People v. Bingham
| Decision Date | 12 April 2006 |
| Docket Number | No. 4-04-0614.,4-04-0614. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George P. BINGHAM, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas (Court-appointed), Gary R. Peterson, Assistant Defender, Office of State Appellate Defender, Springfield, for George Bingham.
Julia Rietz, State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Perry L. Miller, Staff Attorney, Springfield, for the People.
In April 2004, a jury convicted defendant, George P. Bingham, of aggravated fleeing or attempting to elude a police officer (625 ILCS 5/11-204.1 (West 2002)) and driving while his driver's license was revoked (625 ILCS 5/6-303 (West 2002)). The trial court sentenced defendant to a 6-year term of imprisonment on the aggravated-fleeing conviction and a concurrent term of 364 days on the driving-while-license-revoked conviction. Defendant appeals, contending he was denied his right to counsel of choice. We reverse and remand.
On January 14, 2004, defendant was charged with aggravated fleeing or attempting to elude a police officer and driving while his driver's license was revoked. On January 27, 2004, an assistant public defender was appointed to represent defendant. When the cause was called for trial on April 13, 2004, the following colloquy took place:
"THE COURT: Appearance of the [d]efendant personally, and by counsel, Mr. Appleman.
Cause called for jury trial.
Both sides ready for trial?
MR. HARRIS [(assistant State's Attorney)]: Yes, Judge.
MR. APPLEMAN [(defense counsel)]: Your Honor, my client has asked me to make a motion to continue this case. He is, in fact, represented by out-of-town counsel. I believe the name is Earl Washington, on other cases, and he is hoping to be represented by Mr. Washington on this case as well. So, I will make a motion to continue on that basis.
Mr. Appleman is correct, the [d]efendant has other matters pending. He has [an] unresolved delivery-of-controlled-substance case. He has two unresolved petitions to revoke probation.
Despite my best efforts to bring Mr. Washington to the table either for purposes of trial as to the unresolved case or to hearing on the petitions to revoke, Mr. Washington's always had something else to do.
State is ready for trial.
I did get a palm message late yesterday afternoon from Mr. Washington. I've had offers out on the other cases for six months. [The] State is most anxious to proceed in this matter.
THE COURT: Given the representations I've heard, the motion to continue is denied."
After proceeding to trial, the jury found defendant guilty on both charges and the court sentenced defendant as stated. This appeal followed.
On appeal, defendant contends the trial court abused its discretion by denying his request for a continuance to substitute private counsel. Defendant argues nothing indicates the request was made for dilatory purposes and the court erred by failing to conduct an inquiry into the circumstances surrounding the request. The State contends the court did not need to make any additional inquiry because the necessary facts were before the court. The State also argues the conviction should not be reversed because defendant has not established he was prejudiced by the trial court's denial of the motion for a continuance. We reverse, finding the trial court violated defendant's right to choice of counsel by erroneously denying defendant's motion for continuance to substitute counsel without conducting an adequate inquiry into the request.
Defendant has a constitutional right to the assistance of counsel (), which includes the right to counsel of his choosing (People v. Friedman, 79 Ill.2d 341, 349, 38 Ill.Dec. 141, 403 N.E.2d 229, 234 (1980)). However, this right is not absolute, and a defendant may not use this right to "thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime." People v. Solomon, 24 Ill.2d 586, 590, 182 N.E.2d 736, 739 (1962).
In ruling on a motion to continue to substitute counsel, the trial court must balance defendant's right to choose his counsel against the efficient and effective administration of justice. People v. Childress, 276 Ill.App.3d 402, 410, 212 Ill.Dec. 835, 657 N.E.2d 1180, 1186 (1995). "This balancing, of necessity, requires a review of the diligence shown by the defendant [citation] and an inquiry into the actual request to see if the request is being used merely as a delaying tactic." People v. Washington, 195 Ill.App.3d 520, 525, 142 Ill.Dec. 326, 552 N.E.2d 1067, 1070 (1990). The determination of a motion to continue depends upon the circumstances of each case, and the trial court's denial of a defendant's request for a continuance will not be overturned absent an abuse of discretion. Friedman, 79 Ill.2d at 347-48, 38 Ill.Dec. 141, 403 N.E.2d at 233.
In this case, the trial court erred in denying defendant's motion for a continuance to substitute counsel without further inquiry. While it is unclear whether defendant had already retained Washington in this matter, it is clear Washington represented defendant in several other ongoing criminal matters and defendant wanted Washington to represent him in this cause. The record also indicates Washington contacted the assistant State's Attorney the previous day, although the subject matter of the message is unclear. The record shows the case progressed quickly and had been pending only three months. No prior continuances and no pretrial motions had been filed. The record shows no indication of any prior attempt by defendant to delay the proceedings or that the purpose of the request was dilatory. The trial court should have conducted an inquiry into the circumstances and the purposes of the motion before making its ruling. By denying defendant's motion without conducting such an inquiry, the trial court abused its discretion and violated defendant's sixth-amendment right to counsel of choice.
Having found a violation of defendant's right to counsel of choice, the question arises whether this constitutional violation is subject to per se reversal or a harmless-error or prejudice analysis.
Citing Solomon, 24 Ill.2d 586, 182 N.E.2d 736, the State argues the conviction should not be reversed because defendant has not established he was prejudiced by the trial court's denial of the motion for a continuance.
In Solomon, the defendant requested a religious organization retain an attorney for him and refused to cooperate with his court-appointed counsel. Solomon, 24 Ill.2d at 589, 182 N.E.2d at 738. On the day before trial, approximately two weeks later, appointed counsel filed a motion indicating the organization had not advised him of the status of defendant's request and sought a continuance so defendant could obtain counsel of choice. Solomon, 24 Ill.2d at 589, 182 N.E.2d at 738. The trial court denied the motion and the cause proceeded to trial as scheduled. Solomon, 24 Ill.2d at 589, 182 N.E.2d at 738. Defendant appealed, alleging he was denied his right to a fair trial due to the denial of the continuance and to incompetent representation by his appointed counsel. Solomon, 24 Ill.2d at 588, 182 N.E.2d at 738.
The Solomon court stated "[b]efore a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights." Solomon, 24 Ill.2d at 589-90, 182 N.E.2d at 738. Contrary to the State's assertion, this standard does not apply to denials of motions for continuance to substitute counsel (which implicate the right to counsel of choice) but instead applies to motions for continuance to prepare for trial (which implicate the right to effective assistance of counsel).
Notably, the applicable law from the cases cited by Solomon in setting forth the prejudice requirement involves motions for continuances to prepare for trial or trial preparation in general. See People v. VanNorman, 364 Ill. 28, 29-31, 2 N.E.2d 891, 892-93 (1936) (); Holt v. United States, 267 F.2d 497, 498-99 (8th Cir.1959) (); United States ex rel. Thompson v. Nierstheimer, 166 F.2d 87, 90 (7th Cir.1948) (); Crono v. United States, 59 F.2d 339, 341 (9th Cir.1932) ().
The Solomon court's analysis further supports a finding the standard applies to motions for continuance to prepare for trial and the corresponding right to effective assistance of counsel. Immediately after setting forth the prejudice standard, the Solomon court addressed the defendant's claim his counsel's performance was deficient. Solomon, 24 Ill.2d at 589-90, 182 N.E.2d at 738. The court found the appointment of counsel two weeks before trial was ample time to prepare a defense and, due to the defendant's refusal to cooperate with appointed counsel, "he [could not] now be heard to complain that the denial of the motion for continuance embarrassed his defense or prejudiced his rights." Solomon, 24 Ill.2d at 590, 182 N.E.2d at 738.
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