People v. Ferguson

2024 IL App (4th) 230624-U

• Court: Appellate Court of Illinois
• Decided: April 9, 2024
• Docket: 4-23-0624
• Status: Unpublished

Opinion

NOTICE FILED This Order was filed under April 9, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed 2024 IL App (4th) 230624-U Court, IL under Rule 23(e)(1).

NO. 4-23-0624

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JOSEPH D. FERGUSON, ) No. 18CF1215 Defendant-Appellant. ) ) Honorable ) J. Jason Chambers, ) Judge Presiding.

PRESIDING JUSTICE CAVANAGH delivered the judgment of the court. Justices Steigmann and DeArmond concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding defendant forfeited his arguments the trial court failed to substantially comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) and his convictions violated the one-act, one-crime rule.

¶2 In May 2023, a jury convicted defendant, Joseph D. Ferguson, of disorderly

conduct (720 ILCS 5/26-1(a)(3.5) (West 2022)) and intimidation (id. § 5/12-6(a)(1)). On appeal,

defendant argues (1) his convictions and sentence should be vacated and the matter remanded for

a new trial because the trial court failed to substantially comply with Illinois Supreme Court Rule

401(a) (eff. July 1, 1984) and (2) his convictions for disorderly conduct and intimidation violate

the one-act, one-crime rule. We affirm.

¶3 I. BACKGROUND

¶4 On November 28, 2018, the State charged defendant by indictment with

(1) disorderly conduct for transmitting a threat of violence, death, or bodily harm directed against persons at Illinois State University (ISU) (count I) and (2) intimidation for communicating a

threat of physical harm to John Davenport, an employee of ISU, if he did not punish a certain

named student (count II). Following the indictment, defendant was represented by counsel at five

pretrial hearings from December 2018 through June 2019.

¶5 On July 18, 2019, at a final pretrial hearing, defendant stated he wanted his

attorney to withdraw from his case. The trial court asked a lengthy series of questions

establishing defendant (1) understood the charges he faced, including the minimum and

maximum sentencing ranges for each charge, (2) was eligible for extended-term sentencing on

the intimidation charge, and (3) had the right to an attorney, and if he could not afford an

attorney, the court could appoint one to represent him. Defendant stated his education level

included two years of college and he had prior involvement in legal proceedings. The court

found defendant was capable of representing himself and permitted his attorney to withdraw.

Defendant waived his right to a jury trial.

¶6 On October 1, 2019, the matter proceeded to a bench trial, during which the trial

court sua sponte developed a bona fide doubt as to defendant’s fitness. The court ordered a

fitness evaluation and appointed a public defender to represent defendant for the purposes of the

fitness evaluation. Following a fitness hearing in November 2019, the court found defendant

unfit and declared a mistrial. In March 2020, defendant was restored to fitness and chose to

continue with his appointed counsel.

¶7 On July 28, 2020, during a status hearing, defendant again expressed his desire to

represent himself. The trial court explained the nature of defendant’s charges and the minimum

and maximum penalties for each charge, including that he was eligible for extended-term

-2- sentencing. The court also explained that if defendant could not afford an attorney, the court

would appoint one to represent him. The court then permitted defendant to represent himself.

¶8 The matter proceeded to a second bench trial in October 2020. Defendant was

found guilty on all charges. Defendant appealed. This court reversed defendant’s convictions and

remanded the matter, finding defendant’s jury waiver prior to his first bench trial did not extend

to his second bench trial, citing People v. Bracey, 213 Ill. 2d 265 (2004). People v. Ferguson,

No. 4-21-0040 (May 31, 2022) (unpublished summary order under Illinois Supreme Court Rule

23(c)(2)).

¶9 At the beginning of each status hearing in August and October 2022, the trial

court inquired with defendant if he wished to have counsel appointed to his case. Defendant

declined each time. On February 6, 2023, defendant appeared before a different judge, who

admonished him on his rights to be represented by counsel. Defendant interjected, “We’ve done

this already.” The court stated it would inquire with the prior judge to confirm whether

defendant’s admonishments concerning self-representation had previously occurred. During a

status hearing in May 2023, the court questioned whether it had previously discussed defendant’s

right to counsel. Defendant indicated the court had.

