People v. Maxey

2016 IL App (1st) 130698, 57 N.E.3d 726

• Court: Appellate Court of Illinois
• Decided: June 30, 2016
• Docket: 1-13-0698
• Status: Unpublished

Opinion

2016 IL App (1st) 130698

FOURTH DIVISION June 30, 2016

No. 1-13-0698

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 07414-01 ) LAMARR MAXEY, ) Honorable ) Noreen V. Love, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Howse concurred in the judgment and opinion. Justice Ellis concurred in part and dissented in part, with opinion.

OPINION

¶1 Following a bench trial, defendant Lamarr Maxey was found guilty of residential

burglary and aggravated fleeing or attempting to elude a peace officer. The trial court

subsequently sentenced defendant to concurrent terms of 20 years for the residential burglary

conviction and 3 years for the aggravated fleeing conviction.

¶2 Defendant appeals, arguing that: (1) defendant's waiver of counsel was invalid because

the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 401(a)

(eff. July 1, 1984); (2) during the suppression hearing, the trial court erred in allowing the State

to question defendant on irrelevant matters and in excluding relevant evidence; (3) the trial court

did not obtain a knowing and voluntary jury waiver; (4) the State failed to prove the charge of

aggravated fleeing or attempting to elude a peace officer; and (5) the fines and fees order should No. 1-13-0698

be reduced by $24 due to improperly imposed fines and full credit for time in custody awaiting

trial.

¶3 On April 18, 2011, defendant, along with codefendant Shadeed Love, was arrested and

charged with residential burglary of Robert Fjeldheim and his residence at 333 Jackson

Boulevard in Hillside, Illinois. Defendant was also charged with aggravated fleeing or

attempting to elude a peace officer. 1

¶4 Defendant first appeared before Judge Kristyna Ryan on April 19, 2011, and assistant

public defender Thomas Tucker was appointed. . The court found probable cause to detain and

set defendant's bond at $400,000. On April 22, 2011, defendant appeared before Judge Gilbert

Grossi, and was represented by assistant public defender Michael Halloran. Defendant indicated

to the court that he wished to represent himself. The following colloquy then took place.

"DEFENDANT: I'm pro se. The Public Defender's office is not

representing me.

THE COURT: Who said that?

DEFENDANT: I informed him already. At this time, I would like

to ask for all, any and all —

THE COURT: Let's slow down here. You're getting ahead of

yourself. Did you go to law school?

DEFENDANT: I'm very familiar with the law, but I don't want –

I'm exercising my constitutional right. I don't want the Public

Defender's Office representing me.

THE COURT: Have you been charged with a felony before?

1 Defendant was later charged by indictment with attempted first degree murder and attempted armed robbery. 2 No. 1-13-0698

DEFENDANT: Yes, I have.

THE COURT: Well, this is residential burglary, which means you

can to go the penitentiary between four and 15 years.

DEFENDANT: Right. Being advised of that, I'm–I would still like

to exercise my constitutional rights.

THE COURT: Slow down. We are not done yet. Have you ever

represented yourself before?

THE COURT: And what happened to the case?

DEFENDANT: I had a split verdict.

THE COURT: What was the split verdict?

DEFENDANT: Not guilty of armed robbery and guilty of robbery.

And I recently represented myself in Illinois in front of the judge in

702 in the criminal courts building on a motion.

THE COURT: You understand—you have a right to represent

yourself. There's no question about that. You understand if you

represent yourself, I'm going to hold you to the same standard as I

would a lawyer?

DEFENDANT: Yes, I do.

THE COURT: That you're not going to be allowed to have a public

defender stand by and help you in any fashion whatsoever.

DEFENDANT: Yes, I do, [Y]our Honor.

THE COURT: Okay. Then you can represent yourself."

3 No. 1-13-0698

¶5 After the trial court allowed defendant to appear pro se, defendant then made the

following oral motion.

"DEFENDANT: Your [H]onor, at this time, I would be requesting

that any 911 calls be saved, any police radio transmissions and

apprehension and stopping of my van, I would be asking that all

those police radio transmissions and any 911 calls made in regards

to a burglary at 33 Jackson [sic]—

THE COURT: Were there any such calls?

POLICE OFFICER: From the victim, [Y]our Honor.

THE COURT: I'll sign an order preserving—

DEFENDANT: And the radio transmissions too, [Y]our Honor.

THE COURT: Sure. I'll sign an order to preserve anything

transmitted relating to this case.

DEFENDANT: The calls on the radio transmission.

THE COURT: Sure."

¶6 The case was then set for the grand jury on May 6, 2011. At that court date, the trial

court informed defendant that he had been indicted by the grand jury. Defendant asked again

about the preservation of radio calls.

"DEFENDANT: Last time I requested [the] 911 [phone] calls and

the police radio transmissions. Can they be preserved?

THE COURT: Did you file an order? Did you file an order

preserving them?

DEFENDANT: I asked you last time I was here.

4 No. 1-13-0698

THE COURT: No, I have to have a written order. An oral order is

on the record, but I have to have a written record if you want to get

it done. *** Let's send a blank order for him back there to fill it

out."

¶7 On May 27, 2011, defendant appeared pro se before Judge Noreen Love for an

arraignment. When the trial court asked who represented defendant, the following discussion

occurred.

"DEFENDANT: I'm pro se at this time, [Y]our Honor.

THE COURT: I'm sure a lawyer was appointed in –

DEFENDANT: No.

THE COURT: No lawyer was ever appointed?

DEFENDANT: No. I asked to be pro se since the inception of the

case.

THE COURT: So you've been intending to go pro se all along?

DEFENDANT: Yes, I have. I've been admonished three times by

Judge Grossi. I have a motion for discovery I would like to submit

at this time, and Judge Grossi—

THE COURT: Well, you're putting the cart before the horse.

Because right now it's time for you to be arraigned on this matter.

I cannot give you legal advice. You understand that?

DEFENDANT: Yes, Ma'am, I do.

THE COURT: And you understand that you're going to be held to

the same standard as any other attorney would when you're

5 No. 1-13-0698

representing yourself?

THE COURT: You also understand that State's Attorneys are

licensed, practicing attorneys. They have been to law school.

They have to pass the bar in order to be in the position that they're

in. Do you understand that?

THE COURT: How much education have you had, sir?

DEFENDANT: Currently a junior at Chicago State University

upon my arrest.

THE COURT: Well, let me start first by asking you: Do you know

what an arraignment is?

DEFENDANT: Yes.

THE COURT: Do you understand the procedure for an

arraignment?

DEFENDANT: Yes, being notified of the official charges against

me.

THE COURT: All right. Okay. Then I'm going to ask you this

question: Do you want me to read to you the actual charges, or do

you want to waive the reading of the charges; in other words, give

up the right to have the charges read to you?

DEFENDANT: I'm giving up the right to hearing them read.

6 No. 1-13-0698

THE COURT: Okay. How are you pleading, sir, to each and every

charge? You do know what you're being charged with; is that

correct?

DEFENDANT: Yes, I do. Not guilty, and I'm also demanding

trial."

¶8 The trial court then discussed with defendant whether he was ready for trial that day

without having any discovery. The court also admonished defendant that it would not appoint

standby counsel for defendant and he would be on his own. Defendant indicated that he

understood. Defendant then presented the discovery order signed by Judge Grossi. The court

then discussed with defendant whether the order was sent to the appropriate parties, including the

Hillside police department. On that date, defendant also filed a handwritten motion for

discovery, asking the state's attorney to disclose and produce evidence which is essential and

material to the preparation of his defense, including but not limited to names and addresses of

State witnesses.

¶9 At a June 2011 court date, the State tendered discovery to defendant in court, including

the case report, photos, and the grand jury transcript. Defendant also moved for a bond

reduction. At the next court date in July, defendant discussed his motion for bond reduction,

indicating that he would reduce it to writing. He also asked about access to a disk with discovery

on it. At the following court date in August, the State tendered additional discovery to

defendant. The court also informed defendant that this case would proceed before the 2008 case.

Defendant withdrew his motion to reduce bond. Later that month, the court told defendant that

the State was setting up equipment to allow him to view a videotape in the courtroom.

7 No. 1-13-0698

¶ 10 At the following court date on September 7, defendant confirmed he viewed the video.

The parties also discussed defendant's access to the law library. Defendant also indicated that he

would be filing two motions, a motion to quash and a motion to obtain custody of all video and

audiotapes to be played in the custody of all parties. Defendant discussed his concern that he

wanted a copy of the record, noting that if he had an attorney, then his attorney would have a

copy of the record. He did not want the State's Attorney's office holding his copy of the

videotape. The court informed defendant he was responsible for subpoenaing his witnesses for

the hearing on his motion to quash arrest and suppress evidence. Defendant indicated that he

intended to subpoena the arresting officers.

¶ 11 Also, on September 7, 2011, defendant filed a written pro se motion to quash arrest and

suppress evidence. Citing the United States Constitution and the Illinois Constitution, defendant

argued that his April 18, 2011, arrest was "made without authority of a search warrant" and

defendant's conduct prior to his arrest was "such as would not reasonably be interpreted by the

arresting officers as constituting probable cause that [defendant] had committed or was about to

commit a crime."

¶ 12 At the court date in October 2011, defendant stated that he had discussed subpoenas with

the public defender, and would now like to discuss a subpoena for the 911 operator. In

November 2011, the matter was set for hearing on defendant's motion. Defendant stated that he

wanted to call the 911 operator. Defendant also discussed a stipulation of the 911 call, but was

advised by the trial court that he was premature in seeking to admit evidence. Defendant later

decided he needed to subpoena the arresting officers. At the court appearance in December

2011, defendant continued to discuss his intended witnesses for the suppression hearing. The

8 No. 1-13-0698

witnesses were not available that date. Defendant also informed the court that he was trying to

ascertain additional witnesses for the defense, but did not know their names.

¶ 13 On January 20, 2012, the trial court conducted a hearing on defendant's suppression

motion. At the start of the hearing, the prosecutor noted that Detective Anthony Milazzo, one of

the police officers subpoenaed, was unable to appear due to a death in his family. The parties

proceeded with the hearing.

¶ 14 Defendant called Joseph Beckwith to testify. Beckwith testified that he was employed as

a dispatcher for the Village of Hillside. On April 18, 2011, Beckwith took a call about a

burglary from the victim, Robert Fjeldheim. The caller stated that he returned home and saw a

red van parked in his driveway. The caller described the offenders as two "bigger" black males.

The men fled in the red van driving westbound on Madison. Beckwith relayed this information

over the emergency radio. Based upon a preservation motion he made earlier, defendant had a

recording of the call played during the hearing. The recording did not mention a red van or a

break-in. Beckwith testified that the recording began in the middle of the call.

¶ 15 Beckwith stated that within seconds he received a dispatch from Chief Joseph Lukaszek

and Detective Milazzo that they observed a red Chevy van on Wolf Road. Beckwith said that

location was less than a mile from the location of the burglary. He remained in contact with the

officers as they pursued the van. The officers saw the van make an illegal U-turn on Wolf Road

to head northbound. The officers stopped the van after it turned onto Harrison Street, but then

the van drove away and a chase ensued. The van later crashed and the occupants tried to run, but

were taken into custody. Beckwith heard the officers state that proceeds from the burglary were

found in the van.

9 No. 1-13-0698

¶ 16 Next, defendant called Chief Joseph Lukaszek to testify. Chief Lukaszek stated that he

was the chief of police for the Village of Hillside. At approximately 11:04 a.m. on April 18,

2011, Chief Lukaszek was driving north on Wolf Road in an unmarked car with Officer Milazzo

when he received a radio dispatch regarding a residential burglary. He was alerted to look for a

red Chevy van. Approximately 10 seconds later, Chief Lukaszek observed a red van traveling

south on Wolf Road. He testified that the red van then made an illegal U-turn to drive north on

Wolf Road. Chief Lukaszek stated that the weather was overcast, but it was not raining that day.

After he observed that illegal U-turn, Chief Lukaszek activated his vehicle's emergency lights

and siren and pulled the van over after it had turned onto Harrison Street. He approached the van

on the driver side while Officer Milazzo approached the passenger side. Both officers were in

plain clothes, but had badges displayed. Chief Lukaszek could not recall if he had his weapon

out. He identified defendant as the driver and said that he asked defendant for his driver's

license. Chief Lukaszek stated that defendant opened his door, looked at him, and then drove

away. He testified that defendant traveled eastbound on Harrison Street at a high rate of speed,

in excess of 85 miles per hour (mph) in a 35 mph zone. Defendant also ran three stop signs

along Harrison Street. The van turned into a mall parking lot, jumped a curb, drove down an

embankment, and eventually crashed into a tree. The van also spun and struck a dump truck.

The occupants of the vehicle then attempted to flee on foot. Defendant was stopped 300 to 400

feet from the crash. Codefendant Love was stopped by officers from the Westchester police

department.

¶ 17 Chief Lukaszek testified that property of Fjeldheim was found in the van. Defendant was

transported to 333 Jackson Boulevard, where Fjeldheim identified defendant as the person who

burglarized his home and almost struck him with the vehicle.

10 No. 1-13-0698

¶ 18 Defendant then testified, in narrative form. He stated that on April 18, 2011, he was

legally driving on Wolf Road. He saw a black Tahoe behind him with red and blue lights

flashing in the windshield. He said he did not hear a siren because it was raining and music was

playing in the van. He pulled over and two men exited the vehicle. Defendant testified that the

men were wearing street clothes and had weapons drawn. One of the men called to throw the

weapons out of the van. Defendant denied having any weapons. He said he rolled his window

down two inches and said he did not have any weapons. Defendant testified that he feared for

his life and drove to a "populated" mall. He said he parked at an angle in the parking lot, but the

Tahoe hit his van and he slid down the embankment. He stated that he did not know that Chief

Lukaszek and Detective Milazzo were police officers.

¶ 19 On cross-examination, defendant testified that he and Love were driving on Wolf Road to

look for a gas station. Defendant said he was unfamiliar with the area. The prosecutor asked

defendant where he was coming from at that time, and defendant objected on relevance grounds.

The trial court overruled defendant's objection. Defendant answered that he did not remember

where he was coming from at that time. He also said he was going to a friend's house and later

testified they were going to a bowling alley to plan a group event. The prosecutor asked

defendant about gas stations in the area of Wolf Road, but defendant did not recall seeing them.

Defendant was asked if he had any of the proceeds from the burglary in his van, and defendant

responded that he did not.

¶ 20 Following his testimony, defendant informed the trial court that he wanted to call

Detective Milazzo. The judge asked defendant if the detective's testimony would be cumulative

since the detective was in the car with Chief Lukaszek. Defendant responded that he did not

know. The State argued that defendant lacked standing to contest the search of the van because

11 No. 1-13-0698

he denied the presence of any evidence to suppress. Defendant rested and the State moved for a

directed finding. Defendant argued that the police fabricated the dispatch that identified him and

his vehicle and that there was no reason to stop his van. The trial court denied defendant's

motion, finding that the police had sufficient probable cause to stop defendant after he made an

illegal U-turn. The court said that the police had additional probable cause after defendant fled.

In entering its findings, the court also noted defendant's "selective memory" since he could not

recall gas stations or where he was coming from, but remembered there was a school nearby and

testified that he fled to a populated area. At the conclusion of the suppression hearing, defendant

requested counsel and the trial court appointed a public defender who represented defendant

from that point forward until the conclusion of defendant's trial and sentencing. At subsequent

court dates, defendant's counsel indicated that he had requested transcripts of the suppression

hearing, and once he received a copy, he would review them with defendant.

¶ 21 In December 2012, the trial court conducted a joint bench trial for defendant and Love.

Prior to the trial, the court noted that defendant had signed a written jury waiver. The court then

confirmed that it was defendant's signature. The court admonished defendant that he was giving

up his right to have a trial by jury and asked him if he knew what a jury trial was. Defendant

responded in the affirmative to both inquiries.

¶ 22 Robert Fjeldheim testified that on April 18, 2011, he lived at 333 North Jackson

Boulevard in Hillside. At approximately 11:04 a.m., he returned home from an errand. He

observed a red van in his driveway and initially thought it belonged to his nephew and his

friends. He parked his car and walked toward the van. He saw the van's headlights flash and the

horn honked. He then heard a voice from inside the van say, "He is home." His back door then

12 No. 1-13-0698

flew open and he ducked. Fjeldheim then testified that Love grabbed his hood and tried to hit

him on the head with a flashlight. He wrestled with Love and knocked the flashlight loose.

¶ 23 Fjeldheim testified that he heard someone in the house say, "Get his keys. Get his keys."

Then defendant came charging out of the back door. When defendant ran past, Love let go of

Fjeldheim and Fjeldheim ran toward the yard. The men got in the van and drove away, missing

Fjeldheim by inches. He saw the van drive through his neighbor's yard, before traveling north on

Jackson Boulevard and turning west on Madison Street. Fjeldheim then called 911. He

described the assailants as two big black males.

¶ 24 When the police arrived at his house, Fjeldheim identified defendant and Love as the

perpetrators. He also identified property from his house, including jewelry, photos, and business

cards. Fjeldheim testified that he did not give permission to either man to enter his house or to

take anything from it.

