Opinion
No. 5-08-0089
Opinion Filed: June 24, 2010.
Appeal from the Circuit Court of Saline County, No. 06-CF-144, Honorable Walden E. Morris, Judge, presiding.
Michael J. Pelletier, State Appellate Defender, Johannah B. Weber, Deputy Defender, Robert S. Burke, Assistant Appellate Defender, Office of the State Appellate Defender, Mt. Vernon, IL, Attorneys for Appellant.
Hon. Mike Henshaw, State's Attorney, Law Enforcement and Detention Center, Harrisburg, IL; Pat Delfino, Director, Stephen E. Norris, Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, Attorneys for Appellee.
Honorable Richard P. Goldenhersh, P.J., Honorable James K. Donovan, J., Concurs, Honorable Thomas M. Welch, J., Dissents.
In the circuit court of Saline County, defendant, Rodney E. Black, was charged with multiple counts of possession and delivery of controlled substances. After a jury found defendant guilty of the charges, the circuit court entered a judgment on the verdict. On appeal, defendant raises numerous issues, including whether the failure to admonish him of his right to counsel at a preliminary hearing warrants a reversal. We reverse and remand.
FACTS
On May 23, 2006, defendant was charged by information with unlawful delivery of less than a gram of a controlled substance (cocaine), possession of a controlled substance (cocaine), possession of a controlled substance (alprazolam), possession of a controlled substance (hydrocodone), possession of drug paraphernalia (scales), and possession of 2.5 grams to 10 grams of cannabis.
On May 24, 2006, the court entered a docket entry stating, "[Defendant] will represent self — 50,000 [ sic] Bond — PH set — per notice." The court checked a box on a written order stating, "Defendant indicates Private Counsel: self."
Prior to his preliminary hearing, defendant sent to the court two letters asking for legal research materials. In a handwritten note dated May 30, 2006, defendant stated, "I am representing myself on the court case ***." Defendant wrote that he needed law books, including the "Illinois Court Rules and Procedures" and the "Trial Handbook for Illinois Lawyers." In a letter dated June 1, 2006, defendant sent another handwritten note:
"Could you please assist me in obtaining or at least having access to: Illinois Court Rules and Procedures Volume III Circuit Courts [and] Trial Handbooks for Illinois Lawyers 7th (Civil and Criminal Sentencing) 8th (Criminal and Homicide)[,] So I can successfully represent myself."
On June 13, 2006, the court conducted a preliminary hearing. The record commences with the court stating, "[D]efendant is representing himself and he's present this afternoon."
The hearing concluded with the following colloquy:
"THE COURT: You may step down. The [c]ourt's heard the evidence. I find probable cause to support the charges. I'm going to have the clerk set the pretrial and a jury trial on this case and send notice. Mr. Black, you need to reconsider having an attorney appointed to represent you.
THE DEFENDANT: I will. I strongly-I hoped you could get me one tomorrow because I'm not very good at this.
THE COURT: Well, I agree. It's going to make-it's going to make it twice as tough when you have a jury sitting here.
THE DEFENDANT: Right. No. I was going to ask you, Your Honor, if I could get a public defender appointed to me please.
THE COURT: Okay.
THE DEFENDANT: Because this is a big undertaking. And I'm not-I'm not suited for this.
THE COURT: I will let you know. I've got to find out if anybody's-anybody might have conflicts. Do you know?
[Assistant State's Attorney:] I don't know, Judge.
THE COURT: Why is that?
THE DEFENDANT: Because he represented me last time and I had him investigated for not representing me right[,] I thought. And I asked that he be removed from my case. Your Honor, do you think it's possible I could file a couple of motions while I'm here, please?
THE COURT: I'm going to appoint Nathan Roland to represent you. You look at-you have him look at your motions before you file them.
THE DEFENDANT: Are you going to set up a hearing date, Your Honor?
THE COURT: No. I'm going to have the clerk do that."
Counsel was appointed for defendant and he proceeded to a trial. A jury found defendant guilty on all the counts, and a judgment was entered on the verdict. Defendant appeals.