¶ 10 The matter proceeded to a jury trial on May 17, 2023. Prior to jury selection, the

trial court admonished defendant of his right to counsel. Defendant said he understood and

confirmed he wished to proceed pro se. The court then explained the minimum and maximum

sentences for each offense charged. Regarding the intimidation charge, the court, after conferring

with the State, explained defendant was only eligible for a maximum sentence of 5 years in the

Illinois Department of Corrections and not extended-term eligible for a 10-year sentence, as had

been previously explained.

-3- ¶ 11 Because defendant is not challenging the sufficiency of the evidence, we only

summarize the trial evidence relevant to his contentions on appeal. The State called one witness,

Davenport, in its case-in-chief. He testified he was the dean of students for ISU. At the time,

there were 20,500 students attending ISU. Davenport came to know defendant through his work

with the Redbird Care Team, which was dedicated to students who needed additional support

and attention for health or conduct reasons. Davenport stated he had contact with defendant on

five occasions regarding his conduct. Defendant had been the subject of a Title IX investigation

that required him to meet certain conditions to continue attending ISU. One such condition was

defendant needed to obtain documentation from a licensed counselor stating he would not be a

threat to certain individuals or the campus. During a phone call on November 20, 2018,

Davenport recalled defendant’s demeanor fluctuated between “generally normal” to “agitated at

times and a bit aggressive.” Davenport said defendant threatened members of the Watterson

Towers residence hall, stating “while people would be out front unloading their cars potentially

opening fire on them and also the potential of utilizing pipe bombs to cause harm to those folks.”

Davenport said defendant indicated he had the ability to “find firearms and to receive a [Firearm

Owner’s Identification] card” and “was able to make or find pipe bombs.”

¶ 12 Defendant wanted an individual named Catalina punished for lies she had told

about defendant during a “previous conduct case.” Defendant indicated that, even if his plans had

been thwarted, he had a “friend or a person he knew that might be willing to continue to look for

Catalina if for some reason he was unable to do so.” Defendant had stated he would go to

Davenport after shooting people at Watterson Towers, but that police would “probably get

[defendant] before he was able to get to [Davenport].” Defendant gave Davenport options to

“save” himself, such as making “amends,” filing an order of protection, and a third option

-4- Davenport could not recall. Defendant stated an order of protection would not protect Catalina.

Davenport found defendant’s comments disturbing and threatening. Davenport also considered

defendant’s statements to be personally threatening to Davenport’s own physical safety.

¶ 13 Davenport made contemporaneous handwritten notes of his conversation with

defendant and immediately typed them on his computer before sending them to the ISU police

department. Davenport’s typed notes were admitted into evidence and published to the jury

without objection.

¶ 14 The jury found defendant guilty of all charges.

¶ 15 Defendant filed a pro se motion for a new trial, arguing, inter alia, he did not

receive a fair trial. On July 10, 2023, at the hearing on defendant’s posttrial motion and

sentencing, the trial court began by asking defendant if he wished to have an attorney appointed

to represent him. Defendant responded, “No.” The court denied defendant’s motion for a new

trial. The court sentenced defendant to two years’ imprisonment for disorderly conduct and two

years’ imprisonment for intimidation, to be served concurrently.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues (1) his convictions and sentence should be vacated

and the matter remanded for a new trial because the trial court failed to substantially comply with

Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) and (2) his convictions for disorderly

conduct and intimidation violate the one-act, one-crime rule. We address each claim in turn.

¶ 19 A. Rule 401(a) Claim

¶ 20 Defendant contends the trial court failed to substantially comply with Rule 401(a)

because he was not properly admonished until the day of his jury trial. Additionally, he claims,

-5- the court’s admonishment failed to elicit defendant understood the nature of the charges against

him and incorrectly informed him of the maximum penalties. Defendant cites People v. Martin,

2021 IL App (4th) 180267, in support. Defendant concedes this issue was not raised before the

trial court or in any posttrial motion, but he requests we review it under the plain-error doctrine.

¶ 21 “This court has consistently held the right to counsel is so fundamental that we

will review as plain error a claim there was no effective waiver of counsel although the issue was

not raised in the trial court.” People v. Seal, 2015 IL App (4th) 130775, ¶ 26. Therefore, we will

review defendant’s contentions on appeal under the plain-error doctrine. “The plain-error

doctrine bypasses forfeiture principles and allows a reviewing court to consider unpreserved

error when: (1) the evidence is close, regardless of the seriousness of the error; or (2) the error is

serious, regardless of the closeness of the evidence.” Id. “The initial analytical step under either

prong of the plain error doctrine is determining whether there was a clear or obvious error at

trial.” People v. Sebby, 2017 IL 119445, ¶ 49.

