People v. Maxey

2018 IL App (1st) 130698
No. 1-13-0698
Opinion filed September 13, 2018
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 07414-01
)
LAMARR MAXEY, ) Honorable
) Noreen V. Love,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justice Howse concurred in the judgment and opinion.
Justice Ellis dissented, with opinion.
OPINION
¶1 Pursuant to the supervisory order issued by the Illinois Supreme Court in this case on
November 22, 2017, we vacated our previous opinion and reconsider our decision in light of
People v. Wright, 2017 IL 119561.
¶2 Following a bench trial, defendant Lamarr Maxey was found guilty of residential
burglary and aggravated fleeing or attempting to elude a peace officer. The trial court
subsequently sentenced defendant to concurrent terms of 20 years for the residential burglary
conviction and 3 years for the aggravated fleeing conviction.
¶3 Defendant appeals, arguing that: (1) defendant’s waiver of counsel was invalid because
the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 401(a)
No. 1-13-0698
(eff. July 1, 1984); (2) during the suppression hearing, the trial court erred in allowing the State
to question defendant on irrelevant matters and in excluding relevant evidence; (3) the trial court
did not obtain a knowing and voluntary jury waiver; (4) the State failed to prove the charge of
aggravated fleeing or attempting to elude a peace officer; and (5) the fines and fees order should
be reduced by $24 due to improperly imposed fines and full credit for time in custody awaiting
trial.
¶4 On April 18, 2011, defendant, along with codefendant Shadeed Love, was arrested and
charged with residential burglary of Robert Fjeldheim and his residence at 333 Jackson
Boulevard in Hillside, Illinois. Defendant was also charged with aggravated fleeing or attempting
to elude a peace officer. 1
¶5 Defendant first appeared before Judge Kristyna Ryan on April 19, 2011, and assistant
public defender Thomas Tucker was appointed. The court found probable cause to detain and set
defendant’s bond at $400,000. On April 22, 2011, defendant appeared before Judge Gilbert
Grossi, and was represented by assistant public defender Michael Halloran. Defendant indicated
to the court that he wished to represent himself. The following colloquy then took place.
“DEFENDANT: I’m pro se. The Public Defender’s office is not
representing me.
THE COURT: Who said that?
DEFENDANT: I informed him already. At this time, I would like
to ask for all, any and all —
THE COURT: Let’s slow down here. You’re getting ahead of
yourself. Did you go to law school?
DEFENDANT: I’m very familiar with the law, but I don’t want –
1
Defendant was later charged by indictment with attempted first degree murder and attempted armed robbery.
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No. 1-13-0698
I’m exercising my constitutional right. I don’t want the Public
Defender’s Office representing me.
THE COURT: Have you been charged with a felony before?
DEFENDANT: Yes, I have.
THE COURT: Well, this is residential burglary, which means you
can to go the penitentiary between four and 15 years.
DEFENDANT: Right. Being advised of that, I’m–I would still like
to exercise my constitutional rights.
THE COURT: Slow down. We are not done yet. Have you ever
represented yourself before?
DEFENDANT: Yes, I have.
THE COURT: And what happened to the case?
DEFENDANT: I had a split verdict.
THE COURT: What was the split verdict?
DEFENDANT: Not guilty of armed robbery and guilty of robbery.
And I recently represented myself in Illinois in front of the judge in
702 in the criminal courts building on a motion.
THE COURT: You understand—you have a right to represent
yourself. There’s no question about that. You understand if you
represent yourself, I’m going to hold you to the same standard as I
would a lawyer?
DEFENDANT: Yes, I do.
THE COURT: That you’re not going to be allowed to have a
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No. 1-13-0698
public defender stand by and help you in any fashion whatsoever.
DEFENDANT: Yes, I do, [Y]our Honor.
THE COURT: Okay. Then you can represent yourself.”
¶6 After the trial court allowed defendant to appear pro se, defendant then made the
following oral motion.
“DEFENDANT: Your [H]onor, at this time, I would be requesting
that any 911 calls be saved, any police radio transmissions and
apprehension and stopping of my van, I would be asking that all
those police radio transmissions and any 911 calls made in regards
to a burglary at 33 Jackson [sic]—
THE COURT: Were there any such calls?
POLICE OFFICER: From the victim, [Y]our Honor.
THE COURT: I’ll sign an order preserving—
DEFENDANT: And the radio transmissions too, [Y]our Honor.
THE COURT: Sure. I’ll sign an order to preserve anything
transmitted relating to this case.
DEFENDANT: The calls on the radio transmission.
THE COURT: Sure.”
¶7 The case was then set for the grand jury on May 6, 2011. At that court date, the trial court
informed defendant that he had been indicted by the grand jury. Defendant asked again about the
preservation of radio calls.
“DEFENDANT: Last time I requested [the] 911 [phone] calls and
the police radio transmissions. Can they be preserved?
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No. 1-13-0698
THE COURT: Did you file an order? Did you file an order
preserving them?
DEFENDANT: I asked you last time I was here.
THE COURT: No, I have to have a written order. An oral order is
on the record, but I have to have a written record if you want to get
it done. *** Let’s send a blank order for him back there to fill it
out.”
¶8 On May 27, 2011, defendant appeared pro se before Judge Noreen Love for an
arraignment. When the trial court asked who represented defendant, the following discussion
occurred.
“DEFENDANT: I’m pro se at this time, [Y]our Honor.
THE COURT: I’m sure a lawyer was appointed in –
DEFENDANT: No.
THE COURT: No lawyer was ever appointed?
DEFENDANT: No. I asked to be pro se since the inception of the
case.
THE COURT: So you’ve been intending to go pro se all along?
DEFENDANT: Yes, I have. I’ve been admonished three times by
Judge Grossi. I have a motion for discovery I would like to submit
at this time, and Judge Grossi—
THE COURT: Well, you’re putting the cart before the horse.
Because right now it’s time for you to be arraigned on this matter. I
cannot give you legal advice. You understand that?
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No. 1-13-0698
DEFENDANT: Yes, Ma’am, I do.
THE COURT: And you understand that you’re going to be held to
the same standard as any other attorney would when you’re
representing yourself?
DEFENDANT: Yes, I do.
THE COURT: You also understand that State’s Attorneys are
licensed, practicing attorneys. They have been to law school. They
have to pass the bar in order to be in the position that they’re in.
Do you understand that?
DEFENDANT: Yes, I do.
THE COURT: How much education have you had, sir?
DEFENDANT: Currently a junior at Chicago State University
upon my arrest.
THE COURT: Well, let me start first by asking you: Do you know
what an arraignment is?
DEFENDANT: Yes.
THE COURT: Do you understand the procedure for an
arraignment?
DEFENDANT: Yes, being notified of the official charges against
me.
THE COURT: All right. Okay. Then I’m going to ask you this
question: Do you want me to read to you the actual charges, or do
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No. 1-13-0698
you want to waive the reading of the charges; in other words, give
up the right to have the charges read to you?
DEFENDANT: I’m giving up the right to hearing them read.
THE COURT: Okay. How are you pleading, sir, to each and every
charge? You do know what you’re being charged with; is that
correct?
DEFENDANT: Yes, I do. Not guilty, and I’m also demanding
trial.”
¶9 The trial court then discussed with defendant whether he was ready for trial that day
without having any discovery. The court also admonished defendant that it would not appoint
standby counsel for defendant and he would be on his own. Defendant indicated that he
understood. Defendant then presented the discovery order signed by Judge Grossi. The court
then discussed with defendant whether the order was sent to the appropriate parties, including the
Hillside police department. On that date, defendant also filed a handwritten motion for discovery,
asking the state’s attorney to disclose and produce evidence which is essential and material to the
preparation of his defense, including but not limited to names and addresses of State witnesses.
¶ 10 At a June 2011 court date, the State tendered discovery to defendant in court, including
the case report, photos, and the grand jury transcript. Defendant also moved for a bond reduction.
At the next court date in July, defendant discussed his motion for bond reduction, indicating that
he would reduce it to writing. He also asked about access to a disk with discovery on it. At the
following court date in August, the State tendered additional discovery to defendant. The court
also informed defendant that this case would proceed before the 2008 case. Defendant withdrew
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No. 1-13-0698
his motion to reduce bond. Later that month, the court told defendant that the State was setting
up equipment to allow him to view a videotape in the courtroom.
¶ 11 At the following court date on September 7, defendant confirmed he viewed the video.
The parties also discussed defendant’s access to the law library. Defendant also indicated that he
would be filing two motions, a motion to quash and a motion to obtain custody of all video and
audiotapes to be played in the custody of all parties. Defendant discussed his concern that he
wanted a copy of the record, noting that if he had an attorney, then his attorney would have a
copy of the record. He did not want the State’s Attorney’s office holding his copy of the
videotape. The court informed defendant he was responsible for subpoenaing his witnesses for
the hearing on his motion to quash arrest and suppress evidence. Defendant indicated that he
intended to subpoena the arresting officers.
¶ 12 Also, on September 7, 2011, defendant filed a written pro se motion to quash arrest and
suppress evidence. Citing the United States Constitution and the Illinois Constitution, defendant
argued that his April 18, 2011, arrest was “made without authority of a search warrant” and
defendant’s conduct prior to his arrest was “such as would not reasonably be interpreted by the
arresting officers as constituting probable cause that [defendant] had committed or was about to
commit a crime.”
¶ 13 At the court date in October 2011, defendant stated that he had discussed subpoenas with
the public defender, and would now like to discuss a subpoena for the 911 operator. In
November 2011, the matter was set for hearing on defendant’s motion. Defendant stated that he
wanted to call the 911 operator. Defendant also discussed a stipulation of the 911 call, but was
advised by the trial court that he was premature in seeking to admit evidence. Defendant later
decided he needed to subpoena the arresting officers. At the court appearance in December 2011,
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No. 1-13-0698
defendant continued to discuss his intended witnesses for the suppression hearing. The witnesses
were not available that date. Defendant also informed the court that he was trying to ascertain
additional witnesses for the defense, but did not know their names.
¶ 14 On January 20, 2012, the trial court conducted a hearing on defendant’s suppression
motion. At the start of the hearing, the prosecutor noted that Detective Anthony Milazzo, one of
the police officers subpoenaed, was unable to appear due to a death in his family. The parties
proceeded with the hearing.
¶ 15 Defendant called Joseph Beckwith to testify. Beckwith testified that he was employed as
a dispatcher for the Village of Hillside. On April 18, 2011, Beckwith took a call about a burglary
from the victim, Robert Fjeldheim. The caller stated that he returned home and saw a red van
parked in his driveway. The caller described the offenders as two “bigger” black males. The men
fled in the red van driving westbound on Madison. Beckwith relayed this information over the
emergency radio. Based upon a preservation motion he made earlier, defendant had a recording
of the call played during the hearing. The recording did not mention a red van or a break-in.
Beckwith testified that the recording began in the middle of the call.
¶ 16 Beckwith stated that within seconds he received a dispatch from Chief Joseph Lukaszek
and Detective Milazzo that they observed a red Chevy van on Wolf Road. Beckwith said that
location was less than a mile from the location of the burglary. He remained in contact with the
officers as they pursued the van. The officers saw the van make an illegal U-turn on Wolf Road
to head northbound. The officers stopped the van after it turned onto Harrison Street, but then the
van drove away and a chase ensued. The van later crashed and the occupants tried to run, but
were taken into custody. Beckwith heard the officers state that proceeds from the burglary were
found in the van.
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No. 1-13-0698
¶ 17 Next, defendant called Chief Joseph Lukaszek to testify. Chief Lukaszek stated that he
was the chief of police for the Village of Hillside. At approximately 11:04 a.m. on April 18,
2011, Chief Lukaszek was driving north on Wolf Road in an unmarked car with Officer Milazzo
when he received a radio dispatch regarding a residential burglary. He was alerted to look for a
red Chevy van. Approximately 10 seconds later, Chief Lukaszek observed a red van traveling
south on Wolf Road. He testified that the red van then made an illegal U-turn to drive north on
Wolf Road. Chief Lukaszek stated that the weather was overcast, but it was not raining that day.
After he observed that illegal U-turn, Chief Lukaszek activated his vehicle’s emergency lights
and siren and pulled the van over after it had turned onto Harrison Street. He approached the van
on the driver side while Officer Milazzo approached the passenger side. Both officers were in
plain clothes, but had badges displayed. Chief Lukaszek could not recall if he had his weapon
out. He identified defendant as the driver and said that he asked defendant for his driver’s
license. Chief Lukaszek stated that defendant opened his door, looked at him, and then drove
away. He testified that defendant traveled eastbound on Harrison Street at a high rate of speed, in
excess of 85 miles per hour (mph) in a 35 mph zone. Defendant also ran three stop signs along
Harrison Street. The van turned into a mall parking lot, jumped a curb, drove down an
embankment, and eventually crashed into a tree. The van also spun and struck a dump truck. The
occupants of the vehicle then attempted to flee on foot. Defendant was stopped 300 to 400 feet
from the crash. Codefendant Love was stopped by officers from the Westchester police
department.
