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                              Appellate Court                            Date: 2017.06.19
                                                                         14:07:41 -05'00'




                   People v. Lesley, 2017 IL App (3d) 140793



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MYRON T. LESLEY, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0793



Filed             March 2, 2017



Decision Under    Appeal from the Circuit Court of La Salle County, No. 12-CF-86; the
Review            Hon. Cynthia M. Raccuglia, Judge, presiding.



Judgment          Reversed and remanded with directions.


Counsel on        Michael J. Pelletier and Tiffany Boye Green, of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

                  Karen Donnelly, State’s Attorney, of Ottawa (Richard T. Leonard, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE LYTTON delivered the judgment of the court, with opinion.
                  Justice McDade concurred in the judgment and opinion.
                  Justice Schmidt dissented, with opinion.
                                              OPINION

¶1       Defendant, Myron T. Lesley, raises two issues for our review. First, he argues that the trial
     court erred in forcing him to represent himself at his evidentiary hearing due to disagreements
     he had with his appointed counsel without first warning defendant that his conduct could result
     in the waiver of his right to counsel. Second, he contends that the trial court applied a
     misconduct standard of proof at the evidentiary hearing. Because we reverse and remand on
     the first issue, we need not reach the second.

¶2                                                FACTS
¶3       On June 13, 2013, defendant pled guilty to the offenses of unlawful possession of a
     controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2012)) and
     unlawful delivery of a controlled substance, id., in exchange for consecutive sentences of five
     years’ imprisonment and six years’ imprisonment, respectively. The State also agreed to
     dismiss four additional charges.
¶4       On September 30, 2013, defendant filed a postconviction petition, arguing that he received
     ineffective assistance of plea counsel in that counsel failed to adequately investigate the case
     and gave him erroneous advice. The petition also claimed that defendant’s sentences “could
     have been ran concurrently *** when nothing was stated in sentencing on the reason for
     consecutively.”
¶5       On October 30, 2013, the State filed a motion to dismiss the postconviction petition. At a
     hearing the next day, the trial court appointed the public defender to represent defendant. On
     November 21, 2013, defendant appeared with Timothy Cappellini, the La Salle County public
     defender, for a “first appearance” hearing on the postconviction petition. Defendant informed
     the court that he and Cappellini had a disagreement. Defendant stated that Cappellini told
     defendant to “go pro se and do it [himself]” when defendant told Cappellini he needed to see
     transcripts of prior proceedings. Cappellini responded: “I said if he doesn’t want me to
     represent him, he can go pro se. Otherwise, I will acquire the transcripts, I will review ‘em and
     I will be the attorney.” The trial court continued the matter.
¶6       On February 20, 2014, Douglas Kramarsic, an assistant public defender, appeared on
     behalf of defendant at a status hearing. Kramarsic stated that he had previously met with
     defendant to attempt to explain changes he wanted to make to the postconviction petition.
     Defendant became “very belligerent” and told Kramarsic “numerous times to go fuck
     [him]self.” Defendant said that Kramarsic was “fired” and he wanted to hire his own attorney.
     Defendant grabbed the papers out of Kramarsic’s hands “in a physical and aggressive
     manner.” Kramarsic then left the room as defendant continued to yell obscenities at him.
¶7       Kramarsic then stated: “Your Honor, I believe at this point it’s clear that [defendant] does
     not wish to continue with me as his attorney, and I’ll leave it to the Court’s discretion as to
     what should take place next.” The trial court told defendant he could respond, and defendant
     stated:
             “First of all, Your Honor, he came back there and told me something totally different. It
             wasn’t all this and that. It got out of hand—not out of hand, he tried to treat me like I’m
             stupid or something. *** [A]nd then I’m trying to show him something and he’s



