NOTICE This Order was filed under 2021 IL App (4th) 190260-U FILED Supreme Court Rule 23 and is April 8, 2021 not precedent except in the NO. 4-19-0260 Carla Bender 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. ) Livingston County BRIAN KOBIELA, ) No. 17CF19 Defendant-Appellant. ) ) Honorable ) Mark A. Fellheimer, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err in the manner it questioned the prospective jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).
(2) Defendant failed to establish he was prejudiced by his trial counsel’s alleged ineffectiveness.
(3) Defendant was not unlawfully denied his right to counsel in the trial court after he was sentenced.
¶2 In May 2018, a jury found defendant Brian Kobiela guilty of four counts of delivery
of a controlled substance (heroin) (one gram or more). The jury also found the State proved the
heroin contained fentanyl. On December 4, 2018, the trial court sentenced defendant to concurrent
20-year sentences on the four counts with credit for time served. The court ordered the sentences
in this case to run consecutive to the sentences imposed in Will County case No. 17-CF-672 and
Cook County case No. 17-CR-080901. Defendant appeals, making the following arguments: (1) the trial court erred by grouping the Illinois Supreme Court Rule 431(b) (eff. July 1, 2012)
questions together and asking the potential jurors the questions as a group instead of asking each
potential juror each question; (2) defendant received ineffective assistance of counsel from his trial
attorney because his attorney elicited previously excluded and highly prejudicial evidence of prior
drug transactions between defendant and the State’s confidential informant; and (3) the trial court
denied defendant his constitutional right to counsel at a critical stage of the proceeding because
the court failed to appoint counsel to represent defendant to assist with the preparation of
defendant’s motion to reconsider sentence. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with four counts of delivery of a controlled substance
(heroin) (720 ILCS 570/401(c) (West 2016)) to a confidential source working with the police on
January 6, 11, 20, and 24, 2017. In May 2018, defendant’s trial was held. During the jury selection
process, the trial court admonished the prospective jurors as a group as follows:
“With regards to this trial, [f]olks, it is a criminal trial, so there are certain
criminal propositions. We call them propositions of law or principles of law that
apply to this case. I am going to read those propositions to you, four in number. I
will then have a follow-up question to you. First will be whether or not you
understand those principles of criminal law. And then second is whether or not you
accept those principles of criminal law. The way we handle this is just by a show
of hands, kind of like kindergarten all over again. When I have a question to the
entire group, I will first deal with the folks that I call in the box. I will go to the
right side pews and to the left side pews. So the question will be the same. If you
have an answer to give, you will just raise your hand. I typically work back to front.
-2- If I happen to blow past you like kindergarten, just keep the hand up and say, hey,
Judge, you forgot me. And I will get to your answer.
***
The four principles of criminal law that applies to this case are as follows:
That Mr. Kobiela is presumed innocent of all charges against him.
Two, that before Mr. Kobiela can be convicted, the State must prove him
guilty beyond a reasonable doubt.
Three, that Mr. Kobiela is not required to offer any evidence on his own
behalf.
And, number four, that if Mr. Kobiela chooses not to testify on his own
behalf, that cannot be held against him.
So, first, to the folks here in the box, raise your hand if you understand those
principles of criminal law.
All hands are raised.
Follow up. By a show of hands here, do you accept those principles of
criminal law? If so. Please raise your hand.
To the folks I am calling the right pews here, by a show of hands here, do
you folks understand those principles of criminal law? If so, raise your hand.
Second question then is do all of you accept those principles of criminal
law?
-3- The left side pews, same thing. As to those four principles of criminal law,
do you understand those principles?
And then the follow-up is do all of you accept those principles of criminal
Once again, all hands are raised there.”
¶5 During the trial, James Nathan Rodriguez testified he worked with Inspector Brian
Maier of the Livingston County Pro-Active Unit and made controlled buys of heroin
approximately eight or nine times, including the four charged controlled buys from defendant at
issue in this case. Rodriguez testified he served time in prison for delivery of heroin. He also had
a pending charge for delivery of heroin but had not been promised anything in exchange for his
testimony. He admitted being a heroin addict and had last used the drug in July 2017.
