No. 1-13-1198 Opinion filed September 20, 2016 Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 09 CR 1885 ) LUTHER WASHINGTON, ) The Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge, presiding. )

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Simon concurred in the judgment and opinion.

OPINION

¶1 Defendant Luther Washington, who represented himself at his jury trial, was convicted of

murder with a firearm enhancement. At his sentencing hearing, Washington again represented

himself. The sentencing court imposed a term of 30 years’ incarceration for murder with an

additional consecutive 60-year term for the firearm enhancement. This court granted

Washington’s motion to file a late notice of appeal.

¶2 Washington argues he was not properly admonished regarding his right to counsel as

required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), both before trial and later 1-13-1198

when he elected to proceed pro se for sentencing. Washington also argues he was not fit for trial

and the trial court should have ordered a second fitness hearing. The State responds that

Washington was found fit for trial at his first evaluation hearing and the trial court was not

obligated to sua sponte order another fitness hearing. And, the State asserts Washington was

properly admonished regarding his right to counsel before trial. The State agrees with

Washington, however, that he was not properly admonished when he elected again to proceed pro

se for sentencing, and this court should remand for a new sentencing hearing.

¶3 We affirm Washington’s convictions but remand for a new sentencing hearing. The trial

court properly admonished Washington before trial when he discharged his attorney and

proceeded pro se. The trial court appointed a new assistant public defender to represent

Washington on posttrial motions, but Washington discharged him. We find the requirements of

Rule 401(a) were substantially met and Washington knowingly and intelligently waived his right

to an attorney at trial. In addition, the record supports the trial court’s finding that Washington

was fit for trial. But, we reverse and remand for resentencing as the “continuing waiver” rule did

not apply. Washington requested and received posttrial counsel, and the trial court did not

substantially comply with the requirements of Rule 401(a) before accepting Washington’s waiver

of his right to counsel for the sentencing hearing.

¶4 BACKGROUND

¶5 On the night of September 13, 2008, Garfield Rogers was found facedown in an alley

behind his house with a gunshot wound to the head. Earlier that day, Rogers and Washington

visited Debra Lewis and her children at her home. Lewis, a relative of Washington’s, had known

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Rogers for 35 years. After spending the day at Lewis’s home, Rogers and Washington left late in

the evening in Washington’s car.

¶6 Three months later, Washington was arrested in an abandoned building. When arrested he

was carrying the gun that forensics later determined killed Rogers.

¶7 Between February 2009 and April 2011, the office of the public defender represented

Washington. In October 2010, the trial court sua sponte ordered two psychiatric evaluations after

Washington’s assistant public defender informed the court that Washington questioned whether

Rogers’ death resulted from a shooting. After the two evaluators reached opposite conclusions,

the trial court held a fitness hearing on January 14 and March 9, 2011. Washington’s attorney

stated for the record that Washington believed he was fit for trial and opposed any finding of

unfitness.

¶8 At the hearing, Dr. Susan Messina, licensed clinical psychologist at forensic clinical

services for the State, testified she evaluated Washington on two separate occasions in October

and November 2010. She diagnosed Washington with “persecutory type delusional disorder” but

stated that Washington understood the charges against him and the role of each participant in the

trial. She opined, however, that he was unfit to stand trial.

¶9 Dr. Nishad Nadkarni, staff psychiatrist, evaluated Washington on December 22, 2010. At

the time, Washington was prescribed an antipsychotic medication plus Benadryl for side effects.

Washington self-reported a diagnosis of “paranoid schizophrenia” but denied symptoms of mania

or a major depressive episode. Dr. Nadkarni said Washington “exhibited no psychiatric or

cognitive impairments.” Dr. Nadkarni deemed Washington’s affect and mood stable; thought

process logical; and, in terms of his articulation, at least above average intelligence. Washington

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was well-focused on the task, and based on his criminal history and reports of behavior in Cermak

Health Services, Dr. Nadkarni opined that Washington manifested antisocial personality traits; in

other words, he was a sociopath.

¶ 10 Dr. Nadkarni considered Washington fit for trial. Washington demonstrated a “strong

understanding” of the charge and a “strong comprehension” of the nature of the proceedings,

correctly identified the roles of various courtroom personnel, and displayed the capacity to assist

counsel in his defense. Washington expressed frustration with his defense counsel but was logical

and rational in reporting his problems communicating with counsel.

¶ 11 On March 9, 2011, the trial court found Washington fit for trial, stating “Mr. Washington

is intelligent, functioning, and does not suffer from any mental health issues that renders him

unfit.” The assistant public defender requested leave to withdraw as counsel, which was denied.

