No. 1-13-0698 Opinion filed September 13, 2018 Fourth Division

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 07414-01 ) LAMARR MAXEY, ) Honorable ) Noreen V. Love, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Howse concurred in the judgment and opinion. Justice Ellis concurred in part and dissented in part, with opinion.

OPINION

¶1 Pursuant to the supervisory order issued by the Illinois Supreme Court in this case on

November 22, 2017, we vacated our previous opinion and reconsider our decision in light of

People v. Wright,

.

¶2 Following a bench trial, defendant Lamarr Maxey was found guilty of residential

burglary and aggravated fleeing or attempting to elude a peace officer. The trial court

subsequently sentenced defendant to concurrent terms of 20 years for the residential burglary

conviction and 3 years for the aggravated fleeing conviction.

¶3 Defendant appeals, arguing that: (1) defendant’s waiver of counsel was invalid because

the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 401(a) No. 1-13-0698

(eff. July 1, 1984); (2) during the suppression hearing, the trial court erred in allowing the State

to question defendant on irrelevant matters and in excluding relevant evidence; (3) the trial court

did not obtain a knowing and voluntary jury waiver; (4) the State failed to prove the charge of

aggravated fleeing or attempting to elude a peace officer; and (5) the fines and fees order should

be reduced by $24 due to improperly imposed fines and full credit for time in custody awaiting

trial.

¶4 On April 18, 2011, defendant, along with codefendant Shadeed Love, was arrested and

charged with residential burglary of Robert Fjeldheim and his residence at 333 Jackson

Boulevard in Hillside, Illinois. Defendant was also charged with aggravated fleeing or attempting

to elude a peace officer. 1

¶5 Defendant first appeared before Judge Kristyna Ryan on April 19, 2011, and assistant

public defender Thomas Tucker was appointed. The court found probable cause to detain and set

defendant’s bond at $400,000. On April 22, 2011, defendant appeared before Judge Gilbert

Grossi, and was represented by assistant public defender Michael Halloran. Defendant indicated

to the court that he wished to represent himself. The following colloquy then took place.

“DEFENDANT: I’m pro se. The Public Defender’s office is not

representing me.

THE COURT: Who said that?

DEFENDANT: I informed him already. At this time, I would like

to ask for all, any and all —

THE COURT: Let’s slow down here. You’re getting ahead of

yourself. Did you go to law school?

DEFENDANT: I’m very familiar with the law, but I don’t want – 1 Defendant was later charged by indictment with attempted first degree murder and attempted armed robbery.

2 No. 1-13-0698

I’m exercising my constitutional right. I don’t want the Public

Defender’s Office representing me.

THE COURT: Have you been charged with a felony before?

DEFENDANT: Yes, I have.

THE COURT: Well, this is residential burglary, which means you

can to go the penitentiary between four and 15 years.

DEFENDANT: Right. Being advised of that, I’m–I would still like

to exercise my constitutional rights.

THE COURT: Slow down. We are not done yet. Have you ever

represented yourself before?

DEFENDANT: Yes, I have.

THE COURT: And what happened to the case?

DEFENDANT: I had a split verdict.

THE COURT: What was the split verdict?

DEFENDANT: Not guilty of armed robbery and guilty of robbery.

And I recently represented myself in Illinois in front of the judge in

702 in the criminal courts building on a motion.

THE COURT: You understand—you have a right to represent

yourself. There’s no question about that. You understand if you

represent yourself, I’m going to hold you to the same standard as I

would a lawyer?

DEFENDANT: Yes, I do.

THE COURT: That you’re not going to be allowed to have a

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public defender stand by and help you in any fashion whatsoever.

DEFENDANT: Yes, I do, [Y]our Honor.

THE COURT: Okay. Then you can represent yourself.”

¶6 After the trial court allowed defendant to appear pro se, defendant then made the

following oral motion.

“DEFENDANT: Your [H]onor, at this time, I would be requesting

that any 911 calls be saved, any police radio transmissions and

apprehension and stopping of my van, I would be asking that all

those police radio transmissions and any 911 calls made in regards

to a burglary at 33 Jackson [sic]—

THE COURT: Were there any such calls?

POLICE OFFICER: From the victim, [Y]our Honor.

THE COURT: I’ll sign an order preserving—

DEFENDANT: And the radio transmissions too, [Y]our Honor.

THE COURT: Sure. I’ll sign an order to preserve anything

transmitted relating to this case.

DEFENDANT: The calls on the radio transmission.

THE COURT: Sure.”

¶7 The case was then set for the grand jury on May 6, 2011. At that court date, the trial court

informed defendant that he had been indicted by the grand jury. Defendant asked again about the

preservation of radio calls.

“DEFENDANT: Last time I requested [the] 911 [phone] calls and

the police radio transmissions. Can they be preserved?

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THE COURT: Did you file an order? Did you file an order

preserving them?

DEFENDANT: I asked you last time I was here.

THE COURT: No, I have to have a written order. An oral order is

on the record, but I have to have a written record if you want to get

it done. *** Let’s send a blank order for him back there to fill it

out.”

¶8 On May 27, 2011, defendant appeared pro se before Judge Noreen Love for an

arraignment. When the trial court asked who represented defendant, the following discussion

occurred.

“DEFENDANT: I’m pro se at this time, [Y]our Honor.

THE COURT: I’m sure a lawyer was appointed in –

DEFENDANT: No.

THE COURT: No lawyer was ever appointed?

DEFENDANT: No. I asked to be pro se since the inception of the

case.

THE COURT: So you’ve been intending to go pro se all along?

DEFENDANT: Yes, I have. I’ve been admonished three times by

Judge Grossi. I have a motion for discovery I would like to submit

at this time, and Judge Grossi—

THE COURT: Well, you’re putting the cart before the horse.

Because right now it’s time for you to be arraigned on this matter. I

cannot give you legal advice. You understand that?

5 No. 1-13-0698

DEFENDANT: Yes, Ma’am, I do.

THE COURT: And you understand that you’re going to be held to

the same standard as any other attorney would when you’re

representing yourself?

DEFENDANT: Yes, I do.

THE COURT: You also understand that State’s Attorneys are

licensed, practicing attorneys. They have been to law school. They

have to pass the bar in order to be in the position that they’re in.

Do you understand that?

DEFENDANT: Yes, I do.

THE COURT: How much education have you had, sir?

DEFENDANT: Currently a junior at Chicago State University

upon my arrest.

THE COURT: Well, let me start first by asking you: Do you know

what an arraignment is?

DEFENDANT: Yes.

THE COURT: Do you understand the procedure for an

arraignment?

DEFENDANT: Yes, being notified of the official charges against

me.

THE COURT: All right. Okay. Then I’m going to ask you this

question: Do you want me to read to you the actual charges, or do

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you want to waive the reading of the charges; in other words, give

up the right to have the charges read to you?

DEFENDANT: I’m giving up the right to hearing them read.

THE COURT: Okay. How are you pleading, sir, to each and every

charge? You do know what you’re being charged with; is that

correct?

DEFENDANT: Yes, I do. Not guilty, and I’m also demanding

trial.”

¶9 The trial court then discussed with defendant whether he was ready for trial that day

without having any discovery. The court also admonished defendant that it would not appoint

standby counsel for defendant and he would be on his own. Defendant indicated that he

understood. Defendant then presented the discovery order signed by Judge Grossi. The court

then discussed with defendant whether the order was sent to the appropriate parties, including the

Hillside police department. On that date, defendant also filed a handwritten motion for discovery,

asking the state’s attorney to disclose and produce evidence which is essential and material to the

preparation of his defense, including but not limited to names and addresses of State witnesses.

¶ 10 At a June 2011 court date, the State tendered discovery to defendant in court, including

the case report, photos, and the grand jury transcript. Defendant also moved for a bond reduction.

At the next court date in July, defendant discussed his motion for bond reduction, indicating that

he would reduce it to writing. He also asked about access to a disk with discovery on it. At the

following court date in August, the State tendered additional discovery to defendant. The court

also informed defendant that this case would proceed before the 2008 case. Defendant withdrew

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his motion to reduce bond. Later that month, the court told defendant that the State was setting

up equipment to allow him to view a videotape in the courtroom.

¶ 11 At the following court date on September 7, defendant confirmed he viewed the video.

The parties also discussed defendant’s access to the law library. Defendant also indicated that he

would be filing two motions, a motion to quash and a motion to obtain custody of all video and

audiotapes to be played in the custody of all parties. Defendant discussed his concern that he

wanted a copy of the record, noting that if he had an attorney, then his attorney would have a

copy of the record. He did not want the State’s Attorney’s office holding his copy of the

videotape. The court informed defendant he was responsible for subpoenaing his witnesses for

the hearing on his motion to quash arrest and suppress evidence. Defendant indicated that he

intended to subpoena the arresting officers.

¶ 12 Also, on September 7, 2011, defendant filed a written pro se motion to quash arrest and

suppress evidence. Citing the United States Constitution and the Illinois Constitution, defendant

argued that his April 18, 2011, arrest was “made without authority of a search warrant” and

defendant’s conduct prior to his arrest was “such as would not reasonably be interpreted by the

arresting officers as constituting probable cause that [defendant] had committed or was about to

commit a crime.”

¶ 13 At the court date in October 2011, defendant stated that he had discussed subpoenas with

the public defender, and would now like to discuss a subpoena for the 911 operator. In

November 2011, the matter was set for hearing on defendant’s motion. Defendant stated that he

wanted to call the 911 operator. Defendant also discussed a stipulation of the 911 call, but was

advised by the trial court that he was premature in seeking to admit evidence. Defendant later

decided he needed to subpoena the arresting officers. At the court appearance in December 2011,

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defendant continued to discuss his intended witnesses for the suppression hearing. The witnesses

were not available that date. Defendant also informed the court that he was trying to ascertain

additional witnesses for the defense, but did not know their names.

¶ 14 On January 20, 2012, the trial court conducted a hearing on defendant’s suppression

motion. At the start of the hearing, the prosecutor noted that Detective Anthony Milazzo, one of

the police officers subpoenaed, was unable to appear due to a death in his family. The parties

proceeded with the hearing.

¶ 15 Defendant called Joseph Beckwith to testify. Beckwith testified that he was employed as

a dispatcher for the Village of Hillside. On April 18, 2011, Beckwith took a call about a burglary

from the victim, Robert Fjeldheim. The caller stated that he returned home and saw a red van

parked in his driveway. The caller described the offenders as two “bigger” black males. The men

fled in the red van driving westbound on Madison. Beckwith relayed this information over the

emergency radio. Based upon a preservation motion he made earlier, defendant had a recording

of the call played during the hearing. The recording did not mention a red van or a break-in.

Beckwith testified that the recording began in the middle of the call.

¶ 16 Beckwith stated that within seconds he received a dispatch from Chief Joseph Lukaszek

and Detective Milazzo that they observed a red Chevy van on Wolf Road. Beckwith said that

location was less than a mile from the location of the burglary. He remained in contact with the

officers as they pursued the van. The officers saw the van make an illegal U-turn on Wolf Road

to head northbound. The officers stopped the van after it turned onto Harrison Street, but then the

van drove away and a chase ensued. The van later crashed and the occupants tried to run, but

were taken into custody. Beckwith heard the officers state that proceeds from the burglary were

found in the van.

9 No. 1-13-0698

¶ 17 Next, defendant called Chief Joseph Lukaszek to testify. Chief Lukaszek stated that he

was the chief of police for the Village of Hillside. At approximately 11:04 a.m. on April 18,

2011, Chief Lukaszek was driving north on Wolf Road in an unmarked car with Officer Milazzo

when he received a radio dispatch regarding a residential burglary. He was alerted to look for a

red Chevy van. Approximately 10 seconds later, Chief Lukaszek observed a red van traveling

south on Wolf Road. He testified that the red van then made an illegal U-turn to drive north on

Wolf Road. Chief Lukaszek stated that the weather was overcast, but it was not raining that day.