¶6 Rodriguez claimed he had known defendant for approximately 15 years and had
purchased heroin from him in the past before working with the police. Defense counsel did not
object to Rodriguez’s answer. Later, when the State asked Rodriguez how many times he had
purchased heroin from defendant, defense counsel objected. During a bench conference, defense
counsel argued defendant’s conduct before the first charged sale was completely prejudicial and
irrelevant. The trial court sustained the objection as it related to any drug transaction before the
four charged offenses. The court instructed the jury to disregard Rodriguez’s earlier testimony he
had purchased heroin from defendant prior to the four charged incidents.
¶7 According to Rodriguez, he and Inspector Maier met before each controlled buy.
Maier searched Rodriguez and his car before each controlled buy and provided Rodriguez money
to make each buy. The State also gave Rodriguez money to pay part of a prior debt Rodriguez
-4- owed defendant. The State did not ask Rodriguez why he owed defendant money. Maier provided
Rodriguez with directions how to drive to the arranged location for each controlled buy. After
each buy, Rodriguez met Maier, gave Maier the drugs he purchased from defendant, and Maier
would then search Rodriguez and his car again.
¶8 During Rodriguez’s cross-examination, defense counsel asked whether he had
missed any rent payments. Rodriguez said he missed several from February to June in 2017.
Counsel then asked if the money Rodriguez owed defendant was money defendant loaned
Rodriguez for his rent. Rodriguez denied this. Defense counsel then asked Rodriguez about
money the police gave him to pay off a prior debt to defendant, which led to the following
exchange:
“Q. Correct? They gave you some money, though, to pay off a debt?
A. Yes, sir.
Q. That was not connected with what you say was otherwise a drug deal?
A. It was.
Q. Is that correct?
A. It was connected to drug deals.
Q. It happened during that—during at least one of those incidents, but you
told the officers that you owed money to [defendant]?
A. For drugs.
Q. And they gave you that money?
A. Yeah. So I could get more drugs.”
Defense counsel also asked how Maier searched Rodriguez and his vehicle before and after the
controlled buys. Rodriguez testified Maier emptied his pockets and patted him down. As for the
-5- vehicle, Rodriguez stated Maier “went from the front to the back, through the seats, the console,
[and] floor mats,” searching everything designed to move.
¶9 On redirect examination, the State argued it should be able to introduce evidence
Rodriguez could not buy more drugs from defendant until he paid off his prior drug debt because
defense counsel opened the door to this line of questioning. The trial court allowed the State to do
so. Rodriguez then testified the debt he owed defendant was for drugs and he could not purchase
more drugs from defendant if he did not pay off the prior debt.
¶ 10 Inspector Maier testified he was employed by the Dwight Police Department and
assigned as a narcotics investigator to the Livingston County Pro-Active Unit, a narcotics task
force. According to Maier, both before and after the controlled buys he performed a thorough
search of both Rodriguez and his vehicle to ensure Rodriguez was not bringing anything to or
taking anything from each controlled buy. Maier did not promise Rodriguez anything other than
making the state’s attorney’s office aware of his cooperation. Before each controlled buy, Maier
provided Rodriguez with pre-recorded bills to use and a specific route to take to the pre-arranged
location for the buy. Maier observed Rodriguez during the informant’s drive to and from the
controlled buys. During two of the buys where defendant and Rodriguez were in their respective
vehicles, Maier was able to see Rodriguez the entire time. During the other two buys, which took
place in defendant’s home, Maier was able to see Rodriguez the entire time except when he was
in the residence. After each controlled buy, Maier would meet Rodriguez, who would turn over
the drugs he purchased and tell Maier how he obtained the drugs. Maier would then search
Rodriguez’s person and his vehicle. Although Rodriguez was carrying a recording device, Maier
was unable to understand what was being said on the recording.
¶ 11 After the four controlled buys, the police obtained a search warrant for defendant’s
-6- residence and executed the warrant on January 24, 2017, not long after the final controlled buy.
Hypodermic needles were found throughout the residence. The police also found Dormin bottles
in defendant’s bedroom. Dormin can be used as a cutting agent for heroin. Several empty capsules
were found in the bottles. When the warrant was executed, defendant was in the driver’s seat of
his vehicle and taken into custody. Inside the vehicle, the police found a bundle of cash, including
money used in the controlled buy earlier that day, and an identification card belonging to
defendant.