¶ 12 The following month, the trial court sua sponte ordered an additional evaluation for

sanity. On the next court date, in May, Washington asked to proceed pro se but requested the

court “allow me to have standby counsel for technicalities to assist me.” The trial court informed

Washington he was charged with first degree murder, with a sentence “anywhere from a

minimum of 20 years” up to life imprisonment. The trial court also told Washington he had a

right to counsel and an attorney would be appointed if he could not afford one. After more

discussion, Washington requested, and was granted, “one opportunity to speak to [the assistant

public defender] before we finalize it.” The case was passed and recalled. Washington told the

court he “would like to” represent himself.

¶ 13 On June 23, Washington filed a motion for a bill of particulars and a motion requesting

the charging document. He also requested standby counsel. The case was continued twice more.

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On each occasion the trial court stated Washington was present representing himself on a charge

of first degree murder. Washington filed multiple motions at each appearance.

¶ 14 On September 20, Dr. Fidel Echevarria, staff psychiatrist with forensic clinical services,

examined Washington and reviewed his clinical records. Dr. Echevarria opined that Washington

was mentally fit for trial, legally sane at the time of the alleged offense, and understood his

Miranda rights (Miranda v. Arizona,

(1966)). Echevarria’s report noted Washington

identified the charge of first degree murder as a felony and he defined felony to mean, “In my

case, it’s what they call a class M something like 20 to 60 and a little bit more because a gun was

involved, possibly up to life.” On September 30, based on this report, the trial court, without

holding a hearing, found Washington fit for trial.

¶ 15 In October and November, Washington appeared pro se and filed multiple motions each

time. In November, Washington filed two motions, one requesting “assistance to assist in my pro

se defense,” which was denied. Washington then stated he was “receiving a lot of bias” in the

courtroom and was “not getting any assistance.” After a lengthy colloquy, the trial court informed

Washington: “We will try this as a bench or a jury sometime in January. Whatever you choose.”

¶ 16 In January 2012, Washington stated he had “water in [his] ear” at the previous court date

and was unable to hear the rulings on his motions. Washington stated that he wanted to represent

himself but also filed another motion for “assistance,” which the trial court denied.

¶ 17 Five months later, in May 2012, Washington filed pro se a motion for a substitution of

judge for cause. Washington argued his motion before Judge Kazmierski and insisted that he

wanted an attorney for his case saying: “I am not qualified to fight. I want to gather some

evidence and I need someone to help me present it.” Washington then accused the trial judge

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(Judge Slattery Boyle) of not allowing him to subpoena witnesses; he accused the assistant public

defender who had been assigned to his case until April 2011 of conducting “a charade.” Judge

Kazmierski denied the motion and informed Washington that if he could not afford an attorney,

Judge Slattery Boyle would appoint a public defender.

¶ 18 Between November 2011 and June 2012, Washington appeared pro se at 20 court dates

and filed about 100 motions. On August 6, 2012, the trial court denied 12 motions Washington

filed pro se, including a motion to “exhume the victims’ body” and a motion objecting to “being

forced to appear in court every five or ten days as a pro se litigant.”

¶ 19 Trial

¶ 20 Jury selection began on August 14, 2012. Before trial, Washington stated he was not

going to participate but that during the trial he wanted to sit in the back of the courtroom. The

trial court denied his request. Washington refused to answer when asked if he objected to the

State’s motion to sever the armed habitual criminal count and motion to exclude witnesses. The

court then proceeded to voir dire.

¶ 21 Washington introduced himself to the jurors by saying he was not participating in the trial

because he was denied “all” due process and that he was “apparently a schizophrenic and I’m not

entitled to no experts as written in Ake versus Oklahoma [sic].” During the rest of the voir dire

Washington either did not respond to questions asked of him or announced that he was not

participating. Finally he objected “to everything pertaining to this trial.”

¶ 22 Washington’s opening statement consisted of statements that the deputy sheriffs dragged

him into the courtroom because he was protesting participating in the trial, that if the charges

were true he would not have been offered a second degree murder plea, and that he did not have a

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police report saying that Rogers died of a gunshot wound. He again announced he was not

“offered” any due process and was not participating in the trial.

¶ 23 The State presented four witnesses who were present at Lewis’s house on September 13,

2008. Each testified that Washington and Rogers spent the day playing dominoes and visiting.

Rogers left with Washington around 9 p.m. Washington made no objections, and when it was his

turn to cross-examine each witness, he stated he was not participating in the trial. At one point he

stated “you haven’t allowed me a chance to participate—in the adversarial proceedings thus far.”

