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People v. Gibson

April 20, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WALTER GIBSON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cousins

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

THE HONORABLE EVELYN B. CLAY JUDGE PRESIDING.

Defendant, Walter Gibson, was charged by indictment with one count of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver. Defendant was allowed to proceed pro se and, following a bench trial, was convicted of both offenses. On October 14, 1997, defendant was sentenced to six years' imprisonment in the Illinois Department of Corrections. On appeal, defendant contends: (1) his waiver of counsel was invalid where the trial court did not substantially comply with Supreme Court Rule 401(a) (134 Ill. R. 401(a)), notwithstanding the court's sua sponte appointment of standby counsel; (2) the trial court erred in failing to hold an evidentiary hearing to determine whether defendant was coerced by standby counsel to waive trial by jury; and (3) a corrected mittimus must issue to show that defendant was not convicted of a Class X offense.

BACKGROUND

On January 23, 1997, defendant was arraigned on the instant indictment. At the arraignment, Assistant Public Defender (APD) Sandra Bennewitz, who appeared on behalf of defendant, waived a formal reading of the charges and entered a plea of not guilty. The trial court noted that because defendant had two prior convictions for Class 2 felonies, the present Class 2 felony charges would be treated as Class X offenses for the purpose of sentencing. See 730 ILCS 5/5-5-3(c) (West Supp. 1997). Thereafter, the trial court granted defendant's motion for substitution of Judge and continued the case.

On March 24, 1997, APD Porter Merriwether appeared on behalf of defendant and informed the trial court that APD Jeff Ginsburg had been assigned to defendant's case; however, it was APD Merriwether who had spoken with defendant regarding a possible plea bargain. The trial court then admonished defendant regarding the consequences of a pretrial conference and continued the case for jury status.

On May 5, 1997, APD Ginsburg appeared on behalf of defendant, only as a "courtesy," as defendant intended to file a motion to proceed pro se. The trial court asked defendant if he had ever represented himself in the past and defendant responded that he had partially done so. The trial court noted that his past pro se representation resulted in defendant being imprisoned, then explained the disadvantages of proceeding without counsel. Defendant insisted that he had a constitutional right to represent himself. However, the court reserved judgment on whether defendant could proceed pro se, specifically stating it had made no determination at that time, and continued the case to July 14, 1997.

On July 14, 1997, APD Merriwether appeared on behalf of defendant in front of a different Judge than the Judge who was present at the January 23, 1997, March 24, 1997, or May 5, 1997, hearing. APD Merriwether informed the court that defendant's case was not his and incorrectly indicated that the previous Judge granted defendant's motion to proceed pro se. After admonishing defendant regarding the "pitfalls" of self-representation, the trial court appointed APD Merriwether as counsel for defendant and continued the case so that defendant could meet with APD Merriwether to discuss his case.

On August 11, 1997, APD Merriwether reported to the court that a meeting did not take place and requested that the case be returned to the original public defender assigned to it. Defendant asserted that he would rather proceed pro se than have any public defender represent him. The trial court expressed concern because defendant did not know that he had been arraigned, stating "You are standing here saying to the Court, you want to be your own lawyer, and you don't even know what happened in your case from the time you were standing up here in front of a Judge before [sic]. You don't even know the legal things that went on." Thereafter, the court urged defendant to take advantage of the expertise of counsel and advised him to make every effort to get in contact with APD Merriwether. The case was then continued to August 26, 1997.

On August 26, 1997, defendant demanded trial and requested a jury trial. The court granted defendant's motion to represent himself and sua sponte appointed APD Merriwether as standby counsel.

On September 9, 1997, defendant requested discovery, which had not yet been turned over to him. APD Merriwether was not in court due to illness; therefore, the case was held on call until the following day. On September 10, 1997, defendant waived his right to a trial by jury and filed several motions, which were not ruled on at that time.

On September 11, 1997, APD Merriwether informed the court defendant would be proceeding pro se on his motions only and APD Merriwether would be handling the trial. After Discussion off the record, defendant was allowed to proceed pro se both on his motions, which were denied, and during the trial proceedings. Defendant again requested discovery, at which point APD Merriwether turned discovery over to him and the trial began.

On September 17, 1997, after reviewing the transcripts of the trial proceedings, the trial court found defendant guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver.

On October 14, 1997, the trial court denied defendant's pro se posttrial motion for arrest of judgment and a new trial. After hearing and considering the presentence report, the evidence and the factors presented in aggravation and mitigation, the trial court sentenced defendant to six years' ...


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