After he observed that illegal U-turn, Chief Lukaszek activated his vehicle’s emergency lights

and siren and pulled the van over after it had turned onto Harrison Street. He approached the van

on the driver side while Officer Milazzo approached the passenger side. Both officers were in

plain clothes, but had badges displayed. Chief Lukaszek could not recall if he had his weapon

out. He identified defendant as the driver and said that he asked defendant for his driver’s

license. Chief Lukaszek stated that defendant opened his door, looked at him, and then drove

away. He testified that defendant traveled eastbound on Harrison Street at a high rate of speed, in

excess of 85 miles per hour (mph) in a 35 mph zone. Defendant also ran three stop signs along

Harrison Street. The van turned into a mall parking lot, jumped a curb, drove down an

embankment, and eventually crashed into a tree. The van also spun and struck a dump truck. The

occupants of the vehicle then attempted to flee on foot. Defendant was stopped 300 to 400 feet

from the crash. Codefendant Love was stopped by officers from the Westchester police

department.

¶ 18 Chief Lukaszek testified that property of Fjeldheim was found in the van. Defendant was

transported to 333 Jackson Boulevard, where Fjeldheim identified defendant as the person who

burglarized his home and almost struck him with the vehicle.

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¶ 19 Defendant then testified, in narrative form. He stated that on April 18, 2011, he was

legally driving on Wolf Road. He saw a black Tahoe behind him with red and blue lights

flashing in the windshield. He said he did not hear a siren because it was raining and music was

playing in the van. He pulled over and two men exited the vehicle. Defendant testified that the

men were wearing street clothes and had weapons drawn. One of the men called to throw the

weapons out of the van. Defendant denied having any weapons. He said he rolled his window

down two inches and said he did not have any weapons. Defendant testified that he feared for his

life and drove to a “populated” mall. He said he parked at an angle in the parking lot, but the

Tahoe hit his van and he slid down the embankment. He stated that he did not know that Chief

Lukaszek and Detective Milazzo were police officers.

¶ 20 On cross-examination, defendant testified that he and Love were driving on Wolf Road to

look for a gas station. Defendant said he was unfamiliar with the area. The prosecutor asked

defendant where he was coming from at that time, and defendant objected on relevance grounds.

The trial court overruled defendant’s objection. Defendant answered that he did not remember

where he was coming from at that time. He also said he was going to a friend’s house and later

testified they were going to a bowling alley to plan a group event. The prosecutor asked

defendant about gas stations in the area of Wolf Road, but defendant did not recall seeing them.

Defendant was asked if he had any of the proceeds from the burglary in his van, and defendant

responded that he did not.

¶ 21 Following his testimony, defendant informed the trial court that he wanted to call

Detective Milazzo. The judge asked defendant if the detective’s testimony would be cumulative

since the detective was in the car with Chief Lukaszek. Defendant responded that he did not

know. The State argued that defendant lacked standing to contest the search of the van because

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he denied the presence of any evidence to suppress. Defendant rested and the State moved for a

directed finding. Defendant argued that the police fabricated the dispatch that identified him and

his vehicle and that there was no reason to stop his van. The trial court denied defendant’s

motion, finding that the police had sufficient probable cause to stop defendant after he made an

illegal U-turn. The court said that the police had additional probable cause after defendant fled.

In entering its findings, the court also noted defendant’s “selective memory” since he could not

recall gas stations or where he was coming from, but remembered there was a school nearby and

testified that he fled to a populated area.

¶ 22 At the conclusion of the suppression hearing, defendant requested counsel and the trial

court appointed a public defender who represented defendant from that point forward until the

conclusion of defendant’s trial and sentencing. At subsequent court dates, defendant’s counsel

indicated that he had requested transcripts of the suppression hearing, and once he received a

copy, he would review them with defendant.

¶ 23 In December 2012, the trial court conducted a joint bench trial for defendant and Love.

Prior to the trial, the court noted that defendant had signed a written jury waiver. The court then

confirmed that it was defendant’s signature. The court admonished defendant that he was giving

up his right to have a trial by jury and asked him if he knew what a jury trial was. Defendant

responded in the affirmative to both inquiries.

¶ 24 Robert Fjeldheim testified that on April 18, 2011, he lived at 333 North Jackson

Boulevard in Hillside. At approximately 11:04 a.m., he returned home from an errand. He

observed a red van in his driveway and initially thought it belonged to his nephew and his

friends. He parked his car and walked toward the van. He saw the van’s headlights flash and the

horn honked. He then heard a voice from inside the van say, “He is home.” His back door then

12 No. 1-13-0698

flew open and he ducked. Fjeldheim then testified that Love grabbed his hood and tried to hit

him on the head with a flashlight. He wrestled with Love and knocked the flashlight loose.

¶ 25 Fjeldheim testified that he heard someone in the house say, “Get his keys. Get his keys.”

Then defendant came charging out of the back door. When defendant ran past, Love let go of

Fjeldheim and Fjeldheim ran toward the yard. The men got in the van and drove away, missing

Fjeldheim by inches. He saw the van drive through his neighbor’s yard, before traveling north on

Jackson Boulevard and turning west on Madison Street. Fjeldheim then called 911. He described

the assailants as two big black males.

¶ 26 When the police arrived at his house, Fjeldheim identified defendant and Love as the

perpetrators. He also identified property from his house, including jewelry, photos, and business

cards. Fjeldheim testified that he did not give permission to either man to enter his house or to

take anything from it.

¶ 27 Detective Anthony Milazzo testified that at approximately 11 a.m. on April 18, 2011, he

was a passenger in a vehicle driven by Chief Joseph Lukaszek. He received a call for a burglary

at 333 Jackson Boulevard which mentioned a red van leaving the scene. The officers were

driving near Wolf Road and Harrison Street, about half a mile from the burglary. Detective

Milazzo stated that they saw a red van turning from southbound Wolf Road onto eastbound

Harrison Street. The chief activated the police lights and effected a traffic stop of the van on

Harrison Street.

¶ 28 Detective Milazzo testified that as they got near the back of the vehicle, it accelerated

onto Harrison Street. The officers got back in the squad and pursued the van. He stated that the

vehicle continued eastbound on Harrison Street “at a high rate of speed” and ran two or three

stop signs. The vehicle then entered a mall parking lot. As it entered the parking lot, the vehicle

13 No. 1-13-0698

went over a curb, hit a tree going down an embankment, and went down near the ramp of the

Interstate 290 expressway. Detective Milazzo identified defendant as the driver and Love as the

passenger in the van. Both men tried to flee on foot. He and Chief Lukaszek pursued defendant

and apprehended him. He later saw that Love had been apprehended by Westchester police.

¶ 29 After the men were apprehended, the officers searched the van. Detective Milazzo stated

that they recovered a pillowcase full of items in between the front seats. He testified that the

victim later identified those items as his property. The victim also identified both defendant and

Love as the burglars.

¶ 30 The State also introduced a certified document from the Illinois Secretary of State that

defendant was the owner of a 1999 Chevy van. The State rested. Both defendants moved for a

directed finding, which the trial court granted as to attempted first degree murder and attempted

armed robbery. Defendant rested without presenting any evidence. The trial court then found

defendant guilty of residential burglary and aggravated fleeing or attempting to elude a peace

officer.

¶ 31 At the subsequent sentencing hearing, the trial court found defendant eligible for a Class

X sentence based on his prior felonies. Defendant’s presentence investigation disclosed that

defendant had 11 prior felony convictions dating back to 1985, including unlawful restraint in

1985, burglary in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over

60 years old in 1994, aggravated battery in 1995, robbery in 1995, possession of contraband in

penal institution in 1995, and attempted aggravated robbery in 2013. The court sentenced

defendant to a term of 20 years for residential burglary and a concurrent term of 3 years for

aggravated fleeing. The sentence imposed in this case was to run consecutive to a sentence

imposed in an unrelated case.

14 No. 1-13-0698

¶ 32 This appeal followed.

¶ 33 Defendant first argues that the trial court’s admonishments did not comply with Illinois

Supreme Court Rule 401(a) (eff. July 1, 1984) and therefore, his waiver of counsel was invalid.

The State maintains that the trial court substantially complied with Rule 401(a) when it

admonished defendant, and even if the trial court failed to properly admonish defendant, no

reversible error occurred.

¶ 34 Initially, the State contends that defendant’s claim of improper admonishments has been

forfeited because he failed to raise the issue in the trial court either by objection or in a posttrial

motion. Defendant concedes that he did not object in the trial court, but asks this court to review

this issue as plain error.

¶ 35 To preserve an issue for review, defendant must object both at trial and in a written

posttrial motion. People v. Enoch,

(1988). Failure to do so operates as a

forfeiture as to that issue on appeal. People v. Ward,

(1992). Supreme Court

Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a)

(eff. Jan. 1, 1967). The plain error rule “allows a reviewing court to consider unpreserved error

when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of

the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence.” People v. Piatkowski,

(2007) (citing People

v. Herron,

(2005)). However, the plain error rule “is not ‘a general saving

15 No. 1-13-0698

clause preserving for review all errors affecting substantial rights whether or not they have been

brought to the attention of the trial court.’ ” Herron,

(quoting People v. Precup,

(1978)). Rather, the supreme court has held that the plain error rule is a narrow

and limited exception to the general rules of forfeiture.

¶ 36 Defendant carries the burden of persuasion under both prongs of the plain error rule.

People v. Lewis,

(2009). Defendant asserts that an invalid waiver of counsel

falls under the second prong of plain error. However, “[t]he first step of plain-error review is to

determine whether any error occurred.”

We will review defendant’s claim to determine if

there was any error before considering it under plain error.

¶ 37 “It is well established that the sixth amendment to the United States Constitution

guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the

correlative right to proceed without counsel.” People v. Haynes,

(1996)

(citing Faretta v. California,

(1975)). “The right of self-representation is

‘as basic and fundamental as [the] right to be represented by counsel.’ ”

(quoting People v.

Nelson,

(1971)). A defendant has the constitutional right to self-

representation. Faretta,

. “Although a court may consider the decision unwise, a

defendant’s knowing and intelligent election to represent himself must be honored out of ‘ “that

respect for the individual which is the lifeblood of the law.” ’ ” Haynes,

(quoting People v. Silagy,

(1984), quoting Illinois v. Allen,

(1970) (Brennan, J., concurring)); see also People v. Kidd,

(1997)

(citing People v. Lego,

(1995)).

¶ 38 “When an accused manages his own defense, he relinquishes, as a purely factual matter,

many of the traditional benefits associated with the right to counsel. For this reason, in order to

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represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished

benefits.” Faretta,

. “It is well settled that waiver of counsel must be clear and

unequivocal, not ambiguous.” People v. Burton,

(1998). “Although a defendant

need not possess the skill and experience of a lawyer in order competently and intelligently to

choose self-representation, he should be made aware of the dangers and disadvantages of such

representation, so that the record will establish that he knows what he is doing and his choice is

made with eyes open. [Citations.] The requirement of knowing and intelligent choice calls for

nothing less than a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. [Citations.] The determination of whether there has

been an intelligent waiver of the right to counsel must depend, in each case, upon the particular

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

accused.” (Internal quotation marks omitted.) Kidd,

.

¶ 39 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), which governs the waiver of

counsel, provides as follows:

“Any waiver of counsel shall be in open court. 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

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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.”

¶ 40 Here, defendant contends that the trial court’s admonishments did not comport with Rule

401(a)(2) (Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984)) because the trial court informed him of the

sentencing range for a Class 1 felony, 4 to 15 years, rather than a Class X, 6 to 30 years, which

defendant contends was applicable based on his own criminal history. Defendant ultimately

received a sentence of 20 years for residential burglary. Defendant also contends the trial court

failed to adequately apprise him of the nature of the charges.

¶ 41 “The purpose of this rule is ‘to ensure that a waiver of counsel is knowingly and

intelligently made.’ ” People v. Campbell,

(2006) (quoting Haynes,

). To ensure a valid waiver of counsel, substantial compliance with Rule 401(a) is required.

There are numerous decisions, which we refer to later, discussing what substantial

compliance means, but the supreme court has held that “substantial 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 rights.” Haynes,

; see also Kidd,

, People v. Coleman,

(1989), and People v. Johnson,

(1987).

¶ 42 Illinois Appellate Courts have described two methods to determine whether substantial

compliance under Rule 401(a) has been met. First, “[a]n otherwise inadequate admonition may

be constitutionally sufficient, and therefore does not constitute error, if the absence of a detail did

not impede the defendant from giving a knowing and intelligent waiver.” People v. Pike, 2016 IL

18 No. 1-13-0698

App (1st) 122626, ¶ 113, appeal denied, No. 120864 (Sep. 27, 2017) (citing People v. Black,

). The second method is when “a defendant may be seen as

possessing a degree of knowledge or sophistication that excuses the lack of admonition.” Black,

.

