People v. Mazar

• Decision Date: 06 August 2002
• Docket Number: No. 1-00-3235.,1-00-3235.
• Citation: 775 N.E.2d 135,266 Ill.Dec. 573,333 Ill. App.3d 244
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony Jay MAZAR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

775 N.E.2d 135

333 Ill. App.3d 244

266 Ill.Dec. 573

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony Jay MAZAR, Defendant-Appellant.

No. 1-00-3235.

Appellate Court of Illinois, First District, Second Division.

August 6, 2002.

Nunc Pro Tunc June 28, 2002.

Michael J. Pelletier, Deputy Defender, State Appellate Defender (James K. Leven, panel attorney of State Appellate Defender, of counsel), Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Janet Powers Doyle, Sara E. Bloom, of counsel), Chicago, for Appellee.

Presiding Justice BURKE delivered the opinion of the court:

Defendant Anthony Jay Mazar appeals from the circuit court's sentencing order on his convictions. Following a jury trial, in which defendant appeared pro se, he was convicted of two counts of burglary and one count of aggravated possession of a stolen vehicle. Defendant was subsequently sentenced to 13 years' imprisonment on each conviction, to run concurrently. On appeal, defendant contends that the trial court erred in refusing to appoint standby counsel for him, he was denied his fundamental right to a fair trial because he was forced to proceed to trial in prison clothing, and he was denied due process because the trial court's admonishments with respect to how to preserve issues for appeal misinformed him. We affirm defendant's convictions, but remand this cause with directions that the trial court advise defendant of his appeal rights in conformity with current Supreme Court Rule 605(a) (145 Ill.2d R. 605(a) (as amended October 1, 2001), and to allow defendant to file a motion challenging his sentences.

STATEMENT OF FACTS

Defendant's convictions on two counts of burglary and one count of aggravated possession of a stolen vehicle were based on a series of events that occurred on June 3, 2000. The trial court sentenced defendant to 13 years' imprisonment on each count, to run concurrently. Because defendant does not challenge his convictions, the facts of the offenses and events surrounding his arrest are not set forth in detail. Only those facts pertinent to the issues on appeal are stated below.

Prior to defendant's trial, on July 26, 2000, defendant elected to proceed pro se. The trial court thoroughly admonished defendant with respect to the perils of doing so and specifically stated that it would not appoint standby counsel. Thereafter, defendant was admonished several more times about the perils, but persisted in proceeding pro se. On August 1, at another pretrial hearing, the trial court noted that defendant was dressed in jail clothes. Defendant stated that that was okay. When told that he could be provided with civilian clothing, defendant stated that that was a "nice offer. I accept, if it happens." Again, on August 22, the issue of defendant's clothing arose. At that time, before a different judge, defendant indicated that another judge had advised him that "they" would get him clothes, to which defendant had responded that that was a generous offer and he would accept it if true. The court then requested that the public defender obtain civilian clothing for defendant, which he agreed to do.

On August 24, just prior to commencement of defendant's trial, defendant requested appointment of standby counsel. After indicating the problems inherent with appointment of standby counsel, the court, relying on a United States Supreme Court decision, declined defendant's "eleventh hour" request for appointment of standby counsel. At this time, defendant also objected to the fact that he had to wear prison clothes. Defendant had been provided a blue shirt, a blue shirt coat, and a blue polka dot tie by the public defender's office. However, the public defender did not have pants to fit defendant and he was wearing khaki pants issued by the Department of Corrections. Apparently, the prison markings on the pants were only visible if defendant stood. The trial court indicated that neither it, the State, nor the public defender's office was constitutionally required to supply defendant with civilian clothing. The court suggested that at the lunch break, prior to selection of the jury, that defendant turn his pants inside out. Defendant followed this suggestion and proceeded to trial in this manner.

After defendant was convicted, he filed a motion for a new trial, contending, inter alia, that the jury had been tainted because he was a pro se defendant who had been required to wear "filthy prison garb trousers inside out and flimsy heelless prison shoes," and that the trial court erred in denying his request for standby counsel. Following the parties' arguments, the trial court denied defendant's motion, finding that appointment of standby counsel was not appropriate. With respect to defendant's attire, the trial court noted that the public defender stated that it had no pants to fit defendant. According to the court, defendant had turned the pants inside out and they looked like Dockers, which the trial court did not see as a "problem." Lastly, the trial court stated that it did not think there was "any problem with the jury knowing somebody was in custody," and that defendant was "wearing civilian clothing." This appeal followed.

