Appeal from the Circuit Court OF ILLINOIS, of Du Page County. No. 05-CM-6830 Honorable Ronald D. Sutter, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court. Justice Burke concurred in the judgment and opinion.
Justice McLaren specially concurred, with opinion.
¶ 1 A jury convicted defendant, William Vazquez, of two misdemeanors: contributing to the delinquency of a minor (720 ILCS 130/2a (West 2004)) and harboring a runaway (720 ILCS 5/10-6(b) (West 2004)). On appeal, defendant argues, and the State agrees, that the trial court failed to properly admonish him as required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before permitting him to conduct his own defense. They also agree that defendant's convictions cannot stand. However, defendant argues that, under the rule in People v. Campbell, 224 Ill. 2d 80, 87-88 (2006), because he has fully served his sentence, the proper remedy is vacatur of his convictions without remand for retrial. The State argues that Campbell is not decisive on the issue and that retrial is the proper remedy. We agree with the State. We conclude that Campbell is distinguishable and that under these facts defendant may be retried.
¶ 2 Defendant also argues that, under the rule in People v. Schmidt, 56 Ill. 2d 572 (1974), because the State did not disclose a transcript of certain text messages that he had sent, it could not use the transcript as evidence. Given that the transcript was never disclosed, the underlying issue of whether it was subject to Schmidt discovery is an issue that may recur on retrial and thus we address it. We conclude that the transcript is not discoverable.
¶ 4 Defendant was charged with contributing to the delinquency of a minor and harboring a runaway (both involving Brandon P.). At an initial hearing on December 22, 2005, the judge asked defendant only if he needed time to hire an attorney. When defendant asked to make an oral motion to dismiss, the judge told defendant that he had the right to represent himself. Defendant responded that he had done so "in this district and the 1st district, federal district, Boston District" and was "prepared to move forward." The judge responded, "I just need to caution you that if you're not a lawyer[-]." Vasquez replied, for the record, that he understood. The judge said, "Understand it's my job," and defendant responded, "Yes." The judge also advised defendant that he was entitled to discovery as required by Schmidt, under which a misdemeanor defendant is entitled to "a list of witnesses [citing what is now section 114-9(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-9(a) (West 2008))], any confession of the defendant [citing what is now section 114-10(a) of the Code (725 ILCS 5/114-10(a) (West 2008)), and] evidence negating the defendant's guilt [citing Brady v. Maryland, 373 U.S. 83 (1963)]." Schmidt, 56 Ill. 2d at 575.
¶ 5 Shortly after the hearing just described, defendant filed a motion to dismiss in which he denied the factual basis of the charges and claimed that Brandon had been physically abused and neglected by his father. On February 28, 2006, Greg P., Brandon's father, filed a petition for an emergency order of protection to bar defendant from contact with Brandon. The petition for an order of protection, though filed under the misdemeanor case number, was heard by a different judge.
¶ 6 On October 20, 2006, the judge handling the order-of-protection matter held a hearing on a plenary order of protection. The judge became concerned that defendant was not aware that the State could use his testimony against him in the criminal proceedings. As part of the ensuing discussion, the court advised defendant of his right to appointed counsel:
"If you choose to consult an attorney before proceeding, you have the right to do that. If you-and if you cannot afford one, as I know, in other cases, I've advised you, you have the right to fill out an affidavit of assets and liabilities to see if you qualified under the poverty guidelines. And if you cannot afford an attorney, then under those circumstances, an attorney would be appointed for you."
Defendant's trial, which was before a jury, did not take place until March 2008. At trial, the State presented evidence tending to show that Brandon was a runaway and that defendant had allowed Brandon to live with him, had condoned Brandon's use of alcohol, and had allowed Brandon, who lacked a driver's license, to drive a truck. Defendant testified that he had encountered Brandon when Brandon was homeless and that he did not allow Brandon to drink or drive.
¶ 7 On cross-examination, the State asked defendant about four text messages that it asserted he had sent to Brandon's cell phone. Defendant admitted that he had sent one that said, "No truck for you tonight." He denied sending others suggesting that Brandon should limit his driving, saying that Brandon had smelled like beer, and complaining that Brandon had left him "one hit" and that "it" had better be replaced. Defendant asked to look at the transcript of the messages, but the court denied the request. He then objected that he had not received the transcript during discovery. The court told the State to continue with the examination. The State called Brandon as a rebuttal witness; he testified to receiving the texts from defendant.
¶ 8 The jury found defendant guilty on both counts. Defendant then requested the appointment of the public defender, explaining that he felt out of his depth and that he no longer had any source of income. He further said that a federal court had found him to be indigent. The court refused to appoint counsel, noting that the ...