                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Bahrs, 2013 IL App (4th) 110903




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



District & No.             Fourth District
                           Docket No. 4-11-0903


Filed                      April 30, 2013


Held                       Defendant’s sentences for aggravated driving under the influence of
(Note: This syllabus       alcohol, driving while his license was revoked, and aggravated fleeing
constitutes no part of     were reversed and the cause was remanded for a new sentencing hearing
the opinion of the court   where defendant would be represented by counsel or, after waiver of
but has been prepared      counsel following proper admonishments pursuant to Supreme Court
by the Reporter of         Rule 401(a), unrepresented, since defendant’s waiver of counsel at his
Decisions for the          sentencing hearing was invalid where the trial court failed to advise him
convenience of the         that his sentence for aggravated fleeing would be consecutive, rather than
reader.)
                           concurrent, to his other sentences.


Decision Under             Appeal from the Circuit Court of Champaign County, No. 11-CF-204; the
Review                     Hon. Richard P. Klaus, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Anastacia R. Brooks, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Justices Pope and Holder White concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant, Shawn Bahrs, is serving a total of 33 years’ imprisonment for aggravated
        driving under the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(2)(D) (West 2010)),
        driving while his driver’s license was revoked (625 ILCS 5/6-303(a) (West 2010)), and
        aggravated fleeing (625 ILCS 5/11-204.1(a)(4) (West 2010)). He appeals from those
        sentences, and his primary argument is that his waiver of counsel in the sentencing hearing
        was invalid as a consequence of the trial court’s failure to admonish him that one of his
        prison sentences, the sentence for aggravated fleeing, would run consecutively to the other
        two sentences rather than concurrently with them. See Ill. S. Ct. R. 401(a)(2) (eff. July 1,
        1984). We agree with that argument and thus do not reach defendant’s remaining arguments,
        which have to do with the per diem credit (725 ILCS 5/110-14 (West 2010)) and duplicate
        fees. Therefore, we reverse the sentences and remand this case with directions to hold a new
        sentencing hearing, in which defendant will be represented by counsel or, alternatively,
        unrepresented by counsel if he waives counsel after complete admonitions pursuant to Rule
        401(a).

¶2                                        I. BACKGROUND
¶3           On July 20, 2011, a jury found defendant guilty of all three charges: aggravated driving
        under the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(2)(D) (West 2010)), driving
        while his driver’s license was revoked (625 ILCS 5/6-303(a) (West 2010)), and aggravated
        fleeing (625 ILCS 5/11-204.1(a)(4) (West 2010)).
¶4           Appointed defense counsel filed a motion for acquittal or, in the alternative, for a new
        trial. Also, defendant personally filed some pro se posttrial motions, including a motion for
        a new trial, in which he asserted that his defense counsel had provided ineffective assistance.
¶5           In a hearing on September 7, 2011, the trial court denied all these posttrial motions,
        whereupon defendant requested the court to dismiss defense counsel and to appoint a new

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       defense counsel. The court refused to do so. The court told defendant his options were either
       to be represented further by the current defense counsel or to proceed pro se, without any
       continuance. The trial court admonished defendant as follows:
                “THE COURT: You will receive no extra benefit from being pro se. You will be
           treated as any lawyer would be treated. You will confine yourself to the way that these
           proceedings are ordinarily conducted, and there will be no continuance.
                Understand, Mr. Bahrs, you were found guilty of three counts. Count I is aggravated
           driving under the influence. It is a Class 1 DUI because it is your fifth. Because of your
           prior offenses it is an X which means you will be sentenced to between 6 and 30 years
           in the Department of Corrections with a 3 year period of mandatory supervised release.
           The other 2 counts are Class 4 counts because you’re charged with an X in Count I.
           Those counts are subject to 1 to 3 years in the Department of Corrections each with a 1
           year period of mandatory supervised release.
                If you wish to proceed pro se, that is your right, but I will not continue this sentencing
           hearing.”
¶6         Complaining that his appointed defense counsel was inexperienced and that the services
       of the public defender’s office had actually been detrimental to his case, defendant elected
       to represent himself in the sentencing hearing. Accordingly, the trial court excused and
       released the appointed defense counsel.
¶7         After the trial court excused defense counsel, defendant told the court:
                “MR. BAHRS: At this time, Your Honor, I’d like to request the full discovery.
                THE COURT: Sentencing, Mr. Bahrs. Not trial.
                MR. BAHRS: To reconsider.
                THE COURT: Not discovery.
                MR. BAHRS: I’d like to reconsider and file a new motion.
                THE COURT: The motions are done, Mr. Bahrs.
                MR. BAHRS: Okay. Well I’d like–
                THE COURT: I’m taking up sentencing.”
¶8         The case entered the sentencing phase. The State presented the presentence investigation
       report. The trial court asked defendant if he had any evidence in mitigation. Defendant asked
       what “mitigation” meant, and the court replied it could not give him any legal advice.
       Defendant said: “No. I have no evidence with me for any mitigation because I didn’t know
       this will turn out like this ***.”
¶9         The prosecutor then made a closing argument, and when it came time for defendant to
       make his closing argument, he told the trial court he would like to present a character
       witness, Kristen Douglas. The court allowed him to reopen the evidence, and Douglas
       testified.
¶ 10       Then, after hearing further arguments, the trial court sentenced defendant to 30 years’
       imprisonment for aggravated driving under the influence, 3 years’ imprisonment for driving
       while his driver’s license was revoked, and 3 years’ imprisonment for aggravated fleeing.


