People v. Bingham ( 2006 )

NO. 4-04-0614 Filed: 4/12/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
GEORGE P. BINGHAM, ) No. 04CF83
Defendant-Appellant. )
) Honorable
) Michael Q. Jones,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In April 2004, a jury convicted defendant, George P.
Bingham, of aggravated fleeing or attempting to elude a police
officer (625 ILCS 5/11-204.1 (West 2002)) and driving while his
driver's license was revoked (625 ILCS 5/6-303 (West 2002)). The
trial court sentenced defendant to a 6-year term of imprisonment
on the aggravated-fleeing conviction and a concurrent term of 364
days on the driving-while-license-revoked conviction. Defendant
appeals, contending he was denied his right to counsel of choice.
We reverse and remand.
I. BACKGROUND
On January 14, 2004, defendant was charged with aggra-
vated fleeing or attempting to elude a police officer and driving
while his driver's license was revoked. On January 27, 2004, an
assistant public defender was appointed to represent defendant.
When the cause was called for trial on April 13, 2004, the
following colloquy took place:
"THE COURT: Appearance of the
[d]efendant personally, and by counsel, Mr.
Appleman.
Cause called for jury trial.
Both sides ready for trial?
MR. HARRIS [(assistant State's Attor-
ney)]: Yes, Judge.
MR. APPLEMAN [(defense counsel)]: Your
Honor, my client has asked me to make a mo-
tion to continue this case. He is, in fact,
represented by out-of-town counsel. I be-
lieve the name is Earl Washington, on other
cases, and he is hoping to be represented by
Mr. Washington on this case as well. So, I
will make a motion to continue on that basis.
THE COURT: Mr. Harris?
MR. HARRIS: Judge, when this case was
called at the status hearing, Mr. Appleman
answered ready for trial. Had he not an-
swered ready for trial, it was the State's
intention to answer ready for trial.
Mr. Appleman is correct, the [d]efendant
has other matters pending. He has [an] unre-
solved delivery-of-controlled-substance case.
He has two unresolved petitions to revoke
probation.
Despite my best efforts to bring Mr.
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Washington to the table either for purposes
of trial as to the unresolved case or to
hearing on the petitions to revoke, Mr. Wash-
ington's always had something else to do.
State is ready for trial.
I did get a palm message late yesterday
afternoon from Mr. Washington. I've had
offers out on the other cases for six months.
[The] State is most anxious to proceed in
this matter.
THE COURT: Given the representations
I've heard, the motion to continue is de-
nied."
After proceeding to trial, the jury found defendant
guilty on both charges and the court sentenced defendant as
stated. This appeal followed.
II. ANALYSIS
On appeal, defendant contends the trial court abused
its discretion by denying his request for a continuance to
substitute private counsel. Defendant argues nothing indicates
the request was made for dilatory purposes and the court erred by
failing to conduct an inquiry into the circumstances surrounding
the request. The State contends the court did not need to make
any additional inquiry because the necessary facts were before
the court. The State also argues the conviction should not be
reversed because defendant has not established he was prejudiced
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by the trial court's denial of the motion for a continuance. We
reverse, finding the trial court violated defendant's right to
choice of counsel by erroneously denying defendant's motion for
continuance to substitute counsel without conducting an adequate
inquiry into the request.
A. Violation of Right to Choice of Counsel
Defendant has a constitutional right to the assistance
of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art.
I, '8), which includes the right to counsel of his choosing
(People v. Friedman, 79 Ill. 2d 341, 349, 403 N.E.2d 229, 234
(1980)). However, this right is not absolute, and a defendant
may not use this right to "thwart the administration of justice,
or to otherwise embarrass the effective prosecution of crime."
People v. Solomon, 24 Ill. 2d 586, 590, 182 N.E.2d 736, 739
(1962).
In ruling on a motion to continue to substitute coun-
sel, the trial court must balance defendant's right to choose his
counsel against the efficient and effective administration of
justice. People v. Childress, 276 Ill. App. 3d 402, 410, 657
N.E.2d 1180, 1186 (1995). "This balancing, of necessity, re-
quires a review of the diligence shown by the defendant [cita-
tion] and an inquiry into the actual request to see if the
request is being used merely as a delaying tactic." People v.
