People v. Bahrs

• Decision Date: 30 April 2013
• Docket Number: No. 4–11–0903.,4–11–0903.
• Citation: 370 Ill.Dec. 575,988 N.E.2d 773,2013 IL App (4th) 110903
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Shawn BAHRS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 110903

988 N.E.2d 773

370 Ill.Dec. 575

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

v.Shawn BAHRS, Defendant–Appellant.

No. 4–11–0903.

Appellate Court of Illinois, Fourth District.

April 30, 2013.

Michael J. Pelletier, Karen Munoz, Martin J. Ryan, State Appellate Defender's Office, Springfield, for appellant.

Julia Rietz, State's Attorney, Urbana (Patrick Delfino, Robert J. Biderman, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice APPLETON delivered the judgment of the court, with opinion.

[370 Ill.Dec. 576]¶ 1 Defendant, Shawn Bahrs, is serving a total of 33 years' imprisonment for aggravated driving under the influence of alcohol (625 ILCS 5/ 11–501(a)(2), (d)(2)(D) (West 2010)), driving while his driver's license was revoked (625 ILCS 5/6–303(a) (West 2010)), and aggravated fleeing (625 ILCS 5/11–204.1(a)(4) (West 2010)). He appeals from those sentences, and his primary argument is that his waiver of counsel in the sentencing hearing was invalid as a consequence of the trial court's failure to admonish him that one of his prison sentences, the sentence for aggravated fleeing, would run consecutively to the other two sentences rather than concurrently with them. See Ill. S.Ct. R. 401(a)(2) (eff. July 1, 1984). We agree with that argument and thus do not reach defendant's remaining arguments, which have to do with the per diem credit (725 ILCS 5/110–14 (West 2010)) and duplicate fees. Therefore, we reverse the sentences and remand this case with directions to hold a new sentencing hearing, in which defendant will be represented by counsel or, alternatively, unrepresented by counsel if he waives counsel after complete admonitions pursuant to Rule 401(a).

¶ 2 I. BACKGROUND

¶ 3 On July 20, 2011, a jury found defendant guilty of all three charges: aggravated driving under the influence of alcohol (625 ILCS 5/11–501(a)(2), (d)(2)(D) (West 2010)), driving while his driver's license was revoked (625 ILCS 5/6–303(a) (West 2010)), and aggravated fleeing (625 ILCS 5/11–204.1(a)(4) (West 2010)).

¶ 4 Appointed defense counsel filed a motion for acquittal or, in the alternative, for a new trial. Also, defendant personally filed some pro se posttrial motions, including a motion for a new trial, in which he asserted that his defense counsel had provided ineffective assistance.

¶ 5 In a hearing on September 7, 2011, the trial court denied all these posttrial motions, whereupon defendant requested the court to dismiss defense counsel and to appoint a new defense counsel. The court refused to do so. The court told defendant his options were either to be represented further by the current defense counsel or to proceed pro se, without any continuance. The trial court admonished defendant as follows:

“THE COURT: You will receive no extra benefit from being pro se. You will be treated as any lawyer would be treated. You will confine yourself to the way that these proceedings are ordinarily conducted, and there will be no continuance.

Understand, Mr. Bahrs, you were found guilty of three counts. Count I is aggravated driving under the influence. It is a Class 1 DUI because it is your fifth. Because of your prior offenses it is an X which means you will be sentenced to between 6 and 30 years in the Department of Corrections with a 3 year period of mandatory supervised release. The other 2 counts are Class 4 counts because you're charged with an X in Count I. Those counts are subject to 1 to 3 years in the Department of Corrections each with a 1 year period of mandatory supervised release.

If you wish to proceed pro se, that is your right, but I will not continue this sentencing hearing.”

¶ 6 Complaining that his appointed defense counsel was inexperienced and that the services of the public defender's office had actually been detrimental to his case, defendant elected to represent himself in the sentencing hearing. Accordingly, the trial court excused and released the appointed defense counsel.

¶ 7 After the trial court excused defense counsel, defendant told the court:

“MR. BAHRS: At this time, Your Honor, I'd like to request the full discovery.

THE COURT: Sentencing, Mr. Bahrs. Not trial.

MR. BAHRS: To reconsider.

THE COURT: Not discovery.

MR. BAHRS: I'd like to reconsider and file a new motion.

THE COURT: The motions are done, Mr. Bahrs.

MR. BAHRS: Okay. Well I'd like—

THE COURT: I'm taking up sentencing.”

¶ 8 The case entered the sentencing phase. The State presented the presentence investigation report. The trial court asked defendant if he had any evidence in mitigation. Defendant asked what “mitigation” meant, and the court replied it could not give him any legal advice. Defendant said: “No. I have no evidence with me for any mitigation because I didn't know this will turn out like this * * *.”

