People v. Hilliard

235 N.E.3d 664

2022 IL App (1st) 200744

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Deon HILLIARD, Defendant-Appellant.

No. 1-20-0744

Appellate Court of Illinois, First District, First Division.

Filed November 14, 2022

Appeal from the Circuit Court of Cook County. No. 19 CR 07016, The Honorable Brian Flaherty, Judge, presiding.

Michael W. Weaver, of McDermott Will & Emery, LLP, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (John E. Nowak and Stacia Weber, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 At his arraignment, Deon Hilliard asked to proceed "in proper persona" three times. The third time he included in, his request a repudiation of his then-counsel’s agreement to a continuance. On the next court date, the trial court admonished Hilliard about representing himself and allowed him to discharge counsel. During the following months, Hilliard persisted in his demand for a speedy trial, and the parties agreed the State occasioned 93 days of delay. Now Hilliard argues that the total days should include the 29 days between his arraignment and the day the trial court allowed his counsel to withdraw. We agree. Considering the totality of the record, including Hilliard’s words and conduct, we find his request to represent himself was "clear and unequivocal" the first day he made it. Therefore, his counsel’s agreement to a continuance cannot be attributed to him, and the State brought him to trial outside the 120-window provided in section 103-5(a) of the Code of Criminal Procedure of 1963 (commonly known as the Speedy Trial Act) (725 ILCS 5/103-5(a) (West 2018)). Hilliard acknowledges he forfeited this claim, but the State makes no argument that an error we might find is not plain error. We reverse.

¶ 2 Background

¶ 3 Hilliard and his then-girlfriend, Paris Wilhams, lived in an abandoned house in Harvey, Illinois. In 2019, the two had an altercation, and a witness called the police. Officers arrived and detained Hillard after speaking to Wilhams. Once Hilliard was in custody, Wilhams told one of the officers that a gun was in the house. The officer followed Wilhams inside and saw a Marlin .22 rifle leaning against the wall near the door. The officer seized the gun (which was unloaded) and searched Hilliard, finding a magazine clip in his pocket. The clip fit the rifle.

¶ 4 Before officers left, Hilliard got out of the squad car and ran up some nearby train tracks shouting, "I don’t want to go back to prison." Officers caught Hilliard, brought him back to the squad car, and successfully arrested him.

¶ 5 A jury found Hilliard guilty of armed habitual criminal, unlawful use of a weapon by a felon, and escape.

¶ 6 Before trial, Hilliard was initially represented by counsel. At the first appearance on April 16, 2019, this exchange took place:

"THE COURT: This is Mr. Hilliard. Counsel, here is a copy of the charging instrument.

MS. THORNTON: Assistant Public Defender Starr Thornton on behalf of the defendant. Your Honor, we acknowledge receipt, waive formal reading, enter plea of not guilty. I seek leave to file my appearance at this time as well as written motions.

MR. DEON HILLIARD: Defendant proceeds proper persona.

THE COURT: Mr. Hilliard, there’s a statute in the State of Illinois that says if you willfully fail to appear at your trial, a trial could be conducted in your absence. You then would be giving up your right to see and hear the witnesses testify against you. If you were convicted, you would be sentenced in your absence. Do you understand that?

[HILLIARD]: Yes, sir, I do.

THE COURT: Okay.

[HILLIARD]: I wish to proceed proper persona, Judge.

THE COURT: What day do you want to come back?

MS. THORNTON: Judge, I was looking to come back on May 15th.

THE COURT: By agreement 5-15-19 for status on further discovery.

[HILLIARD]: Defendant demands trial not by agreement. I wish to proceed proper persona."

No one addressed Hilliard’s statement, and the court continued the case. On May 15, the next court date, Hilliard again asked to represent himself:

"MS. NESBIT [(ASSISTANT PUBLIC DEFENDER)]: ***And I believe on the last court date, Mr. Hilliard wished to address the Court. He wanted to represent himself.

But Ms. Thornton has had an opportunity to speak to him. At this time, he still wishes Ms. Thornton to represent him.

Is that correct?

[HILLIARD]: That’s correct. That’s what I was trying to talk to her. She didn’t come back.

I did want to represent myself still proceeding proper persona and demand trial."

Immediately after this exchange, the trial court admonished Hilliard about representing himself and accepted his decision to do so. Before continuing, the trial court asked Hilliard what he meant by "pro per." Hilliard explained that he learned through a class he was taking that "proper persona," or "pro per," was the correct way of saying pro se. The trial court told him that "pro per means nothing in the law" and admonished Hilliard not to refer to himself that way anymore. Hilliard demanded trial, and the court continued the case on the State’s motion between May 15 and June 4.

¶ 7 At the court date on June 4, Hilliard agreed to one continuance to prepare a motion but decided to abandon the motion because he did not receive enough time in the law library.

¶ 8 On June 24, Hilliard reasserted his demand for trial. At the next court date, the State answered not ready for trial because a witness was out of town. The State moved to join the related misdemeanor domestic violence case, and the court continued the matter by agreement so Hilliard could draft a response. After the court denied the State’s motion for joinder, Hilliard reasserted his demand for trial. The court set the case for trial, but the State answered not ready due to "witness issues." The next week, the case proceeded to a jury trial during which Hilliard represented himself.

¶ 9 Analysis

¶ 10 Hilliard raises several claims against the judgment: (i) he was not brought to trial within 120 days as required by the Speedy Trial Act, (ii) the trial court denied him a "constitutionally sufficient opportunity to prepare his defense," (iii) the trial court erred by empaneling three jurors who "expressed self-doubt concerning their ability to be impartial," (iv) the trial court erred by denying Hilliard’s request for standby counsel, (v) the officers unlawfully entered Hilliard’s home and seized the gun, (vi) the trial court erred by admitting other-crimes evidence related to the domestic altercation that led to the officers’ presence at Hilliard’s home and arrest, (vii) there was a fatal variance between the charge for escape in the indictment and the evidence presented at trial, and (viii) Hilliard’s simultaneous conviction for armed habitual criminal and unlawful use of a weapon by a felon violates the one-act, one-crime rule.

[1] ¶ 11 Because we find it dispositive, we only address Hilliard’s first argument. The State initially argues Hilliard forfeited his speedy trial claim. Hilliard acknowledges that he did not bring a motion to dismiss under the Speedy Trial Act and did not raise a speedy trial argument in his posttrial motion. So, we agree the claim is forfeited. See People v. Staake, 2017 IL 121755, ¶ 30, 421 Ill.Dec. 936, 102 N.E.3d 217 (preserving claim requires raising it in trial court by objecting at time of error and including the error in posttrial motion).

¶ 12 In Staake, however, our supreme court acknowledged and declined to overrule a body of appellate court decisions finding that errors under the Speedy Trial Act can be reviewed as second-prong plain error. Id. ¶¶ 31, 33 (collecting cases and declining State’s invitation to overrule those cases). Under second-prong plain error, we need not honor a defendant’s procedural default because " ‘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.’ " Id. ¶ 31. The State argues that no error occurred and, significantly, makes no challenge to Hilliard’s invocation of second-prong plain error. Because the State makes no plain error argument, we take our cue from the court in Staake and decline to take a position on the soundness of our appellate court’s decisions reviewing forfeited Speedy Trial Act claims under the second prong of the plain error doctrine. We instead will determine whether an error occurred and assume, without deciding, that any error constitutes second-prong plain error.

¶ 13 The Speedy Trial Act provides:

"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making *** an oral demand for trial on the record." 725 ILCS 5/103-5(a) (West 2018).

The parties’ dispute is narrow. Hilliard and the State agree that the State contributed to 93 days of pretrial delay. But they disagree about the attribution of delay for the 29 days between April 16 and May 15, 2019. Attributing these days to the State would mean trial began on the one hundred twenty-second day, outside the speedy trial term. The State argues we should attribute the delay to Hilliard because he was represented by counsel, who agreed to a continuance on April 16. Hilliard responds that he attempted to discharge counsel—and was ignored—so his counsel’s actions should not bind him. If freed from the representations of counsel, Hilliard argues he demanded trial on April 16, meaning that the delay to May 15 cannot be counted against him.

[2-4] ¶ 14 Delays agreed to by counsel are attributable to the defendant unless the defendant "clearly and convincingly" attempted...