Opinion
1-19-2205
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL KAS SIM, 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 Cook County. No. 18 CR 7655 Honorable Nicholas Ford and Stanley J. Sacks, Judges, presiding.
JUSTICE ROCHFORD delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
ROCHFORD JUSTICE.
¶ 1 Held: We affirmed the circuit court's denial of defendant's request for a second attorney to "look over" his cases prior to a plea deal, finding that the court did not deny defendant his sixth amendment right to counsel of his choice.
¶ 2 Following a jury trial, defendant Michael Kassim was convicted of delivery of a controlled substance and sentenced to 10 years' imprisonment. On appeal, he alleges that the trial court denied him the sixth amendment right to substitute his counsel prior to trial. We affirm.
¶ 3 Defendant was charged by indictment with one count of delivery of a controlled substance, namely cocaine (720 ILCS 570/401(d) (West 2018)), based on an incident in Chicago on March 5, 2018.
¶ 4 The record on appeal shows that defendant had four pending cases involving narcotics deliveries, including the one now on appeal, all of which proceeded together. As to the first case, no. 15 CR 17097, defendant was arrested on September 28, 2015. On February 8, 2016, while defendant was on bond for the 2015 case, he was arrested in the second case, no. 16 CR 3490. While defendant was on bond for the 2016 case, he was arrested in 2018 for two new cases: (1) the case now at issue, no. 18 CR 7655, and (2) case no. 18 CR 7656, which concerned a narcotics delivery occurring on February 27, 2018. The same judge presided over defendant's cases from December 15, 2015, until he recused himself on September 7, 2018. This appeal only concerns case no. 18 CR 7655.
¶ 5 The first court date for case no. 18 CR 7655 took place on June 14, 2018, and private counsel [hereinafter trial counsel] appeared on defendant's behalf. On June 29, 2018, trial counsel informed the court that he was engaging in discussions with the State related to a plea deal and the cause was continued.
While the record on appeal does not include proceedings from the 2015 and 2016 cases prior to the initiation of the 2018 cases, transcripts in the record suggest that trial counsel also represented defendant in the 2015 and 2016 cases.
¶ 6 At a pretrial hearing on September 5, 2018, the circuit court addressed defendant directly, stating:
" [Defendant], I know you want to have other attorneys file an appearance on your case, I'm not going to allow that. These cases are too far gone, this is a 2015 narcotics case, 2016, 2018, you've had cases-you have four cases here, we are just going to set [what] you want for trial. What do you want to say, [defendant]?"
Defendant responded, "That's not what I was doing, your Honor. Your Honor, I was having another lawyer look over my cases because I want what you want."
¶ 7 Defendant then stated that not all of his cases were "bogus," and "I will cop out for the cases that I'm guilty of," but "they are trying to give me five years for a case I'm not guilty on." The court clarified that defendant was offered seven years and stated:
" [Y]ou're looking at 6 to 30 on one of these cases, 6 to 30, and you might beat it, you might not, I don't know, he doesn't know, [trial counsel] doesn't know, no one knows and to hire an attorney to come in and look and make sure you are getting-that is not how this business is done so no one is filing an appearance. [Trial attorney] is your attorney until he wants to get off the case. And I have been patient with you a fair amount."
¶ 8 Defendant requested a continuation of one week, and the court stated, "I'll give until Friday." The court discussed the next court date with trial counsel and the State, telling them if defendant was not entering a guilty plea, it was setting the case for trial. Defendant interrupted the discussion, insisting he had "been ready to go to trial." The court set a court date for September 7, 2018.
¶ 9 On September 7, 2018, the trial court held defendant in contempt for certain "infantile" in-court behavior and recused himself.
¶ 10 On September 10, 2018, a new judge was assigned to defendant's case.
¶ 11 On November 7, 2018, defendant was represented by trial counsel. Trial counsel told the court that defendant would "like to demand trial." The court addressed defendant directly and stated, "You have a lawyer right next to you, he's a very good lawyer. You sure you want to say something?" Defendant confirmed that he understood his words were being recorded and could be used against him and stated:
"Your Honor, I've been fighting all these cases for almost four years. I've been trying to go to trial. Every time I try to go to trial, they put a new case on me and go on a new trial. I feel like my due process has been violated because I'm sitting in custody with no bond with cases that don't have nothing on me, and I'm just sitting in jail."
