THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAWN BAHRS, Defendant-Appellant.
Docket No. 4-11-0903
Appellate Court of Illinois, Fourth District
April 30, 2013
2013 IL App (4th) 110903
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.
Appeal from the Circuit Court of Champaign County, No. 11-CF-204; the Hon. Richard P. Klaus, Judge, presiding.
Appellate Court
People v. Bahrs, 2013 IL App (4th) 110903
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant‘s sentences for aggravated driving under the influence of alcohol, driving while his license was revoked, and aggravated fleeing were reversed and the cause was remanded for a new sentencing hearing where defendant would be represented by counsel or, after waiver of counsel following proper admonishments pursuant to
Judgment
Reversed and remanded with directions.
Julia Rietz, State‘s Attorney, of Urbana (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
OPINION
¶ 1 Defendant, Shawn Bahrs, is serving a total of 33 years’ imprisonment for aggravated driving under the influence of alcohol (
¶ 2 I. BACKGROUND
¶ 3 On July 20, 2011, a jury found defendant guilty of all three charges: aggravated driving under the influence of alcohol (
¶ 4 Appointed defense counsel filed a motion for acquittal or, in the alternative, for a new trial. Also, defendant personally filed some pro se posttrial motions, including a motion for a new trial, in which he asserted that his defense counsel had provided ineffective assistance.
¶ 5 In a hearing on September 7, 2011, the trial court denied all these posttrial motions, whereupon defendant requested the court to dismiss defense counsel and to appoint a new
“THE COURT: You will receive no extra benefit from being pro se. You will be treated as any lawyer would be treated. You will confine yourself to the way that these proceedings are ordinarily conducted, and there will be no continuance.
Understand, Mr. Bahrs, you were found guilty of three counts. Count I is aggravated driving under the influence. It is a Class 1 DUI because it is your fifth. Because of your prior offenses it is an X which means you will be sentenced to between 6 and 30 years in the Department of Corrections with a 3 year period of mandatory supervised release. The other 2 counts are Class 4 counts because you‘re charged with an X in Count I. Those counts are subject to 1 to 3 years in the Department of Corrections each with a 1 year period of mandatory supervised release.
If you wish to proceed pro se, that is your right, but I will not continue this sentencing hearing.”
¶ 6 Complaining that his appointed defense counsel was inexperienced and that the services of the public defender‘s office had actually been detrimental to his case, defendant elected to represent himself in the sentencing hearing. Accordingly, the trial court excused and released the appointed defense counsel.
¶ 7 After the trial court excused defense counsel, defendant told the court:
“MR. BAHRS: At this time, Your Honor, I‘d like to request the full discovery.
THE COURT: Sentencing, Mr. Bahrs. Not trial.
MR. BAHRS: To reconsider.
THE COURT: Not discovery.
MR. BAHRS: I‘d like to reconsider and file a new motion.
THE COURT: The motions are done, Mr. Bahrs.
MR. BAHRS: Okay. Well I‘d like—
THE COURT: I‘m taking up sentencing.”
¶ 8 The case entered the sentencing phase. The State presented the presentence investigation report. The trial court asked defendant if he had any evidence in mitigation. Defendant asked what “mitigation” meant, and the court replied it could not give him any legal advice. Defendant said: “No. I have no evidence with me for any mitigation because I didn‘t know this will turn out like this ***.”
¶ 9 The prosecutor then made a closing argument, and when it came time for defendant to make his closing argument, he told the trial court he would like to present a character witness, Kristen Douglas. The court allowed him to reopen the evidence, and Douglas testified.
¶ 10 Then, after hearing further arguments, the trial court sentenced defendant to 30 years’ imprisonment for aggravated driving under the influence, 3 years’ imprisonment for driving while his driver‘s license was revoked, and 3 years’ imprisonment for aggravated fleeing.
¶ 11 II. ANALYSIS
¶ 12 Defendant argues that his waiver of counsel was invalid because the trial court failed to comply fully with
“(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.” (Emphasis added.)
Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
¶ 13 We decide de novo whether the trial court complied with this supreme court rule. See People v. Yusuf, 409 Ill. App. 3d 435, 438 (2011); People v. Roberson, 401 Ill. App. 3d 758, 763 (2010); People v. Taylor, 345 Ill. App. 3d 1064, 1083 (2004).
¶ 14 The trial court did not fully comply with subparagraph (2) of
¶ 15 Understating the maximum penalty does not satisfy
¶ 16 In fact, as defendant reminds us, we specifically held, in People v. Akers, 137 Ill. App. 3d 922, 926 (1985), that a failure to admonish the defendant regarding the consecutive running of sentences amounted to a failure to admonish him regarding the maximum sentence. We said: “The record in the instant case shows that the court did not advise [the] defendant of the possibility of consecutive sentences.
¶ 17 The State responds, first, that Akers is distinguishable because it applied
¶ 18 Second, in further response to defendant‘s citation of Akers, the State points out that a trial court can substantially comply with
¶ 19 Third, the State observes that the appellate court has found substantial compliance with
¶ 20 Fourth, the State suggests that the consecutive running of the maximum 3-year prison term for aggravated fleeing “paled” in comparison to the maximum 30-year prison term for aggravated driving under the influence. Apropos of that point, the State cites People v. Haynes, 174 Ill. 2d 204, 243 (1996).
¶ 21 Fifth, the State argues that defendant suffered no prejudice, because there is no reason to suppose he would have kept his appointed defense counsel had the trial court informed him that his sentence for aggravated fleeing would run consecutively to his other sentences. As authority for that argument, the State cites Johnson, 119 Ill. 2d at 134, and Phillips, 392 Ill. App. 3d at 263.
¶ 22 We will address each of those arguments in turn.
¶ 23 A. The State‘s Argument That Akers Is Distinguishable Because It Involved a Different Rule
¶ 24 In Akers, 137 Ill. App. 3d at 924, the defendant offered to plead guilty to a charge of residential burglary.
¶ 25 The trial court in Akers told the defendant the minimum and maximum sentences for residential burglary, but the court failed to tell him that his sentence for residential burglary could be made consecutive to any sentence imposed upon him as a result of a prior conviction or a revocation of parole. Akers, 137 Ill. App. 3d at 924. The court “sentenced [him] to eight years’ imprisonment with the sentence to be served consecutively to any time served as a result of any parole revocation.” Id. The defendant subsequently argued his plea was involuntary because the court had failed to admonish him regarding the possibility of a consecutive sentence. Id.
¶ 26 We held that, by failing to inform the defendant of the possibility of a consecutive sentence, the trial court had “fail[ed] to state the maximum sentence to which [the] defendant [was] subject” and that this omission could not be regarded as a substantial compliance with
¶ 27 The State argues that “[d]efendant‘s analogy to
¶ 28 In this case, though, the question is not whether consecutive sentencing is barred; defendant does not appear to dispute that, ultimately—with the observance of required procedures—the trial court may impose upon him a consecutive prison term for aggravated fleeing. And the question is not whether a waiver of counsel is in every way comparable to a guilty plea. Instead, the question is whether the trial court really informed defendant of the maximum penalty he faced, given that the court did not inform him that one of his sentences would be consecutive. On that particular question, Akers is directly on point, and it answers no.
¶ 29 With that answer from Akers, we turn again to our decision in Koch. We said, emphatically, in Koch: “[W]hen *** a defendant is given a sentence in excess of the
¶ 30 B. The State‘s Observation That a Trial Court Can Substantially Comply With Rule 402(a) Without Mentioning the Consecutive Running of Prison Terms
¶ 31 As we said, the State disputes the relevance of Akers, given that it applied
¶ 32 That distinction aside, the State argues further that a trial court can substantially comply with
¶ 33 In Baker, 133 Ill. App. 3d at 621, the defendant offered to plead guilty but mentally ill to home invasion, indecent liberties with a child, and attempted deviate sexual assault. While admonishing him in the guilty-plea hearing, the trial court said nothing about consecutive sentences, but the court told him it was possible he ” ‘could be sentenced to *** a term in the penitentiary for as long as thirty years.’ ” Id. at 622. The actual sentence turned out to be six years’ imprisonment for home invasion, four years’ imprisonment for indecent liberties with a child, and four years’ imprisonment for attempted deviate sexual assault. Id. at 621. The 4-year prison terms were concurrent with each other but consecutive to the 6-year prison term; thus, the aggregate punishment was 10 years’ imprisonment. Id.
