THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZACHARY S. HOLLOWAY, Defendant-Appellant.
NO. 5-21-0110
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
January 2, 2024
2024 IL App (5th) 210110-U
Honorable Thomas J. Foster, Judge, presiding.
Appeal from the Circuit Court of Gallatin County. No. 20-CF-29.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
Held: The trial court‘s conviction is affirmed where sufficient admonishment was provided pursuant to Rule 401(a) and defendant‘s constitutional rights were not violated.
¶ 1 Defendant, Zachary S. Holloway, files a direct appeal from the trial court‘s judgment of conviction arguing that insufficient
I. BACKGROUND
¶ 2 On May 18, 2020, defendant was charged by information with two counts of home invasion, in violation of
¶ 3 At a pretrial hearing, on August 17, 2020, defendant argued, regarding the home invasion charge, that he was allowed at the home as long as he was sober. The court told defendant to address that issue with his public defender, Lowell Tison. Defendant replied that he wanted “to withdraw Mr. Tison” from his case. The court then read the statutory definition of home invasion to defendant.
¶ 4 Thereafter, defendant stated he was trying to obtain private representation. The court agreed defendant had that right and asked Mr. Tison if he wanted to make a motion on defendant‘s behalf. Mr. Tison stated he did and confirmed that defendant was trying to retain attorney Aaron Hopkins. Mr. Tison advised the court that they were at 92 days for speedy trial purposes, the victim‘s deposition was already taken, defendant was willing to waive his right to speedy trial, and stated no prejudice arose from the request. In response, the State opposed any continuance because the witnesses had been subpoenaed, the jury summons had been issued, and further stated it had contacted Mr. Hopkins, who stated he had no interest in getting involved in this case. The State classified defendant‘s request as a “delay tactic.” Thereafter, the court denied defendant‘s motion to continue the jury trial set for August 25, 2020.
¶ 5 Defendant stated that he had spoken with Mr. Hopkins three times, but Mr. Hopkins had not yet “come and seen [him].” Defendant asked if he could continue to try to reach Mr. Hopkins. The court stated, “That will be up to you, Mr. Holloway.” He further admonished defendant that
¶ 6 In response, defendant stated, “I want to withdraw counsel and represent myself.” The court asked defendant for clarification stating, “You don‘t want Mr. Tison to represent you?” Defendant replied, “No, your Honor.” The court asked again, “You want to fire Mr. Tison?” Defendant replied, “Yes, sir.” After receiving the same response three times, the court asked defendant who would represent him and defendant stated, “I will represent myself.” The court again clarified defendant‘s statement regarding self-representation and, upon receiving the same response, questioned defendant about any legal training and his education. Defendant stated he had no legal training, but after dropping out in eighth grade, he did obtain his GED.
¶ 7 Defendant advised the court that he believed all of his cases were brought together. The court recited to defendant the charges pending in the matter were home invasion involving defendant‘s entry to Allen McClaughry‘s home, aggravated battery on Mr. McClaughry, and criminal damage to property involving damage to Mr. McClaughry‘s truck. Defendant stated he would “have to learn steps as you go along, but I‘m going to represent myself. Because I‘d rather me put myself away than somebody with a dollar put me away.” Defendant then moved to disqualify the state‘s attorney for being friends with his family. The court stated they needed to first determine if Mr. Tison was going to represent him. Defendant stated that he wanted to make a plea. The court stated it was unaware of any plea negotiations and that home invasion was a very serious offense. The court admonished defendant that the home invasion charges were Class X felonies and the statutory penalties for a Class X felony were 6 to 30 years in the Illinois Department of Corrections (IDOC) and the extended-term range for such offense was 30 to 60 years in IDOC. The court admonished defendant that there was no possibility of probation for a
¶ 8 The court returned to the issue of representation, stating that defendant would be “at a severe disadvantage” if he represented himself, and the court believed he needed counsel in this case. The court explained that Mr. Tison was his attorney until Mr. Hopkins filed his appearance in the case. It averred if defendant did not want Mr. Tison to represent him, defendant was allowed to represent himself. After explaining the rule applicable when witnesses were testifying and addressing whether defendant would be handcuffed at trial, defendant asked, “What‘s the max I can get if I‘m found guilty.” The court stated the maximum for an ordinary term on home invasion was 30 years but if defendant was extended-term eligible, the maximum was 60 years. Thereafter, the court asked Mr. Tison if defendant was eligible for an extended term, and Mr. Tison stated that he was only extended-term eligible on Class 3 and 4 felony charges. The court stated if Mr. Tison‘s statements were true, defendant would face a maximum of 30 years’ imprisonment. The State added the sentence would be 85% if great bodily harm was shown. Defendant then asked if he could have a negotiated plea and the court took a brief recess. Upon return, the court asked defendant if he wanted Mr. Tison to represent him. Defendant asked if he could call Mr. Hopkins and the court stated that would have to occur when defendant returned to the county jail.