¶ 25 Detective Anthony Milazzo testified that at approximately 11 a.m. on April 18, 2011, he

was a passenger in a vehicle driven by Chief Joseph Lukaszek. He received a call for a burglary

at 333 Jackson Boulevard which mentioned a red van leaving the scene. The officers were

driving near Wolf Road and Harrison Street, about half a mile from the burglary. Detective

Milazzo stated that they saw a red van turning from southbound Wolf Road onto eastbound

Harrison Street. The chief activated the police lights and effected a traffic stop of the van on

Harrison Street.

¶ 26 Detective Milazzo testified that as they got near the back of the vehicle, it accelerated

onto Harrison Street. The officers got back in the squad and pursued the van. He stated that the

vehicle continued eastbound on Harrison Street "at a high rate of speed" and ran two or three

stop signs. The vehicle then entered a mall parking lot. As it entered the parking lot, the vehicle

13 No. 1-13-0698

went over a curb, hit a tree going down an embankment, and went down near the ramp of the

Interstate 290 expressway. Detective Milazzo identified defendant as the driver and Love as the

passenger in the van. Both men tried to flee on foot. He and Chief Lukaszek pursued defendant

and apprehended him. He later saw that Love had been apprehended by Westchester police.

¶ 27 After the men were apprehended, the officers searched the van. Detective Milazzo stated

that they recovered a pillowcase full of items in between the front seats. He testified that the

victim later identified those items as his property. The victim also identified both defendant and

Love as the burglars.

¶ 28 The State also introduced a certified document from the Illinois Secretary of State that

defendant was the owner of a 1999 Chevy van. The State rested. Both defendants moved for a

directed finding, which the trial court granted as to attempted first degree murder and attempted

armed robbery. Defendant rested without presenting any evidence. The trial court then found

defendant guilty of residential burglary and aggravated fleeing or attempting to elude a peace

officer.

¶ 29 At the subsequent sentencing hearing, the trial court found defendant eligible for a Class

X sentence based on his prior felonies. Defendant's presentence investigation disclosed that

defendant had 11 prior felony convictions dating back to 1985, including unlawful restraint in

1985, burglary in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over

60 years old in 1994, aggravated battery in 1995, robbery in 1995, possession of contraband in

penal institution in 1995, and attempted aggravated robbery in 2013. The court sentenced

defendant to a term of 20 years for residential burglary and a concurrent term of 3 years for

aggravated fleeing. The sentence imposed in this case was to run consecutive to a sentence

imposed in an unrelated case.

14 No. 1-13-0698

¶ 30 This appeal followed.

¶ 31 Defendant first argues that the trial court's admonishments did not comply with Illinois

Supreme Court Rule 401(a) (eff. July 1, 1984) and therefore, his waiver of counsel was invalid.

The State maintains that the trial court substantially complied with Rule 401(a) when it

admonished defendant, and even if the trial court failed to properly admonish defendant, no

reversible error occurred.

¶ 32 Initially, the State contends that defendant's claim of improper admonishments has been

forfeited because he failed to raise the issue in the trial court either by objection or in a posttrial

motion. Defendant concedes that he did not object in the trial court, but asks this court to review

this issue as plain error.

¶ 33 To preserve an issue for review, defendant must object both at trial and in a written

posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a

forfeiture as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Supreme

Court Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a)

(eff. Jan. 1, 1967). The plain error rule “allows a reviewing court to consider unpreserved error

when (1) 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) 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) (citing People

v. Herron, 215 Ill. 2d 167, 186-87 (2005)). However, the plain error rule "is not 'a general

15 No. 1-13-0698

saving clause preserving for review all errors affecting substantial rights whether or not they

have been brought to the attention of the trial court.' " Herron, 215 Ill. 2d at 177 (quoting People

v. Precup, 73 Ill. 2d 7, 16 (1978)). Rather, the supreme court has held that the plain error rule is

a narrow and limited exception to the general rules of forfeiture. Id.

¶ 34 Defendant carries the burden of persuasion under both prongs of the plain error rule.

People v. Lewis, 234 Ill. 2d 32, 43 (2009). Defendant asserts that an invalid waiver of counsel

falls under the second prong of plain error. However, “[t]he first step of plain-error review is to

determine whether any error occurred.” Id. We will review defendant's claim to determine if

there was any error before considering it under plain error.

¶ 35 "It is well established that the sixth amendment to the United States Constitution

guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the

correlative right to proceed without counsel." People v. Haynes, 174 Ill. 2d 204, 235 (1996)

(citing Faretta v. California, 422 U.S. 806, 833-34 (1975)). "The right of self-representation is

'as basic and fundamental as [the] right to be represented by counsel.' " Id. (quoting People v.

Nelson, 47 Ill. 2d 570, 574 (1971)). A defendant has the constitutional right to self-

representation. Faretta, 422 U.S. at 834. "Although a court may consider the decision unwise, a

defendant's knowing and intelligent election to represent himself must be honored out of ' "that

respect for the individual which is the lifeblood of the law." ' " Haynes, 174 Ill. 2d at 235

(quoting People v. Silagy, 101 Ill. 2d 147, 180 (1984), quoting Illinois v. Allen, 397 U.S. 337,

350-51 (1970) (Brennan, J., concurring)); see also People v. Kidd, 178 Ill. 2d 92, 104 (1997)

(citing People v. Lego, 168 Ill. 2d 561, 564 (1995)).

¶ 36 "When an accused manages his own defense, he relinquishes, as a purely factual matter,

many of the traditional benefits associated with the right to counsel. For this reason, in order to

16 No. 1-13-0698

represent himself, the accused must 'knowingly and intelligently' forgo those relinquished

benefits." Faretta, 422 U.S. at 835. "It is well settled that waiver of counsel must be clear and

unequivocal, not ambiguous." People v. Burton, 184 Ill. 2d 1, 21 (1998). "Although a defendant

need not possess the skill and experience of a lawyer in order competently and intelligently to

choose self-representation, he should be made aware of the dangers and disadvantages of such

representation, so that the record will establish that he knows what he is doing and his choice is

made with eyes open. [Citations.] The requirement of knowing and intelligent choice calls for

nothing less than a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. [Citations.] The determination of whether there has

been an intelligent waiver of the right to counsel must depend, in each case, upon the particular

facts and circumstances of that case, including the background, experience, and conduct of the

accused." (Internal quotation marks omitted.) Kidd, 178 Ill. 2d at 104-05.

¶ 37 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), which governs the waiver of

counsel, provides as follows:

"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

17 No. 1-13-0698

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."

¶ 38 Here, defendant contends that the trial court's admonishments did not comport with Rule

401(a)(2) (Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984)) because the trial court informed him of the

sentencing range for a Class 1 felony, 4 to 15 years, rather than a Class X, 6 to 30 years, which

defendant contends was applicable based on his own criminal history. Defendant ultimately

received a sentence of 20 years for residential burglary. Defendant also contends the trial court

failed to adequately apprise him of the nature of the charges.

¶ 39 "The purpose of this rule is 'to ensure that a waiver of counsel is knowingly and

intelligently made.' " People v. Campbell, 224 Ill. 2d 80, 84 (2006) (quoting Haynes, 174 Ill. 2d

at 241). To ensure a valid waiver of counsel, substantial compliance with Rule 401(a) is

required. Id. There are numerous decisions, which we refer to later, discussing what substantial

compliance means, but the supreme court has held that "substantial compliance will be sufficient

to effectuate a valid waiver if the record indicates that the waiver was made knowingly and

voluntarily, and the admonishment the defendant received did not prejudice his rights." Haynes,

174 Ill. 2d at 236; see also Kidd, 178 Ill. 2d at 104-05, People v. Coleman, 129 Ill. 2d 321, 333

(1989), and People v. Johnson, 119 Ill. 2d 119, 132 (1987).

¶ 40 Recently, Illinois Appellate Courts have described two methods to determine whether

substantial compliance under Rule 401(a) has been met. First, "[a]n otherwise inadequate

admonition may be constitutionally sufficient, and therefore does not constitute error, if the

absence of a detail did not impede the defendant from giving a knowing and intelligent waiver."

18 No. 1-13-0698

People v. Pike, 2016 IL App (1st) 122626, ¶ 113 (citing People v. Black, 2011 IL App (5th)

080089, ¶ 20). The second method is when "a defendant may be seen as possessing a degree of

knowledge or sophistication that excuses the lack of admonition." Black, 2011 IL App (5th)

080089, ¶ 20.

¶ 41 In People v. LeFlore, the reviewing court's description of the two methods is slightly

different. The LeFlore court held: To find substantial compliance, any deficiency to provide

complete admonishments does not prejudice defendant because either: (1) " 'he was already

aware of the information that was omitted' "; or (2) " 'his degree of legal sophistication made it

evident that he was aware of the information that compliance with the rule would have

conveyed.' " People v. LeFlore, 2013 IL App (2d) 100659, ¶ 52, rev'd on other grounds, 2015 IL

116799 (quoting People v. Gilkey, 263 Ill. App. 3d 706, 711 (1994)). The LeFlore court added,

however: " 'the dispositive issue to be determined when deciding whether a waiver of counsel

*** is valid is whether the waiver of counsel was knowingly, understandingly and effectively

made, in light of the entire record.' " Id. (quoting Gilkey, 263 Ill. App. 3d at 711). Although all

of these decisions may be helpful to our analysis, we conclude that whether there has been

substantial compliance in any given case will depend upon the facts before us in light of the

purpose of the rule we are called upon to interpret.

¶ 42 For the reasons that follow, we conclude that the trial court substantially complied with

Illinois Supreme Court Rule 401(a); that defendant's waiver of counsel was knowingly and

intelligently made; there was no plain error in the admonishments given; and, finally, if there

was any error because of the lack of an admonishment, it did not amount to a plain and obvious

error which denied defendant his fundamental right to a fair trial.

19 No. 1-13-0698

¶ 43 In determining whether there was substantial compliance with Rule 401, we detail the

following: (1) the waiver occurred in open court where the trial judge specifically questioned

defendant, (2) the court on April 19, 2011, detailed the nature of every charge to defendant by

the following exchange:

"THE COURT: All right. We have a felony complaint here for

residential burglary, another felony complaint for aggravated

fleeing and eluding, and a misdemeanor complaint for assault.

DEFENDANT: Your Honor.

THE COURT: Hang on, sir. Another misdemeanor complaint for

resisting a peace officer.

Sir, I will appoint the public defendant to represent you for

the purposes of this bond hearing. Okay. So please speak to your

attorney.

State.

PROSECUTOR: Judge, on April 18th, 2011 at approximately

11:04 a.m., at the home located at 333 Jackson Boulevard in

Hillside, Cook County, Illinois, Judge, the owner of that home, the

victim in this case, came home.

He saw a van backed into his driveway. He then

discovered that his back door had been forced open and then saw

this defendant and another co-defendant inside his home, Judge,

carrying a pillow case.

20 No. 1-13-0698

The co-defendant attempted to strike the homeowner with a

flashlight which was the homeowner's flashlight. Judge, the

homeowner then ran from the scene at which time this defendant

and co-defendant entered a van.

The van was driven by this defendant here, Judge. This

defendant attempted to run over the homeowner with the van. The

homeowner called 911, gave a description of that van, and that van

was located in the 4700 block of Harrison Street.

The officers attempted to make a traffic stop. They were

initially not successful. The defendant instead continued driving

21 miles over the speed limit violating three traffic signals and

then ending up driving off the roadway and crashing, Judge.

The defendant didn't stop there, but he got out of the van

and fled on foot. He was eventually apprehended, and the

homeowner positively identified this defendant, the co-defendant,

and the items that were in that pillow case, Judge."

¶ 44 Thereafter, the prosecutor referenced defendant's criminal background as the following:

"He has a 1995 aggravated battery, great bodily harm, two years

Illinois Department of Corrections; 1992 armed robbery and

aggravated kidnapping, there was a finding of not guilty; 1993,

robbery, ten years IDOC; 1990 robbery, three years IDOC; 1989

forgery, two years IDOC; 1987 burglary, four years probation;

1984 aggravated criminal sexual assault, two years IDOC."

21 No. 1-13-0698

The State then asked for a $750,000 D bond. The public defender informed the court that

defendant was 44 years old, and currently a business major at Chicago State University. The

judge then set a $400,000 D bond.

¶ 45 Three days later on April 22, 2011, defendant appeared before another judge to set a date

for the return of an indictment. Defendant immediately informed the court that he was

representing himself, stating that he was "very familiar with the law" and was "exercising [his]

constitutional right." Defendant continued to assert his right immediately after he was advised

that he was charged with a felony, residential burglary, and the court told defendant to, "Slow

down. We are not done yet." The trial court then accurately stated the minimum and maximum

sentence for residential burglary, which is 4 to 15 years. See 720 ILCS 5/19-3(b) (West 2010);

730 ILCS 5/5-4.5-30(a) (West 2010). The court questioned the defendant extensively about his

waiver of the right to counsel, including inquiries as to defendant's education, any experience he

had previously in representing himself, and whether he had been charged with a felony before.

Defendant responded that he had previously been charged with a felony, and then detailed his

representation from a prior conviction in 1994 in which defendant received what he described as

a "split verdict." As we detail later, this was accurate information because in that case defendant

was found not guilty of armed robbery in one case, but guilty of robbery of a victim over 60

years old. The judge advised defendant that although he had the right to represent himself, the

defendant would be held to the same standards as an attorney and that the defendant would not

have a public defender to stand by and help him with his case. From the above, we conclude the

trial judge advised defendant of the dangers and disadvantages of self representation. See Kidd,

178 Ill. 2d at 104-05.

22 No. 1-13-0698

¶ 46 The trial court's statement that defendant was facing 4 to 15 years was partially correct,

and we acknowledge there was no discussion at that hearing regarding the possibility that upon

conviction of residential burglary defendant was subject to be sentenced as a Class X offender.

In fact, at defendant's initial bond hearing, the State's Attorney's office did not indicate defendant

was Class X eligible, nor was it apparently aware that defendant had recently served 27 years in

the penitentiary for a robbery conviction.

¶ 47 The record also shows that the court had previously appointed a public defender on the

first court date and the public defender appeared on behalf of defendant when he indicated that

he wanted to represent himself. Based upon all of the admonitions given, the discussions

between the court and defendant, and accepting the claim that the trial court should have

admonished defendant about the possibility of his Class X status, although there was not strict

compliance, we find there was substantial compliance with Illinois Supreme Court Rule 401.

¶ 48 At the April 22, 2011 court date, defendant followed his request to proceed pro se with a

verbal request that "any 911 calls be saved, any police radio transmissions and apprehension and

stopping of [his] van" also be preserved. The court agreed to sign an order. Defendant appeared

before this judge about two weeks later and followed up on his discovery request. The court

informed defendant that he needed a written order to enforce his request to preserve 911 calls. In

May 2011, defendant filed a written motion for discovery which was legible and cited the fifth,

sixth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, VI,

XIV), article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), multiple statutes

from the Code of Criminal Procedure of 1963 (725 ILCS 5/101-1 et seq. (West 2010)), and four

Illinois Supreme Court Rules. He sought the names and last known addresses of persons the

State intended to call as witnesses with their statements, any written or recorded statements and

23 No. 1-13-0698

the substance of any oral statements by the accused or a codefendant, a grand jury transcript, any

reports or statements of experts made in connection with the case, any book, papers, documents,

photographs, or tangible objects the State intended to use at trial, any record of prior criminal

convictions which may be used for impeachment for persons the State intends to call at trial,

information as to whether there has been any electronic surveillance of conversations, and any

material or information within the State's possession or control which "leads to negate the guilt

of the accused as to the offense charged or would tend to reduce his punishment therefore."

Defendant asked for an opportunity to inspect, obtain, test, copy, or photograph any evidence.

¶ 49 At the next court date, before a third judge, who ultimately presided over the case,

defendant again asserted his desire to appear pro se. Defendant stated that, he "asked to be pro

se at the inception of the case." He informed the court that he was admonished by the prior

judge "three times." He asked to submit a motion for discovery. The trial judge also explained

to defendant that she could not give him legal advice, that defendant would be held to the same

standard as any other attorney, and that the State's Attorneys were licensed, practicing attorneys

who had attended law school and passed the bar exam. Defendant responded that he understood.

The trial court asked defendant if he knew what an arraignment was, and he said he understood

what an arraignment was. Specifically, defendant said that it meant "being notified of the

official charges against me." Defendant then waived reading of the charges against him and

demanded trial.

¶ 50 Defendant continued to represent himself at 10 more court dates, including the hearing on

his motion to suppress. We specifically note that defendant's pro se handwritten motion to

suppress was properly formatted, raised legitimate claims, and cited proper legal authority for his

claims, including the exclusionary rule set forth in Mapp v. Ohio, 367 U.S. 643 (1961), the fourth

24 No. 1-13-0698

amendment (U.S. Const., amend. IV), and article I, section 6 of the Illinois Constitution (Ill.

Const. 1970, art. I, § 6). We also note that at the suppression hearing, defendant attempted to

impeach Beckwith, the 911 operator, with the transcript of the audio recording, which did not

contain all the information Beckwith disclosed in his testimony. While his motion was

ultimately unsuccessful, defendant's motion demonstrated his degree of legal sophistication.

Immediately after the denial of his motion to suppress, defendant requested counsel and a public

defender was appointed. These court proceedings further demonstrate that there was substantial

compliance with Rule 401(a). Next, we decide whether that defendant's waiver of counsel was

made knowingly and intelligently based upon the record before us.

¶ 51 We find the decision in People v. Herndon, 2015 IL App (1st) 123375, which is factually

similar to the case at bar, supports our analysis. In that case, the defendant was charged with two

counts of delivery of a controlled substance. He was initially appointed a public defender, who

represented the defendant at a hearing on a motion to suppress, which was denied. Less than two

weeks later, the defendant sought to represent himself. The trial court admonished the defendant

and gave him a week to consider his decision. A week later, the defendant asked for the

appointment of a different public defender, which the trial court denied, and then the defendant

elected to proceed pro se. Id. ¶¶ 3-7. In the following weeks, the defendant "filed several

motions, including discovery motions, a motion to dismiss indictment, a motion to quash arrest,

and a motion to suppress video evidence over the next several court dates." Id. ¶ 8. More than a

year after the defendant had opted to represent himself, he requested an attorney. The court

appointed counsel, who then represented the defendant through trial and posttrial motions. Id. ¶¶

10-20. At sentencing, the defendant disputed his Class X status and asked to again appear pro

25 No. 1-13-0698

se, and was admonished of the dangers of appearing pro se. Id. ¶ 20. The defendant was

sentenced to 10 years as a Class X offender. Id.

¶ 52 On appeal, the defendant argued that the trial court failed to comply with Rule 401(a) by

failing to inform him of the nature of the charges and that he was subject to Class X mandatory

sentencing. Id. ¶ 26. The reviewing court observed that the defendant had been fully notified of

the charges pending against him at the arraignment and his suppression hearing and both took

place when he was represented by counsel. Id. ¶ 27. The court then made the following

findings.

"Defendant has experience in the criminal justice system

and admittedly has a 'very extensive' criminal background. His

criminal background includes a conviction for a nearly identical

offense of possession of a controlled substance with intent to

deliver in 2000. Defendant had five other narcotics convictions,

two firearm related convictions and a burglary conviction.

Furthermore, when defendant represented himself during

pretrial proceedings he made numerous discovery requests. As

part of the discovery process, defendant had an opportunity to

inspect the 1505 fund sheets, which showed the currency with

prerecorded serial numbers used in investigations, the narcotics

and the video of the transaction that was later used at trial. In

addition, defendant filed three pretrial motions. He also filed and

argued three motions: a motion to dismiss the indictment based on

the fact that the funds used in the undercover buy were never

26 No. 1-13-0698

recovered, a motion to quash arrest on the basis that he was not

arrested at the address listed on the search warrant and a motion to

suppress the video evidence.

With all of this in mind, including the fact that defendant

was represented by counsel several months before trial, during trial

and throughout sentencing, we cannot say that defendant was not

aware of the nature of the charges, or that the trial court failed to

inform defendant of the nature of the charges against him during

the short time that defendant proceeded pro se during the pretrial

stage such that substantial compliance with Rule 401(a) was not

accomplished." Id. ¶¶ 28-30.

¶ 53 The defendant in Herndon also asserted that he was not admonished in substantial

compliance with Rule 401(a)(2). Specifically, he argued that the trial court did not inform him

of the potential sentencing range. Id. ¶ 31. The reviewing court found substantial compliance,

noting that on the date the defendant indicated he wished to represent himself, the prosecutor

stated the defendant was subject to extended term sentencing of 15 to 30 years based on his

background. Although the defendant was not told he was Class X mandatory, he was advised of

the minimum and maximum sentencing range, and the appellate court concluded no error

occurred. Id. ¶¶ 32-33.

¶ 54 We note several other Illinois decisions which have held that the trial court's failure to

strictly comply with the admonition of the minimum and maximum sentence did not warrant a

reversal of the defendant's conviction where the record clearly revealed that defendant knowingly

and intelligently waived his right to counsel based on his extensive legal experience and

27 No. 1-13-0698

knowledge of the law. See People v. Eastland, 257 Ill. App. 3d 394, 399-400 (1993) (the

defendant "exhibited a high degree of legal sophistication perhaps gained from his presence

throughout these proceedings, if not also his criminal history, so that his waiver of counsel was

made knowingly and intelligently"); People v. Meeks, 249 Ill. App. 3d 152, 172 (1993)

("Defendant has previous convictions, substantial experience with the legal system, and filed

over 15 thorough pro se petitions and motions that included extensive case law. Moreover,

defendant asserted that he had 20 years' experience with the law. Under these circumstances, we

conclude that there was no violation of Rule 401(a)."); People v. Black, 68 Ill. App. 3d 309, 313

(1979) ("Considering defendant's prior experiences with armed robbery convictions and his

familiarity with criminal law, there is no question that defendant knew that he could receive a

lengthy prison sentence upon conviction. Nevertheless, defendant, well aware of the potential

punishment, remained adamant in demanding to represent himself after repeatedly requesting the

dismissal of the court appointed counsel."); People v. Jackson, 59 Ill. App. 3d 1004, 1009 (1978)

("Defendant was no stranger to criminal proceedings. In fact he was quite familiar with them.

His conduct of the defense demonstrated his intricate knowledge of court proceedings and his

familiarity with court records. This knowledge was demonstrated by defendant's skillful but

unavailing attempt to claim he had already been discharged of the burglary offense. The record

shows, as the defendant stated to the court, he thought he could defend himself better.

Considering the entire record, we conclude defendant knowingly and intelligently waived his

right to counsel."); People v. Smith, 33 Ill. App. 3d 725, 728 (1975) ("We believe the record

evidences adequate compliance with the requirements of the rule. Defendant had earlier been

represented by retained counsel and by the public defender; he discharged both. The court

admonished him of the seriousness of the charges, that they involved felonies for which he could

28 No. 1-13-0698

be incarcerated in the penitentiary. Defendant represented to the court that he had 'quite a bit of

study in law' and that matters he had brought out on the previous trial, 'which some people

considered prejudicial to his case,' was 'part of his strategy' and had resulted in a mistrial. This

time, he assured the judge, it will be different. He asserted that he knew his case better than any

lawyer and wanted none sitting at counsel table with him in any capacity. He expressly invoked

his constitutional right to defend himself. While the record does not disclose that the court

expressly stated the potential minimum and maximum terms for the alleged offenses, we think it

plain that defendant's waiver of counsel was made knowingly and voluntarily and there is no

claim made that defendant was actually unaware of the potential penalties.").

¶ 55 In People v. Phillips, 392 Ill. App. 3d 243, 262-63 (2009), the defendant argued that the

trial court did not substantially comply with Rule 401(a) because at the time of his waiver of

counsel, the court failed to inform him of the nature of the charge and that he had the right to

counsel and one would be appointed if the defendant was indigent. The reviewing court found

substantial compliance because (1) the defendant had been fully admonished nine months earlier;

(2) the record did not suggest that defendant failed to understand the charges against him; (3) the

defendant had been represented by counsel so he understood his right to counsel and to have one

appointed; and (4) the defendant had extensive history with the criminal justice system. Id. at

263-64. The court also pointed out that the defendant did not claim that he suffered any

prejudice or that he would have acted differently had additional admonishments been made. Id.

at 263 (quoting People v. Johnson, 119 Ill. 2d 119, 134 (1987)); see also Kidd, 178 Ill. 2d at 114

("There is no suggestion in the record that the trial court's misstatement concerning either the

charge of aggravated arson or the minimum sentence played any part whatever in defendant's

waiver of his right to the assistance of counsel.").

29 No. 1-13-0698

¶ 56 Further, the supreme court has found substantial compliance in multiple cases in which

the defendant was misinformed about the minimum sentence. See Kidd, 178 Ill. 2d at 114

(finding substantial compliance by "informing defendant of the nature of the charges against

him, explaining to him that the death penalty was the maximum sentence, and advising him of

his right to counsel" despite incorrect admonishment regarding one of the charges and the

minimum sentence); Haynes, 174 Ill. 2d at 243 (substantial compliance when the defendant

informed of minimum and maximum sentences for murder charge, but not for lesser burglary

charge); Coleman, 129 Ill. 2d at 333 (the trial court incorrectly informed the defendant that the

minimum sentence was 20 years, rather than natural life); Johnson, 119 Ill. 2d at 133-34 (finding

no prejudice to the defendant when not informed that the minimum sentence was life when he

was told that the maximum sentence was the death penalty).

¶ 57 The same conclusion can be reached regarding defendant in this case. Defendant has an

extensive criminal background, including a 1987 conviction for burglary, a 1994 conviction for

robbery of a victim over 60 years old, a 2013 conviction for attempted aggravated robbery, and

several other offenses. Defendant represented himself for at least part of the proceedings for the

1994 and 2013 convictions. Defendant filed multiple motions in this case, including to preserve

911 calls and to quash his arrest and suppress evidence. Defendant was also represented by

counsel for a period of time prior to trial, during trial, and posttrial. Nothing in the record

suggests that defendant's decision to waive counsel and represent himself was not knowing and

voluntary. Defendant has not argued on appeal that his waiver was not knowing and voluntary.

He has not claimed that he suffered any prejudice as a result of the denial of his motion to

suppress or any other prejudice he suffered as a result of the incomplete admonishment.

Although defendant voluntarily chose to represent himself for the pretrial motion, defendant was

30 No. 1-13-0698

represented by counsel immediately after the denial of his motion to suppress and through trial,

posttrial, and sentencing. This record firmly establishes that defendant knowingly and

voluntarily waived his right to counsel, he did not suffer any prejudice as a result of his self-

representation for the time he did so, and had the legal sophistication to understand his rights, we

find without question that the purpose of Rule 401(a) was satisfied.

¶ 58 Moreover, were we to ignore defendant's high degree of legal sophistication, we would

still conclude that his waiver was both knowing and voluntary because of his significant and

rather lengthy criminal history. Defendant previously represented himself at trial in an earlier

prosecution and received what he calls a "split verdict." In that case, defendant was charged in

two separate cases, but the charges were tried jointly; one was for armed robbery and the other

for robbery of an individual over 60 years of age, involving the same victim for crimes that

occurred at the same location two weeks apart. People v. Maxey, No. 1-95-0885 (Mar. 14, 1997)

(unpublished order under Supreme Court Rule 23).

¶ 59 Defendant was initially represented by counsel, but the day before the jury trial,

defendant asked to appear pro se. The trial court admonished defendant, but defendant

maintained that he wanted to represent himself. The next day, defendant requested counsel other

than the public defender. The court granted defendant a continuance to retain private counsel.

Defendant later told the court that he was unsuccessful in obtaining money from his family, and

a private attorney was appointed. Later, defendant's attorney informed the court that defendant

wished to appear pro se and refused the court's offer to have counsel stand by and assist him.

Maxey, slip order at 2-3.

¶ 60 The evidence at trial showed that in November 1992, defendant entered a leather cleaning

shop on North Dearborn Street in Chicago. The victim was working at the store. Defendant

31 No. 1-13-0698

threatened the victim with scissors to his neck, took the victim to the back of the store, and

bound him with a telephone cord. Defendant took the victim's keys, money from the cash

register, and left wearing a customer's leather jacket with other coats in a bag. Two weeks later,

defendant returned to the same store, wearing the stolen leather jacket. Defendant tried to put the

victim in the back of the shop again, but the victim resisted and triggered a silent alarm.

Defendant again tied up the victim. Defendant pulled the victim's pants down looking for money

and bit the victim's arm. The police arrived as defendant was trying on more garments. Maxey,

slip order at 3-5. The jury found defendant not guilty of armed robbery for the first date, and

guilty of robbery of a victim over 60 years of age for the second date. Maxey, slip order at 5-6.

¶ 61 Defendant appeared pro se on his posttrial motions, which motions the trial court denied.

At sentencing, the State presented certified copies of defendant's conviction for burglary in 1987

and robbery in 1990 as well as his history of other offenses. There, the trial court specifically

found that defendant was Class X mandatory based on his criminal history and sentenced

defendant to 27 years in prison. Maxey, slip order at 6-7.

¶ 62 The State has filed a motion requesting this court to take judicial notice of relevant

portions of the record in another of defendant's cases, specifically defendant's 2008 case for

attempted aggravated robbery, which we do. In that case, defendant also represented himself pro

se at a suppression hearing. People v. Maxey, 2011 IL App (1st) 100011, ¶ 4. During the course

of the hearing, the trial court advised defendant that he needed the assistance of an attorney to

properly present his motion. Defendant agreed and requested counsel. The hearing was then

continued for several months. Id. ¶¶ 4-11. Ultimately, the trial court granted defendant's motion

to suppress after the continued hearing, but on appeal, another division of this court reversed. Id.

¶ 78. While the appeal in the 2008 case was pending, defendant was arrested and charged in the

32 No. 1-13-0698

current case. Defendant was found guilty in this case in December 2012. In January 2013, prior

to sentencing in this case, defendant pled guilty to attempted aggravated robbery in the 2008 case

and received a sentence of 11 years. Subsequently in February 2013, defendant was sentenced in

the instant case.

¶ 63 During the court proceedings on November 26, 2008, in that other case, defendant stated

that he was exercising his sixth amendment right to represent himself pro se because he "just

feel[s] more comfortable that way." Defendant informed the trial court that he had done it

before, again referencing the "split verdict" from the 1992 cases. Defendant demanded trial and

said he had two motions to file. The trial court then admonished defendant to make sure he

understood the charges and possible penalties. The prosecutor in those proceedings pointed out

that defendant was Class X mandatory. The court continued, stating that defendant was charged

with Class 2 felonies, but based on his background, the sentencing range would be Class X,

which is 6 to 30 years. Defendant stated that he understood each of these admonitions.

¶ 64 At a subsequent court date in December 2008, defendant appeared before a different trial

judge, who asked defendant whether he wished to be represented by the public defender, and

defendant responded no. Defendant informed the court he received incomplete discovery from

the State and he asked for the appointment of an investigator. The court admonished defendant

again that he was Class X mandatory, and defendant said he had already waived counsel before a

different trial judge.

¶ 65 During subsequent appearances, defendant presented discovery requests and consistently

followed up on his requests. At a January 2009 court date, the trial court asked about defendant's

criminal background, and defendant responded that he was "Class X mandatory." Defendant

detailed his trial plan, that he had almost located his witnesses and would be "tendering

33 No. 1-13-0698

discovery to the State within a month," but asserted his need for 911 tapes that "were material to

[his] defense." Defendant also asked about his vehicle, if it was "seized as evidence." In March

2009, defendant asked about submitting a motion for counsel other than the public defender,

noting that he does not have "a right to perfect counsel."

¶ 66 In July 2011, on remand following this court's reversal of the grant of the motion to

suppress, defendant expressed his desire to represent himself. Defendant stated that he was

"very familiar" with the criminal justice system. Defendant continued to appear pro se in the

2008 case. In a June 2012 court date, the trial court noted that defendant had waived counsel "on

at least three separate occasions in connection with these proceedings," but as trial was

approaching, defendant stated that he was "overwhelmed" and needed counsel. At some point

counsel was appointed, as indicated by the case history detailed in a subsequent appeal. People

v. Maxey, 2015 IL App (1st) 140036, ¶ 14.

¶ 67 Defendant's history shows that he has chosen to represent himself frequently and at other

times he has had an attorney represent him when he so chooses. In the instant case, defendant

immediately requested an attorney after his motion to suppress was denied. Defendant has a

significant understanding of the criminal justice system and has used the services of the public

defender when it has served his purposes. Thus, he has knowingly and voluntarily waived his

right to counsel on several other occasions. More important, even if we did not consider the

transcript from his other case, the record still demonstrates that defendant knowingly and

voluntarily chose to represent himself through the suppression hearing. Nothing in this record

suggests that defendant was prejudiced or would have changed his mind about appearing pro se

if the trial court had admonished defendant that he was possibly facing a sentence of 6 to 30

years. Phillips, 392 Ill. App. 3d at 263 (quoting Johnson, 119 Ill. 2d at 134).

34 No. 1-13-0698

¶ 68 Defendant relies on the Second District decision in LeFlore to support his contention that

the trial court failed to comply with Rule 401(a). In LeFlore, the defendant waived the right to

counsel after the denial of a motion to suppress, and represented himself at trial. At the time of

his waiver, the trial court admonished him that he was charged with aggravated robbery and

subject to a term of 4 to 15 years in prison. LeFlore, 2013 IL App (2d) 100659, ¶ 9. However,

at sentencing the State presented copies of certified convictions establishing that defendant was

Class X mandatory and subject to 6 to 30 years in prison. Id. ¶ 10. On appeal, the defendant

argued that the trial court failed to comply with Rule 401(a) by not admonishing him of his Class

X mandatory sentencing range. Id. ¶ 50. The reviewing court found that the record did not show

the defendant had any degree of legal sophistication such that it was evident that he was aware of

the sentencing range. Id. ¶ 57.