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       The court ordered that the prison terms for the first two offenses run concurrently but that
       the prison term for the third offense, aggravated fleeing, run consecutively to the concurrent
       prison terms.

¶ 11                                        II. ANALYSIS
¶ 12       Defendant argues that his waiver of counsel was invalid because the trial court failed to
       comply fully with Rule 401(a)(2): the court failed to admonish him that the prison term for
       aggravated fleeing would run consecutively to the concurrent prison terms for the other two
       offenses. Rule 401(a) provides as follows:
               “(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall
           not permit a waiver of counsel by a person accused of an offense punishable by
           imprisonment without first, by addressing the defendant personally in open court,
           informing him of and determining that he understands the following:
                   (1) The nature of the charge;
                   (2) The minimum and maximum sentence prescribed by law, including, when
               applicable, the penalty to which the defendant may be subjected because of prior
               convictions or consecutive sentences; and
                   (3) That he has a right to counsel and, if he is indigent, to have counsel appointed
               for him by the court.” (Emphasis added.) Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
¶ 13       We decide de novo whether the trial court complied with this supreme court rule. See
       People v. Yusuf, 409 Ill. App. 3d 435, 438 (2011); People v. Roberson, 401 Ill. App. 3d 758,
       763 (2010); People v. Taylor, 345 Ill. App. 3d 1064, 1083 (2004).
¶ 14       The trial court did not fully comply with subparagraph (2) of Rule 401(a). That
       subparagraph required the court to inform defendant, and to make sure he understood, “the
       penalty to which [he might] be subjected because of *** consecutive sentences.” Ill. S. Ct.
       R. 401(a)(2) (eff. July 1, 1984). In its admonitions to defendant, the court never mentioned
       that any of the prison terms would be consecutive, even though the maximum aggregate
       penalty depended on whether any of the prison terms would be consecutive. If all 3 prison
       terms had been concurrent, the maximum penalty would have been only 30 years’
       imprisonment plus mandatory supervised release. If, on the other hand, the prison term for
       aggravated fleeing had run consecutively to the other 2 prison terms, the maximum penalty
       would have been 33 years’ imprisonment plus mandatory supervised release. The
       consecutive, as opposed to the concurrent, running of a prison term would make a difference
       in defendant’s exposure. The failure to inform defendant that the prison term for aggravated
       fleeing would run consecutively to the other two prison terms was a failure to explicitly
       inform him of the true maximum penalty he faced.
¶ 15       Understating the maximum penalty does not satisfy Rule 401(a) (People v. Koch, 232 Ill.
       App. 3d 923, 927 (1992)), except, perhaps, in the unusual case in which the defendant has
       such a high degree of legal expertise that one may confidently assume he or she already
       knows the maximum penalty (People v. Eastland, 257 Ill. App. 3d 394, 399 (1993)).
       Understating the minimum penalty is excusable if the defendant was sentenced to death.


