People v. Marcum
Illinois Supreme Court
People v. Marcum, 2024 IL 128687 (Ill. 2024)
People v. Marcum
Opinion
2024 IL 128687
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128687)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v. CLAYTON T. MARCUM, Appellant.
Opinion filed March 21, 2024.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant, Clayton T. Marcum, was convicted in the circuit court of Ford
County of two counts of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West
2018)). Defendant was sentenced to consecutive prison terms of seven years on
each count. Defendant appealed, arguing that his right to a speedy trial had been
violated, he did not knowingly waive his right to counsel, the State failed to prove
him guilty of aggravated domestic battery, and the circuit court violated his right to
remain silent when it ordered him to participate in the preparation of his presentence
investigation report. 2022 IL App (4th) 200656-U.
¶2 The appellate court agreed that the evidence was insufficient to prove defendant
guilty of aggravated domestic battery. The appellate court therefore reduced
defendant’s convictions to Class 3 aggravated batteries and remanded to the trial
court for resentencing. The appellate court rejected defendant’s remaining
arguments. In this court, defendant appeals only his speedy trial and waiver of
counsel claim. For the following reasons, we affirm the judgment of the appellate
court.
¶3 BACKGROUND
¶4 On September 1, 2019, police officer Brandon Ryan of the Paxton Police
Department received a report of a naked man outside some apartments. When
Officer Ryan arrived on the scene, he observed a man, later identified as Greg
Rudin, lying in an alley outside the apartments with various injuries. Rudin was
taken to a hospital, where he was diagnosed with a subarachnoid hemorrhage and
broken ribs.
¶5 Bystanders told Officer Ryan that they had seen Rudin with defendant. Officer
Ryan then spoke with defendant. Defendant said that he and Rudin drank together
at defendant’s apartment until Rudin left at 10 p.m. Officer Ryan noted that
defendant had dried blood on his clothing. Defendant then clarified that he and
Rudin had wrestled and that he assisted Rudin down the stairs. Defendant
eventually stated that Rudin fell down the stairs.
¶6 Officer Ryan returned to defendant’s apartment with a search warrant. Officers
found blood on a mattress in the apartment and in a stairwell outside the apartment.
Defendant stated that Rudin was bleeding prior to leaving the apartment. The
officers arrested defendant on charges of aggravated battery and obstruction of
justice.
¶7 Five days after defendant’s arrest, investigating officers met with defendant at
the county jail, where he made a videotaped confession. Defendant told the officers
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that he met Rudin several days prior to September 1, 2019, and had a sexual
encounter with Rudin. On September 1, defendant and Rudin were drinking and
began to wrestle and engage in consensual horseplay. Defendant admitted that he
struck Rudin while they were wrestling. The wrestling stopped when Rudin began
bleeding. Defendant and Rudin then left defendant’s apartment to walk to a bar.
While on their way to the bar, Rudin fell down the stairs. Defendant tried to help
Rudin walk outside, but Rudin kept falling. When Rudin fell the last time,
defendant stomped on Rudin. Defendant told Rudin to stay there, to sleep it off, and
to take himself home in the morning.
¶8 On September 27, 2019, the State charged defendant with one count of
aggravated battery, a Class 3 felony, for striking Rudin on the head and body and
knowingly causing Rudin great bodily harm. The information stated that, if
defendant was convicted of the charged offense, he could be sentenced to an
extended term of 5 to 10 years in prison based upon a prior residential burglary
conviction in Iroquois County. The public defender’s office was appointed to
represent defendant.
¶9 At the preliminary hearing on September 30, 2019, Officer Ryan testified that,
when he spoke to defendant at the scene, defendant had dried blood on his shirt and
jeans. Officer Ryan also testified that, in defendant’s videotaped statement
following his arrest, defendant admitted that he struck Rudin’s head and saw blood
coming out of his mouth. Defendant also demonstrated how he stomped on Rudin
after he fell. Rudin suffered broken ribs, a punctured lung, and three brain
hematomas. Officer Ryan said that Rudin had recently awakened from a coma and
was unable to speak. Officer Ryan also testified that he learned during his
investigation that defendant and Rudin were in a dating relationship. The trial court
found probable cause to support the aggravated battery charge and suggested an
October 2019 trial date. Defense counsel objected and, after consulting with
defendant, proposed a January 2020 trial date. The trial court granted defendant’s
request.
