People v. Lesley

2018 IL 122100
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122100)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MYRON T. LESLEY, Appellee.
Opinion filed November 29, 2018.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Defendant, Myron T. Lesley, pro se filed in the circuit court of La Salle County
a postconviction petition under section 122-4 of the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-4 (West 2012)). The court advanced the petition and
appointed counsel to represent defendant, and the State filed a motion to dismiss.
Ultimately, defendant was required to proceed pro se, and the court granted the
State’s motion in part and denied the motion in part. Following a third-stage
evidentiary hearing, at which defendant also appeared pro se, the court denied
defendant’s petition.
¶2 On appeal, defendant argued that the circuit court erred in forcing him to
represent himself. A divided appellate court agreed and reversed and remanded for
appointment of counsel and new second-stage postconviction proceedings. 2017 IL
App (3d) 140793, ¶ 28.
¶3 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
Mar. 5, 2016). We now reverse the judgment of the appellate court and remand to
that court for further proceedings.
¶4 I. BACKGROUND
¶5 On February 28, 2012, defendant was indicted on one count of unlawful
possession of a controlled substance with intent to deliver and three counts of
unlawful delivery of a controlled substance. Defendant was released on bond. At a
May 2012 hearing, Assistant Public Defender James Reilly informed the court that
defendant intended to seek private counsel. At the final pretrial hearing, Reilly
sought a continuance because defendant had not yet secured private counsel. In
August 2012, Reilly was permitted to withdraw, and private counsel, Douglas
Olivero, entered his appearance. Olivero appeared at several status hearings.
Defendant failed to appear at a December 2012 hearing, and Olivero moved to
withdraw, citing defendant’s refusal to cooperate. Subsequently, defendant again
failed to appear, a warrant issued, and defendant was taken into custody on the
warrant. The circuit court granted Olivero’s motion to withdraw and appointed
Assistant Public Defender Michael Olewinski to appear on defendant’s behalf.
Olewinski appeared at a January 2013, status hearing and again in April 2013,
when he informed the court that defendant “still has to come in and speak with our
office.” The court then urged defendant to “please help them prepare for you so
make sure you go in and see them.”
¶6 In April 2013, while free on bond, defendant was arrested and charged with two
additional counts of unlawful delivery of a controlled substance. Thereafter,
defendant was arraigned on the new counts.
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¶7 On June 13, 2013, defendant pled guilty to the offenses of unlawful possession
of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West
2012)) and unlawful delivery of a controlled substance (id.) in exchange for
consecutive sentences of five years’ imprisonment and six years’ imprisonment,
respectively. The State also agreed to dismiss four additional charges.
¶8 On September 30, 2013, defendant pro se filed a postconviction petition
alleging that he received ineffective assistance of plea counsel, asserting that
counsel failed to adequately investigate his case and that no justification was given
for his consecutive sentences.
¶9 The State responded by filing a motion to dismiss the petition, and at
defendant’s request, the circuit court appointed the public defender to represent
him.
¶ 10 A hearing on defendant’s petition was conducted by the same judge who had
taken defendant’s plea and imposed sentence. Defendant appeared with Timothy
Cappellini, a La Salle County assistant public defender, for a “first appearance”
hearing on the postconviction petition. Defendant requested a long continuance
explaining that he and Cappellini had a disagreement regarding the acquisition of
defendant’s sentencing hearing transcripts. Cappellini responded: “I said if he
doesn’t want me to represent him, he can go pro se.” The court informed defendant
that Cappellini could easily get the sentencing transcripts and that was what
defendant needed for his petition. Cappellini then explained that
“if the defendant is not going to listen to anything I tell him when I try to
explain the law and he’s going to tell me I’m wrong[,] I said, you can go pro se.
You can get the transcripts and you can do that or else, I represent you as an
attorney and I have to follow the law. That’s all there is to it.”
The court addressed defendant directly, stating
“if you’re not going to listen to him, then you have to tell me you want to go
pro se. If you want to call [private counsel], you can do what you want but the
point is whoever represents you is going to tell you that. That you have to listen
to them.”
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¶ 11 The case was continued to December 19, 2013, when Douglas Kramarsic,
another assistant public defender, appeared on behalf of defendant and informed
the court that he had spoken with defendant about some specifics regarding the
petition and provided defendant with case law and the sentencing transcripts.