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       “Under very limited circumstances,” in cases in which the death penalty was imposed, the
       supreme court has found “ ‘substantial compliance’ ” with Rule 401(a) even though the trial
       court had failed to inform the defendant of the minimum penalty he faced. Koch, 232 Ill. App.
       3d at 927 (citing People v. Coleman, 129 Ill. 2d 321, 334 (1989), and People v. Johnson, 119
       Ill. 2d 119, 132 (1987)). But we have held that a trial court’s admonitions regarding the
       maximum penalty must be “accurate” before the court accepts the defendant’s waiver of
       counsel. Koch, 232 Ill. App. 3d at 927. To be accurate, the admonitions regarding the
       maximum penalty must be complete, and to be complete, the admonitions must inform the
       defendant of the consecutive running of any prison term, as the rule requires (Ill. S. Ct. R.
       401(a)(2) (eff. July 1, 1984)).
¶ 16        In fact, as defendant reminds us, we specifically held, in People v. Akers, 137 Ill. App.
       3d 922, 926 (1985), that a failure to admonish the defendant regarding the consecutive
       running of sentences amounted to a failure to admonish him regarding the maximum
       sentence. We said: “The record in the instant case shows that the court did not advise [the]
       defendant of the possibility of consecutive sentences. Supreme Court Rule 402 is not
       substantially complied with when the court fails to state the maximum sentence to which
       [the] defendant is subject.” Id.
¶ 17        The State responds, first, that Akers is distinguishable because it applied Illinois Supreme
       Court Rule 402 (eff. Feb. 1, 1981), regarding admonitions preparatory to accepting a guilty
       plea, rather than Rule 401, regarding admonitions preparatory to accepting a waiver of
       counsel.
¶ 18        Second, in further response to defendant’s citation of Akers, the State points out that a
       trial court can substantially comply with Rule 402(a) without mentioning the consecutive
       running of sentences. In this connection, the State cites People v. Baker, 133 Ill. App. 3d 620,
       622 (1985).
¶ 19        Third, the State observes that the appellate court has found substantial compliance with
       Rule 401(a) “even when the trial court omit[ted] entire portions of the required admonitions,”
       as in People v. Phillips, 392 Ill. App. 3d 243, 262-63 (2009), and Eastland, 257 Ill. App. 3d
       at 399.
¶ 20        Fourth, the State suggests that the consecutive running of the maximum 3-year prison
       term for aggravated fleeing “paled” in comparison to the maximum 30-year prison term for
       aggravated driving under the influence. Apropos of that point, the State cites People v.
       Haynes, 174 Ill. 2d 204, 243 (1996).
¶ 21        Fifth, the State argues that defendant suffered no prejudice, because there is no reason
       to suppose he would have kept his appointed defense counsel had the trial court informed
       him that his sentence for aggravated fleeing would run consecutively to his other sentences.
       As authority for that argument, the State cites Johnson, 119 Ill. 2d at 134, and Phillips, 392
       Ill. App. 3d at 263.
¶ 22        We will address each of those arguments in turn.




