Opinion filed September 3, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2020

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-17-0307 v. ) Circuit No. 14-CF-53 ) JORDAN T. WOOSLEY, ) The Honorable ) Stanley B. Steines, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O’Brien and Wright concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 The defendant, Jordan T. Woosley, pled guilty to robbery (720 ILCS 5/18-1(a) (West

2012)) and was sentenced to 30 months of probation and 180 days in jail. After the circuit court

denied his motion to withdraw his guilty plea, Woosley appealed. On appeal, he argues that he

was denied his constitutional right to counsel when appointed counsel participated only by

telephone at the hearing at which the defendant was arraigned and was allowed to proceed

pro se. We reverse and remand.

¶2 I. BACKGROUND ¶3 On February 7, 2014, the State charged Woosley by information with home invasion (id.

§ 19-6(a)(3)) and armed robbery (id. § 18-2(a)(2)). Count I alleged that Woosley knowingly and

without authority entered the dwelling place of Terry Schultz and threatened him with a firearm.

Count II alleged that Woosley, while armed with a firearm, took a firearm and money from

Schultz’s person.

¶4 Woosley initially had the public defender appointed but then retained private counsel,

who was later allowed to withdraw. Another public defender was appointed.

¶5 An amended information was filed on January 6, 2015, which added two counts of

robbery (id. § 18-1(a)). One of these counts alleged that Schultz was 60 years of age or older. In

addition, an accountability theory was added to count I.

¶6 The State filed a motion for fitness evaluation on January 26, 2015, claiming that it had a

bona fide doubt of Woosley’s fitness to stand trial based on phone calls Woosley had made while

in custody in which he stated, inter alia, that he was intending to kill himself and take several

people with him and that he was not taking his psychotropic medication regularly. The circuit

court denied that motion after a hearing, finding that the issues raised by the State did not

indicate that Woosley was unable to understand the nature and purpose of the proceedings

against him.

¶7 In March 2015, defense counsel asked for a continuance of Woosley’s trial. Woosley

complained about defense counsel’s representation of him, alleging that she did not want to work

with him because she refused to file charges “against the State” and against a detective. Woosley

also alleged that defense counsel’s request for a continuance was made in the State’s best

interest, not his. The court granted the motion.

2 ¶8 On July 10, 2015, the circuit court held a hearing on a motion to continue filed by the

State. Woosley was present in the courtroom. Defense counsel was present via telephone. 1

Initially, the court took care to ensure the record would reflect that while the case had been set

for a jury trial to be held on July 14, 2015, the prosecutor “had come into my chambers *** a

half an hour ago or more and wanted to know if I could consider a motion to continue this

afternoon and that [defense counsel] could make herself available by phone conference.”

Defense counsel then informed the court that she had received that morning an e-mail that

Woosley wished to represent himself. Woosley clarified that he wanted to proceed pro se but that

he wanted defense counsel reappointed as standby counsel only for the time he was on the stand

because he could not question himself. The court stated that it was reluctant to take up any more

of defense counsel’s time other than what was necessary for the State’s motion to continue.

However, defense counsel stated that she had the time. Ultimately, the court denied Woosley’s

request for appointment of standby counsel, in part explaining that it was not necessary to have

someone question him while he was on the stand.

¶9 Next, a lengthy discussion was had regarding Woosley’s desire to proceed pro se. During

the discussion and before the court proceeded with admonishing Woosley, the prosecutor

informed the court that he wished to file a second amended information, which had two changes:

(1) accountability theories were added to counts II to IV and (2) in count II (armed robbery),

“from the person of Terry Schultz” was changed to “from the person or presence of Terry

Schultz[.]” The prosecutor stated that he had the amended information drafted and ready for

1 Two days earlier, during a hearing on a motion to reconsider the denial of a motion to dismiss, defense counsel had informed the court that she would not be available on July 10, 2015. 3 filing. When the prosecutor left the courtroom to get the draft of the amended information, the

following exchange occurred:

“THE COURT: Mr. Woosley, you can say anything you’d

like to, but you’re still on the record. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: I’m just going to ask you to stand quietly

until everybody is here.

THE DEFENDANT: Not a problem.”

Woosley said that the amended information did not change his desire to proceed pro se. The

court then read the charges and potential penalties to Woosley, who said he understood.

¶ 10 Next, the court admonished Woosley on the consequences of self-representation.

Woosley said he understood and still wished to proceed pro se. Woosley executed a written

waiver of attorney, and defense counsel was discharged.

¶ 11 Eventually, Woosley entered an Alford plea 2 to one count of robbery and was sentenced

to 30 months of probation and 180 days in jail. New counsel for Woosley filed a motion to

withdraw the plea, which ultimately was denied. Woosley appealed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, Woosley argues that he was denied his constitutional right to counsel when

appointed counsel participated only by telephone at the hearing at which the defendant was

arraigned and allowed to proceed pro se. Specifically, he contends that

2 An Alford plea is a guilty plea in which a defendant maintains his innocence. See North Carolina v. Alford,

(1970). 4 “[b]ecause Defendant’s counsel participated by telephone during the hearing on

Defendant’s motion to represent himself, counsel was unable to confidentially

confer with Defendant, advise him of his rights, answer any questions he may

have, personally advise Defendant of the ramifications of the State filing an

amended information, or, most importantly, ascertain whether Defendant was

legally fit to represent himself.”

