Any prisoner learns a lot about the fallacies of the judicial system as one is processed through the system. Richard Wanke is no exception. He is now at the level of appeal where he has to be his own advocate. Richard has learned the hard way, that while the 6th amendment to the US constitution guarantees some degree of representation to a defendant, the level of representation one receives is not necessarily of the highest quality.

Richard is preparing to submit a post-conviction petition in June 2012, and is seeking pro bono help to do so from any interested parties. If you can assist him with this effort, please contact him at freerichardwanke@gmail.com.

Richard’s Petition for a Writ of Certiorari to the US Supreme Court was denied December 12, 2011. His Petition for Leave to Appeal to the IL Supreme Court was denied May 25, 2011. He filed a subsequent “Motion for Reconsideration” which was also denied July 28, 2011. Richard presented two main issues on appeal to the IL Supreme Court: that his trial court should have evaluated an “ineffective assistance of counsel” claim on his behalf at several different points before trial (particularly when his attorney caused him to lose the right to knowingly consider a plea deal), and that he was wrongly and improperly sentenced to an extended prison sentence because the sentencing judge and all the attorneys apparently did not know or chose to ignore how to properly interpret the law on deciding what his dates of conviction are.

From what we hear, this last mistake seems to happen all the time during sentencing, and prisoners get stuck with sentences they should never have received in the first place!

Richard Wanke’s Request to US Supreme Court for Extension of Time to file Writ of Certiorari- submitted August 13, 2011, and time extension was granted to October 22, 2011.

Richard Wanke’s Motion to IL Supreme Court for Reconsideration- denied

Richard Wanke’s Pro Se, Petition for Leave to Appeal to IL Supreme Court-submited March 7, 2011, & denied May 25, 2011.

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Richard Wanke’s Pro Se, IL Appellate Petition For Rehearing, submitted November 15, 2010, & denied January 4, 2011.

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Richard Wanke’s IL Appellate Decision-Rule 23 Order, issued August 4, 2010.

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Richard’s IL Appellate Response Brief

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State’s IL Appellate Brief

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Any prisoner learns a lot about the fallacies of the judicial system as one is processed through the system. Richard Wanke is no exception. He is now at the level of appeal where he has to be his own advocate. Richard has learned the hard way, that while the 6th amendment to the US constitution guarantees some degree of representation to a defendant, the level of representation one receives is not necessarily of the highest quality.

Richard is presently petitioning the IL Supreme Court to hear his appeal. He stands an unlikely chance of the court allowing his case to be heard, but it is one option available to him among others, and he wants to pursue it.  He is also working on other avenues of appeal.

Richard presents two main arguments to the IL Supreme Court: that his trial court should have evaluated an “ineffective assistance of counsel” claim on his behalf at several different points before trial (particularly when his attorney caused him to lose the right to knowingly consider a plea deal), and that he was wrongly and improperly sentenced to an extended prison sentence because the sentencing judge and all the attorneys apparently did not know or chose to ignore how to properly interpret the law on deciding what his dates of conviction are.

From what we hear, this last mistake seems to happen all the time during sentencing, and prisoners get stuck with sentences they should never have received in the first place!

Richard Wanke’s Defendant Appellate Brief: (copy of full brief at bottom of this page)

Excerpts below regarding the Attorney/Client relationship are from Website of Hinshaw & Culbertson LLP (law firm)

“One of the basic concepts of the practice of law is that the client is entitled to be represented by counsel of his or her choice. It follows that a client may terminate his attorney at will, and with or without cause. Herbster v. North American Co., 150 Ill.App.3d 21, 501 N.E.2d 343 (1986). This rule is deeply rooted in the personal nature of the attorney-client relationship and in the need to avoid friction and distrust between the lawyer and client. The client’s right to terminate also includes the right to substitute other counsel. See, e.g., Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85 (1957)…

