People v. Toy, 1–07–2969.

• Decision Date: 21 January 2011
• Docket Number: No. 1–07–2969.,1–07–2969.
• Citation: 945 N.E.2d 25,348 Ill.Dec. 718,407 Ill.App.3d 272
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Damen TOY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 272

945 N.E.2d 25

348 Ill.Dec. 718

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Damen TOY, Defendant–Appellant.

No. 1–07–2969.

Appellate Court of Illinois, First District, Sixth Division.

Jan. 21, 2011.

Anita Alvarez, Cook County State's Attorney (Alan J. Spellberg, Mary P. Needham, Sara A. Phillips, Assistant State's Attorney, of counsel), for Plaintiff–Appellant.Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender of Cook County (Jessica Wynne Arizo, Assistant Appellate Defender), for Defendant–Appellant.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

Following a May 2007 jury trial, defendant Damen Toy, who appeared pro se at trial, was convicted of two counts of aggravated criminal sexual assault with a firearm and two counts of attempted armed robbery. Defendant was subsequently sentenced to a 45–year term for one count of aggravated criminal sexual assault and a consecutive term of 30 years for the second count of aggravated criminal sexual assault, as well as two concurrent terms of 10 years for the two counts of attempted armed robbery, for an aggregate term of 75 years' imprisonment.

Defendant appeals, arguing that: (1) his waiver of counsel was not valid because the trial court did not give him oral admonishments about the potential range of sentences; (2) his conviction for attempted armed robbery should be reduced to simple robbery because the State failed to prove that he was armed with a “dangerous weapon”; (3) the State failed to prove that defendant possessed a “firearm” within the meaning of the aggravated criminal sexual assault statute (720 ILCS 5/12–14(a)(8) (West 2004)); and (4) defendant was denied the right to a fair sentencing hearing and the right to counsel because

[348 Ill.Dec. 722 , 945 N.E.2d 29]

the trial court refused to appoint the public defender at the sentencing stage of the proceedings.

In July 2004, defendant was charged with the aggravated criminal sexual assault of B.H. and the attempted armed robbery of B.H. and Paul Watkins–Lash. In August 2004, the public defender was appointed to represent defendant in this case and in other separate pending cases.

On October 25, 2005, defendant's attorney informed the trial court that defendant wished to represent himself. The trial court noted that defendant had “four cases before the Court, three of which are Class X felonies, two of them are aggravated criminal sexual assault allegations with numerous counts, armed robbery, attempted armed robbery, burglary, another separate and distinct armed robbery with an aggravated unlawful restraint.” The court then asked defendant if he understood all the charges pending before the court. The trial court then warned defendant about his decision to represent himself as follows.

“You have a constitutional right to represent yourself.

Before I admonish you as I'm required to do under Illinois Supreme Court rules, I also find it incumbent upon myself to explain to you that if you do decide to represent yourself, you will be required to follow all the rules and procedures that every lawyer who steps into this courtroom must follow. I will not have the opportunity to teach you the law nor explain to you the procedures which also encompass the rules of evidence.

And having said that, it's clear to me that you will be at a distinct disadvantage; so I really wonder out loud why in the world you would want to represent yourself against trained prosecutors who are probably salivating for the opportunity to try the case and get someone who does not know the rules of evidence or courtroom proceeding. They will have a distinct advantage.

The law does provide and our Constitution does provide you the opportunity to represent yourself. That alone doesn't mean that that's an intelligent decision.”

Defendant stated that he was not getting the counsel that he “deserve[d].” Defendant indicated that he had been in jail for 17 months and his attorney did not have a defense for him while the State was “putting a lot of effort in the case.” Defendant's attorney then noted that defendant had new cases that have arisen. In response, defendant said, “I don't understand why Mr. Thomas is speaking before you. He no longer represents me.” The court informed defendant that it would have its clerk make copies of all the charges and the minimum and maximum possible sentences and give defendant the opportunity to read them. The court again advised defendant about the risk of representing himself at trial.