¶ 18 Chief Lukaszek testified that property of Fjeldheim was found in the van. Defendant was
transported to 333 Jackson Boulevard, where Fjeldheim identified defendant as the person who
burglarized his home and almost struck him with the vehicle.
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No. 1-13-0698
¶ 19 Defendant then testified, in narrative form. He stated that on April 18, 2011, he was
legally driving on Wolf Road. He saw a black Tahoe behind him with red and blue lights
flashing in the windshield. He said he did not hear a siren because it was raining and music was
playing in the van. He pulled over and two men exited the vehicle. Defendant testified that the
men were wearing street clothes and had weapons drawn. One of the men called to throw the
weapons out of the van. Defendant denied having any weapons. He said he rolled his window
down two inches and said he did not have any weapons. Defendant testified that he feared for his
life and drove to a “populated” mall. He said he parked at an angle in the parking lot, but the
Tahoe hit his van and he slid down the embankment. He stated that he did not know that Chief
Lukaszek and Detective Milazzo were police officers.
¶ 20 On cross-examination, defendant testified that he and Love were driving on Wolf Road to
look for a gas station. Defendant said he was unfamiliar with the area. The prosecutor asked
defendant where he was coming from at that time, and defendant objected on relevance grounds.
The trial court overruled defendant’s objection. Defendant answered that he did not remember
where he was coming from at that time. He also said he was going to a friend’s house and later
testified they were going to a bowling alley to plan a group event. The prosecutor asked
defendant about gas stations in the area of Wolf Road, but defendant did not recall seeing them.
Defendant was asked if he had any of the proceeds from the burglary in his van, and defendant
responded that he did not.
¶ 21 Following his testimony, defendant informed the trial court that he wanted to call
Detective Milazzo. The judge asked defendant if the detective’s testimony would be cumulative
since the detective was in the car with Chief Lukaszek. Defendant responded that he did not
know. The State argued that defendant lacked standing to contest the search of the van because
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No. 1-13-0698
he denied the presence of any evidence to suppress. Defendant rested and the State moved for a
directed finding. Defendant argued that the police fabricated the dispatch that identified him and
his vehicle and that there was no reason to stop his van. The trial court denied defendant’s
motion, finding that the police had sufficient probable cause to stop defendant after he made an
illegal U-turn. The court said that the police had additional probable cause after defendant fled.
In entering its findings, the court also noted defendant’s “selective memory” since he could not
recall gas stations or where he was coming from, but remembered there was a school nearby and
testified that he fled to a populated area.
¶ 22 At the conclusion of the suppression hearing, defendant requested counsel and the trial
court appointed a public defender who represented defendant from that point forward until the
conclusion of defendant’s trial and sentencing. At subsequent court dates, defendant’s counsel
indicated that he had requested transcripts of the suppression hearing, and once he received a
copy, he would review them with defendant.
¶ 23 In December 2012, the trial court conducted a joint bench trial for defendant and Love.
Prior to the trial, the court noted that defendant had signed a written jury waiver. The court then
confirmed that it was defendant’s signature. The court admonished defendant that he was giving
up his right to have a trial by jury and asked him if he knew what a jury trial was. Defendant
responded in the affirmative to both inquiries.
¶ 24 Robert Fjeldheim testified that on April 18, 2011, he lived at 333 North Jackson
Boulevard in Hillside. At approximately 11:04 a.m., he returned home from an errand. He
observed a red van in his driveway and initially thought it belonged to his nephew and his
friends. He parked his car and walked toward the van. He saw the van’s headlights flash and the
horn honked. He then heard a voice from inside the van say, “He is home.” His back door then
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No. 1-13-0698
flew open and he ducked. Fjeldheim then testified that Love grabbed his hood and tried to hit
him on the head with a flashlight. He wrestled with Love and knocked the flashlight loose.
¶ 25 Fjeldheim testified that he heard someone in the house say, “Get his keys. Get his keys.”
Then defendant came charging out of the back door. When defendant ran past, Love let go of
Fjeldheim and Fjeldheim ran toward the yard. The men got in the van and drove away, missing
Fjeldheim by inches. He saw the van drive through his neighbor’s yard, before traveling north on
Jackson Boulevard and turning west on Madison Street. Fjeldheim then called 911. He described
the assailants as two big black males.
¶ 26 When the police arrived at his house, Fjeldheim identified defendant and Love as the
perpetrators. He also identified property from his house, including jewelry, photos, and business
cards. Fjeldheim testified that he did not give permission to either man to enter his house or to
take anything from it.
¶ 27 Detective Anthony Milazzo testified that at approximately 11 a.m. on April 18, 2011, he
was a passenger in a vehicle driven by Chief Joseph Lukaszek. He received a call for a burglary
at 333 Jackson Boulevard which mentioned a red van leaving the scene. The officers were
driving near Wolf Road and Harrison Street, about half a mile from the burglary. Detective
Milazzo stated that they saw a red van turning from southbound Wolf Road onto eastbound
Harrison Street. The chief activated the police lights and effected a traffic stop of the van on
Harrison Street.
¶ 28 Detective Milazzo testified that as they got near the back of the vehicle, it accelerated
onto Harrison Street. The officers got back in the squad and pursued the van. He stated that the
vehicle continued eastbound on Harrison Street “at a high rate of speed” and ran two or three
stop signs. The vehicle then entered a mall parking lot. As it entered the parking lot, the vehicle
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No. 1-13-0698
went over a curb, hit a tree going down an embankment, and went down near the ramp of the
Interstate 290 expressway. Detective Milazzo identified defendant as the driver and Love as the
passenger in the van. Both men tried to flee on foot. He and Chief Lukaszek pursued defendant
and apprehended him. He later saw that Love had been apprehended by Westchester police.
¶ 29 After the men were apprehended, the officers searched the van. Detective Milazzo stated
that they recovered a pillowcase full of items in between the front seats. He testified that the
victim later identified those items as his property. The victim also identified both defendant and
Love as the burglars.
¶ 30 The State also introduced a certified document from the Illinois Secretary of State that
defendant was the owner of a 1999 Chevy van. The State rested. Both defendants moved for a
directed finding, which the trial court granted as to attempted first degree murder and attempted
armed robbery. Defendant rested without presenting any evidence. The trial court then found
defendant guilty of residential burglary and aggravated fleeing or attempting to elude a peace
officer.
¶ 31 At the subsequent sentencing hearing, the trial court found defendant eligible for a Class
X sentence based on his prior felonies. Defendant’s presentence investigation disclosed that
defendant had 11 prior felony convictions dating back to 1985, including unlawful restraint in
1985, burglary in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over
60 years old in 1994, aggravated battery in 1995, robbery in 1995, possession of contraband in
penal institution in 1995, and attempted aggravated robbery in 2013. The court sentenced
defendant to a term of 20 years for residential burglary and a concurrent term of 3 years for
aggravated fleeing. The sentence imposed in this case was to run consecutive to a sentence
imposed in an unrelated case.
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¶ 32 This appeal followed.
¶ 33 Defendant first argues that the trial court’s admonishments did not comply with Illinois
Supreme Court Rule 401(a) (eff. July 1, 1984) and therefore, his waiver of counsel was invalid.
The State maintains that the trial court substantially complied with Rule 401(a) when it
admonished defendant, and even if the trial court failed to properly admonish defendant, no
reversible error occurred.
¶ 34 Initially, the State contends that defendant’s claim of improper admonishments has been
forfeited because he failed to raise the issue in the trial court either by objection or in a posttrial
motion. Defendant concedes that he did not object in the trial court, but asks this court to review
this issue as plain error.
¶ 35 To preserve an issue for review, defendant must object both at trial and in a written
posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a
forfeiture as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Supreme Court
Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a)
(eff. Jan. 1, 1967). The plain error rule “allows a reviewing court to consider unpreserved error
when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of
the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People
v. Herron, 215 Ill. 2d 167, 186-87 (2005)). However, the plain error rule “is not ‘a general saving
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No. 1-13-0698
clause preserving for review all errors affecting substantial rights whether or not they have been
brought to the attention of the trial court.’ ” Herron, 215 Ill. 2d at 177 (quoting People v. Precup,
73 Ill. 2d 7, 16 (1978)). Rather, the supreme court has held that the plain error rule is a narrow
and limited exception to the general rules of forfeiture. Id.
¶ 36 Defendant carries the burden of persuasion under both prongs of the plain error rule.
People v. Lewis, 234 Ill. 2d 32, 43 (2009). Defendant asserts that an invalid waiver of counsel
falls under the second prong of plain error. However, “[t]he first step of plain-error review is to
determine whether any error occurred.” Id. We will review defendant’s claim to determine if
there was any error before considering it under plain error.
¶ 37 “It is well established that the sixth amendment to the United States Constitution
guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the
correlative right to proceed without counsel.” People v. Haynes, 174 Ill. 2d 204, 235 (1996)
(citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). “The right of self-representation is
‘as basic and fundamental as [the] right to be represented by counsel.’ ” Id. (quoting People v.
Nelson, 47 Ill. 2d 570, 574 (1971)). A defendant has the constitutional right to self-
representation. Faretta, 422 U.S. at 834. “Although a court may consider the decision unwise, a
defendant’s knowing and intelligent election to represent himself must be honored out of ‘ “that
respect for the individual which is the lifeblood of the law.” ’ ” Haynes, 174 Ill. 2d at 235
(quoting People v. Silagy, 101 Ill. 2d 147, 180 (1984), quoting Illinois v. Allen, 397 U.S. 337,
350-51 (1970) (Brennan, J., concurring)); see also People v. Kidd, 178 Ill. 2d 92, 104 (1997)
(citing People v. Lego, 168 Ill. 2d 561, 564 (1995)).
¶ 38 “When an accused manages his own defense, he relinquishes, as a purely factual matter,
many of the traditional benefits associated with the right to counsel. For this reason, in order to
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represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished
benefits.” Faretta, 422 U.S. at 835. “It is well settled that waiver of counsel must be clear and
unequivocal, not ambiguous.” People v. Burton, 184 Ill. 2d 1, 21 (1998). “Although a defendant
need not possess the skill and experience of a lawyer in order competently and intelligently to
choose self-representation, he should be made aware of the dangers and disadvantages of such
representation, so that the record will establish that he knows what he is doing and his choice is
made with eyes open. [Citations.] The requirement of 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. [Citations.] The determination of whether there has
been an intelligent waiver of the right to counsel must depend, in each case, upon the particular
facts and circumstances of that case, including the background, experience, and conduct of the
accused.” (Internal quotation marks omitted.) Kidd, 178 Ill. 2d at 104-05.
¶ 39 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), which governs the waiver of
counsel, 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
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No. 1-13-0698
the defendant may be subjected because of prior
convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is
indigent, to have counsel appointed for him by the court.”
¶ 40 Here, defendant contends that the trial court’s admonishments did not comport with Rule
401(a)(2) (Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984)) because the trial court informed him of the
sentencing range for a Class 1 felony, 4 to 15 years, rather than a Class X, 6 to 30 years, which
defendant contends was applicable based on his own criminal history. Defendant ultimately
received a sentence of 20 years for residential burglary. Defendant also contends the trial court
failed to adequately apprise him of the nature of the charges.
¶ 41 “The purpose of this rule is ‘to ensure that a waiver of counsel is knowingly and
intelligently made.’ ” People v. Campbell, 224 Ill. 2d 80, 84 (2006) (quoting Haynes, 174 Ill. 2d
at 241). To ensure a valid waiver of counsel, substantial compliance with Rule 401(a) is required.
Id. There are numerous decisions, which we refer to later, discussing what substantial
compliance means, but the supreme court has held that “substantial compliance will be sufficient
to effectuate a valid waiver if the record indicates that the waiver was made knowingly and
voluntarily, and the admonishment the defendant received did not prejudice his rights.” Haynes,
174 Ill. 2d at 236; see also Kidd, 178 Ill. 2d at 104-05, People v. Coleman, 129 Ill. 2d 321, 333
(1989), and People v. Johnson, 119 Ill. 2d 119, 132 (1987).