¶ 12 On January 9, 2014, Cappellini appeared along with defendant to discuss the
State’s motion to dismiss. Cappellini stated that he had supplied defendant with a
copy of the sentencing transcripts. During the hearing, when defendant stated that
he needed more information, Cappellini explained that this was postconviction, not
a retrial. The court informed defendant that “I have to see whether you have
pleaded enough with evidence as required by law—then if you are given the right to
have a hearing you may need other things, but we need to take it one step at a time.”
¶ 13 At a February 20, 2014, status hearing, Kramarsic appeared on behalf of
defendant, who was in shackles because he had argued with Kramarsic. Kramarsic
informed the court that he had previously met with defendant to attempt to explain
changes he wanted to make to the postconviction petition. Kramarsic stated that
defendant became “very belligerent” and told Kramarsic “numerous times to go
f*** [him]self.” Defendant told Kramarsic that he was “fired” and defendant
wanted to hire his own attorney. Defendant then grabbed the papers out of
Kramarsic’s hands “in a physical and aggressive manner.” Kramarsic retreated
from the room as defendant continued to yell obscenities at him.
¶ 14 Kramarsic stated to the circuit court that “it’s clear that [defendant] does not
wish to continue with me as his attorney, and I’ll leave it to the Court’s discretion as
to what should take place next.” The court asked defendant to respond, and
defendant stated that Kramarsic “tried to treat me like I’m stupid or
something—and then I’m trying to show him something and he’s ignoring it and
I’m yelling at him, I don’t think he’s trying to help me, he’s trying to hurt me.”
¶ 15 The circuit court explained to defendant that he had been appointed several
public defenders, that there was no one left to appoint, and that defendant did not
have a choice as to which attorney he was assigned from the public defender’s
office. Defendant stated that he wanted to hire his own attorney, and the court
granted him a 60-day continuance. The court then addressed defendant’s request,
stating “I can see there were developing problems even before today. I can’t give
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you another Public Defender but I can certainly let you hire somebody.” The
following colloquy ensued:
“MR. KRAMARSIC: Your Honor, I guess at this point it may leave me in
limbo. I guess if you’re still leaving me as the attorney of record, there are
issues that I would want to correct with this but [defendant] certainly does not
wish to hear anything that I have to say.
***
THE COURT: Is there anything that you want to put on the record today?
MR. KRAMARSIC: I mean, I would just like to say that I have reviewed
the records, I have reviewed everything involved in this case. I haven’t filed my
certification regarding that, which I was going to file with my amended
petition, but I can’t even get to the point of being able to do that.”
¶ 16 The court informed Kramarsic that he would not be required to do anything
until they learned whether defendant would be able to retain private counsel. The
court then said: “And so I am reserving my ruling on you filing anything, nor are
you under any obligation to do that until I see what [defendant] can find in 60 days,
so let’s do that for you.”
¶ 17 On April 24, 2014, at a status hearing, Kramarsic advised the court that he
attempted to discuss with defendant whether defendant had been able to hire
private counsel and “it [was] one hundred percent absolutely clear from [the]
conversations that [defendant] want[ed] nothing to do with [Kramarsic] in this
case.” Defendant stated that he was trying to find an attorney but had not hired one.
The court scheduled a hearing on the State’s motion to dismiss the petition for June
12, 2014. The court explained to Kramarsic, “I’m aware he won’t talk to you. And
so you won’t be representing him at any hearing at this point.” The court deferred
any action, and the following colloquy occurred:
“THE COURT: All right. So we’ll do that. And if [defendant] doesn’t have
a lawyer [at the hearing on the motion to dismiss], I’ll have to address him as to
his options.
But you put on the record he doesn’t want to talk to you. That’s fine.
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I’m not dismissing you completely, I’m leaving options open. But I won’t
expect you to be prepared for a hearing is what I am saying.
MR. KRAMARSIC: Okay.
THE COURT: You’re still in the case.”
¶ 18 At the hearing on June 12, 2014, defendant appeared without private counsel.
The following discussion took place:
“THE COURT: Now, [defendant], it’s my understanding that you still want
to proceed pro se, to represent yourself?
DEFENDANT: I’m going to have to, Your Honor, yes, ma’am.
THE COURT: Why are you going to have to?
DEFENDANT: I asked [Kramarsic] three times back there are you going to
help me and he gave me no answer.
THE COURT: Now, when you say, is he going to help you, what do you
mean by that? I need to investigate this issue.
DEFENDANT: That’s what I’m saying, is he going to help me try to get
through this post-conviction?
THE COURT: Well, he has so far, has he not? Mr. Kramarsic?
