May 2, 1996
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
PERRY HANDY, JR., DEFENDANT-APPELLANT.
Appeal from Circuit Court of Morgan County. No. 94CF145. Honorable J. David Bone, Judge Presiding. Original Opinion of March 20, 1996,
664 N.E.2d 1042 at 1046.
The Honorable Justice Steigmann delivered the opinion of the court: McCULLOUGH and Garman, JJ., concur.
The opinion of the court was delivered by: Steigmann
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING:
The Honorable Justice STEIGMANN delivered the opinion of the court:
Defendant filed a petition for rehearing in which (1) he challenges this court's statement that he waived two issues on appeal--namely, that the trial court erred by not considering Treatment Alternatives for Special Clients (TASC) and by considering inherent factors--because he failed to include them in a motion to reconsider the sentence; and (2) he contends this court should consider whether these sentencing issues, if otherwise waived, constitute plain error. Although we deny the petition for rehearing, we choose to address the points defendant raises in that petition, as follows.
I. DEFENDANT'S MOTION TO REDUCE SENTENCE
On March 21, 1995, the trial court conducted a sentencing hearing and sentenced defendant to six years in prison. At all times during defendant's trial and sentencing hearing, he was represented by counsel. On March 29, 1995, defendant's attorney filed a motion to modify sentence, which stated in its entirety: "Comes now Defendant *** and prays this court to modify that sentence previously entered herein for reasons that said sentence be excessive under those guidelines set out in section 5-5-3 of the Unified Correction Code." Upon receiving this motion, the trial court set it for hearing on May 2, 1995.
On April 20, 1995, defendant filed a pro se motion for reduction of sentence. In that motion, defendant asked in general terms that his sentence be reduced and stated, in part, the following: "The defendant cooperated with law enforcement officers, and in his past tried to obtain help from TASC but was denied." That motion made no other reference to TASC in particular or drug treatment in general.
On May 2, 1995, prior to the hearing on the motion to modify sentence, defendant's counsel filed a certificate, in compliance with Rule 604(d), which stated that (1) he had consulted in person with defendant to ascertain his contention of errors, (2) he had examined the trial court file and report of proceedings of the plea of guilty, and (3) he had amended defendant's motion as necessary for presentation of any defects in said proceedings. However, defense counsel did not amend the March 29 motion, and at the May 2 hearing on that motion, he made no reference to TASC or drug treatment. Instead, he suggested that if the court thought his initial recommendation of probation subject to 180 days in jail was not appropriate, then the court should sentence defendant to four years in prison, not the six-year sentence imposed. The trial court denied the motion, and neither the court nor defense counsel made any reference to defendant's pro se motion for reduction of sentence. Defendant, although present at that hearing, made no statement to the court about that motion, either.
On this record, defendant claims that the TASC issue was properly before the trial court at the hearing on defendant's motion to reduce sentence because (1) defendant filed his own pro se motion raising that issue, and (2) the court "understood" from defense counsel's argument at that hearing about the appropriateness of probation, as well as his earlier argument at the sentencing hearing about the possibility of TASC, that counsel was asking the court to reconsider its denial of TASC for this defendant. We disagree with both of these arguments.
A. Defendant's Pro Se Motion
The trial court correctly ignored defendant's pro se motion for reduction of sentence because it was not properly before the court. Defendant was represented by counsel at all pertinent times. Accordingly, defendant had no authority to file pro se motions, and the court not only did not need to consider them, it should not have considered them. Defendant had the right to proceed either pro se or through counsel; he had no right to some sort of hybrid representation, whereby he would receive the services of counsel and still be permitted to file pro se motions.
This court has previously addressed this subject, in People v. Pondexter, 214 Ill. App. 3d 79, 87-88, 573 N.E.2d 339, 345, 157 Ill. Dec. 921 (1991), where we wrote the following:
"An accused has either the right to have counsel represent him or the right to represent himself; however, a defendant has no right to both self-representation and the assistance of counsel. *** It is obvious that both of these rights cannot be exercised at the same time. [Citation.]
Once this election is made, the roles of attorney and client are defined. *** [Defense counsel] has the responsibility to determine when and whether to object, what witnesses to call and what defenses to develop. ***
[A trial court has] no responsibility to entertain [a] defendant's pro se motions during the time he was represented by counsel. *** A defendant, when represented by competent counsel, must not be permitted to proceed unfettered, to file a stream of pro se motions ***. The only exception affording the right to file pro se motions while represented by counsel are motions directed to defendant's attorney's representation.
*** defendant is not entitled to a 'hybrid trial' where he alternates between proceeding pro se and being represented by counsel. [Citation.] The accused has no such right to both representation of counsel and to also conduct portions of the proceedings on his own."
We reaffirm our holding in Pondexter and conclude that defendant's pro se motion for reduction of sentence was not properly before the trial court. Accordingly, that motion could not serve as a basis for compliance by defendant with the requirements of Supreme Court Rule 604(d).
B. The Trial Court's "Understanding" of Defendant's Position at the Hearing on the Motion To Reduce Sentence
We reject defendant's argument that even if defense counsel's motion for reduction of sentence failed to refer to TASC, the issue was not waived because the trial court "understood" from the context of counsel's argument that TASC was an issue defendant was addressing at the hearing on the motion to reduce sentence. In People v. Foster, No. 78785, 1996 Ill. LEXIS 51, slip op. at 2 (April 18, 1996), Ill. 2d , , , N.E.2d , , the Supreme Court of Illinois revisited Rule 604(d) and reemphasized the requirement that a defendant must file a written motion with the trial court to reconsider sentence before he can appeal the sentence imposed. Further, we note that in the course of a four-page opinion, the supreme court referred four times to the need for "strict compliance" with Rule 604(d), stating at one point that "this court has without exception required strict compliance with Rule 604(d)." Foster, No. 78785, slip op. at 4 (April 18, 1996), Ill. 2d at , N.E.2d at .
