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                              Appellate Court                            Date: 2019.01.02
                                                                         12:06:26 -06'00'



                  People v. Harrison, 2018 IL App (3d) 150419



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



District & No.    Third District
                  Docket No. 3-15-0419



Filed             April 20, 2018



Decision Under    Appeal from the Circuit Court of La Salle County, No. 13-CF-158; the
Review            Hon. Cynthia M. Raccuglia, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Karen Donnelly, State’s Attorney, of Ottawa (Patrick Delfino,
                  Lawrence M. Bauer, and Mark A. Austill, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justices Holdridge and Lytton concurred in the judgment and opinion.
                                              OPINION

¶1         Defendant, Willie Harrison, appeals from the third-stage dismissal of his postconviction
       petition. He argues that his waiver of postconviction counsel was invalid because the trial
       court failed to admonish him pursuant to Faretta v. California, 422 U.S. 806 (1975). We
       affirm.

¶2                                               FACTS
¶3         In August 2013, pursuant to a fully negotiated guilty plea, the court sentenced defendant
       to 16 years’ imprisonment for the unlawful possession of a controlled substance with the
       intent to deliver (720 ILCS 570/401(c)(2) (West 2012)). Although the offense itself is a Class
       1 felony, defendant’s criminal history required a Class X sentence.
¶4         In September 2013, defendant filed a timely motion to withdraw his guilty plea and
       vacate his sentence. Subsequently, he voluntarily dismissed this motion.
¶5         In August 2014, defendant filed a pro se postconviction petition raising various claims of
       ineffective assistance of trial counsel. The trial court appointed postconviction counsel to
       represent defendant on his petition.
¶6         At an April 2015 hearing, postconviction counsel informed the trial court that defendant
       wished to proceed pro se on his petition. The court then addressed defendant stating, “This is
       a crucial stage of your proceedings in post conviction, and I need to know why you think you
       are capable of handling the complex issues in a post conviction proceeding.” Defendant
       responded that he had been asking postconviction counsel “to do stuff” for seven months but
       counsel told him he was unable to get in contact with the witnesses defendant asked him to
       seek out. Counsel then informed the court that defendant “is seeking to have another person
       admit that the drugs that were found that he was charged with and that he pled guilty to were
       in fact another person’s,” but that counsel had spoken with the two people defendant asked
       him to contact and neither knew where “Mr. Finny” was. Defendant next informed the court
       that he wished to represent himself on his claims of ineffective assistance of trial counsel
       because his trial attorney, whose performance he was attacking, was postconviction counsel’s
       boss. The court then announced it would let defendant proceed pro se.
¶7         At the June 2015 evidentiary hearing, defendant questioned his trial counsel on the stand.
       Following arguments, the trial court denied the postconviction petition, finding that
       defendant failed to meet his burden of showing trial counsel’s performance was ineffective.
¶8         This appeal followed.

¶9                                           ANALYSIS
¶ 10        Defendant argues that the trial court’s failure to properly admonish him pursuant to
       Faretta, 422 U.S. 806, rendered his waiver of postconviction counsel invalid. Defendant also
       asserts that “[a]dmonishments regarding the potential punishment, required by [Illinois
       Supreme Court] Rule 401(a) [(eff. July 1, 1984),] in the trial context, should likewise be
       required in post[ ]conviction proceedings where the defendant faces the possibility of a new
       trial.”
¶ 11        We begin by noting that a postconviction petitioner has a right to represent himself in
       postconviction proceedings. People v. Heard, 2014 IL App (4th) 120833, ¶ 10 (citing 725

