People v. Orr, 012221 ILCA1, 1-18-0489

Docket Nº:1-18-0489
Opinion Judge:ODEN JOHNSON JUSTICE
Party Name:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK ORR, Defendant-Appellant.
Judge Panel:JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Connors concurred in the judgment.
Case Date:January 22, 2021
Court:Court of Appeals of Illinois, First District

2021 IL App (1st) 180489-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

DERRICK ORR, Defendant-Appellant.

No. 1-18-0489

Court of Appeals of Illinois, First District, Sixth Division

January 22, 2021

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 Cook County. No. 16 CR 10918 Honorable James Karahalios, Judge, presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva and Justice Connors concurred in the judgment.

ORDER

ODEN JOHNSON JUSTICE

¶ 1 Held: We reverse and remand defendant's conviction for aggravated battery and retail theft because the trial court abused its discretion when it denied defendant's request for a continuance, for the purpose of retaining new counsel, without making a sufficient inquiry.

¶ 2 Following a jury trial, Derrick Orr was found guilty of aggravated battery (720 ILCS 5/12-3.05(d)(4) (West 2016)) and retail theft (720 ILCS 5/16-25(a)(1) (West 2016)) and was sentenced to consecutive sentences of five years and three years, respectively. On appeal, defendant contends the trial court: (1) denied defendant his constitutional right to his choice of counsel; (2) denied defendant a fair hearing on his post-trial motions; and (3) sentenced defendant to consecutive sentences for offenses that were part of the same transaction when consecutive sentencing was not necessary to protect the public.

¶ 3 BACKGROUND

¶ 4 The issues before this court do not relate to the sufficiency of the evidence, therefore we recite only those facts necessary to our disposition.

¶ 5 Defendant was charged by indictment with three counts of aggravated battery (720 ILCS 5/12-3.05 (d)(4) (West 2016)) and one count of retail theft (720 ILCS 5/16-25(a)(1) (West 2016)). On August 3, 2016, the trial court appointed a public defender to represent defendant. After noting that defendant posted a $45, 000-D bond, the trial court informed defendant that he did not qualify for a public defender. Instead, the trial court informed defendant that a bar association attorney would be appointed, although none were available at that time. It was at this point, that defendant first requested to retain an attorney of his own choosing. Thus, the matter was continued for defendant to retain a private attorney.

¶ 6 On September 8, 2016, the trial court asked defendant if he was able to retain a private attorney. Defendant stated that he retained John Kirkwood, who was unable to make that court date because he had to attend court at another location. Defendant relayed to the trial court that Attorney Kirkwood was seeking a "long date" to appear. The trial court noted that defendant already had a month to retain a private attorney, so he decided to continue the proceedings for status on the filing of an answer and pretrial motions. The continuance date of October 11, 2016 was based on the public defender's availability.

¶7 On October 11, 2016, Orlando Gonzalez (Attorney Gonzalez) appeared as defendant's counsel from the firm Bryant Gomez and Associates (Gomez Firm). Discovery was previously completed, and Attorney Gonzalez acknowledged receipt of all discovery from the public defender. Nothing was prepared to be tendered to the court by either the public defender or Attorney Gonzalez. Attorney Gonzalez sought a status date so that she would have time to review the evidence. The trial court denied the request and set a continuance date for October 31, 2016, for defendant's answer and pretrial motions.

¶ 8 On October 31, 2016, Attorney Gonzalez filed an answer to the State's pretrial motion. Attorney Gonzalez sought additional discovery from the State, regarding surveillance of inside the Target store, which was not provided. Attorney Gonzalez informed the trial court that the videos that were tendered were only of the outside of the Target store. The State sought a continuance to see if videos of the inside of the store existed. The matter was continued to November 21, 2016, for discovery status regarding videos of the inside of the Target store.

¶9 On November 21, 2016, Attorney Gonzalez acknowledged receipt of additional video evidence tendered by the State. He informed the trial court that defendant was receiving a mental health evaluation in early January. The trial court asked Attorney Gonzalez to pick a continuance date, and Attorney Gonzalez selected January 23, 2017.

