Opinion
4-20-0049
10-22-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BYRON E. DISHMAN, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County No. 15CF1432 Honorable Thomas J. Difanis, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht and Justice DeArmond concurred in the judgment.
ORDER
HARRIS JUSTICE.
¶ 1 Held: (1) The trial court's judgment is reversed, and the cause remanded for a new hearing on the February 2019 petition to revoke defendant's probation where the court denied defendant the opportunity to obtain new counsel without conducting any inquiry into his request. (2) The trial court did not err when finding defendant restored to fitness.
¶ 2 Defendant, Byron E. Dishman, pleaded guilty to aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2014)) and was sentenced to a term of 24 months' probation. Twice, his probation was revoked, and he was resentenced to 12-month probation terms. On a third occasion, defendant's probation was revoked, and he was resentenced to four years in prison. He appeals from that third revocation and prison sentence, arguing the trial court erred by (1) denying his request to obtain new counsel and (2) restoring him to fitness without conducting an adequate, independent fitness inquiry. We reverse and remand.
¶ 3 I. BACKGROUND
¶ 4 In October 2015, the State charged defendant with aggravated domestic battery (id.), alleging he intentionally strangled the victim, who was his family or household member. In November 2015, defendant pleaded guilty to that offense and was sentenced to 24 months' probation.
¶ 5 In September 2017, the State filed a petition to revoke defendant's probation. In November 2017, defendant admitted to probation violations, and the trial court resentenced him to 12 months' probation. In February 2018, the State sought to revoke defendant's probation a second time. In March 2018, defendant, again, admitted to violating his probation, and the court resentenced him to another term of 12 months' probation. Both times, defendant requested the appointment of counsel, he filed affidavits in support of his request, and the court appointed an attorney to represent him. In his affidavits, defendant alleged he was unemployed and receiving social security income.
¶ 6 In February 2019, the State filed a third petition to revoke defendant's probation. It alleged he violated the conditions of his probation by failing to report to the Champaign County Court Services Office as directed, testing positive for cannabis, and failing to obtain an accurate substance abuse evaluation. On March 14, 2019, defendant was arraigned on the petition to revoke, and, at his request, the trial court appointed the Champaign County public defender to represent him. Again, he submitted an affidavit in support of his request, alleging he was unemployed but receiving social security income. The same day, Assistant Public Defender Marcie Sanchez Tio entered a general denial to the allegations in the petition to revoke on defendant's behalf.
¶ 7 On March 25, 2019, defendant appeared in court for a status hearing with Assistant Public Defender Lindsey Yanchus, and the matter was set for further hearing. The record reflects that, against his counsel's advice, defendant addressed the trial court and asserted his original guilty plea had been forced, the problems he faced "revolve[d] around [his attempts to see his] daughter," and "the marijuana thing that [he] did was out of stress." Following defendant's statement about marijuana, Yanchus objected on the basis that defendant was confessing to allegations contained in the petition to revoke. The court then stated it was "gonna cut [defendant] off" and advised him "to speak to his attorney about further issues."
¶ 8 Defendant next appeared in court on April 10, 2019, represented by Assistant Public Defender Benjamin Dyer. At the outset of the hearing, Dyer indicated he needed to speak with defendant "to ascertain whether he wants a hearing or whether he's going to admit." After the trial court heard other matters, it inquired about defendant's case, and the following colloquy occurred:
"MR. DYER: Judge, [defendant] now says he wants to hire a different lawyer.
THE COURT: Well, [defendant], we will have a hearing today. Is the State prepared?
MS. ALFERINK [(ASSISTANT STATE'S ATTORNEY)]: Yes, Your Honor.
THE COURT: All right. Call your first witness.
MS. ALFERINK: The State will call Jeremy Jessup.
***
THE COURT: Have a seat right there, please.
[Defendant], this is an obvious opportunity for you [to] try to delay proceedings. You've had an opportunity, you've been in custody, if you want to hire a lawyer, you should have done so before today."
The matter proceeded with an evidentiary hearing on the petition to revoke, and ultimately, the court found the State proved by a preponderance of the evidence that defendant violated his probation. The court then set the matter for sentencing.
¶ 9 On May 8, 2019, Dyer filed a motion for the appointment of a psychiatrist to examine defendant and determine his fitness to proceed in the case. He alleged that, based upon defendant's recent statements and behavior as well as medical records that showed "defendant's medication non-compliance" while in jail, Dyer had a reasonable belief that defendant might be unable to cooperate with legal counsel. On May 13, 2019, the trial court granted the motion and entered an order appointing Dr. Albert Lo to examine defendant and determine his fitness to proceed with resentencing.
