*1 the state and that staying actions the state actions would remove the Santos, chance of conflicting judgments. 130-31, 92 Ill. 2d at case, N.E.2d at 881. too in So the outcome of the federal suit could action, and, earlier, be fatal to the state by staying as stated state proceeding quelled possibility we have conflicting judgments. discussion,
Based on the preceding the judgment of the circuit court of Peoria County is reversed and the cause is remanded to the circuit court with entry directions for the of an staying order the state pending action completion of the federal district court proceed- ings.
Reversed and remanded with directions. LYTTON, JJ.,
HOMER and concur. THE PEOPLE OF ILLINOIS, THE STATE OF Plaintiff-Appellee, v. STOOPS,
JEFFREY F. Defendant-Appellant. Fourth District No. 4 — 98—0227
Opinion May 3, filed *2 J., concurring. STEIGMANN, specially Defender’s Of- Munoz, Appellate both of State and Karen Daniel D. Yuhas appellant. fice, Springfield, (Norbert Goetten, Robert Attorney, J. Moreth, of Carlinville State’s
Vince Ambrose, Attorneys Appellate Biderman, all of State’s Denise M. J. and Office, counsel), People. for the Prosecutor’s of the court: opinion KNECHT delivered JUSTICE found defen the trial court August After a bench (720 battery dant, guilty aggravated of two counts of Jeffrey Stoops, E 1996)). (West the trial September ILCS 5/12—4 $1,000 fine, and probation, imposed sentenced him to 30 months’ $27,034.65. appeals Defendant ordered to make restitution (1) sentence, erred in claiming conviction and the trial court him in Court Rule properly admonish accordance with (2) (134 401(a)) him to waive counsel and allowing Ill. 2d R. before exceeding by becoming questioning an advocate while its bounds Further, he is entitled to credit defense witnesses. defendant claims county jail. time trial in the We against waiting his fine for served agree defendant’s first contention and reverse and remand. in the charged hitting
The State defendant with Thomas Griffin stomping leg breaking head with a baseball on his it on bat July alleged The State defendant took these actions while he bodily harm to public way great Griffin were on and caused Griffin. jury pretrial
Defendant waived a at a later conference on February requested previously appointed pub- *3 discharged lic defender be granted and he be a continuance because discharged public wished to retain counsel. The trial court the granted defender and for a request continuance. 18,
On April again requested a continuance to hire hired spoken attorney yet counsel. He had with an him but had not get enough money together because he had not been able to due to child support obligations. granted The court another continuance. De- obtaining fendant obtained two more for purpose continuances the of pretrial August counsel. At the conference on the trial court ad- defendant, vised who still had not to hire he should been able get public prepared some advice from his former defender and be for earnings longer eligible appointment trial as his no made him for the public of the defender.
