{ "id": 5537459, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE PHINNIZEE, Defendant-Appellant", "name_abbreviation": "People v. Phinnizee", "decision_date": "1981-01-08", "docket_number": "No. 79-552", "first_page": "590", "last_page": "594", "citations": [ { "type": "official", "cite": "92 Ill. App. 3d 590" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "92 S. Ct. 1014", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11722782 ], "opinion_index": 0, "case_paths": [ "/us/405/0473-01" ] }, { "cite": "40 U.S. 472", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "84 S. Ct. 80", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11715933, 11714959 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/375/0021-01", "/us/375/0002-01" ] }, { "cite": "375 U.S. 2", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714959 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/375/0002-01" ] }, { "cite": "391 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584284 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0871-01" ] }, { "cite": "580 F.2d 1339", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 866190 ], "opinion_index": 0, "case_paths": [ "/f2d/580/1339-01" ] }, { "cite": "404 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174368 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/404/0443-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] } ], "analysis": { "cardinality": 501, "char_count": 10568, "ocr_confidence": 0.907, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.2946770255717611 }, "sha256": "fc4dda0c951aba84140fb881a1cd10eb63b6862da221009cf2c7d9b807f4187d", "simhash": "1:aa5aa026775e8c8f", "word_count": 1666 }, "last_updated": "2023-07-14T15:16:53.928123+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. WILLIE PHINNIZEE, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE KASSERMAN\ndelivered the opinion of the court:\nDefendant, Willie Phinnizee, was convicted by a jury in the circuit court of St. Clair County for the offenses of rape, deviate sexual assault and indecent liberties with a child. Defendant was sentenced to a term of imprisonment for 15 years for rape, and a similar term was imposed for deviate sexual assault, the sentences to run concurrently. No judgment was entered on the indecent liberties charge. On appeal, defendant challenges the propriety of the sentences imposed, contending that they were based in part upon the trial court\u2019s consideration of prior convictions allegedly obtained in violation of defendant\u2019s constitutional right to counsel.\nAt the sentencing hearing the trial court considered a presentence investigation report compiled by the St. Clair County Probation Department. According to the report, defendant had prior convictions in Mississippi State courts in 1957, 1958, and 1963. The 1957 conviction was for breaking and entering, and defendant\u2019s sentence on that charge consisted of one year at the county farm and a fine of $200. In 1958 defendant was convicted of grand larceny, and defendant was sentenced to six years imprisonment on such conviction. Defendant\u2019s 1963 conviction was for attempt rape, for which defendant received a sentence of life imprisonment. He had been paroled after serving 13 years. These convictions constituted the entirety of defendant\u2019s criminal record other than a 1977 Illinois traffic offense conviction for driving without a valid driver\u2019s license.\nBefore passing sentence, the trial court offered defendant an opportunity to speak in his own behalf. The following colloquy ensued:\n\u201cTHE DEFENDANT: Yes, Sir, and prior sentences that I had that I didn\u2019t feel that I got justice on them, because I stood before the Judge without a lawyer and pleaded guilty to a life sentence.\nTHE COURT: That\u2019s called Mississippi justice. It\u2019s known as\u2014\nTHE DEFENDANT: Each time by the same Judge.\nTHE COURT: \u2014fairness, impartiality and stupidity. All right. I\u2019m inclined to agree with you. I think possibly that\u2019s right.\u201d\nThe court then imposed the concurrent sentences of 15 years for the rape and deviate sexual assault convictions.\nDefendant contends that the trial court\u2019s determination of sentence was strongly influenced by his prior convictions in Mississippi. Defendant asserts that these convictions are invalid under Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, because each was obtained while he was without benefit of counsel; and he argues that the opinion of the Supreme Court in United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589, prohibits a State court from considering prior convictions obtained in violation of Gideon when determining sentences. Defendant concludes that the trial court improperly considered the Mississippi convictions in violation of Tucker, as manifested by its statement at the sentencing hearing.\nThe State contends that defendant has not established the invalidity of his prior convictions and urges that other than defendant\u2019s allegation that he was without counsel, there is no other evidence in the record substantiating the claim that his right to counsel was abridged. Moreover, the State asserts that the trial judge\u2019s statement at the sentencing hearing that he believed the prior convictions to be invalid is proof that they were not considered for purposes of sentencing.\nWe reject the prosecution\u2019s assertion that the trial court did not consider defendant\u2019s prior convictions when imposing sentence. The record establishes that the court made the following statement at the time it imposed the sentence of imprisonment upon defendant:\n\u201cThe reason for the sentence as imposed by the Court is that the defendant has a history of prior delinquency and criminal activity, that the sentence is necessary to deter others from committing the same crime.\u201d\nAlthough the court had recognized the possible invalidity of defendant\u2019s prior convictions, it expressly indicated that they constituted at least a part of the reason for imposing defendant\u2019s sentence.