¶ 12 After further discussion, the court asked, "What else do you want to say?" Defendant replied:
"I asked for trial on the [20] 15 case***, they put a [20] 16 case on me. I asked for trial on the [20] 16 case. They took two and a half years and put two more cases on me. When am I going to go to trial? I'm ready to go to trial. I'm just sitting in jail."
The court proposed a trial for December 13, and defendant stated, "Okay, your Honor, let's go."
¶ 13 Case numbers 18 CR 7655 and 18 CR 7656 were tried together in a joint jury trial. The court granted the State's motion to use the evidence for the delivery in case no. 18 CR 7656 as other crimes evidence in the instant case, no. 18 CR 7655.
¶ 14 At trial, defendant was represented by trial counsel and another attorney. The State presented evidence that on February 27, 2018, and March 5, 2018, Chicago police sergeant Melvin Ector was working as an "undercover buy officer" in cooperation with the Drug Enforcement Administration (DEA) Task Force. On both dates, he arranged to purchase four bags of crack cocaine from defendant on the phone and met with defendant near the corner of 46th Street and King Drive. Defendant arrived at the scene in a vehicle and handed Ector four bags in exchange for $40 in Chicago Police Department prerecorded funds. The State published to the jury recordings of the phone conversations between Ector and defendant on both February 27 and March 5, as well as video evidence collected from a camera in Ector's baseball cap during the March 5 transaction.
¶ 15 DEA special agent David Reynolds testified that he supervised both transactions, remained in a close position to and maintained surveillance of Ector, and watched Ector engage with defendant's vehicle on both occasions. Further video surveillance was recorded of the incident and published to the jury. The parties stipulated that, if called to testify, Illinois state police forensic chemists would state that the contents of an inventoried bag from each transaction tested positive for the presence of cocaine, and both bags weighed 0.1 grams. The total estimated weight of the four bags recovered from each transaction was 0.6 grams.
¶ 16 The jury found defendant guilty of delivery of a controlled substance as to the transaction on March 5, 2018, but not guilty of delivery of a controlled substance as to the transaction on February 27, 2018.
¶ 17 Defendant filed posttrial motions alleging inter alia the State failed to prove him guilty beyond a reasonable doubt, and that the jury's verdicts were inconsistent where the facts and evidence of both case nos. 18 CR 7655 and 18 CR 7656 were "virtually identical" but defendant was only found guilty in one case.
¶ 18 At a hearing on April 4, 2019, defendant was present in court but trial counsel was not. The State informed the trial court that a new attorney for defendant was seeking leave to file an appearance. The new attorney was not present in court. Defendant told the court he had paid the new attorney a retainer fee and hired him because trial counsel was ineffective. He stated he "had a motion for a speedy trial," but the State "elected on another case" and the proceedings were delayed. Defendant also stated that there should have been a "motion to dismiss," but his trial counsel "didn't put in [a] motion for my trial, pushed [him] to trial and was ineffective." Defendant then asserted that his verdicts should have been the same.
¶ 19 On the next court date, April 8, 2019, trial counsel was present and stated defendant "was asking to have a new attorney," and defendant's proposed new counsel had not yet arrived. The court asked defendant if he wanted his trial counsel to withdraw from his cases. Defendant responded, "I wanted both attorneys but I was trying to see what was going on. I haven't had a chance to talk to both of them." The court asked defendant which attorney he wanted to represent him, and defendant stated, "Both, your Honor." Trial counsel then stated it was inappropriate for him to represent defendant given the allegations of ineffective assistance defendant intended to make with his new counsel. After further discussion, defendant stated he was not sure that he wanted trial counsel to withdraw. The case was continued so that defendant could make a decision.
¶ 20 On April 11, 2019, trial counsel withdrew and defendant's new counsel filed an appearance.