¶ 42 Illinois Appellate Courts have described two methods to determine whether substantial
compliance under Rule 401(a) has been met. First, “[a]n otherwise inadequate admonition may
be constitutionally sufficient, and therefore does not constitute error, if the absence of a detail did
not impede the defendant from giving a knowing and intelligent waiver.” People v. Pike, 2016 IL
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App (1st) 122626, ¶ 113, appeal denied, No. 120864 (Sep. 27, 2017) (citing People v. Black,
2011 IL App (5th) 080089, ¶ 20). The second method is when “a defendant may be seen as
possessing a degree of knowledge or sophistication that excuses the lack of admonition.” Black,
2011 IL App (5th) 080089, ¶ 20.
¶ 43 In People v. LeFlore, the reviewing court’s description of the two methods is slightly
different. The LeFlore court held: To find substantial compliance, any deficiency to provide
complete admonishments does not prejudice defendant because either: (1) “ ‘he was already
aware of the information that was omitted’ ”; or (2) “ ‘his degree of legal sophistication made it
evident that he was aware of the information that compliance with the rule would have
conveyed.’ ” People v. LeFlore, 2013 IL App (2d) 100659, ¶ 52, rev’d on other grounds, 2015
IL 116799 (quoting People v. Gilkey, 263 Ill. App. 3d 706, 711 (1994)). The LeFlore court
added, however: “ ‘the dispositive issue to be determined when deciding whether a waiver of
counsel *** is valid is whether the waiver of counsel was knowingly, understandingly and
effectively made, in light of the entire record.’ ” Id. (quoting Gilkey, 263 Ill. App. 3d at 711).
Although all of these decisions may be helpful to our analysis, we conclude that whether there
has been substantial compliance in any given case will depend upon the facts before us in light of
the purpose of the rule we are called upon to interpret. See People v. Wright, 2017 IL 119561, ¶
54 (“Each case, however, must be evaluated on its own particular set of facts.”).
¶ 44 For the reasons that follow, we conclude that the trial court substantially complied with
Illinois Supreme Court Rule 401(a); that defendant’s waiver of counsel was knowingly and
intelligently made; there was no plain error in the admonishments given; and, finally, if there
was any error because of the lack of an admonishment, it did not amount to a plain and obvious
error which denied defendant his fundamental right to a fair trial.
19
No. 1-13-0698
¶ 45 In determining whether there was substantial compliance with Rule 401, we detail the
following: (1) the waiver occurred in open court where the trial judge specifically questioned
defendant, (2) the court on April 19, 2011, detailed the nature of every charge to defendant by
the following exchange:
“THE COURT: All right. We have a felony complaint here for
residential burglary, another felony complaint for aggravated
fleeing and eluding, and a misdemeanor complaint for assault.
DEFENDANT: Your Honor.
THE COURT: Hang on, sir. Another misdemeanor complaint for
resisting a peace officer.
Sir, I will appoint the public defendant to represent you for
the purposes of this bond hearing. Okay. So please speak to your
attorney.
State.
PROSECUTOR: Judge, on April 18th, 2011 at approximately
11:04 a.m., at the home located at 333 Jackson Boulevard in
Hillside, Cook County, Illinois, Judge, the owner of that home, the
victim in this case, came home.
He saw a van backed into his driveway. He then discovered
that his back door had been forced open and then saw this
defendant and another co-defendant inside his home, Judge,
carrying a pillow case.
20
No. 1-13-0698
The co-defendant attempted to strike the homeowner with a
flashlight which was the homeowner’s flashlight. Judge, the
homeowner then ran from the scene at which time this defendant
and co-defendant entered a van.
The van was driven by this defendant here, Judge. This
defendant attempted to run over the homeowner with the van. The
homeowner called 911, gave a description of that van, and that van
was located in the 4700 block of Harrison Street.
The officers attempted to make a traffic stop. They were
initially not successful. The defendant instead continued driving 21
miles over the speed limit violating three traffic signals and then
ending up driving off the roadway and crashing, Judge.
The defendant didn’t stop there, but he got out of the van
and fled on foot. He was eventually apprehended, and the
homeowner positively identified this defendant, the co-defendant,
and the items that were in that pillow case, Judge.”
¶ 46 Thereafter, the prosecutor referenced defendant’s criminal background as the following:
“He has a 1995 aggravated battery, great bodily harm, two years
Illinois Department of Corrections; 1992 armed robbery and
aggravated kidnapping, there was a finding of not guilty; 1993,
robbery, ten years IDOC; 1990 robbery, three years IDOC; 1989
forgery, two years IDOC; 1987 burglary, four years probation;
1984 aggravated criminal sexual assault, two years IDOC.”
21
No. 1-13-0698
The State then asked for a $750,000 D bond. The public defender informed the court that
defendant was 44 years old, and currently a business major at Chicago State University. The
judge then set a $400,000 D bond.
¶ 47 Three days later on April 22, 2011, defendant appeared before another judge to set a date
for the return of an indictment. Defendant immediately informed the court that he was
representing himself, stating that he was “very familiar with the law” and was “exercising [his]
constitutional right.” Defendant continued to assert his right immediately after he was advised
that he was charged with a felony, residential burglary, and the court told defendant to, “Slow
down. We are not done yet.” The trial court then accurately stated the minimum and maximum
sentence for residential burglary, which is 4 to 15 years. See 720 ILCS 5/19-3(b) (West 2010);
730 ILCS 5/5-4.5-30(a) (West 2010). The court questioned the defendant extensively about his
waiver of the right to counsel, including inquiries as to defendant’s education, any experience he
had previously in representing himself, and whether he had been charged with a felony before.
Defendant responded that he had previously been charged with a felony, and then detailed his
representation from a prior conviction in 1994 in which defendant received what he described as
a “split verdict.” As we detail later, this was accurate information because in that case defendant
was found not guilty of armed robbery in one case, but guilty of robbery of a victim over 60
years old. The judge advised defendant that although he had the right to represent himself, the
defendant would be held to the same standards as an attorney and that the defendant would not
have a public defender to stand by and help him with his case. From the above, we conclude the
trial judge advised defendant of the dangers and disadvantages of self representation. See Kidd,
178 Ill. 2d at 104-05.
22
No. 1-13-0698
¶ 48 The trial court’s statement that defendant was facing 4 to 15 years was partially correct,
and we acknowledge there was no discussion at that hearing regarding the possibility that upon
conviction of residential burglary defendant was subject to be sentenced as a Class X offender. In
fact, at defendant’s initial bond hearing, the State’s Attorney’s office did not indicate defendant
was Class X eligible, nor was it apparently aware that defendant had recently served 27 years in
the penitentiary for a robbery conviction.
¶ 49 The record also shows that the court had previously appointed a public defender on the
first court date and the public defender appeared on behalf of defendant when he indicated that
he wanted to represent himself. Based upon all of the admonitions given, the discussions
between the court and defendant, and accepting the claim that the trial court should have
admonished defendant about the possibility of his Class X status, although there was not strict
compliance, we find there was substantial compliance with Illinois Supreme Court Rule 401.
¶ 50 At the April 22, 2011 court date, defendant followed his request to proceed pro se with a
verbal request that “any 911 calls be saved, any police radio transmissions and apprehension and
stopping of [his] van” also be preserved. The court agreed to sign an order. Defendant appeared
before this judge about two weeks later and followed up on his discovery request. The court
informed defendant that he needed a written order to enforce his request to preserve 911 calls. In
May 2011, defendant filed a written motion for discovery which was legible and cited the fifth,
sixth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, VI,
XIV), article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), multiple statutes
from the Code of Criminal Procedure of 1963 (725 ILCS 5/101-1 et seq. (West 2010)), and four
Illinois Supreme Court Rules. He sought the names and last known addresses of persons the
State intended to call as witnesses with their statements, any written or recorded statements and
23
No. 1-13-0698
the substance of any oral statements by the accused or a codefendant, a grand jury transcript, any
reports or statements of experts made in connection with the case, any book, papers, documents,
photographs, or tangible objects the State intended to use at trial, any record of prior criminal
convictions which may be used for impeachment for persons the State intends to call at trial,
information as to whether there has been any electronic surveillance of conversations, and any
material or information within the State’s possession or control which “leads to negate the guilt
of the accused as to the offense charged or would tend to reduce his punishment therefore.”
Defendant asked for an opportunity to inspect, obtain, test, copy, or photograph any evidence.
¶ 51 At the next court date, before a third judge, who ultimately presided over the case,
defendant again asserted his desire to appear pro se. Defendant stated that, he “asked to be pro se
at the inception of the case.” He informed the court that he was admonished by the prior judge
“three times.” He asked to submit a motion for discovery. The trial judge also explained to
defendant that she could not give him legal advice, that defendant would be held to the same
standard as any other attorney, and that the State’s Attorneys were licensed, practicing attorneys
who had attended law school and passed the bar exam. Defendant responded that he understood.
The trial court asked defendant if he knew what an arraignment was, and he said he understood
what an arraignment was. Specifically, defendant said that it meant “being notified of the official
charges against me.” Defendant then waived reading of the charges against him and demanded
trial.
¶ 52 Defendant continued to represent himself at 10 more court dates, including the hearing on
his motion to suppress. We specifically note that defendant’s pro se handwritten motion to
suppress was properly formatted, raised legitimate claims, and cited proper legal authority for his
claims, including the exclusionary rule set forth in Mapp v. Ohio, 367 U.S. 643 (1961), the fourth
24
No. 1-13-0698
amendment (U.S. Const., amend. IV), and article I, section 6 of the Illinois Constitution (Ill.
Const. 1970, art. I, § 6). We also note that at the suppression hearing, defendant attempted to
impeach Beckwith, the 911 operator, with the transcript of the audio recording, which did not
contain all the information Beckwith disclosed in his testimony. While his motion was ultimately
unsuccessful, defendant’s motion demonstrated his degree of legal sophistication. Immediately
after the denial of his motion to suppress, defendant requested counsel and a public defender was
appointed. These court proceedings further demonstrate that there was substantial compliance
with Rule 401(a).
¶ 53 We find the decision in People v. Herndon, 2015 IL App (1st) 123375, appeal denied No.
119727 (Nov. 25, 2015), which is factually similar to the case at bar, supports our analysis. In
that case, the defendant was charged with two counts of delivery of a controlled substance. He
was initially appointed a public defender, who represented the defendant at a hearing on a motion
to suppress, which was denied. Less than two weeks later, the defendant sought to represent
himself. The trial court admonished the defendant and gave him a week to consider his decision.
A week later, the defendant asked for the appointment of a different public defender, which the
trial court denied, and then the defendant elected to proceed pro se. Id. ¶¶ 3-7. In the following
weeks, the defendant “filed several motions, including discovery motions, a motion to dismiss
indictment, a motion to quash arrest, and a motion to suppress video evidence over the next
several court dates.” Id. ¶ 8. More than a year after the defendant had opted to represent himself,
he requested an attorney. The court appointed counsel, who then represented the defendant
through trial and posttrial motions. Id. ¶¶ 10-20. At sentencing, the defendant disputed his Class
X status and asked to again appear pro se, and was admonished of the dangers of appearing pro
se. Id. ¶ 20. The defendant was sentenced to 10 years as a Class X offender. Id.
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No. 1-13-0698
¶ 54 On appeal, the defendant argued that the trial court failed to comply with Rule 401(a) by
failing to inform him of the nature of the charges and that he was subject to Class X mandatory
sentencing. Id. ¶ 26. The reviewing court observed that the defendant had been fully notified of
the charges pending against him at the arraignment and his suppression hearing and both took
place when he was represented by counsel. Id. ¶ 27. The court then made the following findings.
“Defendant has experience in the criminal justice system
and admittedly has a ‘very extensive’ criminal background. His
criminal background includes a conviction for a nearly identical
offense of possession of a controlled substance with intent to
deliver in 2000. Defendant had five other narcotics convictions,
two firearm related convictions and a burglary conviction.
Furthermore, when defendant represented himself during
pretrial proceedings he made numerous discovery requests. As part
of the discovery process, defendant had an opportunity to inspect
the 1505 fund sheets, which showed the currency with prerecorded
serial numbers used in investigations, the narcotics and the video
of the transaction that was later used at trial. In addition, defendant
filed three pretrial motions. He also filed and argued three motions:
a motion to dismiss the indictment based on the fact that the funds
used in the undercover buy were never recovered, a motion to
quash arrest on the basis that he was not arrested at the address
listed on the search warrant and a motion to suppress the video
evidence.
26
No. 1-13-0698
With all of this in mind, including the fact that defendant
was represented by counsel several months before trial, during trial
and throughout sentencing, we cannot say that defendant was not
aware of the nature of the charges, or that the trial court failed to
inform defendant of the nature of the charges against him during
the short time that defendant proceeded pro se during the pretrial
stage such that substantial compliance with Rule 401(a) was not
accomplished.” Id. ¶¶ 28-30.
¶ 55 The defendant in Herndon also asserted that he was not admonished in substantial
compliance with Rule 401(a)(2). Specifically, he argued that the trial court did not inform him of
the potential sentencing range. Id. ¶ 31. The reviewing court found substantial compliance,
noting that on the date the defendant indicated he wished to represent himself, the prosecutor
stated the defendant was subject to extended term sentencing of 15 to 30 years based on his
background. Although the defendant was not told he was Class X mandatory, he was advised of
the minimum and maximum sentencing range, and the appellate court concluded no error
occurred. Id. ¶¶ 32-33.