¶ 10 On June 21, 2019, Dr. Lo's report was filed, showing he diagnosed defendant with bipolar disorder and cannabis dependence and opined he was "currently unfit to stand trial" but "could be made fit to stand trial within one year." Following a hearing the same day, the trial court determined defendant was not fit and ordered him remanded for fitness restoration and treatment with the Illinois Department of Human Services (DHS).
¶ 11 On October 9, 2019, DHS filed a report, which contained the finding of Dr. Rajendra Gupta that defendant was "Fit to Stand Trial." Specifically, Dr. Gupta opined defendant was cooperative and willing to take medications, he possessed adequate knowledge of basic court proceedings and the courtroom personnel, he understood the charges against him, and he demonstrated the capacity to assist in his own defense. On October 17, 2019, the trial court conducted a hearing. After the court determined that the parties had received the DHS report, the following occurred:
"THE COURT: Ms. Dedman [(Assistant State's Attorney)], are you prepared to stipulate that if this doctor were called to testify, he would testify as set forth in his report?
MS. DEDMAN: Yes, Your Honor.
THE COURT: And, Mr. Dyer, are you prepared for the same stipulation?
MR. DYER: Yes, Judge.
THE COURT: All right. Based upon the evidence presented, Court finds that this Defendant is now fit to plead and/or be sentenced."
¶ 12 On November 12, 2019, the trial court conducted defendant's sentencing hearing and resentenced him to four years in prison. On November 13, 2019, defendant filed a motion to reconsider his sentence, which the court denied.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 A. Choice of Counsel
¶ 16 On appeal, defendant first challenges the trial court's denial of his request to obtain new counsel. Specifically, he contends the court abused its discretion by denying his request without any inquiry. Defendant contends the court should have asked about his reasons for wanting new counsel or any efforts he had made toward hiring a different attorney. Defendant acknowledges his forfeiture of this issue based on his failure to object or raise the issue in a posttrial motion but argues it is reviewable under the plain error doctrine. We agree and find reversible error occurred as alleged by defendant.
¶ 17 "To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion." People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. The failure to take either step results in a forfeiture of the issue for purposes of review. Id. Nevertheless, under the plain-error doctrine, a reviewing court may overlook a defendant's forfeiture when there has been "a clear or obvious error" and either (1) "the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error," or (2) the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." (Internal quotation marks omitted.) Id. "The initial analytical step under either prong of the plain error doctrine is determining whether there was a clear or obvious error at trial." Id. ¶ 49.
¶ 18 "The sixth amendment guarantees a criminal defendant the right to assistance of counsel (U.S. Const., amend. VI), which encompasses the right to effective representation as well as the right to select and be represented by one's preferred attorney." People v. Rivera, 2013 IL 112467, ¶ 37, 986 N.E.2d 634. "However, this right is not absolute, and a defendant may not use this right to 'thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime.'" People v. Bingham, 364 Ill.App.3d 642, 645, 847 N.E.2d 903, 906 (2006) (quoting People v. Solomon, 24 Ill.2d 586, 590, 182 N.E.2d 736, 739 (1962)). "In ruling on a motion to continue to substitute counsel, the trial court must balance [the] defendant's right to choose his counsel against the efficient and effective administration of justice." Id. The court's decision is reviewed for an abuse of discretion. Id.
¶ 19 "In exercising its discretion, the [trial] court should consider 'the diligence of the movant, the right of the defendant to a speedy, fair and impartial trial, and the interests of justice.'" People v. White, 2020 IL App (4th) 160793, ¶ 37, 153 N.E.3d 1084 (quoting People v. Segoviano, 189 Ill.2d 228, 245, 725 N.E.2d 1275, 1283 (2000)). Further, the court's balancing of interests requires not only a review of the diligence shown by the defendant but also "an inquiry into the actual request to see if the request is being used merely as a delaying tactic." (Internal quotation marks omitted.) Bingham, 364 Ill.App.3d at 645. Generally, "[a] court does not abuse its discretion by denying a motion to continue to obtain alternative counsel where new counsel is unidentified." (Internal quotation marks omitted.) White, 2020 IL App (4th) 160793, ¶ 37. However, "even where new counsel is not identified, reversal of a trial court's denial of a continuance is warranted where the trial court fails to inquire into whether defendant is using the request as a delaying tactic." People v. Adams, 2016 IL App (1st) 141135, ¶ 15, 50 N.E.3d 738.