¶ 10 Defendant’s trial was set for January 6, 2020, but on that date, the circuit court
granted the State’s motion to extend the speedy trial term by no more than 20 days
in order to complete DNA testing, over defendant’s objection. The trial court set
the trial for April 2020.
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¶ 11 At a hearing on March 19, 2020, the State indicated that it had received and
provided defense counsel with the DNA test results and that the State was ready for
trial. In March 2020, the State also made an offer of an eight-year sentencing cap
in exchange for a guilty plea from defendant. After consulting with his attorney,
defendant rejected the State’s offer. Defendant also stated that he wanted his
attorney removed from the case.
¶ 12 On April 13, 2020, the case was continued to July 2020 due to this court’s
COVID-19 administrative orders. At a May 15, 2020, hearing, defendant again
informed the court that he wanted his attorney removed. The trial court continued
the case for a hearing on defendant’s request. On May 22, 2020, the trial court told
defendant the nature of the charge, admonished defendant of his rights under
Illinois Supreme Court Rule 401 (eff. July 1, 1984), and discussed with defendant
his right to counsel and the consequences of proceeding pro se. Defendant affirmed
that he wished to proceed pro se.
¶ 13 On July 6, 2020, the State dismissed the aggravated battery count and filed a
two-count information charging defendant with two counts of aggravated domestic
battery, a Class 2 felony. Count I alleged that defendant struck Rudin with his fist,
causing a subarachnoid hemorrhage, that defendant caused great bodily harm to
Rudin, and that Rudin was defendant’s family or household member. Count II
alleged that defendant stomped on Rudin with his foot, causing rib fractures, that
defendant knowingly caused great bodily harm to Rudin, and that Rudin was
defendant’s family or household member. Both counts averred that defendant was
eligible for extended term sentencing due to defendant’s prior residential burglary
conviction.
¶ 14 The new counts proceeded to arraignment. At the arraignment, the trial court
read the new information to defendant. The trial court admonished defendant that
he was facing a sentence of 7 to 14 years on each charge, rather than the usual
sentence of 3 to 7 years, due to his prior residential burglary conviction. The trial
court also informed defendant that a mandatory supervised release (MSR) term
would be added to any prison sentence and that probation and conditional discharge
were available sentences. Defendant sought clarification of the charges. The trial
court repeated the charges and the possible penalties and also told defendant that
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he would need to serve 85% of any prison sentence and would be ineligible for day-
for-day credit. Defendant responded that he understood.
¶ 15 The trial court then confirmed that defendant still wished to represent himself.
The trial court asked defendant if he understood the charges; defendant responded,
“Yeah.” The trial court then asked defendant if he understood the minimum and
maximum penalties, including extended term eligibility, the MSR range, and the
applicable financial obligations. Defendant responded, “Uh-huh.” The trial court
next told defendant that he had the right to represent himself but that counsel could
be appointed for him if he was indigent. When asked if he understood that,
defendant said “Yeah.” The trial court asked defendant if he wished to waive his
right to counsel, and the defendant said he did.
¶ 16 Defendant then asked the court about spending 120 days in custody and whether
the speedy trial limitation was “completely out the window.” The trial court stated
that the speedy trial limitation was tolled by this court’s COVID-19 order.
Defendant responded, “So I have to start all over again? Like be here, like be here
over a year ago or three more months or four more months?” The trial court
answered that defendant’s case was continued by agreement and due to COVID-
19. Defendant replied, “[y]ou can see I been here for about a year, and this ain’t a
murder charge. I been here for about a year.” The trial court again responded that
the case was continued by agreement and that the speedy trial period starts over
every time the case is continued by agreement. Defendant asked the court if there
were “anymore curve balls I need to be aware of?” The trial court denied there was
a curve ball and informed defendant that the State simply “elected to file a different
charge.”
¶ 17 A preliminary hearing on the new charges was held on August 4, 2020. Officer
Ryan testified consistently with his testimony at the prior preliminary hearing.
