People v. Gillaspie

2023 IL App (3d) 220300-U

• Court: Appellate Court of Illinois
• Decided: November 16, 2023
• Docket: 3-22-0300
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220300-U

Order filed November 16, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0300 v. ) Circuit No. 21-CF-250 ) ALLEN J. GILLASPIE, ) Honorable ) Amy M. Bertani-Tomczak, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. Justices Brennan and Peterson concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The evidence presented was sufficient to establish defendant’s knowledge of the victim’s presence as an element of home invasion. (2) Defendant was properly admonished regarding waiver of his right to counsel.

¶2 Defendant, Allen J. Gillaspie, was convicted of home invasion. On appeal, defendant

argues that the evidence was insufficient to find him guilty beyond a reasonable doubt and the

Will County circuit court erred in failing to provide waiver of counsel admonishments at

sentencing. We affirm. ¶3 I. BACKGROUND

¶4 Defendant was charged with home invasion (720 ILCS 5/19-6(a)(1) (West 2020)). At

defendant’s first appearance on March 22, 2021, he confirmed he wanted representation and the

court appointed counsel. Initially, defendant was found unfit to stand trial but was eventually

restored to fitness after receiving mental health treatment. On December 17, 2021, the same date

the court found defendant fit for trial, defendant affirmed he was seeking to waive counsel and

proceed pro se because his appointed counsel had not consulted with him from the time counsel

was appointed until May 4, 2021. In considering defendant’s request, the court asked him about

his education and qualifications. The court also inquired about his mental health diagnosis and

current medications. The court informed defendant he was facing serious charges and had the

State recite the home invasion charge, the underlying allegations, and the potential sentencing

range. The court granted defendant’s request and appointed the public defender as standby

counsel.

¶5 After two subsequent court dates involving the status of discovery, a pretrial proceeding

was held on February 18, 2022. At the beginning of the hearing, the court admonished defendant

that he had the right to an attorney, that an attorney would be appointed if he could not afford

one, and that he would be held to the same standard as an attorney if he chose to continue to

represent himself. The court asked defendant if he wished to continue pro se, and defendant

confirmed he did.

¶6 During trial, Tena Klimek testified that on February 5, 2021, at approximately 11 a.m., a

man driving a blue car pulled into her driveway and exited his vehicle. The man had a long beard

and was wearing a paper face mask. While Klimek was standing at the sliding glass patio door,

she saw the man approaching the door with an axe. Klimek screamed when she saw the axe and

2 continued screaming as she ran out the front door and fled to a neighbor’s house. While running,

Klimek fell into a snowbank and noticed the blue car in the driveway had a Washington license

plate. Klimek identified defendant as her nephew but did not affirmatively identify him as the

perpetrator.

¶7 The State introduced a video from a neighbor’s surveillance camera located

approximately 100 feet across the street from Klimek’s home that captured Klimek’s screams as

she was fleeing her residence. Through police testimony, the State also introduced photographs

of Klimek’s home taken by responding officers at the scene that morning. Klimek testified that

the photographs truly and accurately depicted her residence on that date. The photographs

showed the glass patio door had been shattered and an axe was left inside the residence. In one

photograph, the garage door at the end of the driveway was open and one car was parked inside.

Another car was parked in the driveway at the entrance to the garage. Evidence and witness

testimony also established that the police were able to identify a vehicle in the area immediately

after the incident that matched the description of the blue car Klimek saw in her driveway.

Further police investigation revealed that the vehicle was purchased by defendant and he had

taken it to an automobile repair shop for maintenance. Additionally, fingerprints taken from the

axe matched defendant’s fingerprints. Defendant also could not be excluded from the main DNA

profile found on the axe, with the exclusion probability calculated at 1 in 1.2 octillion. The jury

found defendant guilty of home invasion.

¶8 At a hearing on defendant’s motion for a new trial, defendant argued that he was not

provided adequate opportunities to consult with an attorney while in police custody pursuant to

sections 103-3.5(a) and 103-4 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-

3.5(a), 103-4 (West 2022)). Defendant’s contention prompted the court to inquire as to why

3 defendant had not raised the issue earlier, to which defendant replied that he had when he

initially requested to proceed pro se. In denying the motion, the court confirmed with defendant

that during the entire course of the proceedings he had never used his standby counsel.

¶9 On July 19, 2022, defendant was sentenced to 10 years’ imprisonment. At sentencing,

defendant’s standby counsel was not present. The court did not readmonish defendant regarding

his right to counsel during the sentencing proceedings. Defendant appealed.