The trial August court held a bench trial on 21. Defendant proceeded counsel. pro se. The record does not show he waived speak
The evidence at trial came to showed defendant a tavern bartender, to the girlfriend. dispute his Some arose between defendant Later, patrons. lot, and two in parking dispute the continued defendant struck the victim in the head with a baseball bat to the stomped causing injury on his ankle. Defendant denied victim’s ankle and testified he struck the victim with the bat protect beating by patrons. himself from a the two conflicting,
While the evidence was the trial court found defendant guilty aggravated of counts of battery. both The evidence was more findings than sufficient to support guilt. of September sentencing hearing On began. ap- Defendant peared counsel. Griffin testified to the extent of his injuries. hearing suspended was so defense counsel could review a A transcript of the trial. motion for new trial later filed was Sentencing January denied. resumed on 1998. The argued State for an extended-term sentence. The court expressed concern about the need for restitution probation. and sentenced defendant to 30 months’ The court per also ordered to make restitution to Griffin $100 $8,737.08 until paid. pay week was Then he was to restitution to the $21,600. State the amount of The trial court also fined defendant $1,000. The court “[p]ut probation ordered the State to all that order, review, probation submit the order to for [defense counsel] entry.” requested [c]ourt and then to the The court defense counsel days approve to contact it within five order at probation time, brought would be back court so explain rights. could appeal
On March the trial court entered an amended written order of $21,670.93. probation in which the amount of restitution stated as defendant, The court then admonished pursuant 605(a) (145 605(a)), Ill. 2d R. of his to appeal. appeal This followed. days filed from the appeal entry
Notice must be within (134 606(b)) which, case, final 2d judgment R. a criminal is the Allen, pronouncement People the sentence. (1978). judgment Because the final is the sentence, January was on
pronouncement which the State notes (Allen, entry judgment and not of a written order 1284), argues ap at the State defendant’s notice of peal timely was not filed. mistakenly days
The trial court told defendant he had 30 from Thus, the entry appeal. of the written order to file his notice of to Rule properly pursuant trial court did not admonish appeal if the notice of appeal preserved that his would be R. days the date of sentence. 145 Ill. 2d was filed within 30 from *4 605(a). rights in telling appeal Where a trial court erred sentence, judgment run time of the written of from the issuance days filed his notice of within 30 of the issu appeal and the defendant thereof, justice require finding a ance it has been held the interests of Robinson, v. People filed. timely was appeal defendant’s notice (1992). have an 148, We 627, 628, 593 N.E.2d App. 229 Ill. 3d erroneously trial court in this case because situation analogous after appeal notice of file his days he had 30 instructed interest In the order, and he did so. entry probation of the written filed. timely considered appeal notice of will be justice, consideration has forfeited argues next The State compli of counsel without accepted his waiver whether the trial court 401(a)) 401(a) (134 by 2d R. Rule Supreme ance with Court People trial. v. motion for new posttrial include this error (1987). However, Johnson, 119 Ill. 2d rule, error because plain the issue under the this court has considered Langley, App. 226 Ill. 3d (People is fundamental v. right to counsel (1992)), in this and review is warranted case. to demonstrate was argues the record fails
Defendant 401(a), Rule and he never according admonished accomplish To valid waiver waived his to counsel. requires:
Rule 401 “(a) open Any of counsel shall be of Counsel. Waiver by person of counsel permit shall not a waiver court. The court accused of an offense first, by by imprisonment without punishable court, informing him open addressing personally the defendant following: determining that he understands of and (1) charge; the nature of the
(2) by prescribed minimum and maximum sentence the de- law, penalty to which including, applicable, or con- may subjected prior because of convictions fendant be sentences; and secutive
(3) indigent, to if he is that he has a to counsel by the court. appointed for him have counsel (b) rule to be in Transcript. proceedings required The verbatim, upon order of the trial shall be taken open court rec transcribed, filed[,] part common[-]law of the and made Ill. 2d R. 401. ord.” 134 401(b), to made, by Rule
Here, required record was as no verbatim 401(a). required by Rule given the admonishments show defendant was conference nor August pretrial at the reporter present No court Rule any indicate of the argument by the State does the record or 401(a) se proceeded pro admonishments He given were to defendant. August at his trial on bench lightly and will not to counsel is fundamental 760, 763, 537 Robertson, App. People
deemed waived. (1989). accep- a trial court’s governs N.E.2d *5 tance of a defendant’s counsel compliance waiver. Strict with Rule 401(a) always is not required. Substantial compliance will suffice if the knowingly was and voluntarily made and the admonishment the defendant received did not prejudice rights. his People Haynes, v. (1996). 204, 236, 174 Ill. 318, 2d 673 N.E.2d 333 Whatever admonish given defendant, ments are to however, must be included in the rec 401(b) ord since requires Rule that when a defendant right waives the counsel, to the proceedings verbatim, must be recorded and strict 401(b) compliance with Rule required. People Montgomery, v. 298 (1998). App. 1096, 1099, Ill. 3d 1085, 700 N.E.2d 1088 The record does not show defendant to proceed pro wanted se. He indicated he wanted to obtain counsel and the public defender Later, was discharged. after he multiple continuances, obtained when he found he could not afford to private counsel, retain the trial court informed defendant he money made too much to ap- have counsel pointed for him. The trial court told defendant to “consult” with the public defender for advice might proceed but he have to on his own. Correspondence in the record indicates thought defendant he obtained a plea bargain with the State and would the plea prior have entered to trial and would not Instead, need counsel. plea agreement no was entered and the case went to trial having with defendant no choice represent but to himself.