¶ 9 The prosecutor then made a closing argument, and when it came time for defendant to make his closing argument, he told the trial court he would like to present a character witness, Kristen Douglas. The court allowed him to reopen the evidence, and Douglas testified.

¶ 10 Then, after hearing further arguments, the trial court sentenced defendant to 30 years' imprisonment for aggravated driving under the influence, 3 years' imprisonment for driving while his driver's license was revoked, and 3 years' imprisonment for aggravated fleeing. The court ordered that the prison terms for the first two offenses run concurrently but that the prison term for the third offense, aggravated fleeing, run consecutively to the concurrent prison terms.

¶ 11 II. ANALYSIS

¶ 12 Defendant argues that his waiver of counsel was invalid because the trial court failed to comply fully with Rule 401(a)(2): the court failed to admonish him that the prison term for aggravated fleeing would run consecutively to the concurrent prison terms for the other two offenses. Rule 401(a) provides as follows:

“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. 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 court.” (Emphasis added.) Ill. S.Ct. R. 401(a) (eff. July 1, 1984).

¶ 13 We decide de novo whether the trial court complied with this supreme court rule. See People v. Yusuf, 409 Ill.App.3d 435, 438, 351 Ill.Dec. 39, 949 N.E.2d 1134 (2011); People v. Roberson, 401 Ill.App.3d 758, 763, 340 Ill.Dec. 266, 927 N.E.2d 1277 (2010); People v. Taylor, 345 Ill.App.3d 1064, 1083, 281 Ill.Dec. 490, 804 N.E.2d 116 (2004).

¶ 14 The trial court did not fully comply with subparagraph (2) of Rule 401(a). That subparagraph required the court to inform defendant, and to make sure he understood, “the penalty to which [he might] be subjected because of * * * consecutive sentences.” Ill. S.Ct. R. 401(a)(2) (eff. July 1, 1984). In its admonitions to defendant, the court never mentioned that any of the prison terms would be consecutive, even though the maximum aggregate penalty depended on whether any of the prison terms would be consecutive. If all 3 prison terms had been concurrent, the maximum penalty would have been only 30 years' imprisonment plus mandatory supervised release. If, on the other hand, the prison term for aggravated fleeing had run consecutively to the other 2 prison terms, the maximum penalty would have been 33 years' imprisonment plus mandatory supervised release. The consecutive, as opposed to the concurrent, running of a prison term would make a difference in defendant's exposure. The failure to inform defendant that the prison term for aggravated fleeing would run consecutively to the other two prison terms was a failure to explicitly inform him of the true maximum penalty he faced.

[370 Ill.Dec. 579] ¶ 15 Understating the maximum penalty does not satisfy Rule 401(a)( People v. Koch, 232 Ill.App.3d 923, 927, 174 Ill.Dec. 91, 598 N.E.2d 288 (1992)), except, perhaps, in the unusual case in which the defendant has such a high degree of legal expertise that one may confidently assume he or she already knows the maximum penalty ( People v. Eastland, 257 Ill.App.3d 394, 399, 195 Ill.Dec. 542, 628 N.E.2d 1006 (1993)). Understating the minimum penalty is excusable if the defendant was sentenced to death. “Under very limited circumstances,” in cases in which the death penalty was imposed, the supreme court has found “ ‘substantial compliance’ ” with Rule 401(a) even though the trial court had failed to inform the defendant of the minimum penalty he faced. Koch, 232 Ill.App.3d at 927, 174 Ill.Dec. 91, 598 N.E.2d 288 (citing People v. Coleman, 129 Ill.2d 321, 334, 135 Ill.Dec. 834, 544 N.E.2d 330 (1989), and People v. Johnson, 119 Ill.2d 119, 132, 115 Ill.Dec. 575, 518 N.E.2d 100 (1987)). But we have held that a trial court's admonitions regarding the maximum penalty must be “ accurate” before the court accepts the defendant's waiver of counsel. Koch, 232 Ill.App.3d at 927, 174 Ill.Dec. 91, 598 N.E.2d 288. To be accurate, the admonitions regarding the maximum penalty must be complete, and to be complete, the admonitions must inform the defendant of the consecutive running of any prison term, as the rule requires (Ill.S.Ct. R. 401(a)(2) (eff. July 1, 1984)).

¶ 16 In fact, as defendant reminds us, we specifically held, in People v. Akers, 137 Ill.App.3d 922, 926, 92 Ill.Dec. 305, 484 N.E.2d 1160 (1985), that a failure to admonish the defendant regarding the consecutive running of sentences amounted to a failure to admonish him regarding the...