¶ 12 After the search, Maier interviewed defendant, who said he had been addicted to
heroin for some time and shared heroin with people on occasion. When Maier confronted
defendant with evidence of the police investigation, defendant said he was going to prison for a
long time. Defendant claimed he used the Dormin to help him sleep.
¶ 13 The jury found defendant guilty on all counts and also found the State established
the presence of fentanyl with the heroin. On October 2, 2018, at the scheduled sentencing hearing,
the trial court noted defendant had not provided information for the PSI. Defense counsel said he
suspected defendant did not believe his trial counsel had done anything to assist defendant in this
case. The court then asked if defendant wished to communicate information to court services to
assist with preparing his PSI. Defendant’s counsel noted he intended to introduce evidence
through a third-party witness. Defendant spoke up on his own behalf and expressed his displeasure
with the representation he was receiving from the attorney he hired to represent him in this case.
The court then asked defendant whether he had compiled the information he wanted to submit to
court services for the PSI. Defendant said he had not because he was waiting to hear from his
lawyer and did not know what he was supposed to do. The court then asked defendant if he wanted
to continue with his current counsel and gave defendant time to decide. Defendant told the court
-7- he wanted to discharge his attorney, needed time to determine whether to hire private counsel or
proceed pro se, and asked for a continuance, which the court granted.
¶ 14 The trial court allowed defendant to discharge his privately retained attorney and
set the case for a status hearing on November 6, 2018, to determine if defendant had hired new
counsel or wanted a public defender. The court told defendant he would need to inform the court
at the status hearing whether he had hired a new attorney, needed a public defender, or wanted to
proceed pro se. The court also told defendant he could hire private counsel after November 6 but
the sentencing hearing would not be continued. Defendant complained he could not get to the
prison law library before the status hearing, but the court responded the status hearing would be
held on November 6. The court told defendant it would set the sentencing hearing four to six
weeks after the status hearing.
¶ 15 Based on this exchange, defendant told the trial court he would choose to go pro se
right then, bypassing the status hearing, if the court would not have the sentencing hearing for at
least six weeks. Defendant said this would make it easier for him to get into the prison law library.
The court told defendant he would give him a date for sentencing. The court offered to appoint a
public defender to represent defendant, but defendant declined the offer. The court then warned
defendant it would not continue the sentencing hearing if defendant said he needed a public
defender when the sentencing date arrived, which defendant said he understood. After a brief
recess, the court noted defendant told the court he wanted to discharge his trial counsel and waive
his right to counsel for purposes of sentencing and anything else going forward. The court declared
this would not affect defendant’s right to counsel on appeal. Defendant verified he was not asking
for a public defender and acknowledged he understood a public defender would represent him at
no cost and assist him with posttrial motions and the sentencing hearing.
-8- ¶ 16 The trial court then questioned defendant to determine whether he had the capacity
to waive his right to counsel. The court also told defendant presenting his arguments in posttrial
motions and at the sentencing hearing would not be as simple as telling his side of the story.
Instead, defendant would be required to adhere to technical rules governing posttrial matters and
sentencing. When defendant said he was not sure he understood what this meant, the court
provided an additional explanation and warned defendant of the potential ramifications of
representing himself as shown in the following exchange:
“THE COURT: Do you *** understand that if you elect here to represent
yourself, we sometimes call it ‘going pro se,’ that you will not be allowed to
complain on appeal about the competency of your representation from this point
forward.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Now, anything that may have occurred up ‘til today, that is
an issue any defendant has. But as far as if you decide to represent yourself, on
appeal you can’t complain about the fact that your representation was not adequate
because you represented yourself.
THE COURT: Also, do you understand, sir, that the effectiveness of
advocating for your position with regards to post-trial motions and sentencing could
be diminished by the dual role of yourself, one, as the defendant; and, two, as the
attorney?
-9- THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you also understand that you will receive no special
consideration from the court if you represent yourself one way or the other?
THE COURT: I don’t treat defendants any differently whether or not they
represent themselves or not.
THE COURT: Also, you understand that a lawyer can render important
assistance by (a) determining any additional information that should be presented
at the sentencing hearing or your post-trial motions; (b) through consultations with
the prosecutor regarding any sentencing considerations that need to be presented as
well.
THE COURT: All right. And, also, in the event that I accept your decision
here to represent yourself, you will not be given the opportunity to change your
decision during the sentencing hearing subject to you having the right to hire a
lawyer. But that lawyer, you understand, will be expected to be prepared on the
day we set for the hearing.