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       ILCS 5/122-4 (West 2010)). In fact, a court must accept a defendant’s knowing and
       intelligent request to proceed pro se provided that the waiver is clear and unequivocal, not
       ambiguous. People v. Baez, 241 Ill. 2d 44, 115-116 (2011) (citing Faretta, 422 U.S. at 835,
       and People v. Burton, 184 Ill. 2d 1, 21 (1998)). In determining whether a defendant has
       intelligently waived his right to counsel, a court must consider the particular facts and
       circumstances of defendant’s case, including his background, experience, and conduct.
       People v. Lego, 168 Ill. 2d 561, 564-65 (1995). We review a trial court’s decision regarding a
       defendant’s waiver of his right to counsel for an abuse of discretion. Baez, 241 Ill. 2d at 116.
       An abuse of discretion exists only where the ruling is “arbitrary, fanciful, unreasonable, or
       where no reasonable person would take the view adopted by the trial court.” People v. Hall,
       195 Ill. 2d 1, 20 (2000). On the other hand, issues regarding a trial court’s compliance with
       Rule 401(a) involve questions of law that we review de novo. People v. Campbell, 224 Ill. 2d
       80, 84 (2006).
¶ 12       Essentially, defendant’s contention on appeal is that his waiver of postconviction counsel
       was not intelligent because the court did not conduct a Faretta-type inquiry prior to accepting
       his waiver. In Faretta, the United States Supreme Court declared that in order for a defendant
       to “competently and intelligently *** choose self-representation, he should be made aware of
       the dangers and disadvantages of self-representation, so that the record will establish that ‘he
       knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835
       (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). This is true
       because “[w]hen an accused manages his own defense, he relinquishes, as a purely factual
       matter, many of the traditional benefits associated with the right to counsel.” Id.
¶ 13       Defendant recognizes Faretta involved the waiver of a defendant’s sixth amendment
       right to counsel at trial rather than the statutory right to counsel at issue here. Nonetheless, he
       cites this court’s decision in People v. Lesley, 2017 IL App (3d) 140793, appeal allowed, No.
       122100 (Ill. Sept. 27, 2017), for the proposition that there is “no distinction between waivers
       of a statutory right to counsel and a constitutional right to counsel.” The issue in Lesley
       concerned a defendant’s waiver of postconviction counsel due to misconduct. Specifically,
       the defendant in that case refused to cooperate with his appointed postconviction counsel,
       swore at counsel numerous times, and told him he was “fired.” Id. ¶ 6. After repeated status
       hearings where it was evident defendant refused to cooperate with his counsel, the trial court
       allowed counsel to withdraw. Id. ¶ 10. Defendant then represented himself pro se at the
       evidentiary hearing after which the trial court denied his postconviction petition. Id. ¶ 13. On
       appeal, a divided court held that, in the context of a waiver by conduct, a trial court must
       comply with Rule 401(a) requirements by explaining to the defendant what is at stake if his
       conduct continues. Id. ¶ 20. Because the trial court in Lesley failed to warn the defendant he
       would lose his right to appointed counsel if his misconduct toward counsel continued, the
       majority declined to construe the defendant’s failure to cooperate with appointed counsel as a
       knowing wavier of his right to postconviction counsel. Id. ¶ 21. Specifically, the majority
       noted that defendant’s conduct, while inappropriate, was not so severe that no warning was
       necessary or foreseeable and that under the facts presented, a warning would have been
       appropriate. Id. ¶ 25.
¶ 14       Unlike Lesley, the instant case does not concern a waiver of postconviction counsel due
       to defendant’s conduct. Rather, defendant here specifically requested to represent himself in
       the postconviction proceedings, and thus, clearly understood he would represent himself