ANALYSIS
The right to counsel is a cornerstone of our criminal justice system. This right is enshrined in both the United States Constitution and the Illinois Constitution. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The right attaches at the commencement of judicial proceedings, be it an arraignment or a preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 9, 26 L. Ed. 2d 387, 396-97, 90 S. Ct. 1999, 2003 (1970); see People v. Adams, 46 Ill. 2d 200, 206, 263 N.E.2d 490, 493 (1970) ( Coleman applies retroactively), aff'd, 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916 (1972). A defendant has the right to waive counsel and represent himself. People v. Nelson, 47 Ill. 2d 570, 574, 268 N.E.2d 2, 5 (1971). The gravity of a waiver requires a trial court to fully inform a defendant of both the nature of the right being abandoned and the consequences of the decision. People v. Kidd, 178 Ill. 2d 92, 104-05, 687 N.E.2d 945, 952 (1997). In other words, a defendant may engage in self-representation only if he voluntarily, knowingly, and intelligently waives his right to counsel. People v. Campbell, 224 Ill. 2d 80, 84, 862 N.E.2d 933, 936 (2006).
In Illinois, Supreme Court Rule 401 guides the procedure for a waiver of counsel. Rule 401 provides as follows:
" Rule 401. Waiver of Counsel
(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(b) Transcript. The proceedings required by this rule to be in open court shall be taken verbatim[] and upon order of the trial court transcribed, filed[,] and made a part of the common law record." 134 Ill. 2d R. 401. Defendant was not afforded the protections of Rule 401 at his preliminary hearing.
On appeal, defendant characterizes the proceeding as a violation of the requirement of a verbatim recording outlined in paragraph (b). Defendant's emphasis on subsection (b) is understandable. Although Illinois has declined to enforce a formalistic approach to the substantive requirements outlined in paragraph (a), the recording requirements of paragraph (b) have been seen as calling for strict compliance. People v. Robertson, 181 Ill. App. 3d 760, 763, 537 N.E.2d 1036, 1039 (1989); People v. Montgomery, 298 Ill. App. 3d 1096, 1098, 700 N.E.2d 1085, 1088 (1998) (a bystander's report is insufficient to comply with the strict requirements of Rule 401(b)). Nonetheless, if the issue is confined to the events at the preliminary hearing, the query does not center on the technicality of recording. A verbatim recording was taken of the preliminary hearing, and a transcript was made a part of the common law record.
The trial court failed to admonish defendant as required by Rule 401. Rule 401(a) requires the trial court to describe the nature of the charge, the possible sentence, and the right to counsel. 134 Ill. 2d R. 401(a). The rule flatly states that any waiver of counsel must be in open court. At the conclusion of the preliminary hearing, however, defendant requested counsel and an attorney was appointed to rep resent him. Thus, the question before this court hinges on the vitality of the right to counsel at a preliminary hearing.
Illinois has long recognized that a preliminary hearing is a critical stage in prosecution. Coleman, 399 U.S. at 9, 26 L. Ed. 2d at 396-97, 90 S. Ct. at 2003; Adams, 46 Ill. 2d at 205, 263 N.E.2d at 492. Thus, the defendant has a constitutional right to counsel at a preliminary hearing. People v. Bolden, 59 Ill. App. 3d 32, 33, 374 N.E.2d 1307, 1308 (1978); see People v. Sephus, 46 Ill. 2d 130, 132, 262 N.E.2d 914, 915 (1970) (the fact that a defendant may waive a preliminary hearing pro se does not undermine the right to counsel at the hearing).
The role of counsel at a preliminary hearing is not limited to assisting a defendant in his claim that there was no probable cause. Counsel at a preliminary hearing may assist the defendant in effectively discovering the strengths and weaknesses in the State's case, preserving favorable evidence, and strengthening the defendant's claim for bail and the suppression of incriminating evidence. See People v. Houston, 174 Ill. App. 3d 584, 589, 529 N.E.2d 292, 295 (1988); Bolden, 59 Ill. App. 3d at 33, 374 N.E.2d at 1308.
