People v. Bakaturski , 2023 IL App (4th) 220300 ( 2023 )

2023 IL App (4th) 220300 FILED
June 14, 2023
NO. 4-22-0300 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
PATRICK V. BAKATURSKI, ) No. 06CF78
Defendant-Appellant. )
) Honorable
) Paul P. Gilfillan
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Cavanagh and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In March 2007, defendant, Patrick V. Bakaturski, pled guilty to two counts of
attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)). In 2016, defendant
filed a pro se postconviction petition. The trial court advanced the petition to second-stage
proceedings and appointed counsel. Defendant moved to waive counsel and proceed pro se. The
court denied the motion, finding waiver of counsel was not in defendant’s best interest. The
appellate court vacated with directions for the trial court to conduct a hearing on defendant’s
motion and determine whether defendant knowingly and intelligently waived his right to
counsel. People v. Bakaturski, 2020 IL App (3d) 180015-U¸ ¶ 30.
¶2 On remand, the trial court held a hearing and determined defendant’s waiver of
counsel was knowing and intelligent. The court ultimately dismissed the petition. Defendant
appeals, arguing the court incorrectly admonished him concerning the risks of
self-representation. Thus, he seeks a remand for new second-stage post-conviction proceedings.
We determine defendant’s waiver of counsel was knowing, voluntary, and intelligent.
Accordingly, we affirm.
¶3 I. BACKGROUND
¶4 Defendant pled guilty to two counts of attempted first degree murder under a
partial plea agreement. The trial court sentenced defendant to consecutive sentences of 10 years’
and 30 years’ incarceration. The record shows the court admonished defendant of the potential
maximum sentences of the charges at his arraignment and at the plea hearing. On direct appeal,
defendant argued his sentence was excessive, and the appellate court affirmed. People v.
Bakaturski, 406 Ill. App. 3d 1176 (2010) (table) (unpublished order under Illinois Supreme Court
Rule 23).
¶5 On May 26, 2016, defendant filed a “Late Pro Se Post-Conviction Petition,”
seeking to vacate his plea, which the trial court advanced to the second stage of postconviction
proceedings. Defendant filed a motion for the appointment of counsel other than the public
defender’s office. The court appointed the public defender as defendant’s counsel.
¶6 On March 13, 2017, defendant filed a pro se pleading titled “Motion to Remove
Counsel, Hold Kraincal [sic] Hearing, Replace Counsel, set guidelines for Effective
Post-Conviction Counsel, and/or Defendant will proceed as a pro se Defendant.” Defendant
alleged postconviction counsel refused to speak to him or allow him to take part in his own
defense. The trial court reassigned the matter to a different judge, and postconviction counsel
filed a motion to withdraw, alleging defendant’s postconviction claims were meritless. The State
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filed a motion to dismiss the petition, and defendant filed pro se responses to postconviction
counsel’s motion and the State’s motion to dismiss.
¶7 At a status hearing on November 17, 2017, postconviction counsel advised the
trial court defendant did not object to counsel withdrawing and defendant proceeding pro se. The
court asked the State for its position on defendant representing himself. The State opined it
would be best for defendant to be represented in the interest of protecting the record, protecting
defendant’s rights, and preventing the proceedings from being delayed or overly confusing. The
State argued defendant had not filed a motion to represent himself and would need to do so.
¶8 Defendant began addressing some of his claims. The State noted defendant
seemed to be confused as to the rules that applied to the proceeding, which indicated
representing himself would not be a good choice. Defendant replied: “Well, if [postconviction
counsel] withdraws, regardless, I’m going to be pro se. Regardless, I’m going to have to defend
myself if he is allowed to withdraw.” Postconviction counsel noted his motion to withdraw was
based on his view defendant’s claims were frivolous. Postconviction counsel reiterated defendant
wanted him to withdraw and stated he was willing to do so if the trial court would allow it. The
court stated it believed it was good for defendant to be represented because it appeared the
claims raised in one of his pro se motions had no applicability to the proceedings.
¶9 On November 28, 2017, defendant filed a motion to proceed as a self-represented
litigant. After a hearing, the trial court denied defendant’s motion to represent himself on the
basis it was not in defendant’s best interest. The court reasoned defendant “desperately need[ed]
some counsel” and postconviction counsel was the only one familiar enough with the case to
provide it to him. The court did not address whether defendant was seeking to waive counsel
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knowingly, voluntarily, and intelligently. The court later granted postconviction counsel’s
motion to withdraw and the State’s motion to dismiss. Defendant appealed.