Washington, 195 Ill. App. 3d 520, 525, 552 N.E.2d 1067, 1070
(1990). The determination of a motion to continue depends upon
the circumstances of each case, and the trial court's denial of a
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defendant's request for a continuance will not be overturned
absent an abuse of discretion. Friedman, 79 Ill. 2d at 347-48,
403 N.E.2d at 233.
In this case, the trial court erred in denying defen-
dant's motion for a continuance to substitute counsel without
further inquiry. While it is unclear whether defendant had
already retained Washington in this matter, it is clear Washing-
ton represented defendant in several other ongoing criminal
matters and defendant wanted Washington to represent him in this
cause. The record also indicates Washington contacted the
assistant State's Attorney the previous day, although the subject
matter of the message is unclear. The record shows the case
progressed quickly and had been pending only three months. No
prior continuances and no pretrial motions had been filed. The
record shows no indication of any prior attempt by defendant to
delay the proceedings or that the purpose of the request was
dilatory. The trial court should have conducted an inquiry into
the circumstances and the purposes of the motion before making
its ruling. By denying defendant's motion without conducting
such an inquiry, the trial court abused its discretion and
violated defendant's sixth-amendment right to counsel of choice.
B. Standard for Reversal for a Violation of Choice of Counsel
Having found a violation of defendant's right to
counsel of choice, the question arises whether this constitu-
tional violation is subject to per se reversal or a harmless-
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error or prejudice analysis.
1. Prejudice Analysis
Citing Solomon, 24 Ill. 2d 586, 182 N.E.2d 736, the
State argues the conviction should not be reversed because
defendant has not established he was prejudiced by the trial
court's denial of the motion for a continuance.
In Solomon, the defendant requested a religious organi-
zation retain an attorney for him and refused to cooperate with
his court-appointed counsel. Solomon, 24 Ill. 2d at 589, 182
N.E.2d at 738. On the day before trial, approximately two weeks
later, appointed counsel filed a motion indicating the organiza-
tion had not advised him of the status of defendant's request and
sought a continuance so defendant could obtain counsel of choice.
Solomon, 24 Ill. 2d at 589, 182 N.E.2d at 738. The trial court
denied the motion and the cause proceeded to trial as scheduled.
Solomon, 24 Ill. 2d at 589, 182 N.E.2d at 738. Defendant ap-
pealed, alleging he was denied his right to a fair trial due to
the denial of the continuance and to incompetent representation
by his appointed counsel. Solomon, 24 Ill. 2d at 588, 182 N.E.2d
at 738.
The Solomon court stated "[b]efore a judgment of
conviction will be reversed because of the denial of such a
motion, it must appear that the refusal of additional time in
some manner embarrassed the accused in preparing his defense and
prejudiced his rights." Solomon, 24 Ill. 2d at 589-90, 182
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N.E.2d at 738. Contrary to the State's assertion, this standard
does not apply to denials of motions for continuance to substi-
tute counsel (which implicate the right to counsel of choice) but
instead applies to motions for continuance to prepare for trial
(which implicate the right to effective assistance of counsel).
Notably, the applicable law from the cases cited by
Solomon in setting forth the prejudice requirement involves
motions for continuances to prepare for trial or trial prepara-
tion in general. See People v. VanNorman, 364 Ill. 28, 29-31, 2
N.E.2d 891, 892-93 (1936) (trial court denied motions for contin-
uance to prepare for trial); Holt v. United States, 267 F.2d 497,
498-99 (8th Cir. 1959) (court denied motion for continuance to
prepare for trial made by recently substituted counsel); United
States ex rel. Thompson v. Nierstheimer, 166 F.2d 87, 90 (7th
Cir. 1948) (on review of denial of habeas corpus petition, court
found the defendant was not denied due process in expeditious
proceeding); Crono v. United States, 59 F.2d 339, 341 (9th Cir.
1932) (trial court denied recently substituted counsel's motion
for a continuance to prepare for trial).
The Solomon court's analysis further supports a finding
the standard applies to motions for continuance to prepare for
trial and the corresponding right to effective assistance of
counsel. Immediately after setting forth the prejudice standard,
the Solomon court addressed the defendant's claim his counsel's
performance was deficient. Solomon, 24 Ill. 2d at 589-90, 182
N.E.2d at 738. The court found the appointment of counsel two
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weeks before trial was ample time to prepare a defense and, due
to the defendant's refusal to cooperate with appointed counsel,
"he [could not] now be heard to complain that the denial of the
motion for continuance embarrassed his defense or prejudiced his
rights." Solomon, 24 Ill. 2d at 590, 182 N.E.2d at 738.
