2024 IL App (4th) 231451-U NOTICE FILED This Order was filed under September 26, 2024 NOS. 4-23-1451, 4-23-1452, 4-23-1453, 4-23-1454 cons. Supreme Court Rule 23 and is Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Jersey County JUSTIN W. KIRBY, ) Nos. 22MT205 Defendant-Appellant. ) 23MT73 ) 23MT85 ) 23MT94 ) ) Honorable ) Allison Lorton, ) Judge Presiding.
JUSTICE GRISCHOW delivered the judgment of the court. Justices Zenoff and Vancil concurred in the judgment.
ORDER
¶1 Held: The appellate court vacated and remanded where defendant’s waiver of counsel was invalid because the trial court failed to adequately admonish him in accordance with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).
¶2 Defendant, Justin W. Kirby, was convicted of four counts of driving with a
suspended license (625 ILCS 5/6-303(a) (West 2022)), three counts of operating an uninsured
motor vehicle (id. § 3-707(a)), one count of driving with an expired motor vehicle registration
(id. § 3-413(f)), and two counts of driving without evidence of valid registration displayed (id.
§ 3-701(a)(1)). Defendant was sentenced to 30 days in jail, to be served on work release,
followed by one year of conditional discharge, and he was assessed $1300 in fines and costs. On
appeal, defendant argues his convictions and sentence should be vacated and the matter remanded for a new trial because the trial court allowed him to waive his fundamental right to
counsel without properly admonishing him, as required by Illinois Supreme Court Rule 401(a)
(eff. July 1, 1984). For the following reasons, we vacate defendant’s convictions and remand the
case for further proceedings.
¶3 I. BACKGROUND
¶4 A. Initial Charges
¶5 On April 20, 2022, defendant was issued three citations during a traffic stop by
Jerseyville police officer Travis Lyles, including citations for driving with a suspended license
(625 ILCS 5/6-303(a) (West 2022)), operating a motor vehicle with no insurance (id. § 3-
707(a)), and operating a motor vehicle with an expired registration displayed (id. § 3-413(f)). On
May 2, 2022, defendant filed a pro se “Petition for Abatement,” which was interpreted, in part,
by the trial court as a request for verification of the citations pursuant to section 111-3(b) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(b) (West 2022)). Thereafter, the State
filed a three-count verified complaint of the citations (Jersey County Case No. 22-MT-205).
¶6 On July 25 and August 8, 2022, defendant filed a pro se “First Amended Petition
for Abatement,” arguing, inter alia, the case should be dismissed for improper service. The trial
court scheduled the case for defendant’s first appearance and a hearing on the petition on August
16, 2022. Defendant failed to appear; therefore, his petition was denied. The clerk was directed
to issue a rule to show cause to defendant.
¶7 On September 20, 2022, defendant filed a pro se “Brief” to bring a “Challenge of
this Courts [sic] Personal and Subject Matter Jurisdiction.” The trial court granted the State 14
days to respond, scheduled defendant’s motion and the rule to show cause for hearing on October
25 and ordered defendant to appear at that hearing. Defendant failed to appear and a warrant for
-2- his arrest was issued, with bail set at $1500. Defendant was arrested on November 3, 2022, and
brought before the trial court. Defendant posted a 10% appearance bond but refused to sign the
certificate acknowledging he understood the terms and conditions of the bond. Defendant was
ordered to appear for arraignment on November 22. The State issued a rule to show cause for
defendant’s refusal to submit to fingerprinting after he was arrested.
¶8 At the hearing on November 22, 2022, the trial court began by asking defendant if
he was prepared to present his motion to dismiss. Defendant said he was not prepared, but
subsequently advised the court he wished to proceed. After hearing arguments, the court denied
defendant’s motion. The court then moved to defendant’s arraignment. The court advised
defendant of the three charges pending and advised him as follows:
“[T]he driving on the suspended license [charge], the most serious
of the offenses, would be a class A misdemeanor. That means you
could face a possible sentencing range of up to a year in jail and a
$2,500 fine. Uh, the remaining matters will be petty offenses
subject to a fine only.”
We note that at this time, the court referred to another complaint against defendant for driving
with a suspended license (identifying it as Jersey County Case No. 22-MT-304), which is not
part of this appeal. Referring to the two charges of driving with a suspended license, the court
admonished defendant of his rights and stated, because “two of these citations do involve uh, at
least two class A misdemeanors to which there is a possibility of jail time,” he had the right to
have an attorney, and if he was unable to afford to hire an attorney, one could be appointed to
represent him. The court asked defendant if he wished to have an attorney represent him.