\nEmbodied in the sixth amendment is the right of an indigent person accused of a felony to be represented by court-appointed counsel. No conviction for a felony may stand in a State court in proceedings in which such person is without counsel unless it is shown that the right to counsel has been knowingly and voluntarily waived. (Gideon v. Wainwright.) Further, the Supreme Court in United States v. Tucker held that the right to counsel as announced in Gideon would be seriously eroded if a trial court were permitted to rely on convictions obtained in violation of Gideon as a basis for determining sentence. Additionally, in Farrow v. United States (9th Cir. 1978), 580 F.2d 1339, the court held that a successful challenge to sentencing under Tucker requires that it be demonstrated that the prior conviction was unconstitutional under Gideon and that consideration of the invalid conviction by the trial court contributed to an enhancement of the sentence under appeal.\nAs an element of defendant\u2019s challenge to his sentencing in the instant case, defendant contends that he sufficiently established the invalidity of the Mississippi convictions through his uncontroverted allegation at the sentencing hearing that he was denied \u201cjustice\u201d by being required to go to trial without counsel.\nIt is correct that at the sentencing hearing the State introduced no evidence controverting defendant\u2019s claim that he was without counsel when the Mississippi convictions were obtained. Furthermore, the record contains no evidence that the absence of counsel was the result of a valid waiver of defendant\u2019s sixth amendment rights. It is well established that a court must indulge in every reasonable presumption against the waiver of a right as fundamental as the right to counsel. (People v. Carter (1979), 72 Ill. App. 3d 871,391 N.E.2d 427.) Further, given defendant\u2019s claim that he was denied justice by being tried without counsel, it would be \u201chighly unrealistic\u201d to conclude that he had waived his right to counsel under Gideon, which was decided after two of the convictions but given retrospective application in Pickelsimer v. Wainwright (1963), 375 U.S. 2,11 L. Ed. 2d41, 84 S. Ct. 80. Loper v. Beto (1972), 40 U.S. 472, 31L. Ed. 2d 374, 92 S. Ct. 1014.\nWe conclude, however, on the basis of the record before us, that defendant has failed conclusively to demonstrate that his Mississippi convictions were invalid for the purpose of challenging their use as a basis for the sentence in the instant case. Nevertheless, his oral representation to the trial court concerning their alleged invalidity requires that additional evidence be considered by the sentencing court to ascertain whether its use of defendant\u2019s prior convictions was impermissible under the rationale of Tucker. If additional evidence discloses that such prior convictions were inadmissible under United States v. Tucker, we direct that a new sentencing hearing be held in the trial court.\nThe court in Farrow further held that in order to prevail under Tucker, the defendant must demonstrate that his sentences were enhanced by the trial court\u2019s consideration of the Mississippi convictions. That such enhancement did occur is apparent from the trial court\u2019s statement concerning defendant\u2019s prior criminal history.\nAs an additional requirement in order to support a successful challenge to a sentence under Tucker, the court in Farrow stated that the record must either disclose that the sentencing judge was under the mistaken belief that the prior conviction was valid or it must contradict the trial judge\u2019s disclaimer of reliance on any prior conviction which is invalid under Gideon. In the instant case, the trial court indicated that it was \u201cinclined to agree\u201d with defendant that his prior Mississippi convictions were invalid. However, in spite of its inclination concerning their validity, the court proceeded to impose sentence and stated that the history of defendant\u2019s \u201cprior delinquency and criminal activity\u201d and the need to deter others from committing the same crime were the reasons for the sentences imposed by it. Aside from the Mississippi convictions, defendant\u2019s only other criminal activity was a traffic violation for driving without a valid driver\u2019s license. It would appear obvious that the court\u2019s reference to prior criminal history related to the Mississippi convictions rather than to the traffic offense. Thus, the convictions were treated by the court as if they were valid, despite the court\u2019s pronouncement that it considered the convictions probably to be invalid. It is our opinion that under such circumstances it was not necessary for defendant to establish that the sentencing judge was under the mistaken belief that the prior convictions were valid or that the court disclaimed any reliance on them in order successfully to challenge his sentence under Tucker. It would be incongruous to hold otherwise. We find a more compelling reason to require resentencing when the trial court recognized or suspected that a prior conviction was invalid under Gideon and relied on it when sentencing. We conclude, therefore, that where the trial court has reason to believe that defendant\u2019s prior convictions may be invalid under Gideon v. Wainwright and nevertheless considers them in sentencing defendant, the cause must be remanded in order for the trial court to determine whether defendant\u2019s prior convictions are invalid and, if they are, for the purpose of holding a new sentencing hearing.\nFor the reasons stated above, we remand this cause for further proceedings not inconsistent with this order.\nWe note that in remanding this cause it is not our intention to lend credence to the trial court\u2019s views on the quality of justice dispensed in the State of Mississippi.\nWe therefore remand this cause to the circuit court of St. Clair County for further proceedings not inconsistent with this opinion.\nRemanded.\nJONES and KARNS, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE KASSERMAN" } ], "attorneys": [ "John H. Reid and Randy E. Blue, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Clyde L. Kuehn, State\u2019s Attorney, of Belleville (Martin N. Ashley and Nicholas B. Svalina, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE PHINNIZEE, Defendant-Appellant.\nFifth District\nNo. 79-552\nOpinion filed January 8, 1981.\nJohn H. Reid and Randy E. Blue, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nClyde L. Kuehn, State\u2019s Attorney, of Belleville (Martin N. Ashley and Nicholas B. Svalina, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0590-01", "first_page_order": 612, "last_page_order": 616 }