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People v. Mitchell

Court of Appeals of Illinois, Second District

March 8, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
WILLIS MITCHELL, Defendant-Appellant

          Appeal from the Circuit Court of Kane County. No. 12-CF-1461. Honorable M. Karen Simpson, Judge, Presiding. Appeal from the Circuit Court of Kane County. No. 12-CF-639. Honorable M. Karen Simpson, Judge, Presiding.

         JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.

          OPINION

         BIRKETT, JUSTICE.

          [¶1] In these consolidated appeals, defendant, Willis Mitchell, argues that the circuit court of Kane County erred in denying his motion to withdraw his negotiated plea of guilty to a single count each of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2012)) (case No. 12-CF-639) and resisting a peace officer (720 ILCS 5/31-1(a) (West 2012)) (case No. 12-CF-1461). According to defendant, those pleas were accepted in violation of his constitutional right to the effective assistance of counsel. We vacate and remand.

          [¶2] Defendant's arrest for possession of a controlled substance occurred following a traffic stop on March 29, 2012. In addition to the possession charge, defendant was charged with driving while his license was revoked (625 ILCS 5/6-303(a) (West 2012)) and following too closely (625 ILCS 5/11-710(a) (West 2012)). Defendant was released on bond. The charge of resisting a peace officer stemmed from an incident on July 19, 2012. As a result of that incident, defendant was also charged with two counts of aggravated battery (720 ILCS 5/12-3.05(d)(4)(i) (West 2012)) and a single count of unlawful possession of cannabis (720 ILCS 550/4(d) (West 2012)). In each case, defendant was represented by an assistant public defender. A trial date of December 10, 2012, was set for case No. 12-CF-639.

          [¶3] During a court appearance before Judge Allen M. Anderson on November 28, 2012, defendant's attorney, Assistant Public Defender Jillian Weiss, advised the trial court that, although she had anticipated that defendant would enter a negotiated plea, defendant had changed his mind. Defendant then moved for the discharge of his attorney and for the appointment of new counsel in both of his cases. Defendant stated, " [Weiss] is not representing me right." Defendant indicated that she was trying to " make" him plead guilty. Weiss indicated that she was ready to proceed to trial on the scheduled date if defendant did not enter a negotiated plea.

          [¶4] Judge Anderson indicated that there were no grounds for appointing new counsel for defendant. Defendant indicated that he wished to represent himself. The trial court inquired about defendant's age, education, and experience with the justice system. Judge Anderson accepted defendant's waiver of counsel. Before doing so, however, Judge Anderson cautioned defendant as follows:

" If I accept the fact that you want to represent yourself *** and you get into this and you are halfway through the trial or in the beginning of trial and you think now I really need the attorney, you are not going to be in the position to have me reappoint, I won't reappoint a lawyer, just so you know that. You can't go along this road of self-representation and say, well, I have changed my mind. So once you make this choice, you are stuck with this choice, and this is a consequence of representing yourself, no matter how difficult it becomes, whatever you run into."

          [¶5] On December 5, 2012 (which was five days before the pending trial date in case No. 12-CF-639), defendant again appeared before Judge Anderson. Defendant indicated that he was not ready for trial. The report of proceedings shows that defendant filed a motion in open court.[1] After the court and the prosecutor reviewed the motion, the following exchange took place:

" [DEFENDANT]: *** I need counsel. I don't think I could represent myself.
THE COURT: Well, when we were here last, I went through a series of questions with you and you convinced me that you could. You said you were going to be able to do this.
[DEFENDANT]: Because I wasn't getting represented right.
THE COURT: Well, that wasn't the reason. I can't give you another lawyer. You had a lawyer who I appointed. That lawyer, for whatever reason, you decided you'd rather represent yourself. You don't get to pick and choose lawyers.
[DEFENDANT]: I understand, Your Honor. But she's gonna make me take some time that I ...

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