Defendant replied, “No.” When asked if he wished to enter a plea, defendant replied, “I do not.”
-3- After some discussion, and over defendant’s objection, the court took defendant’s silence as a
plea of not guilty. Defendant requested “discovery for personal jurisdiction,” and the court
ordered the State to produce any evidence it planned to use at trial. The pretrial conference was
set for January 11, 2023. On that day, defendant filed a motion to continue, which was granted.
The pretrial conference was rescheduled for March 15.
¶9 At the hearing on March 15, 2023, the trial court again admonished defendant of
the charges against him in the two pending cases (Case Nos. 22-MT-205 and 22-MT-304),
noting the most serious offenses were the Class A misdemeanor charges for driving on a
suspended license. The court stated:
“I think I’ve previously advised you, bear with me, I have to go
through this every time. You are presumed innocent of these
charges because these offense[s] include a class A misdemeanor
which carries a possibility of jail time. That doesn’t mean that will
be your sentence but because it carries that possibility, you do have
the right to an attorney. If you can’t afford an attorney and you
want counsel, the Court can appoint a public defender to represent
you or you can choose to represent yourself. Mr. Kirby, would you
like to have court appointed counsel with respect to these matters?”
In response, defendant commented about a motion to continue he filed that morning. The court
asked him to address the question of attorney representation first, and defendant replied, “I’ll
represent myself.” The court restated, “[W]e’ll just note for the record you’ve been admonished
of your right to counsel. You’ve waived that right and you’re going to proceed today
representing yourself.” A discussion was held about defendant’s pending motion to continue the
-4- case. Defendant explained he was seeking resolution of the child support case which resulted in
his license being suspended. Over the State’s objection, the court granted defendant’s request for
a continuance and set the matter for a pretrial hearing on June 20, 2023. The court acknowledged
there were additional charges pending against defendant and decided to schedule all matters for
the same dates moving forward.
¶ 10 B. Additional Charges
¶ 11 On February 17, 2023, defendant was stopped while driving by Jerseyville police
officer Nichlas Woelfel and issued citations for driving with a suspended license (625 ILCS 5/6-
303(a) (West 2022)), operating a motor vehicle without valid registration displayed (id. § 3-
701(a)(1)), and operating a motor vehicle with no insurance (id. § 3-707(a)) (case No. 23-MT-
73). On February 22, defendant was stopped by Sergeant Kevin Ayres of the Jersey County
Department and cited for driving with a suspended license (id. § 6-303(a)) and having no valid
registration (id. § 3-707(a)) (Jersey County Case No. 23-MT-85). On February 25, defendant was
pulled over by Sergeant Matthew Schultz and issued citations for driving with a suspended
license (id. § 6-303(a)), operating an uninsured motor vehicle (id. § 3-707(a)), and operating a
motor vehicle with no registration or expired registration (id. § 3-701(a)(1)) (Jersey County Case
No. 23-MT-94).
¶ 12 C. Consolidation of the Charges
¶ 13 On September 6, 2023, a pretrial hearing was held on all pending cases (the cases
adjudicated were Nos. 23-MT-205, 23-MT-73, 23-MT-85, 23-MT-94, and resolution of Case
No. 23-MT-304 was not discussed in the record). The trial court advised defendant again that the
most serious offense was the Class A misdemeanor of driving with a suspended driver’s license.
The court explained again:
-5- “I have to advise you that’s a class A misdemeanor. You could
face up to a year in jail and a $2,500.00 fine. Because that offense
does carry the possibility of jail time—not saying that’s what’s
going to happen because there is that possibility, you have the
right—you always have the right to have an attorney represent you
but if you wanted an attorney and you couldn’t afford one, the
Court could appoint a public defender. So, I have to admonish you
that every time on these criminal proceedings. Sir, do you wish to
have a public defender, hire your own attorney or present [sic]
yourself?”
Defendant replied, “No, I will represent myself.” The matter was set for a jury trial on October 3,
2023. When discussing the schedule, the following colloquy took place:
“[THE STATE]: That’s fine, Judge. Are we going on all
cases or individually?That’s up to [defendant], I believe.
THE COURT: Mr. Kirby, you do have four separate
citations…
DEFENDANT: Just run them all concurrent.
THE COURT: Do we want to get them all done?
DEFENDANT: Yep.
THE COURT: We’ll get each case and every witness who
was—will be under subpoena by the State to support each charge.
So, we’ll get it all done in that date if that’s agreeable with you, sir.
DEFENDANT: Absolutely. Sounds good.”
