People v. Hunt, 1–13–2979.

55 N.E.3d 1227

404 Ill.Dec. 373

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Jeffrey HUNT, Defendant–Appellant.

No. 1–13–2979.

Appellate Court of Illinois, First District, Fifth Division.

June 17, 2016.

Michael J. Pelletier, Alan D. Goldberg, and Sarah Curry, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Ashley Toro, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Jeffrey Hunt, was convicted of burglary and possession of burglary tools pursuant to sections 19–1(a) and 19–2(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/19–1(a), 19–2(a) (West 2012)). Defendant was sentenced as a Class X offender to 11 years' imprisonment for burglary and 6 years' imprisonment for possession of burglary tools, to run concurrently. On appeal, defendant asserts the trial court erred in: (1) denying his unequivocal request to proceed pro se; (2) failing to order a behavioral clinical examination; (3) declining to consider his mental health status as a factor in mitigation during sentencing; and (4) assessing certain fees and fines. Because we conclude that defendant unequivocally invoked his right to self-representation and that the trial court abused its discretion when it denied his request as a delay tactic, we reverse defendant's convictions and remand for retrial.

¶ 2 BACKGROUND

¶ 3 On August 29, 2012, defendant was charged by information with burglary and possession of burglary tools based on the July 16, 2012, theft of an automobile stereo from a 2002 Mitsubishi Lancer and being in possession of a screwdriver, a tool suitable for use in breaking into a motor vehicle. That same day, the trial court appointed the public defender to represent defendant and the matter was continued by agreement for discovery. On September 21, 2012, the State indicated discovery was not complete and the matter was again continued by agreement. On October 12, 2012, discovery was complete; however, defendant's case was continued by agreement. On November 1, 2012, the matter was once again continued by agreement to December 4, 2012, for a jury trial.

¶ 4 Initially, on December 4, 2012, defendant requested a private attorney, but did not have a private attorney available that day. The trial court denied his request, indicating that the matter had been set for trial a month ago. Defendant made no further arguments in support of his request. The State then requested the matter be continued to the following day as it had presently filed a motion for proof of other crimes. The matter was continued by agreement.

¶ 5 On December 5, 2012, the State filed a motion in limine. The trial court sua sponte continued defendant's jury trial to the following week for defense counsel to file a written response to the State's motions.

¶ 6 On December 12, 2012, a substitute judge presided over the courtroom. Defense counsel informed the court that defendant “wants to represent himself” and defendant affirmed this statement. The substitute judge proceeded to extensively admonish defendant pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) regarding the consequences of proceeding pro se. The substitute judge, however, did not rule on defendant's request, but instead provided defendant “a chance to think about this” and held the matter over for the trial judge to make the determination. The substitute judge also declined to rule on the State's motion for proof of other crimes and continued the matter to December 17, 2012, “when [the trial judge] will be back.”

¶ 7 On December 17, 2012, defense counsel informed the trial judge that at the last court date defendant requested to proceed pro se and that the substitute judge had held the matter over for her to consider his request. The trial court denied defendant's request stating:

“THE COURT: This [has] been set numerous times. Put your hand down.

THE DEFENDANT: I'm sorry. I apologize.

THE COURT: This has been set numerous. This is a delay tactic. The court will not allow that. We are going to proceed forward. I will set this for jury trial on January 2nd. So I find—is there something humorous, Mr. Hunt?

THE DEFENDANT: I'm not laughing, Your Honor.

THE COURT: Yeah. I find this is just a gamesmanship that keeps going on. And unless I am here to reign [sic ] this in, which I am, I'm not going anywhere, then, we are going. You are represented.

Every time we set this, there is not mention. One day I am not here, there is no mention [sic ]. He is not going to represent himself. I find this is a delay.

[DEFENSE COUNSEL]: If I may, Your Honor.

THE COURT: Yes, ma'am.

[DEFENSE COUNSEL]: May I have the 8th. That way, I can fully commit myself to being here.

THE COURT: Sure.

THE DEFENDANT: Isn't it my right to go pro se if I want?

THE COURT: Not at all. I'm glad it's humorous.

THE DEFENDANT: I don't understand.

THE COURT: I don't have to let [an] attorney out of a case and I am not. We have been set previously and there's been no mention of this. All of a sudden when I am not here, this happens in front of another judge.

I find this is a delay tactic. It is set for jury. She is going to represent you. I don't find that there is any reason. This is you playing games and attempting.

THE DEFENDANT: Playing games with my life, Your Honor.

THE COURT: Correct. Correct.

THE DEFENDANT: Ha, ha.

THE COURT: Oh, again humor.

THE DEFENDANT: It's definitely humorous that you think I am going to play games with my life.

THE COURT: Well, because you are. You've never said this before when it's been set for jury. I find this you [sic ] being a delay tactic. January 8th set for jury. Final.”

¶ 8 Defendant's jury trial did not commence on January 8, 2013, as the State could not answer ready due to an eyewitness being unavailable. Thereafter, the matter was continued on numerous occasions for a variety of reasons; scheduling conflicts, plea negotiations, and hearings on pretrial motions. In July of 2013, due to the delay of his trial, defendant filed a pro se “motion to dismiss.” Defendant subsequently withdrew the motion and the matter was set for trial shortly thereafter. At no time during these subsequent proceedings did defendant renew his request to represent himself.

¶ 9 On July 30, 2013, the matter proceeded to a jury trial. The State's evidence established the following. On July 16, 2012, at 5:30 p.m. Oscar Franco (Franco) parked his 2002 Mitsubishi Lancer in front of his residence on the 1300 block of West 49th Street. Franco locked the doors to his vehicle, but left the front windows partially open due to the hot temperature. At 6:30 p.m. Roman Guillen (Guillen), Franco's neighbor, was playing outside with his children on West 49th Street approximately 100 feet away from Franco's automobile when he observed defendant enter Franco's vehicle and exit the automobile carrying a plastic bag. Guillen continued to observe defendant as he traveled towards West 50th Street from West 49th Street. At that moment, a police vehicle passed by. Guillen flagged down the officers and informed them of what he had observed. Shortly thereafter, Chicago police officers Robert Vella (Officer Vella) and John Conneely (Officer Conneely) apprehended defendant who was carrying a white plastic bag which contained an automobile stereo within. During a pat-down search of defendant Officer Conneely recovered a screwdriver. Officer Conneely then escorted Guillen to where defendant was being detained. Guillen identified defendant as the individual he observed entering Franco's vehicle and exiting with the plastic bag. Thereafter, Franco identified the stereo as the one that had previously been in his vehicle. Franco and Officer Conneely both testified that they observed scratches and pry marks around the console area of Franco's vehicle where the stereo had been situated. The State rested. Defendant then moved for a directed finding, which was denied. The defense presented no evidence.

¶ 10 After closing arguments and jury instructions, the jury commenced deliberating and ultimately found defendant guilty of burglary and possession of burglary tools.

¶ 11 Thereafter, defendant filed a motion for a new trial, but did not assert that the trial court erred in denying his request to represent himself. The trial court denied defendant's motion and proceeded to a sentencing hearing. The trial court sentenced defendant as a Class X offender to 11 years' imprisonment for burglary and 6 years' imprisonment for the possession of burglary tools, to run concurrently. This appeal followed.

¶ 12 ANALYSIS

¶ 13 On appeal, defendant raises a number of arguments asserting error by the trial court, but we find one matter to be dispositive of the present appeal. That issue concerns the denial of defendant's request to represent himself. Defendant contends the trial court erred in denying his request to proceed pro se where he unequivocally expressed his desire to represent himself. Defendant maintains that the trial court's denial of his request was erroneous where the record does not reflect any intention on his part to delay the proceedings. Defendant further argues that the trial court failed to consider whether his request was knowing and intelligent. Defendant asserts that because the trial court failed to balance his fundamental right against the court's interest in efficiency, the trial court abused its discretion. Consequently, defendant requests this court reverse his conviction and remand for a new trial.

¶ 14 In response, the State argues that defendant forfeited this claim because he failed to object at trial and raise it in a posttrial motion. The State further argues that defendant again forfeited plain-error review by failing to argue the issue on appeal. Additionally, the State argues that, in the event we do not consider defendant's argument...