                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Vázquez, 2011 IL App (2d) 091155




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    WILLIAM VÁZQUEZ, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-09-1155


Filed                      September 1, 2011


Held                       Defendant’s convictions for contributing to the delinquency of a minor
(Note: This syllabus       and harboring a runaway were vacated and the cause was remanded for
constitutes no part of     retrial where the trial court failed to properly admonish defendant before
the opinion of the court   allowing him to represent himself, and on retrial, text messages defendant
but has been prepared      sent will not be considered discoverable “inculpatory statements” under
by the Reporter of         the rule in Schmidt.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 05-CM-6830; the
Review                     Hon. Ronald D. Sutter, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                 Thomas A. Lilien and Darren E. Miller, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph E. Birkett, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                           Assistant State’s Attorney, and Lawrence M. Bauer and Diane L.
                           Campbell, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justice Burke concurred in the judgment and opinion.
                           Justice McLaren specially concurred, with opinion.




                                             OPINION

¶1          A jury convicted defendant, William Vázquez, of two misdemeanors: contributing to the
        delinquency of a minor (720 ILCS 130/2a (West 2004)) and harboring a runaway (720 ILCS
        5/10-6(b) (West 2004)). On appeal, defendant argues, and the State agrees, that the trial court
        failed to properly admonish him as required by Illinois Supreme Court Rule 401(a) (eff. July
        1, 1984) before permitting him to conduct his own defense. They also agree that defendant’s
        convictions cannot stand. However, defendant argues that, under the rule in People v.
        Campbell, 224 Ill. 2d 80, 87-88 (2006), because he has fully served his sentence, the proper
        remedy is vacatur of his convictions without remand for retrial. The State argues that
        Campbell is not decisive on the issue and that retrial is the proper remedy. We agree with the
        State. We conclude that Campbell is distinguishable and that under these facts defendant may
        be retried.
¶2          Defendant also argues that, under the rule in People v. Schmidt, 56 Ill. 2d 572 (1974),
        because the State did not disclose a transcript of certain text messages that he had sent, it
        could not use the transcript as evidence. Given that the transcript was never disclosed, the
        underlying issue of whether it was subject to Schmidt discovery is an issue that may recur on
        retrial and thus we address it. We conclude that the transcript is not discoverable.

¶3                                      BACKGROUND
¶4          Defendant was charged with contributing to the delinquency of a minor and harboring
        a runaway (both involving Brandon P.). At an initial hearing on December 22, 2005, the
        judge asked defendant only if he needed time to hire an attorney. When defendant asked to
        make an oral motion to dismiss, the judge told defendant that he had the right to represent

                                                 -2-
     himself. Defendant responded that he had done so “in this district and the 1st district, federal
     district, Boston District” and was “prepared to move forward.” The judge responded, “I just
     need to caution you that if you’re not a lawyer[–].” Vasquez replied, for the record, that he
     understood. The judge said, “Understand it’s my job,” and defendant responded, “Yes.” The
     judge also advised defendant that he was entitled to discovery as required by Schmidt, under
     which a misdemeanor defendant is entitled to “a list of witnesses [citing what is now section
     114-9(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-9(a) (West
     2008))], any confession of the defendant [citing what is now section 114-10(a) of the Code
     (725 ILCS 5/114-10(a) (West 2008)), and] evidence negating the defendant’s guilt [citing
     Brady v. Maryland, 373 U.S. 83 (1963)].” Schmidt, 56 Ill. 2d at 575.
¶5       Shortly after the hearing just described, defendant filed a motion to dismiss in which he
     denied the factual basis of the charges and claimed that Brandon had been physically abused
     and neglected by his father. On February 28, 2006, Greg P., Brandon’s father, filed a petition
     for an emergency order of protection to bar defendant from contact with Brandon. The
     petition for an order of protection, though filed under the misdemeanor case number, was
     heard by a different judge.
¶6       On October 20, 2006, the judge handling the order-of-protection matter held a hearing
     on a plenary order of protection. The judge became concerned that defendant was not aware
     that the State could use his testimony against him in the criminal proceedings. As part of the
     ensuing discussion, the court advised defendant of his right to appointed counsel:
              “If you choose to consult an attorney before proceeding, you have the right to do that.
         If you–and if you cannot afford one, as I know, in other cases, I’ve advised you, you have
         the right to fill out an affidavit of assets and liabilities to see if you qualified under the
         poverty guidelines. And if you cannot afford an attorney, then under those circumstances,
         an attorney would be appointed for you.”
¶7       Defendant’s trial, which was before a jury, did not take place until March 2008. At trial,
     the State presented evidence tending to show that Brandon was a runaway and that defendant
     had allowed Brandon to live with him, had condoned Brandon’s use of alcohol, and had
     allowed Brandon, who lacked a driver’s license, to drive a truck. Defendant testified that he
     had encountered Brandon when Brandon was homeless and that he did not allow Brandon
     to drink or drive.
¶8       On cross-examination, the State asked defendant about four text messages that it asserted
     he had sent to Brandon’s cell phone. Defendant admitted that he had sent one that said, “No
     truck for you tonight.” He denied sending others suggesting that Brandon should limit his
     driving, saying that Brandon had smelled like beer, and complaining that Brandon had left
     him “one hit” and that “it” had better be replaced. Defendant asked to look at the transcript
     of the messages, but the court denied the request. He then objected that he had not received
     the transcript during discovery. The court told the State to continue with the examination.
     The State called Brandon as a rebuttal witness; he testified to receiving the texts from
     defendant.
¶9       The jury found defendant guilty on both counts. Defendant then requested the
     appointment of the public defender, explaining that he felt out of his depth and that he no