Officer Ryan also told the court that Rudin was now confined to an assisted living
facility, was unable to care for himself, and would require assistance for the rest of
his life. The trial court found probable cause to support the charges and set
defendant’s trial for October 2020. Defendant then indicated that he was confused
concerning the nature of the charges, asking “is this still aggravated battery with
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intent at any time to do bodily harm?” The trial court responded that the charge was
“a straight domestic battery, which is a Class 2.” 1
¶ 18 Prior to jury selection, the trial court again asked defendant if he understood the
nature of the charges, what he was charged with, and the possible penalties for those
charges. The defendant acknowledged he was charged with aggravated domestic
battery. The trial court clarified that defendant was charged with two counts of
aggravated domestic battery. The trial court also confirmed that defendant knew he
was facing a sentence of 7 to 14 years. Defendant then asked the court if he “would
be charged with two charges” if he was found guilty. The prosecutor responded
that, if defendant was found guilty, he was “going to be sentenced to one sentence.”
The trial court then stated, “[y]ou will not be sentenced twice.” Defendant replied,
“Oh, so I would be looking at seven to 14 years?” The trial court answered, “[y]es.”
After further admonishments from the trial court, defendant reaffirmed that he
wished to proceed pro se.
¶ 19 On the last day of trial, the prosecutor informed the court that there was an error
in the Law Enforcement Agencies Data System (LEADS) sheet concerning
defendant. The prosecutor determined that the residential burglary charge listed
under defendant’s name was not defendant’s case. Defendant confirmed that he had
never been convicted of residential burglary. The prosecutor told the court that
defendant was no longer subject to extended term sentencing but rather faced a
sentencing range of three to seven years’ imprisonment.
¶ 20 At the close of trial, the jury found defendant guilty of both counts of aggravated
domestic battery. At defendant’s sentencing hearing, the State asked that
defendant’s sentences be served consecutively. When defendant asked what that
meant, the trial court explained that the State was asking for two separate terms of
seven years, to be served one after the other. Defendant responded, “[l]ike 14
years?” The trial court confirmed it was 14 years. Following the sentencing hearing,
the trial court sentenced defendant to a seven-year prison term on each conviction,
to be served consecutively. Defendant did not file a posttrial motion.
1
The charges were aggravated domestic battery.
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¶ 21 On appeal, the appellate court agreed with defendant that the evidence was
insufficient for a rational trier of fact to have found beyond a reasonable doubt that
defendant was in a dating relationship with Rudin. 2022 IL App (4th) 200656-U,
¶ 68. The appellate court therefore reduced defendant’s convictions to aggravated
battery and remanded the case to the trial court for resentencing. Id. ¶ 69. Relevant
to the instant appeal, the appellate court found that defendant’s statutory right to a
speedy trial had been violated but that the error was not subject to plain-error
review. Id. ¶¶ 44, 51. Accordingly, defendant waived his speedy trial claim when
he failed to file a motion for discharge pursuant to section 114-1(b) of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(b) (West 2018)). 2022 IL
App (4th) 200656-U, ¶ 51. The appellate court also found that defendant knowingly
waived his right to counsel. Id. ¶¶ 60-61.
¶ 22 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Oct. 1, 2021).
¶ 23 ANALYSIS
¶ 24 On appeal, defendant first argues that, despite correctly finding that the State
violated his statutory right to a speedy trial when it filed the aggravated domestic
battery charges, the appellate court erred in finding that the violation was not
subject to plain-error review. The State does not dispute that defendant’s statutory
right to a speedy trial was violated but disagrees that the violation is subject to
plain-error review.
¶ 25 The people of the State of Illinois possess a constitutional right to a speedy trial
under both the United States and the Illinois Constitutions. See U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Both this court and the United States
Supreme Court have recognized that the right to a speedy trial cannot be defined in
terms of a precise or absolute standard of time. Barker v. Wingo, 407 U.S. 514, 522
(1972); People v. Henry, 47 Ill. 2d 312, 316 (1970). Given the imprecise nature of
the constitutional right to a speedy trial, the Illinois legislature has historically
provided that an accused in custody shall be tried within a certain time. See People
ex rel. Nagel v. Heider, 225 Ill. 347, 350 (1907) (statute provided that, with certain
exceptions, accused not admitted to bail shall be tried within four months of his
date of commitment). The current speedy trial statute is set forth in section 103-5
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of the Code (725 ILCS 5/103-5 (West 2020)). Section 103-5(a) provides that, with
certain exceptions, “[e]very person in custody in this State for an alleged offense
shall be tried by the court having jurisdiction within 120 days from the date he or
she was taken into custody.” Id. § 103-5(a). Section 103-5 implements the
constitutional guarantee to a speedy trial; however, the statute is not equivalent to,
or coextensive with, the constitutional right to a speedy trial. People v. Crane, 195
Ill. 2d 42, 48 (2001).
