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.
BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Zenoff concurred in
the judgment and opinion.
[¶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defendant was charged with driving while his license was
revoked (625 ILCS 5/6-303(a) (West 2012)) and following too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
[¶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. 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
[DEFENDANT]: I understand, Your Honor. But she's gonna
make me take some time that I ...