2017 IL App (3d) 140793
Opinion filed March 2, 2017 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) La Salle County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0793 v. ) Circuit No. 12-CF-86
)
MYRON T. LESLEY, ) Honorable
) Cynthia M. Raccuglia, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justice McDade concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
_____________________________________________________________________________
OPINION
¶1 Defendant, Myron T. Lesley, raises two issues for our review. First, he argues that the
trial court erred in forcing him to represent himself at his evidentiary hearing due to
disagreements he had with his appointed counsel without first warning defendant that his
conduct could result in the waiver of his right to counsel, and second, the trial court applied a
misconduct standard of proof at the evidentiary hearing. Because we reverse and remand on the
first issue, we need not reach the second. ¶2 FACTS
¶3 On June 13, 2013, defendant pled guilty to the offenses of unlawful possession of a
controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2012)) and unlawful
delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2012)) in exchange for
consecutive sentences of five years’ imprisonment and six years’ imprisonment, respectively.
The State also agreed to dismiss four additional charges.
¶4 On September 30, 2013, defendant filed a postconviction petition arguing that he
received ineffective assistance of plea counsel in that counsel failed to adequately investigate the
case and gave him erroneous advice. The petition also claimed that defendant’s sentences “could
have been ran concurrently *** when nothing was stated in sentencing on the reason for
consecutively.”
¶5 On October 30, 2013, the State filed a motion to dismiss the postconviction petition. At a
hearing the next day, the trial court appointed the public defender to represent defendant. On
November 21, 2013, defendant appeared with Timothy Cappellini, the La Salle County public
defender, for a “first appearance” hearing on the postconviction petition. Defendant informed the
court that he and Cappellini had a disagreement. Defendant stated that Cappellini told defendant
to “go pro se and do it [himself]” when defendant told Cappellini he needed to see transcripts of
prior proceedings. Cappellini responded: “I said if he doesn’t want me to represent him, he can
go pro se. Otherwise, I will acquire the transcripts, I will review ‘em and I will be the attorney.”
The trial court continued the matter.
¶6 On February 20, 2014, Douglas Kramarsic, an assistant public defender, appeared on
behalf of defendant at a status hearing. Kramarsic stated that he had previously met with
defendant to attempt to explain changes he wanted to make to the postconviction petition.
Defendant became “very belligerent” and told Kramarsic “numerous times to go fuck [him]self.”
Defendant said that Kramarsic was “fired” and he wanted to hire his own attorney. Defendant
grabbed the papers out of Kramarsic’s hands “in a physical and aggressive manner.” Kramarsic
then left the room as defendant continued to yell obscenities at him.
¶7 Kramarsic then stated: “Your Honor, I believe at this point it’s clear that [defendant] does
not wish to continue with me as his attorney, and I’ll leave it to the Court’s discretion as to what
should take place next.” The trial court told defendant he could respond, and defendant stated:
“First of all, Your Honor, he came back there and told me something totally
different. It wasn’t all this and that. It got out of hand—not out of hand, he tried to
treat me like I’m stupid or something. *** [A]nd then I’m trying to show him
something and he’s ignoring it and I’m yelling at him, I don’t think he’s trying to
help me, he’s trying to hurt me.”
¶8 The trial court said that defendant had been appointed several public defenders and there
was no one left to appoint. The trial court also told defendant that he did not have a choice as to
which attorney he was assigned from the public defender’s office. Defendant indicated that he
wished to hire his own attorney, and the trial court granted him a 60-day continuance to do so.
The trial court stated, “I can’t give you another Public Defender but I can certainly let you hire
somebody.” The following exchange then occurred between the trial court and Kramarsic:
“MR. KRAMARSIC: Your Honor, I guess at this point it may leave me in
limbo. I guess if you’re still leaving me as the attorney of record, there are issues
that I would want to correct with this but [defendant] certainly does not wish to
hear anything that I have to say.
***
THE COURT: Is there anything that you want to put on the record today?