¶ 56 We note several other Illinois decisions which have held that the trial court’s failure to
strictly comply with the admonition of the minimum and maximum sentence did not warrant a
reversal of the defendant’s conviction where the record clearly revealed that defendant
knowingly and intelligently waived his right to counsel based on his extensive legal experience
and knowledge of the law. See People v. Eastland, 257 Ill. App. 3d 394, 399-400 (1993) (the
defendant “exhibited a high degree of legal sophistication perhaps gained from his presence
throughout these proceedings, if not also his criminal history, so that his waiver of counsel was
27
No. 1-13-0698
made knowingly and intelligently”); People v. Meeks, 249 Ill. App. 3d 152, 172 (1993)
(“Defendant has previous convictions, substantial experience with the legal system, and filed
over 15 thorough pro se petitions and motions that included extensive case law. Moreover,
defendant asserted that he had 20 years’ experience with the law. Under these circumstances, we
conclude that there was no violation of Rule 401(a).”); People v. Black, 68 Ill. App. 3d 309, 313
(1979) (“Considering defendant’s prior experiences with armed robbery convictions and his
familiarity with criminal law, there is no question that defendant knew that he could receive a
lengthy prison sentence upon conviction. Nevertheless, defendant, well aware of the potential
punishment, remained adamant in demanding to represent himself after repeatedly requesting the
dismissal of the court appointed counsel.”); People v. Jackson, 59 Ill. App. 3d 1004, 1009 (1978)
(“Defendant was no stranger to criminal proceedings. In fact he was quite familiar with them.
His conduct of the defense demonstrated his intricate knowledge of court proceedings and his
familiarity with court records. This knowledge was demonstrated by defendant’s skillful but
unavailing attempt to claim he had already been discharged of the burglary offense. The record
shows, as the defendant stated to the court, he thought he could defend himself better.
Considering the entire record, we conclude defendant knowingly and intelligently waived his
right to counsel.”); People v. Smith, 33 Ill. App. 3d 725, 728 (1975) (“We believe the record
evidences adequate compliance with the requirements of the rule. Defendant had earlier been
represented by retained counsel and by the public defender; he discharged both. The court
admonished him of the seriousness of the charges, that they involved felonies for which he could
be incarcerated in the penitentiary. Defendant represented to the court that he had ‘quite a bit of
study in law’ and that matters he had brought out on the previous trial, ‘which some people
considered prejudicial to his case,’ was ‘part of his strategy’ and had resulted in a mistrial. This
28
No. 1-13-0698
time, he assured the judge, it will be different. He asserted that he knew his case better than any
lawyer and wanted none sitting at counsel table with him in any capacity. He expressly invoked
his constitutional right to defend himself. While the record does not disclose that the court
expressly stated the potential minimum and maximum terms for the alleged offenses, we think it
plain that defendant’s waiver of counsel was made knowingly and voluntarily and there is no
claim made that defendant was actually unaware of the potential penalties.”).
¶ 57 In People v. Phillips, 392 Ill. App. 3d 243, 262-63 (2009), the defendant argued that the
trial court did not substantially comply with Rule 401(a) because at the time of his waiver of
counsel, the court failed to inform him of the nature of the charge and that he had the right to
counsel and one would be appointed if the defendant was indigent. The reviewing court found
substantial compliance because (1) the defendant had been fully admonished nine months earlier;
(2) the record did not suggest that defendant failed to understand the charges against him; (3) the
defendant had been represented by counsel so he understood his right to counsel and to have one
appointed; and (4) the defendant had extensive history with the criminal justice system. Id. at
263-64. The court also pointed out that the defendant did not claim that he suffered any prejudice
or that he would have acted differently had additional admonishments been made. Id. at 263
(quoting People v. Johnson, 119 Ill. 2d 119, 134 (1987)); see also Kidd, 178 Ill. 2d at 114
(“There is no suggestion in the record that the trial court’s misstatement concerning either the
charge of aggravated arson or the minimum sentence played any part whatever in defendant’s
waiver of his right to the assistance of counsel.”).
¶ 58 Further, the supreme court has found substantial compliance in multiple cases in which
the defendant was misinformed about the minimum sentence. See Kidd, 178 Ill. 2d at 114
(finding substantial compliance by “informing defendant of the nature of the charges against
29
No. 1-13-0698
him, explaining to him that the death penalty was the maximum sentence, and advising him of
his right to counsel” despite incorrect admonishment regarding one of the charges and the
minimum sentence); Haynes, 174 Ill. 2d at 243 (substantial compliance when the defendant
informed of minimum and maximum sentences for murder charge, but not for lesser burglary
charge); Coleman, 129 Ill. 2d at 333 (the trial court incorrectly informed the defendant that the
minimum sentence was 20 years, rather than natural life); Johnson, 119 Ill. 2d at 133-34 (finding
no prejudice to the defendant when not informed that the minimum sentence was life when he
was told that the maximum sentence was the death penalty).
¶ 59 The same conclusion can be reached regarding defendant in this case. Defendant has an
extensive criminal background, including a 1987 conviction for burglary, a 1994 conviction for
robbery of a victim over 60 years old, a 2013 conviction for attempted aggravated robbery, and
several other offenses. Defendant represented himself for at least part of the proceedings for the
1994 and 2013 convictions. Defendant filed multiple motions in this case, including to preserve
911 calls and to quash his arrest and suppress evidence. Defendant was also represented by
counsel for a period of time prior to trial, during trial, and posttrial. Nothing in the record
suggests that defendant’s decision to waive counsel and represent himself was not knowing and
voluntary. Defendant has not argued on appeal that his waiver was not knowing and voluntary.
He has not claimed that he suffered any prejudice as a result of the denial of his motion to
suppress or any other prejudice he suffered as a result of the incomplete admonishment.
Although defendant voluntarily chose to represent himself for the pretrial motion, defendant was
represented by counsel immediately after the denial of his motion to suppress and through trial,
posttrial, and sentencing. There is nothing in the record to suggest that the defendant would not
have chosen to represent himself had he been accurately admonished that he was facing a class X
30
No. 1-13-0698
sentence, 6 to 30 years rather than the admonition of 4 to 15 years given in this case. This record
firmly establishes that defendant knowingly and voluntarily waived his right to counsel, he did
not suffer any prejudice as a result of his self-representation for the time he did so, and had the
legal sophistication to understand his rights, we find without question that the purpose of Rule
401(a) was satisfied.
¶ 60 Moreover, were we to ignore defendant’s high degree of legal sophistication, we would
still conclude that his waiver was both knowing and voluntary because of his significant and
rather lengthy criminal history. Defendant previously represented himself at trial in an earlier
prosecution and received what he calls a “split verdict.” In that case, defendant was charged in
two separate cases, but the charges were tried jointly; one was for armed robbery and the other
for robbery of an individual over 60 years of age, involving the same victim for crimes that
occurred at the same location two weeks apart. People v. Maxey, No. 1-95-0885 (Mar. 14, 1997)
(unpublished order under Supreme Court Rule 23).
¶ 61 Defendant was initially represented by counsel, but the day before the jury trial,
defendant asked to appear pro se. The trial court admonished defendant, but defendant
maintained that he wanted to represent himself. The next day, defendant requested counsel other
than the public defender. The court granted defendant a continuance to retain private counsel.
Defendant later told the court that he was unsuccessful in obtaining money from his family, and
a private attorney was appointed. Later, defendant’s attorney informed the court that defendant
wished to appear pro se and refused the court’s offer to have counsel stand by and assist him.
Maxey, slip order at 2-3.
¶ 62 The evidence at trial showed that in November 1992, defendant entered a leather cleaning
shop on North Dearborn Street in Chicago. The victim was working at the store. Defendant
31
No. 1-13-0698
threatened the victim with scissors to his neck, took the victim to the back of the store, and
bound him with a telephone cord. Defendant took the victim’s keys, money from the cash
register, and left wearing a customer’s leather jacket with other coats in a bag. Two weeks later,
defendant returned to the same store, wearing the stolen leather jacket. Defendant tried to put the
victim in the back of the shop again, but the victim resisted and triggered a silent alarm.
Defendant again tied up the victim. Defendant pulled the victim’s pants down looking for money
and bit the victim’s arm. The police arrived as defendant was trying on more garments. Maxey,
slip order at 3-5. The jury found defendant not guilty of armed robbery for the first date, and
guilty of robbery of a victim over 60 years of age for the second date. Maxey, slip order at 5-6.
¶ 63 Defendant appeared pro se on his posttrial motions, which motions the trial court denied.
At sentencing, the State presented certified copies of defendant’s conviction for burglary in 1987
and robbery in 1990 as well as his history of other offenses. There, the trial court specifically
found that defendant was Class X mandatory based on his criminal history and sentenced
defendant to 27 years in prison. Maxey, slip order at 6-7.
¶ 64 The State has filed a motion requesting this court to take judicial notice of relevant
portions of the record in another of defendant’s cases, specifically defendant’s 2008 case for
attempted aggravated robbery, which we do. In that case, defendant also represented himself pro
se at a suppression hearing. People v. Maxey, 2011 IL App (1st) 100011, ¶ 4. During the course
of the hearing, the trial court advised defendant that he needed the assistance of an attorney to
properly present his motion. Defendant agreed and requested counsel. The hearing was then
continued for several months. Id. ¶¶ 4-11. Ultimately, the trial court granted defendant’s motion
to suppress after the continued hearing, but on appeal, another division of this court reversed. Id.
¶ 78. While the appeal in the 2008 case was pending, defendant was arrested and charged in the
32
No. 1-13-0698
current case. Defendant was found guilty in this case in December 2012. In January 2013, prior
to sentencing in this case, defendant pled guilty to attempted aggravated robbery in the 2008 case
and received a sentence of 11 years. Subsequently in February 2013, defendant was sentenced in
the instant case.
¶ 65 During the court proceedings on November 26, 2008, in that other case, defendant stated
that he was exercising his sixth amendment right to represent himself pro se because he “just
feel[s] more comfortable that way.” Defendant informed the trial court that he had done it before,
again referencing the “split verdict” from the 1992 cases. Defendant demanded trial and said he
had two motions to file. The trial court then admonished defendant to make sure he understood
the charges and possible penalties. The prosecutor in those proceedings pointed out that
defendant was Class X mandatory. The court continued, stating that defendant was charged with
Class 2 felonies, but based on his background, the sentencing range would be Class X, which is 6
to 30 years. Defendant stated that he understood each of these admonitions.
¶ 66 At a subsequent court date in December 2008, defendant appeared before a different trial
judge, who asked defendant whether he wished to be represented by the public defender, and
defendant responded no. Defendant informed the court he received incomplete discovery from
the State and he asked for the appointment of an investigator. The court admonished defendant
again that he was Class X mandatory, and defendant said he had already waived counsel before a
different trial judge.
¶ 67 During subsequent appearances, defendant presented discovery requests and consistently
followed up on his requests. At a January 2009 court date, the trial court asked about defendant’s
criminal background, and defendant responded that he was “Class X mandatory.” Defendant
detailed his trial plan, that he had almost located his witnesses and would be “tendering
33
No. 1-13-0698
discovery to the State within a month,” but asserted his need for 911 tapes that “were material to
[his] defense.” Defendant also asked about his vehicle, if it was “seized as evidence.” In March
2009, defendant asked about submitting a motion for counsel other than the public defender,
noting that he does not have “a right to perfect counsel.”
¶ 68 In July 2011, on remand following this court’s reversal of the grant of the motion to
suppress, defendant expressed his desire to represent himself. Defendant stated that he was “very
familiar” with the criminal justice system. Defendant continued to appear pro se in the 2008
case. In a June 2012 court date, the trial court noted that defendant had waived counsel “on at
least three separate occasions in connection with these proceedings,” but as trial was
approaching, defendant stated that he was “overwhelmed” and needed counsel. At some point
counsel was appointed, as indicated by the case history detailed in a subsequent appeal. People v.
Maxey, 2015 IL App (1st) 140036, ¶ 14.
¶ 69 Defendant’s history shows that he has chosen to represent himself frequently and at other
times he has had an attorney represent him when he so chooses. In the instant case, defendant
immediately requested an attorney after his motion to suppress was denied. Defendant has a
significant understanding of the criminal justice system and has used the services of the public
defender when it has served his purposes. Thus, he has knowingly and voluntarily waived his
right to counsel on several other occasions. More important, even if we did not consider the
transcript from his other case, the record still demonstrates that defendant knowingly and
voluntarily chose to represent himself through the suppression hearing. Nothing in this record
suggests that defendant was prejudiced or would have changed his mind about appearing pro se
if the trial court had admonished defendant that he was possibly facing a sentence of 6 to 30
years. Phillips, 392 Ill. App. 3d at 263 (quoting Johnson, 119 Ill. 2d at 134).
