People v. Moore

• Docket Number: 1-17-2811
• Decision Date: 05 May 2021
• Citation: 2021 IL App (1st) 172811,204 N.E.3d 802,461 Ill.Dec. 466
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Torrez MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 172811

204 N.E.3d 802

461 Ill.Dec. 466

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Torrez MOORE, Defendant-Appellant.

No. 1-17-2811

Appellate Court of Illinois, First District, THIRD DIVISION.

Filed May 5, 2021

James E. Chadd, Patricia Mysza, Drew A. Wallenstein, and Jonathan Krieger, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and Paul Colin Kiefer, Assistant State's Attorneys, of counsel), for the People.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Defendant Torrez Moore was convicted of theft and financial institution fraud stemming from a scheme in which he attempted to obtain title to five homes in Chicago by filing fraudulent documents with the office of the Cook County Recorder of Deeds. Before trial, defendant informed the circuit judge (now retired, and not the judge who tried the case) that he wanted to proceed pro se. But the circuit court never furnished defendant with the admonishments required by Illinois Supreme Court Rule 401 (eff. July 1, 1984) before it accepted defendant's waiver of his right to counsel. And the record shows that there was not substantial compliance with Rule 401. We thus reverse his convictions. We further find, contrary to defendant's claims, that the evidence was sufficient to convict him, and thus there is no double-jeopardy bar to retrial.

¶ 2 I. Rule 401(a)

¶ 3 We first consider defendant's argument that the circuit court failed to admonish him in accordance with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before it accepted his waiver of counsel and allowed him to proceed pro se. We begin with the relevant background information before proceeding to our analysis.

¶ 4 A. Background

¶ 5 In July 2015, a grand jury returned a 21-count indictment against defendant charging him, among other crimes, with two counts of theft of greater than $1 million ( 720 ILCS 5/16-1(a)(1)(A), (b)(6.3) (West 2014)) (Class X felonies), one count of financial institution fraud (id. § 17-10.6(c)(2)) (Class X felony), and three counts of financial criminal enterprise (id. § 17-10.6(h)) (Class 1 felony). See 720 ILCS 5/16-1(a)(1)(A) (West 2014); 720 ILCS 5/17-10.6(c)(2) (West 2014). The gist of the indictment was that defendant, "in furtherance of a single intention and design," attempted to obtain title to five parcels of property in Chicago—10821 South Wood Street, 10929 South Esmond Street, 4200 West Rosemont Avenue, 9022 South Indiana Avenue, and 9148 South Greenwood Avenue—by filing "fraudulent adverse possession documents with the Cook County Recorder of Deeds office.

¶ 6 The sentencing range for a Class X felony is 6 to 30 years’ incarceration. 730 ILCS 5/5-4.5-25(a) (West 2014). A sentence for a Class 1 felony ranges from 4 to 15 years in prison. Id. § 5-4.5-30(a).

¶ 7 Defendant was arraigned on July 28, 2015. At that time, he accepted appointment of the Public Defender of Cook County. Another individual named David Farr, who was charged under a separate indictment, but who was targeted and arrested during the same investigation, appeared at that time as well and was likewise appointed counsel. See People v. Farr , 2020 IL App (1st) 171514-U, ¶ 35.

¶ 8 Defendant next appeared before the court on September 9, 2015. At that hearing, David Farr was once again present as well. Both defendant and Farr were represented by counsel at the September 9 hearing. (As noted earlier, the judge at this hearing later retired, and a different judge presided over the trial.)

¶ 9 During the hearing, the court addressed Farr and defendant separately, beginning with Farr. Farr's attorney informed the court that Farr asked him to withdraw and wished to represent himself. The following colloquy took place between the court, Farr, and the State:

"THE COURT: You choose to represent yourself in this matter.

[FARR]: Yes, sir. Actually, I want to put something on the record as well.

THE COURT: Here let me just do one step at a time.

[FARR]: Yes, sir.

THE COURT: What Class am I dealing with here?

MR. JAKALSKI [(ASSISTANT STATE'S ATTORNEY)]: Class X.

THE COURT: Okay. You're charged with the offense should you be found guilty the minimum is six 6 years, the maximum is 30, and it is not probationable so it's a penitentiary case so I don't know what the facts of the case are, I apologize.

MR. FARR: Yes.

THE COURT: I need to advise that if you represent yourself in these particular matters I would hold you to the same degree as I would hold any attorney that is in front of me representing—

[FARR]: I object to that due to Haines v. Kerns that I am not an attorney and you cannot keep to the same standards of that of an attorney. That is case law as well.

THE COURT: Well, I disagree with that case, and I'm tell [sic ] you I'm following the law of the State of Illinois when I indicate that to you there's no additional advantages to the individual that represents himself in the case.

