People v. Ogurek

• Decision Date: 30 March 2005
• Docket Number: No. 2-03-0271.,2-03-0271.
• Citation: 292 Ill.Dec. 464,826 N.E.2d 605,356 Ill. App.3d 429
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth L. OGUREK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 605

356 Ill. App.3d 429

292 Ill.Dec. 464

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth L. OGUREK, Defendant-Appellant.

No. 2-03-0271.

Appellate Court of Illinois, Second District.

March 30, 2005.

Rehearing Denied May 4, 2005.

G. Joseph Weller, Deputy Defender, Dev A. Parikh, Office of the State Appellate Defender, Elgin, for Kenneth L. Ogurek.

Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Lawrence M. Bauer, Deputy Director, Judith Z. Kelly, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice GROMETER delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, defendant, Kenneth L. Ogurek, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 2000)). He was sentenced to imprisonment for the term of his natural life. Defendant now appeals, alleging two errors regarding his sixth amendment right to counsel. U.S. Const., amends. VI, XIV. For the reasons that follow, we reject both contentions and affirm.

I. BACKGROUND

On June 15, 2001, the Du Page County Public Defender's office was appointed to represent defendant. At the initial stages of the proceedings, defendant was represented by Harriet Gustafson of that office. Soon thereafter, a disagreement developed between defendant and Gustafson. On October 23, 2001, defendant informed the court that he wished to represent himself, and the public defender's office was given leave to withdraw on defendant's request. Defendant did not receive the admonitions required by Supreme Court Rule 401(a) on that date. 134 Ill.2d R. 401(a). However, two days later, the trial judge had defendant returned to court to receive those admonitions and to ensure that defendant really wished to waive his right to counsel. The trial court questioned defendant extensively regarding his understanding of the role of an attorney in a criminal trial. The admonitions provided by the trial court at this time far exceeded those required by Rule 401(a). Defendant stated that he would like to make his decision as to how to proceed at a hearing that was scheduled to take place a week later; however, he stated that as of then, he was giving up his right to counsel. The trial judge stated that he would again ask defendant regarding his wishes at the next hearing.

Approximately one week later, on October 31, 2001, the court inquired as to whether defendant still wanted to waive his right to counsel. Defendant stated that he wanted a public defender other than Gustafson. The court responded that defendant could not choose appointed counsel. The court then instructed defendant to prepare a motion regarding his desire to have a different public defender, which the court would consider at a subsequent hearing. At a November 15 hearing, the trial court began the proceeding with the statement, "For the record, Mr. Ogurek has elected to represent himself." The subject was not addressed further at this hearing. Defendant did not file the motion for substitution of counsel as invited by the trial court.

The parties convened again on December 12, 2001. At the beginning of the hearing, the trial court stated that "we passed this case from time to time and continued this from time to time so you could make the determination as to whether or not you were going to represent yourself, and you've told me this is what you wish to do, and then I continued it on this last date for status for you to file motions." Defendant replied, "Okay." Defendant then made two motions, including a motion to reduce bond.

On December 17, a hearing was held on defendant's motions. The court queried, "Mr. Ogurek, you are representing yourself, correct?" Defendant answered, "At this time, yeah." Regarding his bond motion, defendant argued that he wanted his bond reduced so that he could hire a private attorney. The motion was denied. On January 9, 2002, a status hearing was held. During this hearing, defendant filed a motion to suppress his confession and a motion for a change of venue. Additionally, on March 6, 2002, defendant moved to dismiss the indictment.

Another hearing was held on March 27, 2002. The State filed motions to dismiss defendant's motions, alleging that he had not followed proper procedure in any of them. The court appointed Ricky Holman as standby counsel to assist defendant in the preparation of his motions and other procedural matters. On May 1, 2002, defendant filed two additional motions.

Following a number of intervening hearings, pretrial hearings were held on August 26, 2002, and August 27, 2002. During these hearings, the trial court granted the State's motion to introduce uncharged acts of sexual abuse allegedly committed by defendant. Defendant withdrew a motion to suppress statements. The court granted a motion by the State to allow certain extrajudicial statements under section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2002)). Additionally, the court rejected defendant's attempt to introduce certain evidence pertaining to the victim's alleged sexual history.

