People v. Belk

• Court: Appellate Court of Illinois
• Decided: September 10, 2010
• Docket: 4-09-0829 Rel
• Status: Published

Opinion

NO. 4-09-0829 Filed 9/10/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court v. ) Champaign County CAMERON N. BELK, SR., ) No. 06CF1573 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

After a jury trial in August 2008, defendant, Cameron

N. Belk, Sr., was found guilty of two counts of aggravated

criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006)). In

September 2008, he was sentenced to 42 months in the Illinois

Department of Corrections (DOC) on each count, to be served

concurrently. Fines and fees were ordered to be paid from posted

cash bond. Defendant filed a motion to revise sentence but also

appealed his conviction and sentence. This court dismissed

defendant's appeal and remanded the case to the trial court for a

resolution of the motion to revise sentence. People v. Belk, No.

4-09-0090 (August 27, 2009) (unpublished order under Supreme

Court Rule 23). After a hearing on his motion, defendant was

sentenced to three years in DOC on each count, to be served

concurrently. Defendant again appealed his conviction and

sentence, claiming the trial court erred in requiring him to

proceed to trial pro se without a waiver of counsel. We affirm. I. BACKGROUND

On October 3, 2006, defendant was arraigned on two

counts of aggravated criminal sexual abuse. On defendant's

motion, the case was continued to October 11, 2006, for the

appearance of counsel. On October 4, 2006, defendant posted

$1,500 bond.

On October 6, 2006, privately retained counsel entered

his appearance as defendant's counsel. After this, the case was

continued 16 times, 8 times on defendant's motion, once on the

State's motion and 7 times by agreement.

On April 23, 2008, defense counsel filed a motion to

withdraw as counsel on the following grounds: (1) defendant did

not want counsel to represent him; (2) defendant "wants to

represent himself because he disagrees with the way counsel is

presenting his case"; (3) there were "irreconcilable differences"

between counsel and defendant; and (4) defendant had not kept

"his commitments and obligations to the law firm." The motion

was accompanied by defendant's signed consent to the withdrawal

and his stated understanding "pursuant to Supreme Court Rule 13,

I must obtain new counsel within 21 days and have that new

attorney enter his/her appearance in these proceedings or I will

be required to appear pro se, and represent myself."

The same day, the trial court asked defense counsel if

defendant intended to hire new counsel and counsel replied he was

uncertain. Defendant told counsel he wanted to represent himself

the last time they had spoken. The court allowed the motion to

- 2 - withdraw and continued the case to April 28, 2008, to see if

defendant was going to retain new counsel or proceed pro se.

On April 28, 2008, the trial court told defendant he

had three options: retain new counsel of his choice, have counsel

appointed for him, if indigent, or represent himself. The court

asked defendant if he was "going to be able to hire an attorney"

and defendant said yes, he was seeking private counsel and had a

meeting scheduled "this week" with Robert Campbell of Chicago.

In response to the court's inquiry, defendant stated he should

have an attorney hired "within the next week or so." The court

continued the case to May 27, 2008.

On May 27, 2008, defendant informed the trial court he

had hired Campbell. The State told the court the case was ready

for trial and the court continued the case to June 16, 2008, for

appearance of counsel and scheduling the trial.

A docket entry for June 16, 2008, states defendant

appeared in court pro se, and on joint motion of the State and

defendant, the case was continued for trial scheduling to June

20, 2008. The same day, defendant wrote the State and requested

all discovery be forwarded to Campbell "so that he can review the

case and give *** an accurate quote for his legal services."

Docket entries in the case show defendant appeared

again pro se on June 20, 2008. On joint motion, the case was

continued to June 23, 2008, for trial scheduling. On June 23,

2008, defendant appeared pro se and on joint motion the case was

continued to June 24, 2008, for trial scheduling.

- 3 - On June 24, 2008, defendant again appeared pro se and

told the trial court he had not been able to hire Campbell yet

because he was waiting on the money to do so, as he told court in

previous appearances. Defendant stated if the court would not

afford him the time to wait for money to hire private counsel, he

would like the State to give him evidence and witness lists so he

could prepare the case himself. The court offered to appoint the

public defender, but defendant replied he wanted "good counsel"

and that is why he and his family were trying to raise money for

private counsel. The court responded public defenders are good

lawyers and stated if defendant did not have the money to hire

Campbell, then his choice was to represent himself or accept

appointment of the public defender.