THE DEFENDANT: Yes, Your Honor.”
- 10 - Defendant stated (1) he was not being forced or threatened with regard to his decision to represent
himself and (2) no one had promised him anything relating to the outcome or sentence in the case.
¶ 17 The trial court also told defendant his sentences on the counts in this case would
run concurrently. However, his sentence would run consecutive to sentences he received in other
pending cases. In addition, the court admonished defendant he was not eligible for probation and
his sentencing range was 7 to 33 years in prison.
¶ 18 The trial court found defendant knowingly and voluntarily waived his right to
counsel pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984), noting it had no reason to
believe defendant was not competent or did not have the requisite capacity to make an intelligent
and knowing waiver of his right to counsel. The sentencing hearing was set for approximately two
months later on December 4. The court told defendant the sentencing hearing would not be
continued even if defendant hired a lawyer.
¶ 19 The State’s motions to revoke and forfeit defendant’s bond were then discussed.
Defendant complained he did not know about the State’s motion and thought he was just coming
to court for the sentencing hearing. The court noted the bond forfeiture motion was already part
of the record in the case, and defendant replied his former counsel never told him about it. The
court told defendant the bond forfeiture motion would be addressed on December 4. Defendant
did not ask for the appointment of a public defender even though he claimed the case had become
more complicated than what he expected.
¶ 20 On November 26, 2018, defendant filed a posttrial motion, asking to set aside the
jury verdict. That same day, he filed a motion requesting the appointment of counsel. Defendant
stated he did not “know the law” and believed he had the right to counsel. On November 29, 2018,
defendant filed another posttrial motion requesting a new trial, arguing his trial counsel failed to
- 11 - file pretrial motions, talk with defendant, and be prepared for trial.
¶ 21 At the December 4, 2018, sentencing hearing, defendant told the trial court he only
decided to proceed pro se because he thought his case would be over after he was sentenced,
claiming he did not know posttrial motions were necessary and could affect his appeal rights. The
court reminded defendant it offered many options to defendant, including the appointment of a
public defender, which defendant rejected, and a continuance so defendant could hire a new
attorney, which defendant said he did not need. The court told defendant he chose to proceed
pro se, said he would be ready on December 4, and knew the sentencing hearing would not be
continued. Further, the court noted the sentencing hearing had been continued multiple times,
defendant was told he would be treated the same whether he had a lawyer or proceeded pro se, and
defendant knew he would have to prepare for the sentencing hearing while in prison.
¶ 22 The trial court denied defendant’s motion to appoint counsel, his motion to
continue, and his two posttrial motions. The court then sentenced defendant to 20 years in prison
with two years of mandatory supervised release (MSR) and granted the State’s bond forfeiture
motion. After defendant told the court he would not be able to use the prison law library before
the 30-day deadline ran, the court gave defendant an extended period of time, until February 4,
2019, to file a motion to reconsider his sentence or notice of appeal. The court explained to
defendant he would need to file a motion to reconsider his sentence before he filed his notice of
appeal if he wanted to challenge his sentence. The court then explained defendant would need to
file a notice of appeal by February 4 if he did not file a motion to reconsider his sentence. The
court also explained defendant could request the appointment of the Office of the State Appellate
Defender (OSAD) to assist him with his appeal. Defendant said he understood.
¶ 23 On February 4, 2019, defendant filed a motion to reconsider his sentence. He did
- 12 - not ask the trial court to appoint counsel to assist him in the trial court. That same day, he filed a
notice of appeal, asking for appointment of counsel to represent him on appeal. On April 17, 2019,
the court held a hearing on defendant’s motion to reconsider sentence. The court denied the motion
to reconsider sentence and directed the circuit clerk to prepare a notice of appeal on defendant’s
behalf and, on defendant’s request, appointed OSAD to represent defendant on appeal.
¶ 24 This appeal followed.
¶ 25 II. ANALYSIS
¶ 26 A. Illinois Supreme Court Rule 431(b) Admonishments
¶ 27 Defendant first argues the trial court erred in the way it admonished the potential
jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant acknowledges
he forfeited this issue but asks this court to review the error pursuant to the plain error doctrine.
