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People v. Roofener

OPINION FILED APRIL 23, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

NORMAN T. ROOFENER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. CHARLES P. CONNOR, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The defendant, Norman T. Roofener, appeals from his conviction for armed robbery following a jury trial. The defendant was sentenced to six years' imprisonment. On appeal, the only issue raised is whether the defendant was denied his constitutional right to counsel where the trial court allowed the motion of the defendant's appointed counsel to withdraw for ethical reasons on the date of the trial and after the jury had been selected, and denied to the defendant the opportunity to have other counsel, thus requiring the defendant to proceed pro se, without first securing a knowing and intelligent waiver of the defendant's right to counsel. The State frames the issue in terms of whether the trial court had discretion to limit the defendant's choice to either proceeding with his appointed counsel or proceeding pro se.

Only a brief recital of those facts pertinent to the issue raised on appeal need be given. The defendant was indicted by the Will County grand jury for armed robbery, a violation of Section 18-2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). At his arraignment, the defendant received a copy of the indictment and entered a plea of not guilty.

On the date set for trial, April 30, 1979, the defendant appeared with Assistant Public Defender William McSherry. Before the jury was selected, McSherry informed the court that two alibi witnesses he had planned to call would not be called and that only the defendant would testify for the defense. The jury was then selected and, following their selection, court was recessed until the following morning due to "unexpected complications."

At that time a hearing was held before the trial judge on the motion of the defendant's counsel to withdraw both himself and the public defender's office from the case. Present at the hearing, which was held outside the presence of the jury, were the defendant, his counsel and the prosecutor. The reason given for McSherry's withdrawal was the failure of the defendant to cooperate with him in the defense of the case. More specifically, McSherry indicated that the defendant desired to have at least one witness called whom the defense counsel refused to call for ethical reasons.

McSherry suggested that the court appoint another attorney for the defendant or advise him of his right to act as his own attorney. The trial judge questioned whether appointing another attorney would solve the ethical problems. The following colloquy then ensued:

"THE COURT: And, you know, if Mr. Roofener wants to proceed by himself, and you feel that you cannot ethically proceed, if you know, if you're certain of that, we'll just let Mr. Roofener proceed by himself.

Mr. Roofener, are you aware of that? You have a right to conduct this trial by yourself, if you so desire. Apparently Mr. McSherry feels that the situation is now he cannot continue to conduct the defense, and as far as I can see it is not a problem that can be solved by another attorney.

Apparently there are things you want done that he doesn't feel, as an attorney, he can do. And you do have a constitutional right to defend yourself, and you certainly can do whatever you want to, within the law.

So, as far as I am concerned, at this stage you can either continue with Mr. McSherry or continue by yourself. So, are you ready to make that decision?

THE DEFENDANT: Yes, I would make it.

THE COURT: What do you want to do?

THE DEFENDANT: Could I get another attorney?

THE COURT: No, you're not going to get ...


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