The State declared ready for trial. The trial court

asked defendant when he would have the money for private counsel

and defendant responded around July 20, 2008. The court set a

trial date of July 21, 2008, whether defendant had private

counsel or not and directed the State to provide all discovery to

defendant. The court again offered to appoint the public de-

fender, but defendant declined.

On July 15, 2008, defendant filed a pro se motion to

continue for 60 days on the grounds he is "inexperienced and

needs more than the 28 days allotted to prepare" his case. He

claimed the State's discovery materials are different from those

given his original counsel; original defense counsel had 18

months to prepare for trial; he was waiting on evidence he

- 4 - subpoenaed from the Urbana police "today"; and he needed 60 more

days to prepare "appropriately" to represent himself.

On July 21, 2008, the trial court addressed defendant's

motion to continue prior to trial. The court noted three months

prior, when defense counsel withdrew, defendant had the chance to

obtain private counsel. During that three-month period the court

repeatedly offered to appoint the public defender for defendant.

Given the age of the case, the court stated it was not going to

allow defendant 60 more days to hire private counsel. Defen-

dant's choice was now acceptance of the appointment of the public

defender or proceeding pro se. Defendant refused appointment of

the public defender.

The trial court concluded there was no reason to

believe after a continuance defendant would be able to hire an

attorney. It was three months since defense counsel withdrew and

a 60-day continuance would place the delay at five months and

defendant still would not have a lawyer.

The trial court then gave defendant the required

admonitions for waiver of counsel pursuant to Supreme Court Rule

401 (134 Ill. 2d R. 401). The court finished its admonitions and

told defendant it would appoint counsel or defendant was going to

go to trial. These were his choices. The court stated it was

not going to allow defendant to continue to delay this case "over

and over and over again. Ninety days has been more than enough

time. If you can't hire a lawyer, then I'll appoint one to

represent you." Defendant responded he wanted to hire a lawyer

- 5 - but the court "won't give him enough time." Original defense

counsel "had almost two years and, and you give me 90 days?"

Defendant stated that was not fair. The court responded "we're

going to trial."

Defendant represented himself at trial. In closing

argument, defendant told the jury he was not representing himself

out of arrogance or because he thought he could do it better than

an attorney but it was by default. He could not afford to hire

"another attorney." He was "faced with the daunting proposition

of dealing with the public defender" and he did not want that

because he did not think the public defender could represent him

as well as he could because he knew the case better than anyone.

Therefore, he took the opportunity to represent himself.

The jury convicted defendant and the trial court set

sentencing for September 10, 2008.

On September 10, 2008, defendant filed a motion for a

new trial. Among the arguments in the motion, defendant con-

tended he received inadequate counsel. He made several allega-

tions against original defense counsel but also argued he was

forced to represent himself after he fired his attorney and was

not allowed enough time to obtain a replacement attorney.

Further, he had to select a jury with no prior knowledge or

training. The trial court denied the motion and sentenced

defendant.

This appeal followed.

- 6 - II. ANALYSIS

On appeal, defendant contends he did not waive his

right to counsel despite representing himself at trial. He

argues there is no verbatim record of his waiver of counsel, as

required by Supreme Court Rule 401(b), because he "never actually

waived his right to counsel" after the trial court gave him the

complete Rule 401(a) admonitions.

As the facts are not in question, defendant contends

the issue of whether he waived his right to counsel should be

reviewed de novo. See In re R.A.B., 197 Ill. 2d 358, 362, 757

N.E.2d 887, 890 (2001) (reviewing de novo whether a respondent

knowingly waived his right to a jury trial where the facts are

not in question). However, the State contends in order to

determine whether a defendant's waiver of his right to counsel

was "clear and unequivocal," a trial court must consider the

overall context of the proceedings. People v. Mayo, 198 Ill. 2d

530, 538, 764 N.E.2d 525, 530 (2002), quoting People v. Burton,

184 Ill. 2d 1, 22, 703 N.E.2d 49, 59 (1998). It is well estab-

lished this determination is reviewed only for abuse of discre-

tion. Mayo, 198 Ill. 2d at 539, 764 N.E.2d at 531; Burton, 184

Ill. 2d at 25, 703 N.E.2d at 60; People v. Dixon, 366 Ill. App.