The supreme court has traditionally identified two situations where it is appropriate to excuse a
forfeiture: (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 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. Sebby, 2017 IL 119445, ¶ 48, 89
N.E.3d 675. The first step of any plain error analysis is determining whether a clear or obvious
error occurred. Sebby, 2017 IL 119445, ¶ 49.
¶ 28 According to defendant, the trial court violated Rule 431(b) because the court
admonished all the prospective jurors at one time, grouped the admonishments together, and asked
for everyone to raise his or her hand if he or she understood the propositions and then to raise his
or her hand if he or she accepted the propositions. Defendant argues Rule 431(b) does not allow
- 13 - a court to question potential jurors in this method.
¶ 29 After the parties filed their respective briefs in this case, our supreme court issued
its opinion in People v. Birge, 2021 IL 125644, ¶ 27, finding the trial court in that case neither
erred by grouping the Rule 431(b) admonishments together when it questioned the prospective
jurors nor erred by asking the groups of the prospective jurors to raise their hands, instead of
responding verbally, if they (1) understood and (2) accepted the admonishments. The supreme
court noted Rule 431(b) “plainly states that the court can ask the questions to the potential jurors
as a group, and the rule does not require that their response be conveyed orally rather than by a
show of hands.” Birge, 2021 IL 125644, ¶ 27. As a result, defendant’s argument in this case fails.
¶ 30 B. Ineffective Assistance of Counsel
¶ 31 Defendant next argues his trial counsel was ineffective because he elicited
propensity evidence regarding prior drug transactions between defendant and Rodriguez
previously excluded by the trial court. Defendant categorizes this evidence as highly prejudicial.
To demonstrate ineffective assistance of counsel, a defendant must show his counsel’s
performance fell below an objective standard of reasonableness and counsel’s performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 692 (1984). To establish
prejudice, a defendant must show a reasonable probability exists the result of the proceeding would
have been different absent counsel’s errors. People v. Haynes, 192 Ill. 2d 437, 473, 737 N.E.2d
169, 189 (2000).
¶ 32 According to defendant, the jurors likely factored in the highly prejudicial
propensity evidence into their decision to convict defendant. Defendant points out his trial counsel
recognized the prejudicial and incriminating nature of the informant’s testimony regarding prior
drug purchases from defendant. Counsel objected to the State asking the informant how many
- 14 - times he had purchased heroin from defendant and argued evidence of prior purchases was
completely prejudicial and irrelevant to the charged offense. The circuit court sustained defense
counsel’s objection and struck the prior testimony.
¶ 33 The State then elicited testimony from Rodriguez regarding money he owed
defendant but did not inquire into the basis for the debt. However, during cross-examination,
defense counsel asked Rodriguez about the money the police gave him to pay off the prior debt,
the basis for the debt, and then did not move to strike the informant’s testimony the debt was for
prior drug transactions. On redirect examination, the informant testified he would not have been
able to purchase more drugs from defendant if he did not pay off his prior debt.
¶ 34 The erroneous admission of other-crimes evidence carries a high risk of prejudice
and will ordinarily require reversal if the erroneously admitted evidence was “so prejudicial as to
deny the defendant a fair trial; that is, the erroneously admitted evidence must have been a material
factor in the defendant’s conviction such that without the evidence the verdict likely would have
been different.” People v. Watkins, 2015 IL App (3d) 120882, ¶ 45, 25 N.E.3d 1189. The
other-crimes evidence at issue here is not highly prejudicial based on the circumstances in this
case.
¶ 35 The State had a strong case against defendant. Before each controlled buy, the
police searched Rodriguez and his vehicle and followed and observed Rodriguez on his way to
and from the controlled buys. After each controlled buy, the police met Rodriguez, who turned
over the drugs he purchased, and both he and his vehicle were searched again. Further, in
defendant’s car, the police found some of the money they provided to Rodriguez to make the
controlled buys.
¶ 36 Moreover, regardless of the strength of the State’s case against defendant, the
- 15 - propensity evidence in question here was minimally prejudicial considering the evidence was
coming from the same witness who made the controlled buys. This is not a situation where defense
counsel elicited evidence defendant had previously been convicted of selling drugs or introduced
evidence from additional witnesses regarding drug transactions with defendant. Rodriguez’s
uncorroborated testimony about prior drug deals with defendant would not have made his
testimony regarding the controlled buys any more credible. What made Rodriguez’s testimony
about the controlled buys credible to the jury was the corroborating information provided by the
State through the police officers.