¶ 21 On June 10, 2019, defendant, represented by new counsel, filed an amended posttrial motion, alleging that defendant's trial counsel failed to move to suppress the recordings presented at trial, and failed to object to testimony regarding the telephone conversations based on lack of foundation. Defendant also alleged that he received inconsistent verdicts, and that he was not afforded a fair trial because the venire did not "represent a proportional representation of the community."
¶ 22 At a hearing on July 25, 2019, the court asked to hear arguments, but defendant's new counsel stated that he needed to amend the motion because defendant told him "apparently, in September of last year [defendant] tried to replace his counsel, *** for Frank Himmel, and he was denied that opportunity." Defendant referred to the attorney as "Hamilton," and the court remarked that defendant "doesn't even know the man's name."
¶ 23 The court stated the issue was not "brought to [its] attention in the slightest," and defendant came "before [it] with [trial counsel], his lawyer for God knows how long on these cases, *** got a short date and he demand[ed] trial." The court noted defendant's proceedings began in 2015 and defendant continued to pick up cases, and trial counsel was his lawyer "all those times." The court further observed that defendant did not raise the issue for "19 or 20 court dates," and defendant was "content" with trial counsel until after he was found guilty.
¶ 24 On September 25, 2019, defendant filed a second amended posttrial motion, alleging that his sixth amendment right to counsel of his choice was violated because the prior judge on September 5 "refused to allow another attorney to file his appearance to represent the defendant." He claimed he was "misled by the court that he could not change attorneys."
¶ 25 After hearing arguments on the first and second amended posttrial motions, the trial court denied defendant's posttrial motions. The court stated in relevant part that after the prior judge's recusal, it had presided over defendant's case for over three months prior to trial and over one year total and defendant never told the court he wanted another attorney. The court stated" [defendant] wants the best of both worlds now," as he wanted to go to trial with his original counsel to "see how the case shakes out" and only asserted he "never wanted this guy to begin with" after he was found guilty. Reading from the transcript of the September 5th hearing, the court found defendant did not say he wanted another lawyer; rather defendant talked about pleas and wanting someone to "look over the cases, not file an appearance." The court found it "can't believe defendant's rights were violated whatsoever," and that defendant waived his right to a different lawyer by proceeding to trial without raising the issue after the previous judge recused himself.
¶ 26 The court sentenced defendant to 10 years' imprisonment for one count of delivery of a controlled substance.
¶ 27 On appeal, defendant alleges he was denied the right to counsel of his choice when the circuit court denied his request to substitute counsel prior to trial without inquiring into the request.
¶ 28 The right of an accused to counsel as outlined in the sixth amendment to the United States Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) includes the right to retained counsel of choice. People v. Baez, 241 Ill.2d 44, 104-05 (2011). However, this right is not absolute. Id. at 105. For instance, criminal defendants do not have the right to select an attorney they cannot afford, who is not a member of the bar, who has a conflict of interest, or who declines to represent them. People v. Tucker, 382 Ill.App.3d 916, 920 (2008). These limitations not only exist to ensure a defendant is guaranteed effective assistance, but also "satisfy a court's 'independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.'" People v. Howard, 376 Ill.App.3d 322, 335-36 (2007) (quoting Wheat v. United States, 486 U.S. 153, 160 (1988)).
¶ 29 A defendant who abuses the sixth amendment right to counsel of choice in order to delay trial may forfeit the right. People v. Jenkins, 2020 IL App (1st) 172422, ¶ 13. It is within the trial court's discretion to determine "when the defendant's right to select counsel unreasonably interferes with the orderly process of judicial administration." People v. Burrell, 228 Ill.App.3d 133, 142 (1992). "In balancing the judicial interest of trying the case with due diligence and the defendant's constitutional right to counsel of choice, the court must inquire into the actual request to determine whether it is being used merely as a delaying tactic." Id. Factors to be considered in determining whether to grant a motion for substitution of counsel include "whether defendant articulates an acceptable reason for desiring new counsel; whether the defendant has continuously been in custody; whether he has informed the trial court of his efforts to obtain counsel; whether he has cooperated with current counsel; and the length of time defendant has been represented by current counsel." Tucker, 382 Ill.App.3d at 920. The failure to make any inquiry at all into defendant's request for substitution of counsel justifies reversal. See People v. Adams, 2016 IL App (1st) 141135, ¶ 17.