Bolden held that the failure to issue Rule 401 admonitions before conducting a preliminary hearing mandated a reversal. As in the case at hand, the defendant in Bolden was represented by counsel at the trial but not at his preliminary hearing. Bolden, 59 Ill. App. 3d at 33, 374 N.E.2d at 1308. Bolden found that the admonitions administered to the defendant were inadequate. Bolden noted that the defendant had been admonished by the trial court that he had a right to be represented by the public defender at the hearing but that the record suggested that the defendant misapprehended the nature of the charges as the possession of a controlled substance, rather than the delivery of a controlled substance. Bolden, 59 Ill. App. 3d at 34, 374 N.E.2d at 1309. Bolden held that the failure to adhere to the strictures of Rule 401 violated the defendant's rights. The court described the necessity of issuing Rule 401 admonitions prior to a preliminary hearing:
"As Coleman indicates, it is impossible for a reviewing court to guess in retrospect what assistance may have been afforded by the presence of defense counsel at the preliminary hearing. What is clear is that the defendant was not released from custody because the court determined that there was probable cause to believe an offense had been committed by him. The court's failure to properly admonish the defendant prevented him from making a voluntary and knowledgeable choice as to representing himself or being represented by counsel. The assistance of that counsel at the preliminary hearing may have resulted in the defendant's release, thereby permitting him to more effectively assist in the preparation of his case for trial. In any event, it seems certain that had he been given the proper admonitions, he would have known and understood the nature of the offense with which he was charged. We, therefore, find that the court's failure to comply with Supreme Court Rule 401(a) at the preliminary hearing did indeed contribute to defendant's later conviction. ( Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.)" Bolden, 59 Ill. App. 3d at 35, 374 N.E.2d at 1309.
This language controls our disposition.
The State does not address Bolden in its appellate brief. Instead, the State contends that defendant failed to display prejudice. The State's response is manifold and intertwined. First, the State points to evidence in the record suggesting that defendant was aware of his right to counsel. Second, the State contends that defendant failed to meet the burden of proof under the plain error doctrine. These arguments fail in light of Bolden.
The State contends that defendant had actual knowledge of his right to counsel. The State points out that the defendant had an extensive criminal history. The State also asserts that defendant interacted with the court in a manner that indicated he was aware of his right to counsel. At the conclusion of the preliminary hearing, the court asked whether defendant wished "to reconsider having an attorney appointed to represent" him. The State asserts that this intimates that the judge had recommended to defendant that he accept court-appointed counsel prior to the preliminary hearing. The State asserts that the two letters defendant sent to trial court judges in the month before the preliminary hearing asking for legal research materials show that defendant had communicated with the court about self-representation and that he possessed a degree of legal sophistication.
Although the State places its argument in terms of prejudice, Illinois has addressed similar claims in terms of substantial compliance. Illinois has recognized two categories of substantial compliance with Rule 401. People v. Koch, 232 Ill. App. 3d 923, 926, 598 N.E.2d 288, 290 (1992). First, an otherwise inadequate admonition may be constitutionally sufficient if the absence of a detail did not impede the defendant from giving a knowing and intelligent waiver. See People v. Johnson, 119 Ill. 2d 119, 132, 518 N.E.2d 100, 106 (1987) (the admonitions failed to state the minimum sentence); People v. Coleman, 129 Ill. 2d 321, 334, 544 N.E.2d 330, 336 (1989) (the admonitions incorrectly stated the minimum sentence); see also People v. Haynes, 174 Ill. 2d 204, 243, 673 N.E.2d 318, 336 (1996) (the admonishments were sufficient without stating the minimum sentence because the defendant had standby counsel). Second, a defendant may be seen as possessing a degree of knowledge or sophistication that excuses the lack of admonition. See, e.g., Houston, 174 Ill. App. 3d at 589, 529 N.E.2d at 295 (the defendant's displayed knowledge and training as a paralegal excused an admonition at the preliminary hearing). Although a defendant's criminal history has been seen as enhancing otherwise substantial compliance in the form and frequency of admonitions, the State is unable to point to any instance where a defendant's criminal history has been found to justify the lack of any admonition. See, e.g., People v. Phillips, 392 Ill. App. 3d 243, 264, 911 N.E.2d 462, 483 (2009) (extensive court experience was seen as a fourth factor supplementing a finding of substantial compliance); People v. Black, 68 Ill. App. 3d 309, 312-13, 385 N.E.2d 899, 902 (197 9) (substantial compliance was found despite the failure to properly advise of the sentencing range, considering the defendant's prior convictions for the same type of offense); Nelson, 47 Ill. 2d at 574, 268 N.E.2d at 5 (the defendant was frequently admonished); cf. Koch, 232 Ill. App. 3d at 926, 598 N.E.2d at 290 (the defendant's recent felony deceptive practices conviction was not seen as a factor). This case does not involve a determination of whether an otherwise inadequate admonition was sufficient given the circumstances. In the case at hand, the record contains no admonition.