                                                -3-
       longer had any source of income. He further said that a federal court had found him to be
       indigent. The court refused to appoint counsel, noting that the presentencing report indicated
       that defendant had funds to sustain himself for two months.
¶ 10       The court sentenced defendant to concurrent terms of 24 months of probation with 180
       days in jail. Defendant again requested counsel, and this time the court appointed the public
       defender. Counsel filed a motion for a new trial, asserting, among other things, that the State
       had not laid an adequate foundation for the introduction of the text messages. The motion
       did not raise either of the matters at issue in this appeal. The court denied the motion.
¶ 11       Defendant moved in this court for leave to file a late notice of appeal, and this court
       granted that motion. Defendant raises two issues. He argues primarily that he did not receive
       the admonishments that Rule 401(a) requires and that this was reversible as plain error.
       Secondarily, he argues that the State violated his Schmidt discovery rights by failing to tender
       the text-message transcript.
¶ 12       As we noted, the State and defendant agree that the admonishments were insufficient
       under Rule 401(a) and they agree that we can review the failure as reversible plain error.
       However, they disagree about the proper remedy. The State has not conceded any error with
       regard to the transcript.

¶ 13                                       II. ANALYSIS
¶ 14       We agree with the State and defendant that the admonitions to defendant were fatally
       defective and that this was reversible plain error. Rule 401(a) requires that the court advise
       a defendant of the nature of the charge, the minimum and maximum sentences possible, and
       the right to counsel, including the right of an indigent defendant to appointed counsel.
       “[S]ubstantial compliance with Rule 401(a) is required for an effective waiver of counsel.”
       Campbell, 224 Ill. 2d at 84. Where a court has not advised a defendant of, among other
       things, the possible penalties for an offense, substantial compliance has not occurred. E.g.,
       People v. Childs, 278 Ill. App. 3d 65, 74 (1996). Because the right to counsel is fundamental,
       an appellate court may review a failure to substantially comply with Rule 401(a) under the
       plain-error doctrine despite a defendant’s failure to properly preserve such an error. People
       v. Vernon, 396 Ill. App. 3d 145, 150 (2009); People v. Stoops, 313 Ill. App. 3d 269, 273
       (2000).
¶ 15       Here, we find in the record no time at which the court advised defendant of the nature of
       the charges or the minimum penalties. A judge, other than the trial judge, did advise
       defendant of the right to appointed counsel, but only in the related order-of-protection
       hearing and well after the proceedings began. Given the basic flaws in the admonishments,
       we agree that the court failed to substantially comply with Rule 401(a), such that vacatur of
       the convictions is necessary.
¶ 16       Having agreed that the convictions must be vacated, the parties dispute whether the case
       should be remanded for retrial. The dispute arises from the wording of Campbell, a supreme
       court case with facts similar to those here. In Campbell, the defendant was charged with a
       misdemeanor traffic offense, was not properly admonished of the right to counsel, was
       convicted without having counsel, and had completed his sentence by the time of the