¶ 10 On appeal, the appellate court found, if defendant’s request to proceed pro se was
knowing and voluntary, the trial court should have allowed it. Because the trial court did not
make such a determination, the appellate court vacated the trial court’s judgment and remanded
the matter for a hearing on the issue. Bakaturski, 2020 IL App (3d) 180015-U.
¶ 11 On remand before a new judge, defendant told the trial court he wanted to
represent himself. The court admonished defendant as follows:
“Normally I would advise you of what the pending charges are and the minimum
and maximum sentencing range for same, but this is a different stage and animal
of proceeding, so there’s already conviction and sentence on file, and a
post-conviction proceeding has been initiated by you. So the worst that can
happen to you in this case is that your post-conviction petition is denied, and the
sentence imposed remains in place. The best that can happen to you is that your
post-conviction petition is granted and that some form of relief is given to you
depending on what’s requested and what might be applicable. So with that said,
do you understand that you have right to an attorney if you can’t afford one, but
that you also have right to refuse that; is that correct?”
¶ 12 Defendant responded, “Your Honor, I understand my rights, and I understand I’m
waiving the right to counsel.” The following colloquy then occurred:
“THE COURT: Okay. Is this your free, full and voluntary decision?
[DEFENDANT]: Yes.
THE COURT: Is anybody pressuring you to do this?
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[DEFENDANT]: No.
THE COURT: Has anybody promised you anything in order to represent
yourself?
[DEFENDANT]: No.
THE COURT: Do you know that as general rule as referenced in detail in
the earlier proceedings, but I still have to tell you about it, that it’s generally
unwise for person to represent themselves against an experienced attorney on the
other side?
[DEFENDANT]: Yes, your Honor.
THE COURT: And the reason for that is legal training, prior experience in
the law, and the type of law involved in the case, and that’s why people say it’s
probably not good decision; you at least understand that advice?
[DEFENDANT]: Yes, I do.
THE COURT: And do you understand also that by representing yourself
you’re taking on the burden of an attorney’s job as layperson, and that you would
never be able to complain about an attorney’s ineffective assistance of counsel
because by definition you would not have an attorney because you’re representing
yourself; understood?
[DEFENDANT]: Yes, I understand.
THE COURT: And because you’re representing yourself at this point,
there is no promise or guarantee that if you ever ask for an attorney down the road
you will be granted one; do you understand?
[DEFENDANT]: Yes, I understand.
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THE COURT: And you also know that as a judge in the case I’m not
supposed to represent either side in the case, so you should not expect legal
assistance from the Court; do you understand?
[DEFENDANT]: Yes, I do.
THE COURT: With all that said, do you still want to represent yourself?
[DEFENDANT]: Yes, your Honor.”
¶ 13 The trial court found defendant’s waiver of counsel knowing and understanding.
Defendant filed multiple pleadings, motions, and legal documents in the matter and presented
various written legal arguments. Ultimately, the court granted the State’s motion to dismiss.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant contends his waiver of post-conviction counsel was invalid
because it was the result of incomplete and erroneous admonitions by the trial court. In
particular, he argues the court failed to inform him of the duties of postconviction counsel and
failed to tell him of the danger of a longer sentence should he be successful and able to withdraw
his plea.
¶ 17 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016))
“provides a mechanism by which a criminal defendant can assert that his conviction and sentence
were the result of a substantial denial of his rights under the United States Constitution, the
Illinois Constitution, or both.” People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371. The
adjudication of a postconviction petition follows a three-stage process. People v. Allen, 2015 IL
113135, ¶ 21, 32 N.E.3d 615. During the second and third stages of postconviction proceedings,
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defendants have a statutory right to counsel. People v. Lesley, 2018 IL 122100, ¶ 33, 123 N.E.3d
1060.
¶ 18 “Commensurate with Illinois’s statutory right to appointed counsel in
postconviction proceedings is a defendant’s ability to waive that right, so long as the defendant’s
waiver is voluntary, knowing, and intelligent.” Id. ¶ 50. “[A] court must accept a defendant’s
knowing and intelligent request to proceed pro se provided that the waiver is clear and
unequivocal, not ambiguous.” People v. Harrison, 2018 IL App (3d) 150419, ¶ 11, 115 N.E.3d
239. When determining whether a defendant has intelligently waived his or her right to counsel,
a court must consider the particular facts and circumstances of the defendant’s case, including
his or her background, experience, and conduct. Id.¶ 19 Whether the trial court properly admonished the defendant presents a question of
law we review de novo. See People v. Washington, 2016 IL App (1st) 131198, ¶ 50, 64 N.E.3d
28 (citing People v. Pike, 2016 IL App (1st) 122626, ¶ 114, 53 N.E.3d 147). However, the
court’s ultimate finding of a valid waiver of counsel is reviewed for an abuse of discretion. Pike,