¶ 20 Defendant relies heavily on the Fist District's decision in Adams to support his assertion of error in this case. There, the defendant appeared in court on the day his bench trial was scheduled to begin and requested "a continuance to get *** a private attorney." Id. ¶ 4. The trial court denied the defendant's request, stating it was the day of trial and the State's witnesses were present. Id. On review, the First District found the trial court abused its discretion, reasoning as follows:
"The trial court focused on only two circumstances in denying [the defendant's] request-that it was made on the day of trial, and the presence in court of the State's
two witnesses, both police officers. While these factors support the trial court's decision, the trial court's utter failure to make any kind of inquiry into [the defendant's] request outweighs those considerations. [Citations.]
The trial court made no inquiry at all into either [the defendant's] reasons for wanting new counsel or any efforts [the defendant] may have made toward that end. Although this failure by itself would justify reversal, we also note that when [the defendant] made his request, the case had been pending for only 70 days, no prior continuances had been filed, and he had been in continuous custody. These factors weigh against finding [the defendant's] request [w]as a delay tactic. [Citation.]" Id. ¶¶ 16-17.See also People v. Basler, 304 Ill.App.3d 230, 233, 710 N.E.2d 431, 433-34 (1999), aff'd as modified on other grounds, 193 Ill.2d 545, 740 N.E.2d 1 (2000) (finding the trial court abused its discretion when denying the defendant's request for a continuance to seek private counsel without inquiring about her circumstances or finding that she presented the motion for the purposes of delay, even though it appeared the defendant did not have substitute counsel ready).
¶ 21 We find the circumstances of this case similar to Adams. The defendant alerted the trial court that he wanted "to hire a different lawyer," but the court denied him that opportunity without any inquiry. It did not question the defendant's reasoning or ask about any efforts he had made toward obtaining private counsel. The court asserted its belief that defendant was trying to delay the proceedings; however, like in Adams, facts supporting an opposite conclusion existed on the record. Specifically, defendant's third petition to revoke had been pending for less than two months (49 days), he had not previously requested a continuance, and he had continuously been held in custody.
¶ 22 The State responds to defendant's arguments on appeal by citing People v. Wilson, 2021 IL App (4th) 190445-U, ¶ 27, wherein we held the trial court was not required to conduct a Krankel (see People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984)) inquiry into the defendant's ineffective-assistance-of-counsel claims when he had already been appointed new counsel who could investigate his claims. We find Wilson addresses a completely different issue than the one presented by this appeal and it is irrelevant to our resolution of defendant's claim of error.
¶ 23 The State also points out that throughout the underlying proceedings, defendant was represented by appointed counsel and filed affidavits indicating he was financially unable to obtain private counsel. However, as stated in Adams, even though factors exist that might support the denial of a defendant's request to hire new counsel, a "trial court's utter failure to make any kind of inquiry into [the defendant's] request outweighs those considerations." Adams, 2016 IL App (1st) 141135, ¶ 16.
¶ 24 Further, we find the case at bar is factually distinguishable from previous decisions of this court, wherein we held the trial court did not abuse its discretion by denying a defendant's request to hire new counsel of the defendant's own choosing. First, in People v. Curry, 2013 IL App (4th) 120724, ¶ 11, 990 N.E.2d 1269, the defendant's attorney, Michael Harmon, filed a motion to continue, asserting the defendant represented that he had hired a new attorney, Richard Frazier, and requesting "a continuance to ascertain 'the exact nature of the attorney-client relationship.'" When the parties appeared in court, the trial court noted its receipt of the motion and asked Harmon "whether he wished to add anything to his written motion." Id. ¶ 12. Harmon then explained that the defendant paid Frazier a retainer but Frazier would only be willing to represent the defendant if the case was continued. Id. Harmon also asserted he was ready to try the defendant's case if the motion was denied. Id. ¶ 13. The State objected to the motion on the basis that it was untimely, and the trial court denied the motion. Id. ¶¶ 14-15.
¶ 25 On appeal, the defendant argued the trial court denied him his sixth amendment right to retain his counsel of choice. Id. ¶ 47. In finding no abuse of discretion by the trial court, we first distinguished case law cited by defendant on the basis that it "turned on the trial court's failure to conduct an inquiry into the circumstances and purposes of the defendant's motion." Id. ¶¶ 51-52. However, we noted that "[i]n [the] defendant's case, the trial court conducted an inquiry into [the] defendant's motion for continuance, allowing Harmon to orally supplement his motion and providing the prosecutor an opportunity to respond." Id. ¶ 52. Further, we stated as follows:
"[W]here a trial court conducts an inquiry into the circumstances of a defendant's motion, and those circumstances demonstrate substitute counsel does not stand 'ready, willing, and able to make an unconditional entry of appearance' on [the] defendant's behalf, a court does not abuse its discretion by denying a defendant's motion for continuance to obtain substitute counsel." Id. ¶ 51.