…The right to choose counsel is not without limitation, however, particularly in the field of litigation. The client’s latitude in selecting, discharging or substituting counsel is not “so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice.” People v. Franklin, 415 Ill. 514, 516-17, 114 N.E.2d 661, 663 (1953). Thus, once a trial has commenced, substitution or withdrawal may be denied in the absence of some “valid reason.” See, e.g., Marriage of Milovich, 105 Ill.App.3d 596, 434 N.E.2d 881 (1982)…

…interference with the relationship between an attorney and his client may be actionable, even if the relationship is terrainable at will. See, e.g., Herbster; LaRocco, supra…An attorney’s right to withdraw from the attorney-client relationship is somewhat restricted by the lawyer’s special position…an attorney representing a client before a tribunal must obtain permission from the tribunal to withdraw. “

http://www.hinshawlaw.com/breaking-away–avoiding-malpractice-when-the-attorney-client-relationship-ends-05-01-2000/

Below is the first of two main arguments submitted January 20, 2010, by the Illinois State Appellate Defender’s Office in support of Richard Wanke’s appeal of his 2006 burglary conviction and 14 year extended term sentence.

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ARGUMENT I (from the Appellate Brief)

BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING GREG CLARK’S  PRE-TRIAL MOTIONS TO WITHDRAW AS TRIAL COUNSEL, THE DEFENDANT WAS ULTIMATELY DENIED A FAIR TRIAL REQUIRING THAT THE CONVICTION BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

Standard of review
The standard of review of the decision to allow an attorney to withdraw is abuse of discretion. People v. Franklin, 415 111. 514, 516 (1953); Safety-Kleen Corp. v. Canadian Universal Ins. Co., 258 111. App. 3d 298, 303 (2nd Dist. 1994); In re Rose Ann L., 307 111. App. 3d 907, 912 (1st Dist. 1999); see also In re J.D. and M.G, 332 111. App. 3d 395, 405 (1st Dist. 2002).

On March 14, 2007, Clark filed a motion to withdraw as counsel. In the motion, he claimed a lack of cooperation and communication as the bases for the motion.  At the hearing on the motion, Clark said that while the relationship with the defendant was not hostile, communication had broken down to the point there was none. (R165-166) The defendant denied knowing what Clark was talking about; he said that Clark’s claim that he tried to call the defendant many times was “inaccurate,” and that he had not received a copy of Clark’s motion. When the court asked the defendant about the breakdown in communication, Mr. Wanke replied that it was “hard to say” – the two were cordial and polite, but they did not see eye to eye. (R167-169) Clark reiterated that the basis of the motion was “non-communication.” (R170) The court denied the motion, but noted that Mr. Wanke was on notice to cooperate with counsel and respond to communication – if not, it was at his own peril. (R173)

Later in the same proceeding, the defendant told the court he wanted Clark to re-open the motion to suppress and argue that the photographs in the line-up had been “cherry-picked.” The court told Wanke that Clark conducted a full and fair hearing with the correct witnesses, and it was not for the defendant to second-guess counsel. (R173-174) Clark then asked the court to admonish the defendant that if any defenses were not disclosed to the prosecution, the court would bar them at trial; the court did so and again put Wanke on notice that he needed to cooperate with counsel. (R176)

Under Supreme Court Rule 13, an attorney who has filed an appearance on behalf of an individual may withdraw as counsel unless the court, reviewing a written motion to withdraw, finds the withdrawal will delay the trial or “would otherwise be inequitable.” Supreme Court Rule 13(c)(2) and (3). Under the Illinois Rules of Professional Conduct, there are some circumstances that require an attorney to withdraw as counsel, while the Rules permit withdrawal under other circumstances.

