People v. McKee

2022 IL App (2d) 210624

215 N.E.3d 1055

465 Ill.Dec. 850

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

v.Quinton James MCKEE, Defendant-Appellant.

No. 2-21-0624

Appellate Court of Illinois, Second District.

Filed December 19, 2022

James E. Chadd, Thomas A. Lilien, and Amaris Danak, of State Appellate Defender's Office, of Elgin, for appellant.

Eric C. Weis, State's Attorney, of Yorkville (Patrick Delfino, Edward R. Psenicka, and Adam J. Rodriguez, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following a bench trial, defendant, Quinton James McKee, was convicted of obstructing a peace officer ( 720 ILCS 5/31-1(a) (West 2020)), fleeing or attempting to elude a peace officer ( 625 ILCS 5/11-204(a) (West 2020)), speeding (id. § 11-601(b)), and disobeying a traffic control device (id. § 11-305(a)). The trial court sentenced defendant to 12 months’ probation for obstructing a peace officer, ordered him to perform 100 hours of community service, and imposed a $400 fine. The court entered convictions and imposed fines on the remaining offenses. Following the denial of his posttrial motion, defendant timely appealed. Defendant contends that he did not validly waive his right to counsel because the trial court did not properly admonish him under Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). We agree. Accordingly, we vacate and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 On May 6, 2020, defendant received uniform traffic citations for (1) fleeing or attempting to elude a peace officer (case No. 20-TR-1712), (2) speeding (case No. 20-TR-1713), and (3) disobeying a traffic control device (case No. 20-TR-1714). Fleeing or attempting to elude a peace officer is a Class A misdemeanor. See 625 ILCS 5/11-204(a) (West 2020). Speeding and disobeying a traffic control device are petty offenses. See id. §§ 1-158.5, 11-202; 730 ILCS 5/5-1-17 (West 2020). On May 7, 2020, defendant was charged by complaint with a single count of obstructing a peace officer, a Class A misdemeanor ( 720 ILCS 5/31-1(a) (West 2020) (case No. 20-CM-195)). The trial court consolidated the four cases.

¶ 4 The return date on the traffic citations was June 15, 2020, at 807 West John Street, Yorkville, which was Yorkville High School. On that day, defendant appeared and signed a jury waiver form bearing all four case numbers. The preprinted text of the form stated that the defendant had been

"fully advised of his/her right to plead not guilty, that he/she is presumed innocent, the nature of the charge(s), the possible punishment for each charge, including extended or consecutive sentences, the right to have a jury trial or a trial before a judge, to be proved guilty beyond a reasonable doubt, to confront the witnesses against him/her, to present evidence on his/her own behalf, to use the subpoena power of the Court, to have an attorney, and if indigent, to have an appointed attorney, and is advised of a trial in his/her absence."

A handwritten note on the form stated, "D advised Re: Representing himself."

¶ 5 No transcript or recording was made of the proceedings on June 15, 2020. According to the affidavit of Vicki L. Cohen, "Official Court Reporter/Supervisor" for Kendall County:

"1. [T]he transcript of June 15, 2020[,] in the above case was ordered by the Appellate Defender's Office for the appeal in the above matter.

* * *

4. June 15th, 2020[,] was a Monday. The proceedings for the above case on that date were held in the morning at the Yorkville High School. There was no court reporter present at the Yorkville High School during that period of time, nor was there a recording made at the Yorkville High School during that period of time."

¶ 6 On July 20, 2020, defendant appeared and requested time to hire an attorney. The following colloquy transpired:

"THE COURT: People versus Quinton McKee, 20 TR 1712, 20 TR 1713, and 20 TR 1714.

So, sir, I was told now you want to hire your own attorney; is that correct?

THE DEFENDANT: Yes, ma'am, correct.

THE COURT: Okay. Are you currently working?

THE DEFENDANT: Unemployed right now.

THE COURT: Okay. Do you have the funds to hire an attorney?

THE DEFENDANT: Yes.

THE COURT: Okay. So because this is the first time in court, it looks like this was a mail-in requesting?

MS. CUSACK [(ASSISTANT STATE'S ATTORNEY)]: No. He was present in court.

THE COURT: Okay.

MS. CUSACK: It was while [Y]our Honor was out. It was Judge McAdams.

THE COURT: Okay. So, sir, I am going to give you 30 days to hire an attorney, and we're going to set this for a status date. Okay?

I'm not going to reset it for a bench trial until you get your attorney in here.

So let's continue this to, how about August 24th?

THE DEFENDANT: Yes."

¶ 7 On August 20, 2020—four days before the next scheduled court date—defendant appeared before the trial court. When the court asked him if he had hired an attorney, he said, "No. I'm just going to represent myself." The following colloquy ensued:

"THE COURT: Okay. So you are charged with obstructing a peace officer. That's a Class A.

You already waived your right and asked for a bench trial on that one?

MR. PHELPS [(ASSISTANT STATE'S ATTORNEY)]: And, [Y]our Honor, I believe that we were actually up for a bench trial when [defendant] indicated he was not ready because he was going to hire an attorney. So we had already been—

THE COURT: Oh.

MR. PHELPS: —here ready for trial.

THE COURT: Okay.

MR. PHELPS: And this has happened before, Judge. So that's the concern with the State right now.

THE COURT: Okay. But *** is it set for bench trial on the 24th?

MR. PHELPS: No. It was set on July 20th. Defendant asked for today's date.

THE COURT: Okay. So, sir, you have a right to have an attorney. You are charged with a Class A misdemeanor. So that means that you could be sentenced up to one year in the Kendall County Jail and a maximum fine of $2,500.

Do you want to see if you qualify for the Public Defender?

THE DEFENDANT: No, I'm okay. THE COURT: No? You don't want to have—you understand that if you represent yourself, then you're at somewhat of a disadvantage, because certainly the prosecutor has gone to law school. They know the rules of evidence, et cetera. And so you'll be held to that same standard if you represent yourself, that you have to know the rules of evidence. Do you understand that?

THE DEFENDANT: I understand.

THE COURT: And you still want to represent yourself?

THE DEFENDANT: Yes, that's fine."

The court then set the bench trial for October 19, 2020.

¶ 8 On October 19, 2020, the parties appeared as scheduled. At the outset, the trial court called all four cases, and defendant indicated that he was ready to proceed to a bench trial. Both parties waived their opening statements. The State called its sole witness, the sheriff's deputy who stopped defendant. In addition to testifying about his observations and interactions with defendant, the deputy also authenticated the squad car video of the incident, which the State introduced. Defendant briefly cross-examined the deputy. Defendant elected to testify; he explained why he did not believe he was speeding, fleeing, or resisting arrest. The court found defendant guilty on all counts and continued the matter for a December 17, 2020, sentencing hearing.

¶ 9 On December 17, 2020, the trial court continued sentencing until February 4, 2021, to allow the State to correct errors in the presentencing investigation report (PSI).

¶ 10 On February 4, 2021, defendant asked for a further continuance to hire counsel. He acknowledged that he was being represented by a public defender in another case. Defendant explained that, although he was short of money, he wanted retained counsel in this case because he was so dissatisfied with that public defender's assistance. After a series of continuances, defendant retained counsel for a May 6, 2021, sentencing date. Further continuances obtained by counsel postponed the sentencing hearing to September 13, 2021. At that hearing, defendant's retained counsel represented him. The court sentenced defendant to 12 months’ probation for obstructing a peace officer and ordered him to perform 100 hours of community service and pay a fine. It imposed fines for the remaining counts.

¶ 11 On September 17, 2021, defendant filed a pro se "motion to reconsider sentence," requesting a new trial. He asserted, among other things, that "there [were] just too many errors in the case and [the PSI]."

¶ 12 On September 23, 2021, defendant appeared pro se for the hearing on his motion. Although defendant did not mention his lack of counsel in his motion, he stated at the motion hearing that he wanted a new trial with counsel so that he would be "represent[ed] *** the right way." The court denied defendant's motion. Defendant timely appealed.

¶ 13 II. ANALYSIS

¶ 14 Defendant contends that his waiver of counsel was invalid because the trial court failed to properly admonish him under Rule 401(a) before allowing him to represent himself at trial.

¶ 15 A. Forfeiture

¶ 16 Defendant acknowledges that he did not preserve this issue for review (see People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) ) but asks us to consider it under the plain-error doctrine.¹ We may review forfeited issues under the plain-error doctrine when

"(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." (Internal quotation marks omitted.) People v. Thompson , 238 Ill. 2d 598, 613, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010).

¶ 17 "Deprivation of the sixth amendment right to counsel is a classic area of plain-error review."...