¶ 24 The State called a friend of Washington’s, William Friday, who answered almost every

question either with the statement “I don’t know” or “I don’t recall.” When the trial court asked

Washington if he had cross-examination, he stated, “Your Honor, I’m not participating in these

proceedings.” The trial court then recessed until the next day, prompting Washington to

comment: “Your honor, for the purposes of the record I object. You’ve not allowed me to have

any of my witnesses. You’ve not given me any due process. These cuffs are tight. My ankles are

bleeding. And I don’t know if I’m going to be able to make it.”

¶ 25 The next morning, when the court reconvened, Washington told the court outside the

presence of the jury that he would not participate in trial and that he “did not ask for a jury trial. I

want the record to reflect that as well.” The trial court responded:

“You indicated your unwillingness. You said you were not going to plead guilty. I am

completely aware of the record and I am going to make the record. For the purpose of this,

you have exerted all of your Constitutional Rights, you have supplied the Court with case

law, you have maintained your fitness. And the Court is of the belief that your behavior is

intentional, you[r] behavior here today is your willingness and your intent to preserve the

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record for purpose[s] of appellate—appeal. And you have the right not to be a participant.

That is completely up to you.

Now, if you would like to be out here and not be disruptive, that’s fine, but if you

would prefer to sit in back and listen via microphone and waive your right to be out here,

that is also your choice. I will leave that up to you.”

Washington then stated, “for purposes of the record, I never asked for a jury trial. And if you have

me on record asking for one, it’s continued obstruction that has been going on all through these

proceedings.”

¶ 26 The State called former Assistant State’s Attorney John McNulty who testified William

Friday had signed a written statement that on September 14, 2008, Washington asked him to keep

in his apartment a bag that contained a gun. Washington told him he was afraid he would be

caught with the gun. Friday refused, but Washington returned two days later and left the bag.

Washington arrived a few days later, took the gun out of the bag, and began loading it. Friday

protested, and Washington then left with the bag and the gun. Washington declined cross-

examination.

¶ 27 An assistant State’s Attorney who conducted the grand jury, the Chicago police officer

who found the body, a homicide detective, and a CTA investigator testified. Washington declined

cross-examination.

¶ 28 After a lunch break, the deputies brought Washington to the courtroom. Washington

stated he was not participating in the trial as there was no Chicago police report “saying there was

a homicide.” While the assistant State’s Attorney opened sealed evidence envelopes, Washington

was lying on the floor of the courtroom. Washington did not look at any of the evidence, stated he

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was not participating, and that he did not ask for a jury trial. He then told the court, “You didn’t

offer me a bench trial.”

¶ 29 Dr. Adrienne Segovia, Cook County assistant medical examiner who conducted the

autopsy on Rogers, identified the bullet and casing that were recovered during the autopsy. When

the assistant State’s Attorney brought them to show Washington, he stated “you know that those

weren’t recovered from his head.” The cause of death was a gunshot wound to the head; the

manner of death was homicide.

¶ 30 The arresting officer and the crime scene technician both testified. The next day, a

subpoena specialist for Washington’s cellphone company, an FBI special agent regarding cell

phone data, and an Illinois State Police forensic specialist specializing in firearms identification

testified. Washington declined to cross-examine.

¶ 31 The State rested. After some discussion outside the presence of the jury, Washington

rested his defense.

¶ 32 The State made its closing argument, and the trial court instructed the jury. After

deliberating approximately 2½ hours, the jury returned a verdict of guilty of murder. The jury

also found that Washington “personally discharged a firearm that proximately caused the death.”

¶ 33 Sentencing Hearing

¶ 34 On September 12, 2012, at the beginning of the sentencing hearing, the trial court

addressed Washington as follows:

“Mr. Washington, sir, you have previously been found guilty. I will admonish you

again. You do have rights, even in the post sentencing case. You have chosen to represent

yourself, which is your right, but at this point, sir, I can appoint an attorney if you cannot

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afford one to represent you in the sentencing phase of this case, and that attorney again

could prepare all motions and/or on your behalf if you so desire. You are entitled to an

attorney. I could appoint a Public Defender if you like. I don’t have to if you want to

continue to represent yourself. Would you like an attorney to be appointed for you, sir?”

Washington requested an attorney to represent him “in this motion for new trial that I have

prepared.” The trial court appointed the public defender and the cause was then continued, with

the trial court telling Washington, “Since you want an attorney, you will get your attorney.”

¶ 35 On the next court date two weeks later, the assistant public defender assigned to the case

was unable to be in court. The following colloquy occurred:

“THE COURT: Mr. Washington, you want a lawyer; correct[?]