Specifically, Rule 1.16 provides, in pertinent part:
(a)    A lawyer representing a client before a tribunal shall withdraw from employment (with permission of the tribunal if such permission is required), and a lawyer representing a client in other matters shall withdraw from employment, if:
the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise  having steps taken, merely for the purpose of harassing or maliciously injuring any person;
the lawyer knows or reasonably should know that such continued employment will result in violation of these Rules;
the lawyer’s mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively; or  the lawyer is discharged by the client.
(b)    Except as required in Rule 1.16(a), a lawyer shall not request permission to withdraw in matters pending before a tribunal, and shall not withdraw in
other matters, unless such request or such withdrawal is because:
the client: insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
seeks to pursue an illegal course of conduct;
(c) insists that the lawyer pursue a course of conduct that is illegal or that is prohibited by these Rules;
(d) by other conduct renders it unreasonably difficult for the lawyer to carry out the employment effectively;

* * * *
(4) the lawyer reasonably believes that a tribunal will, in a proceeding pending before the tribunal, find the existence of other good cause for withdrawal.

Rules of Professional Conduct, 1.16.

An indigent defendant is constitutionally entitled to competent assistance
of counsel.  U.S. Const., amends. VI, XIV; 111. Const. 1970, art. 1, § 8; Gideon u.
Wainwright, 372 U.S. 335 (1963); see also People v. Lynn, 102 111. 2d 267, 273
(1984). That long-standing and obvious rule being said, there are limits to that
right.   This Court pointed out in a previous appeal by Mr. Wanke that, “A
criminal defendant has no right to choose his appointed counsel or insist on
representation by a particular public defender.” People v. Wanke, 3.03 111. App.3d
772, 782 (2d Dist. 1999); see also People v. DeRossett, 262 111. App.3d 541, 544
(4th Dist. 1994) (“an indigent defendant does not have the right to court-appointed counsel of his choice [citation], nor does a defendant have the right to select a particular assistant public defender to represent him”).

While these cases stand for the proposition that an indigent defendant may not be able to choose his appointed counsel, the counsel appointed to represent such an indigent defendant must still satisfy the Rules of Professional Conduct and seek to withdraw should any of the situations enumerated in Rule 1.16 arise. However, unless counsel and his client are “embroiled in an ‘irreconcilable conflict’ that is ‘so great that it resulted in a total lack of communication preventing an adequate defense,’ there is no abuse of discretion in denying a motion for new counsel.” U.S. v. Morris, 734 F.2d 669, 673 (7th Cir. 1983), citing U.S. v. Mills, 597 F. 2d 693, 700 (9th Cir. 1979), and U.S. v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).

Here, the total lack of communication is precisely what the problem was, as alleged by Clark in his motion to withdraw and in his statements at the proceeding on March 14. Clark admitted there was no hostility between Wanke and him, but there had developed a complete breakdown in communication. (R166, 170)

This was not a situation as in Lucas v. State of South Carolina, 572 S.E.2d 274 (S.C. 2002), where counsel filed a motion to withdraw in the midst of a serious and complex murder trial, alleging his concern that perjured testimony would be presented. That Court found that the attorney did what was required of him under the South Carolina Rules of Professional Conduct, and that the trial court considered appropriate factors in denying the motion to withdraw. Those factors include: a balancing of the need for the orderly administration of justice with the fact that an irreconcilable conflict exists between counsel and the accused; the timing of the motion; the inconvenience to the witnesses; the period of time elapsed between the date of the alleged offense and the trial; and the possibility that any new counsel will be confronted with the same conflict. 572 S.E.2d at 277. Compare also Ellis v. Texas, 99 S.W.3d 783 (Tex. App. 2003) (defendant and counsel disagreed on strategy, defendant’s father threatened future law practice, defendant repeatedly accused counsel of ineffectiveness; court found any other attorney would face the same personality conflicts as did counsel, and denied counsel’s motion to withdraw).

Here, Clark described an “intolerable” situation in which he had no communication with his client. The motion to withdraw, filed well-before the date set for trial, before witnesses would have been subpoenaed, and with plenty of time for newly appointed counsel to come up to speed for trial, should have been granted. The events subsequent to that denial underscore the error in the trial court’s denial of the motion.

