                           NO. 4-04-0614         Filed: 4/12/06

                     IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    ) Appeal from
          Plaintiff-Appellee,           ) Circuit Court of
          v.                            ) Champaign County
GEORGE P. BINGHAM,                      ) No. 04CF83
          Defendant-Appellant.          )
                                        ) Honorable
                                        ) Michael Q. Jones,
                                        ) Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In April 2004, a jury convicted defendant, George P.

Bingham, of aggravated fleeing or attempting to elude a police

officer (625 ILCS 5/11-204.1 (West 2002)) and driving while his

driver's license was revoked (625 ILCS 5/6-303 (West 2002)).      The

trial court sentenced defendant to a 6-year term of imprisonment

on the aggravated-fleeing conviction and a concurrent term of 364

days on the driving-while-license-revoked conviction.    Defendant

appeals, contending he was denied his right to counsel of choice.

 We reverse and remand.

                           I. BACKGROUND

          On January 14, 2004, defendant was charged with aggra-

vated fleeing or attempting to elude a police officer and driving

while his driver's license was revoked.     On January 27, 2004, an

assistant public defender was appointed to represent defendant.

When the cause was called for trial on April 13, 2004, the

following colloquy took place:

               "THE COURT: Appearance of the
[d]efendant personally, and by counsel, Mr.

Appleman.

     Cause called for jury trial.

     Both sides ready for trial?

     MR. HARRIS [(assistant State's Attor-

ney)]: Yes, Judge.

     MR. APPLEMAN [(defense counsel)]: Your

Honor, my client has asked me to make a mo-

tion to continue this case.    He is, in fact,
represented by out-of-town counsel.    I be-

lieve the name is Earl Washington, on other

cases, and he is hoping to be represented by

Mr. Washington on this case as well.    So, I

will make a motion to continue on that basis.

     THE COURT: Mr. Harris?

     MR. HARRIS: Judge, when this case was
called at the status hearing, Mr. Appleman

answered ready for trial.    Had he not an-

swered ready for trial, it was the State's

intention to answer ready for trial.

     Mr. Appleman is correct, the [d]efendant

has other matters pending.    He has [an] unre-

solved delivery-of-controlled-substance case.

 He has two unresolved petitions to revoke

probation.

     Despite my best efforts to bring Mr.


                     - 2 -
          Washington to the table either for purposes

          of trial as to the unresolved case or to

          hearing on the petitions to revoke, Mr. Wash-

          ington's always had something else to do.

                State is ready for trial.

                I did get a palm message late yesterday

          afternoon from Mr. Washington.    I've had

          offers out on the other cases for six months.

          [The] State is most anxious to proceed in
          this matter.

                THE COURT: Given the representations

          I've heard, the motion to continue is de-

          nied."

          After proceeding to trial, the jury found defendant

guilty on both charges and the court sentenced defendant as

stated.   This appeal followed.
                           II. ANALYSIS

          On appeal, defendant contends the trial court abused

its discretion by denying his request for a continuance to

substitute private counsel.   Defendant argues nothing indicates

the request was made for dilatory purposes and the court erred by

failing to conduct an inquiry into the circumstances surrounding

the request.   The State contends the court did not need to make

any additional inquiry because the necessary facts were before

the court.   The State also argues the conviction should not be

reversed because defendant has not established he was prejudiced


                                  - 3 -
by the trial court's denial of the motion for a continuance.       We

reverse, finding the trial court violated defendant's right to

choice of counsel by erroneously denying defendant's motion for

continuance to substitute counsel without conducting an adequate

inquiry into the request.

             A. Violation of Right to Choice of Counsel

            Defendant has a constitutional right to the assistance

of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art.

I, '8), which includes the right to counsel of his choosing

(People v. Friedman, 79 Ill. 2d 341, 349, 403 N.E.2d 229, 234

(1980)).    However, this right is not absolute, and a defendant

may not use this right to "thwart the administration of justice,

or to otherwise embarrass the effective prosecution of crime."

People v. Solomon, 24 Ill. 2d 586, 590, 182 N.E.2d 736, 739

(1962).

            In ruling on a motion to continue to substitute coun-

sel, the trial court must balance defendant's right to choose his

counsel against the efficient and effective administration of

justice.    People v. Childress, 276 Ill. App. 3d 402, 410, 657
N.E.2d 1180, 1186 (1995).    "This balancing, of necessity, re-

quires a review of the diligence shown by the defendant [cita-

tion] and an inquiry into the actual request to see if the

request is being used merely as a delaying tactic."    People v.