2016 IL App (1st) 122626, ¶ 114.
¶ 20 Defendant first argues his waiver of counsel was not voluntary, knowing, and
intelligent because the trial court incorrectly admonished him. He notes the court told him “the
worst that can happen to you in this case is that your post-conviction petition is denied, and the
sentence imposed remains in place.” Defendant then argues the admonition was incorrect
because “it would be far worse if [defendant’s] plea were to be withdrawn and his 40-year
sentence vacated, and he were to be subsequently convicted and given a longer sentence closer to
the maximum of 60 years or more with firearms enhancements.” We disagree the court was
required to give defendant such an admonishment.
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¶ 21 The trial court correctly told defendant, if his postconviction petition was denied,
his sentence would remain in place. The court then correctly told defendant, if his postconviction
petition was granted, some form of relief would be given depending on what was requested and
what might be applicable. Defendant’s argument would essentially require the court to go a step
further and admonish him of the minimum and maximum possible sentence as provided by
Illinois Supreme Court Rule 401 (eff. July 1, 1984), which is applicable when a defendant
waives counsel before trial. However, this court has held Rule 401 does not apply to
postconviction proceedings. People v. Jones, 2021 IL App (4th) 190542-U, ¶ 25.
¶ 22 Rule 401 admonishments are not required in postconviction proceedings because
a person who has already been convicted and sentenced would already know everything the Rule
401 admonishment would have told them. See Harrison, 2018 IL App (3d) 150419, ¶ 18; Jones,
2021 IL App (4th) 190542-U, ¶ 28. Here, defendant was admonished of the maximum potential
sentences for his crimes at his arraignment and plea hearings. Given that Rule 401 admonitions
were not required and nothing in the record indicates defendant was unaware of the term he
would face should he be allowed to withdraw his plea, the trial court was not required to
admonish defendant based on speculative or hypothetical possibilities arising from defendant’s
choice to collaterally attack his conviction.
¶ 23 Defendant next argues the trial court failed to admonish defendant of
postconviction counsel’s duties under Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). For
example, he argues the court should have informed him, under Rule 651(c), counsel would
examine the record, consult with defendant to ascertain his claims, and amend his petition as
necessary. This argument has also been rejected by the appellate court. People v. Wright, 2021
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IL App (1st) 182582-U, ¶ 21; see People v. Peters, 2022 IL App (2d) 210365-U, ¶¶ 23-24 (citing
Harrison, 2018 IL App (3d) 150419, ¶ 17).
¶ 24 Defendant cites no authority for the proposition that, before allowing a defendant
to proceed pro se in postconviction proceedings, the trial court must specifically admonish the
defendant regarding the duties postconviction counsel would perform at the second stage of
proceedings. In fact, our supreme court has rejected a similar argument where the defendant was
found to have knowingly and intelligently waived postconviction counsel by his conduct. See
Lesley, 2018 IL 122100, ¶¶ 56-60 (rejecting the defendant’s unsupported argument the court was
required to admonish him regarding the advantages of representation of counsel and the dangers
and pitfalls of representing himself in postconviction proceedings before finding waiver of
counsel by conduct). Accordingly, we hold the court was not required to inform defendant of the
specifics of Rule 651(c). See Wright, 2021 IL App (1st) 182582-U, ¶ 21.
¶ 25 The requirement of a knowing and intelligent choice calls for a full awareness of
the nature of the right being abandoned and the consequences of the decision to abandon it.
Lesley, 2018 IL 122100, ¶ 51. Here, the trial court’s admonishments were proper, and the court
confirmed defendant understood the nature of his right to counsel and how it applied to his
general circumstances. Defendant expressly requested to proceed pro se and told the court
multiple times he understood the right he was waiving. Defendant did not vacillate on his request
for self-representation, and he filed numerous documents and made legal arguments following
his waiver of counsel illustrating his understanding of the process. Thus, the record demonstrates
the court sufficiently admonished defendant and did not abuse its discretion in finding
defendant’s waiver of counsel was voluntarily, knowingly, and intelligently made.
¶ 26 III. CONCLUSION
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¶ 27 For the reasons stated, we affirm the trial court’s judgment.
¶ 28 Affirmed.
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People v. Bakaturski, 2023 IL App (4th) 220300Decision Under Review: Appeal from the Circuit Court of Tazewell County, No. 06-CF-78;
the Hon. Paul P. Gilfillan, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Stephen L. Gentry, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kevin E. Johnson, State’s Attorney, of Pekin (Patrick Delfino,
for David J. Robinson, and Rosario David Escalera Jr., of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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