"When defendant informed the trial court that he wished to

discharge his attorney and proceed pro se, the trial court asked

defendant if he had any history, background, or familiarity 'with

the criminal system regarding particulars of going to trial and

issues of evidence in a criminal trial.' Defendant answered that he

had 'somewhat some [sic],' but, when asked to what extent, he

responded, 'Not much.' Defendant explained that he had been

'through a few trials' and told the court that he 'went through pro

se' on his most recent charge, for attempted burglary. When asked

if it was a bench or a jury trial, defendant explained that '[i]t didn't

get that far,' that he 'decided to take the plea' that 'was brought to

me from the judge herself.' He stated that he had brought some

35 No. 1-13-0698

pretrial motions in that case and had done some legal research.

That was the one case that defendant could remember that

provided him with familiarity with the criminal system." Id.

¶ 69 As we have detailed, defendant in this case was extremely sophisticated, and clearly had

the requisite legal knowledge of his Class X mandatory status. For this reason, we find LeFlore

distinguishable, where the defendant there could not articulate his prior experience with the

criminal justice system, something this defendant expressly did. Further, we point out that the

defendant in LeFlore represented himself at trial, while defendant in the instant case was

represented by counsel at trial and sentencing.

¶ 70 Contrary to defendant's assertion, the LeFlore court did not make a blanket statement that

a defendant's criminal history cannot support a finding of substantial compliance, but rather, held

that under the facts of that case, the record did not support such a result. The same is not true in

this case, where the record clearly shows both: that the omission (lack of admonishment) did not

impede defendant's knowing and voluntary waiver, and second, defendant "possess[ed] a degree

of knowledge or sophistication that excuse[d] the lack of admonition." Black, 2011 IL App (5th)

080089, ¶ 20. Since we conclude defendant knowingly and voluntarily waived his right to

counsel, and possessed the requisite legal knowledge which satisfied both tests, we find the other

cases relied on by defendant to be distinguishable. See People v. Wright, 2015 IL App (1st)

123496, ¶ 56, appeal allowed, No. 119561 (Nov. 25, 2015) (the reviewing court declined to

"assume that defendant knew or should have known the maximum penalty because he

intelligently argued his case" where the "defendant appeared to possess somewhat of a high level

of legal sophistication, we do not believe that this made his knowledge of the maximum sentence

evident"); People v. Bahrs, 2013 IL App (4th) 110903, ¶ 46 (after being represented by counsel,

36 No. 1-13-0698

the defendant opted to appear pro se at posttrial hearings and sentencing, but was not

admonished regarding the consecutive nature of his potential sentences and the defendant lacked

"a high degree of legal sophistication"); People v. Koch, 232 Ill. App. 3d 923, 927 (1992) (where

the defendant appeared pro se during plea proceedings in which he was inaccurately informed of

his maximum sentence and subsequently received a greater sentence, the reviewing court found

that "the record before [it] does not reveal that defendant had the unusual and demonstrable legal

sophistication").

¶ 71 After considering the record in this case, as well as defendant's prior cases, it is clear that

defendant knew he was Class X mandatory. Defendant's history shows that he had been

sentenced as a Class X offender after his 1994 conviction, and he stated on the record in his 2008

case that he knew he was Class X mandatory before the Rule 401 admonishments were given in

this case. Additionally, when arrested for this charge, defendant had recently completed a 27-

year sentence for a 1994 robbery conviction, although, as pointed out above, this fact was not

apparent to anyone during the April 2011 court proceedings. It is more than obvious that

defendant was again facing very significant penitentiary time if convicted of the charged

offenses. See Black, 68 Ill. App. 3d at 313.

¶ 72 By our decision today, we do not mean to suggest that trial judges should not comply

with supreme court rules. Compliance is mandatory. See Campbell, 224 Ill. 2d at 87. Further,

complete admonishments are the rule and we encourage judges to go above and beyond that

which is required. However, the trial judge did go beyond the rule and asked defendant about his

education, his background, and whether he had represented himself before in the trial court. The

trial judge correctly informed defendant of the 4 to 15 year sentencing range for residential

burglary, the most serious charge pending at that time. Three days before defendant's April 22

37 No. 1-13-0698

appearance, the defendant was fully admonished of the nature of the charges and a public

defender was appointed to represent him. The judge also noted that defendant would be held to

the same standard as a lawyer and that defendant would not have the benefit of a public defender

to assist him. The trial court also went out of its way to make sure defendant was able to obtain

911 calls and police radio transmissions in this case. Finally, when defendant appeared before

the trial judge who presided over the case, defendant again persisted in his desire to appear pro

se. This judge also admonished defendant regarding the disadvantages of representing himself,

including that the court could not give him legal advice, defendant would be held to the same

standard as a lawyer, and that the assistant State's Attorneys attended law school, passed the bar,

and were licensed attorneys. The trial judges in this case ensured that defendant was aware of

the reality and consequences of representing himself. See Faretta, 422 U.S. at 835 (holding that

when a defendant chooses to represent himself, " 'he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that "he knows what he is

doing and his choice is made with eyes open' " (quoting Adams v. United States ex rel. McCann,

317 U.S. 269, 279 (1942)).

¶ 73 Without much analysis, defendant suggests that because the court incorrectly admonished

him, and he subsequently received a sentence of 20 years, plain error occurred. Contrary to this

suggestion, it is clear that the sentence imposed in this case was not in any way based upon a

waiver of counsel, but based upon the subsequent finding of guilty of the charges and defendant's

extensive criminal history, including the following felonies: unlawful restraint in 1985, burglary

in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over 60 years old in

1994, aggravated battery in 1995, robbery in 1995, possession of contraband in penal institution

in 1995, and attempted aggravated robbery in 2013. Defendant's background also indicates that

38 No. 1-13-0698

he was 45 years old at the time the 20-year sentence was imposed. The trial court explicitly

noted defendant's extensive history before imposing the sentence. His self-representation which

lasted for only a small part of these proceedings and the denial of his motion to suppress had no

bearing on the sentence imposed, and defendant has not established otherwise. There has been

no error. Because there is no error, there can be no plain error. See Lewis, 234 Ill. 2d at 43.

¶ 74 We also point out that finding an error has occurred (were we to do so) does not mean

that the second prong of plain error test has been met and that relief would automatically be

awarded. Rather, the burden would then be on defendant to show that the error was plain and

obvious, and it was so serious "that it affected the fairness of the defendant's trial and challenged

the integrity of the judicial process." Herron, 215 Ill. 2d at 187. Defendant has not established

plain error. Defendant has not demonstrated that the lack of any admonishment affected the

fairness of his trial and challenged the integrity of the judicial process. More specifically, we

find based upon our review of the hearing on defendant's motion to suppress, defendant has not

demonstrated that the failure to admonish him would have impacted the court's ruling on the

motion to suppress. Therefore, defendant has not established plain error such that it did not deny

him the right to a fair trial.

¶ 75 Although the dissent suggests there was no substantial compliance with Illinois Supreme

Court Rule 401, because defendant was not advised of the possible penalty of 6 to 30 years, it

does not consider what defendant was advised of before the trial judge accepted defendant's

waiver of counsel. It also disregards all of the proceedings surrounding defendant's waiver. The

dissent focuses upon one portion of the rule's provisions, and, concludes there can be no

compliance under these facts. The dissent also misapplies the plain error doctrine in the context

of a claim of an incomplete admonishment under Illinois Supreme Court Rule 401. It is not

39 No. 1-13-0698

enough to say the failure to admonish the defendant of the possible sentence of 6 to 30 years

amounts to plain error, or to conclude that defendant was denied his right to counsel without

reviewing the entire record of proceedings.

¶ 76 Most of the cases relied upon and cited by the dissent do not involve plain error review,

specifically, Bahrs, Kidd, Campbell, Coleman, Haynes, and Johnson; although in one of those

cases, the Johnson case, the Illinois Supreme Court initially mentioned that the defendant did not

preserve the error for review. Johnson, 119 Ill. 2d at 131. Other than the Johnson case, not a

single supreme court case cited by the dissent actually considered the issue of substantial

compliance with Rule 401 within the context of plain error. As already noted, the Johnson court

found substantial compliance with Rule 401. Id. at 132.

¶ 77 Plain error review is a narrow and limited exception to general forfeiture principles only

after a reviewing court has concluded that an error has occurred, does the reviewing court go on

to determine whether the defendant has established that the plain and obvious error infected the

entire proceedings so as to deny the defendant his fundamental right to a fair trial. See People v.

Thompson, 238 Ill. 2d 598, 613-14 (2010) (finding that the supreme court cannot presume a

biased jury because the trial court erred in questioning the venire under Illinois Supreme Court

Rule 431(b)); People v. Glasper, 234 Ill. 2d 173, 197-98 (2009 (discussing automatic reversal for

structural errors, "a systemic error which serves to 'erode the integrity of the judicial process and

undermine the fairness of the defendant's trial' " (quoting People v. Herron, 215 Ill. 2d 167, 186

(2005)). This is not such a case.

¶ 78 Every single case cited by the dissent cannot only be distinguished on its facts, but can be

squarely reconciled with the decision we have reached here. For example, in People v. Brzowski,

40 No. 1-13-0698

2015 IL App (3d) 120376, ¶ 45, the "trial court failed to provide defendant with any of the

required admonishments" set forth in Rule 401. That is not what occurred here.

¶ 79 In Black, 2011 IL App (5th) 080089, ¶ 14, although a plain error case, the trial judge

again failed to give any admonitions to the defendant prior to accepting the defendant's waiver of

counsel. Again, that is not what occurred here.

¶ 80 In Bahrs, 2013 IL App (4th) 110903, ¶ 14, again not a plain error case, the appellate court

decision was based in part upon a defendant's waiver of counsel just before sentencing, in which

the trial court failed to advise the defendant that he was subject to consecutive sentencing.

Thereafter, rejecting any request from the defendant that the sentencing hearing be continued or

that defendant be permitted to file a motion to reconsider the guilty finding, the trial court

proceeded immediately to impose an additional 3-year consecutive sentence to a 30-year prison

term for an aggravated driving under the influence conviction. Id. ¶¶ 7-10. The appellate court

painstakingly discussed numerous supreme and appellate court decisions concerning Rule 401,

and acknowledged the case before it was not the unusual case in which the defendant had any

degree of legal sophistication. Id. ¶ 46.

¶ 81 In Campbell, 224 Ill. 2d at 84, the supreme court found there was no compliance,

substantial or otherwise, with Illinois Supreme Court Rule 401. There were no admonishments

made in Campbell, none; hardly an analogous case and again one which did not involve plain

error review.

¶ 82 In People v. Vernón, 396 Ill. App. 3d 145, 150 (2009), when the appellate court said that

the deprivation of the right to counsel is a "classic area of plain-error review," this statement was

only partially correct because that statement only references the first half of second prong plain

error review. Necessary, however, to warrant relief under this prong is the requirement that the

41 No. 1-13-0698

plain and obvious error must have infected the entire proceedings so as to deprive a defendant of

his fundamental right to a fair trial. Additionally, we agree with the appellate court decision in

Vernón. A complete review of that decision discloses that again no admonitions were made

before the defendant waived counsel and before the defendant proceeded on his pro se motion to

dismiss the charges. The trial court also accepted the defendant's jury waiver by merely asking

the defendant if it was "voluntary." Id. at 146-47. These facts clearly warranted reversal of the

defendant's conviction of a misdemeanor offense.

¶ 83 In People v. Allen, 220 Ill. App. 3d 772, 781 (1991), the court did not review any waiver

of counsel issue, the decision concerned whether the defendants were prejudiced by their

attorney's lack of effective representation of them at trial.

¶ 84 Although the dissent suggests LeFlore is identical to the facts here, we must disagree.

We have already distinguished LeFlore above, but there the appellate court reversed the trial

court's denial of the defendant's motion to quash an arrest, in addition to finding the trial court

failed to substantially comply with Illinois Supreme Court Rule 401. LeFlore, 2013 IL App (2d)

100659, ¶ 29. Further, the dissenting justice in LeFlore suggested that the question of substantial

compliance was a close one. Id. ¶ 68 (Birkett, J., concurring in part and dissenting in part). And

although the appellate court considered the Rule 401 issue under the plain error doctrine, it

pointed out that defendant's attorney did raise the issue of improper admonishments to the trial

court, but he failed to include it in the motion to reconsider sentence. Id. ¶ 51 (majority opinion).

¶ 85 The dissent's suggestion that the supreme court's decision in LeFlore, 2015 IL 116799,

supports its analysis is not supported by any pertinent authority. The Rule 401 issue was not

before the supreme court in LeFlore because the State conceded improper admonishments on

appeal to the supreme court.

42 No. 1-13-0698

¶ 86 Finally, even if the trial court did not properly admonish defendant in this one regard, the

lack of a single admonition does not mean that the trial court did not substantially comply with

Rule 401. Nor does it mean that the waiver of counsel was not knowing and voluntary. Most

important, it does not mean that the failure to comply with Rule 401 amounts to plain error.

Defendant must still show that the lack of the admonishment so infected the entire trial

proceedings or challenged the integrity of the judicial process so as to deny the defendant his

fundamental right to a fair trial. Herron, 215 Ill. 2d at 187.

¶ 87 Here, the record overwhelmingly supports our conclusion that during the initial

proceedings in April 2011, the circuit court judges properly admonished the defendant in open

court about the nature of the charges. Defendant was also aware that he had a right to an

attorney (one was appointed to represent him), that he had the right to represent himself, and he

was advised of the possible penalties before accepting the waiver of counsel. The trial court

also accurately stated the minimum and maximum sentence for residential burglary, which is 4 to

15 years. Residential burglary, a Class 1 felony, is generally a nonprobationable offense, and

carries a mandatory prison term of 4 to 15 years as stated by the circuit judge. See 720 ILCS

5/19-3(b) (West 2010); 730 ILCS 5/5-4.5-30(a), 5-5-3(c)(2)(G) (West 2010). These

admonishments were significant. This is not a case where no admonishments were given. As

the State points out and as we earlier pointed out, the trial court questioned defendant extensively

about his waiver of the right to counsel. In addition to those matters discussed above, the trial

judge inquired as to his education, any experience he had previously in representing himself, and

whether he had been charged with a felony before. Defendant responded yes to both of those

inquiries. Defendant then also explained those matters.

43 No. 1-13-0698

¶ 88 The judge advised defendant that although he had the right to represent himself,

defendant would be held to the same standards as an attorney, and that defendant would not have

a public defender to stand by and help him with his case. The trial judge advised him of the

dangers and disadvantages of self representation, which is what the trial court is supposed to do,

to ensure that a defendant's waiver is voluntarily and knowingly made.

¶ 89 Under the facts of this case, when the trial judge advised the defendant of the possible

penalties, he correctly advised defendant of the minimum and maximum penalties for residential

burglary. It is correct that the trial judge in this case did not advise the defendant of the penalty

which the defendant may have been subject to because of his prior convictions, we conclude that

although not strict compliance with the rule, there was substantial compliance and the waiver of

counsel was knowing and voluntary.

¶ 90 In this case, the dissent has essentially substituted the required substantial compliance

with strict compliance and is imposing a burden upon trial judges that is not supported by

established precedent. Our supreme court directed in Kidd that: "[t]he determination of whether

there has been an intelligent waiver of the right to counsel, *** depend[s], in each case, upon the

particular facts and circumstances of that case, including the background, experience, and

conduct of the accused." Kidd, 178 Ill. 2d at 105.

¶ 91 Our supreme court first recognized in the Johnson decision, that strict compliance with

Rule 401 is not required. Johnson, 119 Ill. 2d at 132. There, the supreme court first stated:

substantial compliance will be sufficient to effectuate a valid waiver of counsel if the record

indicates the waiver was made knowingly and intelligently and the admonishment the defendant

received did not prejudice his rights. Id. To say we have misread and misapplied this language

44 No. 1-13-0698

ignores the record in this case and focuses only upon a lacking admonition as opposed to

considering what admonitions were made.

¶ 92 As already pointed out above, we are not suggesting judges should not comply with

supreme court rules, but the purpose of Rule 401 is not to make sure that the judge followed the

dissent's view of the rule, its true purpose is to ensure that the defendant knowingly and

intelligently waived his right to counsel. As a reviewing court, we must analyze each case on its

own facts, on its own merits, and determine whether the purpose of the rule has been met. There

was no denial of the right to counsel in this case. The moment the defendant requested an

attorney, one was provided. If he had made that request sooner, the trial judge would no doubt

have honored that request.

¶ 93 We cannot emphasize enough the actual purpose of Supreme Court Rule 401. It is to

ensure that a defendant's waiver of counsel is knowingly and voluntarily made.

¶ 94 The rule has several parts or admonishments that need to be given, to ensure a defendant

understands that giving up the right to an attorney is a significant decision. The most important

admonishment is that of the right to an attorney, and if indigent, an attorney will be appointed to

represent the accused. Giving up that right can result in unforeseen consequences to the serious

detriment of the accused. Another part of the Rule is to make certain that a defendant knows that

self representation may result in imprisonment, in other words, the great loss of one's liberty.