Washington, 195 Ill. App. 3d 520, 525, 552 N.E.2d 1067, 1070

(1990).    The determination of a motion to continue depends upon

the circumstances of each case, and the trial court's denial of a


                                - 4 -
defendant's request for a continuance will not be overturned

absent an abuse of discretion.    Friedman, 79 Ill. 2d at 347-48,

403 N.E.2d at 233.

            In this case, the trial court erred in denying defen-

dant's motion for a continuance to substitute counsel without

further inquiry.    While it is unclear whether defendant had

already retained Washington in this matter, it is clear Washing-

ton represented defendant in several other ongoing criminal

matters and defendant wanted Washington to represent him in this

cause.   The record also indicates Washington contacted the

assistant State's Attorney the previous day, although the subject

matter of the message is unclear.        The record shows the case

progressed quickly and had been pending only three months.        No

prior continuances and no pretrial motions had been filed.        The

record shows no indication of any prior attempt by defendant to

delay the proceedings or that the purpose of the request was

dilatory.    The trial court should have conducted an inquiry into

the circumstances and the purposes of the motion before making

its ruling.    By denying defendant's motion without conducting

such an inquiry, the trial court abused its discretion and

violated defendant's sixth-amendment right to counsel of choice.



 B. Standard for Reversal for a Violation of Choice of Counsel

            Having found a violation of defendant's right to

counsel of choice, the question arises whether this constitu-

tional violation is subject to per se reversal or a harmless-


                                 - 5 -
error or prejudice analysis.



                       1. Prejudice Analysis

          Citing Solomon, 24 Ill. 2d 586, 182 N.E.2d 736, the

State argues the conviction should not be reversed because

defendant has not established he was prejudiced by the trial

court's denial of the motion for a continuance.

          In Solomon, the defendant requested a religious organi-

zation retain an attorney for him and refused to cooperate with

his court-appointed counsel.   Solomon, 24 Ill. 2d at 589, 182
N.E.2d at 738.   On the day before trial, approximately two weeks

later, appointed counsel filed a motion indicating the organiza-

tion had not advised him of the status of defendant's request and

sought a continuance so defendant could obtain counsel of choice.

 Solomon, 24 Ill. 2d at 589, 182 N.E.2d at 738.    The trial court

denied the motion and the cause proceeded to trial as scheduled.

Solomon, 24 Ill. 2d at 589, 182 N.E.2d at 738.    Defendant ap-

pealed, alleging he was denied his right to a fair trial due to

the denial of the continuance and to incompetent representation

by his appointed counsel.   Solomon, 24 Ill. 2d at 588, 182 N.E.2d
at 738.

          The Solomon court stated "[b]efore a judgment of

conviction will be reversed because of the denial of such a

motion, it must appear that the refusal of additional time in

some manner embarrassed the accused in preparing his defense and

prejudiced his rights."   Solomon, 24 Ill. 2d at 589-90, 182


                               - 6 -
N.E.2d at 738.     Contrary to the State's assertion, this standard

does not apply to denials of motions for continuance to substi-

tute counsel (which implicate the right to counsel of choice) but

instead applies to motions for continuance to prepare for trial

(which implicate the right to effective assistance of counsel).

           Notably, the applicable law from the cases cited by

Solomon in setting forth the prejudice requirement involves

motions for continuances to prepare for trial or trial prepara-

tion in general.    See People v. VanNorman, 364 Ill. 28, 29-31, 2

N.E.2d 891, 892-93 (1936) (trial court denied motions for contin-

uance to prepare for trial); Holt v. United States, 267 F.2d 497,
498-99 (8th Cir. 1959) (court denied motion for continuance to

prepare for trial made by recently substituted counsel); United

States ex rel. Thompson v. Nierstheimer, 166 F.2d 87, 90 (7th

Cir. 1948) (on review of denial of habeas corpus petition, court

found the defendant was not denied due process in expeditious

proceeding); Crono v. United States, 59 F.2d 339, 341 (9th Cir.

1932) (trial court denied recently substituted counsel's motion

for a continuance to prepare for trial).

           The Solomon court's analysis further supports a finding
the standard applies to motions for continuance to prepare for

trial and the corresponding right to effective assistance of

counsel.   Immediately after setting forth the prejudice standard,

the Solomon court addressed the defendant's claim his counsel's

performance was deficient.    Solomon, 24 Ill. 2d at 589-90, 182
N.E.2d at 738.   The court found the appointment of counsel two


                                 - 7 -
weeks before trial was ample time to prepare a defense and, due

to the defendant's refusal to cooperate with appointed counsel,

"he [could not] now be heard to complain that the denial of the

motion for continuance embarrassed his defense or prejudiced his

rights."   Solomon, 24 Ill. 2d at 590, 182 N.E.2d at 738.

           After addressing the defendant's ineffectiveness claim

and the question of prejudice, the court moved on to address the

issue of the defendant's right to counsel of choice.     Solomon, 24

Ill. 2d at 590, 182 N.E.2d at 739.     The court found the trial

court did not abuse its discretion in denying the defendant's

motion for a continuance because the retention of substitute

counsel was only speculative after a reasonable length of time.