¶ 43 In People v. LeFlore, the reviewing court’s description of the two methods is slightly

different. The LeFlore court held: To find substantial compliance, any deficiency to provide

complete admonishments does not prejudice defendant because either: (1) “ ‘he was already

aware of the information that was omitted’ ”; or (2) “ ‘his degree of legal sophistication made it

evident that he was aware of the information that compliance with the rule would have

conveyed.’ ” People v. LeFlore,

, rev’d on other grounds,

(quoting People v. Gilkey,

(1994)). The LeFlore court

added, however: “ ‘the dispositive issue to be determined when deciding whether a waiver of

counsel *** is valid is whether the waiver of counsel was knowingly, understandingly and

effectively made, in light of the entire record.’ ”

(quoting Gilkey,

).

Although all of these decisions may be helpful to our analysis, we conclude that whether there

has been substantial compliance in any given case will depend upon the facts before us in light of

the purpose of the rule we are called upon to interpret. See People v. Wright,

(“Each case, however, must be evaluated on its own particular set of facts.”).

¶ 44 For the reasons that follow, we conclude that the trial court substantially complied with

Illinois Supreme Court Rule 401(a); that defendant’s waiver of counsel was knowingly and

intelligently made; there was no plain error in the admonishments given; and, finally, if there

was any error because of the lack of an admonishment, it did not amount to a plain and obvious

error which denied defendant his fundamental right to a fair trial.

19 No. 1-13-0698

¶ 45 In determining whether there was substantial compliance with Rule 401, we detail the

following: (1) the waiver occurred in open court where the trial judge specifically questioned

defendant, (2) the court on April 19, 2011, detailed the nature of every charge to defendant by

the following exchange:

“THE COURT: All right. We have a felony complaint here for

residential burglary, another felony complaint for aggravated

fleeing and eluding, and a misdemeanor complaint for assault.

DEFENDANT: Your Honor.

THE COURT: Hang on, sir. Another misdemeanor complaint for

resisting a peace officer.

Sir, I will appoint the public defendant to represent you for

the purposes of this bond hearing. Okay. So please speak to your

attorney.

State.

PROSECUTOR: Judge, on April 18th, 2011 at approximately

11:04 a.m., at the home located at 333 Jackson Boulevard in

Hillside, Cook County, Illinois, Judge, the owner of that home, the

victim in this case, came home.

He saw a van backed into his driveway. He then discovered

that his back door had been forced open and then saw this

defendant and another co-defendant inside his home, Judge,

carrying a pillow case.

20 No. 1-13-0698

The co-defendant attempted to strike the homeowner with a

flashlight which was the homeowner’s flashlight. Judge, the

homeowner then ran from the scene at which time this defendant

and co-defendant entered a van.

The van was driven by this defendant here, Judge. This

defendant attempted to run over the homeowner with the van. The

homeowner called 911, gave a description of that van, and that van

was located in the 4700 block of Harrison Street.

The officers attempted to make a traffic stop. They were

initially not successful. The defendant instead continued driving 21

miles over the speed limit violating three traffic signals and then

ending up driving off the roadway and crashing, Judge.

The defendant didn’t stop there, but he got out of the van

and fled on foot. He was eventually apprehended, and the

homeowner positively identified this defendant, the co-defendant,

and the items that were in that pillow case, Judge.”

¶ 46 Thereafter, the prosecutor referenced defendant’s criminal background as the following:

“He has a 1995 aggravated battery, great bodily harm, two years

Illinois Department of Corrections; 1992 armed robbery and

aggravated kidnapping, there was a finding of not guilty; 1993,

robbery, ten years IDOC; 1990 robbery, three years IDOC; 1989

forgery, two years IDOC; 1987 burglary, four years probation;

1984 aggravated criminal sexual assault, two years IDOC.”

21 No. 1-13-0698

The State then asked for a $750,000 D bond. The public defender informed the court that

defendant was 44 years old, and currently a business major at Chicago State University. The

judge then set a $400,000 D bond.

¶ 47 Three days later on April 22, 2011, defendant appeared before another judge to set a date

for the return of an indictment. Defendant immediately informed the court that he was

representing himself, stating that he was “very familiar with the law” and was “exercising [his]

constitutional right.” Defendant continued to assert his right immediately after he was advised

that he was charged with a felony, residential burglary, and the court told defendant to, “Slow

down. We are not done yet.” The trial court then accurately stated the minimum and maximum

sentence for residential burglary, which is 4 to 15 years. See 720 ILCS 5/19-3(b) (West 2010);

730 ILCS 5/5-4.5-30(a) (West 2010). The court questioned the defendant extensively about his

waiver of the right to counsel, including inquiries as to defendant’s education, any experience he

had previously in representing himself, and whether he had been charged with a felony before.

Defendant responded that he had previously been charged with a felony, and then detailed his

representation from a prior conviction in 1994 in which defendant received what he described as

a “split verdict.” As we detail later, this was accurate information because in that case defendant

was found not guilty of armed robbery in one case, but guilty of robbery of a victim over 60

years old. The judge advised defendant that although he had the right to represent himself, the

defendant would be held to the same standards as an attorney and that the defendant would not

have a public defender to stand by and help him with his case. From the above, we conclude the

trial judge advised defendant of the dangers and disadvantages of self representation. See Kidd,

.

22 No. 1-13-0698

¶ 48 The trial court’s statement that defendant was facing 4 to 15 years was partially correct,

and we acknowledge there was no discussion at that hearing regarding the possibility that upon

conviction of residential burglary defendant was subject to be sentenced as a Class X offender. In

fact, at defendant’s initial bond hearing, the State’s Attorney’s office did not indicate defendant

was Class X eligible, nor was it apparently aware that defendant had recently served 27 years in

the penitentiary for a robbery conviction.

¶ 49 The record also shows that the court had previously appointed a public defender on the

first court date and the public defender appeared on behalf of defendant when he indicated that

he wanted to represent himself. Based upon all of the admonitions given, the discussions

between the court and defendant, and accepting the claim that the trial court should have

admonished defendant about the possibility of his Class X status, although there was not strict

compliance, we find there was substantial compliance with Illinois Supreme Court Rule 401.

¶ 50 At the April 22, 2011 court date, defendant followed his request to proceed pro se with a

verbal request that “any 911 calls be saved, any police radio transmissions and apprehension and

stopping of [his] van” also be preserved. The court agreed to sign an order. Defendant appeared

before this judge about two weeks later and followed up on his discovery request. The court

informed defendant that he needed a written order to enforce his request to preserve 911 calls. In

May 2011, defendant filed a written motion for discovery which was legible and cited the fifth,

sixth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, VI,

XIV), article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), multiple statutes

from the Code of Criminal Procedure of 1963 (725 ILCS 5/101-1 et seq. (West 2010)), and four

Illinois Supreme Court Rules. He sought the names and last known addresses of persons the

State intended to call as witnesses with their statements, any written or recorded statements and

23 No. 1-13-0698

the substance of any oral statements by the accused or a codefendant, a grand jury transcript, any

reports or statements of experts made in connection with the case, any book, papers, documents,

photographs, or tangible objects the State intended to use at trial, any record of prior criminal

convictions which may be used for impeachment for persons the State intends to call at trial,

information as to whether there has been any electronic surveillance of conversations, and any

material or information within the State’s possession or control which “leads to negate the guilt

of the accused as to the offense charged or would tend to reduce his punishment therefore.”

Defendant asked for an opportunity to inspect, obtain, test, copy, or photograph any evidence.

¶ 51 At the next court date, before a third judge, who ultimately presided over the case,

defendant again asserted his desire to appear pro se. Defendant stated that, he “asked to be pro se

at the inception of the case.” He informed the court that he was admonished by the prior judge

“three times.” He asked to submit a motion for discovery. The trial judge also explained to

defendant that she could not give him legal advice, that defendant would be held to the same

standard as any other attorney, and that the State’s Attorneys were licensed, practicing attorneys

who had attended law school and passed the bar exam. Defendant responded that he understood.

The trial court asked defendant if he knew what an arraignment was, and he said he understood

what an arraignment was. Specifically, defendant said that it meant “being notified of the official

charges against me.” Defendant then waived reading of the charges against him and demanded

trial.

¶ 52 Defendant continued to represent himself at 10 more court dates, including the hearing on

his motion to suppress. We specifically note that defendant’s pro se handwritten motion to

suppress was properly formatted, raised legitimate claims, and cited proper legal authority for his

claims, including the exclusionary rule set forth in Mapp v. Ohio,

(1961), the fourth

24 No. 1-13-0698

amendment (U.S. Const., amend. IV), and article I, section 6 of the Illinois Constitution (Ill.

Const. 1970, art. I, § 6). We also note that at the suppression hearing, defendant attempted to

impeach Beckwith, the 911 operator, with the transcript of the audio recording, which did not

contain all the information Beckwith disclosed in his testimony. While his motion was ultimately

unsuccessful, defendant’s motion demonstrated his degree of legal sophistication. Immediately

after the denial of his motion to suppress, defendant requested counsel and a public defender was

appointed. These court proceedings further demonstrate that there was substantial compliance

with Rule 401(a).

¶ 53 We find the decision in People v. Herndon,

, appeal denied No.

119727 (Nov. 25, 2015), which is factually similar to the case at bar, supports our analysis. In

that case, the defendant was charged with two counts of delivery of a controlled substance. He

was initially appointed a public defender, who represented the defendant at a hearing on a motion

to suppress, which was denied. Less than two weeks later, the defendant sought to represent

himself. The trial court admonished the defendant and gave him a week to consider his decision.

A week later, the defendant asked for the appointment of a different public defender, which the

trial court denied, and then the defendant elected to proceed pro se. Id. ¶¶ 3-7. In the following

weeks, the defendant “filed several motions, including discovery motions, a motion to dismiss

indictment, a motion to quash arrest, and a motion to suppress video evidence over the next

several court dates.” Id. ¶ 8. More than a year after the defendant had opted to represent himself,

he requested an attorney. The court appointed counsel, who then represented the defendant

through trial and posttrial motions. Id. ¶¶ 10-20. At sentencing, the defendant disputed his Class

X status and asked to again appear pro se, and was admonished of the dangers of appearing pro

se. Id. ¶ 20. The defendant was sentenced to 10 years as a Class X offender. Id.

25 No. 1-13-0698

¶ 54 On appeal, the defendant argued that the trial court failed to comply with Rule 401(a) by

failing to inform him of the nature of the charges and that he was subject to Class X mandatory

sentencing. Id. ¶ 26. The reviewing court observed that the defendant had been fully notified of

the charges pending against him at the arraignment and his suppression hearing and both took

place when he was represented by counsel. Id. ¶ 27. The court then made the following findings.

“Defendant has experience in the criminal justice system

and admittedly has a ‘very extensive’ criminal background. His

criminal background includes a conviction for a nearly identical

offense of possession of a controlled substance with intent to

deliver in 2000. Defendant had five other narcotics convictions,

two firearm related convictions and a burglary conviction.

Furthermore, when defendant represented himself during

pretrial proceedings he made numerous discovery requests. As part

of the discovery process, defendant had an opportunity to inspect

the 1505 fund sheets, which showed the currency with prerecorded

serial numbers used in investigations, the narcotics and the video

of the transaction that was later used at trial. In addition, defendant

filed three pretrial motions. He also filed and argued three motions:

a motion to dismiss the indictment based on the fact that the funds

used in the undercover buy were never recovered, a motion to

quash arrest on the basis that he was not arrested at the address

listed on the search warrant and a motion to suppress the video

evidence.

26 No. 1-13-0698

With all of this in mind, including the fact that defendant

was represented by counsel several months before trial, during trial

and throughout sentencing, we cannot say that defendant was not

aware of the nature of the charges, or that the trial court failed to

inform defendant of the nature of the charges against him during

the short time that defendant proceeded pro se during the pretrial

stage such that substantial compliance with Rule 401(a) was not

accomplished.” Id. ¶¶ 28-30.