34
No. 1-13-0698
¶ 70 Defendant relies on the Second District decision in LeFlore to support his contention that
the trial court failed to comply with Rule 401(a). In LeFlore, the defendant waived the right to
counsel after the denial of a motion to suppress, and represented himself at trial. At the time of
his waiver, the trial court admonished him that he was charged with aggravated robbery and
subject to a term of 4 to 15 years in prison. LeFlore, 2013 IL App (2d) 100659, ¶ 9. However, at
sentencing the State presented copies of certified convictions establishing that defendant was
Class X mandatory and subject to 6 to 30 years in prison. Id. ¶ 10. On appeal, the defendant
argued that the trial court failed to comply with Rule 401(a) by not admonishing him of his Class
X mandatory sentencing range. Id. ¶ 50. The reviewing court found that the record did not show
the defendant had any degree of legal sophistication such that it was evident that he was aware of
the sentencing range. Id. ¶ 57.
“When defendant informed the trial court that he wished to
discharge his attorney and proceed pro se, the trial court asked
defendant if he had any history, background, or familiarity ‘with
the criminal system regarding particulars of going to trial and
issues of evidence in a criminal trial.’ Defendant answered that he
had ‘somewhat some [sic],’ but, when asked to what extent, he
responded, ‘Not much.’ Defendant explained that he had been
‘through a few trials’ and told the court that he ‘went through pro
se’ on his most recent charge, for attempted burglary. When asked
if it was a bench or a jury trial, defendant explained that ‘[i]t didn’t
get that far,’ that he ‘decided to take the plea’ that ‘was brought to
me from the judge herself.’ He stated that he had brought some
35
No. 1-13-0698
pretrial motions in that case and had done some legal research.
That was the one case that defendant could remember that
provided him with familiarity with the criminal system.” Id.
¶ 71 As we have detailed, defendant in this case was extremely sophisticated, and clearly had
the requisite legal knowledge of his Class X mandatory status. For this reason, we find LeFlore
distinguishable, where the defendant there could not articulate his prior experience with the
criminal justice system, something this defendant expressly did. Further, we point out that the
defendant in LeFlore represented himself at trial, while defendant in the instant case was
represented by counsel at trial and sentencing.
¶ 72 Contrary to defendant’s assertion, the LeFlore court did not make a blanket statement that
a defendant’s criminal history cannot support a finding of substantial compliance, but rather,
held that under the facts of that case, the record did not support such a result. The same is not
true in this case, where the record clearly shows both: that the omission (lack of admonishment)
did not impede defendant’s knowing and voluntary waiver, and second, defendant “possess[ed] a
degree of knowledge or sophistication that excuse[d] the lack of admonition.” Black, 2011 IL
App (5th) 080089, ¶ 20. Since we conclude defendant knowingly and voluntarily waived his
right to counsel, and possessed the requisite legal knowledge which satisfied both tests, we find
the other cases relied on by defendant to be distinguishable. See People v. Bahrs, 2013 IL App
(4th) 110903, ¶ 46 (after being represented by counsel, the defendant opted to appear pro se at
posttrial hearings and sentencing, but was not admonished regarding the consecutive nature of
his potential sentences and the defendant lacked “a high degree of legal sophistication”); People
v. Koch, 232 Ill. App. 3d 923, 927 (1992) (where the defendant appeared pro se during plea
proceedings in which he was inaccurately informed of his maximum sentence and subsequently
36
No. 1-13-0698
received a greater sentence, the reviewing court found that “the record before [it] does not reveal
that defendant had the unusual and demonstrable legal sophistication”).
¶ 73 After considering the record in this case, as well as defendant’s prior cases, it is clear that
defendant knew he was Class X mandatory. Defendant’s history shows that he had been
sentenced as a Class X offender after his 1994 conviction, and he stated on the record in his 2008
case that he knew he was Class X mandatory before the Rule 401 admonishments were given in
this case. Additionally, when arrested for this charge, defendant had recently completed a 27-
year sentence for a 1994 robbery conviction, although, as pointed out above, this fact was not
apparent to anyone during the April 2011 court proceedings. It is more than obvious that
defendant was again facing very significant penitentiary time if convicted of the charged
offenses. See Black, 68 Ill. App. 3d at 313.
¶ 74 Recently, the Illinois Supreme Court found substantial compliance with Rule 401(a) in
People v. Wright, 2017 IL 119561. There, the defendant argued that the trial court’s
admonishments failed to substantially comply because he was misinformed about the maximum
potential sentence he faced. Id. ¶ 38. Specifically, the trial court incorrectly advised the
defendant that he faced a maximum sentence of 60 years, but the correct maximum term was 75
years.
¶ 75 The supreme court then recounted its 30-year history considering the “contours of
substantial compliance with Rule 401(a)” by discussing Coleman, Johnson, and Haynes in
contrast with Campbell where the former three found substantial compliance and the latter
concluded there was no compliance with the rule. Id. ¶¶ 41-47.
¶ 76 The facts in Wright disclose the defendant stated to the trial court that he would not agree
to any continuances and asserted his right to a speedy trial. The public defender indicated that
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No. 1-13-0698
she would have to withdraw because she was not ready for trial. The trial court continued the
case for a week for the defendant to obtain outside counsel. At the following court date, the
defendant did not have an attorney and continued to raise his speedy trial rights. Id. ¶ 48. The
supreme court then quoted an extensive colloquy in which the defendant asserted his right to a
speedy trial and desire to represent himself. Id. ¶ 49.
¶ 77 The court concluded there was substantial compliance with Rule 401(a), in line with
Coleman, Johnson, and Haynes.
“After defendant initially asserted that he desired to proceed pro
se, the trial court provided him with a copy of the charging
instrument and admonished him that he was subject to a possible
sentence of 21 to 60 years for the charged offenses and that he was
entitled to have a public defender represent him. At the next court
date, defendant was again admonished by the trial court under Rule
401(a). The trial court informed him that he was charged with four
counts of armed robbery. He was told that he faced a possible
sentencing range of 21 to 60 years for the offenses and that the
sentences would be served concurrently. The trial court also
informed defendant of his right to appointed counsel. The trial
court further informed him that if he proceeded pro se, he would
be held to the same standards to which a lawyer would be held and,
if convicted, he could not complain about his own competency.
We do not diminish the importance of correct
admonishments as to the actual maximum sentence allowed. Each
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No. 1-13-0698
case, however, must be evaluated on its own particular set of facts.
Based upon the colloquy above, we conclude that the trial court
substantially complied with Rule 401(a) when it properly
admonished defendant in all respects except when it informed him
that he faced a maximum sentence of 60 years in prison, when it
was actually 75 years.” Id. ¶¶ 53-54.
¶ 78 The supreme court observed that the trial court had elicited the defendant’s age, that he
had attended two years of college, and had previously represented himself on appeal in a felony
case. “He expressed his desire to represent himself at the beginning of this case and reiterated
that desire a number of times thereafter, even after being informed by the trial court of the
potential pitfalls of doing so.” Id. ¶ 55. The court further found the defendant’s assertion of
proceeding pro se based on speedy trial concerns “compelling.” Id. The Wright court also found
no basis to conclude the defendant’s was prejudiced by the understatement of the potential
maximum sentence. “Defendant does not even make a bare allegation that he would not have
proceeded to represent himself if he had known the possible maximum sentence he faced for
armed robbery was actually 75 years, rather than 60 years.” Id. ¶ 56. Finally, the court noted that
“while defendant was eligible for a 75-year sentence, the State actually asked for the imposition
of a 60-year sentence and the trial court imposed a 50-year sentence.” Id.
¶ 79 In response to the supreme court’s supervisory order in the instant case, we allowed the
parties to file supplemental briefing. Defendant contends that under Wright, there was not
substantial compliance with Rule 401(a) in this case because the error in sentencing admonition
was more egregious and the evidence to support a finding that defendant’s waiver was knowing
and voluntary was weaker. Defendant asserts that since the supreme court’s analysis did not
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No. 1-13-0698
discuss the defendant’s actions in his prior self-representation, the decision in Wright “implicitly
rejects a key part” of this court’s reasoning in finding substantial compliance. However,
defendant has failed to cite any authority to support his assertion and we reject this contention.
The State maintains that the decision in Wright supports and is consistent with our analysis and
conclusion. We agree with the State.
¶ 80 Defendant spends much of his supplemental briefing comparing the supreme court’s
consideration of the facts in Wright to the circumstances present in the case. This argument is
misplaced because as we have previously observed in Wright, “[e]ach case *** must be
evaluated on its own particular set of facts.” Id. ¶ 54. Engaging in a word-for-word comparison
of how the trial court admonished the defendant in Wright and the admonishments in the present
case improperly narrows the holding of Wright and negates the explicit direction to consider the
issue based on the facts of the case. Contrary to defendant’s focus on the speedy trial concerns
voiced by the defendant in Wright, the supreme court did not set forth a requirement for a
defendant to state a specific reason why he wished to appear pro se, but rather the court
considered the defendant’s stated reason as part of the facts of that case. Here, defendant stated
from the outset that he wished to exercise his constitutional right to represent himself because he
was “very familiar with the law” and had done so previously as we discussed at length. This
stated basis is as valid as the defendant’s speedy trial concerns in Wright.
¶ 81 After considering Wright, we find that our analysis in this case is consistent with the
supreme court’s conclusions there and see no reason to alter our decision and its basis. By our
decision today, we do not mean to suggest that trial judges should not comply with supreme
court rules. Compliance is mandatory. See Campbell, 224 Ill. 2d at 87. Further, complete
admonishments are the rule and we encourage judges to go above and beyond that which is
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No. 1-13-0698
required. However, the trial judge did go beyond the rule and asked defendant about his
education, his background, and whether he had represented himself before in the trial court. The
trial judge correctly informed defendant of the 4 to 15 year sentencing range for residential
burglary, the most serious charge pending at that time. Three days before defendant’s April 22
appearance, the defendant was fully admonished of the nature of the charges and a public
defender was appointed to represent him. The judge also noted that defendant would be held to
the same standard as a lawyer and that defendant would not have the benefit of a public defender
to assist him. The trial court also went out of its way to make sure defendant was able to obtain
911 calls and police radio transmissions in this case. Finally, when defendant appeared before the
trial judge who presided over the case, defendant again persisted in his desire to appear pro se.
This judge also admonished defendant regarding the disadvantages of representing himself,
including that the court could not give him legal advice, defendant would be held to the same
standard as a lawyer, and that the assistant State’s Attorneys attended law school, passed the bar,
and were licensed attorneys. The trial judges in this case ensured that defendant was aware of the
reality and consequences of representing himself. See Faretta, 422 U.S. at 835 (holding that
when a defendant chooses to represent himself, “ ‘he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that “he knows what he is
doing and his choice is made with eyes open’ ” (quoting Adams v. United States ex rel. McCann,
317 U.S. 269, 279 (1942)).
¶ 82 Without much analysis, defendant suggests that because the court incorrectly admonished
him, and he subsequently received a sentence of 20 years, plain error occurred. Contrary to this
suggestion, it is clear that the sentence imposed in this case was not in any way based upon a
waiver of counsel, but based upon the subsequent finding of guilty of the charges and
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No. 1-13-0698
defendant’s extensive criminal history, including the following felonies: unlawful restraint in
1985, burglary in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over
60 years old in 1994, aggravated battery in 1995, robbery in 1995, possession of contraband in
penal institution in 1995, and attempted aggravated robbery in 2013. Defendant’s background
also indicates that he was 45 years old at the time the 20-year sentence was imposed. The trial
court explicitly noted defendant’s extensive history before imposing the sentence. His self-
representation which lasted for only a small part of these proceedings and the denial of his
motion to suppress had no bearing on the sentence imposed, and defendant has not established
otherwise. There has been no error. Because there is no error, there can be no plain error. See
Lewis, 234 Ill. 2d at 43.
¶ 83 We also point out that finding an error has occurred (were we to do so) does not mean
that the second prong of plain error test has been met and that relief would automatically be
awarded. Rather, the burden would then be on defendant to show that the error was plain and
obvious, and it was so serious “that it affected the fairness of the defendant’s trial and challenged
the integrity of the judicial process.” Herron, 215 Ill. 2d at 187. Defendant has not established
plain error. Defendant has not demonstrated that the lack of any admonishment affected the
fairness of his trial and challenged the integrity of the judicial process. More specifically, we find
based upon our review of the hearing on defendant’s motion to suppress, defendant has not
demonstrated that the failure to admonish him would have impacted the court’s ruling on the
motion to suppress. Therefore, defendant has not established plain error such that it did not deny
him the right to a fair trial.