¶ 9 The final pretrial hearing was held on August 24, 2020. At that time, Mr. Tison again moved for a continuance to allow defendant additional time to hire Mr. Hopkins. Defendant advised the court that he spoke with Mr. Hopkins, but Mr. Hopkins said there was not enough time. The court noted there was no appearance or motion to continue filed by Mr. Hopkins and denied defendant‘s request for a continuance to hire private counsel. The court returned to the issue of penalties related to the other charges and asked defendant if he wanted to hear them. The court read the five counts to defendant, and although defendant disagreed with the merits of the charges, he agreed that he understood the counts. Thereafter, the court read the possible penalties associated with each count, further explaining the 50% and 85% statutory sentence language. The court explained that the one-act, one-crime doctrine might apply and, if it did, defendant would only be sentenced on one home invasion charge and the criminal damage to property charge. It also explained the possibility of any sentence in this case being mandatorily consecutive to the seven-year sentence previously issued in a White County case. Defendant stated he understood the potential penalties.
¶ 10 The case proceeded to a jury trial on August 25, 2020. After each party presented their cases, the jury found defendant guilty on all five charges. The court set the sentencing hearing for February 22, 2021.
¶ 11 On February 18, 2021, defendant filed a “motion for mistrial.” The motion stated defendant had “more than enough evidence to prove” his innocence. Defendant also accused his public defender of racketeering and negligence. In support, defendant alleged that his lawyer would not file the motions he requested and the evidence was falsified.
¶ 12 On February 22, 2021, the court inquired as to defendant‘s claims and held a preliminary Krankel hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)). During defendant‘s lengthy
¶ 13 The court found that most of the allegations related to trial strategy. One exception was defendant‘s decision to testify. The court reminded defendant that he told the court, with the court reporter present, and outside the presence of the jury, that he did not wish to testify. The court
¶ 14 In response, defendant stated, “Well, I‘d like to fire Mr. Tison now.” The court asked defendant if he wanted a lawyer to represent him at his sentencing hearing and defendant said, “Yes, I do, but not Mr. Tison.” The court advised defendant that he did not get to choose his public defender, so the court denied defendant‘s request to fire his attorney. Defendant then stated, “I will hire one *** I will hire an attorney.” The court asked who defendant was going to hire and defendant responded, “I don‘t have an idea yet *** I don‘t have a clue.”
¶ 15 The court asked defendant if he had money to hire an attorney and defendant advised the court of $1000 “on the books” and assets totaling $8000. The assets included a 2004 Chevy Silverado and a trailer. The court asked defendant if he wanted to fill out an affidavit of assets and liabilities and defendant said, “Yes, sir.” The court admonished defendant that he could lose the opportunity to obtain a public defender if he had sufficient funds to hire an attorney.
¶ 16 The court then asked defendant how long it would take to hire a lawyer and defendant stated it would take 60 days because he needed to “wipe my slate clean” and then he had “to file for a new phone list,” explaining that it took “30 days to just get on the list.” The court repeatedly asked defendant if he wanted Mr. Tison to represent him if he could not hire a new counsel; each time defendant replied, “No.” Defendant also repeatedly confirmed that he would represent himself if he was unable to hire private counsel. The court stated that Mr. Tison was a public defender and if defendant wanted a public defender that was who he would get. Defendant continued to tell the court that he wanted private counsel and if he could not obtain private counsel
¶ 17 The sentencing hearing was held on April 19, 2021. Defendant appeared pro se. Defendant confirmed that he preferred to represent himself rather than have Mr. Tison as his appointed counsel. Defendant eventually confirmed that he was ready to proceed with his pending motions and the sentencing hearing. The State also indicated it was ready to proceed. After arguments were presented, the court denied all of defendant‘s pending motions and proceeded to sentencing.