¶ 55 The defendant in Herndon also asserted that he was not admonished in substantial

compliance with Rule 401(a)(2). Specifically, he argued that the trial court did not inform him of

the potential sentencing range. Id. ¶ 31. The reviewing court found substantial compliance,

noting that on the date the defendant indicated he wished to represent himself, the prosecutor

stated the defendant was subject to extended term sentencing of 15 to 30 years based on his

background. Although the defendant was not told he was Class X mandatory, he was advised of

the minimum and maximum sentencing range, and the appellate court concluded no error

occurred. Id. ¶¶ 32-33.

¶ 56 We note several other Illinois decisions which have held that the trial court’s failure to

strictly comply with the admonition of the minimum and maximum sentence did not warrant a

reversal of the defendant’s conviction where the record clearly revealed that defendant

knowingly and intelligently waived his right to counsel based on his extensive legal experience

and knowledge of the law. See People v. Eastland,

(1993) (the

defendant “exhibited a high degree of legal sophistication perhaps gained from his presence

throughout these proceedings, if not also his criminal history, so that his waiver of counsel was

27 No. 1-13-0698

made knowingly and intelligently”); People v. Meeks,

(1993)

(“Defendant has previous convictions, substantial experience with the legal system, and filed

over 15 thorough pro se petitions and motions that included extensive case law. Moreover,

defendant asserted that he had 20 years’ experience with the law. Under these circumstances, we

conclude that there was no violation of Rule 401(a).”); People v. Black,

(1979) (“Considering defendant’s prior experiences with armed robbery convictions and his

familiarity with criminal law, there is no question that defendant knew that he could receive a

lengthy prison sentence upon conviction. Nevertheless, defendant, well aware of the potential

punishment, remained adamant in demanding to represent himself after repeatedly requesting the

dismissal of the court appointed counsel.”); People v. Jackson,

(1978)

(“Defendant was no stranger to criminal proceedings. In fact he was quite familiar with them.

His conduct of the defense demonstrated his intricate knowledge of court proceedings and his

familiarity with court records. This knowledge was demonstrated by defendant’s skillful but

unavailing attempt to claim he had already been discharged of the burglary offense. The record

shows, as the defendant stated to the court, he thought he could defend himself better.

Considering the entire record, we conclude defendant knowingly and intelligently waived his

right to counsel.”); People v. Smith,

(1975) (“We believe the record

evidences adequate compliance with the requirements of the rule. Defendant had earlier been

represented by retained counsel and by the public defender; he discharged both. The court

admonished him of the seriousness of the charges, that they involved felonies for which he could

be incarcerated in the penitentiary. Defendant represented to the court that he had ‘quite a bit of

study in law’ and that matters he had brought out on the previous trial, ‘which some people

considered prejudicial to his case,’ was ‘part of his strategy’ and had resulted in a mistrial. This

28 No. 1-13-0698

time, he assured the judge, it will be different. He asserted that he knew his case better than any

lawyer and wanted none sitting at counsel table with him in any capacity. He expressly invoked

his constitutional right to defend himself. While the record does not disclose that the court

expressly stated the potential minimum and maximum terms for the alleged offenses, we think it

plain that defendant’s waiver of counsel was made knowingly and voluntarily and there is no

claim made that defendant was actually unaware of the potential penalties.”).

¶ 57 In People v. Phillips,

(2009), the defendant argued that the

trial court did not substantially comply with Rule 401(a) because at the time of his waiver of

counsel, the court failed to inform him of the nature of the charge and that he had the right to

counsel and one would be appointed if the defendant was indigent. The reviewing court found

substantial compliance because (1) the defendant had been fully admonished nine months earlier;

(2) the record did not suggest that defendant failed to understand the charges against him; (3) the

defendant had been represented by counsel so he understood his right to counsel and to have one

appointed; and (4) the defendant had extensive history with the criminal justice system.

. The court also pointed out that the defendant did not claim that he suffered any prejudice

or that he would have acted differently had additional admonishments been made.

at 263

(quoting People v. Johnson,

(1987)); see also Kidd,

(“There is no suggestion in the record that the trial court’s misstatement concerning either the

charge of aggravated arson or the minimum sentence played any part whatever in defendant’s

waiver of his right to the assistance of counsel.”).

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

the defendant was misinformed about the minimum sentence. See Kidd,

(finding substantial compliance by “informing defendant of the nature of the charges against

29 No. 1-13-0698

him, explaining to him that the death penalty was the maximum sentence, and advising him of

his right to counsel” despite incorrect admonishment regarding one of the charges and the

minimum sentence); Haynes,

(substantial compliance when the defendant

informed of minimum and maximum sentences for murder charge, but not for lesser burglary

charge); Coleman,

(the trial court incorrectly informed the defendant that the

minimum sentence was 20 years, rather than natural life); Johnson,

(finding

no prejudice to the defendant when not informed that the minimum sentence was life when he

was told that the maximum sentence was the death penalty).

¶ 59 The same conclusion can be reached regarding defendant in this case. Defendant has an

extensive criminal background, including a 1987 conviction for burglary, a 1994 conviction for

robbery of a victim over 60 years old, a 2013 conviction for attempted aggravated robbery, and

several other offenses. Defendant represented himself for at least part of the proceedings for the

1994 and 2013 convictions. Defendant filed multiple motions in this case, including to preserve

911 calls and to quash his arrest and suppress evidence. Defendant was also represented by

counsel for a period of time prior to trial, during trial, and posttrial. Nothing in the record

suggests that defendant’s decision to waive counsel and represent himself was not knowing and

voluntary. Defendant has not argued on appeal that his waiver was not knowing and voluntary.

He has not claimed that he suffered any prejudice as a result of the denial of his motion to

suppress or any other prejudice he suffered as a result of the incomplete admonishment.

Although defendant voluntarily chose to represent himself for the pretrial motion, defendant was

represented by counsel immediately after the denial of his motion to suppress and through trial,

posttrial, and sentencing. There is nothing in the record to suggest that the defendant would not

have chosen to represent himself had he been accurately admonished that he was facing a class X

30 No. 1-13-0698

sentence, 6 to 30 years rather than the admonition of 4 to 15 years given in this case. This record

firmly establishes that defendant knowingly and voluntarily waived his right to counsel, he did

not suffer any prejudice as a result of his self-representation for the time he did so, and had the

legal sophistication to understand his rights, we find without question that the purpose of Rule

401(a) was satisfied.

¶ 60 Moreover, were we to ignore defendant’s high degree of legal sophistication, we would

still conclude that his waiver was both knowing and voluntary because of his significant and

rather lengthy criminal history. Defendant previously represented himself at trial in an earlier

prosecution and received what he calls a “split verdict.” In that case, defendant was charged in

two separate cases, but the charges were tried jointly; one was for armed robbery and the other

for robbery of an individual over 60 years of age, involving the same victim for crimes that

occurred at the same location two weeks apart. People v. Maxey, No. 1-95-0885 (Mar. 14, 1997)

(unpublished order under Supreme Court Rule 23).

¶ 61 Defendant was initially represented by counsel, but the day before the jury trial,

defendant asked to appear pro se. The trial court admonished defendant, but defendant

maintained that he wanted to represent himself. The next day, defendant requested counsel other

than the public defender. The court granted defendant a continuance to retain private counsel.

Defendant later told the court that he was unsuccessful in obtaining money from his family, and

a private attorney was appointed. Later, defendant’s attorney informed the court that defendant

wished to appear pro se and refused the court’s offer to have counsel stand by and assist him.

Maxey, slip order at 2-3.

¶ 62 The evidence at trial showed that in November 1992, defendant entered a leather cleaning

shop on North Dearborn Street in Chicago. The victim was working at the store. Defendant

31 No. 1-13-0698

threatened the victim with scissors to his neck, took the victim to the back of the store, and

bound him with a telephone cord. Defendant took the victim’s keys, money from the cash

register, and left wearing a customer’s leather jacket with other coats in a bag. Two weeks later,

defendant returned to the same store, wearing the stolen leather jacket. Defendant tried to put the

victim in the back of the shop again, but the victim resisted and triggered a silent alarm.

Defendant again tied up the victim. Defendant pulled the victim’s pants down looking for money

and bit the victim’s arm. The police arrived as defendant was trying on more garments. Maxey,

slip order at 3-5. The jury found defendant not guilty of armed robbery for the first date, and

guilty of robbery of a victim over 60 years of age for the second date. Maxey, slip order at 5-6.

¶ 63 Defendant appeared pro se on his posttrial motions, which motions the trial court denied.

At sentencing, the State presented certified copies of defendant’s conviction for burglary in 1987

and robbery in 1990 as well as his history of other offenses. There, the trial court specifically

found that defendant was Class X mandatory based on his criminal history and sentenced

defendant to 27 years in prison. Maxey, slip order at 6-7.

¶ 64 The State has filed a motion requesting this court to take judicial notice of relevant

portions of the record in another of defendant’s cases, specifically defendant’s 2008 case for

attempted aggravated robbery, which we do. In that case, defendant also represented himself pro

se at a suppression hearing. People v. Maxey,

. During the course

of the hearing, the trial court advised defendant that he needed the assistance of an attorney to

properly present his motion. Defendant agreed and requested counsel. The hearing was then

continued for several months. Id. ¶¶ 4-11. Ultimately, the trial court granted defendant’s motion

to suppress after the continued hearing, but on appeal, another division of this court reversed. Id.

¶ 78. While the appeal in the 2008 case was pending, defendant was arrested and charged in the

32 No. 1-13-0698

current case. Defendant was found guilty in this case in December 2012. In January 2013, prior

to sentencing in this case, defendant pled guilty to attempted aggravated robbery in the 2008 case

and received a sentence of 11 years. Subsequently in February 2013, defendant was sentenced in

the instant case.

¶ 65 During the court proceedings on November 26, 2008, in that other case, defendant stated

that he was exercising his sixth amendment right to represent himself pro se because he “just

feel[s] more comfortable that way.” Defendant informed the trial court that he had done it before,

again referencing the “split verdict” from the 1992 cases. Defendant demanded trial and said he

had two motions to file. The trial court then admonished defendant to make sure he understood

the charges and possible penalties. The prosecutor in those proceedings pointed out that

defendant was Class X mandatory. The court continued, stating that defendant was charged with

Class 2 felonies, but based on his background, the sentencing range would be Class X, which is 6

to 30 years. Defendant stated that he understood each of these admonitions.

¶ 66 At a subsequent court date in December 2008, defendant appeared before a different trial

judge, who asked defendant whether he wished to be represented by the public defender, and

defendant responded no. Defendant informed the court he received incomplete discovery from

the State and he asked for the appointment of an investigator. The court admonished defendant

again that he was Class X mandatory, and defendant said he had already waived counsel before a

different trial judge.

¶ 67 During subsequent appearances, defendant presented discovery requests and consistently

followed up on his requests. At a January 2009 court date, the trial court asked about defendant’s

criminal background, and defendant responded that he was “Class X mandatory.” Defendant

detailed his trial plan, that he had almost located his witnesses and would be “tendering

33 No. 1-13-0698

discovery to the State within a month,” but asserted his need for 911 tapes that “were material to

[his] defense.” Defendant also asked about his vehicle, if it was “seized as evidence.” In March

2009, defendant asked about submitting a motion for counsel other than the public defender,

noting that he does not have “a right to perfect counsel.”

¶ 68 In July 2011, on remand following this court’s reversal of the grant of the motion to

suppress, defendant expressed his desire to represent himself. Defendant stated that he was “very

familiar” with the criminal justice system. Defendant continued to appear pro se in the 2008

case. In a June 2012 court date, the trial court noted that defendant had waived counsel “on at

least three separate occasions in connection with these proceedings,” but as trial was

approaching, defendant stated that he was “overwhelmed” and needed counsel. At some point

counsel was appointed, as indicated by the case history detailed in a subsequent appeal. People v.

Maxey,

.

¶ 69 Defendant’s history shows that he has chosen to represent himself frequently and at other

times he has had an attorney represent him when he so chooses. In the instant case, defendant

immediately requested an attorney after his motion to suppress was denied. Defendant has a

significant understanding of the criminal justice system and has used the services of the public

defender when it has served his purposes. Thus, he has knowingly and voluntarily waived his

right to counsel on several other occasions. More important, even if we did not consider the

transcript from his other case, the record still demonstrates that defendant knowingly and

voluntarily chose to represent himself through the suppression hearing. Nothing in this record

suggests that defendant was prejudiced or would have changed his mind about appearing pro se

if the trial court had admonished defendant that he was possibly facing a sentence of 6 to 30

years. Phillips,

(quoting Johnson,

).

