                            NO. 4-04-0414

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
           Plaintiff-Appellee,         )   Circuit Court of
           v.                          )   Sangamon County
DARRELL JAMES,                         )   No. 03CF769
           Defendant-Appellant.        )
                                       )   Honorable
                                       )   Dennis L. Schwartz,
                                       )   Judge Presiding.
______________________________________________________________

            PRESIDING JUSTICE TURNER delivered the opinion of the

court:

            In summer 2003, the State charged defendant with

unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West

2002)), armed robbery (720 ILCS 5/18-2(a)(1) (West 2002)), and

home invasion (720 ILCS 5/12-11(a)(3) (West 2002)).    Shortly

after his arrest, the trial court appointed the public defender

to represent defendant.    Before opening statements at his January

2004 bench trial, defendant elected to proceed pro se.    At the

conclusion of his trial, the court found defendant guilty of all

three charges.   At a joint hearing in April 2004, the court

denied defendant's posttrial motions and sentenced him to concur-

rent prison terms of 45 years for armed robbery, 7 years for

unlawful use of a weapon by a felon, and 45 years for home

invasion.   In May 2005, the court denied defendant's motion to

reconsider his sentence.

            Defendant appeals, contending (1) the trial court's
refusal to consider his pretrial, pro se motions violated his

fifth- and sixth-amendment rights (U.S. Const., amends. V, VI),

and (2) his prison term for home invasion should be reduced to 30

years since the 15-year sentence enhancement imposed on his

sentence violates the proportionate-penalties clause.      We affirm.

                             I. BACKGROUND

          On July 30, 2003, the State charged defendant with

unlawful use of a weapon and armed robbery (the home-invasion

charge was later brought on August 20, 2003).      At a July 31,

2003, hearing, the trial court appointed the public defender to

represent defendant.   At the August 14, 2003, preliminary hear-

ing, defendant was represented by Bob Scherschligt.      On August

26, 2003, the Sangamon County public defender assigned defen-

dant's case to Assistant Public Defender Craig Reiser.

          On September 8, 2003, defendant filed a pro se motion

to dismiss the home-invasion charge.     In a letter to the trial

court, defendant alleged his attorney did not think the motion

was a good one and refused to file it.       Defendant requested the

appointment of another public defender because he did not think

Reiser would represent him to the fullest.      That same day, the

court addressed defendant's request at a hearing.      Defendant

stated Reiser had indicated everyone thought defendant was

guilty, including himself.    Reiser denied making such a state-

ment, and the court denied defendant's request.


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          In a letter filed October 21, 2003, to the trial court,

defendant complained about a police photographic lineup and

stated Reiser was not trying to help him.   Defendant contended

Reiser "kept on telling [him] about the State['s] defen[s]e

trying to scare [him] into copping out for something that [he]

didn't do."   On November 18, 2003, Reiser filed a motion to

suppress the identification of defendant in the photographic

lineup.

          In a letter to the trial court filed November 19, 2003,

defendant alleged a witness at his preliminary hearing committed

perjury and again asserted Reiser was working against him by

trying to get him "to cop out."   On December 8, 2003, defendant

filed pro se (1) a motion to suppress evidence regarding his

tribal band tattoo, (2) a motion to suppress the photographic

lineup, (3) a motion to "squash" the statements made by Brandon

Mason, (4) a motion to "squash" his arrest warrant, (5) a motion

to "squash" a letter, (6) a motion to "squash" a supposed state-

ment defendant made to the police, and (7) another motion to

"squash" his arrest.

          On December 9, 2003, Reiser filed a motion in limine

regarding defendant's prior convictions, which the trial court

later granted.   On December 10, 2003, defendant filed pro se a

motion for additional discovery and another letter to the court.

He asserted Reiser refused to file defendant's motions and was


                               - 3 -
working with the State to frame defendant.    He also criticized

Reiser for his continuances.    On December 15, 2005, defendant

filed pro se a motion to dismiss the case and two letters to the

court.   Defendant again asserted Reiser was working with the

State and criticized Reiser's continuances.