ANALYSIS

I. Right to Appear Both Pro Se and With Representation of Counsel

A. Constitutional Provision

Defendant first contends that the Illinois Constitution, Article I, section 8, grants a defendant the right to simultaneously appear pro se and with the assistance of counsel. According to defendant, the language of our constitutional provision is clear and unambiguous. Defendant maintains that section 8 is not as limited as the corresponding right in the federal constitution. Defendant further argues that even if the two provisions were the same, we can construe Illinois' constitutional provisions independently as providing more expansive rights. Defendant asserts that this is an issue not previously decided by any Illinois court. Defendant further contends that a harmless error analysis is not applicable here because he was denied a fundamental right. The State has failed to respond to defendant's constitutional argument.

Article I, section 8, of the Illinois Constitution provides:

"In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel." Ill. Const. 1970, art. I, § 8.

Contrary to defendant's argument, the issue of whether a defendant has a right to both appear pro se and with assistance of counsel under section 8 has been addressed by this court. In People v. Guthrie, 60 Ill.App.3d 293, 17 Ill.Dec. 426, 376 N.E.2d 425 (1978), the defendant, on appeal, argued that the trial court's refusal to allow him to proceed both pro se and with counsel violated, inter alia, section 8. Guthrie, 60 Ill.App.3d at 295,17 Ill.Dec. 426,376 N.E.2d 425. The Guthrie court noted that it was making the first ruling by a court of review in the State on whether a criminal defendant "has an absolute right arising from the Federal or State constitutions, the statutes or common law to appear by counsel while at the same time conducting portions of the defense himself." Guthrie, 60 Ill.App.3d at 295,17 Ill.Dec. 426,376 N.E.2d 425. The Guthrie court then observed that the Illinois Supreme Court had previously stated:

"`An accused has either the right to have counsel act for him or the right to act himself. As pointed out in United States v. Mitchell, 2nd Cir. (1943), 137 F.2d 1006, it is obvious that both of those rights cannot be exercised at the same time.'" Guthrie, 60 Ill.App.3d at 296, 17 Ill.Dec. 426, 376 N.E.2d 425, quoting People v. Ephraim, 411 Ill. 118, 122, 103 N.E.2d 363 (1952).

The Guthrie court then concluded that under the federal constitution, there was no right for a defendant to both appear pro se and with the assistance of counsel. Guthrie, 60 Ill.App.3d at 297, 17 Ill.Dec. 426, 376 N.E.2d 425. With respect to Article I, section 8, of Illinois' constitution, the Guthrie court stated:

"Although the Illinois constitutional mandate in regard to personal representation and that by counsel is in the conjunctive, we follow the dictum of Ephraim that neither the State constitution, its statutes nor the common law require a trial court to permit a defendant to proceed both in person and by counsel. * * * We are not persuaded that, even under optimum circumstances, a defendant has any such right." Guthrie, 60 Ill.App.3d at 297, 17 Ill.Dec. 426, 376 N.E.2d 425.

See also People v. Lighthall, 175 Ill.App.3d 700, 704-05, 530 N.E.2d 81, 125 Ill.Dec. 163, 530 N.E.2d 81 (1988) (citing Guthrie for the proposition that a defendant has no right to representation both pro se and by counsel); People v. Page, 152 Ill.App.3d 957, 959, 105 Ill.Dec. 913, 505 N.E.2d 39 (1987) (stating that a defendant has no right, whether federal or state, to combine representation pro se and by counsel, citing Guthrie).

Since Guthrie, the Illinois Supreme Court, although not specifically addressing the issue under the Illinois Constitution, has refused to require "hybrid" representation. See, e.g., People v. Pecoraro, 175 Ill.2d 294, 333, 222 Ill.Dec. 341, 677 N.E.2d 875 (1997)

(holding that denial of the defendant's request to act as co-counsel did not violate his constitutional right of self-representation); People v. Redd, 173 Ill.2d 1, 39, 218 Ill.Dec. 861, 670 N.E.2d 583, (1996) (holding that the trial court did not err in refusing the pro se defendant's request to have standby counsel cross-examine a witness). We believe that Guthrie is well-reasoned and see no reason to depart from its holding. Accordingly, we find that defendant had no right to simultaneous pro se representation and assistance of standby counsel under the Illinois Constitution.

B. Abuse of Discretion

Alternatively, defendant maintains that the trial court abused its discretion in denying his request for appointment of standby counsel because the trial court's...