The People Of The State Of Ill. v. Abernathy, 2-08-0430.

399 Ill.App.3d 420

926 N.E.2d 435

339 Ill.Dec. 203

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Raymond D. ABERNATHY, Defendant-Appellant.

No. 2-08-0430.

Appellate Court of Illinois Second District.

March 31, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas A. Lilien, Deputy Defender (Court-appointed), Kathleen J. Hamill (Court-appointed), Office of the State Appellate Defender, for Raymond D. Abernathy.

Michael J. Waller, Lake County State's Attorney, Lawrence M. Bauer, Deputy Director, Jay Paul Hoffmann, State's Attorneys Appellate Prosecutor, for the People of the State of Illinois.

Justice HUDSON delivered the opinion of the court:

Raymond D. Abernathy appeals from his conviction of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2004)). Alleging that he was indigent, he contends that the trial court denied him his right to counsel when, during posttrial proceedings, it denied his request to discharge his privately retained attorney and appoint a public defender. Because the trial court assumed that Abernathy was able to afford an attorney without conducting an inquiry into his financial circumstances and instead treated the matter as one of choice of counsel, we reverse and remand for further proceedings.

I. BACKGROUND

In October 2005, Abernathy was charged with aggravated battery in connection with a shooting. Abernathy was originally represented by private attorney Gary Payton, but then retained private attorney Michael Fulton. There is nothing in the record indicating that Fulton was appointed to represent Abernathy and, at oral argument, the parties agreed that Fulton was privately retained. The record does not show whether, when, or how Fulton was paid. The parties generally approach the appeal on the assumption that Fulton was paid by Abernathy's family. A jury trial was held and, on July 17, 2007, Abernathy was convicted. At that time, he was 19 years of age.

Abernathy moved for judgment notwithstanding the verdict and for a new trial. Proceedings on the motions were delayed because of negotiations with the State related to an attempted murder charge pending against Abernathy (the second case).

On December 6, 2007, Fulton informed the court that Abernathy wanted to discharge him and hire another attorney. Abernathy stated that he thought Fulton failed to represent him properly and that he did not want Fulton to represent him further. The court stated that Fulton would have to remain on the case until a new attorney was hired, and Abernathy said that he did not know if his family had funds available. Abernathy's mother was present and told the court that she would have to look into whether a new attorney could be hired.

The next hearing was held on January 4, 2008. Fulton did not appear, Abernathy told the court that his family was trying to raise money to hire another attorney, and the case was continued.

On January 11, 2008, the parties appeared in court, but Fulton was not present. The State told the court that Abernathy wanted a public defender appointed. The following colloquy then occurred:

“THE COURT: I have not discharged private counsel Mr. Fulton. He is a capable lawyer. I do not see why I should discharge him in favor of appointing private counsel even though defendant hasn't applied. In the view of-I am not going to when there is funds available-when private counsel was hired I appointed the Public Defender and this way basically spending the public's money for private costs.

Certainly indigent defendants have the right to counsel. But once private counsel has been hired and is capable and willing to represent this defendant, I do not see how I can discharge the private counsel. The Sixth Amendment gives the right to counsel of choice, but you must pay for it, counsel of choice.

MR. HAXALL [Assistant State's Attorney]: Judge, I know the defendant previously indicated he wished to terminate Mr. Fulton's representation. I wonder if the Court would ask the defendant that [ sic ] if he is going to continue with Mr. Fulton or attempt to find alternate private counsel.

THE COURT: What are you going to do?

THE DEFENDANT: I have talked to my family. They doesn't [ sic ] have enough money for another attorney.

THE COURT: I will give you additional time or otherwise the case will proceed with Mr. Fulton as I indicated originally.

THE DEFENDANT: I terminated him because he ain't represent [ sic ] me like he suppose [ sic ] to.

THE COURT: That is your feeling[ ]. I do not know that. I have not conducted a hear [ sic ] with respect to that.

Frankly, that's the attorney you hired yourself. It is your choice or was your choice.

How long do you need to hire your own attorney?

THE DEFENDANT: I have to talk to my family, your Honor. Like I said, they haven't enough money for another attorney.”

