People v. Lopes

2019 IL App (5th) 170258

125 N.E.3d 1096

430 Ill.Dec. 78

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

v.James LOPES, Respondent-Appellant.

NO. 5-17-0258

Appellate Court of Illinois, Fifth District.

Rule 23 Order Filed: February 1, 2019

Motion to Publish Granted: February 15, 2019

Opinion Filed: February 15, 2019

Donna S. Polinske and Brian L. Polinske, of Polinske & Associates, P.C., of Edwardsville, for appellant.

Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino, Patrick D. Daly, and Kelly M. Stacey, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 The respondent, James Lopes, appeals the finding, by a jury in the circuit court of Madison County, that the respondent is a sexually dangerous person. For the following reasons, we affirm.

¶ 2 FACTS

¶ 3 The facts necessary to our disposition of this appeal follow. On April 27, 2016, the State filed a criminal information naming the respondent as defendant and charging him with three counts of the Class 4 felony of grooming and three counts of disorderly conduct, a Class C misdemeanor. Also on April 27, 2016, the State filed a petition, pursuant to the Sexually Dangerous Persons Act (Act) ( 725 ILCS 205/0.01 et seq. (West 2016) ), asking the trial court to declare the respondent to be a sexually dangerous person. In the petition, the State alleged, inter alia , that the respondent had "demonstrated criminal propensities to commit sex offenses" and had "demonstrated propensities toward acts of sexual assault" based upon his behavior: (1) on or about April 22, 2016, April 23, 2016, and April 24, 2016, which included, inter alia , approaching multiple young girls and their parents or guardians, speaking with the young girls, and then giving their parents or guardians cards that referenced websites that contained information regarding the respondent's "teachings on sexual conduct between adults and minors," as well as approaching multiple other young girls and making inappropriate and alarming comments to them; (2) on August 16, 2012, at which time the respondent was arrested by authorities in Portland, Oregon, for felony sexual abuse (first degree) and misdemeanor harassment against a victim who was an eight-year-old girl; (3) in posting videos and writings to the internet "which discuss having sex with children, particularly children wearing green"; and (4) in making "admissions" to investigating authorities "of wanting to sexualize children * * *, particularly children wearing green," and stating to authorities, " ‘We try to get them when they're 12 and under.’ "

¶ 4 On April 29, 2016, the trial judge entered an order which noted, inter alia , that the State had elected to proceed under the Act, and that therefore cancelled the respondent's preliminary hearing that was set for May 13, 2016, on his criminal charges, and instead set a case management conference for May 6, 2016. On May 6, 2016, at the case management conference, the trial judge ensured the respondent had a copy of the petition filed under the Act, because the respondent previously did not have a copy. He explained to the respondent that the criminal proceedings were stayed while the petition moved forward, and asked the respondent if he understood. The respondent answered, "Yes, your Honor."

¶ 5 Thereafter, the respondent asked to file five pro se motions he had drafted, which pertained to, inter alia , speedy trial rights, discovery, dismissal of the charges, and suppression of his interviews with investigating officers. The trial judge noted that the motions were "neatly written," and instructed the respondent as to how to file motions in the future, in light of the respondent's incarceration in the county jail. The respondent then requested "law library time," which led to the following colloquy with regard to the respondent's desire to represent himself, which we quote in detail because of its significance to one of the issues raised by the respondent on appeal:

"THE COURT: Well, Mr. Lopes, let's talk about that. So what do you want to do about an attorney, Mr. Lopes? You have the right to be represented by an attorney of your choice. If you could not afford an attorney, the Court would appoint an attorney to represent you for free. You could also represent yourself. So what do you want to do about an attorney, Mr. Lopes?

RESPONDENT LOPES: I want to go according to that stipulation in the law that's never really mentioned like I would like to represent myself, but I would like at the State expense co-counsel.

So a lawyer that can handle the stuff that I can't while I am incarcerated because I will need some witnesses.

THE COURT: So explain that to me a little further, Mr. Lopes. Exactly what are you wanting this attorney for?

RESPONDENT LOPES: Exactly what I would want the attorney for? To organize different witnesses that I will need, e-mails that I send out to organize footage of the news of my case, Channel 4 and 5. That's the ones I can think of on hand.

THE COURT: Well, so you want to represent yourself primarily. Is that what you are telling me?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: So how old are you, Mr. Lopes?

RESPONDENT LOPES: I am 40.

THE COURT: How far did you go in school?

RESPONDENT LOPES: I graduated.

THE COURT: From high school?

RESPONDENT LOPES: Yes, I also studied about two thousand hours of law.

THE COURT: You studied about two thousand hours of law. Where was that?

RESPONDENT LOPES: Usually in incarcerated situations like this, copying some things. Law interests me. Law is very important to me.

THE COURT: When was that? How recently?

RESPONDENT LOPES: For the last ten years, probably 15 years actually, your Honor.

THE COURT: Have you represented yourself before?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: Under what circumstances? Can you tell me about it?

RESPONDENT LOPES: Usually under misdemeanor cases. I haven't had any felony cases.

THE COURT: What types of misdemeanor cases?

RESPONDENT LOPES: Let's see, usually trespass or obstruction of government operations.

THE COURT: Have you ever had a trial?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: And what type of trial was it? Was it a trial before a Judge or a trial before a jury?

RESPONDENT LOPES: It was a trial before a Judge.

THE COURT: And what type of case was that?

RESPONDENT LOPES: That was misdemeanor. These different states they don't—they have the different set up. I forget what the legal term is with it. Usually we have this court case and then they can go to appeal it and go to Supreme. It is a regular case but they are doing a lot across the country. In misdemeanor format they put in another case where you are not allowed six jurors the first time. The appeal is actually starting the first phase of normal court procedures. You know what I mean?

THE COURT: That trial you are talking about, that actually went to a verdict?

RESPONDENT LOPES: Yes.

THE COURT: And the entire time you represented yourself?

RESPONDENT LOPES: Yes, your Honor. I have done it a number of times, two or three.

THE COURT: Do you understand that you will be held to the standards of an attorney if you choose to represent yourself? I can't make exceptions for you under the law. You will be held to the same rules of evidence and procedure that the State is held to. Do you understand that?

RESPONDENT LOPES: Yes, your Honor. That's why I ask for co-counsel so some expertise can help me.

THE COURT: Well, you may or may not get co-counsel appointed. I haven't decided that yet, and when you say co-counsel I think we refer to it in Illinois as standby counsel.

RESPONDENT LOPES: Okay.

THE COURT: So you want to be primarily responsible for your representation but you want an attorney there to help you out. So I am going to refer to it as standby counsel. So we haven't answered that question yet, Mr. Lopes. Right now I am making inquiries to determine whether you have the requisite mental capacity to represent yourself. So we will get to the point of deciding whether or not you are afforded standby counsel in a few minutes. So let's go on with some admonitions. I told you the first one. You understand that you are going to be held to the same rules of evidence and same procedures as you would be if you were an attorney. Do you understand that?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: Do you understand that a lawyer has substantial experience in training and trial procedure, and obviously the prosecution is represented by an attorney so that may give them somewhat of an advantage over you, as they are represented by an experienced attorney and you are not an experienced attorney. Do you understand that?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: You may be unfamiliar with the legal procedures involved in this case. That may allow the prosecutor an advantage. You may fail to make objections to inadmissible evidence and allow evidence that wouldn't otherwise be permitted to come in. You may not make effective usage of such rights as voir dire questioning or questioning of prospective jurors. And you also, because you are not an attorney, you may make tactical decisions, while you think may be in your best interests, they may have unintended consequences that you may not realize. Do you understand that, Mr. Lopes?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: Another issue is, if you are representing yourself one issue you will not be able to complain about on appeal is ineffective assistance of counsel. That is usually a very ripe area for appeal. If you represent yourself you will not have that basis to appeal. Do you understand that?

RESPONDENT LOPES: Yes, your Honor.

THE COURT: You are also put in an unusual position when you represent yourself in that you have to act in a dual role as both the Defendant or Respondent in the case and the attorney. Normally the Defendant or Respondent sits at the table. They don't speak very much unless they choose to take

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