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               ignoring it and I’m yelling at him, I don’t think he’s trying to help me, he’s trying to
               hurt me.”
¶8         The trial court said that defendant had been appointed several public defenders and there
       was no one left to appoint. The trial court also told defendant that he did not have a choice as to
       which attorney he was assigned from the public defender’s office. Defendant indicated that he
       wished to hire his own attorney, and the trial court granted him a 60-day continuance to do so.
       The trial court stated, “I can’t give you another Public Defender but I can certainly let you hire
       somebody.” The following exchange then occurred between the trial court and Kramarsic:
                   “MR. KRAMARSIC: Your Honor, I guess at this point it may leave me in limbo. I
               guess if you’re still leaving me as the attorney of record, there are issues that I would
               want to correct with this but [defendant] certainly does not wish to hear anything that I
               have to say.
                                                    ***
                   THE COURT: Is there anything that you want to put on the record today?
                   MR. KRAMARSIC: I mean, I would just like to say that I have reviewed the
               records, I have reviewed everything involved in this case. I haven’t filed my
               certification regarding that, which I was going to file with my amended petition, but I
               can’t even get to the point of being able to do that.
                   THE COURT: And I won’t have you do that.
                   MR. KRAMARSIC: Okay.
                   THE COURT: Right now, nothing you will do, because he’s requested time to—
                   MR. KRAMARSIC: Sure.
                   THE COURT:—get a private lawyer.
                   And so I’m reserving my ruling on you filing anything, nor are you under any
               obligation to do that until I see what [defendant] can find in 60 days, so let’s do that for
               you.”
¶9         Another status hearing was held on April 24, 2014. Kramarsic advised the court that he
       attempted to discuss with defendant whether defendant had been able to hire private counsel
       and “it [was] one hundred percent absolutely clear from our conversations that [defendant]
       want[ed] nothing to do with [Kramarsic] in this case.” Defendant stated that he was trying to
       find an attorney but had not hired one yet. The trial court scheduled a hearing on the State’s
       motion to dismiss for June 12, 2014. The trial court told Kramarsic: “I’m aware he won’t talk
       to you. And so you won’t be representing him at any hearing at this point.” The trial court then
       stated:
                   “THE COURT: All right. *** And if [defendant] doesn’t have a lawyer [at the
               hearing on the motion to dismiss], I’ll have to address him as to his options.
                   But you put on the record he doesn’t want to talk to you. That’s fine. You have—
                   I’m not dismissing you completely, I’m leaving options open. But I won’t expect
               you to be prepared for a hearing is what I am saying.
                   MR. KRAMARSIC: Okay.
                   THE COURT: You’re still in the case.”
¶ 10       At the hearing on June 12, defendant had not hired private counsel. The following
       exchange occurred:

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    “[THE COURT:] *** Now, [defendant], it’s my understanding that you still want
to proceed pro se to represent yourself?
    THE DEFENDANT: I’m going to have to, Your Honor, yes, ma’am.
    THE COURT: Why are you going to have to?
    THE DEFENDANT: I asked [Kramarsic] three times back there are you going to
help me and he gave me no answer.
    THE COURT: Now, when you say, is he going to help you, what do you mean by
that? I need to investigate this issue.
    THE DEFENDANT: That’s what I’m saying, is he going to help me try to get
through this post-conviction?
    THE COURT: Well, he has so far, has he not? Mr. Kramarsic?
    THE DEFENDANT: He hasn’t filed no motion or nothing.
    THE COURT: You need to address this issue because when there’s a complaint,
you know, we need to have an answer here.
    MR. KRAMARSIC: Your Honor,—
    THE COURT: It’s not just—[defendant’s] complaining not just that he wants to
represent himself but he says that you said you’re not going to help him so why don’t
you respond.
    MR. KRAMARSIC: You Honor, I have. This is the third time I’ve attempted to talk
to [defendant] about this case. First time that I met with him he did not agree with
the—with my ideas with the case and the way I wanted to proceed and I told him I
didn’t believe the issues here—that we had strong issues, and he wanted to proceed
with what he thought was the right way to do it and not even listen to the way I wanted
to proceed with the case. That was the first time.
    The second time I met with him again I tried again to explain what I felt about the
case. Again, he disagreed with me. That was the time that he lunged at me and swore at
me and told me to leave, and certainly I could tell at that point that obviously he does
not want me to help him at all. He just doesn’t agree with my theory of the case and
clearly does not want me involved with it and I feel like I’m stuck here because I don’t
know what else to do. [Defendant has] told me numerous times he does not want me to
do anything.
    THE COURT: All right, well, I find knowing [defendant], and considering the
issues involved here, that it appears you do not want to listen to Mr. Kramarsic.
    Now the question—I will allow—you can’t choose what Public Defender you’re
going to have so I’ll allow the Public Defender to withdraw.
    Now, the question becomes, [defendant], the only right to a lawyer that you
have—I feel you are capable of representing yourself if that is your desire, is whether
you want to hire private counsel or you want to represent yourself pro se.
    That’s the first question I have of you. What is your answer?
    THE DEFENDANT: I was trying to hire private counsel, Your Honor, you know
what I’m saying, but finally no funding. ***
    THE COURT: *** do you want to represent yourself?
    THE DEFENDANT: No, I can’t represent myself.