¶ 84 Defendant next contends that the trial court committed multiple errors during the
suppression hearing which entitle him to a new suppression hearing. Specifically, defendant
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No. 1-13-0698
argues that the trial court: (1) violated his privilege against self-incrimination when it allowed the
State to broaden the scope of the suppression hearing; and (2) erroneously barred defendant from
calling a witness to contradict Chief Lukaszek’s account of the traffic stop.
¶ 85 The State initially responds that defendant has forfeited these issues by failing to
adequately preserve them in the trial court. Defendant maintains that under People v. Cregan,
2014 IL 113600, ¶¶ 15-20, he sufficiently preserved his claim of a constitutional violation of his
right against self-incrimination by objecting in the trial court. Cregan held that an objection to a
constitutional violation at trial is sufficient to preserve the issue for appeal without raising the
issue in a posttrial motion. Id. The State contends that Cregan does not apply because defendant
did not object to a constitutional violation in the trial court, but has only raised that basis on
appeal.
¶ 86 During his testimony at the suppression hearing, defendant objected to the State’s
question concerning his whereabouts prior to driving on Wolf Road as irrelevant. On appeal,
defendant challenges this question under a new theory, that it violated his privilege against self-
incrimination. According to defendant, this change does not affect his preservation of the issue.
Regardless of whether defendant preserved the issue, the State concedes that we can review it
under plain error, so we will review the issue for any error.
¶ 87 Defendant also asks this court to review the remaining claims regarding his suppression
hearing under the second prong of plain error. As stated above, The plain error rule “allows a
reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and challenged the
43
No. 1-13-0698
integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill.
2d at 565. But first, we must determine whether there was any error before reaching plain error
analysis. See Lewis, 234 Ill. 2d at 43.
¶ 88 We turn to defendant’s argument that the trial court violated his right against self-
incrimination by allowing the State to broaden the scope of the suppression hearing. Specifically,
defendant argues that the court violated Illinois Rule of Evidence 104(d) (eff. Jan. 1, 2011) by
allowing the prosecutor to question defendant on cross-examination about his activities before
being observed by the police on Wolf Road.
¶ 89 The prosecutor asked defendant where he and Love were coming from when driving on
Wolf Road, and defendant objected that the question was irrelevant, which the trial court
overruled. When defendant said they were looking for a gas station, the prosecutor again asked
where defendant was coming from. Defendant questioned the relevancy and said they were
looking for a friend’s house. The prosecutor reiterated that the question was where was he
coming from, not where was he going. Defendant denied that he was coming from the location of
the residential burglary, but stated that he could not recall where he was coming from at that
time.
¶ 90 “Every criminal defendant is privileged to testify in his own defense, or to refuse to do
so.” Harris v. New York, 401 U.S. 222, 225 (1971). “It is essential, therefore, to the proper
functioning of the adversary system that when a defendant takes the stand, the government be
permitted proper and effective cross-examination in an attempt to elicit the truth. The
defendant’s obligation to testify truthfully is fully binding on him when he is cross-examined.
His privilege against self-incrimination does not shield him from proper questioning.” United
States v. Havens, 446 U.S. 620, 626-27 (1980); see also People v. Stevens, 2014 IL 116300, ¶ 16
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No. 1-13-0698
(“The defendant who takes the stand and testifies in his own behalf in a criminal case not only
offers himself as a witness in his own behalf but thereby subjects himself to legitimate cross-
examination.”). “[L]egitimate cross-examination includes ‘all circumstances within the
knowledge of the witness which explain, qualify, discredit or destroy his direct testimony.’ ” Id.
¶ 17 (quoting People v. Williams, 66 Ill. 2d 478, 486 (1977)).
¶ 91 These principles notwithstanding, Illinois Rule of Evidence 104(d) provides: “The
accused does not, by testifying upon a preliminary matter, become subject to cross-examination
as to other issues in the case.” Ill. R. Evid. 104(d) (eff. Jan. 1, 2011). “The extent of cross-
examination with respect to an appropriate subject of inquiry rests in the sound discretion of the
trial court.” Stevens, 2014 IL 116300, ¶ 16. Thus, defendant’s decision to testify at the
suppression hearing allowed the State the opportunity to cross-examine him, but only regarding
matters germane to the suppression hearing. According to defendant, his whereabouts prior to
driving on Wolf Road were beyond the scope of the suppression hearing. We disagree.
¶ 92 The trial court properly allowed the prosecutor to ask defendant about the circumstances
of the day, which were contemporaneous with the time of the traffic stop. A question regarding
where defendant was coming from prior to being on Wolf Road was relevant. Defendant testified
that he was driving legally on northbound Wolf Road when he was stopped by a black Tahoe
with flashing lights. In contrast, Chief Lukaszek stated that he observed defendant’s van driving
southbound on Wolf Road, when the van made an illegal U-turn to go northbound on Wolf Road.
Depending on defendant’s answer, his prior location could have further supported his testimony
that he had not broken any traffic laws and did not commit the burglary. Cross-examination
regarding defendant’s location prior to the traffic stop was relevant to the suppression hearing
and factored into whether the officers had a reasonable suspicion to stop defendant’s vehicle.
45
No. 1-13-0698
¶ 93 Moreover, by testifying, defendant had placed his credibility at issue and the State was
entitled to ask him questions about the events of the day. People v. Barner, 374 Ill. App. 3d 963,
971 (2007) (“By choosing to testify, a defendant puts his credibility on the line.”). The question
was asked several times because defendant evaded answering it. He responded with vague
contradictory answers about where he was going, such as, looking for a gas station, and looking
for a friend’s house. Defendant denied coming from 333 Jackson Boulevard in Hillside, but he
eventually answered that he could not recall. The question was relevant to assess defendant’s
credibility. As defendant concedes that the evidence at the suppression hearing was a credibility
contest, his own credibility was plainly relevant. It was further reasonable for the trial court to
rely on defendant’s responses to assess his credibility. Therefore, the trial court did not err in
allowing the State to inquire where defendant had been prior to driving on Wolf Road.
¶ 94 Defendant also argues that the trial court erred in allowing the State to ask if defendant
had any proceeds from the burglary in his van. Defendant contends that the prosecutor’s question
did not bear on any relevant legal fact and violated his rights. In support, defendant cites People
v. Smith, 67 Ill. App. 3d 952 (1978), but we find the conclusion in Smith does not support a
finding of plain error.
¶ 95 In Smith, during a suppression hearing, the prosecutor asked the defendant about the
contents of a box recovered from the defendant’s vehicle during a traffic stop. Over objection,
the defendant admitted the box held substances allegedly containing marijuana and substances
allegedly containing amphetamines. When the defendant was asked if he knew what the
substance was, the defendant refused to answer and invoked his fifth amendment rights. The trial
court subsequently denied the defendant’s motion to suppress “ ‘because of failure to answer
questions on cross-examination.’ ” Id. at 957.
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No. 1-13-0698
¶ 96 On appeal, the defendant argued that the trial court erred in denying the motion without
considering the merits. The reviewing court noted that the sole issue raised in the motion to
suppress was whether the warrantless search and seizure was unreasonable. “Defendant’s
testimony thereon at the hearing was limited to the events surrounding the search and seizure.
The prosecution inquiry on cross-examination of whether defendant knew what the substances
were – as to the question of to whom they belonged – was neither within the scope of direct
examination nor even germane to the issues raised by the motion to suppress.” Id. at 958. The
Smith court concluded that the trial court erred in overruling the defendant’s objections, but the
reviewing court ultimately held that the error was harmless. Id. at 959-60. “A defendant may not
avail himself of any error on his motion to suppress if the evidence both at the hearing on the
motion and at trial establishes the legality of the search and seizure thus rendering the product of
such to have been properly admissible.” Id. at 959.
¶ 97 Here, the police had a reasonable suspicion to stop defendant. Chief Lukaszek testified
that he received a report of a residential burglary at 333 Jackson Boulevard, less than a mile from
where he was driving. The report stated that a red Chevy van with two male black offenders fled
the scene and were driving on Madison Street toward Wolf Road. Within 10 seconds of the
report, Chief Lukaszek observed defendant’s red van driving southbound on Wolf Road. He then
saw the vehicle make an illegal U-turn to drive northbound. He curbed the vehicle, but as he
approached, the vehicle fled, driving approximately 85 mph and running three stop signs. The
van turned into a mall parking lot, jumped a curb, and slid down an embankment. Once the
vehicle stopped, the occupants fled on foot. Defendant was detained at the scene. Proceeds from
the burglary were found in the van. Based on this evidence, even if the prosecutor’s question
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No. 1-13-0698
exceeded the scope and the trial court erred in overruling defendant’s objection, any error was
harmless because the evidence supported a finding of probable cause.
¶ 98 Defendant also asserts that the trial court improperly relied on her own knowledge of the
area along Wolf Road outside of the record. We disagree. During cross-examination, the
prosecutor questioned defendant about his testimony that he was on Wolf Road looking for a gas
station. The prosecutor then asked defendant if he saw several gas stations along Wolf Road,
including intersections with Roosevelt Road, 22nd Avenue, and Cermak Road. Defendant
responded that he did not recall or remember seeing the gas stations. Again, these questions went
to defendant’s credibility. His testimony was that he was going to a gas station, but did not recall
seeing any of the gas stations along his path. He said he was unfamiliar with the area, but fled in
fear for his life to a populated area. The trial court properly concluded that defendant’s testimony
was not credible based on his conflicting testimony that he was unfamiliar with the area, but
knew where a mall was in the area. While the court did not refer to any gas stations beyond those
mentioned in the prosecutor’s questions to defendant, the difference was the court stated what
brand of gas station was at one intersection. This knowledge of the area, such that the judge
knew the gas station at Wolf Road and Roosevelt Road was a Citgo and was now a Shell station,
did not impact the court’s ruling. The trial court was not basing its ruling on information outside
of the record, but instead the court considered defendant’s vague and conflicting testimony
which was not error.
¶ 99 Next, defendant contends that the trial court erred in barring him from calling Detective
Milazzo to testify at the suppression hearing. Detective Milazzo was unable to appear at the
hearing due to a death in his family. At the conclusion of the hearing, defendant sought to call
the detective and the trial court asked if the detective’s testimony would be cumulative to Chief
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No. 1-13-0698
Lukaszek’s testimony. Defendant responded that he did not know, but intended to ask him the
same questions he asked Chief Lukaszek. The trial court found this testimony would be
cumulative. Evidence is considered cumulative when it adds nothing to what was already before
the fact finder. People v. Ortiz, 235 Ill. 2d 319, 335 (2009).
¶ 100 Defendant bases his contention that the testimony would not have been cumulative on
differences in Detective Milazzo’s trial testimony from Chief Lukaszek’s testimony at the
suppression hearing. Specifically, defendant focuses on Detective Milazzo’s testimony that the
red van was observed turning off southbound Wolf Road onto eastbound Harrison Street
compared to Chief Lukaszek’s testimony that he observed the red van make an illegal U-turn
from southbound Wolf Road to northbound, then turn onto Harrison Street. We find this
difference would make no difference when the officers had a reasonable suspicion to stop
defendant’s van. There is no dispute in their testimony that the red van was seen near Wolf Road
and Harrison Street immediately after the report of the burglary, which was less than a mile
away. Even if the trial court erred in finding that Detective Milazzo’s testimony would be
cumulative, defendant’s motion to suppress would not have been granted and does not amount to
plain error.
¶ 101 Regardless of whether the driver committed a traffic infraction, the officers had a
reasonable basis to detain defendant following the report of the burglary. Pursuant to Terry v.
Ohio, 392 U.S. 1 (1968), a police officer may, under appropriate circumstances, briefly detain a
person for investigatory purposes if the officer reasonably believes that the person has
committed, or is about to commit, a crime. Maxey, 2011 IL App (1st) 100011, ¶ 45 (citing Terry,
392 U.S. at 21-22). “To justify a Terry stop, a police officer may detain a person without having
probable cause to arrest; however, the officer must have a reasonable, articulable suspicion that
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No. 1-13-0698
the person detained has committed or is about to commit a crime.” Id. ¶ 46 (citing Terry, 392
U.S. at 21-22). “Under a ‘reasonable suspicion’ standard, the evidence necessary to justify a
Terry stop need not rise to the level of probable cause and can even arise when no violation of
the law is witnessed; however, a mere hunch is insufficient.” Id.
¶ 102 The circumstances of defendant’s stop in this case are strikingly similar to defendant’s
prior arrest for attempted aggravated robbery. In that case, as previously discussed, defendant
represented himself pro se at a suppression hearing. The testimony disclosed that Aselo
Hernandez and his son Hector were working at Hector’s Upholstery Store on South Western
Avenue in Chicago when defendant entered with a handgun and said it was a robbery. During a
struggle, the gun was knocked from defendant’s grip and found to be a fake. Defendant fled and
Hector ran after defendant. An officer testified that in an interview following the robbery, Hector
said defendant fled in a red or maroon Oldsmobile with temporary license plates. During the
course of the officer’s testimony, the trial court advised defendant that he needed the assistance
of an attorney to properly present his motion. Defendant agreed and requested counsel. The
hearing was continued for several months. Id. ¶¶ 4-11.