THE DEFENDANT: Yes.

THE COURT: All motions that are stricken that are filed on 9-18. As you have a

request for an attorney, there is only one attorney.

THE DEFENDANT: Then I don’t want an attorney. I want to proceed. I want to

proceed on these motion[s] that I filed.

THE COURT: No. Once you have requested one, the game plan is over. You have

requested one. I am going to bring in [the assistant public defender]. Motion Defendant to

next week, October 4, 2012, for attorney. Motion stricken as of 9-18 because he is

requesting an attorney.

THE DEFENDANT: I object. I don’t want no attorney. I object for the purposes of the

attorney.

THE COURT: Overruled.”

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¶ 36 On October 4, the assistant public defender appeared with Washington. When asked,

Washington stated he would “appreciate [assistant public defender] if you can help me with my

motion for a retrial. That’s what I’m asking for.” Washington’s motions filed during the case

were then tendered to the assistant public defender.

¶ 37 With the assistant public defender appearing, the trial court continued the case four times.

In February, Washington filed pro se a motion for cocounsel and a second motion alleging

ineffective assistance of counsel. The trial court asked Washington whether he wanted to

represent himself: “this was done in September. This is a delay tactic by Mr. Washington, either

you withdraw your motion, or you represent yourself, or he represents you.” Washington

answered the trial court’s question regarding proceeding pro se: “For the purposes of the record,

Edwards vs. Indiana—I am the architect of the defense.”

¶ 38 Because Washington did not answer directly, the trial court adjourned for one day. The

next day the assistant public defender appeared and the trial court struck the pro se motions.

Washington objected. The trial court then set a court date “for post-trial motions and sentencing.”

Washington objected. The trial court overruled his objection; Washington said, “Did I tell you I

wanted you to represent me? Did I tell you that I needed you?” Washington then told the court he

was firing the assistant public defender. The trial court stated, “[assistant public defender], you

are now fired. You are no longer representing him,” and set a date for sentencing. Washington

objected, and the trial court overruled his objection. Washington inquired about the motion for a

new trial, and the trial court stated it would be heard on the same date as sentencing.

¶ 39 On March 22, 2013, Washington appeared pro se and filed several motions. When told to

argue his motion for a new trial, he responded: “Your Honor, I’m not qualified to argue the

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motion. I was going to ask for appointment of counsel other than the Public Defender.” The trial

court denied this request, ruled on the motions, denied the motion for a new trial, and proceeded

to sentencing.

¶ 40 The State presented two victim impact statements from Debra Lewis, one of the witnesses

at trial, and from Rogers’ sister. The State also cited in aggravation Washington’s criminal history

of eight prior felony convictions, three of which were gun-related and carried prison terms.

¶ 41 In allocution, Washington stated that the State’s sentence recommendation for the gun

enhancement finding was in error because the State was “going to waive the gun charge” at the

beginning of trial. He also argued (i) there was no police report regarding a cause of death, (ii) the

judge was “working for” someone, and (iii) he was diagnosed as paranoid schizophrenic but was

not “crazy.” In mitigation, Washington stated he had been an “entrepreneur” for “over 30, 40

years” and created jobs with his moving service (Washington was 53 years old at sentencing and

had been incarcerated three different times for a total of 8½ years).

¶ 42 Before imposing sentence, the trial court noted that Washington’s presentation of motions

and how he chose to conduct himself were “strategic in an attempt to impugn or cause error in

this case.” The trial court remarked that, contrary to his assertions regarding running a business

and providing jobs and income for people, Washington “could not have been a productive family

man.” The trial court then sentenced Washington to consecutive terms of 30 years’ incarceration

for murder and 60 years for “proximate cause.”

¶ 43 The Office of the State Appellate Defender was appointed to represent Washington on

appeal.

¶ 44 ANALYSIS

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¶ 45 Washington first argues that the trial court did not substantially comply with Illinois

Supreme Court Rule 401(a) before permitting him to “twice proceed pro se.” Washington did not

raise this issue in his posttrial motion. Errors affecting substantial rights may be addressed on

review even if they were not raised in a posttrial motion. People v. Langley,

(1992). The right to counsel is so fundamental that it should not be “lightly deemed waived.”

People v. Robertson,

(1989). Further, defendant’s substantial rights are

affected during the sentencing stage, and defendant has a constitutional right to counsel.

Therefore, we will address the merits of this issue.

¶ 46 Waiver of Right to Counsel

¶ 47 Generally, a criminal defendant must make an “unequivocal” request to represent himself

or herself. Faretta v. California,

(1975); People v. Baez,

(2011). “Just as the right to counsel is fundamental, the right to represent oneself is of equal

dignity.” People v. Ogurek,

(2005) (citing People v. Simpson,

(2001)).