                                    -4-
                   THE COURT: Well, you’re going to have to.
                   THE DEFENDANT: All right, let’s go.
                   THE COURT: When you say you can’t—are you telling me that you’re not going
               to be able to hire private counsel?
                   THE DEFENDANT: I’m waiting on my parents.”
¶ 11       The court asked defendant if he was ready to proceed on the State’s motion to dismiss, and
       defendant replied, “I guess so.” The court then asked defendant to answer “yes” or “no,” and
       defendant said, “I got no attorney. I guess not.” The court granted defendant a 35-day
       continuance. At the hearing, defendant filed an untitled, handwritten document arguing that the
       State erred in charging him with an offense he committed while released on bond under the
       same criminal case number as the underlying offense.
¶ 12       On July 17, 2014, a hearing was held on the State’s motion to dismiss. Defendant appeared
       pro se. The trial court granted the motion in part but ordered that an evidentiary hearing be held
       on the issue of ineffective assistance of counsel.
¶ 13       On October 2, 2014, an evidentiary hearing was held. Defendant appeared pro se at the
       evidentiary hearing. Defendant’s plea counsel was the only witness. The trial court denied
       defendant’s postconviction petition following the hearing.

¶ 14                                              ANALYSIS
¶ 15        The Post-Conviction Hearing Act (Act) affords indigent defendants the right to counsel
       beyond the first stage of proceedings. 725 ILCS 5/122-4 (West 2014). The right to assistance
       of postconviction counsel derives from the Act rather than the constitution. People v. Cotto,
       2016 IL 119006, ¶ 29. Our supreme court has held that “a defendant in postconviction
       proceedings is entitled to only a ‘reasonable’ level of assistance, which is less than that
       afforded by the federal or state constitutions.” People v. Pendleton, 223 Ill. 2d 458, 472 (2006)
       (quoting People v. Munson, 206 Ill. 2d 104, 137 (2002)). “[A] defendant has a right to proceed
       pro se in postconviction proceedings.” People v. Heard, 2014 IL App (4th) 120833, ¶ 10
       (citing 725 ILCS 5/122-4 (West 2010)). However, a defendant must “knowingly and
       intelligently relinquish[ ] his right to counsel, and his waiver [must be] clear and unequivocal,
       not ambiguous.” Id.
¶ 16        Defendant argues that the trial court erred in forcing him to represent himself. Because
       defendant did not waive his right to appointed counsel, either expressly or through his conduct,
       the trial court erred in requiring defendant to proceed pro se.
¶ 17        A defendant can expressly waive the right to counsel. A defendant may also relinquish his
       right to counsel in two additional ways, forfeiture and waiver by conduct. People v. Ames,
       2012 IL App (4th) 110513, ¶ 26. “[F]orfeiture, strictly defined, is different from waiver
       because instead of being an intentional relinquishment of a known right, forfeiture is the failure
       to make the timely assertion of the right.” Id. ¶ 28.
                “[Forfeiture of counsel] may occur because of a defendant’s severe misconduct without
                the defendant’s first having been warned of the consequences of his engaging in that
                severe misconduct. A trial court has the discretion to determine that the defendant’s
                misconduct was so severe (such as physically attacking his defense counsel) that no
                warning of forfeiture of counsel was necessary or foreseeable before the court