The trial court
required
was
to
competing
consider
interests.
Defendant was entitled to the effective
in pre
assistance of counsel
senting his defense
ordinarily
would be entitled to counsel of his
Myles,
260, 268,
choice.
v.
People
59,
(1981);
86 Ill. 2d
62
N.E.2d
(1979).
Johnson,
180,
People
v.
387 N.E.2d
However, “the
to
right
counsel of a defendant’s own choosing may not
be employed as a
weapon
indefinitely thwart the administration of
justice.” Myles,
This case differs from the situation where a defendant seeks to represent question himself and the knowingly is whether he and vol untarily gave up representation favor of his represent himself. Defendant no request represent made himself. We need not reevaluate whether a can be found to have waived represent counsel—even he does not ask to himself—if the 401(a) proper required given, admonishments are because in Childs, given. People App. case no admonishments were 278 Ill. (1996). 3d proceed 662 N.E.2d 166-67 To to trial without counsel, defendant, whether or not it at the the trial request 401(a). Childs, by Rule required admonishments give the court must at 166-67. 3d at App. defendant was aware indicates argues the record The State 401(a). conveyed to him Rule to be required the information provided be under Rule must necessary admonishments the de counsel so defendant has chosen waive learns the Prior admoni of his decision. the ramifications fendant can consider fully not inform discharge do serve request tions or the He cannot acting on his own behalf. of the ramifications earlier, at months given admonishments several expected rely on Langley, requesting not to waive counsel. point when was proceed 749-50, at 830. Defendant was forced App. following several months trial after to obtain counsel does not a valid waiver continuances. The record show is entitled to a new trial. *6 here, have the trial court should present the circumstances proper inquired admonishments and whether defendant was given the had willing counsel. If the defendant still wanted counsel but to waive so, permitted had time to do not obtained his own after trial court have The could have later appointed. then counsel could been court of Crim- hearing pursuant conducted a section 113—31 of Code (725 (West 1996)) (Code) for inal Procedure of 1963 ILCS 5/113—3.1 for counsel. payment overstepped its bounds
Defendant also contends the trial court trial, entitled to credit attempting to assist at and he is while pretrial fine detention. Because we against time served trial, is to a new we need not ad- have concluded defendant entitled is statutory right per diem credit dress these issues but note fine is mandatory imposed unless statute under which the crediting. prohibits such and cause remanded. judgment trial court’s is reversed
Reversed and remanded.
GARMAN,J., concurs. STEIGMANN, specially concurring: JUSTICE agree opinion, separately empha- I but write majority with the court committed this case primary size that the error lawyer hire a that had two choices: apparent its belief always occur represent error will almost or himself. Reversible (whom be nonin- court has found to trial court forces a defendant counsel) by pro proceed digent represented and who has asked be se because the will not appoint court represent him and de- failed, not, willfully fendant has or to hire counsel of his own choice. circumstances, Under legitimate these no of Rule 401 can waiver oc- cur because the requires rule a defendant’s knowing, intelligent, voluntary waiver of his right represented by to be counsel. When a de- fendant insists on being represented by counsel but claims un- able to an attorney choice, afford of his own Rule 401 simply does not apply. provision
Rule 401 lacks the explicit concerning voluntariness found in Rule guilty pleas. which addresses See 177 Ill. 2d R. 402(b). Nonetheless, because Rule 401 deals a fundamental right, requires constitutional it implicitly any that right waiver that voluntary. must be
In addressing waivers defendants of right counsel, their many courts recognized have that is required. voluntariness In People Kidd, (1997), “[w]hen wrote that defendant seeks to waive the trial court must not competent determine that he is to stand trial but also satisfy itself that waiver of this is right constitutional both know ing voluntary,” Moran, citing Godinez v. 509 U.S. 125 L. (1993) (“trial Ed. 2d 113 S. Ct. court must satisfy itself that the [a waiver counsel] constitutional knowing and voluntary”). Haynes, See also (waiver N.E.2d at 332 of constitutional to counsel must be “vol untary, intelligent”); knowing, Patterson, United States v. F.3d 1998) (8th (defendant’s 767, 774 Cir. of counsel must waiver be “know ing and voluntary”). requires
Because Rule 401 implicitly a waiver aof defendant’s voluntary, disagree counsel be I must with a decision of this suggests valid Rule 401 could be obtained involun tarily Childs, *7 from defendant. In 278 App.
