People v. Khan

2021 IL App (1st) 190051

197 N.E.3d 1148

459 Ill.Dec. 256

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

v.Adeel KHAN, Defendant-Appellant.

No. 1-19-0051

Appellate Court of Illinois, First District, Fourth Division.

Filed 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 In 2011, defendant Adeel Khan¹ was convicted of aggravated driving under the influence (DUI) of alcohol while driving without a valid driver's license (625 ILCS 5/11-501(a)(1), (d)(1)(H) (West 2008)) and sentenced to two years’ probation. The instant appeal arises from the trial court's finding that defendant violated his probation by failing to report to his probation officer. On appeal, defendant claims that the trial court erred in permitting defendant to waive his right to counsel and that the trial court should have conducted a fitness hearing because of defendant's behavior both before and during the violation of probation hearing. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 On August 4, 2011, defendant was convicted in case No. 09 CR 19247 of aggravated DUI of alcohol while driving without a valid driver's license and was sentenced to two years’ probation by Judge Clayton Crane. On March 6, 2012, the State filed a petition for violation of probation, alleging, inter alia , that defendant had been subsequently convicted of unlawful use of a weapon and theft. On March 20, 2013, the State filed a supplemental petition for violation of probation, alleging, inter alia , that defendant had failed to report to his probation officer since December 6, 2012, and the State ultimately proceeded with only the reason set out in its supplemental petition. On the same date, defendant failed to appear in court, and the trial court issued a warrant for his arrest.

¶ 4 The warrant was executed on December 19, 2017, as a result of defendant's arrest for another aggravated DUI of alcohol offense in case No. 18 CR 00256.² The violation of probation proceedings and the proceedings concerning the new DUI charge then continued largely in conjunction.

As one of the issues on appeal in the instant case involves the question of defendant's waiver of his right to counsel, we first relate the facts concerning the admonishments defendant received as to that waiver before discussing the proceedings more generally.

¶ 5 I. Waiver of Counsel

¶ 6 A. Admonishments as to New DUI Charges

¶ 7 Defendant was present in court on January 18, 2018, before Judge Alfredo Maldonado at the arraignment of the DUI charge when he was informed that he had two matters pending—the violation of probation and 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 DUI charges against him and the sentencing range as follows:

"So [defendant], you are here for—the new matter is the offense in a four count information. The State is alleging that you committed the offense of aggravated driving under the influence of alcohol, which allegedly occurred on the date of on or about December 18, 2017, at and within the County of Cook. And they allege that in a four count information. This is charged as a Class 2 because of your background. You allegedly have two other previous driving under the influence of alcohol convictions. So based on your background, the State is asking that you be sentenced as a Class 2—under Class 2 sentencing guidelines. ***

***

So [defendant], you are facing in Count 1 an aggravated driving under the influence, a Class 2 version. And in Counts 2, 3, and 4 you are charged with Class 4 aggravated driving under the influence of alcohol.

A Class 4 felony is punishable by a minimum of one and a maximum of three years with one year of mandatory supervised release. You can be placed on probation for up to 30 months.

On a Class 2 felony, which is what you are charged with in Count Number 1, the sentencing range is a minimum of three and a maximum of seven years in the penitentiary with two years of mandatory supervised release. You can be placed on probation for up to four years. And on all of these things you can be fined up to $25,000 as well, all right, [defendant]?"

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 would harm his case.

¶ 8 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."

¶ 9 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.

¶ 10 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 and stated:

"I have the Public Defenders here; and I'll appoint an attorney from the Public Defender's Office to represent you on the new case, and on the violation of probation that you have, because you have two matters.

***

You have a probation case and the new matter."

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." 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.

¶ 11 B. Admonishments as to Violation of Probation

¶ 12 On April 6, 2018, while the parties were before the trial court on a motion to dismiss that had been filed by defendant in the new DUI matter, the court asked the State about outstanding discovery and asked whether the State was electing to proceed first on the probation matter or on the new DUI charge. The assistant state's attorney responded that the State would be proceeding first on the probation matter. Defendant then interjected, stating that he "would like to transfer this matter to the federal court." The court asked defendant to listen and then admonished him that the State was electing to proceed on the probation matter first. The court informed defendant that the State was required to prove the violation of probation by a preponderance of the evidence, not beyond a reasonable doubt. Defendant told the court that he was going to "reopen the probation matter," and the court responded that the State would be proceeding first on the probation matter. The court further informed defendant:

"You have a right to have a violation of probation hearing. The State has to prove by a preponderance of the evidence that you have violated the probation. They will call witnesses. You will have an opportunity to cross examine those witnesses.

In a *** violation of probation matter, at a hearing, you have a right to counsel. If you can't afford one, one would be appointed to represent you."

Defendant again responded that he "would like a trial in federal court." The court informed defendant that there was no basis for removal to federal court, and defendant stated that he was going to "contact them" and "beg them." The court then again asked the State about outstanding discovery, and the assistant state's attorney responded that the only outstanding issue was obtaining video of defendant's arrest on the new DUI charge. Defendant expressed confusion about what video the State was referring to, and the court explained:

"The basis of the probation violation, they

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