¶ 48 For a defendant to invoke the right of self-representation, he or she must “knowingly and

intelligently relinquish the right to counsel.” Baez,

. That is the purpose of

Rule 401(a), to ensure a defendant’s waiver is knowing and voluntary. People v. Haynes,

(1996). Before permitting waiver of counsel, Rule 401(a) requires the trial court determine

the defendant understands (1) the nature of the charge; (2) the sentence range, including the

penalty to which the defendant may be subjected due to other convictions; and (3) the right to

counsel and to have counsel appointed due to indigency. Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

Strict, technical compliance with Rule 401(a) is not always required; “[r]ather, substantial

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compliance will be sufficient to effectuate a valid waiver if the record indicates that the waiver

was made knowingly and voluntarily, and the admonishment the defendant received did not

prejudice his [or her] rights.” Haynes,

.

¶ 49 When a defendant expresses a desire to proceed without counsel, the defendant is entitled

to be advised of his or her right to the assistance of counsel, as well as the right to self-

representation. People v. Campbell,

(2006). For an effective waiver of counsel, the

admonishments must be in substantial compliance with Rule 401(a).

(no substantial

compliance where no admonishments made). The admonishments must be provided when the

court learns defendant chooses to waive counsel so that defendant can consider the decision’s

potential ramifications. People v. Langley,

(1992).

¶ 50 On review, the trial court’s decision on a defendant’s election to represent himself or

herself will be reversed only if the court abused its discretion, which occurs when the court’s

ruling is arbitrary and without a logical basis. People v. Hunt,

(new trial ordered where trial court denied defendant his constitutional right to self-

representation). Whether the trial court properly admonished defendant presents a question of law

that we review de novo. People v. Pike,

.

¶ 51 Washington argues that the trial court’s failure to substantially comply with Rule 401(a)

invalidated his waivers of counsel. Our first inquiry is whether substantial compliance occurred or

not. Recently, we found substantial compliance with the rule based on all of the admonitions

given, the discussions between the trial court and the defendant, and even “accepting the claim

that the trial court should have admonished defendant about the possibility of his Class X status.”

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People v Maxey,

(strict compliance with Rule 401(a) not

necessary for pro se defendant at trial and sentencing).

¶ 52 Further, the supreme court has found substantial compliance in multiple cases in which

the defendant was misinformed about the minimum sentence. For example, in People v. Kidd,

(1997), the supreme court found substantial compliance by informing

defendant of the nature of the charges, explaining the maximum sentence was the death penalty,

and advising him of his right to counsel despite incorrect admonishment regarding one of the

charges and the minimum sentence. In Haynes,

, the trial court substantially

complied with the requirements of the rule when it informed the defendant of minimum and

maximum sentences for a murder charge but not for a lesser burglary charge.

. In People

v. Coleman,

(1989), the trial court incorrectly informed the defendant that the

minimum sentence was 20 years, rather than natural life.

. Finally, the supreme court

found no prejudice when the defendant was not informed that the minimum sentence was life but

rather informed that the maximum sentence was the death penalty. People v. Johnson,

(1987).

¶ 53 In May 2011, Washington stated he wished to proceed to trial pro se. The trial court

informed him the charge was first degree murder, with a sentence “anywhere from a minimum of

20 years” up to life imprisonment. The trial court also told Washington he had a right to counsel

and an attorney would be appointed if he could not afford one. After more discussion,

Washington asked for an opportunity to speak to his public defender. The case was passed and

later recalled. Washington then told the court he “would like to” represent himself. Certainly,

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conferencing with his public defender assisted Washington with considering the “ramifications”

of the decision. Langley,

.

¶ 54 Finding substantial compliance, we turn to the effectiveness of Washington’s waiver. A

knowing and intelligent waiver requires “full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Kidd,

. The

waiver of counsel must be clear, unequivocal, and unambiguous. People v. Burton,

(1998). The purpose of requiring a clear and unequivocal waiver is to “(1) prevent the

defendant from appealing [either] the denial of his right to self-representation or the denial of his

right to counsel, and (2) prevent the defendant from manipulating and abusing the system by

going back and forth between his request for counsel and his wish to proceed pro se.” People v.

Mayo,

(2002).