DEFENDANT: He hasn’t filed no motion or nothing.
THE COURT: You need to address this issue because when there’s a
complaint, you know, we need to have an answer here.
***
It’s not just—[defendant’s] complaining not just that he wants to represent
himself but he says that you said you’re not going to help him so why don’t you
respond.
MR. KRAMARSIC: Your Honor, I have. This is the third time I’ve
attempted to talk to [defendant] about this case. First time that I met with him he
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did not agree with the—with my ideas with the case and the way I wanted to
proceed and I told him I didn’t believe the issues here—that we had strong
issues, and he wanted to proceed with what he thought was the right way to do it
and not even listen to the way I wanted to proceed with the case. That was the
first time.
The second time I met with him again I tried again to explain what I felt
about the case. Again, he disagreed with me. That was the time that he lunged at
me and swore at me and told me to leave, and certainly I could tell at that point
that obviously he does not want me to help him at all. He just doesn’t agree with
my theory of the case and clearly does not want me involved with it and I feel
like I’m stuck here because I don’t know what else to do. [Defendant has] told
me numerous times he does not want me to do anything.
THE COURT: All right, well, I find knowing [defendant], and considering
the issues involved here, that it appears you do not want to listen to Mr.
Kramarsic.
Now the question—I will allow—you can’t choose what Public Defender
you’re going to have so I’ll allow the Public Defender to withdraw.
Now, the question becomes, [defendant], the only right to a lawyer that you
have—I feel you are capable of representing yourself if that is your desire, is
whether you want to hire private counsel or you want to represent yourself
pro se.
That’s the first question I have of you. What is your answer?
DEFENDANT: I was trying to hire private counsel, Your Honor, you know
what I’m saying, but finally no funding. ***
THE COURT: *** do you want to represent yourself?
DEFENDANT: No, I can’t represent myself.
THE COURT: Well, you’re going to have to.
DEFENDANT: All right, let’s go.
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THE COURT: When you say you can’t—are you telling me that you’re not
going to be able to hire private counsel?
DEFENDANT: I’m waiting on my parents.”
¶ 19 The court asked defendant if he was ready to proceed on the State’s motion to
dismiss, and defendant replied, “I guess so.” The court clarified, asking defendant
to answer “yes” or “no,” and defendant stated “I got no attorney. I guess not.” The
court permitted defendant to file additional pleadings, which contained an
argument that the State erred in charging him with an offense he committed while
out on bond under the original criminal case number. The court granted defendant a
35-day final continuance. The court informed defendant that at the next hearing he
should be prepared “either on [his] own or with a lawyer” to proceed on the State’s
motion to dismiss.
¶ 20 On July 17, 2014, a hearing was held on the State’s motion to dismiss.
Defendant appeared pro se. The circuit court granted the motion in part but ordered
that an evidentiary hearing be held on the issue of ineffective assistance of plea
counsel. At the conclusion of the proceedings, the judge addressed defendant,
asking, “You still want to represent yourself, obviously?” Defendant responded,
“Pretty much.” The court inquired, “Is that true?” and defendant answered “Yes,
ma’am. But I need to go back to my prison and do the research.” Defendant asked
for a far-off court date, and the court granted his request for “at least 60 days.” The
court also informed defendant that at the evidentiary hearing he could question plea
counsel, testify himself, and bring “any law” that he had.
¶ 21 On October 24, 2014, an evidentiary hearing was held, and defendant appeared
pro se. Defendant’s plea counsel was the only witness. Following argument by the
parties, the court denied defendant’s postconviction petition.
¶ 22 On appeal, defendant argued that the circuit court erred in forcing him to
represent himself and that the circuit court applied an incorrect standard of proof at
the evidentiary hearing. A majority of the appellate court agreed that the court erred
in requiring defendant to proceed pro se. 2017 IL App (3d) 140793, ¶ 23.
¶ 23 The appellate court majority, citing People v. Ames, 2012 IL App (4th) 110513,
concluded that the circuit court erred by permitting postconviction counsel to
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withdraw before warning the defendant that he stood to lose his right to appointed
counsel if his behavior continued. In the absence of such a warning, defendant’s
repeated failure to cooperate with his appointed counsel could not be construed as a
waiver. 2017 IL App (3d) 140793, ¶ 21.