this court addressed a situation in which the defendant at the trial games” “playing insisting level was with court he procedures, that represented by insisting the while also that different as two public appointed represent sistant defenders who had been him to incompetent were and other he needed counsel. This court stated its disapproval game following: such and playing wrote “The trial court could made have an initial determination whether any discharge there was valid basis to counsel. none was Since shown, the court could have denied the motion withdraw and to proceeded hand, On given with trial. the other had the court 401(a), required by valid could admonitions counsel not found, despite have been insistence that he did wish added.) Childs, App. 3d 278 Ill. (Emphasis represent himself.” at 166-67. from Childs. quotation in that sentence disagree emphasized I with the obstructionist never reward a defendant’s Trial courts must in Childs Yet, The defendant in Childs. happened that what behavior. Disciplin Attorney Registration the Illinois complaint filed a was then defender who public against the assistant ary Commission at that defense permitted therefore The trial court representing him. defendant trial, gave but first day on the torney to withdraw that as attorney, to trial with going an going to without choice of counsel hiring or his own attorney, public defender sistant as at 163. Childs, N.E.2d App. 3d at the next hour. within of those any predictably—refused exercise When the defendant — by discharging the as made a fundamental mistake options, the court forcing represent himself. defender and public sistant trial, for new but in This and remanded appropriately court reversed doing authority that trial have inappropriately so indicated courts who that does upon force the waiver of counsel insists represent not want to himself. may encounter
Despite court-appointed the difficulties counsel representing an defendant who is hell-bent on interfer- obstructionist ing orderly attorney-client relationship, with an constructive courts never counsel to withdraw from permit should almost such doing this representing that defendant. A trial court’s so rewards learned, As the trial in Childs courts delude bad behavior. court by thinking going themselves an obstructionist defendant is somehow court-appointed better when a new counsel enters the behave picture. reject not to withdraw filed
Trial courts should hesitate to motions on the court-appointed counsel those motions are based has that the defendant grounds relationship between “poisonous” unpleasant become or due defendant’s bad behavior. motions, make clear to the granting Instead of such the court should counsel will hurt the cooperate defendant that with his change Perhaps will not counsel. defendant and graphic way point explain is to getting across bus to comes prison, is convicted and sentenced to when the Stateville on, lawyer. pick up, only get he will not trying with the means of provides Illinois law trial courts of their own choice. persuade nonindigent lawyers defendants hire Indeed, 113—3.1 purpose underlying a fundamental section Code, to order defendants to reimburse permitting trial courts county for the services of State or sum reasonable *8 counsel, was to address present situations such as that in the case. (West 1996). 725 ILCS say Trial courts can to such a defen- 5/113—3.1 dant attorney choice, he fails to hire an of his own then the appoint court will require counsel and for pay to the ser- vices of that counsel to the extent the court he is of capable finds do- ing so, $5,000. with a possible payment maximum Utilizing statute, this a trial explain court should to a defendant (who 401) has not waived his to pursuant counsel the issue before the represented by defendant is whether he bewill an attorney court’s, his own choice or way one but either he will up wind a paying money. considerable sum of The court should further suggest that, in choices, view these two perhaps the defendant might want to reconsider his decision not attorney to hire an of his own choice. People Williams, 843, v.
