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03/18/88 the People of the State of v. Donna Jean Clay

March 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONNA JEAN CLAY, DEFENDANT-APPELLANT

FOLLOWING A JURY TRIAL, DEFENDANT, DONNA JEAN CLAY, WAS FOUND GUILTY OF WILLFULLY FAILING TO FILE AN ILLINOIS INCOME TAX RETURN FOR THE TAXABLE YEAR 1985. (ILL. RE

v.

STAT., 1984 SUPP., CH. 120, PAR. 13-1301.) SHE WAS SENTENCED TO A 30-MONTH TERM OF PROBATION WITH CONDITIONS, INCLUDING A 60-DAY JAIL TERM, AND ORDERED TO PAY A $5,000 FINE.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 243, 167 Ill. App. 3d 628, 118 Ill. Dec. 175 1988.IL.388

Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant appeals, pro se, and raises numerous issues involving her right to be represented at trial by competent counsel, the timeliness of her preliminary hearing, the adequacy of the information, the propriety of instructing or refusing to instruct the jury on certain matters, and the denial of several of her motions.

The record reflects that, throughout the proceedings below, defendant appeared without counsel, yet insisted that she did intend to obtain counsel of her choice and that she could not proceed without the advice of counsel. Between September 29, 1986, the date that the information charging defendant was filed, and March 3, 1987, the date of trial, defendant made several requests to continue the matter so that she could retain counsel of her choice, asserting that she had contacted in excess of 110 attorneys, each of whom she deemed unsatisfactory. Defendant rejected the trial court's offer to appoint counsel.

At trial, defendant again appeared without counsel, yet stated that she was not representing herself. The trial court advised defendant that she had waived her right to counsel. Defendant objected to being forced to proceed without an attorney. The evidence produced at trial indicates that while defendant was employed by Freeport Memorial Hospital as a nurse, the Illinois Department of Revenue had no record that defendant, a registered voter in Stephenson County, had filed income tax returns. Defendant did not offer a defense and was, subsequently, found guilty by a jury of willfully failing to file her Illinois income tax return for 1985.

Initially, we must consider the State's contention that defendant's filing of her motion for new trial after filing her notice of appeal constitutes a waiver of all issues raised on appeal as the circuit court lost jurisdiction to consider the motion. Once the jurisdiction of the appellate court attaches by the proper filing of a notice of appeal, the cause is beyond the jurisdiction of the trial court. (People v. Larry (1986), 144 Ill. App. 3d 669, 680-81.) Therefore, defendant's filing of a post-trial motion after her notice of appeal was filed was a nullity, and she, in essence, has failed to file a proper post-trial motion. The failure of defendant to file a post-trial motion is deemed to be a waiver of the errors raised on appeal. (See People v. Szabo (1986), 113 Ill. 2d 83, 93; People v. Hammond (1977), 48 Ill. App. 3d 707, 708-09.) Nevertheless, it appears from the record that the filing of the notice of appeal before the post-trial motion may have been caused by the trail Judge's comments that he could not stay the execution of the sentence and release defendant on bond until she had filed an appeal. This appears to be why defendant filed her notice of appeal and request for bond on the same day that she was sentenced. In this circumstance, we choose not to apply the waiver doctrine. The rule of waiver is a limitation on the parties and not on the courts. People v. Hoskins (1984), 101 Ill. 2d 209, 219.

Defendant first contends that she was denied her right to competent counsel of her choice at various stages of these proceedings. Defendant asserts that this denial was so prejudicial that she was denied due process and a fair trial. It is well established that the accused in a criminal case does have the constitutional right to be represented by counsel of his or her own choosing. (People v. Friedman (1980), 79 Ill. 2d 341, 349.) It is equally true, however, that this right may not be employed as a weapon to indefinitely thwart the administration of Justice or to otherwise embarrass the effective prosecution of a crime. (Friedman, 79 Ill. 2d at 349.) Further, where a defendant is financially able to engage counsel and has been instructed to do so within a certain and reasonable time, yet fails to do so, and does not show reasonable cause why he was unable to secure representation, the court may treat such a failure as a waiver of the right to counsel and require him to proceed with the hearing. People v. Williams (1982), 92 Ill. 2d 109, 118.

The record here reflects that defendant did engage in conduct which, we find, constituted a waiver of her right to counsel. On October 20, 1986, at defendant's initial appearance before the trial court, she requested and was granted 30 days to obtain counsel, and the matter was set for preliminary hearing on November 20, 1986. On December 4, 1986, an additional continuance was granted after defendant appeared without counsel asserting that she had not retained an attorney because she thought that her case would be dismissed due to an alleged violation of her speedy-trial rights. She rejected an offer to have the public defender appointed to represent her.

Defendant later appeared without counsel at the preliminary examination on January 8, 1987, claiming to have contacted 37 attorneys, each of whom she deemed incompetent. The trial court then construed defendant's refusal to accept, again, its offer to appoint counsel and the offer to appoint counsel on an advisory basis as a desire to represent herself, and the preliminary hearing was held. After admonishing defendant of the nature of the charges and possible sentencing, the trial court entered a plea of not guilty on defendant's behalf, and the matter was set for a jury trial on March 3, 1987, with pretrial motions to be heard on February 27, 1987.

On February 27, defendant again appeared without counsel and requested a continuance to secure counsel, asserting that she had contacted an additional 75 attorneys, each of whom she deemed unsatisfactory for a variety of reasons. This motion was denied. At trial, defendant still appeared without counsel, but continued to assert that she was not representing herself. The trial court advised defendant that she had waived her right to counsel.

We, too, find that defendant waived her right to secure counsel of her choice. Defendant was granted two 30-day continuances and was given at least five months, which we believe is a reasonable amount of time, in which to retain competent counsel. In fact, defendant represented that she contacted in excess of 110 attorneys, all of whom she felt were incapable of representing her adequately. Additionally, defendant twice rejected the trial court's offer to appoint a public defender, even in an advisory capacity. Defendant did not claim to be indigent, and, because defendant did not show reasonable cause why she was unable to secure representation, the trial court ...


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