At the next status hearing on October 31, 2005, the trial court asked defendant if he still wished to represent himself and defendant responded that he did. The trial court informed defendant that it was going to give him a copy of four separate indictments and “a typewritten copy of all the possible sentences, each count on each separate indictment, and how they may or may not be consecutive, not only to each other within each separate indictment, but how the sentences could be consecutive to each other, that the separate indictment—separate cases could be consecutive to each other. There's a lot of different possible sentences.”

Defendant continued to assert that he “can't get a lawyer to help defend my

[348 Ill.Dec. 723 , 945 N.E.2d 30]

case.” The trial court continued to warn defendant about representing himself.

“The reason that—the reason why we are giving you all of this is because you want to represent yourself, and that is the reason why you have to receive all the information, and, yes, it is a lot of information to read and to comprehend. That's why I am putting it in writing for you so that you could read it, examine it, and then I will address you in open court and explain to you all the possible penalties and sentences on the indictment on the next short court date.”

The court told defendant to review the indictments and sentences and speak with his attorney before making a final decision.

On November 7, 2005, defendant informed the trial court that he did not want to represent himself. Later, on January 4, 2006, defendant told the trial court he was not happy with his attorney because his attorney had not been to meet with him in jail. Defendant's attorney stated that defendant asked him to ask the prosecutor about an offer for a plea and the prosecutor gave him that offer that day. The trial court explained to defendant his attorney just stated in court that he just received the information. Defendant continued to complain that his attorney had not visited him, despite the trial court's repeated discussion that his attorney did not have the necessary information from the State. The court asked defendant if he wanted to represent himself and defendant said no, he did not. At the next status hearing on January 26, 2006, defendant's attorney informed the trial court that he met with defendant for “about one hundred minutes” and needed to talk to defendant again.

On February 28, 2006, defendant's attorney informed the trial court that defendant asked him to withdraw from defendant's case and for defendant to represent himself. The trial court asked defendant if this was “accurate” and defendant responded in the affirmative. The court checked that defendant had been provided a written explanation of all the charges and sentences and defendant confirmed that he had received it. The prosecutor stated that the possible sentences were “58 years minimum, 202 years maximum” due to consecutive counts and charges. Defendant's attorney also noted that defendant received an offer of 40 years, but he declined the offer. The trial court again told defendant he had the right to a lawyer provided free of charge from the state and asked if defendant wished to terminate that representation and represent himself. Defendant answered, “Yes, I do.” The court then admonished defendant that he would be at a disadvantage because he is not trained in the law and that the court cannot teach defendant about the rules of evidence or act as his lawyer. The court told defendant that he would be treated like the other lawyers and would be presumed to know procedural and substantive rules. After this admonishment, the trial court asked defendant what his decision was and defendant replied, “Your Honor, I choose to represent myself.”

The State then informed the court that it was electing to prosecute defendant on case number 05 CR 16845, an armed robbery charge. That trial occurred in September 2006, and the record indicates that it resulted in a mistrial without prejudice. In September 2006, the State then elected to prosecute defendant under the instant case. The prosecutor asked defendant if he still intended to represent himself, and defendant answered, “Yes, I do.”

At the next status hearing on October 12, 2006, the prosecutor indicated on the record that it was filing “an official notice of the charges and the punishments and possible penalties that can be carried upon

[348 Ill.Dec. 724 , 945 N.E.2d 31]

if there is a conviction based on any of the charges as they currently stand.” The trial court stated that it was a two-page document and defendant would be provided a copy. The court told defendant to “please make sure your read that and review that. If you don't understand anything that's contained in the explanation of all the possible sentences that can result from a conviction of any one of those counts, on the next court date make notes and ask questions.”

At the next court date on November 14, 2006, the case appeared before a new trial judge, who continued on the case and presided over defendant's trial. Defendant presented motions to the court, but did not ask any questions regarding the document he received at the previous hearing concerning the charges and possible sentences. Defendant continued to file numerous pretrial motions before the court. In March 2007, defendant filed a motion seeking the assistance of co...