¶ 24 The majority also declined to find that defendant forfeited his right to counsel,
stating that defendant’s “misconduct was [not] so severe that no warning was
necessary or foreseeable” and that, “[w]hile the trial court has discretion to
determine whether the severity of a defendant’s misconduct requires forfeiture,
under these facts, a warning would have been the appropriate remedy.” Id. ¶ 25.
¶ 25 The appellate majority rejected the remaining issue raised by defendant and
found that, because it was remanding on other grounds, it need not determine
whether the trial court applied an incorrect standard of proof at the evidentiary
hearing. Id. ¶ 1. The appellate court reversed the circuit court’s denial of
defendant’s postconviction petition and remanded for further proceedings. Id. ¶ 28.
¶ 26 The dissenting justice stated that “defendant was well aware that his refusal to
work with the public defender would leave him with two choices: hire private
counsel or proceed pro se.” Id. ¶ 32 (Schmidt, J., dissenting). The dissenting justice
also found that
“as early as February 20, 2014, the trial court was putting defendant on notice
that if he could not get along with the public defender, then he would either
have to hire private counsel or represent himself. If it was not clear then, it
certainly should have been clear on April 24, 2014. It is hard to understand how
anyone in the courtroom that day could not understand that the options were to
get along and cooperate with the public defender, hire your own counsel, or
proceed pro se.” Id. ¶ 35.
¶ 27 The State appeals to this court. Additional pertinent facts will be discussed in
the context of the issues raised on appeal.
¶ 28 II. ANALYSIS
¶ 29 Before this court, the State contends that defendant waived his right to
postconviction counsel due to his conduct. The State also argues, in the alternative,
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that defendant forfeited his right to counsel due to his egregious misconduct.
Defendant responds that the court failed to warn him that his continued conduct
would result in waiver of his right to counsel. Defendant also contends that his
alleged misconduct did not rise to the level that would cause forfeiture.
¶ 30 We review the legal question of whether defendant was deprived of his right to
counsel de novo. People v. Hale, 2013 IL 113140, ¶¶ 15-16.
¶ 31 Initially, we summarize the familiar procedural framework of the Act (725
ILCS 5/122-1 et seq. (West 2012)). The Act provides a method for an individual,
subject to a criminal sentence, to challenge a conviction by alleging it was the result
of a substantial denial of federal or state constitutional rights or both. People v.
Cotto, 2016 IL 119006, ¶ 26. The Act includes a three-stage process for
adjudicating petitions. Id.; People v. Hommerson, 2014 IL 115638, ¶ 7. At the first
stage, the circuit court determines whether the petition is “frivolous or is patently
without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). If the petition is not
dismissed at first-stage proceedings, it advances to the second stage. Hommerson,
2014 IL 115638, ¶ 7.
¶ 32 At the second stage, the court may appoint counsel to represent an indigent
defendant, and counsel may amend the petition if necessary. 725 ILCS 5/122-4
(West 2012). The State may then file a motion to dismiss the petition. Id. § 122-5. If
the State does not file a motion to dismiss or if the court denies the State’s motion,
the petition will proceed to the third stage and the court will conduct an evidentiary
hearing on the merits of the petition. Hommerson, 2014 IL 115638, ¶ 8.
¶ 33 The Act affords indigent defendants the right to counsel beyond the first stage
of proceedings. 725 ILCS 5/122-4 (West 2012). In fact, it has been determined that
the Act cannot perform its function unless the attorney appointed to represent an
indigent petitioner ascertains the basis of his complaints, shapes those complaints
into appropriate legal form, and presents them to the court. People v. Suarez, 224
Ill. 2d 37, 46 (2007) (citing People v. Slaughter, 39 Ill. 2d 278, 285 (1968)). Thus,
the intent of the Act is that, in the second and third stage of postconviction
proceedings, defendants are afforded the advantages of representation. See People
v. Pendleton, 223 Ill. 2d 458, 472-73 (2006).
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¶ 34 On the other hand, a defendant has a right to proceed pro se in postconviction
proceedings. 725 ILCS 5/122-4 (West 2012). However, a defendant must
“knowingly and intelligently relinquish his right to counsel,” and his waiver “must
be clear and unequivocal, not ambiguous.” People v. Baez, 241 Ill. 2d 44, 115-16
(2011).
¶ 35 Relevant to the controversy in this case, it is settled that there is no
constitutional right to assistance of counsel during postconviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Johnson v. Avery, 393 U.S. 483,
487-88 (1969); People v. Hardin, 217 Ill. 2d 289, 299 (2005). Accordingly, this
court has explained that “[t]he right to assistance of counsel in postconviction
proceedings is a matter of legislative grace, and a defendant is guaranteed only the
level of assistance provided by the Post-Conviction Hearing Act.” Hardin, 217 Ill.