¶ 26 Second, in White, 2020 IL App (4th) 160793, ¶ 8, the defendant appeared in court on the day his case was set for trial and asserted "he wished to fire his appointed public defender and hire private counsel." The trial court asked the defendant what steps he had taken to retain counsel, why he waited until the morning of his trial to raise the issue, and what his concerns were about his appointed counsel. Id. ¶¶ 8-9. However, it ultimately denied the defendant's request. Id.
¶ 10. On review, we found the court acted within its discretion as the defendant's responses to the court's questioning showed he made "no real effort to hire counsel," he waited until the day of trial to request more time, his case had been set for trial once before, and he "failed to provide an acceptable reason for desiring new counsel." Id. ¶¶ 38-39.
¶ 27 In both Curry and White, the trial courts conducted some inquiry into the defendants' requests for new representation, which elicited relevant information for the courts to consider. By contrast, in this case, the trial court summarily rejected defendant's request, asking no follow up questions. Under the circumstances presented, we agree with defendant and find the trial court's failure to conduct any inquiry into his request for the opportunity to seek new counsel constituted a clear and obvious error.
¶ 28 Additionally, "[v]iolations of the right to counsel of choice are structural errors not subject to harmless-error review, and they therefore do not depend on a demonstration of prejudice by defendant." People v. Baez, 241 Ill.2d 44, 105, 946 N.E.2d 359, 395 (2011). A violation of a defendant's right to choice of counsel "is a fundamental constitutional error affecting a substantial right." Bingham, 364 Ill.App.3d at 649. Given the seriousness of the error at issue, we find defendant has established the occurrence of second-prong plain error, resulting in our excusal of his forfeiture. Accordingly, we reverse the trial court's judgment and remand for a new hearing on the third petition to revoke defendant's probation.
¶ 29 B. Restoration to Fitness
¶ 30 On appeal, defendant also argues the trial court erred in restoring him to fitness without conducting an adequate fitness inquiry. Specifically, he complains that "instead of exercising its discretion to make an independent decision as to [his] fitness, the trial court merely accepted the parties' stipulation to the mental health report and the report's findings of fitness." Again, defendant acknowledges his forfeiture of this issue but asserts it may be excused under the plain-error doctrine. We disagree and find no error.
¶ 31 "Due process bars the prosecution of a defendant who is unfit to stand trial." People v. Shaw, 2015 IL App (4th) 140106, ¶ 24, 44 N.E.3d 665 (citing People v. Holt, 2014 IL 116989, ¶ 51, 21 N.E.3d 695). "A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 2018). After a defendant has been found unfit and ordered to undergo treatment, and before criminal proceedings may continue, the trial court must conduct a hearing to reexamine the issue of the defendant's fitness. Id. § 104-20. "A trial court's determination of fitness may not be based solely upon a stipulation to the existence of psychiatric conclusions or findings"; however, "where the parties stipulate to what an expert would testify, rather than to the expert's conclusion, a trial court may consider this stipulated testimony in exercising its discretion." (Internal quotation marks omitted.) Shaw, 2015 IL App (4th) 140106, ¶ 26; see also People v. Cook, 2014 IL App (2d) 130545, ¶ 14, 25 N.E.3d 717.
¶ 32 This court's decision in Shaw presents strikingly similar facts to the case at bar. There, the trial court conducted a hearing, and both the court and the parties acknowledged receipt of a psychiatric report pertaining to the issue of the defendant's fitness. Shaw, 2015 IL App (4th) 140106, ¶ 11. The court then questioned whether both parties would stipulate that if the examining doctor "were called to testify, he would testify as set forth in his report." Id. Each party answered affirmatively, and the court stated that "based upon the evidence presented," it found the defendant was fit. Id. On review, we held "the stipulations made by the parties and accepted by the court were proper" because "they were based on the opinion testimony [the examining doctor] would have given if called to testify rather than solely his ultimate conclusion" as to the defendant's fitness. Id. ¶ 30. We concluded "[t]he court was free to rely on the parties' proper stipulations- the only evidence presented as to [the] defendant's fitness-when exercising its discretion and determining whether [the] defendant was fit to stand trial." Id.
¶ 33 Here, the trial court relied upon similar stipulations by the parties as to what the examining doctor would testify to rather than simply expert conclusions. Additionally, the court clearly identified that evidence as the basis of its decision. Accordingly, we continue to abide by our holding in Shaw and find no "clear or obvious error" as alleged by defendant.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we reverse the trial court's judgment and remand for a new hearing on the February 2019 petition to revoke defendant's probation.
¶ 36 Reversed and remanded.