Bolden highlights the insufficiency of the State's claims. In Bolden, the defendant was actually advised that he had a right to be represented by a public defender at his preliminary hearing. Bolden, 59 Ill. App. 3d at 34, 374 N.E.2d at 1308-09. Bolden found that this admonition was insufficient under Rule 401. As evidence, the court pointed to the defendant's continued misapprehension of the charges against him. Furthermore, the defendant's criminal record did not cure the inadequacy of the admonitions. In Bolden, as in the case at hand, the defendant had a criminal history. Bolden, 59 Ill. App. 3d at 34, 374 N.E.2d at 1308 (the court declined to address issues of the improper admission of evidence regarding a prior conviction); see, e.g., Koch, 232 Ill. App. 3d at 926, 598 N.E.2d at 290 (the defendant had a recent felony deceptive practices conviction). Bolden did not ponder how the defendant's criminal history could have cured any inadequacy in the admonition.
Statements the court made to defendant before the preliminary hearing fall short of those in Bolden. The two letters merely ask for research materials. They do not display knowledge that is supposed to be imparted by Rule 401, and the handwritten notes certainly do not evidence a high degree of legal sophistication. Furthermore, the colloquy is ambiguous. Although the court used the term "reconsider," defendant stated, "I hoped you could get me [an attorney] tomorrow" and "I was going to ask you, Your Honor, if I could get a public defender appointed to me please." Nor does defendant's performance indicate a high level of legal sophistication. After all, the court agreed with defendant's self-assessment that his performance had been "not very good." Unlike Bolden, defendant did not receive admonitions in open court of his right to counsel.
The State contends that defendant has failed to display prejudice sufficient to mandate a reversal under the doctrine of plain error. Defendant failed to raise the issue before the trial court. Nonetheless, this court may review defend ant's claims under the doctrine of plain error. People v. Davis, 145 Ill. 2d 240, 250, 582 N.E.2d 714, 719 (1991). The State contends that defendant has failed to show that the error undermined his right to a fair trial. People v. Patterson, 217 Ill. 2d 407, 444, 841 N.E.2d 889, 910 (2005). The State argues that defendant has failed to meet the burden of showing prejudice and that a reversal would be futile. See People v. Tufte, 165 Ill. 2d 66, 79, 649 N.E.2d 374, 380 (1995); People v. Cameron, 286 Ill. App. 3d 541, 544, 675 N.E.2d 1002, 1004 (1997). The State's diagnosis is mistaken.
Defendant has shown plain error. The right to counsel is fundamental. Over the last decade, Illinois has found numerous instances where the failure to issue Rule 401 admonitions was plain error. People v. Vernón, 396 Ill. App. 3d 145, 150, 919 N.E.2d 966, 972 (2009); People v. Jiles, 364 Ill. App. 3d 320, 329, 845 N.E.2d 944, 952 (2006); People v. Herring, 327 Ill. App. 3d 259, 261, 762 N.E.2d 1186, 1188 (2002); People v. Stoops, 313 Ill. App. 3d 269, 273, 728 N.E.2d 1241, 1244 (2000); cf. People v. Ogurek, 356 Ill. App. 3d 429, 433, 826 N.E.2d 605, 608 (2005).
