People v. Bartholomew , 2015 IL App (4th) 130575 ( 2015 )

FILED
2015 IL App (4th) 130575 July 7, 2015
Carla Bender
NO. 4-13-0575 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
THOMAS M. BARTHOLOMEW, ) No. 12CF1022
Defendant-Appellant. )
) Honorable
) John C. Costigan,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Holder White concurred in the judgment and
opinion.
OPINION
¶1 In April 2013, a jury convicted defendant, Thomas M. Bartholomew, of two
counts of aggravated battery, both Class 2 felonies (720 ILCS 5/12-3.05(d)(4), (h) (West Supp.
2011)) and one count of battery, a Class A misdemeanor (720 ILCS 5/12-3(a)(1), (b) (West
2010)). In June 2013, the trial court sentenced defendant to 13 years in prison.
¶2 On appeal, defendant asserts the trial court failed to substantially comply with
Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing him to proceed pro se.
We reverse and remand for a new trial.
¶3 I. BACKGROUND
¶4 On September 28, 2012, the State charged defendant by information with two
counts of aggravated battery, both Class 2 felonies (720 ILCS 5/12-3.05(d)(4), (h) (West Supp.
2011)). The State alleged that on September 27, 2012, defendant knowingly (1) caused great
bodily harm to a peace officer engaged in the execution of his official duties when he punched
him in the mouth (count I); and (2) made contact of an insulting or provoking nature to the same
peace officer when he punched him in the chest (count II). On April 8, 2013, the State charged
defendant by information with battery, a Class A misdemeanor (720 ILCS 5/12-3(a)(1), (b)
(West 2010)), based on the September 27, 2012, incident. The State alleged defendant
knowingly and without legal justification caused bodily harm to the victim when he punched him
in the face with his fist.
¶5 On April 8, 2013, defendant's jury trial commenced with defendant represented by
an assistant public defender. The State presented its evidence—the details of which are not
important to this appeal—and rested its case. Defendant, outside the presence of the jury, then
requested to proceed pro se for the remainder of the trial. In considering defendant's oral motion
to proceed pro se, the trial court informed defendant that it first had to determine whether he had
"the requisite capacity to make a knowing and intelligent waiver of [his] right of counsel, not
whether [he] can conduct [his] defense or not." The court then asked defendant a series of
questions regarding his age, education level, mental health, and his prior involvement with legal
proceedings. Next, the court informed defendant that he would be held to the same standard as
an attorney—who has substantial experience and training in trial procedure—in presenting
evidence, and that by representing himself, he may fail to make appropriate objections, and
therefore, allow into evidence that which may not otherwise be admissible. The court further
admonished defendant he could not later claim ineffective assistance of counsel from that point
forward in the trial. Defendant stated he understood the court's admonishments and that his
decision to proceed pro se would result in the discharge of his assistant public defender.
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Thereafter, the court found that defendant understood the admonishments, discharged the
assistant public defender, and allowed him to proceed pro se.
¶6 After defendant presented evidence—the details of which are not important to this
appeal—the jury returned guilty verdicts on all counts. Following a sentencing hearing, the trial
court sentenced defendant—who, due to his prior record was subject to mandatory Class X
sentencing—to 13 years in prison on count I. Counts II and III were merged into count I.
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 On appeal, defendant asserts the trial court failed to substantially comply with
Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing him to proceed pro se.
The State concedes the court did not substantially comply with Rule 401(a) and that defendant's
conviction and sentence should be reversed. We agree.
¶ 10 Rule 401(a) provides as follows:
"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
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(3) that he has a right to counsel and, if he is
indigent, to have counsel appointed for him by the
court." Id.
In People v. Campbell, 224 Ill. 2d 80, 84, 862 N.E.2d 933, 936 (2006), our supreme court stated,
"[t]he purpose of this rule is 'to ensure that a waiver of counsel is knowingly and intelligently
made.' " (quoting People v. Haynes, 174 Ill. 2d 204, 241, 673 N.E.2d 318, 335 (1996)). Thus,
Rule 401(a) admonishments "must be provided when the court learns the defendant has chosen
to waive counsel so the defendant can consider the ramifications of his decision." People v.
Stoops, 313 Ill. App. 3d 269, 275, 728 N.E.2d 1241, 1245 (2000). Prior admonishments, if any,
are not sufficient. Id. "Accordingly, substantial compliance with Rule 401(a) is required for an
effective waiver of counsel." Campbell, 224 Ill. 2d at 84, 862 N.E.2d at 936.
¶ 11 In this case, the trial court did not address any of the three elements required by
Rule 401(a) prior to allowing defendant to proceed pro se during the defense portion of his trial.
Accordingly, defendant's waiver of counsel was ineffective and his conviction and sentence must
be reversed. See id. at 85, 862 N.E.2d at 936 (a conviction following an ineffective waiver of
counsel cannot stand).
¶ 12 II. CONCLUSION
¶ 13 For the reasons stated, we reverse the defendant's conviction and sentence and
remand for a new trial.
¶ 14 Reversed; cause remanded.
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