¶ 55 To determine whether defendant’s waiver was clear and unequivocal, a reviewing court

looks to the overall context of the proceedings (Id. at 538-39), including a defendant’s conduct

following the request to represent himself or herself. Burton,

. We consider the

entire record in reaching our conclusion. See People v. Simpson,

(1996)

(direct questioning regarding defendant’s schooling provides one possible means to assess

defendant’s ability to understand nature of right being waived). “The determination of whether

there has been an intelligent waiver of the right to counsel, *** depend[s], in each case, upon the

particular facts and circumstances of that case, including the background, experience, and conduct

of the accused.” Kidd,

.

¶ 56 After almost three years of pretrial proceedings during which Washington was represented

by counsel, the trial court accepted Washington’s waiver of his right to counsel. As the State

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points out, Washington filed pro se over 100 motions. With the trial date approaching,

Washington insisted that he did not have discovery and when the trial court closed discovery,

Washington moved for a substitution of judge, a somewhat sophisticated maneuver, which was

denied. Washington then filed more motions. Jury selection began in August 2012. Washington

announced he was not participating and proceeded to do just that. It is evident that the trial judge

had ample opportunity in the pretrial proceedings to observe Washington and fully assess his

ability to understand the proceedings. The record indicates the Washington was literate, educated,

responsive, oriented, and comprehended what was going on. Washington also had an extensive

criminal history and demonstrated a familiarity with the judicial process. In the words of the trial

judge, Washington “knew what he was doing when he waived his right to counsel and chose to

represent himself.” See People v. Ware,

(2011) (reviewing

court must consider defendant’s conduct “as a whole”).

¶ 57 Pro Se Representation at Sentencing

¶ 58 The State agrees with Washington that he should have been admonished again before

proceeding to sentencing, and therefore, this court should remand for a new sentencing hearing

with proper admonishments. We accept the State’s concession.

¶ 59 Generally, once a defendant makes a valid waiver of counsel, that waiver remains in effect

throughout later stages of the proceedings, including posttrial stages. People v. Baker,

(1982). The “continuing waiver” rule has two exceptions: (1) the defendant later

requests counsel or (2) other circumstances suggest that the waiver is limited to a particular stage

of the proceedings. People v. Cleveland,

(2009) (defendant’s lack of legal

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assistance and his own ineffective advocacy during this stage of proceedings may have

contributed to lengthy sentence).

¶ 60 Circumstances requiring readmonishments before sentencing include lengthy delays

between trial stages or a defendant’s later request for counsel. People v. Simpson,

(1996). In Cleveland, the appellate court considered circumstances almost identical to this

case. There, the defendant waived his right to counsel during pretrial proceedings and was

properly admonished according to Rule 401(a). Cleveland,

. After

defendant was tried and convicted, he requested that counsel be reappointed to assist him in

posttrial proceedings. At the posttrial hearing, the defendant once again waived counsel, and the

trial court allowed him to represent himself without giving any admonishments. We held that

“where a defendant waives counsel, proceeds pro se, requests counsel for a distinct stage of the

proceedings, receives counsel, and then decides to waive counsel again,” the trial court must

readmonish the defendant. (Emphasis in original.)

.

¶ 61 At the beginning of the sentencing hearing, the trial court addressed Washington as quoted

. Washington then requested an attorney to represent him “in this motion for new

trial that I have prepared.” The trial court appointed the public defender and the cause was

continued, with the trial court telling Washington “Since you want an attorney, you will get your

attorney.”

¶ 62 By asking Washington if he wished to have assistance of counsel, the trial court at least

implicitly informed defendant that he had a right to counsel and that the trial court would appoint

counsel if he could not afford one, thus satisfying the third admonishment required by the rule.

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However, as in Cleveland, the trial court did not state either the nature of the charges or the

minimum and maximum penalties, as required. Id. at 709.

¶ 63 The difficulties the trial court faced are evident in the following exchange on the next

court date, two weeks later. The assigned attorney was not present, and Washington responded

“yes” when asked if he wanted a lawyer but immediately changed his mind when the trial court

told him his pro se motions were stricken. The trial court continued the hearing for two weeks to

have the assistant public defender appear. Washington stated: “I object. I don’t want no attorney.

I object for the purposes of the attorney.” On October 4, the assistant public defender appeared

with Washington. When asked, Washington stated he would “appreciate [assistant public

defender] if you can help me with my motion for a retrial. That’s what I’m asking for.”

Washington’s motions filed during the case were then tendered to the assistant public defender.

¶ 64 On November 15 and December 21, 2012, and January 9, 2013, with an assistant public

defender appearing, Washington was granted more continuances. On February 7 Washington

filed pro se a motion for cocounsel and a second motion alleging ineffective assistance of

counsel. The trial court asked Washington whether he wanted to represent himself as follows:

“this [trial] was done in September. This is a delay tactic by Mr. Washington, either you withdraw

your motion, or you represent yourself, or he represents you.” Washington answered the trial

court’s question regarding proceeding pro se with the following: “For the purposes of the record,

Edwards vs. Indiana—I am the architect of the defense.”

