People v. Brisco
971 N.E.2d 20
Ill. App. Ct.2012Background
- Defendant Brisco charged with four counts AUUW and two counts unlawful use of a weapon by a felon; trial by bench leads to convictions on all counts and 11-year sentence plus 3-year MSR; AUUW amended Aug 25, 2009 creating invitee exception; counts I–II charged unamended statute; counts III–IV allege non-invitee conduct; defense testified he was an overnight guest; trial court considered sentencing Class X eligibility based on defense history; State moved to amend charging instrument to conform with evidence; appellate court vacates sentence and remands for new posttrial proceedings; court addresses multiple challenges including sufficiency, bias, ineffective assistance, substitution of counsel, constitutionality, and MSR term; conviction upheld on appeal, but sentence vacated and remanded for new posttrial proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guilt beyond reasonable doubt under amended AUUW | Brisco argues failure to prove invitee status under amended statute | Brisco contends indictment wrong under post- amendment law | Affirmed; evidence supports not-invitee finding overall |
| Trial court bias and due process | State alleges no bias; court correctly explained sentencing changes | Defendant claims bias undermines due process | No reversible bias; no due process violation |
| Ineffective assistance of counsel for suppression motions | State asserts standing and probable cause supported arrest | Failure to file suppression motion prejudices defense | Rejected; suppression would be futile; no prejudice shown |
| Denial of substitution of counsel for posttrial proceedings | State argues chosen counsel unavailable; scheduling concerns | Right to counsel of choice violated; proper substitute warranted | Reversed; vacate sentence and remand for new posttrial proceedings |
| Constitutionality and MSR period under AUUW statute | AUUW facially constitutional; MSRThree-year period appropriate for Class X eligibility | Challenges to Second Amendment applicability and as-applied interests | Constitutionality upheld; three-year MSR explained; remand for posttrial proceedings |
Key Cases Cited
- People v. McLaurin, 235 Ill. 2d 478 (Ill. 2009) (plain-error review for unpreserved issues; sufficiency concerns)
- People v. Wasson, 175 Ill. App. 3d 851 (Ill. App. 1988) (indictment defects and prejudice analysis)
- People v. Davis, 82 Ill. 2d 534 (Ill. 1980) (prejudice analysis where indictment misidentification not fatal)
- People v. Grant, 57 Ill. 2d 264 (Ill. 1974) (prejudice not shown where defense contradicts requirement)
- People v. Sprinkle, 27 Ill. 2d 398 (Ill. 1963) ( Require contemporaneous objection absent extraordinary circumstances)
- People v. Tucker, 382 Ill. App. 3d 916 (Ill. App. 2008) (factors in evaluating substitution of counsel)
- People v. Childress, 276 Ill. App. 3d 402 (Ill. App. 1995) (counsel ready, willing, able to enter appearance; continuance considerations)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (U.S. 2006) (right to counsel of choice; balance with court’s interests)
- Heller v. District of Columbia, 554 U.S. 570 (U.S. 2008) (core self-defense right; limitations for felons noted)
- McDonald v. City of Chicago, 561 U.S. _, 130 S. Ct. 3020 (U.S. 2010) (Second Amendment applicability to states)
- People v. Mimes, 2011 IL App (1st) 082747 (Ill. App. 2011) (intermediate scrutiny applied to AUUW/related statutes)
- People v. Spencer, 2012 IL App (1st) 102094 (Ill. App. 2012) (intermediate scrutiny analysis for AUUW)
- People v. Watkins, 387 Ill. App. 3d 764 (Ill. App. 2009) (MSR and Class X sentencing considerations)