For instance, in the course of a status hearing on April 19, 2007, concerning plea negotiations, Clark told the court an oral offer had been made on March 28 and conveyed to the defendant. He again alluded to the failure in communication with Wanke when there was no communication from Wanke until Clark received a voicemail at some point asking that the offer be in writing, which Clark obtained on April 17. (R189-190) On May 4, Clark, in the absence of the defendant, told the court of his error in information given to the defendant during the plea negotiations (concerning the applicability of the extended term sentencing and the ineligibility for probation), his suggestion that the defendant reconsider the plea offer, and then the defendant’s lack of communication afterward, including his failure to come to the proceeding that day as instructed by Clark. (R198-204)

On May 7, Clark again described the complete lack of cooperation and failure to provide possibly relevant exhibits for an alibi defense the defendant wanted to raise. Clark renewed his motion to withdraw, detailing what he said was a lack of cooperation on the defendant’s part, and alleging what he believed was the defendant’s “ulterior motive” in behaving in such a manner. (R209-221, 224-225) The court denied the motion again, finding that “every bit is on” the defendant. (R221) The court also denied the defendant the opportunity to file a pro se motion at that same proceeding, noting, in a statement seemingly contrary to its denial of counsel’s motion to withdraw, that Wanke’s attempt to file the pro se motion was “indicative of the lack of communication” between Wanke and Clark. (R234-235)

The contentious nature of the relationship continued after the trial ended. The defendant had Clark include an allegation in the motion for new trial, claiming Clark provided ineffective assistance of counsel.    (C103-104) The defendant argued that claim on November 5, 2007, and included an accusation that Clark had withheld evidence from the court and prosecutor. (R1046-1054, 1055-1056) Clark briefly responded, saying he felt bound by the attorney-client relationship, but said the defendant’s claims were “intolerable,” and that when he asked the defendant for a list of complaints about the representation nothing was communicated back. (R1054-1055) The defendant’s claims were denied as was the motion for new trial. (E1058, 1060)

Under the circumstances of this case, Clark’s motion to withdraw, filed well before trial and with ample time for another attorney to come up to speed on the case, should have been granted. Clark’s description of the lack of cooperation or communication showed an attorney-client relationship that was beyond repair; the post-trial claims by the defendant support that conclusion. This was not, as in Ellis v. Texas, merely a personality conflict. Compare also People v. Coleman, 203 111. App. 3d 83, 99 (1st Dist. 1990) (no authority permits Court to equate “personality conflict” with conflict of interest). This was a situation in which the animosity between client and counsel was palpable from the record both before trial and after. Surely, when the relationship between attorney and client breaks down to the point where there is, as Clark told the court, absolutely no communication, preparing to properly and effectively represent a client becomes impossible. On the other side of that coin, if a client distrusts his attorney to the point that he feels compelled to stop communication and file motions of his own, it can no longer be considered a reasonable, effectiveattorney-client relationship. In short, Clark’s motions to withdraw prior to trial should have been granted.

The defendant, therefore, asks that this Court find that, because of the denial of the motions to withdraw, the defendant was ultimately deprived effective representation (as evidenced by the incorrect information affecting the decision to plead guilty or not), reverse the conviction, and remand this matter for a new trial.

Taken from the Appellate Brief filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction:

ARGUMENT II

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING MR. WANKE TO THE MAXIMUM EXTENDED TERM SENTENCE WHERE THE NATURE AND CIRCUMSTANCES OF THE OFFENSE DID NOT CALL OUT FOR SUCH A LENGTHY SENTENCE AND WHERE THE COURT RELIED ON SENTENCING FACTORS THAT WERE NOT SUPPORTED BY THE EVIDENCE OFFERED AT SENTENCING.