                                                 -4-
       appellate decision. The Campbell court held that, in that case, retrial would serve no good
       purpose:
           “Ordinarily, [the lack of admonishments] would compel the reversal of defendant’s
           conviction and a remand for a new trial. In this case, however, defendant has already
           discharged his sentence, and a new trial therefore would be neither equitable nor
           productive. Accordingly, we agree with the appellate court’s conclusion that defendant’s
           conviction must be vacated.” Campbell, 224 Ill. 2d at 87-88.
       Defendant argues that he is almost identically situated and that we should similarly conclude
       that retrial would serve no good purpose. The State implies that the circumstances in
       Campbell are distinguishable because of the disparity in the seriousness of the defendants’
       offenses, pointing to the fact that the defendant in Campbell was convicted of driving with
       a suspended license. Id. at 82-83. We agree.
¶ 17       In light of Campbell, we are called upon to decide whether retrial in this case would be
       neither equitable nor productive. We conclude that retrial would be both equitable and
       productive.
¶ 18       We examine the quoted language from Campbell. Although we appreciate defendant’s
       position that the quoted passage could be read to say that the fact that the defendant had
       discharged his sentence directly implied that a new trial would be “neither equitable nor
       productive” (Id. at 87-88), such a reading is insensitive to the particular facts of that case, its
       context, and other language. The quoted passage contains the phrase, “In this case,” which,
       read in context, would limit the decision to its facts. We note that, generally, vacatur of a
       conviction is followed by remand for retrial, and we conclude that a decision to vacate a
       defendant’s conviction without remand for retrial must be limited to the facts of Campbell.
       We note further that the Campbell court’s reasoning was that retrial would be neither
       equitable nor productive. The court did not elaborate on which facts or circumstances it
       considered in concluding that retrial would be neither equitable nor productive, nor did it
       enunciate factors to guide future courts. In the absence of such guidance, we must look to the
       facts upon which the decision was based. In Campbell, the facts included both that the
       defendant served his complete sentence and that the charge at issue was a misdemeanor
       traffic offense–driving with a suspended licence.
¶ 19       We acknowledge that here defendant has completed his sentence but conclude that the
       charges in question are significantly different. We cannot reasonably apply Campbell’s
       holding to criminal convictions of a very different character from the one involved in
       Campbell.
¶ 20       The Campbell defendant’s offense, driving with a suspended license, is, of course, a
       traffic offense and not one that inherently involves danger to the public. To the contrary,
       defendant here was charged with harboring a runaway and contributing to the delinquency
       of that minor, offenses that inherently involve harm and danger. Further, these offenses are
       directed against minors, who are most vulnerable and thus most in need of protection.
¶ 21       There is nothing inequitable in allowing the State the opportunity to obtain convictions
       for wrongdoing, even if the court is ultimately unable to impose any additional penalty. A
       criminal conviction means something. Its presence in a criminal history has value to the State

                                                  -5-
       in its role as prosecutor. The presence or absence of a criminal conviction may be a factor
       in charging a potential defendant. It may impact whether a plea agreement is offered and
       certainly will impact the nature of the offer. A prior conviction may be used in aggravation
       in a future sentencing hearing without placing upon the State the additional burden of
       producing a minor or other witness to testify. While these factors could apply to all
       convictions, we conclude that the implications noted here are enhanced with the severity of
       the offense at issue. In other words, the more severe the offense at issue, the greater the
       importance of the conviction. The existence of these possibilities makes retrial here both
       equitable and productive. Thus, we deem that Campbell is distinguishable on its facts and
       conclude that, because defendant was charged with contributing to the delinquency of a
       minor and harboring a runaway, remand for retrial is both equitable and productive.
¶ 22        We now turn to the State’s use of the text-message transcript, which, in the context of
       retrial, we treat as a question of the scope of Schmidt discovery. Because any retrial will not
       follow precisely the same path as the original trial, the precise manner in which the State
       introduced the content of the text-message transcript is no longer relevant. However, because
       defendant never saw the full transcript, whether he is entitled to its disclosure is not moot.
       The rule in Schmidt entitles a misdemeanor defendant to disclosure of “confession[s].”
       Schmidt, 56 Ill. 2d at 575. Defendant implies that another supreme court case, People v.
       Williams, 87 Ill. 2d 161, 165 (1981), effectively expanded that entitlement to include any
       “inculpatory statements.” We conclude that Williams should not be read as an expansion of
       Schmidt, and that, in any event, the transcript does not contain “inculpatory statements.”
¶ 23        Schmidt, although a 1974 decision, remains the standard citation for the sources of law
       under which a misdemeanor defendant is entitled to discovery. Per Schmidt, such a defendant
       is entitled to “a list of witnesses [citing what is now section 114-9(a)], any confession of the
       defendant [citing what is now section 114-10(a), and] evidence negating the defendant’s guilt
       [citing Brady].” Schmidt, 56 Ill. 2d at 575.
¶ 24        Section 114-10(a) provides:
            “On motion of a defendant in any criminal case made prior to trial the court shall order
            the State to furnish the defendant with a copy of any written confession made to any law
            enforcement officer of this State or any other State and a list of the witnesses to its
            making and acknowledgment. If the defendant has made an oral confession a list of the
            witnesses to its making shall be furnished.” (Emphasis added.) 725 ILCS 5/114-10(a)
            (West 2008).
¶ 25        Most cases, including Schmidt itself, use the word from the statute, “confession,” to
       describe what the State must disclose (Schmidt, 56 Ill. 2d at 575), and an entire line of cases
       specifically holds that the statute covers only confessions in the strict sense, and not merely
       admissions. For instance, in People v. Brown, 106 Ill. App. 3d 1087, 1091 (1982), an
       appellate panel followed that narrow interpretation:
                “In the present case *** it is apparent that the statement in question was not a
            confession[,] which is ‘ “a voluntary acknowledgment of guilt after the perpetration of
            an offense, and it does not embrace mere statements or declarations of independent facts
            from which guilt may be inferred.” ’ [Citation.] Here, section 114-10 does not apply