¶ 30 A trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness" (U.S. v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)), and we review the trial court's decision on a motion to substitute for an abuse of discretion (Jenkins, 2020 IL App (1st) 172422, ¶ 14). If a trial court "either abuses its discretion or otherwise erroneously deprives a defendant of his right to counsel of choice, the deprivation is 'complete' and is not subject to harmless error analysis, regardless of whether the defendant ultimately received a fair trial." Howard, 376 Ill.App.3d at 336 (citing Gonzalez-Lopez, 548 U.S. at 147).
¶ 31 In the present case, the record indicates that on September 5, 2018, defendant was faced with a plea offer and requested that an attorney in addition to his trial attorney be allowed to "look over [his] cases," but he never indicated any dissatisfaction with his trial counsel. Defendant did not request that the new attorney appear on his behalf nor did he request the substitution of his trial counsel with the additional attorney. In the absence of any indication from defendant that he was dissatisfied with his trial counsel, or any request from defendant that a new attorney be allowed to file an appearance on his behalf and/or substitute for his trial counsel, the trial court was not faced with an issue involving the sixth amendment right to counsel of choice. The cases cited by defendant, holding that the sixth amendment requires a particularized inquiry into a criminal defendant's request for substitution of counsel, are therefore inapposite here. Defendant makes no other arguments that the court abused its discretion by denying his request for a second attorney (in addition to his trial counsel) to look over his cases and therefore has forfeited review. See Illinois Supreme Court Rule 341(h)(7)(eff. Oct. 1, 2020).
Defendant points to the beginning of the colloquy on September 5 when the judge stated, "I know you want to have other attorneys file an appearance on your case." However, in response, defendant stated "That's not what I was doing, your Honor" and then he explained that he only wanted an additional attorney to "look over my cases."
¶ 32 We note that, even after defendant's case was transferred to another judge, defendant did not raise the attorney issue again prior to trial, and in fact urged the new judge to set the case for trial, stating, "let's go." Further, defendant's April 2019 posttrial request for new counsel appeared to be another request for an additional attorney rather than a replacement attorney. Initially, defendant told the court he hired a new attorney because trial counsel was ineffective. However, two days later, he told the court he "wanted both attorneys."
¶ 33 Asked specifically which attorney he wanted to represent him, defendant again responded, "Both." When trial counsel stated it was inappropriate for him to continue to represent defendant given the ineffective assistance allegation against him, defendant informed the court he was not sure he wanted trial counsel to withdraw. Finally, a few days later, trial counsel withdrew and new counsel filed an appearance to represent defendant on posttrial matters, including allegations of ineffective assistance against trial counsel. The record thus demonstrates that, even when he claimed ineffective assistance of trial counsel posttrial, defendant still wanted trial counsel to continue to represent him and requested, as he had in September, an additional attorney rather than a substitute for trial counsel. Accordingly, on this record, the court did not deny defendant counsel of his choice on September 5 as, contrary to his subsequent contentions posttrial and on appeal, he did not request appointment of new, substitute counsel on that date.
¶ 34 Defendant references portions of the posttrial transcript in which defendant informed the posttrial judge that he had attempted to hire an attorney named Frank Himmel to replace his trial counsel and that the initial judge told Himmel that Himmel could not represent defendant. However, defendant's contentions concern events outside the record on appeal. See People v. Benford, 31 Ill.App.3d 892, 894 (1975) ("In an appeal, the purpose of review is to evaluate the record of the trial court, and, in general, the review will be limited to what appears in the record."). Our concern here is what defendant told the court on September 5, 2018, and the transcript of that hearing shows he did not inform the court he wanted to substitute his trial counsel with Himmel or any other attorney. As such, the sixth amendment right to counsel of choice was not implicated here and in the absence of any other arguments by defendant that the court abused its discretion in denying his request for a second attorney (in addition to his trial counsel) to "look over" his cases, we affirm.
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 36 Affirmed.