¶ 10 On January 23, 2017, Cinthya Lee (Attorney Lee) appeared on behalf of defendant. Attorney Lee informed the trial court that the video evidence tendered on the last court date from the State was duplicative of the evidence previously tendered. No other videos were available, according to her conversations with the State, therefore, discovery was complete. Additionally, Attorney Lee informed the trial court that defendant was scheduled to have a mental health evaluation after that court date. The mental health evaluation was ordered in relation to a separate unrelated criminal matter that defendant had pending in DuPage County. The court continued the case to March 2, 2017, for status regarding discovery.

¶ 11 On March 2, 2017, Attorney Gonzalez appeared and informed the court that defendant requested a 402 conference. Before admonishing defendant, the trial court asked if there was an issue as to competency. Attorney Gonzalez stated there were no issues as to competency. The trial court admonished defendant, and the 402 conference was held. Afterwards, Attorney Gonzalez told defendant the trial court's recommendation. Attorney Gonzalez stated defendant wanted some time to "talk to his dad about - and settle some affairs, also talk to his therapist at Mercy Hospital, but, most importantly, talk to his attorney in DuPage." The trial court asked Attorney Gonzalez how much time he would need. Attorney Gonzalez sought the date of April 6, 2017, since defendant had a court date in DuPage County in the middle of March. The trial court denied the continuance request and said he would prefer to continue the matter to March 30, 2017.

¶ 12 On March 30, 2017, Bryant Gomez (Attorney Gomez) appeared on behalf of defendant and sought leave to withdraw as counsel for defendant. The trial court noted the case would have to go back to a public defender if this happened. Attorney Gomez informed the trial court that defendant was in the process of retaining new counsel. Attorney Gomez stated that defendant was seeking the help of his father to retain new counsel and he was out of town, "for a few days, a week."

¶ 13 The trial court noted that the case at that time had already been conferenced, an offer was extended, and the case was scheduled for either a plea or setting trial. It found there was no reason to allow counsel to withdraw when they were on "the eve of disposing of this case whether it's a plea or its's a trial." At that point, Attorney Gomez sought an additional continuance. The trial court confirmed with the defendant that the offer was rejected and proceeded to set the proceedings for trial. Defendant attempted to speak to the trial court and was told to speak through his lawyer. Defendant responded that his attorney just withdrew. The trial court stated he did not withdraw because he did not allow him to. Defendant stated that he found his attorney ineffective and did not want him to take the matter to trial. The trial court stated, "you're free to replace him any time you wish, sir." The trial court set a continuance date for April 24, 2017 for the remaining pretrial motions. He anticipated selecting a jury and conducting a trial from April 25 to April 26, 2017.

¶ 14 Attorney Gomez reiterated to the trial court that he believed his client was seeking to terminate his services, but he would nevertheless be available on the scheduled court date. The trial court responded by stating, " THE COURT: Well, he's facing trial in less than a month. And he's going to go to trial in less than a month, Mr. Orr, I cannot force you to have an attorney that you don't want. But the alternative is that you either have another attorney who is ready to go to trial on the 24th, or you're going to have to represent yourself. You're not going to get an attorney to come in here and say that he wants to represent you, but he needs a continuance of the case because that's not going to happen. This case is not going to be delayed in that fashion."

¶ 15 Defendant informed the court that he felt he was endangered because he was threatened and promised things. Afterwards, the following exchange occurred: "THE COURT: All right. So, Mr. Orr, here's the thing, you can fire your lawyer if you wish. But I want you to understand what's involved if you do fire your lawyer. And what's involved is that you have a trial date of April the 24th. Today is March the 30th. That's less than a month from now. You have a choice. If you fire this lawyer, you either have to come in with a lawyer who will be ready to go to trial on April the 24th, or you will have to represent yourself at trial on April the 24th.

THE DEFENDANT: I have mental health issues. I'm in no state to represent myself.

THE COURT: Say that again?

THE DEFENDANT: I have mental health issues. I'm in no state to represent myself. But when I've been threatened and promised certain things -

THE COURT: I don't want to hear this at the moment. This is not the issue. You've already stated that. Now, if you don't feel that you can represent yourself, then it would be most unwise, in my opinion, for you to dismiss your lawyer."

¶ 16 Attorney Gomez then informed the court of the mental health evaluation in DuPage County resulted in...

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