¶ 103 At the continued hearing, a police officer testified that he was driving an unmarked police
car when he heard the radio call of the robbery and drove near an intersection reported in a
transmission and within two to three minutes observed a red or burgundy vehicle with temporary
plates driving east on 103rd Street. The officer then curbed vehicle. He stated that the distance
from the traffic stop to the upholstery store was approximately one mile. Id. ¶¶ 14-17. The trial
court granted defendant’s motion to suppress, but the reviewing court reversed, finding that the
police had a reasonable suspicion to justify the Terry stop, which ripened into probable cause. Id.
¶ 68. “Considering the totality of the circumstances, the facts known to the officer at the time of
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No. 1-13-0698
the arrest were sufficient to lead a reasonably cautious person to believe that defendant was the
suspect in the attempted robbery at the upholstery store, and thus the arrest was lawful.” Id. ¶ 75.
¶ 104 Likewise, in the instant case, the testimony of both officers, whether at the suppression
hearing or at trial, showed that defendant’s red van matched the description of the perpetrators’
vehicle and was seen less than a mile from the location of the burglary within seconds of the
radio call. Any discrepancy in the testimony does not negate these facts and even if defendant
did not commit a traffic violation, the officers had reasonable suspicion to detain defendant for a
Terry stop. Defendant’s flight from the stop further ripened into probable cause to arrest. No
plain error occurred in denying defendant’s request to present Detective Milazzo’s testimony at
the suppression hearing.
¶ 105 Next, defendant asserts that the trial court did not obtain a knowing and voluntary jury
waiver before proceeding with a bench trial. The State maintains that defendant executed a
knowing and voluntary waiver of his right to a jury trial. The State again initially contends that
this issue has been forfeited because defendant failed to raise this claim before the trial court.
Defendant admits that he failed to preserve this issue, but asks this court to review it under the
plain error rule. Defendant argues that the validity of a jury waiver is reviewable under the
second prong of plain error because it affected his substantial rights. See Ill. S. Ct. R. 615(a) (eff.
Jan. 1, 1967). As previously stated, “[t]he first step of plain-error review is to determine whether
any error occurred.” Lewis, 234 Ill. 2d at 43.
¶ 106 “The right to a trial by jury is a fundamental right guaranteed by our federal and state
constitutions.” People v. Bracey, 213 Ill. 2d 265, 269 (2004); see also U.S. Const., amends. VI,
XIV; Ill. Const. 1970, art. I, § 8. Nevertheless, a defendant can waive his right to a jury trial, but
for a waiver to be valid, it must be knowingly and voluntarily made. Bracey, 213 Ill. 2d at 269.
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No. 1-13-0698
See also 725 ILCS 5/103-6 (West 2010). Under section 115-1 of the Code of Criminal Procedure
of 1963, a jury waiver must be in writing. 725 ILCS 5/115-1 (West 2010).
¶ 107 The trial court has a duty to ensure that the defendant waived his right to a jury trial
“expressly and understandingly.” People v. Bannister, 232 Ill. 2d 52, 66 (2008). “However, a
trial court need not give any specific admonition or advice for a defendant to make an effective
jury waiver.” Id. “Whether a jury waiver is valid cannot be determined by application of a
precise formula, but rather turns on the particular facts and circumstances of each case.” Bracey,
213 Ill. 2d at 270. The statutory requirement for a written jury waiver does not “define or give
substance to the constitutional right to choose whether to have a jury trial. Rather, a written jury
waiver merely memorializes the defendant’s decision, allowing a court to review the record to
ascertain whether a defendant’s jury waiver was made understandingly.” Bannister, 232 Ill. 2d at
66. “Generally, a jury waiver is valid if it is made by defense counsel in defendant’s presence in
open court, without an objection by defendant.” Bracey, 213 Ill. 2d at 269.
¶ 108 Immediately prior to the start of the bench trial, the trial court discussed defendant’s
written jury waiver. Defendant had executed a written waiver, which stated “I, the undersigned,
do hereby waive jury trial and submit the above entitled cause to the Court for hearing.” The
court then confirmed that it was defendant’s signature on the written waiver. The court
admonished defendant that he was giving up his right to have a trial by jury and asked him if he
knew what a jury trial was. Defendant responded in the affirmative to both inquiries.
¶ 109 Defendant argues that this exchange did not show an understanding and voluntary waiver
of a jury trial because the court failed to explain anything about the rights to a jury trial as well as
explain the concept of a bench trial.
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No. 1-13-0698
¶ 110 Based on the record before this court, we find no error in the execution of defendant’s
jury waiver. In addition to defendant’s written waiver and statement that he understood what a
jury trial was and his waiver of that right as noted above, defense counsel had previously
indicated that the case would likely be a bench trial. In October 2012, the trial court at a status
hearing was attempting to set the trial date and asked if the case would be a jury trial or bench
trial. Defense counsel answered, “We certainly think at this point it’s a bench trial.” Defendant
did not object to his counsel’s statement. Further, the trial court discussed defendant’s other
pending case and asked defendant if that case was bench trial or jury trial, and defendant
answered, “Jury.” At the conclusion of the proceedings, the court noted the date for trial and
“bench indicated,” without objection. Moreover, as previously recognized, defendant has
extensive experience with the criminal justice system. Even if we did not consider defendant’s
criminal history, the trial court did not err in obtaining defendant’s written jury waiver, when
defendant orally affirmed he understood his right to a jury trial on the record. We conclude that
defendant knowingly and voluntarily waived his right to a jury trial.
¶ 111 We are unpersuaded by cases cited by defendant. In People v. Phuong, 287 Ill. App. 3d
988 (1997), a recent Chinese immigrant was charged with retail theft and received a court-
appointed attorney. Prior to trial, the defendant signed a written jury trial waiver that had been
translated from English into Chinese. Id. at 991. The trial court informed the defendant that she
could be tried by either a judge or a jury without further elaboration. Defense counsel stated that
the defendant had agreed to a bench trial. Id. On appeal, the appellate court reversed the
defendant’s conviction, finding that her jury trial waiver had not been made knowingly. Id. at
996. The reviewing court pointed out that the defendant did not speak English and had no prior
involvement in the American criminal justice system. Id. Although the court acknowledged that
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No. 1-13-0698
the defendant had signed a written jury trial waiver form, it indicated that it was “not convinced
that the mere translation of the waiver form adequately conveyed its meaning to defendant.” Id.
The court observed that “[i]f defendant did not understand the nature of a jury or its function
within the system, then she would not understand the ramifications of her waiver of that right.”
Id. Similarly, in People v. Murff, 69 Ill. App. 3d 560, 564 (1979), the reviewing court found the
jury waiver inadequate to show that the defendant, who was undergoing psychiatric treatment for
schizophrenia, understood and that “a greater concern or consideration may have been
necessary” under the circumstances. Nothing similar to these unique circumstances was present
in this case.
¶ 112 Defendant next contends that the State’s evidence failed to prove the charge of
aggravated fleeing or attempting to elude a peace officer. When considering a challenge to the
sufficiency of the evidence, our inquiry is limited to “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia,
443 U.S. 307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001).
¶ 113 Fleeing or attempting to elude a peace officer is defined in the Illinois Vehicle Code as
follows:
“Any driver or operator of a motor vehicle who, having been given
a visual or audible signal by a peace officer directing such driver or
operator to bring his vehicle to a stop, wilfully fails or refuses to
obey such direction, increases his speed, extinguishes his lights, or
otherwise flees or attempts to elude the officer, is guilty of a Class
A misdemeanor. The signal given by the peace officer may be by
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hand, voice, siren, red or blue light. Provided, the officer giving
such signal shall be in police uniform, and, if driving a vehicle,
such vehicle shall display illuminated oscillating, rotating or
flashing red or blue lights which when used in conjunction with an
audible horn or siren would indicate the vehicle to be an official
police vehicle.” 625 ILCS 5/11-204(a) (West 2010).
¶ 114 Aggravated fleeing or attempting to elude a peace officer is committed by any driver who
flees or attempts to elude a peace officer, after being given a visual or audible signal by a peace
officer in the manner prescribed in subsection (a) of section 11-204 of this Code, and such flight
or attempt to elude: (1) is at a rate of speed at least 21 miles per hour over the posted speed limit;
(2) causes bodily injury to an individual; (3) causes damage to property in excess of $300; (4)
involves disobedience of two or more official traffic control devices; or (5) involves the
concealing or altering of the vehicle’s registration plate. 625 ILCS 5/11-204.1(a) (West 2010).
¶ 115 Defendant argues that the State failed to prove that the officers attempting to make the
stop were in uniform and that an officer in a vehicle must have certain lights on the vehicle. In
support of his argument, defendant relies on the Second District decision of People v. Murdock,
321 Ill. App. 3d 175 (2001).
¶ 116 In Murdock, the defendant was found guilty of aggravated fleeing or attempting to elude
a peace officer, and on appeal, contended that there was no evidence presented that the officer
pursuing him was in a police uniform. Id. at 176. The Second District “carefully reviewed the
evidentiary record and can find no evidence presented concerning the clothing the officer wore
on the day in question. Moreover, the State failed to ask the arresting officer whether he was
wearing a police uniform at the time of the pursuit.” Id. The reviewing court rejected the State’s
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argument that “because the officer activated his overhead emergency lights and siren, defendant
should have known that the pursuer was a police officer and the purpose of the statute would be
fulfilled by upholding the conviction.” Id. at 177. The Murdock court concluded that “proof of an
essential element of the offense is lacking in this case” and accordingly, the court reversed
defendant’s conviction and vacated the corresponding sentence. Id.
¶ 117 The State admits that Murdock supports defendant’s argument, but maintains that the
decision was wrongly decided. “Although the statute may be read to mandate that the officer
must be in uniform before the defendant can be charged with fleeing and eluding a police officer,
here the goal of the statute is plainly met by defendant’s pulling over in the first place.” The
State further contends that “[t]he legislature clearly did not mean to provide protection to solely
uniformed officers, and if defendant subjectively believed he was fleeing from the police, the
purpose of the law is met.”
¶ 118 Recently, the Second Division of the First District addressed the same issue in People v.
Williams, 2015 IL App (1st) 133582, and adhered to Murdock’s finding that an essential element
of the offense of aggravated fleeing or attempting to elude a peace officer is that the officer be in
uniform. The Williams court also considered the State’s objections to the holding in Murdock.
“Citing the legislative history, the State asserts that the statute’s intent was to punish people who
knowingly flee from the police, and, therefore, the uniform requirement can only be read as a
way to exclude those trying to escape a dangerous situation, not as a bar on prosecution of people
willfully fleeing the police.” Id. ¶ 12. The reviewing court then discussed the principles of
statutory construction. The court observed when considering a question of statutory construction,
“the court’s objective involves ascertaining and carrying out the ‘true intent and meaning of the
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legislature evidenced by the language used.’ ” Id. ¶ 13 (quoting Langendorf v. City of Urbana,
197 Ill. 2d 100, 109 (2001)).
“Indeed, our inquiry ‘always begin[s] with the language of the
statute, which is the surest and most reliable indicator of legislative
intent.’ People v. Pullen, 192 Ill. 2d 36, 42 (2000). We give
undefined statutory words and phrases their natural and ordinary
meaning. Id. And we enforce the clear and unambiguous language
as written without resort to other aids of construction, e.g.,
referring to legislative history. People v. Fitzpatrick, 158 Ill. 2d
360, 364-65 (1994). In addition, it is not the role of the court to act
as editor ‘correcting’ apparent legislative oversights under the
guise of statutory interpretation.” Id.
¶ 119 In light of these principles, the Williams court concluded that “the plain language of
section 11-204(a) of the Illinois Vehicle Code requires a pursuing officer be in police uniform
for a defendant to be found guilty of fleeing or attempting to elude a peace officer.” Id. ¶ 14.
“Because of the clear and unambiguous statutory language, we do not inquire into the legislative
history relied on by the State in its brief.” Id.
¶ 120 Here, the evidence failed to establish the essential element that the officers were in
uniform. Detective Milazzo’s testimony at trial failed to mention what the officers were wearing
at the time of the stop. Detective Milazzo testified he was a passenger in a vehicle driven by
Chief Joseph Lukaszek. He received a call for a burglary at 333 Jackson Boulevard which
mentioned a red van leaving the scene, and the officers were driving near Wolf Road and
Harrison Street, about half a mile from the burglary. Detective Milazzo stated that they saw a red
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van turning from southbound Wolf Road onto eastbound Harrison Street. The chief activated the
police lights and effected a traffic stop of the van on Harrison Street. No evidence was presented
at trial that the officers were in uniform, as required by section 11-204.