Solomon, 24 Ill. 2d at 591, 182 N.E.2d at 739.
           A thorough reading of Solomon indicates the prejudice

requirement set forth relates to the defendant's claim counsel

was unprepared and not to the defendant's contention he was

denied counsel of choice.   See People v. Coleman, 45 Ill. 2d 466,

469, 259 N.E.2d 269, 271 (1970) (the court applied the Solomon

prejudice requirement to a motion for continuance for additional

time to prepare); cf. Wilson v. Mintzes, 761 F.2d 275, 285 n.17
(6th Cir. 1985) (while a prejudice inquiry is inappropriate when

reviewing the denial of a motion to continue to substitute

counsel, it is appropriate when reviewing the denial of a contin-

uance to prepare for trial because it relates to the right to

effective assistance of counsel and the corresponding concern

with the objective fairness of the proceeding).     We reject


                               - 8 -
appellate court cases to the extent they find Solomon holds

otherwise.    See, e.g., People v. Wallace, 44 Ill. App. 3d 89, 92,

357 N.E.2d 858, 861 (1976) (Fourth District); People v. Gray, 96

Ill. App. 3d 757, 761, 422 N.E.2d 45, 49 (1981) (First District);

People v. Allen, 35 Ill. App. 3d 342, 347, 341 N.E.2d 431, 435

(1976) (Fifth District); People v. Hart, 10 Ill. App. 3d 857,

859, 295 N.E.2d 63, 65 (1973) (Third District).

             Requiring a defendant to demonstrate prejudice from a

violation of his right to be represented by his counsel of choice

would essentially require defendant to demonstrate he received

ineffective assistance of counsel.       See Wilson, 761 F.2d at 284
n.14.

          Although the "essential aim of the [sixth] [a]mendment

is to guarantee an effective advocate for each criminal defendant

rather than to ensure that a defendant will inexorably be repre-

sented by the lawyer whom he prefers" (Wheat v. United States,

486 U.S. 153, 159, 100 L. Ed. 2d 140, 148, 108 S. Ct. 1692, 1697

(1988)), the right to counsel of choice is protected independent

of concerns regarding the fairness of the proceedings (Wilson,
761 F.2d at 279).    In this regard, the right to choice of counsel

is distinct from the right to effective assistance of counsel

because "the right to the effective assistance of counsel is

recognized not for its own sake, but because of the effect it has

on the ability of the accused to receive a fair trial."      United

States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 667, 104

S. Ct. 2039, 2046 (1984).


                                 - 9 -
           A prejudice requirement is inappropriate for choice-of-

counsel violations because it would effectively obliterate the

right to be represented by counsel of choice by collapsing the

right into the right to receive effective assistance of counsel.

 Wilson, 761 F.2d at 286; but cf. Rodriguez v. Chandler, 382 F.3d

670, 674-76 (7th Cir. 2004) (in holding prejudice is a require-

ment for reversal of violation of the right to choice of counsel,

the court adopted an "adverse-effect" prejudice standard because

an ineffective-assistance prejudice test would effectively

eliminate relief for a violation of the right and the right

itself).   Instead, the appropriate inquiry is whether a violation

of the right requires per se reversal or is subject to harmless-
error analysis.

                  2. Trial Error or Structural Defect

           In Arizona v. Fulminante, 499 U.S. 279, 307-10, 113 L.

Ed. 2d 302, 330-31, 111 S. Ct. 1246, 1264-65 (1991), the Supreme

Court recognized two categories of constitutional errors in

criminal proceedings: "trial errors" and "structural defects."     A

trial error "occur[s] during the presentation of the case to the

jury" and is subject to harmless-error analysis because it can be

"quantitatively assessed in the context of other evidence pre-

sented in order to determine whether its admission was harmless

beyond a reasonable doubt."    Fulminante, 499 U.S. at 307-08, 113
L. Ed. 2d at 330, 111 S. Ct. at 1264.    Some examples of trial

errors recognized by the Supreme Court include (1) the giving of

a jury instruction misstating an element of the offense, (2) the


                                - 10 -
improper commenting at trial about defendant's silence in viola-

tion of the fifth amendment, and (3) the admission of evidence

obtained in violation of the fourth amendment.    Fulminante, 499

U.S. at 307, 113 L. Ed. 2d at 329-30, 111 S. Ct. at 1263.      Most

constitutional errors in a criminal trial can be harmless and do

not require automatic reversal of the conviction.     Fulminante,

499 U.S. at 306, 113 L. Ed. 2d at 329, 111 S. Ct. at 1263.     As

the beneficiary of the error, the State has the burden of proving

the error was harmless beyond a reasonable doubt.    Chapman v.
California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct.