¶ 10 II. ANALYSIS

¶ 11 A. Proof of Home Invasion

¶ 12 On appeal, defendant first argues that the evidence at trial was insufficient to find him

guilty beyond a reasonable doubt of home invasion. Challenges to the sufficiency of evidence

require the reviewing court to view the evidence in the light most favorable to the prosecution

and determine whether “any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.” People v. Conway, 2023 IL 127670, ¶ 16. “A criminal

conviction will not be overturned unless the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” Id.

¶ 13 For defendant to be convicted of home invasion, the State had to prove that: (1) defendant

was not a peace officer acting in the line of duty; (2) defendant knowingly entered the dwelling

place of another without authority; (3) upon entering, defendant knew or had reason to know that

one or more persons were present in the residence; and (4) defendant, while armed with a

dangerous weapon other than a firearm, used force or threatened the imminent use of force upon

any person or persons within the dwelling place, regardless of whether an injury occurred. 720

ILCS 5/19-6(a)(1) (West 2020). Defendant contends the evidence was insufficient to prove him

guilty of the third element: that he knew or had reason to know that someone was present in the

4 residence when he entered. Whether a defendant knew or should have known that someone was

in the residence may be proven by circumstantial evidence, but the State must present

“ ‘sufficient evidence from which an inference of knowledge can be made.’ ” People v. Hickey,

178 Ill. 2d 256, 292 (1997) (quoting People v. Ramey, 240 Ill. App. 3d 456, 462 (1992)).

¶ 14 In this case, the evidence presented at trial demonstrated that Klimek was able to see

defendant approaching through the glass patio door where she was standing. Thus, it is

reasonable to infer that Klimek was also visible to defendant as he approached the door.

However, assuming arguendo that defendant did not see Klimek through the glass door, the trier

of fact could easily infer that he at least heard her screaming as he walked up to the patio door

because her screams were loud enough that the neighbor’s video surveillance was able to capture

them from across the street. See People v. Frisby, 160 Ill. App. 3d 19, 31 (1987); People v.

Redisi, 172 Ill. App. 3d 1003, 1011 (1988) (element of knowledge established, in part, due to

noise from inside the dwelling). The evidence also suggests there were vehicles parked both

inside and outside of the garage, and defendant would likely have seen the vehicles when he

parked in the driveway. See Hickey, 178 Ill. 2d at 292-93; Redisi, 172 Ill. App. 3d at 1011;

People v. Tackett, 150 Ill. App. 3d 406, 420 (1986) (element of knowledge established, in part,

where cars were parked on the property). Defendant was also armed and wearing a mask. See

Hickey, 178 Ill. 2d at 292 (finding knowledge established, in part, where defendant entered the

home with a weapon); People v. Price, 2011 IL App (4th) 100311, ¶ 19 (attempts to conceal

identity indicate an expectation that the offender will encounter people inside the residence). The

totality of the factors outlined above, when considered in the light most favorable to the

prosecution, provide sufficient evidence to support the jury’s finding that defendant knew or

should have known that someone was in the residence at the time of entry.

5 ¶ 15 In coming to this conclusion, we reject defendant’s argument that Klimek’s flight from

her home negates the statutory requirement regarding the presence of one or more persons inside

at the time of entry. Allowing defendant to circumvent the consequences of the home invasion

statute by “taking advantage of the fortuitous fact that his victim fled” defeats the purpose of the

statute, which is to protect individuals in their homes. People v. Kolls, 179 Ill. App. 3d 652, 655

(1989). Here, Klimek fled her residence when she saw defendant approaching while wielding an

axe. The imminent threat of injury from a stranger carrying a deadly weapon and walking up to

the patio door where Klimek was standing caused her to flee. Therefore, even if she exited the

front door of her home before defendant actually entered the patio door, the presence

requirement is still satisfied. See People v. Mata, 316 Ill. App. 3d 849, 854 (2000) (“[T]he

requirement that a person be ‘present’ at the time of the entry is satisfied when the victim, fleeing

the invasion, happens to be outside the dwelling at the moment of defendant’s entry.”).

¶ 16 B. Waiver of Counsel Admonition

¶ 17 Defendant further argues that because his standby counsel was absent at his sentencing

hearing, the court erred in failing to provide a waiver of counsel admonishment pursuant to

Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Defendant acknowledges he did not

properly preserve the issue with an objection or postsentencing motion. However, he requests

review under the second prong of the plain error doctrine, which allows for the review of an

unpreserved error when “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).

The first step in plain error analysis is determining whether a clear or obvious error occurred. Id.

6 ¶ 18 A defendant has the constitutional right to counsel during sentencing in a criminal

proceeding because the substantial rights of the accused may be affected at this stage. People v.