             On December 22, 2003, the trial court held a hearing on

the motion to suppress identification at which Reiser represented

defendant.    At the beginning of the hearing, Reiser informed the

court defendant had filed a complaint with the Attorney Registra-

tion and Disciplinary Commission, which was unfounded.    He

further stated he had no problem representing defendant, and the

court declined to investigate the matter any further.    After the

court denied the suppression motion, Reiser pointed out to the

court defendant's pro se motions.     Reiser noted he had looked

over the motions and put them in his motion to suppress defen-

dant's identification.    In response, the court noted its rule not

to consider pro se motions filed by defendants when they are

represented by counsel.    Reiser continued to file documents in

defendant's case until defendant's January 2004 trial.

             On January 20, 2004, the trial court commenced defen-

dant's trial with Reiser representing defendant.    After a jury

was selected, defendant waived his right to a jury trial, and the

court continued the trial to the next day.    At the beginning of

the bench trial, defendant again brought up his complaints about


                                 - 4 -
Reiser trying to get him "to cop out" and refusing to file

defendant's motions.   Reiser indicated he was happy to represent

defendant and could answer all of defendant's allegations.    The

prosecutor stated he had very few plea discussions with Reiser

since he did not feel defendant "was an individual that [he]

should be giving too many breaks to."    The prosecutor also noted

Reiser had been thorough in his discovery and in preparing for

trial.   The court then declined to discharge Reiser.   Defendant

then indicated he wanted to proceed pro se.     The court allowed

defendant to proceed pro se with Reiser as stand-by counsel.

Defendant then asked to be heard on his prior pro se motions.

The court refused and began the trial.

           At the conclusion of the trial, the trial court found

defendant guilty of all three charges.    Reiser filed a posttrial

motion, and defendant filed pro se several amendments to the

posttrial motion.   At the April 2004 hearing on the posttrial

motions and sentencing, the court noted it had reviewed all of

defendant's pretrial, pro se motions and denied any that were

left unresolved.    Defendant then argued the posttrial motions,

and the court denied those as well.     At defendant's request,

Reiser represented defendant on the sentencing portion of the

hearing.   The court sentenced defendant as stated.   Reiser then

filed a motion to reconsider and reduce defendant's sentence,

which the court denied.   This appeal followed.


                                - 5 -
                            II. ANALYSIS

          The questions presented in this appeal are ones of law,

and thus our review de novo.    See People v. Breedlove, 213 Ill.

2d 509, 512, 821 N.E.2d 1176, 1178 (2004) (pure questions of law

are reviewed de novo).

                   A. Defendant's Pro Se Motions

          Defendant first asserts his fifth-amendment right to

due process and sixth-amendment right to self-representation were

violated when the trial court refused to hear his pro se motions.

We disagree.

          A defendant has the right either to have counsel

represent him or to represent himself.     However, a defendant does

not have the right to both self-representation and the assistance

of counsel.   People v. Serio, 357 Ill. App. 3d 806, 815, 830

N.E.2d 749, 757 (2005).    Stated differently, a defendant pos-

sesses "no right to some sort of hybrid representation, whereby

he would receive the services of counsel and still be permitted

to file pro se motions."    People v. Handy, 278 Ill. App. 3d 829,

836, 664 N.E.2d 1042, 1046 (1996).      Thus, when a defendant is

represented by counsel, the defendant generally has no authority

to file pro se motions, and the court should not consider them.

Serio, 357 Ill. App. 3d at 815, 830 N.E.2d at 757.

          A defendant cannot circumvent the above rule by elect-

ing to proceed pro se right before opening statements and have


                                - 6 -
pretrial, pro se motions addressed.    When a defendant elects to

have an attorney represent him, his role and his attorney's role

are defined.   People v. Pondexter, 214 Ill. App. 3d 79, 87, 573

N.E.2d 339, 345 (1991).   The defendant retains the right to make

decisions involving "fundamental rights" such as whether to plead

guilty or not guilty, whether to waive jury trial, whether to

testify, and whether to appeal.   See Pondexter, 214 Ill. App. 3d

at 87, 573 N.E.2d at 345.   However, counsel has control over "the

day-to-day conduct of the defense" and the handling of strategic

matters that involve "'the superior ability of counsel.'"

Pondexter, 214 Ill. App. 3d at 87, 573 N.E.2d at 345, quoting

People v. Campbell, 129 Ill. App. 3d 819, 821, 473 N.E.2d 129,

131 (1984).