¶ 18 Following presentation of evidence and argument from the parties, the court found great bodily harm. It also found
II. ANALYSIS
¶ 19 On appeal, defendant argues that the trial court erred by failing to admonish defendant pursuant to
A. Forfeiture
¶ 20 To preserve an error for review, the party must object at trial and present the issue in a posttrial motion. People v. Nelson, 235 Ill. 2d 386, 436 (2009). Defendant here asserted both issues for the first time on appeal. He therefore forfeited the issues. Defendant concedes that he failed to preserve his arguments but—in his reply brief—requests plain error review solely for the
¶ 21 The Illinois Supreme Court rejected the State‘s argument that defendant cannot request plain error review for the first time in his reply brief in People v. Williams, 193 Ill. 2d 306, 347-48 (2000). The court reasoned that the rules of forfeiture are equally applicable to the State, and
¶ 22 Because defendant requested plain error review of the allegedly improper
B. Rule 401(a) Admonishments
¶ 23 Because the right to counsel is fundamental, a reviewing court may review an alleged violation of
¶ 24 The state and federal constitutions afford defendants a right to counsel.
¶ 25
(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.”
Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
¶ 26 Despite statements in defendant‘s cited authority People v. Martin, 2021 IL App (4th) 180267, ¶¶ 36-37, finding the court was “required to mechanically apply
¶ 27 Here, it is undisputed that the trial court did not strictly comply with
¶ 28 In Haynes (id. at 241), the Illinois Supreme Court upheld the defendant‘s waiver of counsel where the trial court substantially complied with
¶ 29 As such, the trial court‘s failure to admonish defendant at the sentencing hearing is not dispositive. Defendant initially raised the issue of proceeding pro se—less than two months earlier—at the February 22, 2021, Krankel hearing. At that time, defendant explicitly and repeatedly informed the court that he would proceed pro se if he could not hire private counsel. We therefore find—pursuant to Haynes—we can consider the conversation at that hearing in determining whether the court substantially complied with
¶ 30 At the Krankel hearing—after defendant indicated his desire to fire Mr. Tison—the court twice informed defendant that he had a right to a public defender but did not have the right to the public defender of his choice. The court therefore admonished defendant of his right to counsel (
¶ 31 During the Krankel hearing, prior to his indication that he may proceed pro se, defendant acknowledged an understanding of this sentencing consequence when he stated that counsel informed him that he could get 60 years’ imprisonment. The court also informed defendant that
¶ 32 While there were no admonishments for the potential sentencing consequences provided for the aggravated battery and criminal damage to property charges at that time, the failure to admonish defendant of the punishments for one of multiple charged offenses does not require reversal where defendant was fully aware of the range of sentences possible for the most serious charge against him. People v. Pike, 2016 IL App (1st) 122626, ¶¶ 123-24; see Haynes, 174 Ill. 2d at 243 (trial court‘s failure to inform the defendant of minimum and maximum sentences possible for burglary charge did not require reversal where defendant was fully aware of range of sentences for the most serious charge, first degree murder, including the possibility of the death sentence). We also note that defendant was advised prior to trial of all the potential penalties for each charge and that any sentence in this case would run consecutively to the sentence in the White County case.
¶ 33 We reject defendant‘s argument that the court‘s failure to determine whether he was in fact subject to extended-term sentencing before allowing defendant to proceed pro se requires reversal. Although defendant was informed that he may be subjected—rather than would be subjected to—an extended-term sentence, he knew the maximum extended-term sentence possibly applied, which is all
¶ 34 Moreover, in People v. Wright, 2017 IL 119561, ¶ 54, the Illinois Supreme Court found substantial compliance where the trial court properly admonished defendant in all respects except when it informed him that he faced a maximum sentence of 60 years in prison instead of correctly admonishing the maximum sentence was 75 years. We therefore find where, as here, the court properly admonished defendant to maximum sentence possible, it adequately informed defendant under
¶ 35 We also find defendant‘s reliance on People v. Langley, 226 Ill. App. 3d 742, 749-50 (1992), is not well placed as the case is easily distinguishable. In Langley, the appellate court found the lower court failed to comply with
¶ 36 We find People v. Smith, 249 Ill. App. 3d 460, 473 (1993), instructive. During the trial in Smith, the defendant requested that his appointed counsel assume standby status so defendant could handle his case by himself. Id. at 463. After being convicted, defendant informed the court that he wished for counsel to remain as standby counsel. Id. at 464. Counsel was present for the next five sentencing hearings, during which time counsel helped the defendant write a motion for
¶ 37 The Second District found defendant was not given
¶ 38 While defendant here did not have standby counsel for any part of the sentencing proceeding, the record—like Smith—reveals defendant knew the information required by
¶ 39 Importantly, defendant does not contend he was unaware of the information that
III. CONCLUSION
¶ 40 Defendant forfeited any argument that the court erred in failing to provide 60 days to obtain private counsel. While the court did not strictly comply with
¶ 41 Affirmed.