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02/29/96 PEOPLE STATE ILLINOIS v. KEVIN CHILDS

February 29, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN CHILDS, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 92CF1065. Honorable Ronald C. Dozier, Judge Presiding.

Released for Publication April 1, 1996. As Corrected August 9, 1996.

Honorable Rita B. Garman, J., Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Concurring. Justice Garman delivered the opinion of the court:

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court: Following a jury trial in the circuit court of McLean County, defendant Kevin Childs was convicted of residential burglary (720 ILCS 5/19-3 (West 1992)), aggravated unlawful restraint (720 ILCS 5/10-3.1 (West 1992)), two counts of aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1992)), violation of order of protection (720 ILCS 5/12-30 (West 1992)), and aggravated kidnaping (720 ILCS 5/10-2(a)(3) (West 1992)). He was sentenced to terms of imprisonment totaling 37 years. He now appeals, claiming (1) he should not have been convicted of both aggravated criminal sexual assault and aggravated kidnaping because, as charged in the indictment, the former offense was an included offense of the latter; (2) the trial court failed to adequately inquire into his allegations of ineffective assistance of counsel and failed to obtain a valid waiver of his right to counsel; (3) the evidence was insufficient to convict him of the various offenses; (4) his sentence of 30 years' imprisonment for aggravated kidnaping was in error, as the maximum sentence for this offense is 15 years' imprisonment; and (5) the trial court erred in sentencing him to consecutive terms. Because we conclude that there was no valid waiver of counsel, we must reverse and remand. We discuss some of the other issues merely to aid the court and counsel on remand.

I. PROCEEDINGS IN THE TRIAL COURT

In the indictment, one count of aggravated criminal sexual assault charged defendant with committing an act of forcible sexual penetration (defendant's penis and the victim's vagina) by use of a knife. The second count of aggravated criminal sexual assault made the same allegations, except that the act of penetration involved the victim's mouth and defendant's penis. The charge of aggravated kidnaping alleged that defendant had carried the victim from one place to another with intent secretly to confine her against her will and committed the felony of aggravated criminal sexual assault on her.

Assistant Public Defender Amy Davis was appointed to represent defendant. At a hearing in April 1993, for appointment of expert witness, defendant told the court he wanted Davis dismissed as his attorney. He accused her of not investigating his witnesses, not working with him, and being unfamiliar with his case. The court denied defendant's request.

Davis filed a motion to withdraw as counsel in June 1993, alleging that defendant was objecting to certain actions she had taken on his behalf. When she attempted to see defendant at the county jail, she was informed that he would not see her and he would represent himself. Davis requested leave to withdraw, as it had become impossible for her to communicate with defendant. At the hearing on the motion, defendant complained that Davis had discussed his case with other inmates and that she was not spending time on his case or telling him anything that was happening. The trial court allowed the motion.

Assistant Public Defender Richard Koritz was appointed to represent defendant. At the pretrial hearing, Koritz indicated to the court that defendant had expressed a desire to have counsel from outside the public defender's office appointed. Defendant indicated his objection was that Koritz works in the same office as Davis. The court denied the motion.

On September 22, 1993, the day the jury trial was to begin and prior to selecting the jury, Koritz advised the court that defendant had filed a request with the Attorney Registration and Disciplinary Commission (ARDC) to investigate him. Koritz advised the court that he had just been given a copy of the complaint earlier that morning. He indicated the atmosphere between defendant and himself had been "poisoned" by the filing of this complaint, and he made an oral motion to withdraw personally from defendant's case. The ARDC complaint alleged that (1) Koritz had advised defendant to plead guilty to residential burglary but had earlier told him that, technically, the charge was not residential burglary and Koritz failed to explain this; (2) Koritz refused to file a motion to suppress a tape recording of a conversation between defendant and C.G., the victim; (3) Koritz refused to obtain telephone records of calls placed from C.G.'s home which defendant claimed would have exonerated him on the residential burglary charge; (4) Koritz failed to talk with defendant's nephew, whom he and C.G. visited during the alleged kidnaping, and to anyone at a gas station where they also stopped; and (5) Koritz had failed to obtain C.G.'s hospital records and motel records of a room rented by C.G.

When the trial judge asked defendant what he wanted him to do, defendant asked that competent representation be appointed. The judge indicated that both attorneys who had been appointed to represent defendant were very competent and that he was not going to appoint any other attorneys. The judge gave defendant a choice of going to trial without having an attorney, going to trial with Koritz as his attorney, or hiring his own counsel within the next hour. Defendant complained that Koritz had not talked with any of his other witnesses. Defendant indicated he could not afford an attorney and stated he would not choose any of the three offered options. He attempted to persuade the trial court to make his decision for him, stating it was the decision of the court. Finally, defendant stated he did not want Koritz to represent him and that he was prepared to accept the "consequences" of going to trial without an attorney. The trial court then allowed Koritz' motion to withdraw. Defendant stated he had not said he was willing to represent himself, and he admitted he did not know how to pick a jury or make an opening statement. He simply said he did not want Koritz to represent him. When asked how defendant would try his case without an attorney, he stated that he felt it was the court's responsibility to give him proper representation.

The trial judge stated he had seen defendant's ARDC complaint, and he commented:

"I see the stuff you are complaining about and I can tell you for a fact the things you are complaining about, the one I can tell about here you don't have anything here. There is no basis for a Motion to Suppress on what you say here because she recorded the statement, or you recorded the statement, either one, there is no basis for a Motion to Suppress. Suppression applies to government recording statements; not some private person. So see, you don't know what you are talking about here."

The judge also said:

"I wouldn't have got rid of him [(Koritz)] before when you wanted to so, you think I am not going to so, you are going to get rid of him yourself by firing him in Court."

When the trial judge asked if both parties were ready for the jury to be brought in, the following exchange occurred between the judge and defendant:

"THE COURT: Okay. Are you ready for the jurors to be brought up, both sides?

[Prosecutor]: The State is ready, your Honor.

THE DEFENDANT: I have no questions for the jury. I don't plan to represent myself. If you want this trial to go on, we will let it go on. You can let it go on as is. I know I am not an attorney. You know ...


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