-6- ¶ 14 D. Trial
¶ 15 The jury trial commenced on October 3, 2023. Before selecting a jury, the trial
court admonished defendant again of his rights and said:
“[T]he Supreme Court Rule requires that before you embark on
representing yourself that I have to make sure that you understand
the charges that you are facing. You have the right to represent
yourself and I have a duty to protect that right. It’s just as
important as the right if you wanted to hire a lawyer. Even though I
don’t necessarily think it’s a good idea for anybody to represent
themselves, that’s certainly your right and you [sic] decision to
choose to do so.”
The court briefly examined defendant, asking him if he had any trouble reading, writing, or
understanding English; he said no. The court asked defendant whether there was “anything going
on in your life or with your [sic] right now that would make it difficult for you to actively
participate in your jury trial today?” and defendant replied, “Absolutely not.” The court listed all
the charges against defendant and explained driving with a suspended license was
“the highest class offense of all of those tickets that being a class A
misdemeanor as I mentioned to you previously before. Because
that does carry the possibility of a sentence of up to 364 days in jail
or a $2,500.00 fine—because it does carry the possibility of jail
time, Mr. Kirby, if you said I want a lawyer but I can’t afford one,
the Court would appoint one to represent you. Okay?”
-7- Defendant replied, “Yes.” The court then explained in detail to defendant the “dangers of
proceeding without a lawyer and the reason that our law does favor that you be defended by a
lawyer.” Defendant said he understood.
¶ 16 The jury was impaneled. The State presented the testimony of Officer Lyles,
Officer Woelfel, Sergeant Ayres, and Sergeant Schultz regarding each of their traffic stops of
defendant. Defendant did not offer any evidence. The jury found defendant guilty on all 10
counts in all four cases.
¶ 17 Defendant was sentenced on November 7, 2023. At the hearing, the State
recommended defendant be sentenced to the following in each of the four cases: one year of
conditional discharge, 60 days in jail, a $500 fine, and $325 in costs. The State further
recommended the four jail sentences to be served consecutively, with day-for-day credit to
apply. The aggregate sentence recommended by the State was 240 days in jail, one year of
conditional discharge, and fines and costs of $1300. Defendant expressed concerns about losing
his job and said he was employed full-time, working 12 hours a day 6 days a week. He stated the
suspension of his driver’s license had been lifted, but he still needed to pay a $70 fee to the
Illinois Secretary of State to get it reinstated. When asked by the trial court, the State had no
objection to work release. The court sentenced defendant to 30 days in jail with work release,
one year of conditional discharge to follow, and $1300 in fines and costs.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 Defendant argues the trial court erred by allowing him to waive his fundamental
right to counsel without properly admonishing him, as required by Illinois Supreme Court Rule
401(a) (eff. July 1, 1984). He contends the court failed to inform him of the possible penalties he
-8- faced, namely, that conditional discharge was a possible sentence. The record reveals defendant
forfeited this issue by failing to object during the proceedings or raise the matter in a posttrial
motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, this court will review
forfeited issues under the plain-error doctrine under two circumstances:
“(1) when 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) when a clear or obvious error occurred and the 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. Moon, 2022 IL 125959, ¶ 20.
Because the right to counsel is fundamental, claims of improper waiver of that right are
reviewable under the second prong of the plain-error doctrine. People v. McKee, 2022 IL App
(2d) 210624, ¶ 17. Under the second-prong analysis, “[p]rejudice to the defendant is presumed
because of the importance of the right involved, ‘regardless of the strength of the evidence.’ ”
(Emphasis in original.) People v. Herron, 215 Ill. 2d 167, 187 (2005) (quoting People v. Blue,
189 Ill. 2d 99, 138 (2000)). In addressing a claim under either prong of the plain-error doctrine,
we must first determine whether any error occurred.
¶ 21 A defendant has a “right to self-representation that is as basic and fundamental as
[the] right to be represented by counsel.” (Internal quotation marks omitted.) People v. Marcum,
2024 IL 128687, ¶ 43 (citing People v. Wright, 2017 IL 119561, ¶ 39). Therefore, a defendant
may waive his right to counsel if that waiver is voluntary, knowing, and intelligent. Id. Illinois
-9- Supreme Court Rule 401(a) (eff. July 1, 1984) governs a defendant’s exercise of his right to
waive counsel and provides:
“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.”
¶ 22 While compliance with Rule 401(a) is necessary for an effective waiver of
counsel, courts recognize that strict, technical compliance is not always required. People v.
Haynes, 174 Ill. 2d 204, 236 (1996). Substantial compliance will effectuate a waiver “if the
record indicates that the waiver was made knowingly and voluntarily, and the admonishment the
defendant received did not prejudice his rights.” Id. Whether the trial court properly admonished
a defendant under Rule 401(a) is a question of law which we review de novo. People v.