                                                 -6-
            since defendant’s statement that he threw a gun out of his window was not an
            acknowledgment of guilt for the crime of rape but was, at most, a declaration of an
            independent fact from which guilt could be inferred.”
¶ 26        Despite such precedent, and despite the language of Schmidt itself, defendant cites
       Williams, 87 Ill. 2d at 165, for the proposition that all “inculpatory statements” fall within
       the scope of Schmidt discovery. Defendant’s reading of Williams is a natural, if superficial,
       reading of certain language in the decision. However, that reading of Williams–a case that
       was not even concerned with discovery of confessions or the like–is not a good statement of
       Illinois law.
¶ 27        At issue in Williams was whether the court could require the defendant in a misdemeanor
       case to disclose his witnesses. Williams, 87 Ill. 2d at 164. In particular, the question was
       whether the holding in Schmidt left room for a trial court to order additional kinds of
       discovery at its own discretion. A discussion of the Schmidt court’s intent on that point
       produced the following passage, the passage on which defendant relies:
                 “In Schmidt, the court noted certain instances whereby discovery procedures would
            be allowed in nonfelony cases. These procedures include providing the defendant with
            a list of witnesses, the results of any breathalyzer test, any inculpatory statements made
            by the defendant, and any evidence which tends to negate the defendant’s guilt.
            [Citation.] These limited additional provisions arose under case law and statutes which
            we do not consider in conflict with the discovery rules. It is noteworthy that none of the
            allowable disclosures accord the State discovery rights in misdemeanor cases.”
            (Emphasis added.) Id. at 165.
       Given the issue before the Williams court, the passage in question can be read only as a less-
       than-carefully worded attempt to summarize Schmidt. We therefore conclude that, in spite
       of the language in Williams, a misdemeanor defendant is entitled to disclosure of
       confessions.1 The text messages were not acknowledgments of guilt, and so were not
       confessions and thus not discoverable.
¶ 28        That said, even if we assumed that, under Williams, the State must disclose all
       “inculpatory statements,” we nevertheless would not conclude that such a rule would require
       the State to disclose the transcript of the text messages. In Illinois at least, the phrase
       “inculpatory statements” is not a term of art with a formal definition established by statute
       or precedent. Our own sense of the normal usage is that the phrase refers to postoffense
       statements of a defendant that, although not necessarily confessions in the strict sense,
       nevertheless tend to incriminate him or her. Thus, if a witness hears a perpetrator saying,
       “hand over the money or I’ll shoot you,” that, because it is not postoffense, is not an
       “inculpatory statement” according to ordinary usage. Our sense of the language is reinforced
       by learning that, in Louisiana, where a statute requires the state to disclose “inculpatory
       statements,” the definition of an inculpatory statement is “an out of court admission of


               1
               We do not here address the issue of whether, per section 114-10(a), the only disclosable
       confessions are those “made to any law enforcement officer of this State” (725 ILCS 5/114-10(a)
       (West 2008)), or whether, per a literal reading of Schmidt, the State must disclose any confession.