¶ 14 Initially, we note that Woosley admits that he has not preserved this issue for appellate

review. However, he requests that we review the issue under the plain-error doctrine.

“[T]he plain-error doctrine 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).

The first step in the analysis is to determine whether error occurred.

¶ 15 The sixth amendment guarantees an accused a right to assistance of counsel in a criminal

proceeding. U.S. Const., amend. VI. “A defendant is entitled to the representation of counsel at

all critical stages of a criminal prosecution, and this important right will not be taken away unless

affirmatively waived by a defendant.” People v. Burton,

(1998). An important

consideration in whether a particular stage is critical is whether “certain legal rights may be lost

5 if not exercised at this stage.” Mempa v. Rhay,

(1967) (holding,

additionally, that counsel “is required at every stage of a criminal proceeding where substantial

rights of a criminal accused may be affected”). We review the issue of whether a defendant was

denied his or her right to counsel de novo. People v. Abernathy,

(2010).

¶ 16 In this case, the context in which the alleged deprivation of counsel took place was as

unique as it was significant. The prosecutor knew that defense counsel could not be in court on

July 10, 2015. Nevertheless, he requested a hearing on the State’s motion to continue the trial

after confirming that defense counsel could appear by telephone. At that point, Woosley would

have a difficult time arguing that the case was at a critical juncture. However, subsequent events

elevated the importance of the hearing. At the outset of the hearing, defense counsel informed

the court that Woosley had requested, that morning, to proceed pro se. During the discussion of

that matter, just before the court was going to give Woosley the appropriate admonishments, the

prosecutor interrupted and said that he wanted to file an amended information. 3 Thus, Woosley

also needed to be arraigned on the amended information, of which neither Woosley nor his

counsel had advance notice. Accordingly, while the hearing began as a simple hearing on a

motion to continue the trial, it quickly became a critical stage of a criminal prosecution. See

Missouri v. Frye,

(2012) (holding that an arraignment is a critical stage in

criminal proceedings).

¶ 17 Under these unique circumstances, we do not believe that presence of counsel by

telephone—and on speaker for everyone in the courtroom to hear without being afforded any

opportunity for confidential communication with her client—is the type of representation

3 Further, because he stated that he had already drafted the amended information, it appears that the prosecutor either negligently or, even worse, intentionally deceived the circuit court by initially saying only that he intended to address a motion to continue the trial on June 10, 2015. 6 contemplated by the sixth amendment. The sixth amendment “embodies a realistic recognition of

the obvious truth that the average defendant does not have the professional legal skill to protect

himself when brought before a tribunal with power to take his life or liberty, wherein the

prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst,

(1938). Despite the fact that Woosley told the circuit court that the prosecution’s

amended information did not change his desire to proceed pro se, we believe that properly

protecting Woosley’s sixth amendment right to counsel would have included, at the very least,

permitting private consultation with defense counsel, especially because the amended charges

were being filed at the same time that a motion to proceed pro se was being discussed. See, e.g.,

People v. Noble,

(1969). The rushed informality of the matters raised at

the hearing enabled the prosecutor to successfully place his convenience above the constitutional

safeguards for this defendant. We therefore hold that error in fact occurred when defense counsel

was present by telephone in this case, as it had the effect of denying Woosley his right to counsel

under the sixth amendment.

¶ 18 Because we have found error in fact occurred, we now turn to Woosley’s contention that

the error was reversible under the second prong of the plain-error doctrine, which allows a

reviewing court to consider unpreserved error if “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” (Piatkowski,

). Second-prong plain error is not

limited to the structural errors that have been recognized by the United States Supreme Court

(People v. Clark,

, ¶ 46), but the Supreme Court has in fact recognized the denial

of counsel under the sixth amendment to be structural error (United States v. Gonzalez-Lopez,

(2006) (citing Gideon v. Wainwright,

(1963)). Under

7 the second prong, the court will presume the defendant was prejudiced due to the importance of

the right involved, regardless of the strength of the evidence. People v. Herron,

(2005). Accordingly, under the circumstances presented by this case, we hold that Woosley

was denied his sixth amendment right to counsel at the July 10, 2015, hearing. We therefore

reverse his conviction and sentence and remand for further proceedings.

¶ 19 Lastly, we emphasize that this hearing took place on July 10, 2015, long before

prearranged remote hearings became more common due to the current pandemic. Our decision in

this case must not be read as impacting any situation other than impromptu remote hearings

without advance notice.

¶ 20 III. CONCLUSION

¶ 21 The judgment of the circuit court of Whiteside County is reversed, and the cause is

remanded for further proceedings.

¶ 22 Reversed and remanded.

8 No. 3-17-0307

Cite as: People v. Woosley,

Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 14-CF- 53; the Hon. Stanley B. Steines, Judge, presiding.

Attorneys James E. Chadd, Peter A. Carusona, and James Wozniak, of State for Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys Terry A. Costello, State’s Attorney, of Morrison (Patrick for Delfino, Thomas D. Arado, and Stephanie L. Raymond, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

9