Baker, 92 Ill. 2d 85, 90 (1982). Pursuant to Rule 401(a), waiver of counsel by a defendant must

be made in open court, with the court providing admonitions informing defendant of the nature

of the charges, the minimum and maximum penalties for the charged offenses, and the right to

counsel. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). Strict compliance is not required under Rule

401(a). People v. Nemec, 2019 IL App (2d) 170382, ¶ 18. “Substantial compliance is sufficient

for a valid waiver of counsel if the record indicates that (1) the waiver was made knowingly and

voluntarily and (2) the trial court’s admonishment did not prejudice the defendant’s rights.”

People v. Redmond, 2018 IL App (1st) 151188, ¶ 17.

¶ 19 Under the continuing waiver rule, a valid waiver of counsel applies to all subsequent

stages of the proceedings. People v. Redd, 173 Ill. 2d 1, 24 (1996). There are two exceptions to

this rule: “(1) the defendant later requests counsel or (2) other circumstances suggest that the

waiver is limited to a particular stage of the proceedings.” People v. Washington, 2016 IL App

(1st) 131198, ¶ 59. “Circumstances requiring readmonishments before sentencing include

lengthy delays between trial stages or a defendant’s later request for counsel.” Id. ¶ 60. Whether

a lapse in time renders a waiver invalid is determined by the specific facts and circumstances of

each case. People v. Haynes, 174 Ill. 2d 204, 242 (1996). Notably, in cases that held a continuing

waiver to be void, the amount of time between admonishments and sentencing was not the sole

determinative factor. See, e.g., Schell v. United States, 423 F.2d 101, 103 (1970) (waiver invalid

based on totality of circumstances that included six-month lapse between hearings, events in the

interim that changed the posture of the case, and questionable validity of defendant’s guilty

plea); People v. Smith, 249 Ill. App. 3d 460, 472 (1993) (admonitions provided at arraignment

7 where defendant was not requesting to waive counsel 13 months prior to sentencing insufficient);

Washington, 2016 IL App (1st) 131198, ¶ 68 (continuing waiver rule voided by later request for

representation and initial waiver of counsel before trial occurred almost two years prior).

¶ 20 Here, the record reflects that the court acted within its discretion in concluding that

defendant knowingly and voluntarily waived counsel based on its inquiry into defendant’s

background, education, and mental health status at the time of defendant’s request. The court’s

admonishments adequately informed defendant of the nature of the charges, the minimum and

maximum penalties for the charged offenses, and the right to counsel. As the admonitions were

not deficient under Rule 401(a) at the time defendant was admonished, the court’s substantial

compliance with the rule was sufficient to effectuate a valid waiver.

¶ 21 Defendant relies on our decision in People v. Brzowski, 2015 IL App (3d) 120376, ¶ 43,

for the proposition that Rule 401(a) admonishments are not required when standby counsel is

appointed but must be given if standby counsel is not present at any critical stage of the

proceedings. Defendant contends that because standby counsel was not present at sentencing, the

court should have readmonished him pursuant to Rule 401(a). However, Brzowski is readily

distinguishable from the instant case. In Brzowski, the defendant had never been provided with

Rule 401(a) admonishments and the court dismissed standby counsel prior to jury deliberations.

Id. ¶¶ 44-45. We held that the court’s failure to provide any Rule 401(a) admonitions constituted

plain error. Id. ¶ 47. Here, by contrast, standby counsel’s unexplained absence at sentencing was

not due to dismissal and the court had previously provided Rule 401(a) admonishments to

defendant. Consistent with the rule, defendant was fully informed of the home invasion charge,

the corresponding sentencing range, and of his right to counsel. Although the court did not

readmonish defendant at sentencing, the court substantially complied with the rule when it

8 admonished defendant in response to his request to waive counsel before trial. See People v.

Jiles, 364 Ill. App. 3d 320, 329 (2006) (Rule 401(a) admonishments must be provided when

court is made aware of defendant’s desire to waive counsel).

¶ 22 Moreover, we reject defendant’s argument that admonishments given months prior are

automatically insufficient to substantially comply with Rule 401(a). In support of this assertion,

defendant relies on Jiles, 364 Ill. App. 3d at 329 and People v. Stoops, 313 Ill. App. 3d 269, 275

(2000). However, those cases stand for the proposition that admonishments cannot be relied

upon when they are provided months prior at a time when the defendant was not seeking to

waive counsel. Jiles, 364 Ill. App. 3d at 329; Stoops, 313 Ill. App. 3d at 275. In this case, there is

nothing in the record that would create an exception to the continuing waiver rule. Defendant did

not request counsel at any point after he was admonished and the lapse in time of approximately

six months between the admonishments and sentencing, without more, is not enough to

invalidate the waiver. Therefore, defendant’s waiver of counsel was operative at the time of

sentencing.

¶ 23 III. CONCLUSION

¶ 24 The judgment of the circuit court of Will County is affirmed.

¶ 25 Affirmed.