          Here, defendant received Reiser's assistance throughout

the pretrial period.   Thus, to allow defendant to have his

pretrial, pro se motions that addressed strategic matters under

Reiser's control would constitute hybrid representation and

essentially allow defendant to relitigate pretrial issues.    Such

a result is impermissible since, as we have explained, the right

to self-representation and the assistance of counsel cannot be

exercised at the same time.   Pondexter, 214 Ill. App. 3d at 87,

573 N.E.2d at 345.

          Additionally, we note one exception to the rule is pro

se ineffective-assistance-of-counsel claims if they include


                               - 7 -
supporting facts and are specific.       Serio, 357 Ill. App. 3d at

815, 830 N.E.2d at 757.    However, none of the pro se motions at

issue raised ineffective-assistance-of-counsel claims.      Moreover,

before trial, the trial court did make an inquiry into defen-

dant's complaints about Reiser that defendant raised in his

numerous letters.

           Accordingly, the trial court properly did not address

defendant's pretrial, pro se motions when defendant elected to

proceed pro se right before opening statements.      A proper way of

handling such improper pro se motions is to strike them when they

are filed to avoid the confusion that may have resulted in this

case.   See People v. Neal, 286 Ill. App. 3d 353, 355-56, 675

N.E.2d 130, 131 (1996).

                       B. Home-Invasion Sentence

           Defendant last contends his sentence for home invasion

should be reduced by 15 years because the mandatory 15-year

sentence enhancement provided for in section 12-11(c) of the

Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-11(c) (West

2002)) violates the proportionate-penalties clause.      The State

disagrees, asserting the 15 years above the statutory maximum for

home invasion was the result of an extended term based on defen-

dant's prior convictions.    See 730 ILCS 5/5-5-3.2(b)(1), 5-8-

2(a)(2) (West 2002).    We need not address whether the 15 years

was an enhancement or an extended term since our supreme court


                                 - 8 -
recently rejected defendant's argument in People v. Guevara, 216

Ill. 2d 533, 544-45, 837 N.E.2d 901, 908 (2005).   See People v.

Hampton, No. 1-03-0067, slip op. at 25-27 (December 5, 2005), ___

Ill. App. 3d ___, ___, ___ N.E.2d ___, ____.

            In support of his argument, defendant cites the Second

District's People v. Dryden, 349 Ill. App. 3d 115, 124, 811

N.E.2d 302, 310 (2004), judgment vacated, No. 98795 (December 1,

2005) (nonprecedential supervisory order denying leave to appeal

and vacating Second District's judgment and remanding with

directions), where the court found the proportionate-penalties

clause was violated because the conduct prescribed by section 12-

11(a)(3) of the Criminal Code (720 ILCS 5/12-11(a)(3) (West

2000)) was punished more harshly than aggravated battery with a

firearm.   Defendant does not raise any other arguments in support

of his contention that his sentence violates the proportionate-

penalties clause.   As stated, in Guevara, our supreme court

rejected the very same argument defendant raises based on People

v. Sharpe, 216 Ill. 2d 481, 519, ___ N.E.2d ___, ___ (2005),

which abolished cross-comparison challenges to the proportionate-

penalties clause.   Guevara, 216 Ill. 2d at 544-45, 837 N.E.2d at

908.

           The dissent argues the Guevara decision is irrelevant

to this case because it was decided after defendant was sen-

tenced, and thus defendant's sentence enhancement should be


                               - 9 -
vacated based on People v. Moss, 206 Ill. 2d 503, 795 N.E.2d 208

(2003), which was the "final order" of our supreme court when

defendant was sentenced.    Slip op. at 15.   We could not disagree

more strongly.

             First, as recognized by this court in People v. Stand-

ley, 359 Ill. App. 3d 1096, 1107, 835 N.E.2d 945, 953-54 (2005),

the Moss court only found the 15- and 20-year sentence enhance-

ments to (1) armed robbery (720 ILCS 5/18-2 (West 2000)), (2)

aggravated kidnapping (720 ILCS 5/10-2 (West 2000)), and (3)

aggravated vehicular hijacking (720 ILCS 5/18-4 (West 2000))

violated the proportionate-penalties clause.    See also People v.

Powell, 355 Ill. App. 3d 124, 136, 822 N.E.2d 131, 142 (2004)

(First District).    Thus, the 15-year sentence enhancement to home

invasion had not been found unconstitutional when defendant was

sentenced.