¶ 22 “Rule 401(a) governs the trial court’s acceptance of a defendant’s waiver of

counsel.” People v. Reese, 2017 IL 120011, ¶ 61. The rule provides:

“(a) Waiver of Counsel. 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

-6- (3) that he has a right to counsel and, if he is indigent, to have counsel appointed

for him by the court.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

¶ 23 “The purpose of [Rule 401(a)] is to ensure that a waiver of counsel is knowingly

and intelligently made.” (Internal quotation marks omitted.) Reese, 2017 IL 120011, ¶ 62. Strict,

technical compliance with Rule 401(a) is not required, “[r]ather, 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.”

People v. Wright, 2017 IL 119561, ¶ 41. Therefore, a reviewing court must evaluate whether a

defendant has knowingly and intelligently waived the right to counsel sui generis by evaluating

the record as a whole, including the background, experience, and conduct of the defendant.

People v. Lesley, 2018 IL 122100, ¶ 51. “Whether a trial court failed to substantially comply

with Rule 401(a) admonishments is a question of law we review de novo.” Martin, 2021 IL App

(4th) 180267, ¶ 31.

¶ 24 In Martin, the defendant had switched between being represented by counsel and

proceeding pro se on several occasions and had been admonished pursuant to Rule 401(a)

numerous times. Id. ¶ 34. After the defendant had been found guilty by a jury, he proceeded to

sentencing pro se. Id. ¶ 13. Subsequently, the defendant requested and received the appointment

of a public defender and then, again, requested to proceed pro se. Id. ¶¶ 14-15. The trial court

failed to admonish defendant pursuant to Rule 401(a) prior to permitting defendant to waive his

right to counsel on the last occasion. Id. ¶ 15. The Martin court held, “Rule 401(a)

admonishments must be provided where a defendant waives counsel, proceeds pro se, requests

counsel for a distinct stage of the proceedings, receives counsel, and then decides to waive

counsel again.” (Emphasis in original and internal quotation marks omitted.) Id. ¶ 36.

-7- ¶ 25 We find Martin distinguishable from the case sub judice. Unlike the defendant in

Martin, here, defendant did not voluntarily switch between being represented by counsel and

proceeding pro se on numerous occasions. Defendant began with private counsel but then chose

to proceed pro se. The trial court properly admonished defendant pursuant to Rule 401(a) when

he elected to waive his right to counsel in July 2019. The court later appointed counsel to

represent him without his expressed interest because it had developed a bona fide doubt

regarding his fitness to stand trial. Thereafter, appointed counsel represented defendant until

defendant had been restored to fitness, and afterwards, defendant sought to proceed pro se again.

The court, again, properly admonished defendant pursuant to Rule 401(a) in July 2020. Each

time the court approached the issue of defendant’s right to counsel thereafter, defendant

maintained his desire to continue pro se throughout the remainder of the proceedings through his

second bench trial, the jury trial, and sentencing.

¶ 26 Defendant argues he was not properly admonished until the day of his jury trial,

but this is simply not true. Defendant had been admonished of his right to counsel in July 2019

and 2020. We note, the Martin court found the defendant’s circumstances in that case to be an

exception to the continuing waiver rule that necessitated renewed Rule 401(a) admonishments.

Id. The continuing waiver rule permits a defendant to waive his right to counsel and that waiver

stays in place throughout the remaining stages. Id. ¶ 33. The two exceptions to the continuing

waiver rule are “(1) [when] the defendant later requests counsel or (2) other circumstances

suggest that the waiver is limited to a particular stage of the proceedings.” (Internal quotation

marks omitted.) Id.

¶ 27 The first exception is not applicable because defendant at no point in the entirety

of the proceedings requested counsel. Defendant argues the second exception applies because the

-8- waiver was limited to the conclusion of his second bench trial, which was later reversed pursuant

to Bracey. Defendant cites no case law to support this argument. Indeed, his jury waiver was no

longer in effect, but there is no parallel to Bracey when it comes to waiver of the right to counsel.