¶ 65 At this point, the trial court dismissed Washington’s attorney and set a date for a hearing

on Washington’s motion for a new trial and for sentencing.

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¶ 66 Washington was fully informed and vacillated numerous times; the trial court faced an

extremely formidable task. But Rule 401(a) admonishments must be provided when the court

learns defendant chooses to waive counsel and proceed pro se “so that defendant can consider the

ramifications of such a decision.” People v. Langley,

(1992) (no

admonishments outlined in Rule 401(a) were provided at the sentencing hearing).

¶ 67 At the sentencing hearing, Washington continued to argue his numerous motions while the

trial court repeatedly tried to redirect him to mitigating factors for sentencing purposes. At one

point the court even suggested he talk about his education, family, and personal history.

“Defendant’s insistence on disputing the merits of the charge rather than focusing on the relevant

sentencing issue once again signifies his ineffectiveness.” Cleveland,

.

Finally, Washington stated in mitigation that he was an “entrepreneur” for “over 30, 40 years,”

creating jobs with his moving service, but Washington was 53 years old at sentencing and had

been incarcerated three different times for a total of 8½ years.

¶ 68 Before imposing sentence, the trial court noted that Washington’s presentation of motions

and how he chose to conduct himself were “strategic in an attempt to impugn or cause error in

this case.” While the record supports this assessment, we must conclude that Washington was not

adequately admonished after he decided to dismiss his posttrial attorney. The continuing waiver

rule is voided by a later request for representation. Cleveland,

.

Moreover, the trial court’s admonishment when Washington waived counsel before trial had

occurred almost two years before he pronounced himself “architect” of his own defense. Viewing

the record in its entirety, as we must, under the facts of this case, we find the trial court did not

substantially comply with Rule 401(a). Therefore, we remand for resentencing.

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¶ 69 Fitness to Stand Trial

¶ 70 “Due process bars the prosecution of an unfit defendant.” People v. Brown,

(2010). Illinois law presumes a defendant fit to stand trial or plead and be sentenced.

725 ILCS 5/104-10 (West 2008). A defendant is unfit if, because of a mental or physical

condition, he or she is unable to understand the nature and purpose of the proceedings against him

or her or unable to assist in his or her defense.

To be competent to stand trial, the defendant

must have a rational as well as a factual understanding of the proceedings against him or her.

People v. Weeks,

(2009).

¶ 71 Under section 104-16, a hearing on fitness determines a defendant’s (1) “knowledge and

understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence,

and the functions of the participants in the trial process”; (2) ability to “observe, recollect and

relate occurrences, especially those concerning the incidents alleged, and to communicate with

counsel”; and (3) “social behavior and abilities; orientation as to time and place; recognition of

persons, places and things; and performance of motor processes.” 725 ILCS 5/104-16(b) (West

2008). Based on the evidence before it, the court or jury decides the issue of a defendant’s fitness

to stand trial or to plead. 725 ILCS 5/104-16 (West 2008).

¶ 72 The trial court must order a fitness hearing if a bona fide doubt of the defendant’s fitness is

raised. 725 ILCS 5/104-11(a) (West 2010). The test of a bona fide doubt is objective, examining

whether facts raise a “real, substantial, and legitimate doubt” regarding the defendant’s mental

capacity to meaningfully participate in his or her defense. People v. Eddmonds,

(1991). Whether a bona fide doubt exists is within the discretion of the trial court, which is in

the best position to observe the defendant and evaluate his or her conduct. People v. Tolefree,

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. A trial court abuses its discretion only where no reasonable

person would take the court’s view or where its ruling is arbitrary, fanciful, or unreasonable.

¶ 73 At the fitness hearing, Dr. Messina concluded Washington had “persecutory type

delusional disorder” and opined that he was unfit to stand trial. On the other hand, Dr. Nadkarni

opined that Washington was fit to stand trial despite manifesting antisocial personality traits

indicating he was a sociopath. According to Dr. Nadkarni, during the evaluation Washington

demonstrated a “strong understanding” of the charge and “strong comprehension” of the nature of

the proceedings. Washington correctly identified the roles of various courtroom personnel and,

although frustrated with his public defender, displayed the capacity to assist counsel in his

defense. Dr. Nadkarni believed Washington to be logical and rational in reporting his problems

communicating with her.

