People v. Lesley

2018 IL 122100

123 N.E.3d 1060

429 Ill.Dec. 1

The PEOPLE of the State of Illinois, Appellant,

v.Myron T. LESLEY, Appellee.

Docket No. 122100

Supreme Court of Illinois.

Opinion filed November 29, 2018

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Katherine M. Doersch, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, and Tiffany Boye Green, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

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

¶ 1 Defendant, Myron T. Lesley, pro se filed in the circuit court of La Salle County a postconviction petition under section 122-4 of the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-4 (West 2012) ). The court advanced the petition and appointed counsel to represent defendant, and the State filed a motion to dismiss. Ultimately, defendant was required to proceed pro se , and the court granted the State's motion in part and denied the motion in part. Following a third-stage evidentiary hearing, at which defendant also appeared pro se , the court denied defendant's petition.

¶ 2 On appeal, defendant argued that the circuit court erred in forcing him to represent himself. A divided appellate court agreed and reversed and remanded for appointment of counsel and new second-stage postconviction proceedings. 2017 IL App (3d) 140793, ¶ 28, 412 Ill.Dec. 602, 76 N.E.3d 42.

¶ 3 This court allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Mar. 5, 2016). We now reverse the judgment of the appellate court and remand to that court for further proceedings.

¶ 4 I. BACKGROUND

¶ 5 On February 28, 2012, defendant was indicted on one count of unlawful possession of a controlled substance with intent to deliver and three counts of unlawful delivery of a controlled substance. Defendant was released on bond. At a May 2012 hearing, Assistant Public Defender James Reilly informed the court that defendant intended to seek private counsel. At the final pretrial hearing, Reilly sought a continuance because defendant had not yet secured private counsel. In August 2012, Reilly was permitted to withdraw, and private counsel, Douglas Olivero, entered his appearance. Olivero appeared at several status hearings. Defendant failed to appear at a December 2012 hearing, and Olivero moved to withdraw, citing defendant's refusal to cooperate. Subsequently, defendant again failed to appear, a warrant issued, and defendant was taken into custody on the warrant. The circuit court granted Olivero's motion to withdraw and appointed Assistant Public Defender Michael Olewinski to appear on defendant's behalf. Olewinski appeared at a January 2013, status hearing and again in April 2013, when he informed the court that defendant "still has to come in and speak with our office." The court then urged defendant to "please help them prepare for you so make sure you go in and see them."

¶ 6 In April 2013, while free on bond, defendant was arrested and charged with two additional counts of unlawful delivery of a controlled substance. Thereafter, defendant was arraigned on the new counts.

¶ 7 On June 13, 2013, defendant pled guilty to the offenses of unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(c)(2) (West 2012) ) and unlawful delivery of a controlled substance (id. ) in exchange for consecutive sentences of five years' imprisonment and six years' imprisonment, respectively. The State also agreed to dismiss four additional charges.

¶ 8 On September 30, 2013, defendant pro se filed a postconviction petition alleging that he received ineffective assistance of plea counsel, asserting that counsel failed to adequately investigate his case and that no justification was given for his consecutive sentences.

¶ 9 The State responded by filing a motion to dismiss the petition, and at defendant's request, the circuit court appointed the public defender to represent him.

¶ 10 A hearing on defendant's petition was conducted by the same judge who had taken defendant's plea and imposed sentence. Defendant appeared with Timothy Cappellini, a La Salle County assistant public defender, for a "first appearance" hearing on the postconviction petition. Defendant requested a long continuance explaining that he and Cappellini had a disagreement regarding the acquisition of defendant's sentencing hearing transcripts. Cappellini responded: "I said if he doesn't want me to represent him, he can go pro se. " The court informed defendant that Cappellini could easily get the sentencing transcripts and that was what defendant needed for his petition. Cappellini then explained that

"if the defendant is not going to listen to anything I tell him when I try to explain the law and he's going to tell me I'm wrong[,] I said, you can go pro se. You can get the transcripts and you can do that or else, I represent you as an attorney and I have to follow the law. That's all there is to it."

The court addressed defendant directly, stating

"if you're not going to listen to him, then you have to tell me you want to go pro se . If you want to call [private counsel], you can do what you want but the point is whoever represents you is going to tell you that. That you have to listen to them."

¶ 11 The case was continued to December 19, 2013, when Douglas Kramarsic, another assistant public defender, appeared on behalf of defendant and informed the court that he had spoken with defendant about some specifics regarding the petition and provided defendant with case law and the sentencing transcripts.

¶ 12 On January 9, 2014, Cappellini appeared along with defendant to discuss the State's motion to dismiss. Cappellini stated that he had supplied defendant with a copy of the sentencing transcripts. During the hearing, when defendant stated that he needed more information, Cappellini explained that this was postconviction, not a retrial. The court informed defendant that "I have to see whether you have pleaded enough with evidence as required by law—then if you are given the right to have a hearing you may need other things, but we need to take it one step at a time."

¶ 13 At a February 20, 2014, status hearing, Kramarsic appeared on behalf of defendant, who was in shackles because he had argued with Kramarsic. Kramarsic informed the court that he had previously met with defendant to attempt to explain changes he wanted to make to the postconviction petition. Kramarsic stated that defendant became "very belligerent" and told Kramarsic "numerous times to go f*** [him]self." Defendant told Kramarsic that he was "fired" and defendant wanted to hire his own attorney. Defendant then grabbed the papers out of Kramarsic's hands "in a physical and aggressive manner." Kramarsic retreated from the room as defendant continued to yell obscenities at him.

¶ 14 Kramarsic stated to the circuit court that "it's clear that [defendant] does not wish to continue with me as his attorney, and I'll leave it to the Court's discretion as to what should take place next." The court asked defendant to respond, and defendant stated that Kramarsic "tried to treat me like I'm stupid or something—and then I'm trying to show him something and he's ignoring it and I'm yelling at him, I don't think he's trying to help me, he's trying to hurt me."

¶ 15 The circuit court explained to defendant that he had been appointed several public defenders, that there was no one left to appoint, and that defendant did not have a choice as to which attorney he was assigned from the public defender's office. Defendant stated that he wanted to hire his own attorney, and the court granted him a 60-day continuance. The court then addressed defendant's request, stating "I can see there were developing problems even before today. I can't give you another Public Defender but I can certainly let you hire somebody." The following colloquy ensued:

"MR. KRAMARSIC: Your Honor, I guess at this point it may leave me in limbo. I guess if you're still leaving me as the attorney of record, there are issues that I would want to correct with this but [defendant] certainly does not wish to hear anything that I have to say.

* * *

THE COURT: Is there anything that you want to put on the record today?

MR. KRAMARSIC: I mean, I would just like to say that I have reviewed the records, I have reviewed everything involved in this case. I haven't filed my certification regarding that, which I was going to file with my amended petition, but I can't even get to the point of being able to do that."

¶ 16 The court informed Kramarsic that he would not be required to do anything until they learned whether defendant would be able to retain private counsel. The court then said: "And so I am reserving my ruling on you filing anything, nor are you under any obligation to do that until I see what [defendant] can find in 60 days, so let's do that for you."

¶ 17 On April 24, 2014, at a status hearing, Kramarsic advised the court that he attempted to discuss with defendant whether defendant had been able to hire private counsel and "it [was] one hundred percent absolutely clear from [the] conversations that [defendant] want[ed] nothing to do with [Kramarsic] in this case." Defendant stated that he was trying to find an attorney but had not hired one. The court scheduled a hearing on the State's motion to dismiss the petition for June 12, 2014. The court explained to Kramarsic, "I'm aware he won't talk to you. And so you won't be representing him at any hearing at this point." The court deferred any action, and the following colloquy occurred:

"THE COURT: All right. So we'll do that. And if [defendant] doesn't have a lawyer [at the hearing on the motion to dismiss], I'll have to address him as to his options.

But you put on the record he doesn't want to talk to you. That's fine.

I'm not dismissing you

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