In fact, the very existence of the continuing waiver rule suggests the opposite of Bracey, which

held an initial jury waiver becomes void upon commencing a new trial. We find no reason to

preclude applying the continuing waiver rule. Defendant did not request counsel, and the

circumstances of this case make it clear defendant sought to represent himself at each particular

stage of proceedings. Therefore, we find no clear or obvious error, let alone plain error, and

honor defendant’s forfeiture of this issue.

¶ 28 Because we find the continuing waiver rule is applicable, we need not address

defendant’s claim that the last Rule 401(a) admonishment was incorrectly given as it pertained to

his maximum sentencing range just prior to his jury trial. See 720 ILCS 5/12-6(b) (West 2018)

(stating the sentence for intimidation is “a term of imprisonment of not less than 2 years and not

more than 10 years”). Both of the trial court’s prior admonishments clearly explained defendant

was eligible for a maximum of 10 years’ imprisonment for the intimidation charge. However,

even if we had considered defendant’s argument, we are uninclined to find he had been

prejudiced by the court’s misstatement of his maximum sentencing range when he had only been

sentenced to two years’ imprisonment for the offense. See Wright, 2017 IL 119561, ¶ 41 (stating

the inadequate admonishment must prejudice the defendant’s rights).

¶ 29 B. One-Act, One-Crime Claim

¶ 30 Defendant next contends his indictment did not apportion any threats made by

him to support each count distinctly and the State’s evidence failed to distinguish the threats

-9- sufficiently to form the basis for each charge separately. Defendant again concedes this issue was

not raised before the trial court but asks we review this issue under the plain-error doctrine.

¶ 31 As we stated earlier, the plain-error doctrine “allows a reviewing court to consider

unpreserved error when: (1) the evidence is close, regardless of the seriousness of the error; or

(2) the error is serious, regardless of the closeness of the evidence.” Seal, 2015 IL App (4th)

130775, ¶ 26. However, we must first determine “whether there was a clear or obvious error at

trial.” Sebby, 2017 IL 119445, ¶ 49.

¶ 32 Illinois courts follow a two-step analysis to determine whether a one-act,

one-crime violation has occurred. People v. Coats, 2018 IL 121926, ¶ 12. “First, the court

ascertains whether the defendant’s conduct consisted of a single physical act or separate acts.”

Id. The definition of “act” is “ ‘any overt or outward manifestation which will support a different

offense.’ ” People v. Price, 2011 IL App (4th) 100311, ¶ 26 (quoting People v. King, 66 Ill. 2d

551, 566 (1977)). The one-act, one-crime rule prohibits a defendant from being convicted of

multiple offenses “based on precisely the same physical act.” Id. However, a defendant can be

convicted of multiple offenses that share a common physical act, so long as there is an additional

physical act to support a separate offense. Id.

¶ 33 Defendant’s conviction for disorderly conduct required the State to prove he

knowingly transmitted to Davenport a threat of violence, death, or bodily harm directed against

persons at ISU. 720 ILCS 5/26-1(a)(3.5) (West 2018). His conviction for intimidation required

the State prove (1) defendant communicated to Davenport a threat to, without lawful authority,

inflict physical harm on Davenport or any other person and (2) defendant intended to cause

Davenport to perform an act. Id. § 12-6(a)(1).

- 10 - ¶ 34 The evidence presented at trial both through Davenport’s testimony and his

contemporaneous notes showed defendant’s conduct shared a common physical act of threats,

but the threats were distinct and directed toward specific actions with multiple victims. In

support of the disorderly conduct charge, defendant transmitted to Davenport threats of violence,

death, or bodily harm against persons at the Watterson Towers residence hall and Catalina. The

evidence showed defendant also threatened violence, death, or bodily harm to Davenport;

however, it was clear from Davenport’s testimony that the threats to him were specifically

intended to cause Davenport to punish Catalina for what defendant believed were lies Catalina

had told about defendant. The fact defendant had given Davenport an opportunity to spare

himself from defendant’s threats further shows that defendant’s threats were distinct physical

acts to sustain the separate offense of intimidation. Furthermore, defendant’s threats also

indicated although Davenport could spare himself, he could not spare Catalina. Therefore, we

find defendant’s convictions did not violate the one-act, one-crime rule. Because we find no

violation of the one-act, one-crime rule, we find no error, and, thus, honor defendant’s forfeiture

of this issue.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we affirm the trial court’s judgment.

¶ 37 Affirmed.

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