Appeal from the Circuit Court of Winnebago County. No. 96--CF--2919 Honorable Frederick J. Kapala, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
the opinion of the court:
On November 27, 1996, the indigent defendant, Mark J. Griffin, was charged by indictment with residential burglary (720 ILCS 5/19--3(a) (West 1996)). On August 13, 1997, the trial court granted defendant's request to waive his right to counsel and proceed pro se. On August 29, 1997, defendant pleaded guilty to the burglary charge, and the factual basis for the plea revealed that defendant entered a Loves Park home with the intent to commit theft. Defendant admitted to police officers that he entered the house through an open window and took some jewelry and checks. On October 10, 1997, the trial court sentenced defendant to an 11-year prison term and fully admonished him pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)). Defendant failed to file a postplea motion or a timely notice of appeal, and this court granted defendant leave to file a late notice of appeal.
On appeal, defendant argues that the trial Judge committed reversible error in failing to (1) appoint counsel upon defendant's request; (2) ascertain whether defendant desired counsel; and (3) explain adequately the filing requirements of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). We agree with defendant's first and second arguments but reject the third. Accordingly, we reverse and remand defendant's cause for the appointment of counsel and the preparation and presentation of the postplea motions.
Defendant first contends that he revoked his waiver of right to counsel after the trial Judge recited the Rule 605(b) admonitions. Defendant concedes that, prior to entering his guilty plea for residential burglary, he voluntarily and intelligently waived his right to the assistance of counsel pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)).
A defendant's waiver of the right to counsel carries through to all subsequent proceedings unless (1) the defendant later requests counsel, or (2) other circumstances suggest that the waiver is limited to a particular stage of the proceedings. People v. Baker, 92 Ill. 2d 85, 91-92 (1982); People v. Cunningham, 294 Ill. App. 3d 702, 704 (1997). Whether a defendant effects a waiver of counsel is a question for the trial court, and the court's decision will be reversed only for abuse of discretion. People v. Jackson, 228 Ill. App. 3d 868, 874 (1992). We adopt a similar standard of review for determining whether defendant revoked an earlier waiver of counsel.
In Baker, the supreme court adopted the "continuing waiver" rule as set forth in Davis v. United States, 226 F.2d 834 (8th Cir. 1955). Baker, 92 Ill. 2d at 95. In Davis, the defendant waived his right to counsel at his arraignment. The United States Court of Appeals for the Eighth Circuit concluded that the trial Judge's failure to ascertain whether the defendant desired counsel at his sentencing hearing was not reversible error because the defendant did not request "counsel and advice" at that time. Davis, 226 F.2d at 840.
In this case, defendant received his 11-year prison sentence two months after he waived his right to counsel and entered his guilty plea. After the trial Judge admonished defendant pursuant to Rule 605(b), defendant sought clarification of the Rule 604(d) motion requirements and asked the court whether he was entitled to the appointment of counsel. Specifically, defendant asked the court whether a motion to vacate the sentence was required to perfect an appeal. Defendant also asked, "Can I be appointed an attorney to represent me in this appeal?" The trial Judge responded that he was so entitled, but the Judge declined to advise defendant further, noting that to do so would be to act as defendant's attorney.
The record on appeal reflects that defendant sufficiently requested the assistance of counsel. Even if defendant did not explicitly request counsel, he clearly sought legal advice from the trial Judge and expressed an interest in the assistance of counsel for perfecting an appeal. Because courts must " 'indulge in every reasonable presumption against waiver' " (People v. Burton, 184 Ill. 2d 1, 23 (1998), quoting Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 440, 97 S. Ct. 1232, 1242 (1977)), it follows that a reviewing court should make all reasonable presumptions in favor of a revocation of that waiver. Therefore, we presume that defendant attempted to revoke his earlier waiver when he sought both counsel and advice at the sentencing hearing. See Davis, 226 F.2d at 840.
When defendant began asking questions about perfecting an appeal, the trial Judge should have asked him whether he wished to revoke his earlier waiver. The trial Judge abused his discretion when he failed to do so, and the Judge effectively deprived defendant of his right to counsel. See Davis, 226 F.2d at 840; see also Baker, 92 Ill. 2d at 93.
Defendant next contends that Supreme Court Rule 604(d) requires a trial court to ask a defendant whether he desires the assistance of counsel for preparation of the postplea motions if the defendant manifests an interest in appealing. Rule 604(d) provides that after a defendant moves to withdraw a guilty plea, the trial court must appoint counsel if the defendant is indigent and "desires counsel." Cunningham, 294 Ill. App. 3d at 704. In fact, the trial Judge is obligated to ascertain whether the indigent defendant desires counsel even if he makes no specific request for assistance. People v. Barnes, 291 Ill. App. 3d 545, 550 (1997). However, the Judge need not appoint counsel if the defendant responds to the inquiry with a knowing waiver of his right to counsel. Barnes, 291 Ill. App. 3d at 550.
Under certain circumstances, a trial Judge must make a similar inquiry before an indigent defendant files a formal Rule 604(d) motion. It is well settled that fundamental fairness requires that a defendant receive the assistance of counsel to "prepare and present" a postplea motion. (Emphasis added.) Cunningham, 294 Ill. App. 3d at 704. Barnes suggests that a defendant need only demonstrate "a desire to seek relief from the judgment" to effectively request counsel for preparation of postplea motions. Barnes, 291 Ill. App. 3d at 550. After a defendant demonstrates his desire to appeal, the trial Judge is obligated to inquire whether the defendant seeks counsel. Barnes, 291 Ill. App. 3d at 550.
After receiving the Rule 605(b) admonitions, Barnes timely filed a handwritten letter addressed to the trial Judge in which she requested an improper modification of her sentence. The trial court summarily denied Barnes's pro se postplea motion without affording her a hearing or the appointment of counsel. Barnes, 291 Ill. App. 3d at 548. The Appellate Court, Third District, concluded that Barnes was entitled to a remand for the appointment of counsel and the amendment of her faulty motion because her ...