                                                 -5-
¶ 23                   A. The State’s Argument That Akers Is Distinguishable
                                 Because It Involved a Different Rule
¶ 24       In Akers, 137 Ill. App. 3d at 924, the defendant offered to plead guilty to a charge of
       residential burglary. Rule 402(a) required the trial court to give him certain admonitions
       before accepting his proposed guilty plea (id. at 925), just as Rule 401(a) requires a trial court
       to give a defendant certain admonitions before accepting a proposed waiver of counsel. As
       in Rule 401(a), one of the admonitions in Rule 402(a) regarded the potential punishment the
       defendant could receive. Indeed, Rule 401(a)(2) and Rule 402(a)(2) are worded identically:
       according to both rules, the court must tell the defendant “the minimum and maximum
       sentence prescribed by law, including, when applicable, the penalty to which the defendant
       may be subjected because of prior convictions or consecutive sentences.” Ill. S. Ct. R.
       401(a)(2) (eff. July 1, 1984); Ill. S. Ct. R. 402(a)(2) (eff. Feb. 1, 1981).
¶ 25       The trial court in Akers told the defendant the minimum and maximum sentences for
       residential burglary, but the court failed to tell him that his sentence for residential burglary
       could be made consecutive to any sentence imposed upon him as a result of a prior
       conviction or a revocation of parole. Akers, 137 Ill. App. 3d at 924. The court “sentenced
       [him] to eight years’ imprisonment with the sentence to be served consecutively to any time
       served as a result of any parole revocation.” Id. The defendant subsequently argued his plea
       was involuntary because the court had failed to admonish him regarding the possibility of a
       consecutive sentence. Id.
¶ 26       We held that, by failing to inform the defendant of the possibility of a consecutive
       sentence, the trial court had “fail[ed] to state the maximum sentence to which [the] defendant
       [was] subject” and that this omission could not be regarded as a substantial compliance with
       Rule 402. Id. at 926. In the absence of a record showing substantial compliance with Rule
       402(a)(2), there was no affirmative showing that the guilty plea was knowing and voluntary,
       and hence the guilty plea was invalid. Id. at 926-27.
¶ 27       The State argues that “[d]efendant’s analogy to Rule 402 fails because the underlying
       reasoning is distinguishable.” The State notes that, while it is true a consecutive sentence
       cannot be imposed on a guilty plea unless the defendant was admonished beforehand that a
       consecutive sentence could be imposed (People v. Wills, 251 Ill. App. 3d 640, 643 (1993)),
       “[d]efendant cites no similar rule barring consecutive sentencing where a defendant is not
       admonished prior to a waiver of counsel that consecutive sentences might be imposed.”
¶ 28       In this case, though, the question is not whether consecutive sentencing is barred;
       defendant does not appear to dispute that, ultimately–with the observance of required
       procedures–the trial court may impose upon him a consecutive prison term for aggravated
       fleeing. And the question is not whether a waiver of counsel is in every way comparable to
       a guilty plea. Instead, the question is whether the trial court really informed defendant of the
       maximum penalty he faced, given that the court did not inform him that one of his sentences
       would be consecutive. On that particular question, Akers is directly on point, and it answers
       no.
¶ 29       With that answer from Akers, we turn again to our decision in Koch. We said,
       emphatically, in Koch: “[W]hen *** a defendant is given a sentence in excess of the

                                                  -6-
       maximum he was informed of at the time he waived counsel, we hold that the defendant’s
       waiver of counsel can never be valid.” (Emphasis in original.) Koch, 232 Ill. App. 3d at 928.
       In the present case, because of the trial court’s failure to mention the consecutive running of
       a sentence, defendant was not informed of the full extent of the penalty he faced. See Akers,
       137 Ill. App. 3d at 926. Thus, with the consecutive running of the sentence for aggravated
       fleeing, he was given a sentence in excess of the maximum of which he was informed at the
       time he waived counsel. It follows that, under Koch, his waiver of counsel is invalid. See
       Koch, 232 Ill. App. 3d at 927-28.

¶ 30                      B. The State’s Observation That a Trial Court
                 Can Substantially Comply With Rule 402(a) Without Mentioning
                             the Consecutive Running of Prison Terms
¶ 31       As we said, the State disputes the relevance of Akers, given that it applied Rule 402(a)(2)
       instead of Rule 401(a)(2), but we regard that distinction as unimportant, considering the
       principle that defendant derives from Akers, i.e., that an admonition which is silent about the
       consecutive running of sentences fails to adequately inform the defendant of the maximum
       penalty he or she faces.
¶ 32       That distinction aside, the State argues further that a trial court can substantially comply
       with Rule 402(a)–and therefore with Rule 401(a)–without mentioning the consecutive
       running of sentences. The State cites Baker as an example.
¶ 33       In Baker, 133 Ill. App. 3d at 621, the defendant offered to plead guilty but mentally ill
       to home invasion, indecent liberties with a child, and attempted deviate sexual assault. While
       admonishing him in the guilty-plea hearing, the trial court said nothing about consecutive
       sentences, but the court told him it was possible he “ ‘could be sentenced to *** a term in
       the penitentiary for as long as thirty years.’ ” Id. at 622. The actual sentence turned out to be
       six years’ imprisonment for home invasion, four years’ imprisonment for indecent liberties
       with a child, and four years’ imprisonment for attempted deviate sexual assault. Id. at 621.
       The 4-year prison terms were concurrent with each other but consecutive to the 6-year prison
       term; thus, the aggregate punishment was 10 years’ imprisonment. Id.
¶ 34       On appeal, the defendant contended that his guilty pleas were invalid because the trial
       court had failed to admonish him that some of the sentences could be consecutive, as Rule
       402(a)(2) required. Id. The Fifth District responded:
                “Our supreme court has consistently held that Rule 402 requires only substantial, not
           literal, compliance with its provisions, and that every deviation from the stated
           requirements of the rule does not necessitate reversal. [Citation.] Substantial compliance
           with Rule 402 means such compliance as will assure that the beneficial effect of the rule
           will be achieved. [Citation.] In this case, while defendant was not told that he could
           receive consecutive sentences, he was informed that he could receive a sentence of up
           to 30 years in prison. Given that his actual aggregate sentence was much less than 30
           years, we are unable to say that the court’s omission operated to the prejudice of the
           defendant, or that Rule 402 was not substantially complied with.” Id. at 622.