¶ 34 On appeal, the defendant contended that his guilty pleas were invalid because the trial court had failed to admonish him that some of the sentences could be consecutive, as
“Our supreme court has consistently held that
Rule 402 requires only substantial, not literal, compliance with its provisions, and that every deviation from the stated requirements of the rule does not necessitate reversal. [Citation.] Substantial compliance withRule 402 means such compliance as will assure that the beneficial effect of the rule will be achieved. [Citation.] In this case, while defendant was not told that he could receive consecutive sentences, he was informed that he could receive a sentence of up to 30 years in prison. Given that his actual aggregate sentence was much less than 30 years, we are unable to say that the court‘s omission operated to the prejudice of the defendant, or thatRule 402 was not substantially complied with.” Id. at 622.
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¶ 35 In order for Baker to be apposite, the trial court in the present case would have had to admonish defendant that he could be imprisoned for 33 years or longer. The court never told him that. Consequently, Baker does not support the proposition that, despite the court‘s failure to mention the consecutive running of a sentence, the court substantially complied with
¶ 36 C. The State‘s Argument That a Trial Court Can Substantially Comply With Rule 401(a) Despite Substantial Omissions in the Admonitions That It Gives to the Defendant
¶ 37 The State insists that “[s]ubstantial compliance may exist even when the trial court omits entire portions of the required admonitions.” For example, the State cites Phillips, in which “the trial court did not discuss two of the
¶ 38 1. Phillips
¶ 39 In Phillips, 392 Ill. App. 3d at 263, the defendant told the trial court, on June 9, 2006, that he wanted the appointed defense counsel to be dismissed so that he could represent himself. The court admonished the defendant, but the admonitions at that time were incomplete: the court neglected to tell him (1) the nature of the charge, aggravated burglary, and (2) that he had a right to an attorney and, specifically, an appointed attorney if he were indigent. Id. at 262-63.
¶ 40 Nevertheless, the trial court gave the defendant all the
¶ 41 In order for the present case to be truly comparable to Phillips, the trial court would have had to, first, fully admonish defendant in a hearing previous to the hearing in which he waived counsel and, second, fully admonish him again, and offer to reappoint the public defender, immediately before the commencement of the sentencing hearing. The court did not do those things.
¶ 42 We do not reach the question of whether we agree with Phillips. Cf. People v. Stoops, 313 Ill. App. 3d 269, 275 (2000) (in which the Fourth District said: “[The defendant] cannot be expected to rely on admonitions given several months earlier, at a point when he was not
¶ 43 2. Eastland
¶ 44 In Eastland, 257 Ill. App. 3d at 398-99, the defendant represented himself in his first trial, which ended in a mistrial, as well as in his second trial, which ended in his conviction (id. at 395). In the second trial, the trial court failed to fully comply with
¶ 45 Nevertheless, for several reasons, the First District found no reversible error. Id. One of the reasons was that the defendant had “exhibited a high degree of legal sophistication.” Id. Another reason was that he had received the technical assistance of standby counsel in his second trial. Id. at 400. According to the First District, a defendant who, while electing to represent himself, had chosen to have standby counsel “should not be heard to complain on appeal of improprieties pertaining to admonishments about proceeding pro se.” Id.
¶ 46 In the present case, defendant had neither a high degree of legal sophistication nor standby counsel. Hence, Eastland is distinguishable.
¶ 47 D. The State‘s Argument That the Maximum 3-Year Prison Term for Aggravated Fleeing Pales in Comparison to the Maximum 30-Year Prison Term for Aggravated Driving Under the Influence
¶ 48 Citing Haynes, 174 Ill. 2d at 243, the State argues that “information about the possibility of a consecutive three-year sentence would have paled in comparison to the severity of the 30-year maximum penalty for aggravated DUI.”
¶ 49 Haynes, however, is distinguishable because, in that case, the trial court told the defendant the maximum penalty. The maximum penalty for first degree murder was death, and the court so admonished him. See id. The defendant was charged with three counts of murder and one count of burglary. Id. at 211. The court told him he could receive a sentence of death for murder (id. at 243), but the court did not tell him the minimum and maximum sentences for burglary (id. at 242). The supreme court nevertheless found substantial compliance with
¶ 50 A 30-year maximum prison term for aggravated driving under the influence really is not comparable to a sentence of death. There can be a greater penalty than 30 years’ imprisonment, such as when it is followed by a consecutive sentence, but there is no greater penalty than death. By telling a defendant he or she could be sentenced to death, a trial court is in no danger of understating the maximum penalty. On the other hand, if the court tells the
¶ 51 E. The State‘s Argument That Defendant Suffered No Prejudice From the Incomplete Admonitions
¶ 52 The State argues that, considering the reason defendant gave the trial court for wanting to represent himself, i.e., the appointed defense counsel‘s inexperience, it is implausible that he would have chosen to retain defense counsel had the trial court admonished him that his sentence for aggravated fleeing would be consecutive. The State observes that neither in his appellate brief nor anywhere else does defendant claim his decision would have been different. In this vein, the State quotes Johnson, 119 Ill. 2d at 134 (“he does not assert his decision to waive counsel would have been different“), and Phillips, 392 Ill. App. 3d at 263 (“[The] [d]efendant does not claim that he would have acted any differently [if he had been admonished fully].“).
¶ 53 Phillips relied on Johnson (id. (citing Johnson, 119 Ill. 2d at 134)), which was a capital case. Sentenced to death (Johnson, 119 Ill. 2d at 123), the defendant in Johnson argued, on appeal, that his waiver of counsel was invalid because the trial court had failed to tell him the minimum punishment he faced, as
¶ 54 The supreme court found no prejudice from this omission. The supreme court said:
“[I]t is clear that defendant suffered no prejudice as a result of the trial court‘s failure to specify the minimum penalty to which he would be subjected in the event of his conviction. Defendant was fully apprised that he could receive the death penalty, and that was, in fact, the punishment imposed. We note in this connection that he does not assert his decision to waive counsel would have been different had he been specifically admonished regarding the possibility of a sentence to life imprisonment and our review of the record, including his alleged reasons for choosing to represent himself, indicates that he could make no such claim.” Id. at 134.
The final sentence in the quoted paragraph seems to suggest that omitting an admonition required by
¶ 55 It strikes us as unlikely, though, that the supreme court would ever consider an unknowing, or inadequately informed, waiver of counsel to be harmless error. For one thing, because of the way a defendant would have to go about raising a claim of prejudice,
¶ 56 After Johnson, the supreme court has found a lack of prejudice only if the record affirmatively shows that this purpose of
¶ 57 On the strength of the comment from Johnson, the State would erect a checkpoint in front of the issue of whether the waiver of counsel was knowing, such that we would not even reach that issue until defendant first proved, or at least plausibly claimed, that, but for the omission of the admonition, he would have chosen differently, that he would have retained defense counsel instead of choosing to represent himself. The fallacy, though, of “chosen differently” is that, effectively, the choice of self-representation was not even made unless the record affirmatively shows the choice was knowing or adequately informed. See People v. Campbell, 224 Ill. 2d 80, 84 (2006) (“[S]ubstantial compliance with
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¶ 58 III. CONCLUSION
¶ 59 For the foregoing reasons, we reverse the sentences and remand this case with directions to hold a new sentencing hearing, in which defendant will be represented by counsel or, alternatively, unrepresented by counsel if he waives counsel after complete admonitions pursuant to
¶ 60 Reversed and remanded with directions.
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