Washington, 2016 IL App (1st) 131198, ¶ 50.
¶ 23 To substantially comply with Rule 401(a), “a trial court’s admonitions regarding
the maximum penalty must be ‘accurate’ before the court accepts the defendant’s waiver of
- 10 - counsel.” (Emphasis in original.) People v. Bahrs, 2013 IL App. (4th) 110903, ¶ 15 (quoting
People v. Koch, 232 Ill. App. 3d 923, 927 (1992)). “To be accurate, the admonitions regarding
the maximum penalty must be complete, and to be complete, the admonitions must inform the
defendant of the consecutive running of any prison term, as the rule requires (Ill. S. Ct. R.
401(a)(2) (eff. July 1, 1984)).” Id.
¶ 24 In this case, the trial court failed to accurately admonish defendant regarding his
possible maximum sentence. Although defendant focuses his argument on whether the trial court
was required to inform him of the possibility of imposing a sentence of conditional discharge, we
find error elsewhere. The court repeatedly admonished defendant that because he was charged
with driving on a suspended license, which is a Class A misdemeanor, he faced up to a year in
jail. However, defendant was charged with four separate counts of driving on a suspended
license, and the sentences on each of those counts could have been ordered to run consecutively.
The court never admonished defendant of this possibility. Although the maximum aggregate
sentence defendant could have received was a one-year sentence (see 730 ILCS 5/5-8-4(f)(2)
(West 2022) (“When sentenced only for misdemeanors, a defendant shall not be consecutively
sentenced to more than the maximum for one Class A misdemeanor.”)), defendant should have
been admonished of the possibility of consecutive sentences adding up to one year on those four
charges before he waived his right to counsel.
¶ 25 It was not until defendant’s sentencing hearing that the possibility of consecutive
sentences was raised in this case. The State argued there was “no basis for leniency” and
recommended that the trial court impose four consecutive 60-day sentences for the four Class A
misdemeanor charges. The court asked the State, “Is there authority for consecutive sentences on
traffic violations?” The State replied, “There is nothing that has prohibited it that the State is
- 11 - aware of.” The fact that defendant was only sentenced to 30 days in jail with work release and a
year of conditional discharge thereafter is of no consequence concerning whether defendant was
properly admonished regarding his waiver of counsel. We agree with the reasoning in People v.
McKee, 2022 IL App (2d) 210624, ¶ 40, where the appellate court determined the defendant’s
waiver of his right to counsel was “unknowing and involuntary” because the trial court failed to
advise the defendant in that case that he faced possible consecutive sentences on two Class A
misdemeanors. The court explained, “Regardless of whether consecutive sentences were
permissive and might not ultimately be imposed, [the] defendant was subject to them when he
waived counsel. Thus, the trial court was required to admonish [the] defendant as to that
possibility.” Id. ¶ 35.
¶ 26 The State argues defendant cannot show that “any lack of admonishment” would
have affected his decision to waive counsel and proceed pro se at trial. We rejected this position
in Bahrs, 2013 IL App (4th) 110903, ¶ 56, finding, “on direct appeal, the burden is not on the
defendant to show a lack of prejudice in order to reach the question of whether the record
affirmatively shows a knowing and voluntary waiver of counsel.” Likewise, we reject the State’s
assertion that defendant had a “high degree of legal expertise, such that it can be confidently
assumed that he knew the maximum penalty.” The record, including the transcripts of the
proceedings and defendant’s history of traffic-related offenses, does not support the assertion
defendant possessed a high degree of legal sophistication that would render his waiver knowing
and intelligent despite the insufficient admonitions.
¶ 27 Because defendant was not properly admonished in accordance with Rule 401(a)
before waiving his right to counsel, his waiver was not knowing or voluntary. Therefore, his
convictions must be vacated and the cause remanded. Because defendant does not argue the
- 12 - evidence was insufficient and specifically asks for a new trial, his retrial is not barred by double
jeopardy. See McKee, 2022 IL App (2d) 210624, ¶ 42; People v. Bannister, 378 Ill. App. 3d 19,
29 (2007). Further, because we also determine the evidence was sufficient to support defendant’s
convictions, a retrial would not violate double jeopardy. See People v. Drake, 2019 IL 123734, ¶
21 (stating a retrial is proper if the evidence presented at the initial trial was sufficient to sustain
the conviction). Accordingly, we vacate defendant’s convictions and remand this cause for
further proceedings consistent with this order.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we vacate defendant’s convictions and remand for further
proceedings consistent with this order.
¶ 30 Vacated and remanded.
- 13 -