(1982), Supreme Court of Illinois wrote: a financially engage
“[W]here defendant who able counsel has time, been instructed do so within a certain and reasonable but he fails to do why so and does not reasonable cause show he was representation, may unable to secure treat such a failure a as waiver of the to counsel and require proceed hearing.” However, I have serious doubts as to Supreme whether the Court of Il- linois would continue to adhere its decision Williams even if so, did guidance it whether decision much provide continues .that trial courts.
First, Williams cited no decision Supreme from the United States underlying holding, Court as its Supreme and the decisions the Godinez, has rendered since such as U.S. L. Ed. 2d 113 S. suggest Supreme Ct. that the Court has taken a finding line a harder on waiver of defendant’s than that shown in Williams.
Next, July section 113—3.1 of the Code was enacted effective Williams, some weeks before the court decided thus supreme nonindigent a providing persuading trial courts with means defendants to hire counsel that was when the trial in not available conclude, occurred. The Supreme might Williams Court of Illinois well special concurrence, fully as discussed that trial courts should they utilize this statute before will be permitted away new whittle a right. fundamental constitutional Last, Supreme willing even if the Court of were to continue Illinois Williams, might compelling to follow it do so under the most circumstances, leaving guess particu- factual trial courts to whether compelling enough. lar situation them is before (Colo. 1986), instance, 728 P.2d King People, For in which a defendant case Court addressed Colorado counsel, but also to hire felony failed not charged with status investigate financial agency court that would report to a counsel, as the eligibility court-appointed determine repeat period, Over two-month court had directed. edly *9 necessity the the of his counsel warned defendant nonetheless but the defendant contacting eligibility investigator, attorney hired an having trial either appeared on the date of without defendant’s statement investigator. Despite the eligibility or seen himself, the court directed that attorney to defend that he needed an King, ultimately proceed, and defendant was convicted. the trial would reversed, holding as 1267. The Colorado P.2d at follows: impliedly an accused has
“In order for a court conclude that whole, counsel, prof including the reasons waived the record as counsel, having must by fered the defendant for not show knowingly willingly undertook a of conduct course relinquish unequivocal an intent or abandon his that evinces right legal representation.” King, at P.2d 1269. standard, required by This minimum the sixth probably which is (U.S. Const., amendment to the United Constitution amend. States VI), high practical purposes all trial is nonetheless so that for courts Furthermore, ought trial essentially to consider it unreachable. Code, section 113—3.1 of the as described properly courts utilize herein, need to whether the behavior of the they will not determine enough “evince[ ] an egregious before them is case 1269) (King, relinquish or abandon unequivocal intent” 728 P.2d matter, legal As a last trial courts should representation. deny mindful reviewing by that if finds a trial court erred counsel, ing request that error represented a defendant his to be certainly be deemed reversible. almost will courts who utilize section 113—3.1 Experience suggests ultimately many as the Code described herein will not have choosing when those defendants court-appointed defendants attorneys. handling hire those fact have the means to their own in their dubi sufficiently persist few defendants who are stubborn to counsel, being ous claims of not able to afford hire important, right to distorting courts should resist fundamental amendment to the United States guaranteed by sixth I, and article of the Illinois Constitution section Constitution (Ill. I, contest 8), by engaging § Const. art. some sort of Instead, with defendants to see who blinks first. courts these confronted such a defendant should appoint counsel and utilize section 113 —3.1 of Code to fullest, requiring its such $5,000 pay in an appropriate case. ILLINOIS, THE OF Plaintiff-Appellee, PEOPLE THE STATE OF BELL, JR., W. Defendant-Appellant. TERRELL Fourth District No. 4 — 98—0840
Opinion May 9, filed