People v. Vernon

• Court: Appellate Court of Illinois
• Writing for the Court: Burke
• Citation: People v. Vernon, 919 N.E.2d 966, 396 Ill. App. 3d 145 (Ill. App. 2009)
• Decision Date: 17 November 2009
• Docket Number: No. 2-07-1134.,2-07-1134.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio M. VERNÓN, Defendant-Appellant.

919 N.E.2d 966

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio M. VERNÓN, Defendant-Appellant.

No. 2-07-1134.

Appellate Court of Illinois, Second District.

November 17, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Linda A. Johnson, Office of State Appellate Defender, Elgin, IL, for Appellant.

Michael J. Waller, Lake County State's Attorney, Waukegan, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Elgin, IL, for Appellee.

Justice BURKE delivered the opinion of the court:

Defendant, Antonio M. Vernón, appeals from his conviction of the misdemeanor offense of unlawful display of martial arts devices on Department of Natural Resources land. See 17 Ill. Adm.Code § 110.170, as amended at 24 Ill. Reg. 12556, eff. August 7, 2000 ("It shall be unlawful for any person, other than authorized peace officers, to display or use on Department-controlled lands * * * martial arts devices"); 17 Ill. Adm.Code § 110.180(a), as amended at 27 Ill. Reg. 8870, eff. May 19, 2003 (a violation of this provision is a Class B misdemeanor); 20 ILCS 835/6(7) (West 2004) (same). He first asserts that the trial court violated Supreme Court Rule 401(a) (134 Ill.2d R. 401(a)) by failing to admonish him of his right to counsel before he represented himself on his motion to dismiss, and that he was thus deprived of his right to counsel at a critical stage of the proceedings. He further asserts that his trial counsel was ineffective for failure to file a posttrial motion asserting that the conviction violated his religious freedom rights. We need not consider that second claim, as we agree that defendant is entitled to a new trial based on the failure of the court to give him Rule 401(a) admonitions. Because the lack of admonitions meant that defendant did not voluntarily waive his statutory right to counsel, and because he lacked counsel at a critical stage of the proceedings, he is entitled to a new trial. We therefore vacate defendant's conviction and remand the matter for a new trial, including proper admonitions if necessary.

On July 9, 2005, defendant received a citation for unlawful display of martial arts devices at Illinois Beach State Park. The citation set the court appearance for August 9, 2005. Defendant used a form on the back of the citation to request a jury trial. A printout dated July 25, 2005, stated: "You have requested a trial by judge. Therefore, the case has been set for trial on Tuesday, the 6th day of September, 2005 at 3:00 P.M. in Courtroom B 430 Lakehurst Rd Waukegan, IL 60085." A later printout said that "due to the request for a continuance," the trial was reset for September 13, 2005. The table of contents in the record describes both of these printouts as "letters." On September 13, 2005, the court entered a judgment placing defendant on supervision. Defendant filed a timely notice of appeal.

In the record for that appeal, defendant included a bystander's report. The report describes what happened on the day of the original trial:

"The case was called at approximately 3:45 and the defendant [pro se] approached the bench along with the prosecution. The defendant was advised of the charges against him and was further advised that his case was set for trial. The defendant was asked if he was prepared for trial. The defendant stated that he was prepared for trial. The defendant requested permission to bring in the martial arts devices in question. The court refused this request out of concern for court safety. The prosecution answered ready for trial. All witnesses whom [sic] intended on testifying were sworn and the trial commenced."

The report then describes the evidence at the trial.

In his pro se appellate brief, defendant contended among other things that, because he had never validly waived his right to a jury trial, he had been deprived of his right to such a trial. He also raised (by his own count) 38 other claims of error, which included challenges to the validity of the regulation. This court, considering the jury-waiver claim under the plain-error rule, held that the record, including the bystander's report, was sufficient to show that defendant did not waive that right either in writing or in open court. It therefore remanded the matter for a new trial. People v. Vernon, No. 2-05-0984 (2006) (unpublished order under Supreme Court Rule 23). Defendant attempted to obtain a supervisory order from the supreme court requiring a ruling on the validity of the regulation, but that court denied it.