Consistent with the supreme court's holding in Foster, we reject defendant's argument that anything short of a written post-trial motion to reduce sentence could comply with the requirements of Rule 604(d). Thus, as in this case, all claims not set forth in the written motion are waived from consideration on appeal, no matter what the "understanding" of the judge, prosecutor, or defense counsel may have been. We quote again from Foster as follows: "No agreement by the judge, prosecutor and defendant, or any combination thereof, can obviate the need for strict compliance with Rule 604(d)'s written-motion requirement as a prerequisite to appeal." Foster, No. 78785, slip op. at 2 (April 18, 1996), Ill. 2d at , N.E.2d at .
II. THE APPLICATION OF PLAIN ERROR TO RULE 604(d) WAIVERS
Defendant argues that even if we conclude that he waived those issues because of his failure to comply with Supreme Court Rule 604(d), we should still consider whether plain error occurred. Defendant specifically contends that we should find plain error in the trial court's sentence due both to its failure to impose TASC probation and its consideration of two factors allegedly inherent in the offense of vehicular invasion. In support, defendant cites the decision of the Second District Appellate Court in People v. Henley, 255 Ill. App. 3d 585, 587, 194 Ill. Dec. 289, 290, 627 N.E.2d 405, 406 (1994), where the court chose to address as plain error the merits of defendant's claim that the trial court failed to impose TASC probation. We respectfully disagree with our colleagues from the second district and decline to apply plain error in this case.
In People v. Keene, 214 Ill. Dec. 194, 169 Ill. 2d 1, 16-17, 660 N.E.2d 901, 909-10 (1995), the supreme court addressed the issue of plain error and wrote the following:
"[Rule 615(a)] states that notice may be taken of 'any error, defect, irregularity, or variance' which affects 'substantial rights' though such was not 'brought to the attention of the trial court.' (134 Ill. 2d R. 615 (a); see also People v. Pickett (1973), 54 Ill. 2d 280, 282[, 296 N.E.2d 856, 858] (noting that the rule does not mandate review of all errors affecting substantial rights).) Plain error exists only with respect to 'fundamental fairness': a procedural default will not preclude review of an issue involving 'substantial rights' if to honor the bar would work 'fundamental unfairness.' [Citation.] Plain error marked by 'fundamental unfairness' occurs only in situations which 'reveal breakdowns in the adversary system,' as distinguished from 'typical trial mistakes.' [Citation.] Put differently, what must be affected by the asserted error must be something 'fundamental to the integrity of the judicial process.' [Citation.] Essentially, the fairness of the trial must be undermined.
*** The so-called plain error doctrine offers no basis to excuse a procedural de-fault. [Citation.] The point is crucial, for while all plain errors are reversible ones, not all reversible errors are also 'plain' for purposes of Rule 615(a). [Citation.] Of course, to determine whether a purported error is 'plain' requires a substantive look at it. But if, in the end, the error is found not to rise to the level of a plain error as contemplated by Rule 615(a), the procedural default must be honored."
More recently, in People v. Munson, (1996), 171 Ill. 2d 158, , 662 N.E.2d 1265, , the supreme court added the following:
"'Before plain error can be considered as a means of circumventing the general waiver rule, [however], it must be plainly apparent from the record that an error affecting substantial rights was committed.' [Citation.] Even then, the plain error rule does not mandate review of all errors affecting substantial rights."
We hold that the alleged errors in this case--the trial court's failure to impose TASC probation and its consideration at sentencing of factors allegedly inherent in the offense--do not amount to plain error "'marked by "fundamental unfairness" *** which "reveal breakdowns in the adversary system" as distinguished from "typical trial mistakes."'" Munson, No. 76197, slip op. at 25 (January 29, 1996), 171 Ill. 2d at , N.E.2d at , quoting Keene, 169 Ill. 2d at 17, 660 N.E.2d at 909-10. This court will take the supreme court at its word and find plain error only in exceptional circumstances in which a true injustice may have resulted, or as recently stated, when "'the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial.'" People v. Robinson, 167 Ill. 2d 53, 67, 656 N.E.2d 1090, 1096, 212 Ill. Dec. 256 (1995), quoting People v. Young, 128 Ill. 2d 1, 47, 538 N.E.2d 461, 471 (1989). The alleged errors before us fall far short of this standard.
Additionally, our research has disclosed no case in which the supreme court has found plain error in a sentencing context like the one before us. Indeed, other than in Henley and an earlier second district decision Henley cites as support, we know of no other decision of the appellate court finding plain error in the context of waiver under Rule 604(d). The significance of the absence of such authority lies in the fact that Illinois courts of review frequently decide cases in which an argument a defendant wishes to raise on appeal has been waived under Rule 604(d)--as in the present case--because of defendant's failure to include it in a written motion to reconsider sentence. Thus, the circumstances this case presents are not at all uncommon; this case merely presents a somewhat different argument which defendant wishes to raise on appeal. In our judgment, applying plain error analysis under these circumstances would gut the strict compliance with Rule 604(d) that the supreme court insists upon.
Last, we find support for our holding in Foster, where the supreme court wrote the following: "Where no written motion has been filed with the trial court, the appellate court must dismiss the appeal, leaving the Post-Conviction Hearing Act as a defendant's only recourse." Foster, No. 78785, slip op. at 2 (April 18, 1996), Ill. 2d at , N.E.2d at .
For the reasons stated, we deny defendant's petition for rehearing.
McCULLOUGH and GARMAN, JJ., concur.
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