MR. KRAMARSIC: I mean, I would just like to say that I have reviewed
the records, I have reviewed everything involved in this case. I haven’t filed my
certification regarding that, which I was going to file with my amended petition,
but I can’t even get to the point of being able to do that.
THE COURT: And I won’t have you do that.
MR. KRAMARSIC: Okay.
THE COURT: Right now, nothing you will do, because he’s requested
time to—
MR. KRAMARSIC: Sure.
THE COURT:—get a private lawyer.
And so I’m reserving my ruling on you filing anything, nor are you under
any obligation to do that until I see what [defendant] can find in 60 days, so let’s
do that for you.”
¶9 Another status hearing was held on April 24, 2014. Kramarsic advised the court that he
attempted to discuss with defendant whether defendant had been able to hire private counsel and
“it [was] one hundred percent absolutely clear from our conversations that [defendant] want[ed]
nothing to do with [Kramarsic] in this case.” Defendant stated that he was trying to find an
attorney but had not hired one yet. The trial court scheduled a hearing on the State’s motion to
dismiss for June 12, 2014. The trial court told Kramarsic: “I’m aware he won’t talk to you. And
so you won’t be representing him at any hearing at this point.” The trial court then stated:
“THE COURT: All right. *** And if [defendant] doesn’t have a lawyer [at
the hearing on the motion to dismiss], I’ll have to address him as to his options.
But you put on the record he doesn’t want to talk to you. That’s fine. You
have—
I’m not dismissing you completely, I’m leaving options open. But I won’t
expect you to be prepared for a hearing is what I am saying.
THE COURT: You’re still in the case.”
¶ 10 At the hearing on June 12, defendant had not hired private counsel. The following
exchange occurred:
“[THE COURT:] *** Now, [defendant], it’s my understanding that you
still want to proceed pro se to represent yourself?
THE DEFENDANT: I’m going to have to, Your Honor, yes, ma’am.
THE COURT: Why are you going to have to?
THE DEFENDANT: I asked [Kramarsic] three times back there are you
going to help me and he gave me no answer.
THE COURT: Now, when you say, is he going to help you, what do you
mean by that? I need to investigate this issue.
THE DEFENDANT: That’s what I’m saying, is he going to help me try to
get through this post-conviction?
THE COURT: Well, he has so far, has he not? Mr. Kramarsic?
THE DEFENDANT: He hasn’t filed no motion or nothing.
THE COURT: You need to address this issue because when there’s a
complaint, you know, we need to have an answer here.
MR. KRAMARSIC: Your Honor,—
THE COURT: It’s not just—[defendant’s] complaining not just that he
wants to represent himself but he says that you said you’re not going to help him
so why don’t you respond.
MR. KRAMARSIC: You Honor, I have. This is the third time I’ve
attempted to talk to [defendant] about this case. First time that I met with him he
did not agree with the—with my ideas with the case and the way I wanted to
proceed and I told him I didn’t believe the issues here—that we had strong issues,
and he wanted to proceed with what he thought was the right way to do it and not
even listen to the way I wanted to proceed with the case. That was the first time.
The second time I met with him again I tried again to explain what I felt
about the case. Again, he disagreed with me. That was the time that he lunged at
me and swore at me and told me to leave, and certainly I could tell at that point
that obviously he does not want me to help him at all. He just doesn’t agree with
my theory of the case and clearly does not want me involved with it and I feel like
I’m stuck here because I don’t know what else to do. [Defendant has] told me
numerous times he does not want me to do anything.
THE COURT: All right, well, I find knowing [defendant], and considering
the issues involved here, that it appears you do not want to listen to Mr.
Kramarsic.
Now the question—I will allow—you can’t choose what Public Defender
you’re going to have so I’ll allow the Public Defender to withdraw.
Now, the question becomes, [defendant], the only right to a lawyer that
you have—I feel you are capable of representing yourself if that is your desire, is
whether you want to hire private counsel or you want to represent yourself pro se.
That’s the first question I have of you. What is your answer?
THE DEFENDANT: I was trying to hire private counsel, Your Honor,
you know what I’m saying, but finally no funding. ***
THE COURT: *** do you want to represent yourself?
THE DEFENDANT: No, I can’t represent myself.
THE COURT: Well, you’re going to have to.
THE DEFENDANT: All right, let’s go.
THE COURT: When you say you can’t—are you telling me that you’re
not going to be able to hire private counsel?
THE DEFENDANT: I’m waiting on my parents.”
¶ 11 The court asked defendant if he was ready to proceed on the State’s motion to dismiss,
and defendant replied, “I guess so.” The court then asked defendant to answer “yes” or “no,” and
defendant said, “I got no attorney. I guess not.” The court granted defendant a 35-day
continuance. At the hearing, defendant filed an untitled, handwritten document arguing that the
State erred in charging him with an offense he committed while released on bond under the same
criminal case number as the underlying offense.
¶ 12 On July 17, 2014, a hearing was held on the State’s motion to dismiss. Defendant
appeared pro se. The trial court granted the motion in part but ordered that an evidentiary hearing
be held on the issue of ineffective assistance of counsel.
¶ 13 On October 2, 2014, an evidentiary hearing was held. Defendant appeared pro se at the
evidentiary hearing. Defendant’s plea counsel was the only witness. The trial court denied
defendant’s postconviction petition following the hearing.
¶ 14 ANALYSIS
¶ 15 The Post-Conviction Hearing Act (Act) affords indigent defendants the right to counsel
beyond the first stage of proceedings. 725 ILCS 5/122-4 (West 2014). The right to assistance of
postconviction counsel derives from the Act rather than the constitution. People v. Cotto, 2016
IL 119006, ¶ 29. Our supreme court has held that “a defendant in postconviction proceedings is
entitled to only a ‘reasonable’ level of assistance, which is less than that afforded by the federal
or state constitutions.” People v. Pendleton, 223 Ill. 2d 458, 472 (2006) (quoting People v.
Munson, 206 Ill. 2d 104, 137 (2002)). “[A] defendant has a right to proceed pro se in
postconviction proceedings.” People v. Heard, 2014 IL App (4th) 120833, ¶ 10 (citing 725 ILCS
5/122-4 (West 2010)). However, a defendant must “knowingly and intelligently relinquish[ ] his
right to counsel, and his waiver [must be] clear and unequivocal, not ambiguous.” Id.
¶ 16 Defendant argues that the trial court erred in forcing him to represent himself. Because
defendant did not waive his right to appointed counsel, either expressly or through his conduct,
the trial court erred in requiring defendant to proceed pro se.
¶ 17 A defendant can expressly waive the right to counsel. A defendant may also relinquish
his right to counsel in two additional ways, forfeiture and waiver by conduct. People v. Ames,
2012 IL App (4th) 110513 ¶ 26. (1) “[F]orfeiture, strictly defined, is different from waiver
because instead of being an intentional relinquishment of a known right, forfeiture is the failure
to make the timely assertion of the right.” Id. ¶ 28.
“[Forfeiture of counsel] may occur because of a defendant’s severe misconduct
without the defendant’s first having been warned of the consequences of his
engaging in that severe misconduct. A trial court has the discretion to determine
that the defendant’s misconduct was so severe (such as physically attacking his
defense counsel) that no warning of forfeiture of counsel was necessary or
foreseeable before the court concludes that the defendant has forfeited his right to
counsel and will be required to henceforth represent himself.” Id. ¶ 37.
¶ 18 The Arizona Supreme Court found that “forfeiture [of counsel] is reserved for the most
severe cases of misconduct and should result only when less restrictive measures are
inappropriate.” State v. Hampton, 92 P.3d 871, 874 (Ariz. 2004) (en banc) (cited in Ames, 2012
IL App (4th) 110513, ¶ 32).
¶ 19 (2) Waiver by conduct, on the other hand, requires that the trial court first warn a
defendant that he could lose his right to appointed counsel if his misconduct continues.
“ ‘Once a defendant has been warned that he will lose his attorney if he engages
in dilatory tactics, any misconduct thereafter may be treated as an implied request
to proceed pro se and, thus, as a waiver of the right to counsel. ***
These are not “waiver” cases in the true sense of the word. In many
situations[,] there will be defendants who engage in dilatory conduct but who
vehemently object to being forced to proceed pro se. These defendants cannot
truly be said to be “waiving” their Sixth Amendment rights because although they
are voluntarily engaging in misconduct knowing what they stand to lose, they are
not affirmatively requesting to proceed pro se.’ ” Ames, 2012 IL App (4th)
110513, ¶ 34 (quoting United States v. Goldberg, 67 F.3d 1092, 1100-01 (3d Cir.
1995)).
¶ 20 Before a trial court may find that a defendant has waived his right to counsel by conduct,
“the court must first comply with the requirements of Rule 401(a), explaining to the defendant
what is at stake if his conduct continues.” Id. ¶ 38. “ ‘ “A court is under no less obligation to
ensure that waiver is knowing and intelligent when voluntariness is deduced from conduct than
when it is asserted expressly.” ’ ” Id.¶ 39 (quoting State v. Weiss, 637 N.E.2d 47, 50 (Ohio Ct.
App. 1993), quoting United States v. Allen, 895 F.2d 1577, 1579 (10th Cir. 1990)). Ames found
that the trial court committed reversible error in finding that the defendant had waived his right
to counsel by his conduct because the trial court never admonished the defendant pursuant to
Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Id. ¶ 38.
¶ 21 Here, the trial court never warned defendant that he would lose his right to appointed
counsel if his misconduct toward his appointed attorney continued. See Ames, 2012 IL App (4th)
110513, ¶¶ 34, 38. In the absence of such a warning, defendant’s repeated failure to cooperate
with his appointed counsel cannot be construed as a knowing waiver. See id.¶ 39.
¶ 22 The State argues that this case involves postconviction proceedings, which gives the
defendant a statutory right to counsel rather than a constitutional one. Also, admonitions
pursuant to Rule 401 are not applicable in postconviction proceedings. See People v. Young, 341
Ill. App. 3d 379, 387 (2003) (holding that compliance with Rule 401 was not required during
posttrial proceedings after the defendant was already convicted and sentenced). Nonetheless, we
find that, under these circumstances, the trial court was required to warn defendant that his
continued misconduct could result in waiver of his statutory right to counsel before defendant
could waive his right to counsel by conduct. The distinction between how and where the
defendants’ right to counsel originated is one without significance.
¶ 23 The trial court failed to warn defendant that he could waive his right to counsel through
his conduct, but indicated that defendant would still have the option of appointed counsel if he
failed to hire a private attorney. Despite Kramarsic’s reports about conflict between defendant
and him, the trial court maintained Kramarsic’s appointment as counsel to “leav[e] options
open.” During this time, the trial court said that it was not dismissing Kramarsic completely, but,
months later, the court allowed Kramarsic to withdraw based on his complaints that defendant
would not listen to him. While it was certainly within the trial court’s discretion not to permit
Kramarsic to withdraw immediately, the court erred by permitting him to withdraw before
warning defendant that he stood to lose his right to appointed counsel if his behavior continued.
¶ 24 Even so, the State argues that defendant forfeited his right to counsel through his severe
misconduct, relying on United States v. McLeod, 53 F.3d 322, 324-25 (11th Cir. 1995). In
McLeod, the court found that the defendant forfeited his right to counsel based on his “pervasive
misconduct.” Id. Defendant’s attorney testified that the defendant was verbally abusive,
threatened to harm him, threatened to sue him, and attempted to persuade him to engage in
unethical conduct. Id. at 325. Because of McLeod’s actions, the court found a forfeiture of
defendant’s right to an attorney. The court was “troubled” by the trial court’s failure to warn
defendant, but found that the defendant’s actions were “repeatedly abusive, threatening and
coercive.” Id at 326.
¶ 25 In this case, defendant yelled obscenities at Kramarsic and pulled the papers out of
Kramarsic’s hands. Though defendant’s behavior was certainly inappropriate, we do not find that
his misconduct was so severe that no warning was necessary or foreseeable. See Ames, 2012 IL
App (4th) 110513, ¶ 37. While the trial court has discretion to determine whether the severity of
a defendant’s misconduct requires forfeiture, under these facts, a warning would have been the
appropriate remedy.
¶ 26 We can only praise the trial judge for her patience and resolve during the trial of this
matter, but we must reverse and remand for the above stated reasons.
¶ 27 CONCLUSION
¶ 28 The judgment of the trial court denying defendant’s postconviction petition is reversed.
We remand the matter for the appointment of counsel and new second stage proceedings. On
remand, appointed counsel may file an amended petition, if appropriate, and the State may
respond accordingly.
¶ 29 Reversed and remanded with directions.
¶ 30 JUSTICE SCHMIDT, dissenting.
¶ 31 For the following reasons, I would affirm the trial court and, therefore, respectfully
dissent.
¶ 32 The record shows and the facts set out by the majority show that this trial judge was more
than patient and that defendant was well aware that his refusal to work with the public defender
would leave him with two choices: hire private counsel or proceed pro se. Supra ¶¶ 5-12.
¶ 33 It was obvious at a hearing on November 21, 2013, that defendant was not happy with
and would not accept the help of the first public defender involved. On February 20, 2014, a
second assistant public defender appeared and advised the court that defendant had been very
belligerent and swore at him. The court advised defendant that there were no more public
defenders and there was no one left to appoint. Defendant indicated that he wanted to hire his
own attorney and the court gave him 60 days.
¶ 34 At the April 24, 2014, status hearing, the court acknowledged that it was clear that
defendant wanted nothing to do with the public defender in this case. Defendant advised that he
was trying to find another attorney but had not yet hired one. The trial court, again, continued the
hearing on the State’s motion to dismiss until June 12.
¶ 35 At the June 12 hearing, defendant had not yet hired private counsel. After discussions, the
court pointed out that it was clear defendant would not listen to the public defender and allowed
the public defender to withdraw. The court explained that defendant could either hire private
counsel or represent himself pro se. Defendant said he needed more time as he did not have the
funds to hire private counsel. The court continued the matter until July 17, 2014. It seems clear
that from as early as February 20, 2014, the trial court was putting defendant on notice that if he
could not get along with the public defender, then he would either have to hire private counsel or
represent himself. If it was not clear then, it certainly should have been clear on April 24, 2014.
It is hard to understand how anyone in the courtroom that day could not understand that the
options were to get along and cooperate with the public defender, hire your own counsel, or
proceed pro se. To the extent that Rule 401 admonishments are required in postconviction
proceedings, there was substantial compliance.
¶ 36 For his second issue, defendant argues that the trial court denied his postconviction
petition after an evidentiary hearing by applying the wrong standard. Defendant argues that the
court required defendant to establish that he would have been found innocent if the cause had
proceeded to trial. Defendant then argues that the correct standard is “whether but for counsel’s
deficiencies, the defendant would have gone to trial.” That is not the standard. The standard
would be whether but for counsel’s deficiencies, a reasonable person in defendant’s position
would have gone to trial. That is, to establish prejudice, a defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pled guilty and would
have insisted on going to trial. People v. Rissley, 206 Ill. 2d 403, 457 (2003). A bare assertion is
insufficient. Id. at 457-60. At the evidentiary hearing on the postconviction petition, defendant’s
plea counsel testified. Defendant did not. Plea counsel testified that defendant knowingly decided
to plead guilty after going over all the facts and the State’s case. Plea counsel denied putting any
pressure on defendant into taking the plea. Defendant never claimed that he was either innocent
or had a plausible defense. Id. at 460; see also People v. Hall, 217 Ill. 2d 324, 335-36 (2005).
Under any standard you choose, pick one, the trial court did not err in denying defendant’s
postconviction petition. We review the court’s judgment, not its reasoning. Material Service
Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983).