Recently, Vernón illustrated plain error review for the failure to issue Rule 401 admonitions. Vernón, 396 Ill.App.3d at 152-53, 919 N.E.2d at 975. In Vernón, a defendant filed a motion to dismiss after a remand and proceeded pro se. The defendant appealed, arguing that the failure to inform him of his right to counsel before the hearing on the motion to dismiss deprived him of constitutional protections. The defendant had failed to raise his Rule 401 argument in his posttrial motion. Vernón initially noted doubt concerning any claim that a defendant can forfeit his right to receive a proper admonition of the right to counsel. Vernón, 396 Ill. App. 3d at 149, 919 N.E.2d at 972; see People v. Whitfield, 217 Ill. 2d 177, 188, 840 N.E.2d 658, 665-66 (2005). Vernón then proceeded to review the defendant's claim under the doctrine of plain error. Vernón noted that the right to counsel is "a classic area of plain-error review." Vernón, 396 Ill. App. 3d at 150, 919 N.E.2d at 973. The court rejected a need for a factual analysis of prejudice:
"When a defendant suffers a complete absence, at a `critical stage' of the prosecution, of the sixth amendment right to counsel, he or she is entitled to a reversal of that conviction without showing that the deprivation caused him or her prejudice. The sixth amendment right to counsel applies to all `critical stages' of the prosecution, `including pretrial, trial, and sentencing.' People v. Allen, 220 Ill. App. 3d 772, 781[, 580 N.E.2d 1291, 1297] (1991), citing United States v. Gouveia, 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984)." Vernón, 396 Ill. App. 3d at 152-53, 919 N.E.2d at 975.Vernón noted the vitality of the presence of counsel at the hearing on the motion to dismiss. In language reminiscent of the description of a preliminary hearing in Bolden, Vernón found that "the way the defendant frames the issues [at the hearing on the motion to dismiss] is likely to have lasting consequences." Vernón, 396 Ill. App. 3d at 154, 919 N.E.2d at 976. Vernón concluded as follows:
"Because defendant did not receive proper admonishments under Rule 40 1(a), he could not give a proper waiver of his right to counsel. As he lacked counsel at a critical stage of the proceedings, we must presume that he was prejudiced by the lack of counsel. Defendant is thus entitled to a new trial unaffected by uncounseled choices he made in his motion to dismiss. We remand the matter for a new trial, including, potentially, Rule 401(a) admonitions and a new motion to dismiss." Vernón, 396 Ill. App. 3d at 154, 919 N.E.2d at 976.
A preliminary hearing, in contrast to posttrial proceedings, allows counsel to examine witnesses and discover the strengths and weaknesses of the prosecution. Cf. People v. Burnett, 385 Ill. App. 3d 610, 618, 897 N.E.2d 827, 835 (2008) (discussing the burden to show prejudice in posttrial critical stages), aff'd, No. 107807 (March 18, 2010). The significance of these distinctions is illustrated by Bolden. As Bolden makes clear, the pretrial nature of a preliminary hearing makes the presence of counsel vital to the defendant's development of his case. Bolden stated that it was impossible in retrospect to guess what the exact benefit of counsel would have been but that it could have allowed the defendant to more effectively prepare for the trial. The trial court effectively made the same statement when it agreed with the defendant's self-assessment after the preliminary hearing that he was "not suited for this." Bolden remains unchallenged in the several decades since its issuance, and as long as it is good law, it controls our disposition.
Because the judgment of the circuit court is reversed, this court need not reach the other issues raised by defendant on appeal.
CONCLUSION
Accordingly, the judgment of circuit court of Saline County is hereby reversed, and the cause is remanded for proceedings consistent with this decision.
Reversed; cause remanded.
DONOVAN, J., concurs.
I respectfully dissent.