34 No. 1-13-0698

¶ 70 Defendant relies on the Second District decision in LeFlore to support his contention that

the trial court failed to comply with Rule 401(a). In LeFlore, the defendant waived the right to

counsel after the denial of a motion to suppress, and represented himself at trial. At the time of

his waiver, the trial court admonished him that he was charged with aggravated robbery and

subject to a term of 4 to 15 years in prison. LeFlore,

. However, at

sentencing the State presented copies of certified convictions establishing that defendant was

Class X mandatory and subject to 6 to 30 years in prison. Id. ¶ 10. On appeal, the defendant

argued that the trial court failed to comply with Rule 401(a) by not admonishing him of his Class

X mandatory sentencing range. Id. ¶ 50. The reviewing court found that the record did not show

the defendant had any degree of legal sophistication such that it was evident that he was aware of

the sentencing range. Id. ¶ 57.

“When defendant informed the trial court that he wished to

discharge his attorney and proceed pro se, the trial court asked

defendant if he had any history, background, or familiarity ‘with

the criminal system regarding particulars of going to trial and

issues of evidence in a criminal trial.’ Defendant answered that he

had ‘somewhat some [sic],’ but, when asked to what extent, he

responded, ‘Not much.’ Defendant explained that he had been

‘through a few trials’ and told the court that he ‘went through pro

se’ on his most recent charge, for attempted burglary. When asked

if it was a bench or a jury trial, defendant explained that ‘[i]t didn’t

get that far,’ that he ‘decided to take the plea’ that ‘was brought to

me from the judge herself.’ He stated that he had brought some

35 No. 1-13-0698

pretrial motions in that case and had done some legal research.

That was the one case that defendant could remember that

provided him with familiarity with the criminal system.” Id.

¶ 71 As we have detailed, defendant in this case was extremely sophisticated, and clearly had

the requisite legal knowledge of his Class X mandatory status. For this reason, we find LeFlore

distinguishable, where the defendant there could not articulate his prior experience with the

criminal justice system, something this defendant expressly did. Further, we point out that the

defendant in LeFlore represented himself at trial, while defendant in the instant case was

represented by counsel at trial and sentencing.

¶ 72 Contrary to defendant’s assertion, the LeFlore court did not make a blanket statement that

a defendant’s criminal history cannot support a finding of substantial compliance, but rather,

held that under the facts of that case, the record did not support such a result. The same is not

true in this case, where the record clearly shows both: that the omission (lack of admonishment)

did not impede defendant’s knowing and voluntary waiver, and second, defendant “possess[ed] a

degree of knowledge or sophistication that excuse[d] the lack of admonition.” Black,

. Since we conclude defendant knowingly and voluntarily waived his

right to counsel, and possessed the requisite legal knowledge which satisfied both tests, we find

the other cases relied on by defendant to be distinguishable. See People v. Bahrs,

(after being represented by counsel, the defendant opted to appear pro se at

posttrial hearings and sentencing, but was not admonished regarding the consecutive nature of

his potential sentences and the defendant lacked “a high degree of legal sophistication”); People

v. Koch,

(1992) (where the defendant appeared pro se during plea

proceedings in which he was inaccurately informed of his maximum sentence and subsequently

36 No. 1-13-0698

received a greater sentence, the reviewing court found that “the record before [it] does not reveal

that defendant had the unusual and demonstrable legal sophistication”).

¶ 73 After considering the record in this case, as well as defendant’s prior cases, it is clear that

defendant knew he was Class X mandatory. Defendant’s history shows that he had been

sentenced as a Class X offender after his 1994 conviction, and he stated on the record in his 2008

case that he knew he was Class X mandatory before the Rule 401 admonishments were given in

this case. Additionally, when arrested for this charge, defendant had recently completed a 27-

year sentence for a 1994 robbery conviction, although, as pointed out above, this fact was not

apparent to anyone during the April 2011 court proceedings. It is more than obvious that

defendant was again facing very significant penitentiary time if convicted of the charged

offenses. See Black,

.

¶ 74 Recently, the Illinois Supreme Court found substantial compliance with Rule 401(a) in

People v. Wright,

. There, the defendant argued that the trial court’s

admonishments failed to substantially comply because he was misinformed about the maximum

potential sentence he faced. Id. ¶ 38. Specifically, the trial court incorrectly advised the

defendant that he faced a maximum sentence of 60 years, but the correct maximum term was 75

years.

¶ 75 The supreme court then recounted its 30-year history considering the “contours of

substantial compliance with Rule 401(a)” by discussing Coleman, Johnson, and Haynes in

contrast with Campbell where the former three found substantial compliance and the latter

concluded there was no compliance with the rule. Id. ¶¶ 41-47.

¶ 76 The facts in Wright disclose the defendant stated to the trial court that he would not agree

to any continuances and asserted his right to a speedy trial. The public defender indicated that

37 No. 1-13-0698

she would have to withdraw because she was not ready for trial. The trial court continued the

case for a week for the defendant to obtain outside counsel. At the following court date, the

defendant did not have an attorney and continued to raise his speedy trial rights. Id. ¶ 48. The

supreme court then quoted an extensive colloquy in which the defendant asserted his right to a

speedy trial and desire to represent himself. Id. ¶ 49.

¶ 77 The court concluded there was substantial compliance with Rule 401(a), in line with

Coleman, Johnson, and Haynes.

“After defendant initially asserted that he desired to proceed pro

se, the trial court provided him with a copy of the charging

instrument and admonished him that he was subject to a possible

sentence of 21 to 60 years for the charged offenses and that he was

entitled to have a public defender represent him. At the next court

date, defendant was again admonished by the trial court under Rule

401(a). The trial court informed him that he was charged with four

counts of armed robbery. He was told that he faced a possible

sentencing range of 21 to 60 years for the offenses and that the

sentences would be served concurrently. The trial court also

informed defendant of his right to appointed counsel. The trial

court further informed him that if he proceeded pro se, he would

be held to the same standards to which a lawyer would be held and,

if convicted, he could not complain about his own competency.

We do not diminish the importance of correct

admonishments as to the actual maximum sentence allowed. Each

38 No. 1-13-0698

case, however, must be evaluated on its own particular set of facts.

Based upon the colloquy above, we conclude that the trial court

substantially complied with Rule 401(a) when it properly

admonished defendant in all respects except when it informed him

that he faced a maximum sentence of 60 years in prison, when it

was actually 75 years.” Id. ¶¶ 53-54.

¶ 78 The supreme court observed that the trial court had elicited the defendant’s age, that he

had attended two years of college, and had previously represented himself on appeal in a felony

case. “He expressed his desire to represent himself at the beginning of this case and reiterated

that desire a number of times thereafter, even after being informed by the trial court of the

potential pitfalls of doing so.” Id. ¶ 55. The court further found the defendant’s assertion of

proceeding pro se based on speedy trial concerns “compelling.” Id. The Wright court also found

no basis to conclude the defendant’s was prejudiced by the understatement of the potential

maximum sentence. “Defendant does not even make a bare allegation that he would not have

proceeded to represent himself if he had known the possible maximum sentence he faced for

armed robbery was actually 75 years, rather than 60 years.” Id. ¶ 56. Finally, the court noted that

“while defendant was eligible for a 75-year sentence, the State actually asked for the imposition

of a 60-year sentence and the trial court imposed a 50-year sentence.” Id.

¶ 79 In response to the supreme court’s supervisory order in the instant case, we allowed the

parties to file supplemental briefing. Defendant contends that under Wright, there was not

substantial compliance with Rule 401(a) in this case because the error in sentencing admonition

was more egregious and the evidence to support a finding that defendant’s waiver was knowing

and voluntary was weaker. Defendant asserts that since the supreme court’s analysis did not

39 No. 1-13-0698

discuss the defendant’s actions in his prior self-representation, the decision in Wright “implicitly

rejects a key part” of this court’s reasoning in finding substantial compliance. However,

defendant has failed to cite any authority to support his assertion and we reject this contention.

The State maintains that the decision in Wright supports and is consistent with our analysis and

conclusion. We agree with the State.

¶ 80 Defendant spends much of his supplemental briefing comparing the supreme court’s

consideration of the facts in Wright to the circumstances present in the case. This argument is

misplaced because as we have previously observed in Wright, “[e]ach case *** must be

evaluated on its own particular set of facts.” Id. ¶ 54. Engaging in a word-for-word comparison

of how the trial court admonished the defendant in Wright and the admonishments in the present

case improperly narrows the holding of Wright and negates the explicit direction to consider the

issue based on the facts of the case. Contrary to defendant’s focus on the speedy trial concerns

voiced by the defendant in Wright, the supreme court did not set forth a requirement for a

defendant to state a specific reason why he wished to appear pro se, but rather the court

considered the defendant’s stated reason as part of the facts of that case. Here, defendant stated

from the outset that he wished to exercise his constitutional right to represent himself because he

was “very familiar with the law” and had done so previously as we discussed at length. This

stated basis is as valid as the defendant’s speedy trial concerns in Wright.

¶ 81 After considering Wright, we find that our analysis in this case is consistent with the

supreme court’s conclusions there and see no reason to alter our decision and its basis. By our

decision today, we do not mean to suggest that trial judges should not comply with supreme

court rules. Compliance is mandatory. See Campbell,

. Further, complete

admonishments are the rule and we encourage judges to go above and beyond that which is

40 No. 1-13-0698

required. However, the trial judge did go beyond the rule and asked defendant about his

education, his background, and whether he had represented himself before in the trial court. The

trial judge correctly informed defendant of the 4 to 15 year sentencing range for residential

burglary, the most serious charge pending at that time. Three days before defendant’s April 22

appearance, the defendant was fully admonished of the nature of the charges and a public

defender was appointed to represent him. The judge also noted that defendant would be held to

the same standard as a lawyer and that defendant would not have the benefit of a public defender

to assist him. The trial court also went out of its way to make sure defendant was able to obtain

911 calls and police radio transmissions in this case. Finally, when defendant appeared before the

trial judge who presided over the case, defendant again persisted in his desire to appear pro se.

This judge also admonished defendant regarding the disadvantages of representing himself,

including that the court could not give him legal advice, defendant would be held to the same

standard as a lawyer, and that the assistant State’s Attorneys attended law school, passed the bar,

and were licensed attorneys. The trial judges in this case ensured that defendant was aware of the

reality and consequences of representing himself. See Faretta,

(holding that

when a defendant chooses to represent himself, “ ‘he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that “he knows what he is

doing and his choice is made with eyes open’ ” (quoting Adams v. United States ex rel. McCann,

(1942)).

¶ 82 Without much analysis, defendant suggests that because the court incorrectly admonished

him, and he subsequently received a sentence of 20 years, plain error occurred. Contrary to this

suggestion, it is clear that the sentence imposed in this case was not in any way based upon a

waiver of counsel, but based upon the subsequent finding of guilty of the charges and

41 No. 1-13-0698

defendant’s extensive criminal history, including the following felonies: unlawful restraint in

1985, burglary in 1987, robbery in 1990, forgery in 1990, theft in 1990, robbery of a victim over

60 years old in 1994, aggravated battery in 1995, robbery in 1995, possession of contraband in

penal institution in 1995, and attempted aggravated robbery in 2013. Defendant’s background

also indicates that he was 45 years old at the time the 20-year sentence was imposed. The trial

court explicitly noted defendant’s extensive history before imposing the sentence. His self-

representation which lasted for only a small part of these proceedings and the denial of his

motion to suppress had no bearing on the sentence imposed, and defendant has not established

otherwise. There has been no error. Because there is no error, there can be no plain error. See

Lewis,

.

¶ 83 We also point out that finding an error has occurred (were we to do so) does not mean

that the second prong of plain error test has been met and that relief would automatically be

awarded. Rather, the burden would then be on defendant to show that the error was plain and

obvious, and it was so serious “that it affected the fairness of the defendant’s trial and challenged

the integrity of the judicial process.” Herron,

. Defendant has not established

plain error. Defendant has not demonstrated that the lack of any admonishment affected the

fairness of his trial and challenged the integrity of the judicial process. More specifically, we find

based upon our review of the hearing on defendant’s motion to suppress, defendant has not

demonstrated that the failure to admonish him would have impacted the court’s ruling on the

motion to suppress. Therefore, defendant has not established plain error such that it did not deny

him the right to a fair trial.