¶ 26 To claim a violation of the statutory right to a speedy trial, section 114-1 of the
Code provides:
“(a) Upon the written motion of the defendant made prior to trial before or
after a plea has been entered the court may dismiss the indictment, information
or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in compliance with
Section 103-5 of this Code.
***
(b) The court shall require any motion to dismiss to be filed within a
reasonable time after the defendant has been arraigned. Any motion not filed
within such time or an extension thereof shall not be considered by the court
and the grounds therefor *** are waived.” 725 ILCS 5/114-1(a)(1), (b) (West
2020).
¶ 27 Defendant concedes that he did not file a pretrial motion to dismiss on statutory
speedy trial grounds but argues that this court should review the issue as plain error.
It is well settled that a defendant must object at trial and raise a purported error in
a posttrial motion in order to preserve the error for review. People v. Williams, 2022
IL 126918, ¶ 48. Failure to do either results in forfeiture of the error, but the
forfeiture may be excused where the error is plain error. Id. Illinois Supreme Court
Rule 615(a) (eff. Jan. 1, 1967) memorializes the plain-error doctrine. Rule 615(a)
provides, in pertinent part, that “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the trial court.”
Id.
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¶ 28 The plain-error rule does not allow for review of all forfeited errors. People v.
Jackson, 2022 IL 127256, ¶ 19. A court will review a forfeited error in two
circumstances: (1) where the evidence is so closely balanced that the jury’s verdict
may have resulted from the error and not the evidence or (2) when the error is so
serious that it affected the fairness of the trial and challenged the integrity of the
judicial process. Id. Whether there is plain error is a question of law that this court
reviews de novo. Williams, 2022 IL 126918, ¶ 48.
¶ 29 Defendant argues that the violation of his statutory right to a speedy trial was
so serious that it affected the fairness of his trial and challenged the integrity of the
judicial process. Therefore, defendant maintains that the error may be reviewed
under the second prong of the plain-error rule.
¶ 30 This court has not had the opportunity to directly address whether a statutory
speedy trial violation constitutes plain error. The argument was raised in both
People v. Staake, 2017 IL 121755, and People v. Hartfield,2022 IL 126729
, but
this court found no error occurred in either case and, therefore, did not reach the
issue.
¶ 31 This court did discuss section 103-5 in People v. Pearson, 88 Ill. 2d 210 (1981),
in the context of whether a speedy trial violation may be raised for the first time in
a posttrial motion. Pearson found that it could not, holding that a motion for
discharge for a speedy trial violation must be brought to the trial court’s attention
before trial, based upon the express language of section 114-1 of the Code. Id. at
219. Pearson noted that the right conferred by section 103-5 was “not absolute in
the sense that the mere passage of time ousts the court of jurisdiction to try the
accused and makes his release mandatory.” Id. at 216. Pearson explained that “it
was long ago established that the right to discharge granted by the statute was
waived if not asserted by the defendant prior to conviction.” (Emphasis added.) Id.
Further, section 114-1 specifically provided that a “violation of the provisions of
section 103-5 of the Code relating to speedy trial is waived unless a motion for
discharge is made prior to trial.” (Emphasis added.) Id. at 217.
¶ 32 Defendant distinguishes Pearson on the ground that there was no indication in
that case that the defendant invoked the plain-error doctrine to excuse his
procedural default. Defendant finds support for his argument in several appellate
court decisions holding that a violation of the speedy trial statute qualifies for
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review under the second prong of plain-error review. See People v. Mosley, 2016
IL App (5th) 130223; People v. Smith,2016 IL App (3d) 140235
; People v.
McKinney, 2011 IL App (1st) 100317; People v. Gay,376 Ill. App. 3d 796
(2007).