The parties reconvened the next day for trial. Prior to the arrival of the prospective jurors, defendant requested that standby counsel be allowed either to help him or to take over the case. Defendant cited his lack of success over the past two days as the motivation for his request. The trial judge cautioned defendant that if he were to appoint anyone, it would be the public defender, which might mean that Gustafson would be reassigned to the case. The judge asked Holman if he was prepared to try the case, and Holman stated that he was not. The trial court then denied defendant's request to have Holman take over the case. Shortly thereafter, the parties revisited the subject. The court asked defendant whether, knowing it could possibly be Gustafson, defendant wanted counsel to be reappointed. Defendant replied that he did not, because he did not wish Gustafson to represent him. The trial court then ruled that defendant was not seeking the reappointment of counsel; rather, he sought the appointment of counsel of his choice. Noting that a defendant is not entitled to have counsel of his choice appointed, the court again denied defendant's request. Finally, the court inquired as to whether defendant was prepared to represent himself, with Holman acting as standby counsel. Defendant answered affirmatively. The case then proceeded to trial, and defendant was convicted and sentenced to natural-life imprisonment.

II. ANALYSIS

Defendant now appeals, raising two issues related to his right to counsel. U.S. Const., amends. VI, XIV. First, relying primarily on case law from outside of this jurisdiction, he contends that the trial judge had an obligation to conduct an inquiry into the nature of his dissatisfaction with appointed counsel after defendant expressed this dissatisfaction to the court. Second, he argues that, by appointing standby counsel, the trial court revoked his waiver of his right to counsel.

Before proceeding further, we note that defendant acknowledges that neither issue was properly preserved for appellate review. See People v. Enoch, 122 Ill.2d 176, 187-88, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). He requests that we address both as plain error. See People v. Knight, 323 Ill.App.3d 1117, 1125, 257 Ill. Dec. 213, 753 N.E.2d 408 (2001). Plain error review is appropriate where either an alleged error concerns the deprivation of a fundamental right or the evidence in the case is closely balanced. People v. Caruth, 322 Ill.App.3d 226, 228-29, 256 Ill.Dec. 323, 751 N.E.2d 1160 (2001). Defendant correctly asserts that the right to counsel is a fundamental right. See People v. Robertson, 181 Ill.App.3d 760, 763, 130 Ill.Dec. 707, 537 N.E.2d 1036 (1989). Accordingly, we will proceed to the merits of defendant's arguments.

Both arguments raise points of law. The first concerns what the obligation of a trial court is when confronted with a defendant who expresses dissatisfaction with appointed counsel. The second regards the legal effect of the trial court's appointment of standby counsel on defendant's waiver of his right to counsel. Therefore, review is de novo. People v. Johnson, 352 Ill.App.3d 442, 444, 287 Ill.Dec. 669, 816 N.E.2d 636 (2004).

A. The Obligation of the Trial Court

A criminal defendant has the absolute right to the effective assistance of counsel. People v. Hamilton, 195 Ill. App.3d 391, 392, 141 Ill.Dec. 909, 552 N.E.2d 277 (1990). A defendant has the correlative right to employ counsel of his or her own choosing. People v. Crowe, 327 Ill.App.3d 930, 935, 262 Ill.Dec. 57, 764 N.E.2d 1174 (2002). However, an indigent defendant generally does not have the right to select counsel who will be appointed for him or her. People v. Wanke, 303 Ill.App.3d 772, 782, 237 Ill.Dec. 30, 708 N.E.2d 833 (1999); People v. Sylvester, 71 Ill.App.3d 130, 132, 27 Ill.Dec. 537, 389 N.E.2d 601 (1979). Instead, an indigent defendant wishing to have counsel appointed may object to the particular attorney appointed, upon a showing of good cause. People v. Royark, 215 Ill.App.3d 255, 266, 158 Ill.Dec. 818, 574 N.E.2d 1211 (1991). At issue here is the extent of the trial court's obligation to determine whether good cause exists.

We do note that defendant does not seriously argue that his waiver of the right to counsel was invalid. In his second argument, he does briefly point out that "an argument can be made" that he never unequivocally waived his right to counsel. This observation is two sentences long and is largely undeveloped. Any argument regarding this point is therefore waived. Obert v. Saville, 253 Ill.App.3d 677, 682, 191 Ill.Dec. 740, 624 N.E.2d 928 (1993) ("A reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive...