People v. Maxey

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Appellate Court Date: 2019.01.02
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People v. Maxey, 2018 IL App (1st) 130698-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LAMARR MAXEY, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-13-0698
Filed September 13, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-07414-01;
Review the Hon. Noreen V. Love, Judge, presiding.
Judgment Affirmed in part and reversed in part; fines and fees order corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Jonathan Krieger, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Matthew Connors, and John J. Sviokla II, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE McBRIDE delivered the judgment of the
court, with opinion.
Justice Howse concurred in the judgment and opinion.
Justice Ellis concurred in part and dissented in part, 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) (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—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.
1
Defendant was later charged by indictment with attempted first degree murder and attempted
armed robbery.
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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 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?
THE COURT: Did you file an order? Did you file an order preserving them?
DEFENDANT: I asked you last time I was here.
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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?
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 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
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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 that 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 disc 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 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, 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
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burglary from the victim, 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 Street. 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.
¶ 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 Detective 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.
¶ 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
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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 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 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
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,
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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 Milazzo testified that at approximately 11 a.m. on April 18, 2011, he was a
passenger in a vehicle driven by Chief 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 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.
¶ 32 This appeal followed.
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¶ 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). Illinois
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 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)).
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¶ 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 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 [to] competently and
intelligently *** 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 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); 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
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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 App (1st) 122626, ¶ 113, appeal denied, No. 120864 (Ill. Sept. 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, 2013 IL App (2d) 100659, aff’d in part & rev’d in part on other
grounds, 2015 IL 116799, 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.’ ” LeFlore, 2013 IL App (2d) 100659, ¶ 52 (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
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.
¶ 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.
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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.
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.”
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.
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¶ 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 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 that 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 that “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.
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¶ 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 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 (Ill. 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.¶ 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
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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.
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 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.
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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 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 (citing 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
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
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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 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 he 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 Illinois 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
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
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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 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 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.
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,
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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 (citing
Johnson, 119 Ill. 2d at 134).
¶ 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 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
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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 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
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
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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 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 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
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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 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
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
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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
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 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
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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 (“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.
¶ 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
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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.
¶ 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 was 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 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 its 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.
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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 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 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.- 26 -
¶ 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 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; see also 725 ILCS 5/103-6 (West 2010). Under section 115-1 of the Code of
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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 269. 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 270.
¶ 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.
¶ 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
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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 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 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 mph 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
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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 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 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
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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 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).
“ ‘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
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burglary conviction is a felony and does not fall under section 27.3e, and therefore, the $5
electronic citation fee is vacated.
¶ 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.
¶ 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 2012)) and the state’s attorney records automation
fee (55 ILCS 5/4-2002(a) (West 2012)) 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 that 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. “ ‘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.’ ” Id. (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 and reversed in part; fines and fees order corrected.
¶ 133 JUSTICE ELLIS, 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 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. 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 (“[W]e are not prepared to ascribe to defendant
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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.”).
¶ 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-year 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 rethink 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 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).
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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