¶ 33 The appellate court in this case declined to follow the case law cited by
defendant. The appellate court pointed out that those decisions lacked any analysis
in finding plain error based upon statutory speedy trial violations. 2022 IL App
(4th) 200656-U, ¶ 48. The appellate court instead observed that, in section 114-
1(b), the legislature provided for the “forfeiture” of a statutory speedy trial violation
if the speedy trial violation was not timely raised. Id. ¶ 51. The appellate court
therefore concluded that, if a statutory speedy trial violation alone constituted plain
error, the legislature would not have provided for its waiver in section 114-1(b). Id.
¶ 34 At the outset, we note that the appellate court used the terms “waiver” and
“forfeiture” interchangeably. Section 114-1(b), however, expressly provides that
the right to a speedy trial is waived if not filed “within a reasonable time after the
defendant has been arraigned.” 725 ILCS 5/114-1(b) (West 2020). Accordingly, the
issue is whether defendant can claim plain error when he has waived his right to a
speedy trial. We find that he cannot.
¶ 35 In each of the cases relied upon by defendant, the courts conflated a defendant’s
constitutional right to a speedy trial with his statutory right to a speedy trial. The
court in Gay originated the error. Without further analysis, Gay stated that a
“speedy trial is a substantial fundamental right (People v. Crane, 195 Ill. 2d 42, 46,
743 N.E.2d 555, 559 (2001)); thus, we will review defendant’s claim under the
plain-error doctrine despite defendant’s failure to file a motion to dismiss the
charges or file a posttrial motion.” Gay, 376 Ill. App. 3d at 799. Gay’s reliance on
Crane was misplaced. Crane was referencing an accused’s constitutional right to a
speedy trial, not his statutory right to a speedy trial. See Crane, 195 Ill. 2d at 46
(“[t]he sixth amendment right to a speedy trial is fundamental”).
¶ 36 The McKinney court simply repeated Gay’s misstatement. The defendant in
McKinney claimed a violation of his statutory speedy trial right and conceded that
he had failed to properly preserve the issue for review. 2011 IL App (1st) 100317,
¶ 27. The defendant argued that the court should nonetheless consider the issue
under the plain-error doctrine. Id. The appellate court, citing Gay, agreed that,
“despite the defendant’s failure to include this issue in the motion for a new trial, it
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is subject to plain error review because a speedy trial implicates fundamental
constitutional concerns.” Id. ¶ 29.
¶ 37 Mosley also repeated Gay’s misstatement that a speedy trial is a substantial
fundamental right, without distinguishing between statutory and constitutional
speedy trial rights. Mosley, 2016 IL App (5th) 130223, ¶ 9. The defendant in Mosley
claimed he was denied his statutory right to a speedy trial. Id. Although the
defendant failed to raise the issue in the trial court, the Mosley court cited Gay in
electing to “address the issue under the plain-error doctrine because a speedy trial
is a substantial fundamental right.” Id.
¶ 38 Similarly, the defendant in Smith claimed a violation of the speedy trial statute
and failed to preserve the issue for appeal. Citing McKinney, the Smith court stated
that it would “accept defendant’s request to consider his argument under the plain
error doctrine.” Smith, 2016 IL App (3d) 140235, ¶ 10. Smith found that the trial
court had erred in denying the defendant’s motion to dismiss on speedy trial
grounds because the defendant’s trial was held outside the 120-day statutory speedy
trial limit. Id. ¶ 20. Smith concluded that the defendant was entitled to relief under
the plain-error doctrine. Id. ¶ 21.
¶ 39 As noted, the speedy trial statute was designed to implement the constitutional
right to a speedy trial, but the constitutional right to a speedy trial is not coextensive
with the statutorily prescribed period. Crane, 195 Ill. 2d at 48. We observed in
Pearson, 88 Ill. 2d at 216, that, even prior to the enactment of section 114-1, case
law had long established that the right to discharge under section 103-5 was waived
if the claim had not been raised by the defendant prior to his conviction.