3d 848, 852, 853 N.E.2d 1235, 1240 (2006), quoting People v.

Hughes, 315 Ill. App. 3d 86, 91, 733 N.E.2d 705, 709 (2000).

Under either standard, we conclude the judgment of the trial

court should be affirmed.

The proper procedure for a trial court to follow when a

- 7 - defendant seeks to waive counsel is to admonish him pursuant to

Supreme Court Rule 401(a) and determine he understands (1) the

nature of the charge, (2) the minimum and maximum sentences

prescribed by law, and (3) the fact he has a right to counsel and

counsel will be appointed for him by the court if he is indigent.

134 Ill. 2d R. 401(a). Defendant agrees the court correctly

admonished him under Rule 401(a). However, he argues he never

actually waived his right to counsel. He contends because there

is no verbatim record of his waiver, as required by Rule 401(b),

his convictions must be reversed, citing People v. Herring, 327

Ill. App. 3d 259, 262, 762 N.E.2d 1186, 1188 (2002).

In Herring, there was no transcript of proceedings,

and, thus, no verbatim record of the defendant's waiver of

counsel. In this case, we have a transcript, which indicates not

only that the trial court appropriately admonished defendant but,

by his own words and behavior, he waived his right to counsel.

The facts are undisputed. After defendant's original

counsel was allowed to withdraw, the trial court repeatedly

offered to appoint counsel for defendant if he could not afford

to hire private counsel. Defendant repeatedly declined, stating

he did not want the public defender appointed to represent him.

The court repeatedly told defendant his choice was either the

public defender or representing himself. Defendant still de-

clined the appointment of counsel.

Defendant at one time led the trial court to believe

he was hiring private counsel but then, pro se, requested several

- 8 - continuances because he apparently did not have the money to hire

counsel. He told the court he was attempting to obtain the money

he needed and even suggested a date at which time he might have

the necessary funds. However, the suggested date was three

months after defense counsel had been allowed to withdraw.

Defendant had three months from the time counsel

withdrew to the time his trial started. This was a reasonable

time in which to obtain private counsel. Where a defendant who

is financially able to engage counsel fails to do so in a reason-

able amount of time, his failure to do so may be treated by the

court as a waiver of the right to counsel. See People v. Wil-

liams, 92 Ill. 2d 109, 118, 440 N.E.2d 843, 847 (1982).

Further, on June 24, 2008, defendant asked, if he could

not be afforded more time to acquire the necessary funds to

obtain private counsel, the State provide him with discovery and

witness lists so he could start preparing the case himself. He

was given the discovery materials. On July 15, 2008, defendant

filed a pro se motion for a continuance on the grounds he was

"inexperienced" and needed more than 28 days to prepare the case

for trial. While defendant never gave up on his argument he

should have more time to get money together to hire private

counsel, at that point it is clear he intended to represent

himself and was preparing to do so. While defendant told the

jury he was representing himself by default, he also told them he

could represent himself better than counsel because he knew the

case best. Also, defense counsel indicated when he moved to

- 9 - withdraw, defendant told him he wanted to represent himself.

The trial court did not abuse its discretion in refus-

ing to allow defendant more time to obtain private counsel. The

case had been pending for 18 months at the time defense counsel

withdrew and defendant had three months in which to obtain new

counsel prior to the trial date. Nothing in the record indicates

defendant's acquisition of the necessary funds was imminent when

the court ordered the trial to begin. At that time, defendant

was still asking for a 60-day continuance.

While defendant never used the words "I waive my right

to counsel," his actions and words show waiver. He knew he could

have counsel appointed but chose to represent himself. Given the

context of the proceedings and the record, defendant clearly and

unequivocally gave up his right to be represented by counsel.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of the appeal.

Affirmed.

POPE and McCULLOUGH, JJ., concur.

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