After addressing the defendant's ineffectiveness claim
and the question of prejudice, the court moved on to address the
issue of the defendant's right to counsel of choice. Solomon, 24
Ill. 2d at 590, 182 N.E.2d at 739. The court found the trial
court did not abuse its discretion in denying the defendant's
motion for a continuance because the retention of substitute
counsel was only speculative after a reasonable length of time.
Solomon, 24 Ill. 2d at 591, 182 N.E.2d at 739.
A thorough reading of Solomon indicates the prejudice
requirement set forth relates to the defendant's claim counsel
was unprepared and not to the defendant's contention he was
denied counsel of choice. See People v. Coleman, 45 Ill. 2d 466,
469, 259 N.E.2d 269, 271 (1970) (the court applied the Solomon
prejudice requirement to a motion for continuance for additional
time to prepare); cf. Wilson v. Mintzes, 761 F.2d 275, 285 n.17
(6th Cir. 1985) (while a prejudice inquiry is inappropriate when
reviewing the denial of a motion to continue to substitute
counsel, it is appropriate when reviewing the denial of a contin-
uance to prepare for trial because it relates to the right to
effective assistance of counsel and the corresponding concern
with the objective fairness of the proceeding). We reject
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appellate court cases to the extent they find Solomon holds
otherwise. See, e.g., People v. Wallace, 44 Ill. App. 3d 89, 92,
357 N.E.2d 858, 861 (1976) (Fourth District); People v. Gray, 96
Ill. App. 3d 757, 761, 422 N.E.2d 45, 49 (1981) (First District);
People v. Allen, 35 Ill. App. 3d 342, 347, 341 N.E.2d 431, 435
(1976) (Fifth District); People v. Hart, 10 Ill. App. 3d 857,
859, 295 N.E.2d 63, 65 (1973) (Third District).
Requiring a defendant to demonstrate prejudice from a
violation of his right to be represented by his counsel of choice
would essentially require defendant to demonstrate he received
ineffective assistance of counsel. See Wilson, 761 F.2d at 284
n.14.
Although the "essential aim of the [sixth] [a]mendment
is to guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be repre-
sented by the lawyer whom he prefers" (Wheat v. United States,
486 U.S. 153, 159, 100 L. Ed. 2d 140, 148, 108 S. Ct. 1692, 1697
(1988)), the right to counsel of choice is protected independent
of concerns regarding the fairness of the proceedings (Wilson,
761 F.2d at 279). In this regard, the right to choice of counsel
is distinct from the right to effective assistance of counsel
because "the right to the effective assistance of counsel is
recognized not for its own sake, but because of the effect it has
on the ability of the accused to receive a fair trial." United
States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667, 104
S. Ct. 2039, 2046 (1984).
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A prejudice requirement is inappropriate for choice-of-
counsel violations because it would effectively obliterate the
right to be represented by counsel of choice by collapsing the
right into the right to receive effective assistance of counsel.
Wilson, 761 F.2d at 286; but cf. Rodriguez v. Chandler, 382 F.3d
670, 674-76 (7th Cir. 2004) (in holding prejudice is a require-
ment for reversal of violation of the right to choice of counsel,
the court adopted an "adverse-effect" prejudice standard because
an ineffective-assistance prejudice test would effectively
eliminate relief for a violation of the right and the right
itself). Instead, the appropriate inquiry is whether a violation
of the right requires per se reversal or is subject to harmless-
error analysis.
2. Trial Error or Structural Defect
In Arizona v. Fulminante, 499 U.S. 279, 307-10, 113 L.
Ed. 2d 302, 330-31, 111 S. Ct. 1246, 1264-65 (1991), the Supreme
Court recognized two categories of constitutional errors in
criminal proceedings: "trial errors" and "structural defects." A
trial error "occur[s] during the presentation of the case to the
jury" and is subject to harmless-error analysis because it can be
"quantitatively assessed in the context of other evidence pre-
sented in order to determine whether its admission was harmless
beyond a reasonable doubt." Fulminante, 499 U.S. at 307-08, 113
L. Ed. 2d at 330, 111 S. Ct. at 1264. Some examples of trial
errors recognized by the Supreme Court include (1) the giving of
a jury instruction misstating an element of the offense, (2) the
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improper commenting at trial about defendant's silence in viola-
tion of the fifth amendment, and (3) the admission of evidence
obtained in violation of the fourth amendment. Fulminante, 499
U.S. at 307, 113 L. Ed. 2d at 329-30, 111 S. Ct. at 1263. Most
constitutional errors in a criminal trial can be harmless and do
not require automatic reversal of the conviction. Fulminante,
499 U.S. at 306, 113 L. Ed. 2d at 329, 111 S. Ct. at 1263. As
the beneficiary of the error, the State has the burden of proving
the error was harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct.