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                concludes that the defendant has forfeited his right to counsel and will be required to
                henceforth represent himself.” Id. ¶ 37.
¶ 18        The Arizona Supreme Court found that “forfeiture [of counsel] is reserved for the most
       severe cases of misconduct and should result only when less restrictive measures are
       inappropriate.” State v. Hampton, 92 P.3d 871, 874 (Ariz. 2004) (en banc) (cited in Ames, 2012
       IL App (4th) 110513, ¶ 32).
¶ 19        Waiver by conduct, on the other hand, requires that the trial court first warn a defendant
       that he could lose his right to appointed counsel if his misconduct continues.
                “ ‘Once a defendant has been warned that he will lose his attorney if he engages in
                dilatory tactics, any misconduct thereafter may be treated as an implied request to
                proceed pro se and, thus, as a waiver of the right to counsel. ***
                                                    ***
                    These are not “waiver” cases in the true sense of the word. In many situations[,]
                there will be defendants who engage in dilatory conduct but who vehemently object to
                being forced to proceed pro se. These defendants cannot truly be said to be “waiving”
                their Sixth Amendment rights because although they are voluntarily engaging in
                misconduct knowing what they stand to lose, they are not affirmatively requesting to
                proceed pro se.’ ” Ames, 2012 IL App (4th) 110513, ¶ 34 (quoting United States v.
                Goldberg, 67 F.3d 1092, 1100-01 (3d Cir. 1995)).
¶ 20        Before a trial court may find that a defendant has waived his right to counsel by conduct,
       “the court must first comply with the requirements of Rule 401(a), explaining to the defendant
       what is at stake if his conduct continues.” Id. ¶ 38. “ ‘ “A court is under no less obligation to
       ensure that waiver is knowing and intelligent when voluntariness is deduced from conduct than
       when it is asserted expressly.” ’ ” Id.¶ 39 (quoting State v. Weiss, 637 N.E.2d 47, 50 (Ohio Ct.
       App. 1993), quoting United States v. Allen, 895 F.2d 1577, 1579 (10th Cir. 1990)). Ames found
       that the trial court committed reversible error in finding that the defendant had waived his right
       to counsel by his conduct because the trial court never admonished the defendant pursuant to
       Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Ames, 2012 IL App (4th) 110513, ¶ 38.
¶ 21        Here, the trial court never warned defendant that he would lose his right to appointed
       counsel if his misconduct toward his appointed attorney continued. See id. ¶¶ 34, 38. In the
       absence of such a warning, defendant’s repeated failure to cooperate with his appointed
       counsel cannot be construed as a knowing waiver. See id.¶ 39.
¶ 22        The State argues that this case involves postconviction proceedings, which gives the
       defendant a statutory right to counsel rather than a constitutional one. Also, admonitions
       pursuant to Rule 401 are not applicable in postconviction proceedings. See People v. Young,
       341 Ill. App. 3d 379, 387 (2003) (holding that compliance with Rule 401 was not required
       during posttrial proceedings after the defendant was already convicted and sentenced).
       Nonetheless, we find that, under these circumstances, the trial court was required to warn
       defendant that his continued misconduct could result in waiver of his statutory right to counsel
       before defendant could waive his right to counsel by conduct. The distinction between how and
       where the defendant’s right to counsel originated is one without significance.
¶ 23        The trial court failed to warn defendant that he could waive his right to counsel through his
       conduct, but indicated that defendant would still have the option of appointed counsel if he
       failed to hire a private attorney. Despite Kramarsic’s reports about conflict between defendant


                                                   -6-
       and him, the trial court maintained Kramarsic’s appointment as counsel to “leav[e] options
       open.” During this time, the trial court said that it was not dismissing Kramarsic completely,
       but, months later, the court allowed Kramarsic to withdraw based on his complaints that
       defendant would not listen to him. While it was certainly within the trial court’s discretion not
       to permit Kramarsic to withdraw immediately, the court erred by permitting him to withdraw
       before warning defendant that he stood to lose his right to appointed counsel if his behavior
       continued.
¶ 24       Even so, the State argues that defendant forfeited his right to counsel through his severe
       misconduct, relying on United States v. McLeod, 53 F.3d 322, 324-25 (11th Cir. 1995). In
       McLeod, the court found that the defendant forfeited his right to counsel based on his
       “pervasive misconduct.” Id. Defendant’s attorney testified that the defendant was verbally
       abusive, threatened to harm him, threatened to sue him, and attempted to persuade him to
       engage in unethical conduct. Id. at 325. Because of McLeod’s actions, the court found a
       forfeiture of defendant’s right to an attorney. The court was “troubled” by the trial court’s
       failure to warn defendant, but found that the defendant’s actions were “repeatedly abusive,
       threatening and coercive.” Id. at 326.
¶ 25       In this case, defendant yelled obscenities at Kramarsic and pulled the papers out of
       Kramarsic’s hands. Though defendant’s behavior was certainly inappropriate, we do not find
       that his misconduct was so severe that no warning was necessary or foreseeable. See Ames,
       2012 IL App (4th) 110513, ¶ 37. While the trial court has discretion to determine whether the
       severity of a defendant’s misconduct requires forfeiture, under these facts, a warning would
       have been the appropriate remedy.
¶ 26       We can only praise the trial judge for her patience and resolve during the trial of this
       matter, but we must reverse and remand for the above stated reasons.