Richard Wanke was found guilty by a jury of having committed a burglary. (R1032; C99) The sentencing range for the Class 2 offense is three to seven years. 730 ILCS 5/5-8-l(a)(5) (2006). Because of a conviction entered on a Class 2 burglary on May 29,1997, (the prior conviction was the subject of the appeal in People v.Wanke, 303 111. App. 3d 772 (2d Dist. 1999). In People v. Wanke, 311 111. App. 3d 801 (2d Dist. 2000), this Court noted that the conviction in the former case was entered on May 29, 1997. As noted previously, this Court is also asked to also take judicial notice of the pleadings in the former appeal, referencing Appeal No. 2-97-0581). Mr. Wanke was not eligible for probation and was eligible for an extended term sentence. 730 ILCS 5/5-5-3(c)(2)(F) (2006); 730 ILCS 5/5-5-3.2(b)(1) (2006). Consequently, the sentence possibilities facing Mr. Wanke ranged from the three years previously mentioned up to a 14-year extended term sentence. 730 ILCS 5/5-8-2(a)(4) (2006).

The sentence imposed on Mr. Wanke – the maximum extended term of 14-years – is over four times greater than the minimum prison sentence. The sentence is excessive and overly harsh since the defendant did not injure anyone, never contemplated injuring anyone, and the laptop alleged to have been taken was abandoned in front of its owner immediately following its taking and its owner picked it up, undamaged, in the same short span of time. Further, the sentence imposed was the result of an abuse of discretion where the lower court relied upon improper aggravating factors as well as the judge’s own opinions that were directly contrary to what the evidence showed. Accordingly, this Court should either reduce Mr. Wanke’s sentence or remand the instant cause for resentencing.

Standard of Review

The standard of review for a sentencing issue such as this is whether the trial court’s sentencing determination constituted an abuse of discretion. People v. Rucker, 260 111. App. 3d 659, 664 (2nd Dist. 1994). A reviewing court’s analysis of the trial court’s exercise of discretion must be based on the particular facts and circumstances of the case. People v. Fern, 189 111. 2d 48, 62 (1999).

Argument:

When imposing a sentence, a trial court must balance the retributive and rehabilitative purposes of punishment, accounting for both the seriousness of the offense and the objective of restoring the offender to useful citizenship. 111. Const., Art. I, § 11; 730 ILCS 5/1-1-2 (2006). A sentence must be appropriate and just, and take into consideration the defendant’s background and the relevant circumstances of the offense. People v. Robinson, 221 111. App. 3d 1045, 1052 (1st Dist. 1991); People v. Treadway, 138 111. App. 3d 899, 904-905 (2d Dist. 1985); People v. Kosanovich, 69 111. App. 3d 748, 751 (1st Dist. 1979).

Although a trial court’s sentencing determination is entitled to substantial deference, the “mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable.” People v. O’Neal, 125 111. 2d 291, 298 (1988). That is, a sentencing court’s discretion is not unfettered. 125 111. 2d at 297. Rather, a reviewing court has the authority to reduce excessive sentences. Supreme Court Rule 615(b)(4); People u. Perruquet, 68 111. 2d 149, 154 (1977). Moreover, an abuse of discretion may be found even when the sentence is within statutory limitations if that sentence is at odds with the purpose and spirit of the law. People v. Maldonado, 240 111. App. 3d 470, 485 (1st Dist. 1992); People v. Center, 198 111. App. 3d 1025, 1032 (1st Dist. 1990).

In this case, the trial court failed to properly consider Mr. Wanke’s background and the circumstances of the offense. The resulting sentence, therefore, was both excessive and unjust. In particular, there was no physical harm involved in this offense, nor did Mr. Wanke’s prior criminal conduct include any offenses of violence. 730 ILCS 5/5-5-3.1(a)(l) (2006).