¶ 37 Based on the facts in this case, a reasonable probability does not exist the result of
defendant’s trial would have been different had the jury not heard the informant’s testimony about
the prior transactions. As a result, defendant has failed to establish he received ineffective
assistance of counsel.
¶ 38 C. Denial of Right to Counsel
¶ 39 Both our federal and state constitutions guarantee a criminal defendant the right to
the effective assistance of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8)
during every “critical stage” of his criminal proceeding (People v. Vernon, 396 Ill. App. 3d 145,
153, 919 N.E.2d 966, 975 (2009)). The critical stages of a criminal proceeding include pretrial,
trial, and sentencing proceedings. Vernon, 396 Ill. App. 3d at 153, 919 N.E.2d at 975. However,
a defendant also has a right to make a knowing and intelligent waiver of his right to counsel.
People v. Cleveland, 393 Ill. App. 3d 700, 704, 913 N.E.2d 646, 650 (2009) (overruled in part on
other grounds by People v. Jackson, 2011 IL 110615, ¶ 16, 955 N.E.2d 1164).
¶ 40 Before accepting a defendant’s waiver of counsel, Illinois Supreme Court Rule
401(a) (eff. July 1, 1984) requires a trial court to inform and make sure a defendant understands
- 16 - the nature of the charges against him, the minimum and maximum sentences the defendant faces,
and the defendant’s right to hire counsel or have counsel appointed if he is indigent. As previously
stated, the trial court extensively reviewed defendant’s options with regard to representation and
the hurdles and risks he faced representing himself. The trial court also made clear defendant
would be held to the same standard as an attorney. After extensive admonishments, defendant
indicated he was going to proceed pro se and understood the sentencing hearing rescheduled for
two months later in December would not be continued again. Defendant does not argue he was
not properly admonished before he waived his right to counsel.
¶ 41 When a defendant waives his right to counsel, the waiver remains in place during
the remainder of the proceedings “unless (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. Palmer, 382 Ill. App. 3d 1151, 1162, 889 N.E.2d 244, 253 (2008). Based on our review of the
record, defendant neither indicated his waiver was limited nor did the circumstances of this case
indicate his waiver was limited to just the sentencing hearing. Further, the trial court admonished
defendant he would be representing himself from that point forward in the trial court unless he
chose to hire an attorney.
¶ 42 Defendant did ask for the appointment of another attorney on November 26, 2018,
less than two months after he waived his right to counsel at the scheduled sentencing hearing but
still before his rescheduled sentencing hearing. The next day on November 27, 2018, defendant
filed a motion asking for his December 4, 2018, sentencing hearing to be continued. At the
scheduled sentencing hearing on December 4, 2018, defendant argued he thought he was doing
the trial court a favor by not having the court appoint him a lawyer because he thought the case
would be over after he was sentenced. He claimed ignorance as to his obligation to file posttrial
- 17 - motions to preserve issues for his appeal. However, the court discussed posttrial motions with
defendant before he waived his right to counsel, and defendant filed a posttrial motion. Defendant
claimed he did not understand enough about the law to be held responsible for something affecting
his appeal. After hearing defendant’s arguments, the court denied his request for counsel.
¶ 43 We note defendant does not argue the trial court erred in denying his request for
counsel at the sentencing hearing. Further, defendant never requested counsel again for the
proceedings in the trial court. However, defendant argues the court should have sua sponte
appointed an attorney to represent defendant after the sentencing hearing or readmonished
defendant as to his right to counsel for purposes of preparing and arguing a motion to reconsider
defendant’s sentence. According to defendant, his waiver of counsel was no longer valid after he
requested counsel prior to his rescheduled sentencing hearing.
¶ 44 The cases defendant relies on to support his argument are distinguishable from the
situation here. In People v. Williams, 358 Ill. App. 3d 1098, 1105, 833 N.E.2d 10, 16 (2005),
People v. Brasseaux, 254 Ill. App. 3d 283, 286, 660 N.E.2d 1321, 1323 (1996), and Palmer, 382
Ill. App. 3d at 1155, 889 N.E.2d at 248, the defendants in those cases requested counsel after they
were sentenced. Further, this is not a situation like in Vernon, 396 Ill. App. 3d at 145, 919 N.E.2d
at 969, where the defendant was not advised of his right to counsel before he represented himself.