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       So, in Baker, despite the trial court’s failure to mention the consecutive running of sentences,
       the court did not understate the maximum penalty, because the court told the defendant he
       could go to prison for as long as 30 years and, actually, the aggregate sentence, with the
       consecutive running of sentences, turned out to be only 10 years’ imprisonment.
¶ 35       In order for Baker to be apposite, the trial court in the present case would have had to
       admonish defendant that he could be imprisoned for 33 years or longer. The court never told
       him that. Consequently, Baker does not support the proposition that, despite the court’s
       failure to mention the consecutive running of a sentence, the court substantially complied
       with Rule 401(a).

¶ 36          C. The State’s Argument That a Trial Court Can Substantially Comply
              With Rule 401(a) Despite Substantial Omissions in the Admonitions
                                    That It Gives to the Defendant
¶ 37       The State insists that “[s]ubstantial compliance may exist even when the trial court omits
       entire portions of the required admonitions.” For example, the State cites Phillips, in which
       “the trial court did not discuss two of the Rule 401(a) admonishments,” and Eastland, in
       which “the trial court failed to advise the defendant of his eligibility to receive consecutive
       sentences.” We will discuss Phillips first and then Eastland.

¶ 38                                          1. Phillips
¶ 39       In Phillips, 392 Ill. App. 3d at 263, the defendant told the trial court, on June 9, 2006,
       that he wanted the appointed defense counsel to be dismissed so that he could represent
       himself. The court admonished the defendant, but the admonitions at that time were
       incomplete: the court neglected to tell him (1) the nature of the charge, aggravated burglary,
       and (2) that he had a right to an attorney and, specifically, an appointed attorney if he were
       indigent. Id. at 262-63.
¶ 40       Nevertheless, the trial court gave the defendant all the Rule 401(a)(2) admonitions
       approximately eight months earlier, on September 29, 2005, when he was thinking of
       representing himself but, at that time, decided against doing so. Id. at 254. Also,
       approximately a month later, on July 18, 2005, immediately before the trial, the court fully
       admonished him in conjunction with an offer to reappoint the public defender. Id. at 256. On
       that latter occasion, after receiving the full admonitions, the defendant reaffirmed the
       decision he made on June 9, 2006, to represent himself. Id. at 256-57.
¶ 41       In order for the present case to be truly comparable to Phillips, the trial court would have
       had to, first, fully admonish defendant in a hearing previous to the hearing in which he
       waived counsel and, second, fully admonish him again, and offer to reappoint the public
       defender, immediately before the commencement of the sentencing hearing. The court did
       not do those things.
¶ 42       We do not reach the question of whether we agree with Phillips. Cf. People v. Stoops,
       313 Ill. App. 3d 269, 275 (2000) (in which the Fourth District said: “[The defendant] cannot
       be expected to rely on admonitions given several months earlier, at a point when he was not

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       requesting to waive counsel”); Koch, 232 Ill. App. 3d at 927 (in which the Fourth District
       rejected the argument that an admonition given in a later hearing, after the waiver of counsel,
       “was sufficient to overcome the incorrect admonishment during the waiver of counsel
       proceedings”).

¶ 43                                          2. Eastland
¶ 44        In Eastland, 257 Ill. App. 3d at 398-99, the defendant represented himself in his first
       trial, which ended in a mistrial, as well as in his second trial, which ended in his conviction
       (id. at 395). In the second trial, the trial court failed to fully comply with Rule 401(a)(2),
       omitting to admonish him that he could receive consecutive sentences. Id. at 399.
¶ 45        Nevertheless, for several reasons, the First District found no reversible error. Id. One of
       the reasons was that the defendant had “exhibited a high degree of legal sophistication.” Id.
       Another reason was that he had received the technical assistance of standby counsel in his
       second trial. Id. at 400. According to the First District, a defendant who, while electing to
       represent himself, had chosen to have standby counsel “should not be heard to complain on
       appeal of improprieties pertaining to admonishments about proceeding pro se.” Id.
¶ 46        In the present case, defendant had neither a high degree of legal sophistication nor
       standby counsel. Hence, Eastland is distinguishable.