                                                  -7-
       incriminating facts made by the defendant after the crime has been committed.” State v.
       Curington, 09-867, at 9 (La. App. 5 Cir. 10/26/10); 51 So. 3d 764. We deem the text
       messages to be concurrent with the commission of the alleged offenses rather than
       postoffense admissions. Thus, even under the looser standard advocated by defendant, the
       text-message transcript is not discoverable.

¶ 29                                   III. CONCLUSION
¶ 30      For the reasons stated, we vacate defendant’s convictions and remand the matter for
       proceedings consistent with this decision.

¶ 31      Vacated and remanded.

¶ 32       JUSTICE McLAREN, specially concurring:
¶ 33       I write to address several points.
¶ 34       First, the majority’s analysis conflates the holding of Campbell with its rationale. The
       application of the holding of Campbell to this case is inapt because the facts are substantially
       dissimilar. The majority’s suggestion that the charges in this case are more serious than the
       offense in Campbell is questionable and essentially immaterial. The seriousness of the
       offense is of little importance if, as in Campbell, an enhanced punishment was provided for
       a subsequent offense.
¶ 35       Second, I do not agree with all the reasons given by the majority as to why the State has
       a valid reason to retry the cause. The analysis regarding the claim that the offenses charged
       involve inherently harmful or dangerous activities does not apply to the charge of harboring
       a runaway. In fact, defendant claimed that he was harboring the minor because the minor was
       being physically abused and neglected by a parent. Under the statute, this mitigating and
       exculpatory factor would not preclude conviction. However, the statute allows an exemption
       for certain entities that are reasonably presumed to be reliable harborers of minors, such as
       youth emergency shelters and agencies providing crisis intervention services. See 720 ILCS
       5/10-6(a) (West 2008). Further, proof of the infliction of harm, danger, or injury to the minor
       is not required in order to establish the offense. It is difficult to understand how harm,
       danger, or injury is deemed important for reprosecution when it is not an element of the
       offense. The State could achieve some of the goals cited without obtaining a conviction.
       However, a conviction would make it simpler for the court to punish any future acts that
       would endanger minors, by taking judicial notice of the conviction. The State did not argue
       that the conviction would require future restrictions on defendant. Were defendant, upon
       conviction, required to fulfill duties and obligations in futoro, the need for a conviction to
       impose these conditions would be manifest. I concur in remanding for retrial based upon the
       particular facts in this case. The reasons given by the State reasonably outweigh the costs of
       further prosecution. Additionally, while case law has indicated that the State has been known
       to vindictively reprosecute defendants after vacated or reversed convictions (see People v.
       Brexton, 405 Ill. App. 3d 989 (2010)), the record does not indicate such a motive here.


                                                 -8-
¶ 36       Third, the general principle that a defendant may be retried so long as jeopardy has not
       attached would apply here, and Campbell would not alter the application of this principle to
       this case:
                “At common law a convicted person could not obtain a new trial by appeal except in
           certain narrow instances. As this harsh rule was discarded courts and legislatures
           provided that if a defendant obtained the reversal of a conviction by his own appeal he
           could be tried again for the same offense. Most courts regarded the new trial as a second
           jeopardy but justified this on the ground that the appellant had ‘waived’ his plea of
           former jeopardy by asking that the conviction be set aside. Other courts viewed the
           second trial as continuing the same jeopardy which had attached at the first trial by
           reasoning that jeopardy did not come to an end until the accused was acquitted or his
           conviction became final. But whatever the rationalization, this Court has also held that
           a defendant can be tried a second time for an offense when his prior conviction for that
           same offense had been set aside on appeal.” Green v. United States, 355 U.S. 184, 189
           (1957).
¶ 37       Finally, defendant’s sentence has been satisfied. It no longer pends. It is completed. Thus,
       any sentence upon reconviction would be a second punishment for the same event. See
       People v. Miller, 238 Ill. 2d 161, 174 (2010) (“The double jeopardy clause protects against,
       inter alia, multiple punishments for the same offense.”). Were defendant to be convicted
       after a new trial, the trial court may only sentence defendant up to the same sentence imposed
       before and then declare it satisfied and discharged.




                                                 -9-