¶ 45 Defendant in this case was well aware of his right to counsel and was properly
admonished before he waived his right to counsel during the sentencing phase of his case. Further,
defendant does not argue the trial court erred in denying his request for counsel, which defendant
made before he was sentenced, and defendant did not request the appointment of counsel to assist
with his motion to reconsider sentence after he was sentenced.
¶ 46 While postsentencing proceedings are a critical part of proceedings in the trial court
- 18 - (Palmer, 382 Ill. App. 3d at 1162, 889 N.E.2d at 253), this does not mean the court is obligated to
sua sponte appoint counsel or re-admonish a defendant of his right to counsel after (1) the
defendant made a valid waiver of his right to counsel and (2) the trial court later denied the
defendant’s post-waiver request for counsel. The idea the trial court in this case would need to
sua sponte admonish defendant he is entitled to counsel or simply appoint counsel to represent
defendant right after the court denied defendant’s request for counsel—a ruling defendant does not
challenge—is a non sequitur.
¶ 47 Defendant’s reliance on People v. Griffin, 305 Ill. App. 3d 326, 713 N.E.2d 662
(1999), is also misplaced. In Griffin, the defendant waived his right to counsel and two weeks
later entered a guilty plea. Griffin, 305 Ill. App. 3d at 328, 713 N.E.2d at 663. After the trial court
sentenced the defendant and admonished him pursuant to Illinois Supreme Court Rule 605(b) (eff.
Aug. 1, 1992),
“[the] defendant sought clarification of the Rule 604(d) motion requirements and
asked the court whether he was entitled to the appointment of counsel. Specifically,
defendant asked the court whether a motion to vacate the sentence was required to
perfect an appeal. Defendant also asked, ‘Can I be appointed an attorney to
represent me in this appeal?’ The trial judge responded that he was so entitled, but
the judge declined to advise defendant further, noting that to do so would be to act
as defendant’s attorney.” Griffin, 305 Ill. App. 3d at 329, 713 N.E.2d at 664.
The Second District found defendant’s actions amounted to an attempt to revoke his waiver of
counsel. Griffin, 305 Ill. App. 3d at 330, 713 N.E.2d at 664. Further, “[w]hen defendant began
asking questions about perfecting an appeal, the trial judge should have asked him whether he
wished to revoke his earlier waiver.” Griffin, 305 Ill. App. 3d at 330, 713 N.E.2d at 664. By not
- 19 - doing so, the trial court abused its discretion and effectively denied the defendant his right to
counsel. Griffin, 305 Ill. App. 3d at 330, 713 N.E.2d at 664. The Second District also held a trial
judge is required to investigate whether a defendant, who has indicated an intent to file an appeal
after entering a guilty plea, wants counsel appointed to assist with any motions required by Illinois
Supreme Court Rule 604(d) (eff. Aug. 1, 1992). Griffin, 305 Ill. App. 3d at 133-34, 713 N.E.2d at
664-65.
¶ 48 The situation in this case is distinguishable. Defendant filed a motion for the
appointment of counsel approximately one week before his rescheduled sentencing hearing. The
trial court was aware of the motion, considered the motion, and denied the motion. As has been
repeatedly stated, defendant does not contest the court’s ruling. Further, defendant had not entered
a guilty plea in this case.
¶ 49 This case is inapposite to People v. Miller, 2020 IL App (1st) 163304, upon which
defendant also relies. The issue in Miller pertained to a Krankel hearing (see People v. Krankel,
102 Ill. 2d 181, 464 N.E.2d 1045 (1984)), which is not at issue here.
¶ 50 Defendant in this case waived his right to counsel in the trial court from the
sentencing phase forward. He does not challenge the denial of his motion for counsel to be
appointed before his rescheduled sentencing hearing or complain he was not properly admonished
before he waived his right to counsel. Further, defendant never made another request for the
appointment of counsel to help him in the trial court with his motion to reconsider sentence. Based
on the record in this case, the trial court did not err when it did not sua sponte appoint counsel to
defendant after the sentencing hearing or readmonish defendant of his right to counsel for purposes
of his motion to reconsider sentence.
¶ 51 III. CONCLUSION
- 20 - ¶ 52 For the reasons stated, we affirm defendant’s conviction in this case.
¶ 53 Affirmed.
- 21 -