¶ 40 For example, in People v. Morris, 3 Ill. 2d 437, 441-43 (1954), the court
rejected the defendant’s postconviction claim he had a constitutional right to
discharge because he was not tried within four months from the time of his
commitment, as set forth in the statutory speedy trial statute in effect at the time
(Ill. Rev. Stat. 1953, ch. 38, ¶ 748). The Morris court rejected that claim, pointing
out that the right to discharge could be waived, and is waived, when the accused
fails to raise the question prior to conviction. Morris, 3 Ill. 2d at 442. Morris stated,
“[i]n a case where the question concerns whether there has been a waiver of the
statute, this court has held the case does not involve the denial of a constitutional
right, and the defendant cannot raise the issue in a petition under the Post-
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Conviction Hearing Act.” Id.Further, quoting People v. Farley,408 Ill. 288, 295
(1951), the Morris court explained,
“ ‘[i]f a defendant is afforded the basic right of a trial, and the question arises
as to whether he has waived the requirements of the statute as to the time within
which he must be tried, *** the decision of such questions does not involve the
denial of constitutional rights, but only the manner of asserting, waiving or
enforcing them.’ ” Morris, 3 Ill. 2d at 442.
Morris concluded that the defendant’s postconviction petition did not raise a
constitutional question but, rather, raised a question concerning the statutory
procedure implementing a constitutional right. Id. at 443.
¶ 41 Consistent with the long-held application of waiver in our case law, section
114-1 of the Code expressly states that a violation of section 103-5 is waived unless
a motion for discharge is made prior to trial. As the appellate court noted, the
legislature would not have provided for waiver of the speedy trial statute if a
violation of that statute alone resulted in an unfair trial or challenged the integrity
of the judicial process. 2022 IL App (4th) 200656-U, ¶ 51. We therefore hold that
a violation of section 103-5 does not alone constitute plain error. To the extent that
the decisions in Gay, McKinney, Mosley, and Smith held to the contrary, those
decisions are hereby overruled. We therefore affirm the appellate court’s finding
that defendant waived his right to claim a violation of the speedy trial act in this
case.
¶ 42 Defendant next argues that he did not knowingly waive his right to counsel
because the trial court failed to substantially comply with Illinois Supreme Court
Rule 401(a) (eff. July 1, 1984).
¶ 43 This court has recognized that an accused has a right to self-representation that
is “ ‘as basic and fundamental as [the] right to be represented by counsel.’ ” People
v. Wright, 2017 IL 119561, ¶ 39 (quoting People v. Nelson,47 Ill. 2d 570, 574
(1971)). Thus, as long as a defendant’s waiver of his constitutional right to counsel
is voluntary, knowing, and intelligent, he may waive that right. Id.
¶ 44 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) governs an accused’s
waiver of his right to counsel. Rule 401(a) provides:
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“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 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.” Id.
Compliance with Rule 401(a) is required for an effective waiver of counsel. Wright,
2017 IL 119561, ¶ 41.
¶ 45 Defendant claims that the trial court failed to comply with the second
admonition, that the court inform him of the possible penalties he was facing.
Defendant points out that he was initially told that he was eligible for extended term
sentencing based upon a prior residential burglary conviction and faced a sentence
of 7 to 14 years’ imprisonment on each count of aggravated domestic battery. In
fact, defendant did not have a prior residential burglary conviction, so he was not
eligible for extended term sentencing. Defendant instead was subject to a term of
three to seven years’ imprisonment on each count. Defendant also states that the
trial court did not advise him that he could receive a prison sentence on each
conviction or that he could be ordered to serve those convictions consecutively. In
addition, defendant was instructed that he faced an MSR term of four years to life,
when in fact he was subject to an MSR term of four years. Defendant argues that
the trial court’s admonishments fell far short of what Rule 401(a) requires and that
the appellate court erred in finding substantial compliance with the rule.
¶ 46 Although this court has held that compliance with Rule 401(a) is required for
an effective waiver of counsel, this court has also recognized that strict, technical
compliance with Rule 401(a) is not always required. People v. Haynes, 174 Ill. 2d
204, 236 (1996). Substantial compliance with Rule 401(a) will effectuate a valid
waiver “if the record indicates that the waiver was made knowingly and voluntarily,
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and the admonishment the defendant received did not prejudice his rights.” Id. Each
waiver of trial counsel must be assessed on the particular facts of the case. People
v. Reese, 2017 IL 120011, ¶ 62.
¶ 47 In addressing this issue, the appellate court noted that defendant did not raise
the issue in a posttrial motion. 2022 IL App (4th) 200656-U, ¶ 54. The appellate
court stated it would first address whether an error occurred before considering
whether defendant preserved the error for review or whether plain-error review was
appropriate. Id. The appellate court found no error, concluding that the trial court
substantially complied with Rule 401(a) and that defendant’s waiver of counsel was
valid. Id. ¶ 59.