¶ 121 Additionally, both Williams and Murdock rejected the State’s assertion that if defendant
believed he was fleeing from the police, then the goal of the statute was met. As the Williams
court found, “[t]he operative concern, as in Murdock, is not whether [the defendant] knew the
police were following him; but rather, whether the requirements of the statute have been met.”
Id. ¶ 16. Because the clear and unambiguous language of the statute requires proof that the police
officers were in uniform, defendant’s conviction cannot stand. Accordingly, we reverse
defendant’s conviction for aggravated fleeing or attempting to elude a peace officer and vacate
his three-year sentence on this conviction.
¶ 122 Since we have found that the State failed to prove an essential element of the offense
which mandated reversal of the conviction, we need not address whether the State also failed to
present evidence that the officers’ vehicle had the lights required by the aggravated fleeing
statute.
¶ 123 Finally, defendant argues that the fines and fees order should be reduced by $24 to reflect
improperly imposed fines and full credit for time spent in custody prior to trial. Specifically,
defendant contends that the electronic citation, Public Defender Records Automation, and State’s
Attorney Records Automation fees should be vacated, and a credit should be applied to the State
Police Operations fee.
¶ 124 “[A] ‘fine’ is a part of the punishment for a conviction, whereas a ‘fee’ or ‘cost’ seeks to
recoup expenses incurred by the state—to ‘compensat[e]’ the state for some expenditure incurred
in prosecuting the defendant.” People v. Jones, 223 Ill. 2d 569, 582 (2006).
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“ ‘A “fine” is a pecuniary punishment imposed as part of a
sentence on a person convicted of a criminal offense. People v.
Despenza, 318 Ill. App. 3d 1155, 1157 (2001). A “cost” is a charge
or fee taxed by a court such as a filing fee, jury fee, courthouse fee,
or reporter fee. Despenza, 318 Ill. App. 3d at 1157. Unlike a fine,
which is punitive in nature, a cost does not punish a defendant in
addition to the sentence he received, but instead is a collateral
consequence of the defendant’s conviction that is compensatory in
nature. People v. Terneus, 239 Ill. App. 3d 669, 672 (1992). A
“fee” is a charge for labor or services, especially professional
services. Black’s Law Dictionary 629 (7th ed. 1999).’ ” (Emphasis
omitted.) Id. at 581 (quoting People v. White, 333 Ill. App. 3d 777,
781 (2002)).
¶ 125 The State agrees that the electronic citation fee should be vacated if this court reverses
defendant’s conviction for aggravated fleeing or attempting to elude a peace officer, which we
have done. Section 27.3e of the Clerks of Courts Act provides: “To defray the expense of
establishing and maintaining electronic citations, each Circuit Court Clerk shall charge and
collect an electronic citation fee of $5. Such fee shall be paid by the defendant in any traffic,
misdemeanor, municipal ordinance, or conservation case upon a judgment of guilty or grant of
supervision.” 705 ILCS 105/27.3e (West 2010). Defendant’s remaining residential burglary
conviction is a felony and does not fall under section 27.3e and, therefore, the $5 electronic
citation fee is vacated.
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¶ 126 Next, the State agrees that defendant is entitled to presentence credit for $15 State Police
Operations charge pursuant to section 27.3a(1.5) (705 ILCS 105/27.3a(1.5) (West 2010)).
“Under section 27.3a(1.5) of the Clerks of Courts Act, a circuit clerk in any county that imposes
a fee for maintaining automated record keeping systems pursuant to section 27.3a(1) of the
Clerks of Courts Act must collect an additional fee, the State Police operations assistance fee, to
be paid by the defendant in any felony, traffic, misdemeanor, or local ordinance violation upon a
judgment of guilty or grant of supervision.” People v. Millsap, 2012 IL App (4th) 110668, ¶ 31;
see also 705 ILCS 105/27.3a(1.5) (West 2010).
“Section 27.3a(5) requires that the circuit clerk remit the fees
collected under section 27.3a(1.5) to the State Treasurer to be
deposited into the State Police Operations Assistance Fund. 705
ILCS 105/27.3a(5) (West 2010). Moneys in the State Police
Operations Assistance Fund may be used by the Illinois
Department of State Police to ‘finance any of its lawful purposes
or functions.’ 30 ILCS 105/6z-82(b) (West 2010) (text of section
as added by Public Act 96-1029 (eff. July 13, 2011)). Additionally,
the legislature subsequently amended section 27.3a, effective
August 19, 2011, to allow the Director of the State Police to use
State Police operations assistance fees for homeland security
purposes. See 705 ILCS 105/27.3a(6) (West Supp. 2011).
Accordingly, we find that the State Police Operations Assistance
fee does not reimburse the State for costs incurred in defendant’s
prosecution.” Millsap, 2012 IL App (4th) 110668, ¶ 31.
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¶ 127 Since the state operations charge under section 27.3a(1.5) is a fine, defendant is entitled
to presentence credit toward it. See 725 ILCS 5/110-14(a) (West 2010) (“Any person
incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon
application of the defendant.”).
¶ 128 Defendant also argues that the assessments of $2 each for the Public Defender Records
Automation fee (55 ILCS 5/3-4012 (West 2010)) and the State’s Attorney Records Automation
fee (55 ILCS 5/4-2002(a) (West 2010)) were error because the charges amounted to fines
imposed in violation of ex post facto principles since the enactment of the fines was June 1,
2012, after the date of the offense in this case, April 18, 2011.
¶ 129 In People v. Rogers, 2014 IL App (4th) 121088, ¶ 30, the Fourth District held that the
State’s Attorney Records Automation is a fee which is intended to reimburse the State’s
Attorneys for expenses related to automated record-keeping systems, and is not subject to the
prohibition against ex post facto laws. Id. (“ ‘The prohibition against ex post facto laws applies
only to laws that are punitive. It does not apply to fees, which are compensatory instead of
punitive.’ ” (quoting People v. Dalton, 406 Ill. App. 3d 158, 163 (2010))).
¶ 130 This court has previously adhered to the conclusion reached in Rogers that the State’s
Attorney Records Automation fee is not subject to ex post facto concerns, and we see no reason
to depart from that holding. See People v. Bowen, 2015 IL App (1st) 132046, ¶ 64. Likewise,
“because the statutory language of both the Public Defender and State’s Attorney Records
Automation fees is identical except for the name of the organization, we find no reason to
distinguish between the two statutes, and conclude both charges constitute fees which were
properly assessed.” Id. ¶ 65 (citing 55 ILCS 5/3-4012, 4-2002.1(c) (West 2012)).
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¶ 131 Based on the foregoing reasons, we affirm defendant’s conviction and sentence for
residential burglary, and reverse his conviction for aggravated fleeing or attempting to elude a
peace officer and vacate the sentence of three years imposed on that conviction. Pursuant to this
court’s authority to correct a mittimus without remand (People v. Rivera, 378 Ill. App. 3d 896,
900 (2008)), we direct the clerk of the circuit court to correct the fines and fees order to reflect
that defendant’s presentence credit applies to his $15 State Police Operations fine, and vacate the
$5 electronic citation fee.
¶ 132 Affirmed in part, reversed in part; fines and fees order corrected.
¶ 133 Ellis, J., concurring in part and dissenting in part.
¶ 134 I concur in the reversal of defendant’s conviction for aggravated fleeing. I also agree that
defendant’s waiver of a jury trial was knowing and voluntary. I respectfully dissent from the
majority’s holding that the trial court substantially complied with Rule 401(a).
¶ 135 The trial court admonished defendant that he was facing a sentence of 4 to 15 years if
convicted of residential burglary, when it was really 6 to 30 years, and the trial court ultimately
sentenced defendant to 20 years for that crime. The court understated the maximum sentence by
half and sentenced defendant to more years than the court (mistakenly) promised was the
maximum sentence.
¶ 136 Another appellate court faced these identical facts: the defendant was facing 6 to 30 years
due to his Class X status; he was told his sentencing range was 4 to 15 years; and he ultimately
received 20 years. That court “fail[ed] to see compliance of any sort” with Rule 401(a) in these
admonishments. People v. LeFlore, 2013 IL App (2d) 100659 ¶ 53, aff’d in part, rev’d in part on
other grounds, 2015 IL 116799 (supreme court reversed on separate fourth amendment issue,
after State conceded error on Rule 401(a) violation). I think the LeFlore appellate decision was
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correctly decided on the Rule 401(a) issue, as apparently did the State, which conceded the error
before the supreme court and agreed that reversal was warranted due to the incompetent
admonishments. People v. LeFlore, 2015 IL 116799, ¶¶ 13, 72. We cannot glean precedential
value from a party’s concession, but it is notable that the State did not even try to argue
compliance with Rule 401(k) under facts quite similar to ours.
¶ 137 The principal disagreement between the majority’s decision and this dissent is the notion
that defendant had sufficient knowledge to understand the maximum sentence in this case, even
though the trial judge did not. For one thing, the record does not bear out that conclusion. When
the trial court told defendant that his maximum sentence for residential burglary was 15 years,
defendant replied, “Right.” He did not correct the trial judge or indicate confusion in any way.
He did nothing more or less than indicate that he understood and agreed with the trial court’s
stated maximum sentence of 15 years.
¶ 138 Nor should we expect more of a criminal defendant than we do of seasoned trial judges,
not to mention the prosecutor in the courtroom that failed to correct the judge’s mistake. It
should be “the unusual case” that we find that a defendant “has such a high degree of legal
expertise that one may confidently assume he or she already knows the maximum penalty.”
People v. Bahrs, 2013 IL App (4th) 110903, ¶ 15. We should not assume here that defendant was
so sure of himself, so confident in his legal sophistication and knowledge, that he would exalt his
own understanding of the sentencing laws over that of an experienced trial judge. See LeFlore,
2013 IL App (2d) 100659, ¶ 58 (“We are not prepared to ascribe to defendant a heightened level
of legal sophistication based on * * * the supposedly osmotic experience of being repeatedly
arrested and convicted. A long rap sheet is not the equivalent of a Juris Doctorate, and
recidivism with punishment infers a perverse level of sophistication.”).
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¶ 139 As the majority notes, defendant had been sentenced as a Class X mandatory felon in the
past. And yes, he previously indicated, in another case in a different courtroom concerning a
different charge, that he was aware of his Class X status. But it does not follow that defendant
knew that he was facing a sentencing range of 6 to 30 years if convicted of residential burglary.
¶ 140 Maybe defendant thought his Class X status did not apply to a charge for residential
burglary. Maybe he did not know that the charge for simple residential burglary was 4 to 15
years, and he thought that the 4-to-15 range the circuit judge gave him was the elevated sentence
based on his Class X status. As a matter of law, those would be incorrect assumptions, but we are
not talking about what was actually, legally correct. We are talking about what this defendant
knew and understood, after the trial judge explicitly told him his maximum sentence was 15
years. No matter what defendant might have thought he understood before being admonished,
any reasonable person in his shoes would re-think his own understanding of the sentencing laws
after being admonished otherwise by the judge. The criminal sentencing statutes, after all, are not
exactly light reading. As we have frequently noted, even lawyers and judges have been known,
from time to time, to misstate or misapply them. 2
¶ 141 The very point of Rule 401(a) is to leave it to the judge—hopefully with an assist from
the prosecutor—to navigate the myriad sentencing laws and statutory cross-references to inform
otherwise uninformed defendants of the sentences they may face if convicted. That did not
2
See, e.g., People v. Whitfield, 228 Ill. 2d 502, 506 (2007) (State mistakenly advised court of
defendant's criminal history; defendant was ineligible for probation and subject to mandatory Class X
sentence); People v. Douglas, 2014 IL App (4th) 120617, ¶ 45 (remanding for new sentencing hearing;
trial court erred in sentencing defendant as Class X offender); People v. Ellis, 375 Ill. App. 3d 1041, 1045
(2007) (court erroneously told defendant he faced sentence as Class 2 felon when he was actually required
to be sentenced as Class X offender); People v. Baaree, 315 Ill. App. 3d 1049, 1053 (2000) (where
relevant statute, by its terms, did not apply to defendant, trial court erred in finding defendant subject to
mandatory Class X sentencing); People v. Hare, 315 Ill. App. 3d 606 (2000) (defendant was subject to
Class X sentencing and applicable minimum sentence was six years, but State agreed, in exchange for
guilty plea, to recommend four-year sentence which trial court imposed but later vacated as void).
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happen here. However hardened a criminal defendant may be, we should not expect him to know
more than the trial judge; his response of “Right” to the incorrect admonishment suggests he did
not know more; and thus I would find noncompliance with Rule 401(a).
65