824, 828 (1967).

            Structural defects, however, defy harmless-error

analysis.    Fulminante, 499 U.S. at 309, 113 L. Ed. 2d at 331, 111

S. Ct. at 1265.    These violations involve a limited class of

fundamental constitutional errors "so intrinsically harmful as to

require automatic reversal (i.e., 'affect substantial rights')

without regard to their effect on the outcome."     Neder v. United

States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827,

1833 (1999). A structural defect "affect[s] the framework within

which the trial proceeds, rather than simply an error in the

trial process itself."    Fulminante, 499 U.S. at 310, 113 L. Ed.
2d at 331, 111 S. Ct. at 1265.    The Supreme Court has recognized

constitutional violations involving the unlawful exclusion of

members of the defendant's race from a grand jury, the right to

choose self-representation at trial, and the right to a public

trial as constitutional errors not subject to harmless-error


                               - 11 -
analysis.   Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331, 111

S. Ct. at 1265.

            We find a violation of defendant's right to choice of

counsel is not a "trial error" occurring during the presentation

of the case that can be quantitatively assessed in light of the

other evidence.     See United States v. Gonzalez-Lopez, 399 F.3d

924, 933 (8th Cir. 2005), cert. granted, ___ U.S. ___, 163 L. Ed.

2d 722, 126 S. Ct. 979 (2006); United States v. Panzardi Alvarez,

816 F.2d 813, 818 (1st Cir. 1987).       Instead, it is a fundamental

constitutional error affecting a substantial right that defies

harmless-error analysis.    See Gonzalez-Lopez, 399 F.3d at 934.
            The nature of the right to counsel of choice dictates

such a finding.     While the defendant's right to self-representa-

tion does not encompass the right to counsel of choice (Wheat,

486 U.S. at 159 n.3, 100 L. Ed. 2d at 149 n.3, 108 S. Ct. 1697

n.3), they involve many of the same concerns.       Both rights are

personal to the defendant and derive from the sixth-amendment

principle that the defendant has the right to choose the type of

defense to mount.    Wilson, 761 F.2d at 279 & n.5.
            "As several courts have recognized, 'the most important

decision a defendant makes in shaping his defense is his selec-

tion of an attorney.'"     Gonzalez-Lopez, 399 F.3d at 935, quoting

United States v. Laura, 607 F.2d 52, 56 (3rd Cir. 1979).       Within

the range of effective advocacy, attorneys will differ in a

variety of important respects that impact a trial, including

their trial strategy, oratory style, framing and emphasis of


                                - 12 -
legal issues, expertise in areas of law, and familiarity with

opposing counsel and the judge.   Gonzalez-Lopez, 399 F.3d at 934.

          In addition, the right to counsel of choice, like the

right to self-representation, "'reflects constitutional protec-

tion of the defendant's free choice independent of concern for

the objective fairness of the proceeding.'"   Gonzalez-Lopez, 399

F.3d at 935, quoting Flanagan v. United States, 465 U.S. 259,

268, 79 L. Ed. 2d 288, 296, 104 S. Ct. 1051, 1056 (1984).   The

right to counsel of choice is recognized out of respect for the

individual and "is either respected or denied irrespective of the

harmlessness or prejudicial nature of the error."    Wilson, 761
F.2d at 286.

          Notably, most of the federal circuit courts to address

the issue have held a violation of the right to counsel of choice

requires per se reversal.   See United States v. Burton, 584 F.2d

485, 491 n.19 (D.C. Cir. 1978); Panzardi Alvarez, 816 F.2d at 818

(1st Cir.); Fuller v. Diesslin, 868 F.2d 604, 609 (3rd Cir.

1989); Wilson, 761 F.2d at 281 (6th Cir.); Gonzalez-Lopez, 399

F.3d at 933-34 (8th Cir.); Bland v. California Department of
Corrections, 20 F.3d 1469, 1478-79 (9th Cir. 1994), overruled on

other grounds in Schell v. Witek, 218 F.3d 1017, 1024-25 (9th

Cir. 2000); United States v. Mendoza-Salgado, 964 F.2d 993, 1015

(10th Cir. 1992); but see United States v. Arena, 180 F.3d 380,

397 (2d Cir. 1999); Rodriguez, 382 F.3d at 673-76.

          We join the majority of the federal courts and hold the

violation of a defendant's sixth-amendment right to counsel of


                              - 13 -
choice requires automatic reversal of the conviction.



                         III. CONCLUSION

          For the reasons stated, we reverse the trial court's

judgment and remand for a new trial.

          Reversed and remanded.

          MYERSCOUGH and COOK, JJ., concur.




                             - 14 -