¶ 48 The appellate court is correct that, in addressing a defendant’s claim under the
plain-error doctrine, we must first determine whether any error occurred. People v.
Thompson, 238 Ill. 2d 598, 613 (2010). In finding substantial compliance, the
appellate court pointed out that the information provided to the trial court at the
time the trial court gave the Rule 401(a) admonishments did indicate that defendant
was eligible for extended term sentencing. 2022 IL App (4th) 200656-U , ¶ 58. The
error was not discovered until defendant’s trial had begun. Id. In addition, the trial
court’s admonishments concerning the MSR term were greater than the actual MSR
term, so defendant could not claim prejudice in his decision to waive counsel based
upon the MSR term. Id. The trial court also admonished defendant that he could
receive a prison sentence of up to 14 years. Id. Given the fact that defendant knew
he could receive a prison sentence of up to 14 years, the appellate court stated it
could not see how an admonishment that defendant faced a maximum of 7 years on
each count, which could run consecutively, would have affected defendant’s
decision to proceed pro se. Id. ¶ 59.
¶ 49 The appellate court next rejected defendant’s claim that the trial court should
have readmonished him prior to sentencing. Id. ¶ 60. The defendant claimed that
the discovery that defendant was not eligible for extended term sentencing
constituted a change in circumstances that required the trial court to readmonish
him. The appellate court again pointed out that the discovery that defendant was
not eligible for extended term sentencing did not alter the maximum penalty
defendant faced, and defendant did not indicate how a correct explanation of why
defendant would receive a sentence of up to 14 years would have affected his
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decision to proceed pro se. Id. The appellate court therefore found that defendant’s
right to counsel was not violated. Id. ¶ 61.
¶ 50 In this court, defendant concedes that he agreed to proceed pro se knowing that
he faced the possibility of 14 years in prison on each of the aggravated battery
counts under the extended term provisions. Defendant claims, however, that he may
have considered it unlikely that he would receive an extended term sentence
because he knew he had never been convicted of a residential burglary and, for that
reason, may have elected to proceed without counsel. Defendant also argues there
is a difference between being subject to a 14-year sentence on each count versus
facing a 14-year sentence only if he was convicted on both counts and was
sentenced to a term of 7 years on each count, to be served consecutively. Defendant
further points to the trial court’s error in admonishing him that he faced an MSR
term of four years to life, when he only faced an MSR term of four years.
¶ 51 According to defendant, the trial court’s misstatements prejudiced him in his
decision to reject counsel. Defendant notes that he was dissatisfied with appointed
counsel’s temperament and counsel’s refusal to file certain motions on his behalf.
Defendant claims that, with accurate admonishments, he may have been more likely
to countenance appointed counsel’s ill temperament. For that reason, defendant
maintains that any errors in the trial court’s attempts to comply with Rule 401(a)
were not harmless.
¶ 52 This court has consistently found substantial compliance with Rule 401(a) when
the trial court accurately stated the maximum sentence prescribed by law. For
example, in People v. Coleman, 129 Ill. 2d 321, 331 (1989), the trial court
admonished the defendant that the maximum sentence prescribed by law was the
death penalty and that the minimum sentence was a 20-year term of imprisonment.
In fact, the minimum sentence was natural life imprisonment. Id. at 332. Coleman
stated that, “[w]here a defendant knows the nature of the charges against him and
understands that as a result of those charges he may receive the death penalty, his
knowledge and understanding that he may be eligible to receive a lesser sentence
pales in comparison.” Id. at 333-34; see also Haynes,174 Ill. 2d 204
(court found
substantial compliance with Rule 401(a) where the defendant was admonished that
he faced the possibility of the death penalty but was not admonished of the
minimum and maximum penalties for a burglary charge); People v. Johnson, 119
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Ill. 2d 119 (1987) (court found substantial compliance with Rule 401(a) where the
defendant was admonished that he faced the possibility of the death penalty but was
erroneously told that the minimum sentence was a number of years rather than life
imprisonment).