Courts should also consider whether the defendant contemplated that his conduct would cause or threaten serious physical harm to another. 730 ILCS 5/5-5-3.1(a)(2) (2006). There was absolutely no indication that this offense would, or could, have involved any type of violence or harm to anyone. In fact, prior to imposing the sentence, the question arose, in the context of whether a victim impact statement should be considered, as to whether this offense was one of violence. (R1476-1482) The court found that no force or threat of force was involved in the commission of the burglary “even though it is a forcible felony.” (R1481) Contrarily, the court later found that, while the absence of any contemplation of harm was a mitigating factor, “the specific facts of this case and the conduct of this offense and the conduct immediately after the commission of the offense posed a threat of physical harm.” (R1519)

The manner in which this offense was committed was that the defendant allegedly entered Professor Robert McCauley’s office while the professor was not there, took the professor’s laptop, and left the office, walking out of the Clark Arts Building. The professor took it upon himself to try to get the laptop back by grabbing onto the defendant and holding on to him as the two walked outside. (R649-653) Not to suggest that the professor should be blamed for trying to protect his property, but the fact is that the defendant neither contemplated any harm nor created the possibility of harm. This is particularly so considering the defendant “gently” placed the laptop on the ground and walked quickly away once they were outside. (R653) Clearly, there was no threat of physical harm to either the professor, or the laptop, contemplated or caused by the defendant. This factor, then, relied upon by the court in imposing the sentence, was improper.

Sentences must be based on the particular facts of each crime. People v. Nevitt, 228 111. App. 3d 888, 891 (1st Dist. 2003).   As noted, the evidence supporting this conviction shows that the offense was, in proportion to other offenses, a non-aggravated event. For whatever reason, the defendant allegedly took the laptop when no one was present, continued to hold the laptop as the professor attempted to grab at it, but carefully returned the laptop by gently placing it on the ground. The professor said the defendant was silent during the offense, (R663), so there were no words that would cause additional and undue fear for the professor. The professor said he was “shaken a bit,” and his 3:00 class did not start on time as a result,(R660), but it seems he was able to go on and conduct his life pretty much as usual.

And, as the court found, the offense was completed when the defendant left the professor’s office and at the time the professor attempted to “recapture his property.” (R1481) The burglary itself, then, was simply a taking of property from an open and unoccupied office. A 14-year maximum extended term sentence, based on the circumstances of this offense and the absence of any contemplation or possibility of harm during the commission of the offense, is wholly excessive and unjustified.

What makes this sentence even more difficult to justify are the additional reasons, both stated and inferred, that underlie it. It is true that the defendant has a couple of prior convictions for burglaries, dating back to 1991. However, as defense counsel argued, (R1507), there was no criminal conduct by the defendant from 1992 (R1282, 1341, 1362, 1396, 1406-1408, 1409, 1424, 1434-1436), until the alleged commission of this burglary in 2006 – a period of 14 years of law-abiding life.   The stipulated testimony from defense witnesses supports that the defendant had rehabilitated himself to a great degree during that 14 year period. (Supplemental Brown Envelope labeled “Sentencing Exhibits”) Surely, consideration of that lengthy period of successful and peaceful citizenship, coupled with the statements of the stipulated witnesses, would have mitigated against an equally lengthy sentence.

However, the court found otherwise. In imposing the sentence, the court accused the defendant of holding a “measure of conceit” toward law enforcement personnel. The court went on to say, ignoring the evidence of the lengthy period of law-abiding life, that,

I suppose there is some reason for you to feel that
way inasmuch as you have had a largely successful
career as a burglar in the time which has past (sic)
between this offense and the other offense for which
you were convicted and the other criminal conduct
that  we  heard  about in  the  first  part  of the
sentencing hearing.
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Your attorney points out that the time lapse between
the first conviction and this conviction, and actually,
I see a different side of that coin, and that is that
although the first offense was committed sometime
ago, that you continued along the lifestyle or pattern
of criminal behavior… that you continued to maintain
the same criminal thinking patterns and take things
from people for money, for profit, rather than work,
rather than use your skills and abilities to be a
productive member of society.
(R1521-1522)

As referenced above, there was no evidence presented at the sentencing hearing that the defendant engaged in any criminal behavior of any type from the time of the previous burglaries in 1991 and 1992, to this alleged offense in 2006. There is nothing to support the court’s conclusion that the defendant “continued along the lifestyle… of criminal behavior.” There was no evidence to support the court’s other conclusion that the defendant’s rehabilitative potential was “extremely low” or that “[his] criminal thinking patterns as exhibited by your conduct is (sic) deeply ingrained.” (R1523) The court’s opinions, unsupported as they were by the evidence presented, were clearly erroneous and constitute an abuse of discretion in imposing the lengthy 14-year maximum extended term sentence.