¶ 47             D. The State’s Argument That the Maximum 3-Year Prison Term
                   for Aggravated Fleeing Pales in Comparison to the Maximum
                 30-Year Prison Term for Aggravated Driving Under the Influence
¶ 48        Citing Haynes, 174 Ill. 2d at 243, the State argues that “information about the possibility
       of a consecutive three-year sentence would have paled in comparison to the severity of the
       30-year maximum penalty for aggravated DUI.”
¶ 49        Haynes, however, is distinguishable because, in that case, the trial court told the
       defendant the maximum penalty. The maximum penalty for first degree murder was death,
       and the court so admonished him. See id. The defendant was charged with three counts of
       murder and one count of burglary. Id. at 211. The court told him he could receive a sentence
       of death for murder (id. at 243), but the court did not tell him the minimum and maximum
       sentences for burglary (id. at 242). The supreme court nevertheless found substantial
       compliance with Rule 401(a). Id. at 243. Quoting its decision in Coleman, 129 Ill. 2d at 333-
       34, the supreme court said: “ ‘Where a defendant knows the nature of the charges against him
       and understands that as a result of those charges he may receive the death penalty, his
       knowledge and understanding that he may be eligible to receive a lesser sentence pales in
       comparison.’ ” Haynes, 174 Ill. 2d at 243.
¶ 50        A 30-year maximum prison term for aggravated driving under the influence really is not
       comparable to a sentence of death. There can be a greater penalty than 30 years’
       imprisonment, such as when it is followed by a consecutive sentence, but there is no greater
       penalty than death. By telling a defendant he or she could be sentenced to death, a trial court
       is in no danger of understating the maximum penalty. On the other hand, if the court tells the

                                                 -9-
       defendant he or she could be sentenced to a maximum of 30 years’ imprisonment on one
       charge together with shorter maximum terms of imprisonment on other charges, without
       adding that the sentence on one of the lesser charges would be consecutive, the court
       understates the maximum aggregate penalty, or at least fails to make it clear and explicit.
       Therefore, Haynes is distinguishable.

¶ 51                     E. The State’s Argument That Defendant Suffered
                           No Prejudice From the Incomplete Admonitions
¶ 52       The State argues that, considering the reason defendant gave the trial court for wanting
       to represent himself, i.e., the appointed defense counsel’s inexperience, it is implausible that
       he would have chosen to retain defense counsel had the trial court admonished him that his
       sentence for aggravated fleeing would be consecutive. The State observes that neither in his
       appellate brief nor anywhere else does defendant claim his decision would have been
       different. In this vein, the State quotes Johnson, 119 Ill. 2d at 134 (“he does not assert his
       decision to waive counsel would have been different”), and Phillips, 392 Ill. App. 3d at 263
       (“[The] [d]efendant does not claim that he would have acted any differently [if he had been
       admonished fully].”).
¶ 53       Phillips relied on Johnson (id. (citing Johnson, 119 Ill. 2d at 134)), which was a capital
       case. Sentenced to death (Johnson, 119 Ill. 2d at 123), the defendant in Johnson argued, on
       appeal, that his waiver of counsel was invalid because the trial court had failed to tell him
       the minimum punishment he faced, as Rule 401(a)(2) required (id. at 131-32). The court
       never admonished him that, because of a previous murder conviction, he faced a mandatory
       minimum sentence of life imprisonment upon conviction of any of the charged offenses. Id.
       at 132.
¶ 54       The supreme court found no prejudice from this omission. The supreme court said:
           “[I]t is clear that defendant suffered no prejudice as a result of the trial court’s failure to
           specify the minimum penalty to which he would be subjected in the event of his
           conviction. Defendant was fully apprised that he could receive the death penalty, and that
           was, in fact, the punishment imposed. We note in this connection that he does not assert
           his decision to waive counsel would have been different had he been specifically
           admonished regarding the possibility of a sentence to life imprisonment and our review
           of the record, including his alleged reasons for choosing to represent himself, indicates
           that he could make no such claim.” Id. at 134.
       The final sentence in the quoted paragraph seems to suggest that omitting an admonition
       required by Rule 401(a) is reversible error only if the defendant establishes prejudice by
       plausibly claiming he or she would have decided against self-representation if the trial court
       had given the omitted admonition.
¶ 55       It strikes us as unlikely, though, that the supreme court would ever consider an
       unknowing, or inadequately informed, waiver of counsel to be harmless error. For one thing,
       because of the way a defendant would have to go about raising a claim of prejudice, Rule
       401(a) would be rendered superfluous. Here is why. That the defendant would in fact have
       chosen continued representation but for the omission of the admonition would be evidence,

