People v. Span

• Citation: 2021 IL App (2d) 180966,185 N.E.3d 311,452 Ill.Dec. 235
• Decision Date: 11 March 2021
• Docket Number: 2-18-0966
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel SPAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (2d) 180966
185 N.E.3d 311
452 Ill.Dec. 235

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Samuel SPAN, Defendant-Appellant.

No. 2-18-0966

Appellate Court of Illinois, Second District.

Opinion filed March 11, 2021
Rehearing denied April 5, 2021

James E. Chadd, Catherine K. Hart, and Gilbert C. Lenz, of State Appellate Defender's Office, of Springfield, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

452 Ill.Dec. 236

¶ 1 Defendant, Samuel Span, appeals the trial court's order dismissing his petition filed under the Post-Conviction Hearing Act (the Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). He contends that the petition made a substantial showing that counsel on direct appeal was ineffective for failing to argue that the trial court failed to comply with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before allowing defendant to represent himself. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with, and convicted of, one count of unlawful delivery of 1 gram or more but less than 15 grams of a controlled substance (cocaine) within 1000 feet of a park ( 720 ILCS 570/407(b)(1) (West 2012)) and one count of unlawful delivery of 1 gram or more but less than 15 grams of cocaine (id. § 401(c)(2)). At defendant's first court appearance, his appointed attorney informed the trial court that defendant wanted to represent himself. Defendant confirmed this and asked whether there was a codefendant and what the charges were. The court responded, "I think these are odd questions to ask me about. Because really the only issue I'm concerned with right now is you representing yourself." The court noted that the case was scheduled for arraignment but that it needed "to deal with this" before proceeding to arraignment.

¶ 4 The court told defendant that he had the right to represent himself or that the court could appoint him a lawyer at no cost. The court then questioned defendant about his age, education, and experience with the legal system. The court admonished defendant that the trial would be governed by technical rules of evidence and procedure, that the State would be represented by an experienced criminal lawyer while defendant would not, that defendant might inadvertently give the prosecution an advantage because of his unfamiliarity with the rules and procedure governing a trial, and that defendant would not receive any special consideration due to his lack of legal expertise. Furthermore, defendant could not complain on appeal about his own ineffectiveness. Defendant repeatedly said that he understood.

¶ 5 Following this exchange, the court said, "I'm going to grant your motion to represent yourself in this matter." The court then handed defendant the indictments and offered to continue the arraignment to allow defendant to review the charges. However, defendant opted to proceed immediately with the arraignment. The court informed defendant of the charges he was facing and the minimum and maximum penalties, including any extended-term sentencing provisions that

185 N.E.3d 313

452 Ill.Dec. 237

might apply. The court also continued to caution defendant about the obstacles he would face in representing himself. At the conclusion of the hearing, defendant pleaded not guilty, and the court continued the case.

¶ 6 Following a jury trial, defendant was convicted of unlawful delivery, and the trial court sentenced him to 15 years’ imprisonment. On direct appeal, the appellate defender's office represented defendant. We rejected his argument that the trial court erred by barring him from challenging the legality of his seizure by police and affirmed his conviction. People v. Span , 2016 IL App (2d) 140394-U, 2016 WL 1222216.

¶ 7 Defendant filed a postconviction petition. The trial court appointed counsel, who filed an amended petition. The amended petition contended, inter alia , that the trial court violated Rule 401(a) when it accepted defendant's waiver of counsel before admonishing him about the charges he faced and that counsel was ineffective for failing to raise this issue on direct appeal. The trial court dismissed the petition, and defendant timely appealed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, defendant contends that his amended petition made a substantial showing that appellate counsel was ineffective for failing to argue that the trial court violated Rule 401(a). That rule provides in part as follows:

"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. R. 401(a) (eff. July 1, 1984).

Substantial compliance with the rule is required for an effective waiver of counsel. People v. Campbell , 224 Ill. 2d 80, 84, 308 Ill.Dec. 730, 862 N.E.2d 933 (2006).

¶ 10 The Act allows a defendant to challenge his conviction or sentence for violations of his constitutional rights. People v. Whitfield , 217 Ill. 2d 177, 183, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005). At the second stage of a postconviction proceeding, which the proceeding below had reached, the defendant bears the burden of making a substantial showing of a constitutional violation. People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006).

¶ 11 Defendant's amended petition asserted that he was deprived of his constitutional right to the effective assistance of counsel when counsel on his direct appeal failed to argue that the trial court violated Rule 401(a). We use the Strickland standard to test the adequacy of appellate counsel. People v. Easley , 192 Ill. 2d 307, 328-29, ...