Finally, another important purpose of the Rule is to advise a defendant of the charges he will be

facing should he give up the right, without the benefit of an experienced advocate to defend him.

These are the dangers and disadvantages a defendant must be aware of, so that his choice is made

with his eyes wide open. See Kidd, 178 Ill. 2d at 104. If a defendant is aware of all of these, a

45 No. 1-13-0698

trial court can then determine whether to permit the waiver or not, and then we as a reviewing

court can later determine whether the waiver was knowingly and understandingly made.

¶ 95 A defendant does not need to possess the skills and experience of a lawyer to

competently and intelligently choose self representation. There is no reason to equate or

compare the ability to make a knowing choice with equivalent of a juris doctor degree.

Otherwise the constitutional right would only be available to attorneys or to those who, even the

United States Supreme Court has noted, " 'have a fool for a client.' " Kay v. Ehrler, 499 U.S. 432,

438 (1991).

¶ 96 Although defendant has a substantial criminal record, this appeal is not about the fact that

defendant has been repeatedly arrested and convicted of criminal offenses or about his long rap

sheet. It is about his ability to make a knowing and intelligent waiver of the right to counsel.

The record abundantly establishes that he did so.

¶ 97 When the defendant was advised of his right to counsel by Judge Grossi, he was aware of

all the charges, he was aware of his right to an attorney and an appointed attorney as well, and he

was aware of the minimum and maximum sentence for residential burglary. The record before

us, just at that one proceeding, establishes substantial compliance with the rule.

¶ 98 Defendant next contends that the trial court committed multiple errors during the

suppression hearing which entitle him to a new suppression hearing. Specifically, defendant

argues that the trial court: (1) violated his privilege against self-incrimination when it allowed the

State to broaden the scope of the suppression hearing; and (2) erroneously barred defendant from

calling a witness to contradict Chief Lukaszek's account of the traffic stop.

¶ 99 The State initially responds that defendant has forfeited these issues by failing to

adequately preserve them in the trial court. Defendant maintains that under People v. Cregan,

46 No. 1-13-0698

2014 IL 113600, ¶¶ 15-20, he sufficiently preserved his claim of a constitutional violation of his

right against self-incrimination by objecting in the trial court. Cregan held that an objection to a

constitutional violation at trial is sufficient to preserve the issue for appeal without raising the

issue in a posttrial motion. Id. The State contends that Cregan does not apply because defendant

did not object to a constitutional violation in the trial court, but has only raised that basis on

appeal.

¶ 100 During his testimony at the suppression hearing, defendant objected to the State's

question concerning his whereabouts prior to driving on Wolf Road as irrelevant. On appeal,

defendant challenges this question under a new theory, that it violated his privilege against self-

incrimination. According to defendant, this change does not affect his preservation of the issue.

Regardless of whether defendant preserved the issue, the State concedes that we can review it

under plain error, so we will review the issue for any error.

¶ 101 Defendant also asks this court to review the remaining claims regarding his suppression

hearing under the second prong of plain error. As stated above, The plain error rule "allows a

reviewing court to consider unpreserved error when (1) 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) 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." Piatkowski, 225 Ill.

2d at 565. But first, we must determine whether there was any error before reaching plain error

analysis. See Lewis, 234 Ill. 2d at 43.

¶ 102 We turn to defendant's argument that the trial court violated his right against self-

incrimination by allowing the State to broaden the scope of the suppression hearing.

47 No. 1-13-0698

Specifically, defendant argues that the court violated Illinois Rule of Evidence 104(d) (eff. Jan.

1, 2011) by allowing the prosecutor to question defendant on cross-examination about his

activities before being observed by the police on Wolf Road.

¶ 103 The prosecutor asked defendant where he and Love were coming from when driving on

Wolf Road, and defendant objected that the question was irrelevant, which the trial court

overruled. When defendant said they were looking for a gas station, the prosecutor again asked

where defendant was coming from. Defendant questioned the relevancy and said they were

looking for a friend's house. The prosecutor reiterated that the question was where was he

coming from, not where was he going. Defendant denied that he was coming from the location

of the residential burglary, but stated that he could not recall where he was coming from at that

time.

¶ 104 "Every criminal defendant is privileged to testify in his own defense, or to refuse to do

so." Harris v. New York, 401 U.S. 222, 225 (1971). "It is essential, therefore, to the proper

functioning of the adversary system that when a defendant takes the stand, the government be

permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's

obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege

against self-incrimination does not shield him from proper questioning." United States v.

Havens, 446 U.S. 620, 626-27 (1980); see also People v. Stevens, 2014 IL 116300, ¶ 16 ("The

defendant who takes the stand and testifies in his own behalf in a criminal case not only offers

himself as a witness in his own behalf but thereby subjects himself to legitimate cross-

examination."). "[L]egitimate cross-examination includes 'all circumstances within the

knowledge of the witness which explain, qualify, discredit or destroy his direct testimony.' " Id. ¶

17 (quoting People v. Williams, 66 Ill. 2d 478, 486 (1977)).

48 No. 1-13-0698

¶ 105 These principles notwithstanding, Illinois Rule of Evidence 104(d) provides: "The

accused does not, by testifying upon a preliminary matter, become subject to cross-examination

as to other issues in the case." Ill. R. Evid. 104(d) (eff. Jan. 1, 2011). "The extent of cross-

examination with respect to an appropriate subject of inquiry rests in the sound discretion of the

trial court." Stevens, 2014 IL 116300, ¶ 16. Thus, defendant's decision to testify at the

suppression hearing allowed the State the opportunity to cross-examine him, but only regarding

matters germane to the suppression hearing. According to defendant, his whereabouts prior to

driving on Wolf Road were beyond the scope of the suppression hearing. We disagree.

¶ 106 The trial court properly allowed the prosecutor to ask defendant about the circumstances

of the day, which were contemporaneous with the time of the traffic stop. A question regarding

where defendant was coming from prior to being on Wolf Road was relevant. Defendant

testified that he was driving legally on northbound Wolf Road when he was stopped by a black

Tahoe with flashing lights. In contrast, Chief Lukaszek stated that he observed defendant's van

driving southbound on Wolf Road, when the van made an illegal U-turn to go northbound on

Wolf Road. Depending on defendant's answer, his prior location could have further supported

his testimony that he had not broken any traffic laws and did not commit the burglary. Cross-

examination regarding defendant's location prior to the traffic stop was relevant to the

suppression hearing and factored into whether the officers had a reasonable suspicion to stop

defendant's vehicle.

¶ 107 Moreover, by testifying, defendant had placed his credibility at issue and the State was

entitled to ask him questions about the events of the day. People v. Barner, 374 Ill. App. 3d 963,

971 (2007) ("By choosing to testify, a defendant puts his credibility on the line."). The question

was asked several times because defendant evaded answering it. He responded with vague

49 No. 1-13-0698

contradictory answers about where he was going, such as, looking for a gas station, and looking

for a friend's house. Defendant denied coming from 333 Jackson Boulevard in Hillside, but he

eventually answered that he could not recall. The question was relevant to assess defendant's

credibility. As defendant concedes that the evidence at the suppression hearing was a credibility

contest, his own credibility was plainly relevant. It was further reasonable for the trial court to

rely on defendant's responses to assess his credibility. Therefore, the trial court did not err in

allowing the State to inquire where defendant had been prior to driving on Wolf Road.

¶ 108 Defendant also argues that the trial court erred in allowing the State to ask if defendant

had any proceeds from the burglary in his van. Defendant contends that the prosecutor's

question did not bear on any relevant legal fact and violated his rights. In support, defendant

cites People v. Smith, 67 Ill. App. 3d 952 (1978), but we find the conclusion in Smith does not

support a finding of plain error.

¶ 109 In Smith, during a suppression hearing, the prosecutor asked the defendant about the

contents of a box recovered from the defendant's vehicle during a traffic stop. Over objection,

the defendant admitted the box held substances allegedly containing marijuana and substances

allegedly containing amphetamines. When the defendant was asked if he knew what the

substance was, the defendant refused to answer and invoked his fifth amendment rights. The

trial court subsequently denied the defendant's motion to suppress " 'because of failure to answer

questions on cross-examination.' " Id. at 957.

¶ 110 On appeal, the defendant argued that the trial court erred in denying the motion without

considering the merits. The reviewing court noted that the sole issue raised in the motion to

suppress was whether the warrantless search and seizure was unreasonable. "Defendant's

testimony thereon at the hearing was limited to the events surrounding the search and seizure.

50 No. 1-13-0698

The prosecution inquiry on cross-examination of whether defendant knew what the substances

were – as to the question of to whom they belonged – was neither within the scope of direct

examination nor even germane to the issues raised by the motion to suppress." Id. at 958. The

Smith court concluded that the trial court erred in overruling the defendant's objections, but the

reviewing court ultimately held that the error was harmless. Id. at 959-60. "A defendant may

not avail himself of any error on his motion to suppress if the evidence both at the hearing on the

motion and at trial establishes the legality of the search and seizure thus rendering the product of

such to have been properly admissible." Id. at 959.

¶ 111 Here, the police had a reasonable suspicion to stop defendant. Chief Lukaszek testified

that he received a report of a residential burglary at 333 Jackson Boulevard, less than a mile from

where he was driving. The report stated that a red Chevy van with two male black offenders fled

the scene and were driving on Madison Street toward Wolf Road. Within 10 seconds of the

report, Chief Lukaszek observed defendant's red van driving southbound on Wolf Road. He then

saw the vehicle make an illegal U-turn to drive northbound. He curbed the vehicle, but as he

approached, the vehicle fled, driving approximately 85 mph and running three stop signs. The

van turned into a mall parking lot, jumped a curb, and slid down an embankment. Once the

vehicle stopped, the occupants fled on foot. Defendant was detained at the scene. Proceeds from

the burglary were found in the van. Based on this evidence, even if the prosecutor's question

exceeded the scope and the trial court erred in overruling defendant's objection, any error was

harmless because the evidence supported a finding of probable cause.

¶ 112 Defendant also asserts that the trial court improperly relied on her own knowledge of the

area along Wolf Road outside of the record. We disagree. During cross-examination, the

prosecutor questioned defendant about his testimony that he was on Wolf Road looking for a gas

51 No. 1-13-0698

station. The prosecutor then asked defendant if he saw several gas stations along Wolf Road,

including intersections with Roosevelt Road, 22nd Avenue, and Cermak Road. Defendant

responded that he did not recall or remember seeing the gas stations. Again, these questions

went to defendant's credibility. His testimony was that he was going to a gas station, but did not

recall seeing any of the gas stations along his path. He said he was unfamiliar with the area, but

fled in fear for his life to a populated area. The trial court properly concluded that defendant's

testimony was not credible based on his conflicting testimony that he was unfamiliar with the

area, but knew where a mall was in the area. While the court did not refer to any gas stations

beyond those mentioned in the prosecutor's questions to defendant, the difference was the court

stated what brand of gas station was at one intersection. This knowledge of the area, such that

the judge knew the gas station at Wolf Road and Roosevelt Road was a Citgo and was now a

Shell station, did not impact the court's ruling. The trial court was not basing its ruling on

information outside of the record, but instead the court considered defendant's vague and

conflicting testimony which was not error.

¶ 113 Next, defendant contends that the trial court erred in barring him from calling Detective

Milazzo to testify at the suppression hearing. Detective Milazzo was unable to appear at the

hearing due to a death in his family. At the conclusion of the hearing, defendant sought to call

the detective and the trial court asked if the detective's testimony would be cumulative to Chief

Lukaszek's testimony. Defendant responded that he did not know, but intended to ask him the

same questions he asked Chief Lukaszek. The trial court found this testimony would be

cumulative. Evidence is considered cumulative when it adds nothing to what was already before

the fact finder. People v. Ortiz, 235 Ill. 2d 319, 335 (2009).

52 No. 1-13-0698

¶ 114 Defendant bases his contention that the testimony would not have been cumulative on

differences in Detective Milazzo's trial testimony from Chief Lukaszek's testimony at the

suppression hearing. Specifically, defendant focuses on Detective Milazzo's testimony that the

red van was observed turning off southbound Wolf Road onto eastbound Harrison Street

compared to Chief Lukaszek's testimony that he observed the red van make an illegal U-turn

from southbound Wolf Road to northbound, then turn onto Harrison Street. We find this

difference would make no difference when the officers had a reasonable suspicion to stop

defendant's van. There is no dispute in their testimony that the red van was seen near Wolf Road

and Harrison Street immediately after the report of the burglary, which was less than a mile

away. Even if the trial court erred in finding that Detective Milazzo's testimony would be

cumulative, defendant's motion to suppress would not have been granted and does not amount to

plain error.

¶ 115 Regardless of whether the driver committed a traffic infraction, the officers had a

reasonable basis to detain defendant following the report of the burglary. Pursuant to Terry v.

Ohio, 392 U.S. 1 (1968), a police officer may, under appropriate circumstances, briefly detain a

person for investigatory purposes if the officer reasonably believes that the person has

committed, or is about to commit, a crime. Maxey, 2011 IL App (1st) 100011, ¶ 45 (citing

Terry, 392 U.S. at 21-22). "To justify a Terry stop, a police officer may detain a person without

having probable cause to arrest; however, the officer must have a reasonable, articulable

suspicion that the person detained has committed or is about to commit a crime." Id. ¶ 46 (citing

Terry, 392 U.S. at 21-22). "Under a 'reasonable suspicion' standard, the evidence necessary to

justify a Terry stop need not rise to the level of probable cause and can even arise when no

violation of the law is witnessed; however, a mere hunch is insufficient." Id.

53 No. 1-13-0698

¶ 116 The circumstances of defendant's stop in this case are strikingly similar to defendant's

prior arrest for attempted aggravated robbery. In that case, as previously discussed, defendant

represented himself pro se at a suppression hearing. The testimony disclosed that Aselo

Hernandez and his son Hector were working at Hector's Upholstery Store on South Western

Avenue in Chicago when defendant entered with a handgun and said it was a robbery. During a

struggle, the gun was knocked from defendant's grip and found to be a fake. Defendant fled and

Hector ran after defendant. An officer testified that in an interview following the robbery,

Hector said defendant fled in a red or maroon Oldsmobile with temporary license plates. During

the course of the officer's testimony, the trial court advised defendant that he needed the

assistance of an attorney to properly present his motion. Defendant agreed and requested

counsel. The hearing was continued for several months. Id. ¶¶ 4-11.

¶ 117 At the continued hearing, a police officer testified that he was driving an unmarked police

car when he heard the radio call of the robbery and drove near an intersection reported in a

transmission and within two to three minutes observed a red or burgundy vehicle with temporary

plates driving east on 103rd Street. The officer then curbed vehicle. He stated that the distance

from the traffic stop to the upholstery store was approximately one mile. Id. ¶¶ 14-17. The trial

court granted defendant's motion to suppress, but the reviewing court reversed, finding that the

police had a reasonable suspicion to justify the Terry stop, which ripened into probable cause.

Id. ¶ 68. "Considering the totality of the circumstances, the facts known to the officer at the time

of the arrest were sufficient to lead a reasonably cautious person to believe that defendant was

the suspect in the attempted robbery at the upholstery store, and thus the arrest was lawful." Id. ¶

75.

54 No. 1-13-0698

¶ 118 Likewise, in the instant case, the testimony of both officers, whether at the suppression

hearing or at trial, showed that defendant's red van matched the description of the perpetrators'

vehicle and was seen less than a mile from the location of the burglary within seconds of the

radio call. Any discrepancy in the testimony does not negate these facts and even if defendant

did not commit a traffic violation, the officers had reasonable suspicion to detain defendant for a

Terry stop. Defendant's flight from the stop further ripened into probable cause to arrest. No

plain error occurred in denying defendant's request to present Detective Milazzo's testimony at

the suppression hearing.

¶ 119 Next, defendant asserts that the trial court did not obtain a knowing and voluntary jury

waiver before proceeding with a bench trial. The State maintains that defendant executed a

knowing and voluntary waiver of his right to a jury trial. The State again initially contends that

this issue has been forfeited because defendant failed to raise this claim before the trial court.

Defendant admits that he failed to preserve this issue, but asks this court to review it under the

plain error rule. Defendant argues that the validity of a jury waiver is reviewable under the

second prong of plain error because it affected his substantial rights. See Ill. S. Ct. R. 615(a)

(eff. Jan. 1, 1967). As previously stated, "[t]he first step of plain-error review is to determine

whether any error occurred." Lewis, 234 Ill. 2d at 43.

¶ 120 "The right to a trial by jury is a fundamental right guaranteed by our federal and state

constitutions." People v. Bracey, 213 Ill. 2d 265, 269 (2004); see also U.S. Const., amends. VI,

XIV; Ill. Const. 1970, art. I, § 8. Nevertheless, a defendant can waive his right to a jury trial, but

for a waiver to be valid, it must be knowingly and voluntarily made. Bracey, 213 Ill. 2d at 269.

See also 725 ILCS 5/103-6 (West 2010). Under section 115-1 of the Code of Criminal

Procedure of 1963, a jury waiver must be in writing. 725 ILCS 5/115-1 (West 2010).

55 No. 1-13-0698

¶ 121 The trial court has a duty to ensure that the defendant waived his right to a jury trial

"expressly and understandingly." People v. Bannister, 232 Ill. 2d 52, 66 (2008). "However, a

trial court need not give any specific admonition or advice for a defendant to make an effective

jury waiver." Id. "Whether a jury waiver is valid cannot be determined by application of a

precise formula, but rather turns on the particular facts and circumstances of each case." Bracey,

213 Ill. 2d at 270. The statutory requirement for a written jury waiver does not "define or give

substance to the constitutional right to choose whether to have a jury trial. Rather, a written jury

waiver merely memorializes the defendant's decision, allowing a court to review the record to

ascertain whether a defendant's jury waiver was made understandingly." Bannister, 232 Ill. 2d at

66. "Generally, a jury waiver is valid if it is made by defense counsel in defendant's presence in

open court, without an objection by defendant." Bracey, 213 Ill. 2d at 269.

¶ 122 Immediately prior to the start of the bench trial, the trial court discussed defendant's

written jury waiver. Defendant had executed a written waiver, which stated "I, the undersigned,

do hereby waive jury trial and submit the above entitled cause to the Court for hearing." The

court then confirmed that it was defendant's signature on the written waiver. The court

admonished defendant that he was giving up his right to have a trial by jury and asked him if he

knew what a jury trial was. Defendant responded in the affirmative to both inquiries.

¶ 123 Defendant argues that this exchange did not show an understanding and voluntary waiver

of a jury trial because the court failed to explain anything about the rights to a jury trial as well as

explain the concept of a bench trial.

¶ 124 Based on the record before this court, we find no error in the execution of defendant's

jury waiver. In addition to defendant's written waiver and statement that he understood what a

jury trial was and his waiver of that right as noted above, defense counsel had previously

56 No. 1-13-0698

indicated that the case would likely be a bench trial. In October 2012, the trial court at a status

hearing was attempting to set the trial date and asked if the case would be a jury trial or bench

trial. Defense counsel answered, "We certainly think at this point it's a bench trial." Defendant

did not object to his counsel's statement. Further, the trial court discussed defendant's other

pending case and asked defendant if that case was bench trial or jury trial, and defendant

answered, "Jury." At the conclusion of the proceedings, the court noted the date for trial and

"bench indicated," without objection. Moreover, as previously recognized, defendant has

extensive experience with the criminal justice system. Even if we did not consider defendant's

criminal history, the trial court did not err in obtaining defendant's written jury waiver, when

defendant orally affirmed he understood his right to a jury trial on the record. We conclude that

defendant knowingly and voluntarily waived his right to a jury trial.

¶ 125 We are unpersuaded by cases cited by defendant. In People v. Phuong, 287 Ill. App. 3d

988 (1997), a recent Chinese immigrant was charged with retail theft and received a court-

appointed attorney. Prior to trial, the defendant signed a written jury trial waiver that had been

translated from English into Chinese. Id. at 991. The trial court informed the defendant that she

could be tried by either a judge or a jury without further elaboration. Defense counsel stated that

the defendant had agreed to a bench trial. Id. On appeal, the appellate court reversed the

defendant's conviction, finding that her jury trial waiver had not been made knowingly. Id. at

996. The reviewing court pointed out that the defendant did not speak English and had no prior

involvement in the American criminal justice system. Id. Although the court acknowledged that

the defendant had signed a written jury trial waiver form, it indicated that it was "not convinced

that the mere translation of the waiver form adequately conveyed its meaning to defendant." Id.

The court observed that "[i]f defendant did not understand the nature of a jury or its function

57 No. 1-13-0698

within the system, then she would not understand the ramifications of her waiver of that right."

Id. Similarly, in People v. Murff, 69 Ill. App. 3d 560, 564 (1979), the reviewing court found the

jury waiver inadequate to show that the defendant, who was undergoing psychiatric treatment for

schizophrenia, understood and that "a greater concern or consideration may have been necessary"

under the circumstances. Nothing similar to these unique circumstances was present in this case.

¶ 126 Defendant next contends that the State's evidence failed to prove the charge of aggravated

fleeing or attempting to elude a peace officer. When considering a challenge to the sufficiency

of the evidence, our inquiry is limited to "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia, 443 U.S.

307, 319 (1979); accord People v. Cox, 195 Ill. 2d 378, 387 (2001).

¶ 127 Fleeing or attempting to elude a peace officer is defined in the Illinois Vehicle Code as

follows:

"Any driver or operator of a motor vehicle who, having been given

a visual or audible signal by a peace officer directing such driver or

operator to bring his vehicle to a stop, wilfully fails or refuses to

obey such direction, increases his speed, extinguishes his lights, or

otherwise flees or attempts to elude the officer, is guilty of a Class

A misdemeanor. The signal given by the peace officer may be by

hand, voice, siren, red or blue light. Provided, the officer giving

such signal shall be in police uniform, and, if driving a vehicle,

such vehicle shall display illuminated oscillating, rotating or

flashing red or blue lights which when used in conjunction with an

58 No. 1-13-0698

audible horn or siren would indicate the vehicle to be an official

police vehicle." 625 ILCS 5/11-204(a) (West 2010).

¶ 128 Aggravated fleeing or attempting to elude a peace officer is committed by any driver who

flees or attempts to elude a peace officer, after being given a visual or audible signal by a peace

officer in the manner prescribed in subsection (a) of section 11-204 of this Code, and such flight

or attempt to elude: (1) is at a rate of speed at least 21 miles per hour over the posted speed limit;

(2) causes bodily injury to an individual; (3) causes damage to property in excess of $300; (4)

involves disobedience of two or more official traffic control devices; or (5) involves the

concealing or altering of the vehicle's registration plate. 625 ILCS 5/11-204.1(a) (West 2010).

¶ 129 Defendant argues that the State failed to prove that the officers attempting to make the

stop were in uniform and that an officer in a vehicle must have certain lights on the vehicle. In

support of his argument, defendant relies on the Second District decision of People v. Murdock,

321 Ill. App. 3d 175 (2001).

¶ 130 In Murdock, the defendant was found guilty of aggravated fleeing or attempting to elude

a peace officer, and on appeal, contended that there was no evidence presented that the officer

pursuing him was in a police uniform. Id. at 176. The Second District "carefully reviewed the

evidentiary record and can find no evidence presented concerning the clothing the officer wore

on the day in question. Moreover, the State failed to ask the arresting officer whether he was

wearing a police uniform at the time of the pursuit." Id. The reviewing court rejected the State's

argument that "because the officer activated his overhead emergency lights and siren, defendant

should have known that the pursuer was a police officer and the purpose of the statute would be

fulfilled by upholding the conviction." Id. at 177. The Murdock court concluded that "proof of

59 No. 1-13-0698

an essential element of the offense is lacking in this case" and accordingly, the court reversed

defendant's conviction and vacated the corresponding sentence. Id.

¶ 131 The State admits that Murdock supports defendant's argument, but maintains that the

decision was wrongly decided. "Although the statute may be read to mandate that the officer

must be in uniform before the defendant can be charged with fleeing and eluding a police officer,

here the goal of the statute is plainly met by defendant's pulling over in the first place." The

State further contends that "[t]he legislature clearly did not mean to provide protection to solely

uniformed officers, and if defendant subjectively believed he was fleeing from the police, the

purpose of the law is met."

¶ 132 Recently, the Second Division of the First District addressed the same issue in People v.

Williams, 2015 IL App (1st) 133582, and adhered to Murdock's finding that an essential element

of the offense of aggravated fleeing or attempting to elude a peace officer is that the officer be in

uniform. The Williams court also considered the State's objections to the holding in Murdock.

"Citing the legislative history, the State asserts that the statute's intent was to punish people who

knowingly flee from the police, and, therefore, the uniform requirement can only be read as a

way to exclude those trying to escape a dangerous situation, not as a bar on prosecution of people

willfully fleeing the police." Id. ¶ 12. The reviewing court then discussed the principles of

statutory construction. The court observed when considering a question of statutory

construction, "the court's objective involves ascertaining and carrying out the 'true intent and

meaning of the legislature evidenced by the language used.' " Id. ¶ 13 (quoting Langendorf v.

City of Urbana, 197 Ill. 2d 100, 109 (2001)).

"Indeed, our inquiry 'always begin[s] with the language of the

statute, which is the surest and most reliable indicator of legislative

60 No. 1-13-0698

intent.' People v. Pullen, 192 Ill. 2d 36, 42 (2000). We give

undefined statutory words and phrases their natural and ordinary

meaning. Id. And we enforce the clear and unambiguous

language as written without resort to other aids of construction,

e.g., referring to legislative history. People v. Fitzpatrick, 158 Ill.

2d 360, 364-65 (1994). In addition, it is not the role of the court to

act as editor 'correcting' apparent legislative oversights under the

guise of statutory interpretation." Id.

¶ 133 In light of these principles, the Williams court concluded that "the plain language of

section 11-204(a) of the Illinois Vehicle Code requires a pursuing officer be in police uniform

for a defendant to be found guilty of fleeing or attempting to elude a peace officer." Id. ¶ 14.

"Because of the clear and unambiguous statutory language, we do not inquire into the legislative

history relied on by the State in its brief." Id.

¶ 134 Here, the evidence failed to establish the essential element that the officers were in

uniform. Detective Milazzo's testimony at trial failed to mention what the officers were wearing

at the time of the stop. Detective Milazzo testified he was a passenger in a vehicle driven by

Chief Joseph Lukaszek. He received a call for a burglary at 333 Jackson Boulevard which

mentioned a red van leaving the scene, and the officers were driving near Wolf Road and

Harrison Street, about half a mile from the burglary. Detective Milazzo stated that they saw a

red van turning from southbound Wolf Road onto eastbound Harrison Street. The chief activated

the police lights and effected a traffic stop of the van on Harrison Street. No evidence was

presented at trial that the officers were in uniform, as required by section 11-204.

61 No. 1-13-0698

¶ 135 Additionally, both Williams and Murdock rejected the State's assertion that if defendant

believed he was fleeing from the police, then the goal of the statute was met. As the Williams

court found, "[t]he operative concern, as in Murdock, is not whether [the defendant] knew the

police were following him; but rather, whether the requirements of the statute have been met."

Id. ¶ 16. Because the clear and unambiguous language of the statute requires proof that the

police officers were in uniform, defendant's conviction cannot stand. Accordingly, we reverse

defendant's conviction for aggravated fleeing or attempting to elude a peace officer and vacate

his three-year sentence on this conviction.

¶ 136 Since we have found that the State failed to prove an essential element of the offense

which mandated reversal of the conviction, we need not address whether the State also failed to

present evidence that the officers' vehicle had the lights required by the aggravated fleeing

statute.

¶ 137 Finally, defendant argues that the fines and fees order should be reduced by $24 to reflect

improperly imposed fines and full credit for time spent in custody prior to trial. Specifically,

defendant contends that the electronic citation, Public Defender Records Automation, and State's

Attorney Records Automation fees should be vacated, and a credit should be applied to the State

Police Operations fee.

¶ 138 "[A] 'fine' is a part of the punishment for a conviction, whereas a 'fee' or 'cost' seeks to

recoup expenses incurred by the state—to 'compensat[e]' the state for some expenditure incurred

in prosecuting the defendant." People v. Jones, 223 Ill. 2d 569, 582 (2006).

" 'A "fine" is a pecuniary punishment imposed as part of a sentence

on a person convicted of a criminal offense. People v. Despenza,

318 Ill. App. 3d 1155, 1157 (2001). A "cost" is a charge or fee

62 No. 1-13-0698

taxed by a court such as a filing fee, jury fee, courthouse fee, or

reporter fee. Despenza, 318 Ill. App. 3d at 1157. Unlike a fine,

which is punitive in nature, a cost does not punish a defendant in

addition to the sentence he received, but instead is a collateral

consequence of the defendant's conviction that is compensatory in

nature. People v. Terneus, 239 Ill. App. 3d 669, 672 (1992). A

"fee" is a charge for labor or services, especially professional

services. Black's Law Dictionary 629 (7th ed. 1999).' " (Emphasis

omitted.) Id. at 581 (quoting People v. White, 333 Ill. App. 3d 777,

781 (2002)).

¶ 139 The State agrees that the electronic citation fee should be vacated if this court reverses

defendant's conviction for aggravated fleeing or attempting to elude a peace officer, which we

have done. Section 27.3e of the Clerks of Courts Act provides: "To defray the expense of

establishing and maintaining electronic citations, each Circuit Court Clerk shall charge and

collect an electronic citation fee of $5. Such fee shall be paid by the defendant in any traffic,

misdemeanor, municipal ordinance, or conservation case upon a judgment of guilty or grant of

supervision." 705 ILCS 105/27.3e (West 2010). Defendant's remaining residential burglary

conviction is a felony and does not fall under section 27.3e and, therefore, the $5 electronic

citation fee is vacated.

¶ 140 Next, the State agrees that defendant is entitled to presentence credit for $15 State Police

Operations charge pursuant to section 27.3a(1.5) (705 ILCS 105/27.3a(1.5) (West 2010)).

"Under section 27.3a(1.5) of the Clerks of Courts Act, a circuit clerk in any county that imposes

a fee for maintaining automated record keeping systems pursuant to section 27.3a(1) of the

63 No. 1-13-0698

Clerks of Courts Act must collect an additional fee, the State Police operations assistance fee, to

be paid by the defendant in any felony, traffic, misdemeanor, or local ordinance violation upon a

judgment of guilty or grant of supervision." People v. Millsap, 2012 IL App (4th) 110668, ¶ 31;

see also 705 ILCS 105/27.3a(1.5) (West 2010).

"Section 27.3a(5) requires that the circuit clerk remit the fees

collected under section 27.3a(1.5) to the State Treasurer to be

deposited into the State Police Operations Assistance Fund. 705

ILCS 105/27.3a(5) (West 2010). Moneys in the State Police

Operations Assistance Fund may be used by the Illinois

Department of State Police to 'finance any of its lawful purposes or

functions.' 30 ILCS 105/6z-82(b) (West 2010) (text of section as

added by Public Act 96-1029 (eff. July 13, 2011)). Additionally,

the legislature subsequently amended section 27.3a, effective

August 19, 2011, to allow the Director of the State Police to use

State Police operations assistance fees for homeland security

purposes. See 705 ILCS 105/27.3a(6) (West Supp. 2011).

Accordingly, we find that the State Police Operations Assistance

fee does not reimburse the State for costs incurred in defendant's

prosecution." Millsap, 2012 IL App (4th) 110668, ¶ 31.

¶ 141 Since the state operations charge under section 27.3a(1.5) is a fine, defendant is entitled

to presentence credit toward it. See 725 ILCS 5/110-14(a) (West 2010) ("Any person

incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on

64 No. 1-13-0698

conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon

application of the defendant.").

¶ 142 Defendant also argues that the assessments of $2 each for the Public Defender Records

Automation fee (55 ILCS 5/3-4012 (West 2010)) and the State's Attorney Records Automation

fee (55 ILCS 5/4-2002(a) (West 2010)) were error because the charges amounted to fines

imposed in violation of ex post facto principles since the enactment of the fines was June 1,

2012, after the date of the offense in this case, April 18, 2011.

¶ 143 In People v. Rogers, 2014 IL App (4th) 121088, ¶ 30, the Fourth District held that the

State's Attorney Records Automation is a fee which is intended to reimburse the State's

Attorneys for expenses related to automated record-keeping systems, and is not subject to the

prohibition against ex post facto laws. Id. (" 'The prohibition against ex post facto laws applies

only to laws that are punitive. It does not apply to fees, which are compensatory instead of

punitive.' " (quoting People v. Dalton, 406 Ill. App. 3d 158, 163 (2010))).

¶ 144 This court has previously adhered to the conclusion reached in Rogers that the State's

Attorney Records Automation fee is not subject to ex post facto concerns, and we see no reason

to depart from that holding. See People v. Bowen, 2015 IL App (1st) 132046, ¶ 64. Likewise,

"because the statutory language of both the Public Defender and State's Attorney Records

Automation fees is identical except for the name of the organization, we find no reason to

distinguish between the two statutes, and conclude both charges constitute fees which were

properly assessed." Id. ¶ 65 (citing 55 ILCS 5/3-4012, 4-2002.1(c) (West 2012)).

¶ 145 Based on the foregoing reasons, we affirm defendant's conviction and sentence for

residential burglary, and reverse his conviction for aggravated fleeing or attempting to elude a

peace officer and vacate the sentence of three years imposed on that conviction. Pursuant to this

65 No. 1-13-0698

court's authority to correct a mittimus without remand (People v. Rivera, 378 Ill. App. 3d 896,

900 (2008)), we direct the clerk of the circuit court to correct the fines and fees order to reflect

that defendant's presentence credit applies to his $15 State Police Operations fine, and vacate the

$5 electronic citation fee.

¶ 146 Affirmed in part, reversed in part; fines and fees order corrected.

¶ 147 JUSTICE ELLIS, concurring in part and dissenting in part.

¶ 148 I concur in the reversal of defendant’s conviction for aggravated fleeing. I also agree that

defendant’s waiver of a jury trial was knowing and voluntary. I respectfully dissent from the

majority’s holding that the trial court substantially complied with Rule 401(a).

¶ 149 In this case, the trial court admonished defendant that he was facing a sentence of 4 to 15

years if convicted of residential burglary, when it was really 6 to 30 years, and the trial court

ultimately sentenced defendant to 20 years for that crime. The majority says that this

admonishment was "partially correct." It was not. It was completely wrong. It understated the

maximum sentence by half. I do not see how that admonishment could be viewed as correct by

any measure, or by any fraction.

¶ 150 Recently, another appellate court faced these identical facts—the defendant was facing 6

to 30 years due to his Class X status, but he was told his sentencing range was 4 to 15 years, and

he ultimately received 20 years. That court “fail[ed] to see compliance of any sort" with Rule

401(a) in these admonishments. People v. LeFlore, 2013 IL App (2d) 100659 ¶ 53, aff'd in part,

rev'd in part on other grounds, 2015 IL 116799 (supreme court reversed on separate fourth

amendment issue, after State conceded error on Rule 401(a) violation). I think the LeFlore

appellate decision was correctly decided on the Rule 401(a) issue, as apparently did the State,

66 No. 1-13-0698

which conceded the error before the supreme court and agreed that reversal was warranted due to

the incompetent admonishments. People v. LeFlore, 2015 IL 116799, ¶¶ 13, 72.

¶ 151 Nothing in the majority's thorough and carefully-researched opinion changes these

fundamental facts: Defendant was not informed of the correct potential sentence, and he did not

otherwise understand what it was. The majority does not and could not claim otherwise. Based

on those facts and those facts alone, there was no basis for finding substantial compliance with

Rule 401(a) in this case.

¶ 152 Supreme Court Rule 401(a)(2) provides that a circuit judge "shall not permit a waiver of

counsel" by a defendant without first "informing him of and determining that he understands" the

maximum and minimum sentence. S. Ct. R. 401(a)(2) (eff. July 1, 1984). In determining

compliance with this rule, we must ask two questions: did the trial court "inform" the defendant

of the appropriate sentencing range, and did the defendant "understand" his sentencing range? Id.

Usually the defendant says he understands the admonishments as they are being given, so these

two questions might seem to merge into one—but they are two separate questions no less, if we

are to interpret the rule as written.

¶ 153 If we can answer "yes" to both questions—if the trial court informs the defendant of the

correct potential sentence, and the defendant understands that information—we have strict

compliance with Rule 401(a). Everyone agrees that did not happen here.

¶ 154 If we must answer "no" to both questions—if the trial court fails to inform the defendant

of the applicable sentencing range, and the defendant does not otherwise understand what that

range is—we have no compliance whatsoever with Rule 401(a), and the inquiry stops. See, e.g.,

People v. Campbell, 224 Ill. 2d 80, 82 (2006) (where trial court failed to admonish defendant

67 No. 1-13-0698

before permitting him to proceed pro se, "there was no compliance, substantial or otherwise,"

with Rule 401(a)).

¶ 155 When we talk about substantial compliance, it seems to me we are often talking about the

middle-ground situation where we answer one of those questions "yes" and the other one "no."

That is, substantial compliance with the rule is found where, even though the trial court did not

"inform" a defendant of the applicable sentencing range, the record shows that the defendant

somehow "understood" that sentencing range, anyway. As the appellate court in LeFlore

correctly described it, substantial compliance can be found " 'either because [the defendant] was

already aware of the information that was omitted or because his degree of legal sophistication

made it evident that he was aware of the information that compliance with the rule would have

conveyed.' " LeFlore, 2013 IL App (2d) 100659, ¶ 52 (quoting People v. Gilkey, 263 Ill. App. 3d

706, 711 (1994)) I agree with that statement of the law, because it is faithful to Rule 401(a). The

key here is that the defendant knew—"understood"—his applicable sentencing range, even

though the trial judge did not "inform" him of it. 2

¶ 156 For example, in People v. Johnson, 119 Ill. 2d 119, 132-33 (1987), the supreme court

found substantial compliance because, “[a]lthough the trial court did not advise defendant that

life imprisonment was the minimum penalty to which he would be subjected in the event he was

convicted of the charges, the record reveals that he was aware of this penalty,” because

2 There is another class of substantial compliance cases that fall into a different category not applicable here: The supreme court has found substantial compliance where a defendant was at least made aware of the maximum penalty for the most serious offense he faced, even if he was not informed of the proper minimum sentence or the maximum sentence on a lesser charge. See, e.g., People v. Kidd, 178 Ill. 2d 92, 113-14 (1997); People v. Haynes, 174 Ill. 2d 204, 242-43 (1996). The rationale is that as long as a defendant was informed of the worst-case scenario, he was sufficiently apprised of the gravity of his decision in waiving counsel, and the other information about sentencing paled in comparison. Kidd, 178 Ill. 2d at 113-14; Haynes, 174 Ill. 2d at 242-43. That is obviously not this case, where the trial court understated the maximum sentence by half. Nevertheless, these cases are consistent with my contention that the focus is on the defendant's understanding of his potential sentencing range in determining substantial compliance. 68 No. 1-13-0698

defendant was present during a lengthy pretrial dispute over voir dire questions concerning life

imprisonment, at which the State had repeatedly noted that life imprisonment was a “

‘mandatory sentence.’ ” For another example, if a defendant is not admonished as to the nature

of the offense of delivery of a controlled substance, but the trial court thoroughly covers the

related charge of delivery within 1,000 feet of a school upon dismissing that charge, and the

defendant’s criminal history reveals that he was previously convicted of the “nearly identical”

offense of possession of a controlled substance and “had five other narcotics convictions,” a

court may find that the defendant obviously understood the nature of the charge of delivery of a

controlled substance, even though the trial court did not specifically inform him of it. See People

v. Herndon, 2015 IL App (1st) 123375, ¶¶ 27-28.

¶ 157 Another way this knowledge could be determined—a point of contention in this case—is

where a defendant's "degree of legal sophistication made it evident that he was aware of the

information." LeFlore, 2013 IL App (2d) 100659, ¶ 52. As another appellate court said it, a

defendant's knowledge of his potential sentence, despite the trial court's failure to inform him of

it, could be demonstrated in "the unusual case" that a defendant "has such a high degree of legal

expertise that one may confidently assume he or she already knows the maximum penalty."

People v. Bahrs, 2013 IL App (4th) 110903, ¶ 15.

¶ 158 But that is the only context in which a defendant's "legal sophistication" can be used to

establish substantial compliance—where his "sophistication" or background leads to the

inescapable conclusion that he understood his sentencing range despite the trial court's failure to

so advise him. Merely noting a defendant’s criminal history, and his experience in Illinois courts,

and his amateur legal prowess, and his general appreciation of the importance of a lawyer,

69 No. 1-13-0698

without tying that to the conclusion that he understood what his potential sentence was, adds

nothing whatsoever to the analysis of substantial compliance under Rule 401(a).

¶ 159 The closest that the majority comes to even suggesting that defendant understood that his

sentencing range was 6 to 30 years is its note that defendant has been sentenced as a Class X

mandatory felon in the past and previously indicated, in another case in a different courtroom

concerning a different charge, that he was aware of his Class X status.

¶ 160 But I still fail to see how that information shows that defendant knew that he was facing a

sentencing range of 6 to 30 years if convicted of residential burglary. First of all, the trial court in

this case told him differently, a fact that we simply cannot brush aside. The trial court

specifically told defendant that his maximum sentence for residential burglary was 15 years, to

which defendant replied, "Right." I am not prepared to believe that, when defendant said,

“Right” to this incorrect admonishment, he really meant, "Wrong," but kept that knowledge to

himself. Nor am I prepared to believe that defendant was so sure of himself, so confident in his

legal sophistication and knowledge, that he would assume that his own understanding of the

sentencing laws was superior to that of an experienced trial judge. See LeFlore, 2013 IL App

(2d) 100659, ¶ 58 ("We are not prepared to ascribe to defendant a heightened level of legal

sophistication based on * * * the supposedly osmotic experience of being repeatedly arrested and

convicted. A long rap sheet is not the equivalent of a Juris Doctorate, and recidivism with

punishment infers a perverse level of sophistication.").

¶ 161 We should not expect that a lay person, whose greatest claim to fame is that he keeps

committing crimes and keeps getting caught, possesses such advanced knowledge, and is able to

navigate myriad sentencing laws and statutory cross-references so confidently, that he would

exalt his legal judgment over that of a judge who told him differently. That is precisely the point

70 No. 1-13-0698

of Rule 401(a)—to require the institution that should be able to better navigate such laws to

inform the otherwise uninformed defendant, in order to safeguard his right to counsel.

¶ 162 The fact that defendant knew he was “Class X” in another case, based on a different

criminal charge, does not persuade me that he knew that he was facing 6 to 30 years in prison in

this case. Maybe defendant thought his Class X status did not apply to a charge for residential

burglary. Maybe he did not know that the charge for simple residential burglary was 4 to 15

years, and he thought that the 4-to-15 range the circuit judge gave him was the elevated sentence

based on his Class X status. As a matter of law, those would be incorrect assumptions, but we are

not talking about what was actually, legally correct. We are talking about what this defendant

knew and understood, after the trial judge explicitly told him his maximum sentence was 15

years. No matter what defendant might have thought he understood before being admonished,

any reasonable person in his shoes would re-think his own understanding of the sentencing laws

after being admonished otherwise by the judge.

¶ 163 The criminal sentencing statutes, after all, are not exactly light reading. As we have

frequently noted, even lawyers and judges have been known, from time to time, to misstate or

misapply them. 3

¶ 164 We should not hold a criminal defendant to a higher standard than the judge who

admonished him. With the undisputed fact that defendant was never “informed” that the

3 See, e.g., People v. Whitfield, 228 Ill. 2d 502, 506 (2007) (State mistakenly advised court of defendant's criminal history; defendant was actually ineligible for probation and subject to mandatory Class X sentence); People v. Douglas, 2014 IL App (4th) 120617, ¶ 45 (remanding for new sentencing hearing where trial court erred in sentencing defendant as Class X offender); People v. Ellis, 375 Ill. App. 3d 1041, 1045 (2007) (trial court erroneously told defendant he faced sentence as Class 2 felon when he was actually required to be sentenced as Class X offender); People v. Baaree, 315 Ill. App. 3d 1049, 1053 (2000) (where relevant statute, by its terms, did not apply to defendant, trial court erred in finding that defendant was subject to mandatory Class X sentencing); People v. Hare, 315 Ill. App. 3d 606 (2000) (where defendant was subject to Class X sentencing and applicable minimum sentence was six years, but State agreed, in exchange for guilty plea, to recommend four-year sentence which trial court imposed but later vacated as void). 71 No. 1-13-0698

sentencing range he faced was 6 to 30 years, and without any showing in the record that

defendant otherwise “understood” that to be his sentencing range, there was no compliance,

substantial or otherwise, with Supreme Court Rule 401(a)(2) (eff. July 1, 1984).

¶ 165 The majority concludes that defendant’s waiver of counsel was knowing and intelligent.

But absent any compliance with Rule 401(a)(2), that conclusion simply cannot be justified.

¶ 166 Why? Because the supreme court said so. The supreme court did not have to adopt Rule

401(a). It could have merely required courts to enforce the underlying constitutional guarantee

that a waiver of counsel be knowing and intelligent, which of course is what Rule 401(a) is

intended to safeguard. People v. Haynes, 174 Ill. 2d 204, 236 (1996). The court has done that, for

example, with waivers of jury trials, where instead of requiring specific admonishments, a

reviewing court simply asks the ultimate constitutional question—whether the accused

knowingly and understandingly waived his right to a jury. See People v. Tooles, 177 Ill. 2d 462,

469 (1997). But in the context of a waiver of counsel, the court chose to require three specific

admonishments.

¶ 167 I view the admonishments required in Rule 401(a) as mandatory minimum requirements

for a knowing and intelligent waiver of counsel. Without at least substantial compliance with that

rule, a knowing and intelligent waiver of counsel cannot be found.

¶ 168 I do not mean to suggest that some of the factors the majority has considered—the

defendant’s extensive exposure to criminal courts, his overall appreciation of the importance of a

lawyer and the consequences of waiving one, the lack of any discernible “prejudice” resulting

from the defective admonishments—could never be relevant to the Rule 401(a) analysis. They

are, just not in the way the majority uses them. As I understand supreme court precedent, the

analysis should proceed as follows:

72 No. 1-13-0698

¶ 169 If the trial court informs the defendant of the required information and the defendant

understands it, there is strict compliance with Rule 401(a), and a reviewing court can be assured

of a knowing and intelligent waiver of counsel. The inquiry thus comes to an end. If neither of

these facts can be found in the record, then we have no compliance with Rule 401(a)—a

mandatory minimum requirement for a knowing and intelligent waiver has not been met—and

the inquiry comes to an end.

¶ 170 If, however, the trial court fails to properly “inform” the defendant of his sentencing

range but the record shows that the defendant somehow “understood” that range, anyway, there

is substantial compliance with the rule. But in that instance, the inquiry does not end. If

imperfect but substantial compliance is determined, we cannot be certain that the defendant’s

constitutional rights have been protected (as we could with strict compliance), so the supreme

court demands a further inquiry to determine whether the record otherwise demonstrates a

knowing and intelligent waiver, and whether defendant was prejudiced by the deficient

admonishments. This, in my view, is what the supreme court meant when it wrote the passage

below, which has been quoted in virtually every appellate decision considering this issue:

"Substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of

counsel if the record indicates the waiver was made knowingly and intelligently [citation]

and the admonishment the defendant received did not prejudice his rights." People v.

Kidd, 178 Ill. 2d 92, 113 (1997); see also People v. Coleman, 129 Ill. 2d 321, 333 (1989)

(same language as Kidd but without mentioning prejudice); Haynes, 174 Ill. 2d at 236

(nearly identical language to Kidd); Johnson, 119 Ill. 2d at 132 (substantively identical

language).

73 No. 1-13-0698

¶ 171 I respectfully submit that the majority, and some other appellate decisions, have misread

and misapplied this language from the supreme court. The majority reads this language as

holding that a reviewing court may find substantial compliance if it determines from the record

that the waiver was otherwise knowing and intelligent, and that the defendant suffered no

prejudice. But that is just jumping straight to the constitutional question and ignoring the role of

Rule 401(a) in the process. I believe that what the supreme court meant was that we must first

determine whether we can find substantial compliance based on what the defendant understood,

and if and only if we can, we must then continue the analysis of the record to search for an

otherwise knowing and intelligent waiver and the absence of prejudice, to ensure the protection

of the defendant’s constitutional rights.

¶ 172 In other words, two separate determinations must be made to find a valid waiver in the

absence of strict compliance with Rule 401—(1) a finding of substantial compliance, and, if that

determination is made, (2) a finding from the record overall that the waiver was otherwise

knowing and intelligent, and the defendant suffered no prejudice as a result of the imperfect, but

substantially compliant, admonishments.

¶ 173 The majority, in my mind, uses (2) to prove (1), when it should have required (1) and (2)

before finding a valid waiver. I believe that (1) cannot be established here, and thus it was

unnecessary to even consider (2).

¶ 174 I believe this analysis is supported by a careful review of supreme court case law on Rule

401(a).

¶ 175 In Coleman, 129 Ill. 2d at 331-32, the defendant was admonished that he faced a possible

sentence of death if he was convicted of murder, but he was not told that the minimum sentence

if convicted would be life imprisonment. The State argued that the trial court substantially

74 No. 1-13-0698

complied with Rule 401(a). Id. at 332. The supreme court first noted that “[s]ubstantial

compliance with Rule 401(a) is sufficient to effectuate a valid waiver of counsel if the record

indicates that the waiver was made knowingly and intelligently.” (Emphasis in original.) Id. at

333. The supreme court held that “that the circuit court substantially complied with Rule 401(a)”

(id.) because the defendant had been advised of the correct maximum sentence (death) and all of

the other requirements of Rule 401(a) had been met except the correct minimum sentence. Id. at

333-34. The court held that, “[w]here a defendant knows the nature of the charges against him

and understands that as a result of those charges he may receive the death penalty, his knowledge

and understanding that he may be eligible to receive a lesser sentence pales in comparison.” Id.

at 334. If the prospect of death was not enough to startle the defendant to his senses about his

decision to waive counsel, a lesser sentence surely would not.

¶ 176 The court then wrote: “As we find that the circuit court substantially complied with

Rule 401(a), we must next determine whether the defendant's waiver of counsel, despite

the incorrect admonishment of the minimum sentence, was made knowingly and

intelligently.” (Emphasis added.) Id.