Abernathy's father was present and stated that he did not know how much time they needed to seek an attorney. The court said it would keep Fulton on the case, stating: “Just because Mr. Abernathy may have had the disagreement with Mr. Fulton, doesn't mean that Mr. Fulton should be discharged.” The matter was then continued.

On January 15, 2008, a hearing was held with Fulton present. The State informed the court that Abernathy had completed a certificate of assets, which does not appear in the record, and the following colloquy occurred:

“MR. FULTON: What Mr. Abernathy indicated to me is he does not desire me to represent him on the second case. And does not desire me to represent him on the case he was convicted of. He wants to terminate my services immediately.

THE COURT: When I see another attorney taking over then I will allow him to do that. I said that over and over. You are on the case. You did the trial. You are representing him.

MR. FULTON: Okay. That is fine. I was just asking on Mr. Abernathy's behalf that another attorney be allowed to substitute in. The public defender I would imagine.

THE COURT: Well, the public defender will not be available to substitute for a private attorney when a private attorney is on the case and a defendant happens to want to dismiss him on a whim. You provided him with proper and efficient representation. I do not see any way to discharge you. I don't see any issues except for a couple of times that you were delayed or didn't come in. For the trial and everything else your performance appeared to be proper. And he has the ability to pay private counsel.

THE DEFENDANT: I would like to petition your Honor. And I don't have any money for another lawyer right now.

THE COURT: Mr. Fulton is on the case. I do not see any reason whatsoever to discharge Mr. Fulton. As I said just because you didn't like the result-Mr. Fulton is as I said an attorney. He is not a magician.

THE DEFENDANT: I didn't say he was a magician, your Honor.

THE COURT: Well, it appears to me that Mr. Fulton is representing you properly. I wouldn't discharge the public defender under those circumstances, neither would I discharge a private attorney.

* * *

THE DEFENDANT: I am not capable of representing myself. And he is not capable of representing me.

* * *

THE COURT: * * * You have the right to counsel of your choice, but you do not have the right to have the public defender appointed because it happens that you didn't like as I said the result, or for some reason you have a disagreement with Mr. Fulton about a certain thing or another. I don't know if you do. That hasn't been presented to me. And under [two cases] I haven't heard anything to discharge Mr. Fulton. Mr. Fulton, do you have something to say?

MR. FULTON: Well, Judge, I would only indicate that Mr. Abernathy had indicated to me that he had some disagreements with some strategy decisions I made during the course of the trial, different tactics that I used. At this time he said he is not comfortable with me representing him in the future. We had a disagreement, I guess, strategy wise, and we have not been able to come to an agreement in that regard. He feels that the strategies I imposed are not acceptable to him and that is why he wants me off the case.

THE COURT: All right.

THE DEFENDANT: Your Honor, you won't appoint me a public defender?

* * *

THE COURT: No. As I said I do not find any justification to discharge a private attorney who is effective. I cannot find that there is ineffective assistance and appoint the public defender and expend the public's money because you want to discharge or fire counsel of your choice.

THE DEFENDANT: What is the difference between giving me a public defender now and you have to give me one regardless, even if I do get sentenced?

THE COURT: Because you had the ability and demonstrated the ability to hire an attorney, and that attorney has been paid, and he is available to represent you. I cannot say that he was ineffective, sir.”

The trial court stated that Fulton would remain on the case and on the second case. In the second case, there were delays because Abernathy changed his mind about executing a jury waiver and because of plea negotiations with the State. Abernathy also presented inconsistent indications about whether he would stipulate to some of the evidence.

The trial court denied Abernathy's posttrial motions and sentenced him to 16 years' incarceration. The trial court found him indigent for purposes of appeal and appointed the appellate defender. Fulton then asked to withdraw from representation in the second case because of a “complete lack of trust” between himself and Abernathy. Fulton stated that he felt that, for Abernathy to have a fair trial, a public defender must be appointed. Fulton stated that both Abernathy and his family were “absolutely indigent.” The trial court allowed Fulton to withdraw, stating that it had kept Fulton on the case because he was the attorney who started it. Based on Fulton's statements and because Abernathy had been sentenced to incarceration, the court found Abernathy to be indigent and appointed the public defender to represent him in the second case. Abernathy...