¶ 84 Defendant next contends that the trial court committed multiple errors during the

suppression hearing which entitle him to a new suppression hearing. Specifically, defendant

42 No. 1-13-0698

argues that the trial court: (1) violated his privilege against self-incrimination when it allowed the

State to broaden the scope of the suppression hearing; and (2) erroneously barred defendant from

calling a witness to contradict Chief Lukaszek’s account of the traffic stop.

¶ 85 The State initially responds that defendant has forfeited these issues by failing to

adequately preserve them in the trial court. Defendant maintains that under People v. Cregan,

, he sufficiently preserved his claim of a constitutional violation of his

right against self-incrimination by objecting in the trial court. Cregan held that an objection to a

constitutional violation at trial is sufficient to preserve the issue for appeal without raising the

issue in a posttrial motion.

The State contends that Cregan does not apply because defendant

did not object to a constitutional violation in the trial court, but has only raised that basis on

appeal.

¶ 86 During his testimony at the suppression hearing, defendant objected to the State’s

question concerning his whereabouts prior to driving on Wolf Road as irrelevant. On appeal,

defendant challenges this question under a new theory, that it violated his privilege against self-

incrimination. According to defendant, this change does not affect his preservation of the issue.

Regardless of whether defendant preserved the issue, the State concedes that we can review it

under plain error, so we will review the issue for any error.

¶ 87 Defendant also asks this court to review the remaining claims regarding his suppression

hearing under the second prong of plain error. As stated above, The plain error rule “allows a

reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred

and that error is so serious that it affected the fairness of the defendant’s trial and challenged the

43 No. 1-13-0698

integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski,

. But first, we must determine whether there was any error before reaching plain error

analysis. See Lewis,

.

¶ 88 We turn to defendant’s argument that the trial court violated his right against self-

incrimination by allowing the State to broaden the scope of the suppression hearing. Specifically,

defendant argues that the court violated Illinois Rule of Evidence 104(d) (eff. Jan. 1, 2011) by

allowing the prosecutor to question defendant on cross-examination about his activities before

being observed by the police on Wolf Road.

¶ 89 The prosecutor asked defendant where he and Love were coming from when driving on

Wolf Road, and defendant objected that the question was irrelevant, which the trial court

overruled. When defendant said they were looking for a gas station, the prosecutor again asked

where defendant was coming from. Defendant questioned the relevancy and said they were

looking for a friend’s house. The prosecutor reiterated that the question was where was he

coming from, not where was he going. Defendant denied that he was coming from the location of

the residential burglary, but stated that he could not recall where he was coming from at that

time.

¶ 90 “Every criminal defendant is privileged to testify in his own defense, or to refuse to do

so.” Harris v. New York,

(1971). “It is essential, therefore, to the proper

functioning of the adversary system that when a defendant takes the stand, the government be

permitted proper and effective cross-examination in an attempt to elicit the truth. The

defendant’s obligation to testify truthfully is fully binding on him when he is cross-examined.

His privilege against self-incrimination does not shield him from proper questioning.” United

States v. Havens,

(1980); see also People v. Stevens,

, ¶ 16

44 No. 1-13-0698

(“The defendant who takes the stand and testifies in his own behalf in a criminal case not only

offers himself as a witness in his own behalf but thereby subjects himself to legitimate cross-

examination.”). “[L]egitimate cross-examination includes ‘all circumstances within the

knowledge of the witness which explain, qualify, discredit or destroy his direct testimony.’ ”

¶ 17 (quoting People v. Williams,

(1977)).

¶ 91 These principles notwithstanding, Illinois Rule of Evidence 104(d) provides: “The

accused does not, by testifying upon a preliminary matter, become subject to cross-examination

as to other issues in the case.” Ill. R. Evid. 104(d) (eff. Jan. 1, 2011). “The extent of cross-

examination with respect to an appropriate subject of inquiry rests in the sound discretion of the

trial court.” Stevens,

. Thus, defendant’s decision to testify at the

suppression hearing allowed the State the opportunity to cross-examine him, but only regarding

matters germane to the suppression hearing. According to defendant, his whereabouts prior to

driving on Wolf Road were beyond the scope of the suppression hearing. We disagree.

¶ 92 The trial court properly allowed the prosecutor to ask defendant about the circumstances

of the day, which were contemporaneous with the time of the traffic stop. A question regarding

where defendant was coming from prior to being on Wolf Road was relevant. Defendant testified

that he was driving legally on northbound Wolf Road when he was stopped by a black Tahoe

with flashing lights. In contrast, Chief Lukaszek stated that he observed defendant’s van driving

southbound on Wolf Road, when the van made an illegal U-turn to go northbound on Wolf Road.

Depending on defendant’s answer, his prior location could have further supported his testimony

that he had not broken any traffic laws and did not commit the burglary. Cross-examination

regarding defendant’s location prior to the traffic stop was relevant to the suppression hearing

and factored into whether the officers had a reasonable suspicion to stop defendant’s vehicle.

45 No. 1-13-0698

¶ 93 Moreover, by testifying, defendant had placed his credibility at issue and the State was

entitled to ask him questions about the events of the day. People v. Barner,

(2007) (“By choosing to testify, a defendant puts his credibility on the line.”). The question

was asked several times because defendant evaded answering it. He responded with vague

contradictory answers about where he was going, such as, looking for a gas station, and looking

for a friend’s house. Defendant denied coming from 333 Jackson Boulevard in Hillside, but he

eventually answered that he could not recall. The question was relevant to assess defendant’s

credibility. As defendant concedes that the evidence at the suppression hearing was a credibility

contest, his own credibility was plainly relevant. It was further reasonable for the trial court to

rely on defendant’s responses to assess his credibility. Therefore, the trial court did not err in

allowing the State to inquire where defendant had been prior to driving on Wolf Road.

¶ 94 Defendant also argues that the trial court erred in allowing the State to ask if defendant

had any proceeds from the burglary in his van. Defendant contends that the prosecutor’s question

did not bear on any relevant legal fact and violated his rights. In support, defendant cites People

v. Smith,

(1978), but we find the conclusion in Smith does not support a

finding of plain error.

¶ 95 In Smith, during a suppression hearing, the prosecutor asked the defendant about the

contents of a box recovered from the defendant’s vehicle during a traffic stop. Over objection,

the defendant admitted the box held substances allegedly containing marijuana and substances

allegedly containing amphetamines. When the defendant was asked if he knew what the

substance was, the defendant refused to answer and invoked his fifth amendment rights. The trial

court subsequently denied the defendant’s motion to suppress “ ‘because of failure to answer

questions on cross-examination.’ ”

.

46 No. 1-13-0698

¶ 96 On appeal, the defendant argued that the trial court erred in denying the motion without

considering the merits. The reviewing court noted that the sole issue raised in the motion to

suppress was whether the warrantless search and seizure was unreasonable. “Defendant’s

testimony thereon at the hearing was limited to the events surrounding the search and seizure.

The prosecution inquiry on cross-examination of whether defendant knew what the substances

were – as to the question of to whom they belonged – was neither within the scope of direct

examination nor even germane to the issues raised by the motion to suppress.”

. The

Smith court concluded that the trial court erred in overruling the defendant’s objections, but the

reviewing court ultimately held that the error was harmless.

. “A defendant may not

avail himself of any error on his motion to suppress if the evidence both at the hearing on the

motion and at trial establishes the legality of the search and seizure thus rendering the product of

such to have been properly admissible.”

.

¶ 97 Here, the police had a reasonable suspicion to stop defendant. Chief Lukaszek testified

that he received a report of a residential burglary at 333 Jackson Boulevard, less than a mile from

where he was driving. The report stated that a red Chevy van with two male black offenders fled

the scene and were driving on Madison Street toward Wolf Road. Within 10 seconds of the

report, Chief Lukaszek observed defendant’s red van driving southbound on Wolf Road. He then

saw the vehicle make an illegal U-turn to drive northbound. He curbed the vehicle, but as he

approached, the vehicle fled, driving approximately 85 mph and running three stop signs. The

van turned into a mall parking lot, jumped a curb, and slid down an embankment. Once the

vehicle stopped, the occupants fled on foot. Defendant was detained at the scene. Proceeds from

the burglary were found in the van. Based on this evidence, even if the prosecutor’s question

47 No. 1-13-0698

exceeded the scope and the trial court erred in overruling defendant’s objection, any error was

harmless because the evidence supported a finding of probable cause.

¶ 98 Defendant also asserts that the trial court improperly relied on her own knowledge of the

area along Wolf Road outside of the record. We disagree. During cross-examination, the

prosecutor questioned defendant about his testimony that he was on Wolf Road looking for a gas

station. The prosecutor then asked defendant if he saw several gas stations along Wolf Road,

including intersections with Roosevelt Road, 22nd Avenue, and Cermak Road. Defendant

responded that he did not recall or remember seeing the gas stations. Again, these questions went

to defendant’s credibility. His testimony was that he was going to a gas station, but did not recall

seeing any of the gas stations along his path. He said he was unfamiliar with the area, but fled in

fear for his life to a populated area. The trial court properly concluded that defendant’s testimony

was not credible based on his conflicting testimony that he was unfamiliar with the area, but

knew where a mall was in the area. While the court did not refer to any gas stations beyond those

mentioned in the prosecutor’s questions to defendant, the difference was the court stated what

brand of gas station was at one intersection. This knowledge of the area, such that the judge

knew the gas station at Wolf Road and Roosevelt Road was a Citgo and was now a Shell station,

did not impact the court’s ruling. The trial court was not basing its ruling on information outside

of the record, but instead the court considered defendant’s vague and conflicting testimony

which was not error.

¶ 99 Next, defendant contends that the trial court erred in barring him from calling Detective

Milazzo to testify at the suppression hearing. Detective Milazzo was unable to appear at the

hearing due to a death in his family. At the conclusion of the hearing, defendant sought to call

the detective and the trial court asked if the detective’s testimony would be cumulative to Chief

48 No. 1-13-0698

Lukaszek’s testimony. Defendant responded that he did not know, but intended to ask him the

same questions he asked Chief Lukaszek. The trial court found this testimony would be

cumulative. Evidence is considered cumulative when it adds nothing to what was already before

the fact finder. People v. Ortiz,

(2009).

¶ 100 Defendant bases his contention that the testimony would not have been cumulative on

differences in Detective Milazzo’s trial testimony from Chief Lukaszek’s testimony at the

suppression hearing. Specifically, defendant focuses on Detective Milazzo’s testimony that the

red van was observed turning off southbound Wolf Road onto eastbound Harrison Street

compared to Chief Lukaszek’s testimony that he observed the red van make an illegal U-turn

from southbound Wolf Road to northbound, then turn onto Harrison Street. We find this

difference would make no difference when the officers had a reasonable suspicion to stop

defendant’s van. There is no dispute in their testimony that the red van was seen near Wolf Road

and Harrison Street immediately after the report of the burglary, which was less than a mile

away. Even if the trial court erred in finding that Detective Milazzo’s testimony would be

cumulative, defendant’s motion to suppress would not have been granted and does not amount to

plain error.

¶ 101 Regardless of whether the driver committed a traffic infraction, the officers had a

reasonable basis to detain defendant following the report of the burglary. Pursuant to Terry v.

Ohio,

(1968), a police officer may, under appropriate circumstances, briefly detain a

person for investigatory purposes if the officer reasonably believes that the person has

committed, or is about to commit, a crime. Maxey,

(citing Terry,

). “To justify a Terry stop, a police officer may detain a person without having

probable cause to arrest; however, the officer must have a reasonable, articulable suspicion that

49 No. 1-13-0698

the person detained has committed or is about to commit a crime.”

¶ 46 (citing Terry,

). “Under a ‘reasonable suspicion’ standard, the evidence necessary to justify a

Terry stop need not rise to the level of probable cause and can even arise when no violation of

the law is witnessed; however, a mere hunch is insufficient.”