¶ 27                                         CONCLUSION
¶ 28       The judgment of the trial court denying defendant’s postconviction petition is reversed. We
       remand the matter for the appointment of counsel and new second stage proceedings. On
       remand, appointed counsel may file an amended petition, if appropriate, and the State may
       respond accordingly.

¶ 29      Reversed and remanded with directions.

¶ 30       JUSTICE SCHMIDT, dissenting.
¶ 31       For the following reasons, I would affirm the trial court and, therefore, respectfully dissent.
¶ 32       The record shows and the facts set out by the majority show that this trial judge was more
       than patient and that defendant was well aware that his refusal to work with the public defender
       would leave him with two choices: hire private counsel or proceed pro se. Supra ¶¶ 5-12.
¶ 33       It was obvious at a hearing on November 21, 2013, that defendant was not happy with and
       would not accept the help of the first public defender involved. On February 20, 2014, a second
       assistant public defender appeared and advised the court that defendant had been very
       belligerent and swore at him. The court advised defendant that there were no more public
       defenders and there was no one left to appoint. Defendant indicated that he wanted to hire his
       own attorney and the court gave him 60 days.

                                                    -7-
¶ 34       At the April 24, 2014, status hearing, the court acknowledged that it was clear that
       defendant wanted nothing to do with the public defender in this case. Defendant advised that
       he was trying to find another attorney but had not yet hired one. The trial court, again,
       continued the hearing on the State’s motion to dismiss until June 12.
¶ 35       At the June 12 hearing, defendant had not yet hired private counsel. After discussions, the
       court pointed out that it was clear defendant would not listen to the public defender and
       allowed the public defender to withdraw. The court explained that defendant could either hire
       private counsel or represent himself pro se. Defendant said he needed more time as he did not
       have the funds to hire private counsel. The court continued the matter until July 17, 2014. It
       seems clear that from as early as February 20, 2014, the trial court was putting defendant on
       notice that if he could not get along with the public defender, then he would either have to hire
       private counsel or represent himself. If it was not clear then, it certainly should have been clear
       on April 24, 2014. It is hard to understand how anyone in the courtroom that day could not
       understand that the options were to get along and cooperate with the public defender, hire your
       own counsel, or proceed pro se. To the extent that Rule 401 admonishments are required in
       postconviction proceedings, there was substantial compliance.
¶ 36       For his second issue, defendant argues that the trial court denied his postconviction petition
       after an evidentiary hearing by applying the wrong standard. Defendant argues that the court
       required defendant to establish that he would have been found innocent if the cause had
       proceeded to trial. Defendant then argues that the correct standard is “whether but for counsel’s
       deficiencies, the defendant would have gone to trial.” That is not the standard. The standard
       would be whether but for counsel’s deficiencies, a reasonable person in defendant’s position
       would have gone to trial. That is, to establish prejudice, a defendant must show that there is a
       reasonable probability that, but for counsel’s errors, he would not have pled guilty and would
       have insisted on going to trial. People v. Rissley, 206 Ill. 2d 403, 457 (2003). A bare assertion is
       insufficient. Id. at 457-60. At the evidentiary hearing on the postconviction petition,
       defendant’s plea counsel testified. Defendant did not. Plea counsel testified that defendant
       knowingly decided to plead guilty after going over all the facts and the State’s case. Plea
       counsel denied putting any pressure on defendant into taking the plea. Defendant never
       claimed that he was either innocent or had a plausible defense. Id. at 460; see also People v.
       Hall, 217 Ill. 2d 324, 335-36 (2005). Under any standard you choose, pick one, the trial court
       did not err in denying defendant’s postconviction petition. We review the court’s judgment,
       not its reasoning. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983).




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