On February 21, 2007, in the first event on remand, defendant filed a pro se motion to dismiss the charge "for unconstitutionality." As the motion runs to 12 pages of fine-print text, we take liberties in summarizing it. Defendant asserted that the court should adopt a narrowing construction of the regulation to limit it to projectiles, such as throwing stars. He argued that a broad reading of the regulation, taking "device" in the sense of "a thing made for a particular purpose," would bar display of even the most harmless martial arts gear, such as protective padding and uniform belts. He suggested that, because the regulation classified sports equipment by the sport's region of origin, with "martial arts" being East Asian in origin, it is not rational. He asserted that nunchaku, sais, and bo staffs are not martial arts devices because they originated as agricultural tools. He asserted that martial arts displays are an expressive activity with first amendment protection and that the regulation discriminated against East Asian religious and cultural practices that involve martial arts. He argued that the regulation is inconsistent with Illinois weapons statutes. As a whole, the motion also suggests that the regulation is unreasonably vague.

On February 21 and March 6, 2007, the State responded to the motion, largely limiting its defense of the charge to defendant's display of nunchaku. On March 28, 2007, defendant filed a reply in which he described his activity on the beach as, among other things, "athletic exposition."

The earliest transcripts that are a part of the record on appeal are those of the hearing on defendant's motion to dismiss but nothing in the record positively shows that any hearings took place after the appeal and before that hearing. At the hearing, the trial court ruled, among other things, that, although the regulation was potentially too vague, nunchaku clearly fell within the scope of what it prohibited. The court also ruled that defendant's martial arts performance did not fall within first amendment protections.

On June 13, 2007, two months after it denied defendant's motion, the court entered an order appointing the public defender to represent defendant. However, the record contains no transcript relating to the appointment.

Defendant's trial took place on September 18, 2007. Just before the trial, defendant signed a jury waiver, and the court asked him if it was voluntary. Defendant said that it was.

The State's sole witness was Keith Tepovich, a conservation police officer. He testified that he had received a complaint that caused him and his partner to go to the beach near the concession stand at Illinois Beach State Park. He saw defendant stretching on the beach. Beside him were what Tepovich characterized as martial arts devices. He said that defendant had several sais, several nunchaku, rubber knives, and lengths of chain with tennis balls on the ends. He photographed the equipment and issued defendant a citation. The photographs show four staffs, five shorter sticks, four pairs of nunchaku (one wooden, two metal, and one whose material is not clear), four rubber or plastic knives, two tonfas (or side-handle police batons), two lengths of chain with tennis balls at the ends (defendant called the longer one a "manriki" and the shorter "poi balls," "poi balls" being accessories used in Maori dance), a pair of sais, several lengths of ordinary chain, a bokken (wooden practice katana), a plain wooden cane, and some cases and sheaths.

Defendant testified in support of his qualifications as a martial arts expert. He described the agricultural origins of nunchaku, sais, and bo staffs. He said that, when Tepovich cited him, he was performing as an artist/entertainer. The performance was made up of fixed routines that he intended to be beautiful.

The court found defendant guilty. Defendant moved for a new trial. He asserted, without giving any detail, that the court had erred in denying his motions to dismiss the charge and for a finding at the close of the State's evidence. He also asserted that, given his testimony that his equipment was a collection of implements designed for farming, the State had failed to prove that they were martial arts devices. The court denied the motion, and defendant timely appealed.

On appeal, defendant asserts that the record fails to show that the trial court admonished him of his right to counsel under Rule 401(a). Defendant's argument goes further, implying that, because the court failed to inform him of his right to counsel before the hearing on the motion to dismiss, he could not validly waive that right, and thus was improperly deprived of counsel. He further asserts that trial counsel was ineffective for failing to argue that the regulation denied defendant his right to free exercise of religion under the Illinois Constitution and the Religious Freedom Restoration Act (775 ILCS 35/1 et seq. (West 2004)).

The State asserts that defendant forfeited his deprivation-of-counsel claim by failing to raise it in the original appeal. It also asserts that the record is insufficient to show that the court did not give the required admonitions before defendant's first trial.

We begin with two related issues. First, defendant concedes that he did not raise his Rule 401(a) and denial-of-counsel claim in his posttrial motion, but he asserts that this court should...