¶ 177 The court then proceeded to find that, despite the less-than-perfect admonishments, the

defendant’s right to counsel was sufficiently protected. The court noted that there had been

mention at the arraignment of a mandatory minimum life sentence. Id. at 335. And the defendant

himself, appearing pro se at his sentencing hearing, mentioned that the choice before the jury

was death or life in prison. Id. The court also noted that the defendant had engaged in

gamesmanship, asking for a lawyer and then refusing one, asking for a different lawyer and then

changing his mind. Id. at 339 (“The record supports the circuit court's finding that the

75 No. 1-13-0698

defendant used his right to counsel and his right to waive counsel in a manner designed to

frustrate and manipulate the proceedings.”).

¶ 178 The supreme court summarized its holding as follows:

“We hold that despite its incorrect admonishment of the minimum sentence, the circuit

court sufficiently admonished the defendant in accordance with Rule 401(a)

[citation], and that the defendant made a knowing and intelligent waiver of counsel at the

guilt and sentencing phases of his trial. The record reveals that the defendant knew that

the minimum sentence was natural life imprisonment, offered legitimate reasons for

waiving his right to counsel, and attempted to manipulate the proceedings by repeatedly

refusing the services of his counsel.” (Emphasis added.) Id. at 340.

¶ 179 The only conclusion to be drawn from Coleman is that a reviewing court must first

determine whether a trial court substantially complied with Rule 401(a), and if (and only if) it so

finds, it “must next determine whether the defendant's waiver of counsel, despite the

incorrect admonishment of the minimum sentence, was made knowingly and intelligently.”

Id. at 334.

¶ 180 Likewise, in Kidd, 178 Ill. 2d at 113-14, the supreme court again found substantial

compliance where the trial court misstated one of the charges (calling it aggravated arson when it

was really simple arson) and incorrectly told the defendant that his minimum sentence would be

20 years, not life, but also told the defendant he was facing the maximum sentence of death. The

court wrote:

“Here the record shows that the trial court complied substantially with Rule 401(a),

informing defendant of the nature of the charges against him, explaining to him that the

death penalty was the maximum sentence, and advising him of his right to counsel. Thus,

76 No. 1-13-0698

we must next determine whether defendant’s waiver of counsel was made knowingly and

intelligently, despite the incorrect admonishment concerning one of the charges and the

minimum sentence. See Coleman, 129 Ill. 2d at 334 [remainder of citation omitted].”

(Emphasis added.) Kidd, 178 Ill. 2d at 114.

¶ 181 In making that "next" determination, the court considered that the defendant chose to

waive counsel because of his belief that his lawyer had failed him in his previous trial. Id. The

court also found no suggestion that the trial court’s understatement of the minimum sentence for

murder played a role in his decision to proceed pro se. Id. Finally, the court noted that the trial

court’s failure to state the proper charge (arson) could not have lulled the defendant into waiving

counsel, given that the defendant was told the charge was more serious than it actually was, and

also given that the defendant faced 10 counts of murder. Id. The court then concluded that,

because defendant was told of the most serious crime’s maximum sentence, the defendant

“suffered no prejudice as a result of the trial court’s failure to state correctly the minimum

penalty to which he would be subjected if convicted.” Id. Again, Kidd demonstrates that the

supreme court considered the question of substantial compliance to be the first question when

strict compliance could not be found, and only after finding substantial compliance did it proceed

to the next step of reviewing the record overall to make these other findings of prejudice and an

otherwise knowing and intelligent waiver.

¶ 182 In Johnson, 119 Ill. 2d 119, the Illinois Supreme Court once again found substantial

compliance where the defendant was not told that his minimum sentence for felony murder

would be life imprisonment, but he was correctly told that he could receive the death penalty. In

addition, the record showed that, “[a]lthough the trial court did not advise defendant that life

imprisonment was the minimum penalty to which he would be subjected in the event he was

77 No. 1-13-0698

convicted of the charges, the record reveals that he was aware of this penalty.” Id. at 132. The

court cited examples of a pretrial dispute between the parties over voir dire questions concerning

life imprisonment, at which the State had noted that life imprisonment was a “ ‘mandatory

sentence.’ ” Id. at 132-33. The record further revealed that the defendant indicated that his

previous attorney had advised him of the applicable sentencing range. Id. at 133. Finally, the

court noted that, while the defendant refused the appointment of counsel, he had the benefit of

standby counsel. Id. at 136.

¶ 183 The court did take other considerations into account, including that the defendant “was no

stranger” to the criminal justice system, as he had been previously convicted and sentenced to

death for murder and other violent forcible felonies in another case, and thus the defendant “had

ample opportunity to become acquainted with his right to counsel” (id. at 133); that the

defendant suffered no prejudice as a result of the faulty admonishments (id. at 134); and that

defendant had abused the process by repeatedly requesting and then refusing counsel, bouncing

from different lawyers and his desire to appear pro se (id. at 134-35).

¶ 184 But these considerations mentioned in the preceding paragraph were not relevant to the

question of substantial compliance. They were relevant to the additional determination, after first

finding substantial compliance, of a knowing and intelligent waiver and the absence of prejudice,

in order to determine whether substantial compliance was sufficient in that case to protect the

defendant’s rights. The supreme court’s summary of its holding says as much:

“We believe that where, as here, a review of the entire record indicates that defendant's

waiver of his right to counsel was made knowingly and voluntarily, and the sole

admonishment which he did not receive in no sense prejudiced defendant's rights,

substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of

78 No. 1-13-0698

counsel. Further, under the circumstances of this case, we find that the trial court's

admonishments substantially complied with the Rule.” (Emphases added.) Id. at 132.

¶ 185 The court did not find substantial compliance because the record revealed the defendant's

knowing and intelligent waiver, or because there was a lack of prejudice. It found substantial

compliance because (i) the defendant had been told of a possible death sentence, which should be

sufficient to alert any defendant to the gravity of his decision to waive counsel, and (ii) the

defendant knew what his mandatory minimum sentence was, even though the trial court did not

tell him. The court then held that substantial compliance was sufficient in this case to protect the

defendant's constitutional rights, in light of the overall record revealing a knowing and intelligent

waiver and the absence of prejudice. There can be no doubt that the supreme court considered

these to be two separate questions, just as it did in Coleman and Kidd.

¶ 186 Haynes, 174 Ill. 2d at 242-43, was another capital-murder case, where the court again

rejected the defendant’s claim of a Rule 401(a) violation. The supreme court considered several

arguments not pertinent here, but the supreme court also considered a claim that the trial court

violated Rule 401(a) by failing to inform the defendant of the minimum and maximum sentences

for his burglary charge. Id. at 242. The supreme court began its analysis with the now oft-quoted

principle that “[s]ubstantial compliance will be sufficient to effectuate a valid waiver if the

record indicates that the waiver was made knowingly and voluntarily, and the admonishment the

defendant received did not prejudice his rights.” Id. at 236. Relying on Coleman and Johnson,

the court found substantial compliance because the defendant was told that he faced a death

sentence, and the importance of knowing his maximum sentence for the far less significant

charge of burglary paled by comparison. Id. at 243. The court thus concluded: “Accordingly, we

79 No. 1-13-0698

hold that [the trial court’s] admonishments, despite the omission of the sentences for burglary,

substantially complied with Rule 401(a).” Id.

¶ 187 In the next sentence, the court wrote: “In addition, the record as a whole clearly

demonstrates that the defendant’s decision to waive counsel was made freely, knowingly and

intelligently.” (Emphasis added.) Id. The court noted that the defendant repeatedly expressed the

desire to represent himself and understood the role an attorney would play, particularly given

that he received the assistance of counsel for a time before trial. Id. at 243-44. Thus, once again,

the supreme court first found substantial compliance based on what the trial court told the

defendant, finding the information given less than perfect but sufficient to constitute substantial

compliance, before considering the question of whether the waiver was otherwise knowing and

intelligent.

¶ 188 Each of these four supreme court decisions makes clear that, if strict compliance cannot

be found, the question of substantial compliance is the next question, based on what the trial

court told the defendant and what the defendant understood. If and only if substantial compliance

is first found should the court proceed to the third step to determine whether substantial

compliance was enough in that particular case to ensure a knowing and intelligent waiver of

counsel and the absence of prejudice.

¶ 189 The supreme court has likewise made it clear that, if a reviewing court cannot find even

substantial compliance with Rule 401(a), the court must find error. In Campbell, 224 Ill. 2d at

82, the trial court failed to admonish the defendant before allowing the defendant to proceed pro

se at his trial for driving with a suspended license, a Class A misdemeanor. The supreme court

held that “there was no compliance, substantial or otherwise, with Rule 401(a). *** Defendant's

waiver of counsel was therefore ineffective, and his conviction cannot stand.” Id. at 84-85. The

80 No. 1-13-0698

court inquired no further on this question. It did not review the record as a whole to determine

whether the defendant knowingly and intelligently waived counsel, nor did it search for the

presence or absence of prejudice. Other than rejecting an argument not relevant here (whether

the constitutional right to counsel attaches if the defendant does not receive a prison sentence),

the court proceeded directly from the language quoted above to its conclusion:

“The rules of this court are not suggestions; rather, they have the force of law, and the

presumption must be that they will be obeyed and enforced as written. [Citations.] Here,

defendant was charged with an offense that is punishable by up to one year of

imprisonment, and he expressed his desire to proceed without counsel. Under the plain

language of Rule 401(a), he was entitled to be advised of his rights, and the trial court's

failure to do so was error. Ordinarily, that error would compel the reversal of defendant's

conviction and a remand for a new trial. In this case, however, defendant has already

discharged his sentence, and a new trial therefore would be neither equitable nor

productive. Accordingly, we agree with the appellate court's conclusion that defendant's

conviction must be vacated.” Id. at 87-88.

¶ 190 Campbell confirms that, where a reviewing court cannot even find substantial compliance

with Rule 401(a), the inquiry stops there. Again, that is because "[t]he purpose of this rule is 'to

ensure that a waiver of counsel is knowingly and intelligently made' " (id. at 84 (quoting Haynes,

174 Ill.2d at 241)), and if the admonishments did not even substantially comply with the rule, a

court will find that the waiver of counsel was not knowing and intelligent.

¶ 191 Let me make my point a different way. What if, instead of giving the incorrect sentencing

range of 4 to 15 years in this case, the trial judge had not mentioned any sentence whatsoever,

totally skipping that part of the admonishment? I would think the majority would feel compelled

81 No. 1-13-0698

to follow Campbell and hold that, absent any mention whatsoever of defendant's sentencing

range, there was no compliance with Rule 401(a). But how is what actually happened in this case

any better? To me, it is no improvement on silence to give the wrong sentencing range, when

that range understates the maximum penalty by half. Personally, I would rather be told nothing,

and be left to wonder and perhaps to investigate my potential sentence, as opposed to being

given information that, unbeknownst to me, is far off the mark and greatly understates the

consequences of my decision. In any event, wrong information is certainly no better than no

information.

¶ 192 So why shouldn't we follow Campbell and find a Rule 401(a) violation here? Because our

defendant is well-schooled in the criminal justice system and seems to understand the importance

of a lawyer based on his experience? The supreme court in Campbell never asked that question.

Because our defendant suffered no prejudice from that improper admonishment? Campbell did

not ask that question, either. It was not necessary to consider those factors, because there was no

compliance with Rule 401(a), and thus reversible error was found without any further inquiry. I

cannot understand why the result the majority reaches is different than the one reached by

Campbell. The only meaningful difference between this case and Campbell is the difference

between being told no sentencing range versus being told a dramatically incorrect, understated

one.

¶ 193 In sum, I believe that these cases from our supreme court have laid out an analysis that is

quite clear:

(1) If the reviewing court finds strict compliance with Rule 401(a), the court can

be satisfied that the defendant’s waiver of counsel was knowing and intelligent, because

the very purpose of Rule 401(a) is to ensure that fact.

82 No. 1-13-0698

(2) If the court finds a lack of strict compliance with Rule 401(a) but finds

substantial compliance, based on what the defendant was told and what he understood,

the court’s inquiry is not completed. Because it is not necessarily clear that the

defendant’s waiver was knowing and intelligent, the court must next review the record

to determine whether the defendant’s waiver was knowing and intelligent and whether

the defendant suffered prejudice from the imperfect but substantially compliant

(3) If the court cannot find even substantial compliance with Rule 401(a), a

knowing and intelligent waiver cannot be found, and error has occurred.

¶ 194 I believe that this case falls within the third scenario, and I would hold that reversible

error was committed by the trial court’s noncompliance with Rule 401(a). Because there was no

compliance, substantial or otherwise, with Rule 401(a), it was unnecessary for the majority to

consider whether the record otherwise demonstrated a knowing and intelligent waiver or the

absence of prejudice.

¶ 195 For this reason, I also agree with the body of appellate case law that holds that, where the

trial court did not even substantially comply with Rule 401(a), we presume prejudice for the

purposes of determining the "prejudice" element of plain error. See, e.g., People v. Brzowski,

2015 IL App (3d) 120376, ¶ 42 (failure to issue Rule 401 admonitions amounts to plain error);

People v. Wright, 2015 IL App (1st) 123496, ¶ 49, appeal allowed, No 119561 (November 25,

2015) ("under the second prong of the plain error analysis, an unknowing waiver of the right to

counsel is such a serious error due to the right involved that prejudice will be presumed");

People v. Allen, 220 Ill. App. 3d 772, 781 (1991) ("If an accused is deprived of counsel at any of

these critical stages, he is entitled to relief without showing that he was prejudiced thereby; the

83 No. 1-13-0698

deprivation of counsel is deemed per se reversible error."); People v. Vernón, 396 Ill.App.3d

145, 152-53 (2009) ("When a defendant suffers a complete absence, at a 'critical stage' of the

prosecution, of the sixth amendment right to counsel, he or she is entitled to a reversal of that

conviction without showing that the deprivation caused him or her prejudice."); People v. Black,

2011 IL App (5th) 080089, ¶ 24 (citing numerous cases where failure to issue Rule 401

admonitions was plain error).

¶ 196 These cases are consistent with our supreme court's decisions stating that a reviewing

court is to consider prejudice (as well as whether the record overall shows a knowing and

intelligent waiver) if and only if substantial compliance is first found. If there is not even

substantial compliance with Rule 401(a), prejudice is presumed and error—even plain error—has

occurred. 4

¶ 197 The majority rejects plain error because it says that defendant cannot demonstrate that the

outcome of the trial would have been different. But I am not suggesting that the remedy for this

violation is a new trial, and neither is defendant. The Rule 401(a) error was limited to the critical

4 The United States Supreme Court “has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Emphasis added.) United States v. Cronic, 466 U.S. 648, 659 n.25 (1984); see United States v.Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006) (erroneous deprivation of defendant's right to counsel "of one's choice" not subject to harmless-error review; no additional showing of prejudice is required); Gardner v. Florida, 430 U.S. 349, 358 (1977) (defendant has right to counsel at sentencing hearing, “even if he may have no right to object to a particular result of the sentencing process”); Geders v. United States, 425 U.S. 80, 86 (1976) (rejecting lower court's prejudicial-error analysis and holding that trial court's order barring counsel from conferring during overnight recess with defendant, while defendant was in midst of testifying, was error); Herring v. New York, 422 U.S. 853, 858, 864 (1975) (statute denying counsel opportunity to make closing argument violated defendant’s sixth amendment right, “no matter how strong the case for the prosecution may appear” and even though “[t]here is no way to know whether these or any other appropriate arguments in summation might have affected the ultimate judgment in this case”); Hamilton v. Alabama, 368 U.S. 52, 55 (1961) (where defendant is denied counsel at critical stage of arraignment, "we do not stop to determine whether prejudice resulted"); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam) (reversing conviction where defendant not represented by counsel at arraignment; "We repeat what we said in [Hamilton v. Alabama], that we do not stop to determine whether prejudice resulted ***.").

84 No. 1-13-0698

stage of the suppression hearing, and the remedy should be so limited, as well. I believe that we

should vacate the court's denial of the motion to suppress and remand for a new suppression

hearing only. If that motion were denied again, the court would simply reinstate the conviction

for residential burglary.

¶ 198 I have no sympathy for a man who, in his past, has committed several burglaries and

robberies, some violent and some preying on the elderly, and who obviously has first-hand

knowledge about the importance of having a lawyer versus going pro se. But this case is not just

about Lamarr Maxey. It is also about Rule 401(a). If a trial court completely misstates the

sentencing range, the record does not show that the defendant otherwise knew the correct range,

and the defendant ultimately received a sentence in excess of the maximum sentence he was

promised, we must find error. If we forgive that error because we think that, overall, defendant

was an experienced veteran of the criminal courts, he understood the importance of a lawyer, and

he suffered no prejudice, then we might as well get rid of Rule 401(a) altogether, because we are

not enforcing it. Under the interpretation of Rule 401(a) that our supreme court has set out, the

trial court’s admonishments were noncompliant. The inquiry should end there. Prejudice should

be presumed. I would find plain error in this case. I would vacate the ruling on the motion to

suppress—the critical stage where defendant proceeded pro se, before deciding to retain counsel

at trial—and remand for a new suppression hearing. A new trial would be required only if

defendant succeeded on that motion; otherwise, the conviction would be reinstated.