2d at 299. This court has determined that the Act provides a postconviction
petitioner with “reasonable” assistance. Id.; People v. Owens, 139 Ill. 2d 351,
358-59 (1990).
¶ 36 However, a defendant may relinquish his right to counsel in three ways: waiver,
forfeiture, and waiver by conduct. Ames, 2012 IL App (4th) 110513, ¶ 26; United
States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995). Taking each in turn, a
waiver is an intentional relinquishment or abandonment of a known right or
privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); People v. Blair, 215 Ill. 2d
427, 444 n.2 (2005); Kidd, 178 Ill. 2d at 104.
¶ 37 Regarding forfeiture, our appellate court has held that a defendant may forfeit
his right to counsel. See Ames, 2012 IL App (4th) 110513. Many state and federal
courts have held likewise. See State v. Nisbet, 2016 ME 36, ¶¶ 34-39, 134 A.3d
840; State v. Holmes, 302 S.W.3d 831, 840 (Tenn. 2010); Commonwealth v.
Means, 907 N.E.2d 646, 659-60 (Mass. 2009); State v. Hampton, 92 P.3d 871,
874-75 (Ariz. 2004); Goldberg, 67 F.3d at 1101-02; Gilchrist v. O’Keefe, 260 F.3d
87, 100 (2d Cir. 2001). Forfeiture is defined as the failure to make the timely
assertion of the right. Blair, 215 Ill. 2d at 444 n.2. Forfeiture results in the loss of a
right regardless of the defendant’s knowledge thereof and irrespective of whether
the defendant intended to relinquish the right. Id.; Goldberg, 67 F.3d at 1100.
¶ 38 Waiver by conduct combines elements of waiver and forfeiture. Ames, 2012 IL
App (4th) 110513, ¶ 34. A defendant can waive his right to counsel through
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conduct as well as words. United States v. Oreye, 263 F.3d 669, 670 (7th Cir.
2001). Once a defendant has been warned that he will lose his right to counsel if he
engages in dilatory tactics, any misconduct thereafter may be treated as an implied
request to proceed pro se and, thus, as a waiver by conduct of the right to counsel.
Goldberg, 67 F.3d at 1100. Waiver of counsel can be implied from the
circumstances of the case. See State v. Weiss, 637 N.E.2d 47, 50 (Ohio Ct. App.
1993). Waiver of the right to counsel must depend, in each case, upon the particular
circumstances of that case. People v. Lego, 168 Ill. 2d 561, 565 (1995).
¶ 39 A. Defendant’s Waiver by Conduct
¶ 40 On appeal, the State argues that defendant was warned that he stood to lose his
right to counsel if his conduct continued. The State maintains that on November 21,
2013, defendant was made aware that he would have to work with the public
defender, hire private counsel, or represent himself. According to the State, the
record thus establishes that defendant was warned that if he could not get along
with appointed counsel, he had two other choices. The State contends that
defendant’s waiver by conduct may be established by inference from the facts. The
State maintains that defendant’s refusal to get along with appointed counsel and
repeated failure to retain private counsel demonstrated waiver by conduct of his
right to counsel. Defendant responds that the circuit court failed to warn him that he
could lose his right to counsel through his continued conduct. We reject
defendant’s contention that no warning was given.
¶ 41 Waivers by conduct are not “waiver” cases in the true sense of the word. In
many situations there will be defendants who engage in dilatory conduct but who
vehemently object to being forced to proceed pro se. These defendants cannot truly
be said to be “waiving” their rights because although they are voluntarily engaging
in misconduct knowing what they stand to lose, they are not affirmatively
requesting to proceed pro se. Goldberg, 67 F.3d at 1101; see United States v.
Fazzini, 871 F.2d 635, 642 (7th Cir. 1989) (defendant who was warned about
consequences of dilatory conduct insisted he was not waiving his right to counsel).
¶ 42 Waiver by conduct requires that a defendant receive a warning about the
consequences of his conduct, including the risks of proceeding pro se. See Illinois
v. Allen, 397 U.S. 337, 343 (1970); Goldberg, 67 F.3d at 1101. The key to waiver
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by conduct is misconduct occurring after an express warning has been given to the
defendant about the defendant’s behavior and the consequences of proceeding
without counsel. Goldberg, 67 F.3d at 1101; Means, 907 N.E.2d at 657-58. A
defendant who engages in dilatory conduct after having been warned that such
conduct will be treated as a request to proceed pro se cannot complain that a court
is depriving him of his right to counsel. Goldberg, 67 F.3d 1101.