¶ 53 This court has found substantial compliance even where the trial court
understated the maximum term prescribed by law in its admonishment. In Wright,
2017 IL 119561, the trial court incorrectly admonished the defendant that he faced
a 60-year maximum sentence, rather than the correct, 75-year maximum sentence.
Wright found that the trial court had substantially complied with Rule 401(a) and
that the defendant made a voluntary, knowing, and intelligent waiver of counsel
prior to being allowed to proceed pro se, despite the trial court’s incorrect
admonishment concerning the maximum sentence. Id. ¶¶ 54-55. Wright noted that
the defendant’s reason for proceeding pro se was due to speedy trial concerns and
did not hinge on the maximum sentence for the charged offenses. Id. ¶ 55.
¶ 54 In this case, defendant was correctly admonished concerning the maximum
sentence he could face. The trial court’s error was in admonishing defendant how
he would serve that sentence and in overstating the MSR term. Defendant’s
explanation to the court for proceeding pro se was that appointed counsel “has been
abusive and aggressive toward me and forced papers in my hand, as well as using
foul language when I asked him, at least, four times, to go to Court for a bond
reduction, and he wouldn’t do that along with many other things.” As in Wright,
the defendant’s reason for proceeding pro se did not hinge upon how defendant
might serve the 14-year maximum penalty for the charges against him. Defendant’s
speculation that he might not have proceeded pro se had he known how the 14-year
penalty might be imposed is not supported by the record. Further, as the appellate
court found, defendant chose to proceed pro se believing he potentially could face
an MSR term of four years to life. Under the circumstances, we see no prejudice to
defendant’s right to waive counsel when he was in fact subject to a significantly
lower MSR term.
¶ 55 Defendant next argues that, even if he waived his right to counsel at trial, the
appellate court erred in finding that he knowingly waived his right to sentencing
counsel. Defendant claims that the discovery that he was not subject to extended
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term sentencing was a substantial change of circumstances requiring
readmonishment prior to sentencing.
¶ 56 This court applies the “continuing waiver” rule regarding a defendant’s waiver
of counsel. People v. Simpson, 172 Ill. 2d 117, 138 (1996). The continuing waiver
rule provides that, “absent significantly changed circumstances or a later request
for counsel, an intelligently and knowingly made waiver of counsel applies to all
phases of trial.” Id. Circumstances that require a trial court to readmonish the
defendant before sentencing “include lengthy delays between trial phases, newly
discovered evidence which might require or justify advice of counsel, new charges
brought, or a request from defendant.” Id.
¶ 57 Defendant argues that the discovery that he was not subject to extended term
sentencing was a substantial change in circumstances requiring readmonishment.
The appellate court rejected this claim, holding that the discovery that “defendant
was not extended-term eligible[ ] did not alter the true maximum penalty defendant
was facing.” 2022 IL App (4th) 200656-U, ¶ 60. Nor did defendant give any
indication that he wanted the assistance of counsel at sentencing. Id.
¶ 58 The appellate court was correct. Defendant characterizes the finding that he was
not eligible for extended term sentencing as an amendment to the information. It
was not. As the appellate court found, defendant was always on notice that he faced
a maximum sentence of 14 years’ imprisonment. A change in how the 14-year
sentence might be imposed did not constitute a significant change in circumstances
requiring the trial court to readmonish defendant of his right to counsel at
sentencing.
¶ 59 As the appellate court found, the trial court substantially complied with Rule
401(a) in admonishing defendant. Defendant therefore effectively waived his right
to counsel at trial and continuing through sentencing. Because the trial court
substantially complied with Rule 401(a), defendant has failed to establish a clear or
obvious error as required to obtain relief under the plain-error doctrine. The
appellate court correctly rejected defendant’s claim that he did not knowingly waive
his right to counsel.
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¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, we affirm the appellate court’s finding that defendant
waived any claim that his statutory right to a speedy trial was violated. We also
affirm the appellate court’s determination that defendant’s waiver of his right to
counsel at trial and sentencing was voluntary, knowing, and intelligent based upon
the trial court’s substantial compliance with Rule 401(a). We therefore affirm the
appellate court’s judgment on those issues. We remand the case to the trial court
for further proceedings consistent with the appellate court’s order remanding the
case to the trial court for resentencing on the reduced convictions for aggravated
battery.
¶ 62 Appellate court judgment affirmed.
¶ 63 Cause remanded.
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