                                                  -10-
       a factual representation, and appellate counsel cannot adduce new evidence in their briefs;
       they cannot be witnesses (Ill. R. Prof. Conduct (2010) R. 3.7 (eff. Jan. 1, 2010)). Rather, any
       factual representation in their briefs must be accompanied by a citation to the page of the
       record where that fact may be found. Ill. S. Ct. R. 341(h)(6), (7) (eff. Feb. 6, 2013).
       Consequently, in the State’s approach to prejudice, the pro se defendant would have had to
       testify, in the trial court, that, but for the omission of the admonition, he or she would have
       decided against self-representation. But the pro se defendant would not even know that the
       admonition was required in the first place unless he or she were familiar with Rule 401(a);
       and requiring a pro se defendant to be familiar with Rule 401(a) would conflict with the very
       purpose of that rule, which is to proactively impart to the defendant the requisite knowledge
       for a valid waiver of counsel.
¶ 56       After Johnson, the supreme court has found a lack of prejudice only if the record
       affirmatively shows that this purpose of Rule 401(a) has been fulfilled. In Haynes, the
       supreme court said that, in order for there to be “substantial compliance” with Rule 401(a),
       the record had to show not only a lack of prejudice to the defendant but also a knowing and
       voluntary waiver of counsel. “Strict, technical compliance with Rule 401(a) *** is not
       always required. Rather, substantial compliance will be sufficient to effectuate a valid waiver
       if the record indicates that the waiver was made knowingly and voluntarily, and the
       admonishment the defendant received did not prejudice his rights” (emphasis added)
       (Haynes, 174 Ill. 2d at 236)–not “or,” but “and.” In other words, on direct appeal, the burden
       is not on the defendant to show a lack of prejudice in order to reach the question of whether
       the record affirmatively shows a knowing and voluntary waiver of counsel (see Ill. S. Ct. R.
       401(b) (eff. July 1, 1984)). We have “decline[d] to presume *** that [the] defendant would
       have waived his right to counsel even if he had been correctly informed of the possible
       sentence he was later given.” Koch, 232 Ill. App. 3d at 927. If the defendant has suffered no
       prejudice, it is only because the record shows the defendant’s waiver of counsel was knowing
       and voluntary, that is, the goal of Rule 401(a) has been achieved. Cf. Baker, 133 Ill. App. 3d
       at 622 (“Substantial compliance with Rule 402 means such compliance as will assure that
       the beneficial effect of the rule will be achieved.”).
¶ 57       On the strength of the comment from Johnson, the State would erect a checkpoint in front
       of the issue of whether the waiver of counsel was knowing, such that we would not even
       reach that issue until defendant first proved, or at least plausibly claimed, that, but for the
       omission of the admonition, he would have chosen differently, that he would have retained
       defense counsel instead of choosing to represent himself. The fallacy, though, of “chosen
       differently” is that, effectively, the choice of self-representation was not even made unless
       the record affirmatively shows the choice was knowing or adequately informed. See People
       v. Campbell, 224 Ill. 2d 80, 84 (2006) (“[S]ubstantial compliance with Rule 401(a) is
       required for an effective waiver of counsel.”); People v. Gilkey, 263 Ill. App. 3d 706, 710-11
       (1994) (“[I]n order for a waiver of counsel to be valid there must be compliance with the
       guidelines set forth in Supreme Court Rule 401(a) ***.”).




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¶ 58                                   III. CONCLUSION
¶ 59       For the foregoing reasons, we reverse the sentences and remand this case with directions
       to hold a new sentencing hearing, in which defendant will be represented by counsel or,
       alternatively, unrepresented by counsel if he waives counsel after complete admonitions
       pursuant to Rule 401(a).

¶ 60      Reversed and remanded with directions.




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