¶ 102 The circumstances of defendant’s stop in this case are strikingly similar to defendant’s

prior arrest for attempted aggravated robbery. In that case, as previously discussed, defendant

represented himself pro se at a suppression hearing. The testimony disclosed that Aselo

Hernandez and his son Hector were working at Hector’s Upholstery Store on South Western

Avenue in Chicago when defendant entered with a handgun and said it was a robbery. During a

struggle, the gun was knocked from defendant’s grip and found to be a fake. Defendant fled and

Hector ran after defendant. An officer testified that in an interview following the robbery, Hector

said defendant fled in a red or maroon Oldsmobile with temporary license plates. During the

course of the officer’s testimony, the trial court advised defendant that he needed the assistance

of an attorney to properly present his motion. Defendant agreed and requested counsel. The

hearing was continued for several months. Id. ¶¶ 4-11.

¶ 103 At the continued hearing, a police officer testified that he was driving an unmarked police

car when he heard the radio call of the robbery and drove near an intersection reported in a

transmission and within two to three minutes observed a red or burgundy vehicle with temporary

plates driving east on 103rd Street. The officer then curbed vehicle. He stated that the distance

from the traffic stop to the upholstery store was approximately one mile. Id. ¶¶ 14-17. The trial

court granted defendant’s motion to suppress, but the reviewing court reversed, finding that the

police had a reasonable suspicion to justify the Terry stop, which ripened into probable cause. Id.

¶ 68. “Considering the totality of the circumstances, the facts known to the officer at the time of

50 No. 1-13-0698

the arrest were sufficient to lead a reasonably cautious person to believe that defendant was the

suspect in the attempted robbery at the upholstery store, and thus the arrest was lawful.” Id. ¶ 75.

¶ 104 Likewise, in the instant case, the testimony of both officers, whether at the suppression

hearing or at trial, showed that defendant’s red van matched the description of the perpetrators’

vehicle and was seen less than a mile from the location of the burglary within seconds of the

radio call. Any discrepancy in the testimony does not negate these facts and even if defendant

did not commit a traffic violation, the officers had reasonable suspicion to detain defendant for a

Terry stop. Defendant’s flight from the stop further ripened into probable cause to arrest. No

plain error occurred in denying defendant’s request to present Detective Milazzo’s testimony at

the suppression hearing.

¶ 105 Next, defendant asserts that the trial court did not obtain a knowing and voluntary jury

waiver before proceeding with a bench trial. The State maintains that defendant executed a

knowing and voluntary waiver of his right to a jury trial. The State again initially contends that

this issue has been forfeited because defendant failed to raise this claim before the trial court.

Defendant admits that he failed to preserve this issue, but asks this court to review it under the

plain error rule. Defendant argues that the validity of a jury waiver is reviewable under the

second prong of plain error because it affected his substantial rights. See Ill. S. Ct. R. 615(a) (eff.

Jan. 1, 1967). As previously stated, “[t]he first step of plain-error review is to determine whether

any error occurred.” Lewis,

.

¶ 106 “The right to a trial by jury is a fundamental right guaranteed by our federal and state

constitutions.” People v. Bracey,

(2004); see also U.S. Const., amends. VI,

XIV; Ill. Const. 1970, art. I, § 8. Nevertheless, a defendant can waive his right to a jury trial, but

for a waiver to be valid, it must be knowingly and voluntarily made. Bracey,

.

51 No. 1-13-0698

See also 725 ILCS 5/103-6 (West 2010). Under section 115-1 of the Code of Criminal Procedure

of 1963, a jury waiver must be in writing. 725 ILCS 5/115-1 (West 2010).

¶ 107 The trial court has a duty to ensure that the defendant waived his right to a jury trial

“expressly and understandingly.” People v. Bannister,

(2008). “However, a

trial court need not give any specific admonition or advice for a defendant to make an effective

jury waiver.”

“Whether a jury waiver is valid cannot be determined by application of a

precise formula, but rather turns on the particular facts and circumstances of each case.” Bracey,

. The statutory requirement for a written jury waiver does not “define or give

substance to the constitutional right to choose whether to have a jury trial. Rather, a written jury

waiver merely memorializes the defendant’s decision, allowing a court to review the record to

ascertain whether a defendant’s jury waiver was made understandingly.” Bannister,

. “Generally, a jury waiver is valid if it is made by defense counsel in defendant’s presence in

open court, without an objection by defendant.” Bracey,

.

¶ 108 Immediately prior to the start of the bench trial, the trial court discussed defendant’s

written jury waiver. Defendant had executed a written waiver, which stated “I, the undersigned,

do hereby waive jury trial and submit the above entitled cause to the Court for hearing.” The

court then confirmed that it was defendant’s signature on the written waiver. The court

admonished defendant that he was giving up his right to have a trial by jury and asked him if he

knew what a jury trial was. Defendant responded in the affirmative to both inquiries.

¶ 109 Defendant argues that this exchange did not show an understanding and voluntary waiver

of a jury trial because the court failed to explain anything about the rights to a jury trial as well as

explain the concept of a bench trial.

52 No. 1-13-0698

¶ 110 Based on the record before this court, we find no error in the execution of defendant’s

jury waiver. In addition to defendant’s written waiver and statement that he understood what a

jury trial was and his waiver of that right as noted above, defense counsel had previously

indicated that the case would likely be a bench trial. In October 2012, the trial court at a status

hearing was attempting to set the trial date and asked if the case would be a jury trial or bench

trial. Defense counsel answered, “We certainly think at this point it’s a bench trial.” Defendant

did not object to his counsel’s statement. Further, the trial court discussed defendant’s other

pending case and asked defendant if that case was bench trial or jury trial, and defendant

answered, “Jury.” At the conclusion of the proceedings, the court noted the date for trial and

“bench indicated,” without objection. Moreover, as previously recognized, defendant has

extensive experience with the criminal justice system. Even if we did not consider defendant’s

criminal history, the trial court did not err in obtaining defendant’s written jury waiver, when

defendant orally affirmed he understood his right to a jury trial on the record. We conclude that

defendant knowingly and voluntarily waived his right to a jury trial.

¶ 111 We are unpersuaded by cases cited by defendant. In People v. Phuong,

(1997), a recent Chinese immigrant was charged with retail theft and received a court-

appointed attorney. Prior to trial, the defendant signed a written jury trial waiver that had been

translated from English into Chinese.

. The trial court informed the defendant that she

could be tried by either a judge or a jury without further elaboration. Defense counsel stated that

the defendant had agreed to a bench trial.

On appeal, the appellate court reversed the

defendant’s conviction, finding that her jury trial waiver had not been made knowingly.

. The reviewing court pointed out that the defendant did not speak English and had no prior

involvement in the American criminal justice system.

Although the court acknowledged that

53 No. 1-13-0698

the defendant had signed a written jury trial waiver form, it indicated that it was “not convinced

that the mere translation of the waiver form adequately conveyed its meaning to defendant.”

The court observed that “[i]f defendant did not understand the nature of a jury or its function

within the system, then she would not understand the ramifications of her waiver of that right.”

Similarly, in People v. Murff,

(1979), the reviewing court found the

jury waiver inadequate to show that the defendant, who was undergoing psychiatric treatment for

schizophrenia, understood and that “a greater concern or consideration may have been

necessary” under the circumstances. Nothing similar to these unique circumstances was present

in this case.

¶ 112 Defendant next contends that the State’s evidence failed to prove the charge of

aggravated fleeing or attempting to elude a peace officer. When considering a challenge to the

sufficiency of the evidence, our inquiry is limited to “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia,

(1979); accord People v. Cox,

(2001).

¶ 113 Fleeing or attempting to elude a peace officer is defined in the Illinois Vehicle Code as

follows:

“Any driver or operator of a motor vehicle who, having been given

a visual or audible signal by a peace officer directing such driver or

operator to bring his vehicle to a stop, wilfully fails or refuses to

obey such direction, increases his speed, extinguishes his lights, or

otherwise flees or attempts to elude the officer, is guilty of a Class

A misdemeanor. The signal given by the peace officer may be by

54 No. 1-13-0698

hand, voice, siren, red or blue light. Provided, the officer giving

such signal shall be in police uniform, and, if driving a vehicle,

such vehicle shall display illuminated oscillating, rotating or

flashing red or blue lights which when used in conjunction with an

audible horn or siren would indicate the vehicle to be an official

police vehicle.” 625 ILCS 5/11-204(a) (West 2010).

¶ 114 Aggravated fleeing or attempting to elude a peace officer is committed by any driver who

flees or attempts to elude a peace officer, after being given a visual or audible signal by a peace

officer in the manner prescribed in subsection (a) of section 11-204 of this Code, and such flight

or attempt to elude: (1) is at a rate of speed at least 21 miles per hour over the posted speed limit;

(2) causes bodily injury to an individual; (3) causes damage to property in excess of $300; (4)

involves disobedience of two or more official traffic control devices; or (5) involves the

concealing or altering of the vehicle’s registration plate. 625 ILCS 5/11-204.1(a) (West 2010).

¶ 115 Defendant argues that the State failed to prove that the officers attempting to make the

stop were in uniform and that an officer in a vehicle must have certain lights on the vehicle. In

support of his argument, defendant relies on the Second District decision of People v. Murdock,

(2001).

¶ 116 In Murdock, the defendant was found guilty of aggravated fleeing or attempting to elude

a peace officer, and on appeal, contended that there was no evidence presented that the officer

pursuing him was in a police uniform.

. The Second District “carefully reviewed the

evidentiary record and can find no evidence presented concerning the clothing the officer wore

on the day in question. Moreover, the State failed to ask the arresting officer whether he was

wearing a police uniform at the time of the pursuit.”

The reviewing court rejected the State’s

55 No. 1-13-0698

argument that “because the officer activated his overhead emergency lights and siren, defendant

should have known that the pursuer was a police officer and the purpose of the statute would be

fulfilled by upholding the conviction.”

. The Murdock court concluded that “proof of an

essential element of the offense is lacking in this case” and accordingly, the court reversed

defendant’s conviction and vacated the corresponding sentence.

¶ 117 The State admits that Murdock supports defendant’s argument, but maintains that the

decision was wrongly decided. “Although the statute may be read to mandate that the officer

must be in uniform before the defendant can be charged with fleeing and eluding a police officer,

here the goal of the statute is plainly met by defendant’s pulling over in the first place.” The

State further contends that “[t]he legislature clearly did not mean to provide protection to solely

uniformed officers, and if defendant subjectively believed he was fleeing from the police, the

purpose of the law is met.”

¶ 118 Recently, the Second Division of the First District addressed the same issue in People v.

Williams,

, and adhered to Murdock’s finding that an essential element

of the offense of aggravated fleeing or attempting to elude a peace officer is that the officer be in

uniform. The Williams court also considered the State’s objections to the holding in Murdock.

“Citing the legislative history, the State asserts that the statute’s intent was to punish people who

knowingly flee from the police, and, therefore, the uniform requirement can only be read as a

way to exclude those trying to escape a dangerous situation, not as a bar on prosecution of people

willfully fleeing the police.” Id. ¶ 12. The reviewing court then discussed the principles of

statutory construction. The court observed when considering a question of statutory construction,

“the court’s objective involves ascertaining and carrying out the ‘true intent and meaning of the

56 No. 1-13-0698

legislature evidenced by the language used.’ ” Id. ¶ 13 (quoting Langendorf v. City of Urbana,

(2001)).

“Indeed, our inquiry ‘always begin[s] with the language of the

statute, which is the surest and most reliable indicator of legislative

intent.’ People v. Pullen,

(2000). We give

undefined statutory words and phrases their natural and ordinary

meaning.

And we enforce the clear and unambiguous language

as written without resort to other aids of construction, e.g.,

referring to legislative history. People v. Fitzpatrick,

(1994). In addition, it is not the role of the court to act

as editor ‘correcting’ apparent legislative oversights under the

guise of statutory interpretation.”

¶ 119 In light of these principles, the Williams court concluded that “the plain language of

section 11-204(a) of the Illinois Vehicle Code requires a pursuing officer be in police uniform

for a defendant to be found guilty of fleeing or attempting to elude a peace officer.” Id. ¶ 14.

“Because of the clear and unambiguous statutory language, we do not inquire into the legislative

history relied on by the State in its brief.” Id.

