Appeal from Circuit Court of Menard County No. 09DT36 Honorable Thomas J. Brannan, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
Carla Bender 4th District Appellate Court, IL
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Cook concurred in the judgment and opinion.
¶ 1 In September 2009, the State charged defendant, Jerry L. Ames, Jr., with driving under the influence of alcohol with a blood or breath alcohol concentration of 0.08% or more (625 ILCS 5/11-501(a)(1) (West 2008)) (count I) and driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2008)) (count II). In March 2010, defendant pleaded guilty to count II, and the trial court sentenced him to one year of supervision. In May 2011, the court revoked defendant's supervision and resentenced him to 18 months' probation and ordered him to serve 60 days in the county jail.
¶ 2 Defendant appeals, arguing that the trial court (1) did not properly admonish him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before he represented himself at the May 2011 revocation hearing and (2) improperly imposed a $500 DUI fine. Because we conclude that the court erred by forcing defendant to proceed pro se, we reverse and remand for a new revocation hearing.
¶ 4 In September 2009, the State charged defendant with driving under the influence of alcohol with a blood or breath alcohol concentration of 0.08% or more (count I) and DUI (count II). In October 2009, the trial court appointed attorney Kevin Tippey to represent defendant.
¶ 5 In March 2010, defendant pleaded guilty to count II, the DUI charge. In exchange for his guilty plea, the State agreed to dismiss count I. The trial court later sentenced defendant to one year of supervision and ordered him to pay a $500 DUI assessment. As a condition of supervision, the court also ordered him to commence alcohol treatment within 60 days.
¶ 6 In October 2010, the State filed a petition to revoke supervision, alleging that defendant (1) committed a new DUI and (2) failed to commence alcohol treatment within 60 days of the March 2010 order. In November 2010, the trial court again appointed Tippey, this time to represent defendant on the State's petition to revoke.
¶ 7 On March 11, 2011, Tippey filed a motion to withdraw, asserting that Tippey and defendant "had a significant disagreement on how best to proceed with the investigation and court process" and their recent "conference ended after a heated discussion in which [defendant] fired [Tippey] and [Tippey] agreed that [his] representation should be terminated due to the toxic nature of the discussion and the status of representation due to allegations made by [defendant]."
¶ 8 On March 15, 2011, the trial court conducted a hearing on Tippey's motion to withdraw. Defendant denied that he had "fired" Tippey, explaining that he told Tippey he would talk to the court and "discuss what's been going on with [the] case[,] which is absolutely nothing." Tippey responded as follows:
"I tried to take [defendant's] ideas[,] which are not necessarily on the beaten path as far as a criminal defense for a DUI. Research them and get back to him. When I tell him that I don't think that's how it's going to work, how he desires it to work, he does not like that. I clearly remember him in a heated moment telling me I was fired and that I work for him. He doesn't work for me and that I would be fired, I was fired. *** I like [defendant]. But things reached such a level [that this] has the ability to be a toxic situation. I did tell him that [a relative passed away]. That it's tax season. That I was having trouble getting him in to review a video that he wants to review, which I was going to do Saturday passed [sic], had a funeral. Due to the length of the video, the nature of it, I would need to have him come in after hours or on a Saturday to review it. I believe that probably led to part of the anxiety with [defendant] but like I said, I think things reached a point where I would not feel comfortable representing [him] and he probably doesn't feel comfortable with my representation."
¶ 9 When the trial court asked Tippey whether he believed that he could adequately represent defendant in light of the things that have transpired, Tippey responded, "It would be tough, judge."
¶ 10 The State objected to the motion to withdraw, explaining as follows:
"Unfortunately, defendants don't like the advice that their counsel give them. However, their counsel spend [a] considerable amount of time reviewing cases and base their professional opinion on the laws that apply to the facts of the particular case. *** Mr. Tippey did give [defendant] his professional judgment and [defendant] does not like that."
¶ 11 The prosecutor also pointed out that the matter was set for hearing in the near future, and he was anxious to have the case go forward. In response, defendant again asserted his unhappiness with Tippey's representation.
¶ 12 The trial court granted Tippey's motion to withdraw and appointed attorney Judith Lozier to represent defendant. Defendant responded to that appointment by stating that Lozier had represented him before and "I have a conflict with her." The court reaffirmed the appointment of Lozier despite defendant's misgivings, explaining to defendant that "it is not uncommon for a client to maybe disagree with what their [sic] attorney does or does not recommend."
¶ 13 Six weeks later, on May 3, 2011, Lozier filed a motion to withdraw as counsel, asserting that she had "met with [defendant] and [had] spoken to him on the phone several times and *** [had] not been able to communicate effectively with him nor have *** any meaningful discussions regarding his defense." Further, Lozier alleged "defendant has never been cooperative with me nor has he been willing to listen to legal advice from me."
¶ 14 The trial court conducted a hearing on Lozier's motion to withdraw at which she explained the basis for the motion, as follows:
"I don't think that [defendant] is interested in any legal advice from me. I have tried to talk to him several times about his case. He argues with me. He questions anything that I have to say. I don't think that he really----that there is any way that I could effectively assist in his defense at this point. Therefore[,] I think that the only thing to do is to withdraw and let him proceed as he wishes."
¶ 15 In response to Lozier's remarks, the State had no objection to her being allowed to withdraw but "would ask that we proceed on a short court date *** because [defendant] went down this road with Mr. Tippey earlier. *** [Defendant] has had the benefit of two experienced counsel [and] he doesn't seem to want to take their advice, and if that's the case, Judge, I would say he should proceed on his own."
¶ 16 Defendant then informed the trial court that the only advice both lawyers had given him was "pretty much you have to take whatever the prosecutor says." He asserted that Tippey had "done absolutely nothing," and all Lozier had done is yell at him. The court then asked whether defendant objected to Lozier's withdrawal, and the following exchange occurred:
"[DEFENDANT]: No sir, I----I can't see---- [THE COURT]: If she does withdraw, you are going to represent yourself then.
[DEFENDANT]: Well, I guess I'm going to have to. [THE COURT]: Well, I mean we can still appoint counsel for you, but it doesn't sound like you have very good luck in getting along with counsel. Sometimes, the attorney cannot tell the client what the client wants to hear.
The bottom line is do you object if I allow Ms. Lozier's motion to withdraw?
[DEFENDANT]: No, I don't."
The court thereafter granted Lozier's motion to withdraw and asked defendant whether he was going to represent himself. Defendant responded, as follows:
"[DEFENDANT]: Well, sir, at this time I think that's my only option.
[THE COURT]: Well, as I say, we can still---- [DEFENDANT]: I don't have anybody else. [THE COURT]: So, you don't wish to retain counsel, and you don't wish to have court appoint counsel, is that correct?
[DEFENDANT]: Well, sir, I'd like to have counsel but I have got to be able to do it, and I'm ...