             The dissent criticizes the aforementioned conclusion,

stating the Moss decision was a "broad one" and thus implicitly

found all Public Act 91-404 (Pub. Act 91-404, eff. January 1,

2000 (1999 Ill. Laws 5126)) 15- and 20-year sentence enhancements

unconstitutional.    This court rejected that argument before our

supreme court's decisions in Sharpe and Guevara, which refused to

apply the Moss analysis to other statutes (Sharpe, 216 Ill. 2d at

489, ___ N.E.2d at ___; Guevara, 216 Ill. 2d at 544-45, 837

N.E.2d at 908).    See Standley, 359 Ill. App. 3d at 1106-07, 835


                                - 10 -
N.E.2d at 953-54.    Thus, it would now be incongruous to apply

Moss after the supreme court refused to extend it to the other

Public Act 91-404 sentence enhancements, especially where both

this court and the supreme court have recognized the absurd

results the Moss decision yields.     Standley, 359 Ill. App. 3d at

1107, 835 N.E.2d at 954; Sharpe, 216 Ill. 2d at 489, ___ N.E.2d

at ___.

             Second, the sentencing provision of the home-invasion

statute (720 ILCS 5/12-11(c) (West 2002)) was not vague when

defendant was sentenced.    That provision clearly applies a 15-

year sentence enhancement to home invasion as prescribed by

section 12-11(a)(3) of the Criminal Code (720 ILCS 5/12-11(a)(3)

(West 2002)).    That section had not been expressly declared

unconstitutional by any reviewing court when defendant was

sentenced.    Accordingly, the statute clearly applied to defendant

when he was sentenced.    Moreover, we refuse to hold a statute is

unconstitutionally vague because a defendant could reasonably

challenge its constitutionality based on existing case law.

             Last, our affirmation of defendant's sentence is

consistent with the supreme court's decision in Guevara.        There,

the trial court had declared section 12-11(a)(3) of the Criminal

Code unconstitutional based on Moss and dismissed the home-

invasion indictment.    Guevara, 216 Ill. 2d at 539, 837 N.E.2d at

905.   After finding section 12-11(a)(3) was constitutional, our


                                - 11 -
supreme court reversed the trial court's decision and remanded

for further proceedings.   Guevara, 216 Ill. 2d at 547, 837 N.E.2d

at 909.   If the home-invasion sentence enhancement could not be

applied while Moss was our supreme court's "final order," then

our supreme court would not have remanded the Guevara case for

further proceedings.

                           III. CONCLUSION

           For the reasons stated, we affirm defendant's convic-

tion and sentence.

           Affirmed.

           STEIGMANN, J., concurs.

           COOK, J., dissents.




           JUSTICE COOK, dissenting:

           I dissent and would reduce defendant's sentence to 30

years.


                                 - 12 -
           Effective January 1, 2000, the legislature added a

mandatory sentence enhancement to certain offenses if a firearm

was used in the commission of the offense.   720 ILCS 5/33A-1

(West 2000) (the "15/20/25-to-life" provisions).   Defendant

argued that his 45-year sentence for home invasion included an

unconstitutional 15-year enhancement for use of a firearm during

that offense.   720 ILCS 5/12-11(c) (West 2002).   The State agreed

that the 15-year sentence enhancement was unconstitutional but

argued that defendant was sentenced under an entirely different

statutory provision:   "[b]efore defendant was sentenced the

Illinois Supreme Court had struck down mandatory sentencing

enhancements as unconstitutional, so the assistant [S]tate's

[A]ttorney had a good reason not to request such an enhancement

and the judge had a good reason not to impose one.    People v.

Moss, 206 Ill. 2d 503, 795 N.E.2d 208 (2003)."

           A great deal has transpired since the briefs were filed

in this case.   On October 6, 2005, the supreme court overruled

Moss.   "After much reflection, we have concluded that cross-

comparison analysis has proved to be nothing but problematic and

unworkable, and that it needs to be abandoned." Sharpe, 216 Ill.

2d at 519, ___ N.E.2d at ___.    That same day the supreme court

reversed a trial court that had found that section 12-11(a)(3),

the home-invasion statute, violated the proportionate-penalties

clause under the Moss cross-comparison analysis.     Guevara, 216


                                - 13 -
Ill. 2d at 544-45, ___ N.E.2d at ___.   "These arguments fail

because a defendant may not challenge a penalty under the

proportionate[-]penalties clause by comparing it with the penalty

for an offense with different elements."   Guevara, 216 Ill. 2d at

545, ___ N.E.2d at ___.