¶ 120 Here, the evidence failed to establish the essential element that the officers were in

uniform. Detective Milazzo’s testimony at trial failed to mention what the officers were wearing

at the time of the stop. Detective Milazzo testified he was a passenger in a vehicle driven by

Chief Joseph Lukaszek. He received a call for a burglary at 333 Jackson Boulevard which

mentioned a red van leaving the scene, and the officers were driving near Wolf Road and

Harrison Street, about half a mile from the burglary. Detective Milazzo stated that they saw a red

57 No. 1-13-0698

van turning from southbound Wolf Road onto eastbound Harrison Street. The chief activated the

police lights and effected a traffic stop of the van on Harrison Street. No evidence was presented

at trial that the officers were in uniform, as required by section 11-204.

¶ 121 Additionally, both Williams and Murdock rejected the State’s assertion that if defendant

believed he was fleeing from the police, then the goal of the statute was met. As the Williams

court found, “[t]he operative concern, as in Murdock, is not whether [the defendant] knew the

police were following him; but rather, whether the requirements of the statute have been met.”

Id. ¶ 16. Because the clear and unambiguous language of the statute requires proof that the police

officers were in uniform, defendant’s conviction cannot stand. Accordingly, we reverse

defendant’s conviction for aggravated fleeing or attempting to elude a peace officer and vacate

his three-year sentence on this conviction.

¶ 122 Since we have found that the State failed to prove an essential element of the offense

which mandated reversal of the conviction, we need not address whether the State also failed to

present evidence that the officers’ vehicle had the lights required by the aggravated fleeing

statute.

¶ 123 Finally, defendant argues that the fines and fees order should be reduced by $24 to reflect

improperly imposed fines and full credit for time spent in custody prior to trial. Specifically,

defendant contends that the electronic citation, Public Defender Records Automation, and State’s

Attorney Records Automation fees should be vacated, and a credit should be applied to the State

Police Operations fee.

¶ 124 “[A] ‘fine’ is a part of the punishment for a conviction, whereas a ‘fee’ or ‘cost’ seeks to

recoup expenses incurred by the state—to ‘compensat[e]’ the state for some expenditure incurred

in prosecuting the defendant.” People v. Jones,

(2006).

58 No. 1-13-0698

“ ‘A “fine” is a pecuniary punishment imposed as part of a

sentence on a person convicted of a criminal offense. People v.

Despenza,

(2001). A “cost” is a charge

or fee taxed by a court such as a filing fee, jury fee, courthouse fee,

or reporter fee. Despenza,

. Unlike a fine,

which is punitive in nature, a cost does not punish a defendant in

addition to the sentence he received, but instead is a collateral

consequence of the defendant’s conviction that is compensatory in

nature. People v. Terneus,

(1992). A

“fee” is a charge for labor or services, especially professional

services. Black’s Law Dictionary 629 (7th ed. 1999).’ ” (Emphasis

omitted.)

at 581 (quoting People v. White,

(2002)).

¶ 125 The State agrees that the electronic citation fee should be vacated if this court reverses

defendant’s conviction for aggravated fleeing or attempting to elude a peace officer, which we

have done. Section 27.3e of the Clerks of Courts Act provides: “To defray the expense of

establishing and maintaining electronic citations, each Circuit Court Clerk shall charge and

collect an electronic citation fee of $5. Such fee shall be paid by the defendant in any traffic,

misdemeanor, municipal ordinance, or conservation case upon a judgment of guilty or grant of

supervision.” 705 ILCS 105/27.3e (West 2010). Defendant’s remaining residential burglary

conviction is a felony and does not fall under section 27.3e and, therefore, the $5 electronic

citation fee is vacated.

59 No. 1-13-0698

¶ 126 Next, the State agrees that defendant is entitled to presentence credit for $15 State Police

Operations charge pursuant to section 27.3a(1.5) (705 ILCS 105/27.3a(1.5) (West 2010)).

“Under section 27.3a(1.5) of the Clerks of Courts Act, a circuit clerk in any county that imposes

a fee for maintaining automated record keeping systems pursuant to section 27.3a(1) of the

Clerks of Courts Act must collect an additional fee, the State Police operations assistance fee, to

be paid by the defendant in any felony, traffic, misdemeanor, or local ordinance violation upon a

judgment of guilty or grant of supervision.” People v. Millsap,

;

see also 705 ILCS 105/27.3a(1.5) (West 2010).

“Section 27.3a(5) requires that the circuit clerk remit the fees

collected under section 27.3a(1.5) to the State Treasurer to be

deposited into the State Police Operations Assistance Fund. 705

ILCS 105/27.3a(5) (West 2010). Moneys in the State Police

Operations Assistance Fund may be used by the Illinois

Department of State Police to ‘finance any of its lawful purposes

or functions.’ 30 ILCS 105/6z-82(b) (West 2010) (text of section

as added by Public Act 96-1029 (eff. July 13, 2011)). Additionally,

the legislature subsequently amended section 27.3a, effective

August 19, 2011, to allow the Director of the State Police to use

State Police operations assistance fees for homeland security

purposes. See 705 ILCS 105/27.3a(6) (West Supp. 2011).

Accordingly, we find that the State Police Operations Assistance

fee does not reimburse the State for costs incurred in defendant’s

prosecution.” Millsap,

.

60 No. 1-13-0698

¶ 127 Since the state operations charge under section 27.3a(1.5) is a fine, defendant is entitled

to presentence credit toward it. See 725 ILCS 5/110-14(a) (West 2010) (“Any person

incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on

conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon

application of the defendant.”).

¶ 128 Defendant also argues that the assessments of $2 each for the Public Defender Records

Automation fee (55 ILCS 5/3-4012 (West 2010)) and the State’s Attorney Records Automation

fee (55 ILCS 5/4-2002(a) (West 2010)) were error because the charges amounted to fines

imposed in violation of ex post facto principles since the enactment of the fines was June 1,

2012, after the date of the offense in this case, April 18, 2011.

¶ 129 In People v. Rogers,

, the Fourth District held that the

State’s Attorney Records Automation is a fee which is intended to reimburse the State’s

Attorneys for expenses related to automated record-keeping systems, and is not subject to the

prohibition against ex post facto laws.

(“ ‘The prohibition against ex post facto laws applies

only to laws that are punitive. It does not apply to fees, which are compensatory instead of

punitive.’ ” (quoting People v. Dalton,

(2010))).

¶ 130 This court has previously adhered to the conclusion reached in Rogers that the State’s

Attorney Records Automation fee is not subject to ex post facto concerns, and we see no reason

to depart from that holding. See People v. Bowen,

. Likewise,

“because the statutory language of both the Public Defender and State’s Attorney Records

Automation fees is identical except for the name of the organization, we find no reason to

distinguish between the two statutes, and conclude both charges constitute fees which were

properly assessed.”

¶ 65 (citing 55 ILCS 5/3-4012, 4-2002.1(c) (West 2012)).

61 No. 1-13-0698

¶ 131 Based on the foregoing reasons, we affirm defendant’s conviction and sentence for

residential burglary, and reverse his conviction for aggravated fleeing or attempting to elude a

peace officer and vacate the sentence of three years imposed on that conviction. Pursuant to this

court’s authority to correct a mittimus without remand (People v. Rivera,

(2008)), we direct the clerk of the circuit court to correct the fines and fees order to reflect

that defendant’s presentence credit applies to his $15 State Police Operations fine, and vacate the

$5 electronic citation fee.

¶ 132 Affirmed in part and reversed in part; fines and fees order corrected.

¶ 133 Ellis, J., concurring in part and dissenting in part.

¶ 134 I concur in the reversal of defendant’s conviction for aggravated fleeing. I also agree that

defendant’s waiver of a jury trial was knowing and voluntary. I respectfully dissent from the

majority’s holding that the trial court substantially complied with Rule 401(a).

¶ 135 The trial court admonished defendant that he was facing a sentence of 4 to 15 years if

convicted of residential burglary, when it was really 6 to 30 years, and the trial court ultimately

sentenced defendant to 20 years for that crime. The court understated the maximum sentence by

half and sentenced defendant to more years than the court (mistakenly) promised was the

maximum sentence.

¶ 136 Another appellate court faced these identical facts: the defendant was facing 6 to 30 years

due to his Class X status; he was told his sentencing range was 4 to 15 years; and he ultimately

received 20 years. That court “fail[ed] to see compliance of any sort” with Rule 401(a) in these

admonishments. People v. LeFlore,

, aff’d in part, rev’d in part on

other grounds,

(supreme court reversed on separate fourth amendment issue,

after State conceded error on Rule 401(a) violation). I think the LeFlore appellate decision was

62 No. 1-13-0698

correctly decided on the Rule 401(a) issue, as apparently did the State, which conceded the error

before the supreme court and agreed that reversal was warranted due to the incompetent

admonishments. People v. LeFlore,

. We cannot glean precedential

value from a party’s concession, but it is notable that the State did not even try to argue

compliance with Rule 401(k) under facts quite similar to ours.

¶ 137 The principal disagreement between the majority’s decision and this dissent is the notion

that defendant had sufficient knowledge to understand the maximum sentence in this case, even

though the trial judge did not. For one thing, the record does not bear out that conclusion. When

the trial court told defendant that his maximum sentence for residential burglary was 15 years,

defendant replied, “Right.” He did not correct the trial judge or indicate confusion in any way.

He did nothing more or less than indicate that he understood and agreed with the trial court’s

stated maximum sentence of 15 years.

¶ 138 Nor should we expect more of a criminal defendant than we do of seasoned trial judges,

not to mention the prosecutor in the courtroom that failed to correct the judge’s mistake. It

should be “the unusual case” that we find that a defendant “has such a high degree of legal

expertise that one may confidently assume he or she already knows the maximum penalty.”

People v. Bahrs,

. We should not assume here that defendant was

so sure of himself, so confident in his legal sophistication and knowledge, that he would exalt his

own understanding of the sentencing laws over that of an experienced trial judge. See LeFlore,

(“We are not prepared to ascribe to defendant a heightened level

of legal sophistication based on * * * the supposedly osmotic experience of being repeatedly

arrested and convicted. A long rap sheet is not the equivalent of a Juris Doctorate, and

recidivism with punishment infers a perverse level of sophistication.”).

63 No. 1-13-0698

¶ 139 As the majority notes, defendant had been sentenced as a Class X mandatory felon in the

past. And yes, he previously indicated, in another case in a different courtroom concerning a

different charge, that he was aware of his Class X status. But it does not follow that defendant

knew that he was facing a sentencing range of 6 to 30 years if convicted of residential burglary.

¶ 140 Maybe defendant thought his Class X status did not apply to a charge for residential

burglary. Maybe he did not know that the charge for simple residential burglary was 4 to 15

years, and he thought that the 4-to-15 range the circuit judge gave him was the elevated sentence

based on his Class X status. As a matter of law, those would be incorrect assumptions, but we are

not talking about what was actually, legally correct. We are talking about what this defendant

knew and understood, after the trial judge explicitly told him his maximum sentence was 15

years. No matter what defendant might have thought he understood before being admonished,

any reasonable person in his shoes would re-think his own understanding of the sentencing laws

after being admonished otherwise by the judge. The criminal sentencing statutes, after all, are not

exactly light reading. As we have frequently noted, even lawyers and judges have been known,

from time to time, to misstate or misapply them. 2

¶ 141 The very point of Rule 401(a) is to leave it to the judge—hopefully with an assist from

the prosecutor—to navigate the myriad sentencing laws and statutory cross-references to inform

otherwise uninformed defendants of the sentences they may face if convicted. That did not

2 See, e.g., People v. Whitfield,

(2007) (State mistakenly advised court of defendant's criminal history; defendant was ineligible for probation and subject to mandatory Class X sentence); People v. Douglas,

(remanding for new sentencing hearing; trial court erred in sentencing defendant as Class X offender); People v. Ellis,

(2007) (court erroneously told defendant he faced sentence as Class 2 felon when he was actually required to be sentenced as Class X offender); People v. Baaree,

(2000) (where relevant statute, by its terms, did not apply to defendant, trial court erred in finding defendant subject to mandatory Class X sentencing); People v. Hare,

(2000) (defendant was subject to Class X sentencing and applicable minimum sentence was six years, but State agreed, in exchange for guilty plea, to recommend four-year sentence which trial court imposed but later vacated as void). 64 No. 1-13-0698

happen here. However hardened a criminal defendant may be, we should not expect him to know

more than the trial judge; his response of “Right” to the incorrect admonishment suggests he did

not know more; and thus I would find noncompliance with Rule 401(a).

65