824, 828 (1967).
Structural defects, however, defy harmless-error
analysis. Fulminante, 499 U.S. at 309, 113 L. Ed. 2d at 331, 111
S. Ct. at 1265. These violations involve a limited class of
fundamental constitutional errors "so intrinsically harmful as to
require automatic reversal (i.e., 'affect substantial rights')
without regard to their effect on the outcome." Neder v. United
States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827,
1833 (1999). A structural defect "affect[s] the framework within
which the trial proceeds, rather than simply an error in the
trial process itself." Fulminante, 499 U.S. at 310, 113 L. Ed.
2d at 331, 111 S. Ct. at 1265. The Supreme Court has recognized
constitutional violations involving the unlawful exclusion of
members of the defendant's race from a grand jury, the right to
choose self-representation at trial, and the right to a public
trial as constitutional errors not subject to harmless-error
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analysis. Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331, 111
S. Ct. at 1265.
We find a violation of defendant's right to choice of
counsel is not a "trial error" occurring during the presentation
of the case that can be quantitatively assessed in light of the
other evidence. See United States v. Gonzalez-Lopez, 399 F.3d
924, 933 (8th Cir. 2005), cert. granted, ___ U.S. ___, 163 L. Ed.
2d 722, 126 S. Ct. 979 (2006); United States v. Panzardi Alvarez,
816 F.2d 813, 818 (1st Cir. 1987). Instead, it is a fundamental
constitutional error affecting a substantial right that defies
harmless-error analysis. See Gonzalez-Lopez, 399 F.3d at 934.
The nature of the right to counsel of choice dictates
such a finding. While the defendant's right to self-representa-
tion does not encompass the right to counsel of choice (Wheat,
486 U.S. at 159 n.3, 100 L. Ed. 2d at 149 n.3, 108 S. Ct. 1697
n.3), they involve many of the same concerns. Both rights are
personal to the defendant and derive from the sixth-amendment
principle that the defendant has the right to choose the type of
defense to mount. Wilson, 761 F.2d at 279 & n.5.
"As several courts have recognized, 'the most important
decision a defendant makes in shaping his defense is his selec-
tion of an attorney.'" Gonzalez-Lopez, 399 F.3d at 935, quoting
United States v. Laura, 607 F.2d 52, 56 (3rd Cir. 1979). Within
the range of effective advocacy, attorneys will differ in a
variety of important respects that impact a trial, including
their trial strategy, oratory style, framing and emphasis of
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legal issues, expertise in areas of law, and familiarity with
opposing counsel and the judge. Gonzalez-Lopez, 399 F.3d at 934.
In addition, the right to counsel of choice, like the
right to self-representation, "'reflects constitutional protec-
tion of the defendant's free choice independent of concern for
the objective fairness of the proceeding.'" Gonzalez-Lopez, 399
F.3d at 935, quoting Flanagan v. United States, 465 U.S. 259,
268, 79 L. Ed. 2d 288, 296, 104 S. Ct. 1051, 1056 (1984). The
right to counsel of choice is recognized out of respect for the
individual and "is either respected or denied irrespective of the
harmlessness or prejudicial nature of the error." Wilson, 761
F.2d at 286.
Notably, most of the federal circuit courts to address
the issue have held a violation of the right to counsel of choice
requires per se reversal. See United States v. Burton, 584 F.2d
485, 491 n.19 (D.C. Cir. 1978); Panzardi Alvarez, 816 F.2d at 818
(1st Cir.); Fuller v. Diesslin, 868 F.2d 604, 609 (3rd Cir.
1989); Wilson, 761 F.2d at 281 (6th Cir.); Gonzalez-Lopez, 399
F.3d at 933-34 (8th Cir.); Bland v. California Department of
Corrections, 20 F.3d 1469, 1478-79 (9th Cir. 1994), overruled on
other grounds in Schell v. Witek, 218 F.3d 1017, 1024-25 (9th
Cir. 2000); United States v. Mendoza-Salgado, 964 F.2d 993, 1015
(10th Cir. 1992); but see United States v. Arena, 180 F.3d 380,
397 (2d Cir. 1999); Rodriguez, 382 F.3d at 673-76.
We join the majority of the federal courts and hold the
violation of a defendant's sixth-amendment right to counsel of
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choice requires automatic reversal of the conviction.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for a new trial.
Reversed and remanded.
MYERSCOUGH and COOK, JJ., concur.
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