           The question now before us, which the parties were

unable to address because of these developments since the filing

of their briefs, is whether the mandatory 15-year enhancement was

unconstitutional when defendant was sentenced.   Defendant could

not be sentenced under an unconstitutional statute.    The fact

that the supreme court later changed its mind is irrelevant.      Was

there a mandatory sentence enhancement in effect at the time

defendant was sentenced?

           More broadly, is there a mandatory-sentence-enhancement

statute in effect even after Sharpe and Guevara?   If a defendant

receives a mandatory sentence enhancement for armed robbery (720

ILCS 5/18-2 (West 2000)), specifically held to be unconstitu-

tional in Moss, it would appear that the sentence cannot stand,

despite the overruling of Moss.   The supreme court has the power

to declare a statute unconstitutional, rendering the statute null

and void as though no such law had ever been passed.   People v.

Zeisler, 125 Ill. 2d 42, 46, 531 N.E.2d 24, 26 (1988).    Once that

has been done, the supreme court has no power to reenact the

statute.   It is the legislature that must make that decision.


                              - 14 -
See Zeisler, 125 Ill. 2d at 48, 531 N.E.2d at 27.

           In the case before us, the question is whether Moss

held the mandatory 15-year enhancement to the home-invasion

statute invalid or whether the supreme court in Moss expressly

limited its holding to the statutes before it, which did not

include the home-invasion statute.     The Second District concluded

that Moss held the enhancement to the home-invasion statute

invalid.   "We find no such limiting language in the supreme

court's opinion, and, in any event, we see no reason that the

rationale of Moss should not apply to the instant case."     Dryden,

349 Ill. App. 3d at 122, 811 N.E.2d at 309.    On December 1, 2005,

the supreme court directed the Second District to vacate its

judgment and reconsider in light of Sharpe.     People v. Dryden,

No. 98795 (December 1, 2005) (nonprecedential supervisory order).

 The supreme court did not disagree that Moss had held the sen-

tence enhancement invalid in home-invasion cases; the supreme

court held only that Moss was overruled.

           Our court has held that the Moss court expressly

limited its decision to sentence enhancements applied to convic-

tions for (1) armed robbery, (2) aggravated kidnaping, and (3)

aggravated hijacking.   Standley, 359 Ill. App. 3d at 1106-07, 835

N.E.2d at 954.   Although those were the offenses involved in

Moss, the Moss decision seems to be a broad one, and I see no

reason to conclude it was limited to those offenses.    Standley


                              - 15 -
also concluded that, even under the Moss test, the sentence

enhancement to home invasion was appropriate, but no other

decisions have agreed.    "In sum, we have little difficulty

concluding that shooting someone with a firearm is more serious

than merely possessing a firearm, regardless of the circumstances

under which the firearm is possessed."    Dryden, 349 Ill. App. 3d

at 124, 811 N.E.2d at 310.

          In the unusual circumstances of this case, where the

Supreme Court of Illinois had entered a final order declaring a

mandatory sentence enhancement to be unconstitutional when

defendant was sentenced, I conclude that defendant could not be

sentenced to that mandatory enhancement, even though the supreme

court later overruled its decision.     Moss was the law until

Sharpe was decided, more than a year after the April 9, 2004,

sentencing in this case.

          I am also uncomfortable with the State's changing

positions on how the sentence may be supported.    In the charging

instrument, the State asked for a mandatory sentence enhancement

under section 12-11(c).    On appeal, the State abandoned that

argument, conceding that section 12-11(c) was unconstitutional

under Moss and arguing that defendant in fact was sentenced under

another provision.   Now that Moss has been overruled, the State

(or more accurately, this court) takes a different position on

how defendant was sentenced.   Even assuming there was some


                               - 16 -
question as to the extent of Moss, due process requires that

sentencing provisions not be so vague that persons of common

intelligence must necessarily guess at their meaning or applica-

tion.   People v. Hickman, 163 Ill. 2d 250, 256, 644 N.E.2d 1147,

1150 (1994).   The State should not be allowed to sustain a

sentence on the basis of events it had expressly denied occurred.




                              - 17 -
