People v. Morgan

• Docket Number: 4-22-0850
• Decision Date: 01 August 2023
• Citation: 2023 IL App (4th) 220850 U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE L. MORGAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

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2023 IL App (4th) 220850-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE L. MORGAN, Defendant-Appellant.

No. 4-22-0850

Court of Appeals of Illinois, Fourth District

August 1, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Peoria County No. 20DT15 Honorable Sean W. Donahue, Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER

DeARMOND PRESIDING JUSTICE

¶ 1 Held: The appellate court reversed and remanded for a new trial where defendant's waiver of counsel was invalid due to a lack of compliance with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).

¶ 2 In July 2022, a jury found defendant, Andre L. Morgan guilty of two counts of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2) (West 2018)), and three traffic offenses. The citations for the traffic offenses do not appear in the record, but other documents show they were for improper lane usage, disregarding a traffic control light, and operating an uninsured motor vehicle.

¶ 3 Defendant appeals, arguing the trial court erred by allowing him to waive his fundamental right to counsel without providing the admonishments required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). We reverse and remand for a new trial.

¶ 4 I. BACKGROUND

¶ 5 Defendant was arrested on December 22, 2019, after he was observed driving in the center of the roadway and crossing the center line. A subsequent breath test revealed defendant had a blood-alcohol content of 0.208. On January 7, 2022, defendant appeared pro se in the trial court. The court noted the State had indicated it was not waiving the possibility of a jail sentence and asked defendant, "Do you think you're going to hire private counsel or are you asking for the appointment of the public defender?" Defendant replied, "At this point, I'll probably hire one." During the process, defendant asked, "What am I-is this the arraignment today? What is today?" The court told defendant, "[B]asically it's an arraignment with an opportunity for you to tell me I want time to go speak with an attorney or I'm asking for you to appoint the public defender."

¶ 6 The trial court told defendant he was charged with "DUI and DUI BAC over .08," and "[t]hose are Class A misdemeanors punishable by up to a year in jail on the high end. Court supervision on the low end." During the hearing, the court noted the proceedings would include the companion traffic citations, but it did not have those at that time, even though they "should have all been together." After defendant described the citations, the court stated "it sounds like" two of them were petty offenses punishable by a fine. Defendant showed the court his original citations, and a clerk took them to make copies, but there was no further discussion of the charges or the potential punishment associated with them. The court continued the matter for defendant to hire private counsel.

¶ 7 On February 28, 2020, defendant appeared, and the following colloquy occurred:

"THE COURT: [L]ast time you were here, you had indicated you were going to hire counsel?

[DEFENDANT]: No, I didn't need counsel, is what I said. I spoke with-I have a lawyer friend, so I'm not bringing in any counsel. I know how I want to handle the situation. I didn't know what the State was offering or anything like that.

THE COURT: So you want to talk to the State as a self-represented litigant?

[DEFENDANT]: Pretty much, yeah.

THE COURT: Okay. Grab a seat in the front row. [The assistant state's attorney] will talk to you shortly, okay?"

After defendant spoke with the assistant state's attorney, the court continued the matter until April 3, 2020. The court provided no admonishments under rule 401(a).

¶ 8 The record does not contain transcripts of court proceedings between February 29, 2020, and January 22, 2021. However, the record shows a notice was mailed to defendant on March 20, 2020, setting the next hearing for June 26, 2020, and, on May 28, 2020, the matter was continued to July 27, 2020, by agreement of the parties. On July 23, 2020, a private attorney entered an appearance. On October 23, 2020, defendant pleaded guilty to a single count of DUI under a negotiated plea agreement. As part of that process, defendant signed a guilty plea form stating he was informed of the nature of the charge against him and the minimum and maximum penalty to which he may be subjected. The form also stated defendant understood he had the right to a lawyer, or the trial court would appoint a lawyer to represent him if he was indigent. The court entered an order with a box checked stating defendant was informed of the minimum and maximum possible penalties, and the consequences thereof, for each charge "in the information," although the record shows defendant was charged by a "citation and complaint." The court imposed fines and fees and sentenced defendant to 18 months of conditional discharge.

¶ 9 On November 10, 2020, defendant sought to withdraw his plea, alleging ineffective assistance of counsel. On January 22, 2021, a hearing was held, and the trial court noted defendant was appearing pro se. The court found it failed to sufficiently admonish defendant of his appeal rights at the time of the plea, and it granted defendant's motion to withdraw the plea. The court asked defendant if he was going to hire counsel, and defendant requested a public defender. Defendant stated he understood his case, but also needed some legal guidance. The court appointed public defender Nick Rochford to represent defendant, who was later replaced by Syed Ahmad.

¶ 10 On May 13, 2022, defendant appeared, and the trial court noted his attorney was not present due to illness. The following colloquy then occurred:

"[DEFENDANT]: And this was a motion to review this morning, right?

THE COURT: Just a review-

[DEFENDANT]: Okay.

THE COURT: -of where we're heading.

[DEFENDANT]: That was one of my issues was with my attorney, and that was one of the things that I was going to do this morning was maybe assume my own defense from him. Mr. Ahmad will not be representing me. He has basically proven to me beyond any reasonable doubt that he does not have my best interest at heart, and I have proof and evidence of that.

THE COURT: Okay. So you're-

[DEFENDANT]: Yeah.

THE COURT: -moving to fire the public defender's office and represent yourself?

[DEFENDANT]: Exactly, at this point.

THE COURT: So what do you want to do? Well, then can we just set it on the trial call?

[DEFENDANT]: I would like to-first of all, I want to put those- those-he removed motions the last time that I was here. And we sat out there and he, as we were going through our little discussion and everything, I noticed that he removed two motions that should not have been removed that I really want you to rule on and basically see the tape and everything else, whichever one they choose to provide. ***.

THE COURT: All right. We'll set it for a hearing. [Defendant] wishes- as a self-represented litigant-wishes to renew his motion to suppress, so I want to set that for a hearing."

After additional discussion about requests for discovery, the court told defendant, "[I]f you have any motions you plan on filing, you need to get those filed. The other motions were withdrawn, so you'll have to figure out how to file your motions and get those in by [the next hearing date]." The court again provided no admonishments under Rule 401(a).

¶ 11 On July 7, 2022, the trial court held a hearing on defendant's motion to suppress, which the court denied. On July 18, 2022, a jury trial was held, during which defendant proceeded on a theory of entrapment as to the traffic citations. Defendant sought to show the arresting officer drove at a high rate of speed without emergency lights activated, causing defendant to also drive unpredictably. Evidence at trial included testimony an officer saw defendant's vehicle cross over the center line and enter an intersection against a red light. Officers detected the odor of alcohol on defendant's breath, and defendant showed various signs of intoxication. Defendant was unable to provide proof of insurance. At the police station defendant took a breath test that registered a 0.208 blood-alcohol content. The jury found defendant guilty on all charges. The court sentenced defendant to 14 days in jail and 24 months of conditional discharge. Throughout the proceedings, defendant never raised issues concerning a lack of admonishments under Rule 401(a).

¶ 12 This appealed followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues the trial court erred by allowing him to waive his fundamental right to counsel without providing the admonishments required by Rule 401(a).

¶ 15 In Illinois, a knowing and intelligent waiver of counsel occurs following substantial compliance with Rule 401(a). People v. Campbell, 224 Ill.2d 80, 87, 862 N.E.2d 933, 935 (2006). Rule 401(a) provides:

"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." Ill. S.Ct.

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