[FARR]: Okay we'll [sic ] I'm not representing myself pro se , sir. I'm representing myself in propria pur suri juris.

THE COURT: I understand you representing yourself in this. I recognize because I have been doing this a long time. Lots of people have lots of different ideas, and I respect that.

[FARR]: Yes.

* * *

THE COURT: Okay. I need to go through a series of questions with you, are representing yourself once I determine that you can represent yourself.

[FARR]: Yes.

THE COURT: Whatever you choose to do is fine okay. Okay how old are you?

[FARR]: If I answer these questions, am I still putting my [sic ] under a certain type jurisdiction of the court by answering all of your questions?

THE COURT: You are under the jurisdiction of this court.

[FARR]: Is the jurisdiction assumed, sir, or is it by threat, duress, and coercion?

THE COURT: No it's assumed. You are physically in front of me. I have jurisdiction.

[FARR]: But it also is by fact. Jurisdiction has been discovered by threat, duress, and coercion because I am in one of the uniforms of the State in which I do not belong. I belong to the United States, the United States of Republic, which is a different government, and I'm also according to my birth certificate which is authenticated, and which is authenticated in a seat of government that says full faith and credit, sir. That means that my jurisdiction is different from the jurisdiction of this Court, and since my jurisdiction is from a different jurisdiction, the State now has the right to negotiate my affairs, and I have the right to negotiate my affairs the way I see fit. However, those affairs have been violated due to those jurisdictions that I have just spoken of, and those two elements of jurisdiction that this Court have never proven by way of an affidavit those jurisdictions are persona [sic ] jurisdiction subject matter jurisdiction and neither one of those jurisdictions have been proved by what [sic ] signature at all. However, I'm at this point to negotiate the terms of the contract which I've already sent to secretary—not the Secretary of State, but the Attorney General of this State giving them a—an analysis or a violation of fees that they ever should retain for any set reason that was not pertaining to a crime of that nature; however, today, sir—

THE COURT: Let me just interrupt you for a second, please.

[FARR]: Okay go ahead.

THE COURT: It appears that you have done vast research on this case, I will allow you to represent yourself."

¶ 10 Immediately after addressing Farr, the court addressed defendant:

"THE COURT: Okay, Mr. Moore.

THE DEFENDANT: Yes, sir. I have a Motion here that I like to file with the court to withdraw the guilty plea and to terminate the counsel if I may because I need it stamped and filed.

THE COURT: Anything from you?

MR. BROWN [(ASSISTANT PUBLIC DEFENDER)]: Judge, for the record, while I was representing him there was never [a] plea of guilty entered.

THE DEFENDANT: Oh, yeah, it was a not guilty plea entered the last time I was here. I also asked the—

THE COURT: You said guilty plea, I believe you said guilty plea—

THE DEFENDANT: Not guilty, I'm sorry.

THE COURT: Okay.

THE DEFENDANT: Not guilty. Here's a copy of it right here. I also want to add, Judge, that I would like a change of venue to federal court plus I believe that it was civil in nature what I was doing. It was not criminal. I got a Motion for that also, but I believe I need the petition because I needed two affidavits with that petition in order to record it, and I only got one. I may need some copies, but also I want to change it to a federal jurisdiction for the record, Judge. Those two are not the same, are they?

THE COURT: I haven't looked at it yet. Just a second.

THE DEFENDANT: Uh-huh. I also want to let you know, Judge, that I'm waiving the benefit, but if I can have help with counsel or something assistance or standby counsel I'm not waiving that.

THE COURT: Well, I'll indicate there will be no standby counsel appointed in your case. There will be no standby counsel appointed in your case either.

THE DEFENDANT: Okay.

THE COURT: If you choose to go pro se that's the way it is going to be.

THE DEFENDANT: Yes, sir.

THE COURT: Because otherwise you place an attorney, the standby attorney in jeopardy.

THE DEFENDANT: I understand. And I got the affidavit for change of venue.

THE COURT: I just have one copy of this. The question was whether I had two.

THE DEFENDANT: This is for change of venue. You need another one of those.

THE COURT: No. Have you provided the State with a copy of these, if not I'll give them the originals and they will make copies.

THE DEFENDANT: That will be appreciated.

MR. JAKALSKI: Acknowledge receipt.

THE DEFENDANT: I'll also need my Motion to terminate counsel as well.

THE COURT: I've granted the Motion."

¶ 11 B. Analysis

¶ 12 Defendant claims that the admonishments or lack thereof prevented him from validly waiving counsel under Rule 401(a). He did not preserve this issue for appeal, as he failed to raise...