In fact, the evidence at trial and in the stipulated statements of defense sentencing witnesses showed that the defendant helped with childcare for various people, helped maintain properties owned by Diane Chavez in exchange for his rent, and did odd jobs of many types. (R848, 850, 874-875, 879-880; Supplemental Brown Envelope labeled “Sentencing Exhibits,” Deft. Ex. 1-4) The defendant’s employment may not have netted him a large salary, but it obviously was a successful life in that he helped others and maintained his own food, clothing, and shelter. By all appearances – living a law-abiding life for quite a lengthy period of time, by earning the praise and respect of others, by enjoying the affection of his nieces and nephews as well as other children, and by helping others through odd jobs and maintaining properties – the defendant was a successful, competent member of society who had been, to quite a great extent, rehabilitated since the previous run of offenses 14 years earlier. The court was simply wrong in finding, then, that the defendant was incapable of rehabilitation. (R1522)

The defendant suggests that the actual reason why the maximum 14-year extended term sentence was imposed was due to the underlying current of suspicion created by the death of attorney Greg Clark. The defendant acknowledges the sentencing court’s comments that:

It’s appropriate to begin by stating that the sentence imposed in this case is for this offense. I want it to be
clear that the court is not punishing Mr. Wanke  for
allegations that are uncharged and unproven. The
sentence is being imposed for this offense and solely
for this offense.
(R1516)

The court noted a second and third time that it was considering the “facts of this case” and “the nature and circumstances of this offense.” (R1517) To paraphrase Shakespeare, it appears the court protested too much.   See Hamlet, Act III, Scene 2.

Following the jury’s finding of guilt in this case, the prosecution made a motion to revoke bond (the defendant had been on bond since March 13, 2006 (Cl9)). The trial court denied the motion and the defendant remained out on bond following the finding of guilt. (R1036) A couple of months after the denial of the motion for new trial and the defendant’s own motion concerning ineffective assistance of counsel, (R1043-1060), attorney Greg Clark was the victim of a homicide. (R1075) Judge Truitt, based on information he was made aware of from the investigation into Clark’s death, ordered the defendant’s bond be revoked on February 6, 2008. (R1078-1079,1093) Motions to reconsider that revocation, and to reinstate the no-bond status, were repeatedly denied by both Judge Truitt and Judge McGraw, notwithstanding no charges were brought against the defendant in relation to Clark’s death. (On information and belief, no charges have yet been brought against Richard Wanke, or anyone else, in the death of Greg Clark.) (R1095-1098, 1107, 1180, 1216,1249-1252) The defendant remained in jail pending his sentencing hearing on August 6 and August 7, undoubtedly appearing before the court in jail garb, with the stigma it carries with it subhminally suggesting guilt of much more serious conduct than the offense at issue in this case.

Richard Wanke, therefore, asks that this Honorable Court vacate the sentence imposed and either reduce the sentence under this Court’s powers under Supreme Court Rule 615(b)(4), or remand this matter for a new sentencing hearing. The sentencing court here considered numerous factors that were not only unsupported by the evidence presented at the sentencing hearing, but formed opinions that were clearly contrary to the evidence that was admitted. The defendant further asks that, if the matter is remanded for a new sentencing hearing, that, because of the nature of the comments made by Judge McGraw, the hearing proceed before a different judge.

The Appellate Brief  & Motion To Supplement the Record, filed January 20, 2010, in appeal of Richard Wanke’s 2006 burglary conviction and excessive sentencing can be viewed in their entirety below: