People v. Members

2017 IL App (3d) 140811-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY MEMBERS, JR., Defendant-Appellant.

Appeal No. 3-14-0811

APPELLATE COURT OF ILLINOIS THIRD DISTRICT

May 4, 2017

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois,

Circuit No. 13-CF-422

Honorable Cynthia M. Raccuglia, Judge, Presiding.

JUSTICE WRIGHT delivered the judgment of the court.

Justices Lytton and McDade concurred in the judgment.

ORDER

¶ 1 Held: (1) The circuit court erred by denying defendant's request to proceed pro se without addressing his capacity to make an intelligent and knowing waiver of his right to counsel; and (2) the circuit court did not abuse its discretion in sentencing defendant to a term of 35 years' imprisonment.

¶ 2 Defendant, Jimmy Members, Jr., appeals from his convictions for home invasion (720 ILCS 5/19-6(a)(2) (West 2012)) and residential burglary (720 ILCS 5/19-3(a) (West 2012)). He argues the circuit court erred by denying his posttrial request to proceed pro se. Defendant also contends the court abused its discretion in sentencing him to 35 years' imprisonment. We vacate the circuit court's ruling denying defendant's request to proceed pro se and remand for further proceedings consistent with this order.

¶ 3 FACTS

¶ 4 In a two-count indictment, the State alleged defendant entered the home of Virginia Sommerville with the intent to a commit a theft therein and caused injury to Sommerville by binding her hands and feet and placing tape over her mouth. The State subsequently filed notice of its intent to seek extended-term sentencing, as Sommerville was more than 60 years old at the time of the alleged offense.

¶ 5 The evidence at trial established that defendant and Richard Felton entered Sommerville's home in the early morning hours, used rope to tie her to her bed, placed duct tape over her mouth, and stole a number of items.¹ A third man acted as a lookout. Sommerville was 92 years old at the time of the incident. Felton was the ringleader of the group, and it was Felton who physically tied up Sommerville. Multiple witnesses testified that defendant participated in the home invasion. Prior to the home invasion, the three men had purchased rope, zip ties, and duct tape from a store in Joliet. Defendant testified that he did not take part in the home invasion, and denied having any knowledge of it. The jury found defendant guilty on both counts.

¶ 6 Defendant subsequently filed a pro se motion for a new trial. In the pro se motion, defendant made a number of allegations of ineffective assistance of counsel. At the next court date, defense counsel informed the court of defendant's wish to proceed pro se. The court explained to defendant that it is difficult to prevail on a motion for a new trial, and the appellate court would be able to look at the case more objectively. The court continued:

"Now, I tell you that because you've already got the finding of guilty in front of me. And it doesn't seem to make much sense since you have no idea about the aggravating and mitigating factors when it comes to sentencing, or what reason someone would give you a new trial for, or overturn the jury verdict, because you have no knowledge of legal proceedings. And I'm going to go through what you face in a minute at sentencing.

But my initial question is you understanding all of that, why at this stage of the proceeding do you think you know better than [defense counsel]?"

¶ 7 Defendant responded by stating "it's not the point that I think I know more than he does." He explained that he and defense counsel had disagreed with each other throughout the trial process, and had even participated in shouting matches. The court then allowed defendant and defense counsel to make arguments regarding the merits of defendant's pro se motion.

¶ 8 The court clarified that defendant was requesting he be allowed to represent himself not only for the purposes of the posttrial motion, but also for sentencing. At the court's request, the State read the potential sentencing ranges associated with each of the two offenses for which defendant was found guilty. The court then asked defendant if he was prepared to defend himself at sentencing; defendant replied, "Yes, I am." The court continued:

"All of your complaints that I have let you give me have been presented to me, and I find that they are not justified.

***

I am finding that you are not capable at this stage of your proceeding to make a knowing waiver of your right to counsel. And it is that finding, based onwhat I just said, that [defense counsel] is going to continue to represent you both for the Motion For New Trial and the sentencing hearing.

* * *

But I want the record to reflect it's because of that, and what you just said to me today at this stage of the proceedings, you have no clue as to the consequences of you representing yourself at this point.

And because of that, you are incapable of making a knowing waiver. And your allegations against [defense counsel] of ineffective assistance of counsel, which, by the way, I observed his performance, are not justified."

¶ 9 Defense counsel filed another motion for new trial on August 19, 2014. At the hearing on the motion, defense counsel argued, inter alia, the circuit court had erred by not allowing defendant to proceed pro se. The court denied the motion.

¶ 10 Defendant's case proceeded to a full sentencing hearing. The State argued in aggravation that the conduct threatened serious harm, an extended sentence was needed to deter others, and defendant had shown no remorse. The State also emphasized the premeditated nature of the offense, as well as Sommerville's advanced age. The State requested the court sentence defendant to a term of 45 years' imprisonment on the Class X felony of home invasion, and 15 years' imprisonment on the Class 1 felony of residential burglary.

¶ 11 Defense counsel argued the threat of physical harm was inherent in the offense of home invasion. He also argued defendant had very little criminal history, had submitted several letters of support, and had rehabilitative potential. Defendant addressed the court, explaining he was remorseful "from the bottom of [his] heart." He emphasized he had never been in jail before and he had a support system of friends and family.

¶ 12 In imposing sentence, the court expressed it was considering defendant's rehabilitative potential, commenting "rehabilitation is very important to the court." The court did not consider the fact that harm had occurred as an aggravating factor. The court cited defendant's young age and lack of criminal history in mitigation. The court also recognized defendant's extensive support system, as evidenced in the letters he had received.

¶ 13 In aggravation, the court cited the premeditation and planning that went into the offense, as well as defendant's lack of remorse. On that topic, the court concluded: "[W]ithout remorse for unbelievably atrocious acts, rehabilitation cannot be an issue because you cannot rehabilitate someone who shows no remorse or responsibility for their actions." The court sentenced defendant to a term of 35 years' imprisonment for home invasion, to run concurrently with a 15-year sentence for residential burglary.

¶ 14 ANALYSIS

¶ 15 On appeal, defendant argues the circuit court erred by denying his request to proceed pro se after the conclusion of his trial. He maintains the court improperly based that ruling on its opinion that to do so would be unwise, rather than his capability of knowingly and intelligently waiving a right. Defendant also argues the court abused its discretion in sentencing him to a term of 35 years' imprisonment for home invasion.

¶ 16 I. Right to Self-Representation

¶ 17 The constitutions of the United States and the State of Illinois both provide that a criminal defendant has the right to be represented by an attorney. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. The constitutional right to counsel necessarily implies the constitutional right to dispense with counsel and represent oneself. Faretta v. California, 422 U.S. 806, 818 (1975). "Just as the right to counsel is fundamental, the right to represent oneself isof equal dignity." People v. Ogurek, 356 Ill. App. 3d 429, 436 (2005). A defendant's request to proceed pro se must be clear and unequivocal. People v. Baez, 241 Ill. 2d 44, 116 (2011). Further, because a request to proceed pro se is a waiver of the right to counsel, a defendant's request must be knowing and intelligent. See id. at 115-16. The right to self-representation applies at any stage where the correlative right to counsel would apply. See, e.g., People v. Young, 341 Ill. App. 3d 379, 386-87 (2003) (posttrial motions); People v. Meeks, 249 Ill. App. 3d 152, 171-72 (1993) (sentencing).

¶ 18 In order to make a knowing and intelligent waiver of his right to counsel, a defendant must possess "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." People v. Lego, 168 Ill. 2d 561, 564 (1995). Illinois Supreme Court Rule 401 (eff. July 1, 1984) seeks to ensure that a defendant has such an awareness before his waiver is accepted. Specifically, the rule provides:

"The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the

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