¶ 43 The State contends that, in November 2013 when the circuit court informed
defendant of his three choices and the consequences thereof, that was all the
warning that defendant was due. According to the State, defendant, through his
conduct, over the following several months, rejected two appointed attorneys and
failed to hire private counsel and thus chose to proceed pro se.
¶ 44 The State argues that, similarly, in United States v. Pittman, 816 F.3d 419, 422
(6th Cir. 2016), although dealing with the constitutional right to counsel at trial,
when the defendant’s fourth attorney moved to withdraw, the court denied that
request and admonished the defendant that, as an indigent defendant, he had a right
to appointed counsel but had no right to choose which attorney would represent
him. The court explained that
“[t]he stakes at that point were clear: [defendant] could (1) maintain his current
appointed counsel, (2) hire an attorney at his own expense, or (3) represent
himself. When he continued to express dissatisfaction with his lawyers and
declined to hire someone new, the district court reasonably concluded that only
the third option remained: proceeding pro se.” Id. at 425-26.
See also Oreye, 263 F.3d at 670 (holding that, if you are given several options and
turn down all but one, you have selected the one you did not turn down).
¶ 45 Here, the record reflects that, as early as November 2013, defendant was
expressly warned that, if he refused to cooperate with appointed counsel, then he
had to inform the court whether he wanted to retain counsel or proceed pro se. On
February, 20, 2014, the court again advised defendant that, if “he could not get
along with the public defender, then he would either have to hire private counsel or
represent himself.” Further, appointed counsel informed the court that defendant
had “fired” him. On April 24, 2014, the court recognized that defendant wanted
nothing to do with appointed counsel and that defendant continued to request time
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to hire private counsel. Moreover, at the June 2014 hearing, the court instructed
defendant that he could not choose which public defender he was going to have and
allowed the public defender to withdraw. The question then became whether
defendant wanted to hire private counsel or represent himself. The court again
warned defendant that he had to be ready with private counsel or appear pro se at
the hearing set for July 2014. Thus, we find that defendant received sufficient
warning that he could lose his right to counsel through his continued conduct and
then would be required to represent himself.
¶ 46 Defendant argues that he never said he wanted to represent himself and instead
told the court he wanted counsel’s help; thus, he never waived his right to counsel.
But the absence of an explicit request does not prove the absence of an implied
decision. “ ‘[I]f a person is offered a choice between three things’—an appointed
attorney, hired counsel, or self-representation—‘and says “no” to the first and the
second, he’s chosen the third even if he stands mute when asked whether the third is
indeed his choice.’ ” Pittman, 816 F.3d at 426 (quoting Oreye, 263 F.3d at 670-71).
¶ 47 In the case at bar, defendant was offered a choice of proceeding with appointed
counsel, retaining counsel, or proceeding pro se on several occasions. Defendant’s
failure to work with appointed counsel, in November 2013 and from February to
June 2014, and his failure to procure private counsel, from February to June 2014,
manifested his choice to proceed pro se. Moreover, defendant confirmed that
choice at the conclusion of the hearing on the motion to dismiss in July 2014, when
he, albeit reluctantly, responded affirmatively to the court’s question of whether he
still wanted to represent himself at the evidentiary hearing.
¶ 48 B. Knowing and Intelligent Waiver
¶ 49 The State also argues that defendant’s waiver by conduct was knowing and
intelligent because he was sufficiently aware of his right to counsel and the
usefulness of counsel in postconviction proceedings. According to the State, this
was evidenced by the facts that defendant had been informed that appointed
counsel would acquire his sentencing hearing transcripts and both appointed
attorneys had discussed with defendant amendments to his pro se petition. The
State further argues that defendant had been fully advised of the three options
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available to him and was warned of the consequences of his continued conduct;
thus there was a knowing and intelligent choice of waiver of counsel.