There is no question that the circuit court failed to comply with Supreme Court Rule 401(b) (134 Ill. 2d R. 401(b)), and there is no showing in the record that the circuit court at any time formally complied with the requirements of Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)). There is, however, evidence in the record that the defendant wished to represent himself, that he discussed this decision with the circuit court, that he had extensive experience with the criminal justice system, and that prior to his preliminary hearing he sent letters to the circuit court requesting resource material, indicating some level of legal sophistication. Although he was not represented by counsel at his preliminary hearing, counsel was appointed for him prior to the trial. At no time was the issue of the circuit court's failure to comply with Supreme Court Rule 401 raised before the circuit court either by the defendant or by his counsel. The issue should therefore be deemed waived. People v. Enoch, 122 Ill. 2d 176, 186 (1988).
The majority acknowledges the defendant's waiver of the error, but it holds that we should review the issue as plain error because the right to counsel is fundamental and "`[w]hen a defendant suffers a complete absence, at a "critical stage" of the prosecution, of the sixth amendment right to counsel, he or she is entitled to a reversal of that conviction without showing that the deprivation caused him or her prejudice.'" Slip op. at 10 (quoting People v. Vernón, 396 Ill. App. 3d 145, 152-53 (2009)). Relying on People v. Bolden, 59 Ill. App. 3d 32, 35 (1978), the majority states that the pretrial nature of a preliminary hearing makes the presence of counsel vital to the defendant's development of the case and that it is impossible in retrospect to guess what the exact benefit of counsel would have been.
I dissent. I would hold that the issue of the circuit court's noncompliance with Supreme Court Rule 401 was forfeited by the defendant's failure to raise it before the circuit court and that he was not prejudiced by the circuit court's failure to comply with Supreme Court Rule 401. Accordingly, plain error analysis is not appropriate.
I note that the defendant does not actually argue that he was not properly admonished pursuant to Supreme Court Rule 401(a). He argues only that those admonishments were not properly recorded as required by Supreme Court Rule 401(b). Nor does the defendant argue that his waiver of counsel was not made voluntarily, knowingly, and intelligently. The defendant does not argue that he was wrongfully denied counsel.
The defendant does not even argue on appeal that he was prejudiced by the circuit court's failure to comply with Supreme Court Rule 401. Instead, he argues, "[I]t is impossible to guess in retrospect what assistance might have been afforded by counsel at preliminary hearing." I might agree had the defendant not had a full-blown trial while represented by counsel. However, if even after a full-blown trial while represented by counsel the defendant cannot point to any prejudice from the circuit court's failure to comply with Supreme Court Rule 401 prior to his preliminary hearing, then I believe none should be presumed.
The defendant also argues, "The right to counsel is so fundamental that a claim that there was no effective waiver of counsel may be reviewed as plain error." I note, however, that nowhere does the defendant make the claim that he did not make an effective waiver of counsel.
Plain error should only be invoked where the error was "of such magnitude that there is a substantial risk that the accused was denied a fair and impartial trial[] and remedying the error is necessary to preserve the integrity of the judicial process." People v. Nielson, 187 Ill. 2d 271, 297 (1999). The defendant is unable to point to a single way in which the failure of the circuit court to comply with Supreme Court Rule 401 prior to his preliminary hearing created a substantial risk that he was denied a fair and impartial trial so that remedying the error is necessary to preserve the integrity of the judicial process. "`It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied ***.'" People v. Dudley, 58 Ill. 2d 57, 61 (1974) (quoting People v. Morehead, 45 Ill. 2d 326, 332 (1970)). The defendant has not shown in any way that he was denied real justice by the circuit court's failure to comply with Supreme Court Rule 401.
Finally, I believe that this case is distinguishable from Bolden, where a principal factor in the court's finding of prejudice was that the defendant did not understand the charge against him. There is no such indication in the case at bar. Vernón is also distinguishable because it did not involve a preliminary hearing but a motion to dismiss the charge.
Because I believe that the defendant has waived any error in the circuit court's failure to comply with Supreme Court Rule 401 and has not demonstrated plain error, I dissent from the majority opinion. I would not have reversed the defendant's convictions and remanded for a new trial on the ground that the circuit court failed to comply with Supreme Court Rule 401.