¶ 74 After the hearing, the trial court found Washington fit for trial. The “quality of the trial

court’s observation of the defendant” (People v. Schoreck,

(2008))

constitutes a significant factor.

¶ 75 In People v. Hanson,

(2004), the supreme court explained if the trial court

is not convinced that a bona fide doubt of fitness is raised, it has the discretion under section 104-

11(b) to grant the defendant’s request for appointment of an expert to aid in that determination.

; 725 ILCS 5/104-11(b) (West 2000). If, after a fitness examination is completed, the

trial court determines that there is bona fide doubt, then a fitness hearing would be mandatory

under section 104-11(a). Hanson,

. Conversely, if “the trial court finds no bona

fide doubt, no further hearings on the issue of fitness would be necessary.”

In other words,

“[t]he mere act of granting a defendant’s motion for a fitness examination cannot, by itself, be

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construed as a definitive showing that the trial court found a bona fide doubt of defendant’s

fitness.”

. See People v. Gentry,

(2004) (court’s order for

fitness examination does not necessarily imply finding of bona fide doubt).

¶ 76 The trial court must order a fitness hearing if a bona fide doubt of the defendant’s fitness is

raised. 725 ILCS 5/104-11(a) (West 2010). Relevant factors a trial court may consider in

assessing whether a bona fide doubt of fitness exists include (i) a defendant’s irrational behavior,

(ii) demeanor at trial, (iii) prior medical opinions on the defendant’s competence, and (iv) any

representations by defense counsel on the defendant’s competence. Brown,

.

The mere fact that a defendant suffers from mental disturbances or requires psychiatric treatment

does not necessarily raise a bona fide doubt as to fitness because he or she may be competent to

participate at trial even though his or her mind is otherwise unsound. Eddmonds,

.

¶ 77 Almost six months after the fitness hearing, the trial court ordered another behavior

clinical examination because Washington’s defense counsel and the trial court had concerns about

his understanding of the charges. Dr. Echevarria reviewed the clinical records and examined

Washington. Dr. Echevarria proclaimed Washington mentally fit to stand trial, legally sane at the

time of the alleged offense, and cognizant of his Miranda rights. Dr. Echevarria’s report noted

Washington identified the charge of first degree murder as a felony carrying a possible sentence

of 20 to 60 years and “because a gun was involved, possibly up to life.” Based on this report, the

trial court found Washington fit to stand trial. We find no abuse of discretion.

¶ 78 Washington concludes this argument by asking this court to remand his case to the trial

court for a determination of whether he was a “gray area” defendant, i.e., fit to stand trial but not

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fit to represent himself, under the standards established in Indiana v. Edwards,

(2008). But Edwards “did not hold there was a higher standard of competence requiring an

additional inquiry before a trial court permitted a defendant to proceed pro se. Rather, Edwards

simply held that a defendant’s right to self-representation was not absolute ***.” People v. Allen,

(2010). That right could be limited if a defendant was not mentally

competent to proceed pro se, yet was still competent to stand trial represented by counsel.

¶ 79 Edwards concluded that the Constitution “permits judges to take realistic account” of a

defendant’s mental capacities. Edwards,

. Particularly applicable is the Edwards

court’s declaration that “the trial judge, particularly one such as the trial judge in this case, who

presided over one of Edwards’ competency hearings and his two trials, will often prove best able

to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances

of a particular defendant.”

¶ 80 The record does not establish that Washington was delusional or irrational, as he now

asserts. Before the trial began and after the jury reached its verdict, Washington vigorously,

persistently, and concretely argued his case to the trial court when he wanted to. And his refusal

to participate during his jury trial reflects deliberate conduct on his part. We agree with the trial

judge that Washington’s actions were premeditated and purposeful, albeit misguided. With his

vacillating positions, copious pretrial motions, and persistent courtroom chicanery, Washington

sought to obstruct an orderly prosecution. When counsel represented him, Washington adamantly

insisted he did not need the assistant public defender assigned to his case. After “firing” his public

defenders, he requested counsel, and then objected to having counsel. Under these circumstances,

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we agree with the trial court—Washington resolved to delay the proceedings, obscure the issues,

and confound the trial court.

¶ 81 The frequent court dates during the years between Washington’s indictment in February

2009 through his sentencing hearing in September 2012, bespeaks the trial court’s deep

familiarity with Washington’s mental state and competency. Washington asks this court to

substitute its judgment for that of the well-informed and discerning trial court in a discretionary

ruling. Based on the totality of the record, we cannot say that the trial court abused its discretion

in finding Washington fit to stand trial and fit to represent himself.

¶ 82 Affirmed and remanded for resentencing.

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