¶ 50 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. Baez, 241 Ill. 2d at
115-16; People v. Redd, 173 Ill. 2d 1, 21 (1996) (the defendant’s waiver of counsel
must be voluntarily, knowingly, and understandingly made); People v. Reid, 2014
IL App (3d) 130296, ¶ 11 (the requirement that a waiver be knowing and voluntary
applies to both constitutional and statutory rights); People v. Gray, 2013 IL App
(1st) 101064, ¶ 23 (in postconviction proceedings, a defendant must knowingly and
intelligently relinquish his right to counsel); People v. Vernón, 396 Ill. App. 3d 145,
152 (2009); Commonwealth v. Stossel, 2011 PA Super, ¶ 5; 725 ILCS 5/122-4
(West 2012).
¶ 51 The requirement of a knowing and intelligent choice calls for nothing less than
a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Patterson v. Illinois, 487 U.S. 285, 292
(1988); Lego, 168 Ill. 2d at 564-65. The determination of whether there has been an
intelligent waiver of the right to counsel must depend upon the particular facts and
circumstances of each case, including the background, experience, and conduct of
the accused. Kidd, 178 Ill. 2d at 104-05. The entire record should be considered in
determining whether the waiver was knowingly and understandingly made. Redd,
173 Ill. 2d at 21.
¶ 52 Further, it is not necessary that a defendant verbally waive his right to counsel;
so long as the circuit court has given the defendant sufficient opportunity to have
the assistance of appointed counsel, defendant’s actions that have the effect of
depriving defendant of appointed counsel will establish a knowing and intentional
choice. Fazzini, 871 F.2d at 642 (citing Wilks v. Israel, 627 F.2d 32, 35-36 (7th Cir.
1980)); United States v. Moore, 706 F.2d 538, 539-40 (5th Cir. 1983).
¶ 53 Indeed, this case involves facts that closely parallel the facts in Fazzini. The
judge in this case, like the district court judge in Fazzini, faced a defendant who
refused to cooperate with numerous appointed attorneys, who was warned of the
consequences that his failure to cooperate would have, and who insisted, despite his
conduct, that he was not waiving his right to appointed counsel. We agree with the
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Fifth and Seventh Circuits that, given this set of circumstances, the defendant has
knowingly and intelligently waived his right to appointed counsel. Moore, 706 F.2d
at 540; Fazzini, 871 F.2d at 642; see United States v. Alden, 527 F.3d 653, 660 (7th
Cir. 2008) (finding that, as long as the district court has given a defendant sufficient
opportunity to retain the assistance of appointed counsel, defendant’s actions that
have the effect of depriving himself of appointed counsel will establish a knowing
and intentional choice); United States v. Irorere, 228 F.3d 816, 828 (7th Cir. 2000)
(holding that, where a defendant’s lack of counsel was caused by his own refusal to
cooperate with the counsel appointed for him and where the defendant was made
aware of the possible consequences of his refusal to cooperate, the district court’s
decision to not appoint new counsel for the defendant does not constitute an abuse
of discretion); United States v. Harris, 2 F.3d 1452, 1455 (7th Cir. 1993) (finding a
voluntary and informed waiver where the defendant refused to cooperate with his
lawyers and was told that no substitute counsel would be appointed for him).
¶ 54 Notably, the record establishes that defendant was repeatedly informed that
Kramarsic, his second appointed counsel, would be his last and that, if he could not
get along with appointed counsel, his choice was to hire an attorney or proceed
pro se. The court stressed to defendant the importance of cooperating with the
efforts of counsel to represent his interests, and the court expressly and repeatedly
made clear to defendant that it would not appoint counsel to succeed Kramarsic.
This admonishment served to warn defendant that if he wanted continuing legal
representation he needed to work productively with appointed counsel or retain
counsel. Defendant did neither.
¶ 55 At the February 2014, hearing, when defendant sought an extension of time to
retain counsel after firing appointed counsel and acting aggressively toward him,
the court twice admonished defendant that it could not give him another public
defender but could let him hire somebody. The court then granted defendant a
60-day continuance to hire private counsel. In April 2014, when defendant made it
clear that he did not want to work with appointed counsel, the court granted
defendant more time to retain counsel. At the June 2014 hearing, after allowing
appointed counsel to withdraw and granting a 35-day continuance, the court
informed defendant to either have retained counsel or be prepared to represent
himself in the future. Thus, the circuit court took extraordinary pains to
accommodate defendant’s desire to retain private counsel.
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¶ 56 Although defendant argues he was not apprised by the court of the advantages
of representation of counsel and of the dangers and pitfalls of representing himself,
he has not cited any law in support of the contention that such admonishments are
required before a defendant waives counsel by conduct in postconviction
proceedings. Further, his own statements indicating his reluctance to represent
himself show his awareness of the advantages of representation. When left with the
option of hiring an attorney or proceeding pro se, defendant responded, “I can’t
represent myself.” Further, when the court asked defendant whether he was ready
to proceed on the State’s motion to dismiss, he answered, “I got no attorney. I guess
not.”
¶ 57 Moreover, when both appointed attorneys informed defendant of how his
petition could and should be amended, he rejected their representation and advice.
Cappellini explained to the court in November 2013 that, “if the defendant is not
going to listen to anything I tell him when I try to explain the law and he’s going to
tell me I’m wrong[,] I said, you can go pro se. You can get the transcripts and you
can do that or else, I represent you as an attorney and I have to follow the law.”
Further, Kramarsic informed the court in February 2014 that it was clear that
defendant did not wish to continue with him as counsel and it was certain that
defendant did not wish to hear anything that Kramarsic had to say. Defendant
responded, “I don’t think he’s trying to help me.” In April 2014, Kramarsic advised
the court that it was absolutely clear from conversations with defendant that he
wanted nothing to do with Kramarsic. In June 2014, Kramarsic informed the court
that defendant disagreed with his theory of the case and did not want Kramarsic
involved with the case.
¶ 58 Consequently, when defendant wilfully persisted in his continued conduct, he
knowingly and intelligently waived his right to counsel. See Iowa v. Tovar, 541
U.S. 77, 92 (2004) (citing United States v. Ruiz, 536 U.S. 622, 629 (2002) (holding
that the law ordinarily considers a waiver knowing, intelligent, and sufficiently
aware if the defendant fully understands the nature of the right and how it would
likely apply in general in the circumstances—even though the defendant may not
know the specific detailed consequences of invoking it)).
¶ 59 In sum, defendant’s inability to resolve conflicts with his court-appointed
attorneys or to retain private counsel, which caused the case to be continued several
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times, made it clear that defendant was not entitled to another continuance or
attorney. Only when defendant’s dilatory efforts served to thwart the
administration of justice by further delaying the hearing did the court require
defendant to represent himself. People v. Myles, 86 Ill. 2d 260, 270 (1981). We find
that defendant’s continued refusal to cooperate with his court-appointed attorneys
and failure to hire retained counsel constituted a knowing and intelligent election to
proceed pro se. As previously noted, defendant said “no” to the public defender by
refusing to cooperate with and rejecting the assistance of two appointed attorneys,
between November 2013 and June 2014. Defendant also said “no” to retaining
counsel when he failed to do so from February 2014 to July 2014. We also find, by
his conduct, defendant chose to proceed pro se. See Oreye, 263 F.3d at 670-71
(holding if a person is offered a choice between three things and says no to the first
and second, he has chosen the third); Alden, 527 F.3d at 660-61 (same).
¶ 60 Accordingly, we conclude that defendant was expressly warned that his
continued conduct would result in waiver of his statutory right to reasonable
assistance of counsel and would require him to proceed pro se. See Myles, 86 Ill. 2d
at 268-71 (holding that the granting of a continuance for the substitution of counsel,
necessarily depends upon the particular facts and circumstances surrounding that
request). Therefore, the circuit court did not err, in this case, by requiring defendant
to represent himself. As a result, we reverse the judgment of the appellate court.
Consequently, we need not address the State’s alternative argument that defendant
forfeited his right to counsel through his egregious misconduct.
¶ 61 Although we decline to impose specific requirements on circuit courts faced
with difficult defendants in postconviction proceedings, we instruct them to warn
defendants of the consequences of their repeated refusals to work with appointed
counsel and the difficulties of self-representation before requiring them to proceed
pro se. See, e.g., Baez, 241 Ill. 2d at 65-68, 113-18; accord 725 ILCS 5/122-4 (West
2012).
¶ 62 Finally, before the appellate court, defendant additionally contended that the
circuit court applied an incorrect standard of proof at the evidentiary hearing.
However, the appellate court did not address this issue because the court considered
its decision on the waiver issue to be dispositive. 2017 IL App (3d) 140793, ¶ 1.
Therefore, we remand the cause to the appellate court for disposition of defendant’s
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remaining contention. See People v. Givens, 237 Ill. 2d 311, 339 (2010).
¶ 63 III. CONCLUSION
¶ 64 For the foregoing reasons, the judgment of the appellate court is reversed, and
the cause is remanded to the appellate court to consider defendant’s additional
contention.
¶ 65 Appellate court judgment reversed.
¶ 66 Cause remanded.
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