People v. Khan

2021 IL App (1st) 190679

186 N.E.3d 431

452 Ill.Dec. 707

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

v.Muhammad KHAN, Defendant-Appellee.

No. 1-19-0679

Appellate Court of Illinois, First District, Fourth Division.

June 30, 2021

James E. Chadd, State Appellate Defender, of Chicago (Patricia Mysza, Deputy Defender, and Beverly M. Jones, Assistant Appellate Defender, of counsel), for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for appellee.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, on February 13, 2019, defendant Muhammad Khan¹ was convicted of aggravated driving under the influence (DUI) of alcohol with a suspended or revoked driver's license ( 625 ILCS 5/11-501(a)(2), (d)(1)(G) (West 2016)) and sentenced to five years in the Illinois Department of Corrections (IDOC), followed by one year of mandatory supervised release. Defendant appeals, claiming (1) the trial court should have conducted a fitness hearing due to defendant's conduct, (2) defendant did not knowingly and intelligently waive his right to counsel, (3) defendant should have been permitted standby counsel, (4) the trial court erred in instructing the jury, and (5) defendant was entitled to a new trial because he waived his right to a jury trial. For the reasons that follow, we affirm the trial court's judgment in part, but vacate defendant's conviction on count II and order the mittimus corrected.

¶ 2 BACKGROUND

¶ 3 During the early morning hours of December 18, 2017, defendant was arrested after an incident outside a police station, in which defendant was observed by several officers to be standing outside a vehicle that was parked facing northbound in the southbound lanes of traffic while arguing with another individual. Upon the officers approaching the arguing individuals, defendant admitted to driving the vehicle and gave the officers the keys, and the officers observed signs of alcohol intoxication, including the odor of alcohol on defendant's breath, slurred speech, and bloodshot and glassy eyes; defendant also failed several field sobriety tests. At the time of defendant's arrest, an arrest warrant was also executed with respect to defendant's alleged violation of probation for case No. 09 CR 19247, which was another aggravated DUI of alcohol offense for which defendant had been convicted in 2011.²

¶ 4 On December 28, 2017, defendant was charged in case No. 18 CR 00256 with four counts of aggravated DUI of alcohol, in that defendant drove or was in actual physical control of a vehicle while under the influence of alcohol and (1) had previously violated the DUI statute on two prior occasions ( 625 ILCS 5/11-501(d)(1)(A) (West 2016)); (2) the offense was committed while his driving privileges were revoked for a violation of the DUI statute ( 625 ILCS 5/11-501(d)(1)(G) (West 2016)); (3) the offense was committed while his driving privileges were suspended due to a violation of section 11-501.1 of the Illinois Vehicle Code ( 625 ILCS 5/11-501(d)(1)(G) ; 11-501.1 (West 2016)); and (4) the offense was committed while he did not possess a valid driver's license ( 625 ILCS 5/11-501(d)(1)(H) (West 2016)).

¶ 5 Defendant appeared before the trial court for arraignment on January 18, 2018, where defendant was informed that he had two matters pending—the violation of probation and the new DUI charge; defendant was present in court that day only for his arraignment on the new DUI charge. The trial court asked defendant if he had an attorney, and defendant stated that he wished to represent himself. The court informed defendant that he had the right to an attorney and, if he could not afford one, one would be provided for him. However, defendant stated that he wished to represent himself "because I know the whole story of this new matter." The court then informed defendant as to the nature of the charges against him and the sentencing range. In response, defendant stated: "Judge, actually this case is not supposed to exist because I was not driving." The court cautioned defendant that a court reporter was present, so he should not say anything that could harm his case.

¶ 6 The court then questioned defendant about his education and whether he had any legal training or knowledge. After determining that defendant had no legal knowledge, the court cautioned defendant that "[b]y you representing yourself in this matter, you put yourself at a huge disadvantage," which was why defendant had the right to an attorney. Defendant responded that he understood and asked, "[w]ill you just give me a chance to speak for a few seconds please?" The court told defendant "that's not how this works. You don't just talk to me. The State's trying to put you in prison. You have a right to a trial." The court then asked defendant whether he was pleading guilty or not guilty, and defendant responded that he was not guilty. The court asked if defendant was waiving the formal reading of the charges, and defendant responded:

"Judge, I'm not—Everything—Every question I am going to say no because I'm not—this case is not supposed to be existing from nowhere, Judge, because I was not driving. I was not in the car."

¶ 7 At that point, the court stated that it "[had] some concerns" about defendant so, before proceeding any further, it would order a behavioral clinical examination (BCX). The court further stated that it would not proceed on the arraignment at that time, as defendant had requested to represent himself pro se , and the court wished to review the results of the BCX before making a decision on whether defendant could represent himself. The court informed defendant that he would meet with doctors for an evaluation. Defendant responded, "Okay. No problem, but, Judge, you give me a few seconds so I can speak with you, Judge, about my case." The court again informed defendant "[t]hat's not how this works," but defendant continued attempting to speak with the court about the case no matter what the court said.

¶ 8 On February 16, 2018, the trial court stated that, after completing a BCX, Dr. Nishad Nadkarni, a forensic psychiatrist, opined that defendant was fit to stand trial.³ The court then asked defendant if he still wished to represent himself on the new DUI charge, and defendant responded that he did. The court again advised defendant that he had the right to counsel, and defendant stated that he understood. The court reminded defendant that if he could not afford an attorney, one would be provided for him. Defendant stated that he understood, and the court again asked defendant about his knowledge of legal procedure, reminding him that "if you represent yourself, I can't give you legal advice. I can't treat you any differently than I would treat anyone else." Defendant then engaged in the following colloquy with the court:

"DEFENDANT: Okay, Your Honor. The best thing I can do, I can [represent] myself; and I can take a help from the—

THE COURT: No, no, that's not a help, okay?

DEFENDANT: It's called—

THE COURT: Listen to me.

If you want the Public Defender's Office, I will appoint the Public Defender's Office.

If you want to represent yourself, you'll represent yourself.

If you're asking for Standby Counsel, you don't have a right to have Standby Counsel.

I have to determine whether Standby Counsel is necessary, and that's on a case-by-case basis."

The court also again informed defendant of the nature and sentencing range for the new DUI charge, and defendant responded that "I understand definitely." After further discussion with defendant, the trial court stated: "All right. You may represent yourself on the new case and the [violation of probation]." The court then proceeded with the arraignment on the new DUI charge, and defendant entered a plea of not guilty.

¶ 9 The court then stated that, "if you're requesting to have Standby Counsel, I'm going to deal with that request now, because I think he was making that request." The court asked the State if the case involved any scientific testing, and the State responded that there were no allegations relating to defendant's blood alcohol level, and no allegations that a blood draw or Breathalyzer were involved. The court then stated:

"It doesn't sound, then, that the factual allegations are complex enough, that it will require me to appoint Standby Counsel.

So, you're not going to have a Public Defender or any other lawyer to act as Standby Counsel. You're going to be representing yourself in this matter.

I mean, I exercise discretion here; and I find that *** the complexities of this case, while *** the sentences, the possibility of incarceration is serious; but the complexity of the case does not necessitate Standby Counsel.

So, your request for Standby Counsel is respectfully denied."

¶ 10 On the same day, defendant filed a pro se motion to dismiss based on double jeopardy, in which defendant claimed that the DUI matter was previously tried on December 22, 2017, and the trial court found no probable cause. Defendant also wrote a letter to the trial court:

"First and foremost I would like to apologize for my misbehaving in your court room on 01-16-18. This was my first time in a court room without [a] private attorney. I felt that the [state's attorneys] were being very hard on me and it made me very stressful. For a false matter being discussed about me. That on 12-18-17 [the] officer created a case against me and on 12-22-17 [the preceding] judge on my case dropped all charges.

I am very wrong for my words I used on that day in your court room, the words I said were out of stress and anger, the words I said were that I wanted a jury trial and I would like to take my words back. I promise that in the future I will always think about my words before I speak them. I would like to ask the Honorable Judge to be my jury in this matter. I pray and hope my request is

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