial court found that the defendant\u2019s family paid $20,000 in legal fees, it did not make any finding as to whether they paid that money for Nosek\u2019s representation or whether they paid it to attorney William Martin.\nA defendant is entitled to a hearing on his post-conviction petition if he makes a showing, supported by the trial record and accompanying affidavits, that he has suffered a substantial deprivation of his constitutional rights. (People v. Spreitzer (1991), 143 Ill. 2d 210, 218.) However, the defendant bears the burden of showing such a deprivation, and he is not entitled to an evidentiary hearing as a matter of right. (People v. Russell (1993), 247 Ill. App. 3d 907, 909.) If the defendant fails to set forth sufficient facts to establish a constitutional violation, the trial court is authorized to dismiss his petition summarily. People v. Green (1991), 218 Ill. App. 3d 71, 75.\nA defendant\u2019s sixth amendment right to counsel includes a right to the counsel of the defendant\u2019s choice. (People v. Johnson (1979), 75 Ill. 2d 180, 185; People v. McGee (1991), 211 Ill. App. 3d 641, 648, overruled on other grounds in People v. Jackson (1992), 149 Ill. 2d 540, 553.) However, \"the defendant\u2019s appearance with and treatment of a private attorney as his retained counsel ordinarily is deemed to constitute a ratification of defendant\u2019s employment of that attorney and the exercise of his right to counsel of his choice.\u201d (People v. Smalley (1988), 178 Ill. App. 3d 314, 318.) Where a defendant does not object to his counsel\u2019s representation, he is deemed to have acquiesced in that representation. People v. Herrera (1981), 96 Ill. App. 3d 851, 855.\nThe record reflects that Nosek, along with William J. Martin, Ltd., filed an appearance on the defendant\u2019s behalf on January 5, 1987. Nosek appeared on the defendant\u2019s behalf along with William Martin at numerous pretrial proceedings, including a hearing on the defendant\u2019s motion to suppress evidence. Nosek appeared at the defendant\u2019s trial along with attorney Marc Martin. Nosek appeared alone at the hearing on the defendant\u2019s post-trial motions, although Nosek, William Martin and Marc Martin were listed as counsel on the defendant\u2019s motion for a new trial. Nosek appeared with Marc Martin at the defendant\u2019s sentencing hearing. It was primarily Nosek who conducted the defense at these court proceedings, although Marc Martin made some objections and cross-examined a couple of the witnesses at the defendant\u2019s trial. According to the defendant, Marc Martin was one of the attorneys who represented him on appeal.\nThe defendant has not identified any point in the record where he objected to Nosek\u2019s representation. This is not a case where the defendant failed to appear at trial while a lawyer not of his choosing represented, him. (See People v. Gazic (1975), 30 Ill. App. 3d 1063, 1064 (abstract of opinion).) If the defendant did not want Nosek to represent him, he could have notified the trial court. (See People v. Salazar (1991), 211 Ill. App. 3d 899, 908.) The defendant appeared at the court proceedings and did not object to Nosek\u2019s representation. The defendant, therefore, acquiesced in Nosek\u2019s representation. The defendant did not claim that Nosek was not his counsel of choice until almost four years after his sentencing hearing and approximately five years after Nosek\u2019s first appearance. We therefore reject the defendant\u2019s sixth amendment claim.\nWe also disagree with the defendant\u2019s argument that the Post-Conviction Hearing Act entitles him to a hearing on the issue because he did not raise it at trial. The purpose of a post-conviction proceeding is to address constitutional issues that could not have been raised in a prior proceeding. (People v. Coady (1993), 156 Ill. 2d 531, 538-39; People v. Meeks (1993), 249 Ill. App. 3d 152, 162.) The defendant does not explain why either he or Marc Martin, an attorney that he does not deny retaining, could not have objected in the trial court to Nosek\u2019s representation. It is precisely the defendant\u2019s failure to object which constitutes his acquiescence in Nosek\u2019s representation.\nWe also conclude that the dismissal of the civil suit between Nosek and the defendant\u2019s family did not constitute proof that the defendant was not represented by the counsel of his choice. The trial court rejected that claim. The defendant has not provided this court with the record from that civil suit. In the absence of a complete record, we resolve all doubts in favor of the trial court\u2019s decision. (Faustrum v. Board of Fire & Police Commissioners (1993), 240 Ill. App. 3d 947, 950.) Furthermore, we do not think that a contractual dispute between the defendant and Nosek had any bearing on whether Nosek\u2019s representation violated the defendant\u2019s constitutional right to counsel. By not objecting to Nosek\u2019s representation, the defendant acquiesced in it.\nWe agree with the trial court that the defendant\u2019s post-conviction petition was frivolous and patently without merit. The defendant was not entitled to an evidentiary hearing.\nThe judgment of the trial court of Du Page County is affirmed.\nAffirmed.\nMcLAREN and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "Allan A. Ackerman, of Law Offices of Allan A. Ackerman, P.C., of Chicago, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, Lisa A. Hoffman, and Norbert J. Goetten, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ASSENATO, Defendant-Appellant.\nSecond District\nNo. 2\u201492\u20140455\nOpinion filed January 14, 1994.\nRehearing denied March 18, 1994.\nAllan A. Ackerman, of Law Offices of Allan A. Ackerman, P.C., of Chicago, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers, Lisa A. Hoffman, and Norbert J. Goetten, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1026-01", "first_page_order": 1044, "last_page_order": 1049 }