Appeal from Circuit Court of Champaign County No. 11CF204 Honorable Richard P. Klaus, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
4th District Appellate Court, IL
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.
¶ 1 Defendant, Shawn Bahrs, is serving a total of 33 years' imprisonment for aggravated driving under the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(2)(D) (West 2010)), driving while his driver's license was revoked (625 ILCS 5/6-303(a) (West 2010)), and aggravated fleeing (625 ILCS 5/11-204.1(a)(4) (West 2010)). He appeals from those sentences, and his primary argument is that his waiver of counsel in the sentencing hearing was invalid as a consequence of the trial court's failure to admonish him that one of his prison sentences, the sentence for aggravated fleeing, would run consecutively to the other two sentences rather than concurrently with them. See Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984). We agree with that argument and thus do not reach defendant's remaining arguments, which have to do with the per diem credit (725 ILCS 5/110-14 (West 2010)) and duplicate fees. Therefore, we reverse the sentences and remand this case with directions to hold a new sentencing hearing, in which defendant will be represented by counsel or, alternatively, unrepresented by counsel if he waives counsel after complete admonitions pursuant to Rule 401(a).
¶ 3 On July 20, 2011, a jury found defendant guilty of all three charges: aggravated driving under the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(2)(D) (West 2010)), driving while his driver's license was revoked (625 ILCS 5/6-303(a) (West 2010)), and aggravated fleeing (625 ILCS 5/11-204.1(a)(4) (West 2010)).
¶ 4 Appointed defense counsel filed a motion for acquittal or, in the alternative, for a new trial. Also, defendant personally filed some pro se posttrial motions, including a motion for a new trial, in which he asserted that his defense counsel had provided ineffective assistance.
¶ 5 In a hearing on September 7, 2011, the trial court denied all these posttrial motions, whereupon defendant requested the court to dismiss defense counsel and to appoint a new defense counsel. The court refused to do so. The court told defendant his options were either to be represented further by the current defense counsel or to proceed pro se, without any continuance. The trial court admonished defendant as follows:
"THE COURT: You will receive no extra benefit from being pro se. You will be treated as any lawyer would be treated. You will confine yourself to the way that these proceedings are ordinarily conducted, and there will be no continuance.
Understand, Mr. Bahrs, you were found guilty of three counts. Count I is aggravated driving under the influence. It is a Class 1 DUI because it is your fifth. Because of your prior offenses it is an X which means you will be sentenced to between 6 and 30 years in the Department of Corrections with a 3 year period of mandatory supervised release. The other 2 counts are Class 4 counts because you're charged with an X in Count I. Those counts are subject to 1 to 3 years in the Department of Corrections each with a 1 year period of mandatory supervised release.
If you wish to proceed pro se, that is your right, but I will not continue this sentencing hearing."
¶ 6 Complaining that his appointed defense counsel was inexperienced and that the services of the public defender's office had actually been detrimental to his case, defendant elected to represent himself in the sentencing hearing. Accordingly, the trial court excused and released the appointed defense counsel.
¶ 7 After the trial court excused defense counsel, defendant told the court:
"MR. BAHRS: At this time, Your Honor, I'd like to request the full discovery.
THE COURT: Sentencing, Mr. Bahrs. Not trial.
MR. BAHRS: To reconsider.
THE COURT: Not discovery.
MR. BAHRS: I'd like to reconsider and file a new motion. THE COURT: The motions are done, Mr. Bahrs.
MR. BAHRS: Okay. Well I'd like-
THE COURT: I'm taking up sentencing."
¶ 8 The case entered the sentencing phase. The State presented the presentence investigation report. The trial court asked defendant if he had any evidence in mitigation. Defendant asked what "mitigation" meant, and the court replied it could not give him any legal advice. Defendant said: "No. I have no evidence with me for any mitigation because I didn't know this will turn out like this ***."
¶ 9 The prosecutor then made a closing argument, and when it came time for defendant to make his closing argument, he told the trial court he would like to present a character witness, Kristen Douglas. The court allowed him to reopen the evidence, and Douglas testified.
¶ 10 Then, after hearing further arguments, the trial court sentenced defendant to 30 years' imprisonment for aggravated driving under the influence, 3 years' imprisonment for driving while his driver's license was revoked, and 3 years' imprisonment for aggravated fleeing. The court ordered that the prison terms for the first two offenses run concurrently but that the prison ...