Appeal from the Circuit Court of Du Page County. No. 99--CF--1946 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Defendant, Zorinski Thomas, pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1998)). Pursuant to an agreement, he was sentenced to six years' imprisonment. Defendant appeals, contending that the trial court erred by allowing him to proceed pro se on a motion to withdraw his plea without giving the admonishments required by Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)).
A two-count indictment alleged that defendant committed two acts of sexual penetration against A.M., who was at least 13 years of age but less than 17 years of age, while defendant was at least five years older than A.M. On July 25, 2000, defendant, represented by attorney Alonzo Zahour, agreed to plead guilty to one count of the indictment. In exchange, the State would nol-pros the other count and recommend a sentence of six years' imprisonment. The trial court admonished defendant pursuant to Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), heard the factual basis, accepted defendant's plea, and sentenced him according to the agreement.
Defendant then filed a pro se motion to withdraw his guilty plea. The motion generally alleged ineffective representation by Zahour. The trial court granted defendant's motion to appoint counsel, and on January 3, 2001, public defender Robin Belleau filed a motion to withdraw the plea.
At a hearing on January 30, 2001, defendant told the court that he wanted to supplement Belleau's motion with additional issues. The trial court explained that defendant could either be represented by the public defender or could represent himself but could not have hybrid representation. The court advised defendant to consult with his attorney and set a hearing for February 13, 2001. On February 9, 2001, defendant filed a pro se amended motion to withdraw the guilty plea. At the next hearing date, defendant said that he had filed a motion for discovery. After some discussion about the discovery motion, the trial court asked defendant, "You want to represent yourself at this hearing?" Defendant answered, "Yes." The court immediately discharged the public defender.
Following a hearing at which defendant personally questioned the witnesses, the trial court denied the motion to withdraw the guilty plea. Defendant filed a timely notice of appeal.
Now represented by the appellate defender, defendant contends that the trial court erred by allowing him to represent himself without providing the Rule 401(a) admonishments. Defendant acknowledges that the admonishments may not be required where a defendant "has a high level of sophistication," but he points out that the preplea report shows that defendant functions at a low intellectual level, may be functionally illiterate, and apparently suffered brain damage after being shot in the head.
Supreme Court Rule 401 governs waivers of the right to counsel in criminal proceedings. It provides, in pertinent part:
"Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." 134 Ill. 2d R. 401(a).
A waiver of counsel without the proper admonitions is ineffective. People v. Langley, 226 Ill. App. 3d 742, 749 (1992). Substantial compliance with Rule 401(a) may be sufficient if the record indicates that the waiver was knowing and intelligent. People v. Coleman, 129 Ill. 2d 321, 333 (1989); People v. Smith, 249 Ill. App. 3d 460, 472 (1993). Moreover, strict compliance with the rule is unnecessary if it appears that a defendant has a "high level of sophistication." People v. Meeks, 249 Ill. App. 3d 152, 172 (1993).
Defendant contends that in this case, rather than substantial compliance, there was virtually no compliance with Rule 401(a). He argues further that he did not demonstrate the "high level of sophistication" that ...