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       going forward if the trial court granted his request. Lesley, even if affirmed by our supreme
       court, is inapposite.
¶ 15       Defendant next directs our attention to Durocher v. Singletary, 623 So. 2d 482, 485 (Fla.
       1993), and State v. Chester, 2009-1019, pp. 2-3 (La. 2/10/10); 27 So. 3d 837, two out-of-state
       supreme court cases which found Faretta-type admonishments were required when
       postconviction petitioners who had been sentenced to death sought to waive their statutory
       right to counsel. In Durocher, the defendant was sentenced to death three times after pleading
       guilty to the murders of his former girlfriend and her two children. Durocher, 623 So. 2d at
       483. Thereafter, a “capital collateral representative” (CCR), who was appointed to represent
       the defendant pursuant to a Florida statute created to provide for the representation of
       indigent defendants sentenced to death, filed a petition for writ of habeas corpus on the
       defendant’s behalf, even though defendant had told CCR “no less than 20 times” not to file
       anything on his behalf. Id. at 482-84. The defendant expressed his wishes that his death
       sentences be appealed no further and that the court deny the petition filed by CCR. Id. at 484.
       While the Florida Supreme Court opined that the defendant “presents every indication that he
       is knowingly, intelligently, and voluntarily waiving his right to collateral proceedings
       through his adamant refusal to allow CCR to represent him,” it also recognized the State’s
       “obligation to assure that the waiver of collateral counsel is knowing, intelligent, and
       voluntary.” Id. at 484-85. Accordingly, the court directed the trial judge to conduct a
       Faretta-type inquiry of the defendant to ensure that he understood the consequences of
       waiving collateral counsel and proceedings. Id. at 485. In his specially concurring opinion,
       Chief Justice Barkett wrote separately to emphasize that additional safeguards, such as
       Faretta-type inquiries, are essential in collateral proceedings “when an inmate sentenced to
       death expresses the desire to waive legal representation.” Id. at 485-86 (Barkett, C.J.,
       specially concurring).
¶ 16       In Chester, the defendant, who had been convicted of murder and was sentenced to death,
       filed a motion with the Louisiana Supreme Court to waive counsel and represent himself
       during postconviction proceedings in the district court. Chester, 2009-1019, at 1. The
       defendant had not filed the motion in the district court, however, so the supreme court was
       not in a position to rule on the motion. Id. Instead, the court noted “in principle” that while an
       indigent death row inmate has a statutory right to appointed counsel, “he may knowingly and
       intelligently waive that purely statutory right, just as he may waive statutory
       post[ ]conviction remedies altogether.” Id. at 1-2. After citing Durocher and Faretta, the
       court remanded to the district court with directions that it consider whether the defendant
       knowingly and intelligently understood the consequences of his decision to proceed pro se.
       Id. at 2-3.
¶ 17       Initially, we note that the decisions of other states are not binding on this court. People v.
       Sullivan, 366 Ill. App. 3d 770, 781 (2006). Nonetheless, Durocher and Chester are
       distinguishable on the grounds that those cases involved the waiver of postconviction counsel
       in capital cases. Here, defendant’s pro se representation in his postconviction
       proceedings—regardless of the quality of his performance or the trial court’s ultimate
       decision to grant or deny the petition—will not result in his death at the State’s hands.
       Moreover, as noted, we review a trial court’s decision to allow a petitioner to proceed pro se
       for an abuse of discretion. Baez, 241 Ill. 2d at 116. Based on our review of the record and the
       relevant authority, we find that neither the provisions of the Post-Conviction Hearing Act

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       (725 ILCS 5/122-1 to 122-7 (West 2012)), nor the facts of this case warrant the adoption of a
       per se rule requiring Faretta-type admonishments to be given every time a postconviction
       petitioner chooses to represent himself in the proceedings. The record here clearly shows
       defendant did not wish to be represented by appointed counsel on his postconviction issues.
       The court conducted a limited inquiry. The trial court’s decision to allow him to do so was
       neither arbitrary, fanciful, nor unreasonable.
¶ 18       Finally, we reject defendant’s contention to the extent that he asserts admonishments
       similar to those required in the trial context pursuant to Rule 401(a) should be required in
       postconviction proceedings where the possibility of a new trial exists. Rule 401(a) provides
       that prior to accepting a defendant’s waiver of trial counsel, it must ensure the defendant
       understands (1) the nature of the charge, (2) the minimum and maximum sentence for the
       offense, and (3) that the defendant has a right to be represented by counsel and, if indigent, to
       have counsel appointed for him. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). In People v. Young,
       341 Ill. App. 3d 379, 387 (2003), the Fourth District held that Rule 401(a) admonishments
       were not required prior to a postconviction petitioner, who had already been convicted of the
       offense and sentenced, waiving his right to counsel since he “already knew everything a Rule
       401(a) admonishment would have told him.” In his reply brief, petitioner cites People v.
       Bahrs, 2013 IL App (4th) 110903, in support of his contention that Young’s logic is flawed
       since Rule “401(a) still applies to those who seek to waive counsel for post[ ]trial
       proceedings following a conviction.” We note, however, the defendant in Bahrs dismissed
       his appointed counsel prior to his sentencing hearing, not in postconviction proceedings
       following the imposition of his sentence. Thus, in Bahrs, a sentencing admonishment, as
       provided by Rule 401(a), was applicable. Here, as in Young, defendant had already been
       convicted and sentenced and, thus, knew all that Rule 401(a) admonishments would have
       told him. Furthermore, we fail to see any prejudice to defendant where, as here, the trial court
       denied his postconviction petition. There will be no new trial or sentencing.

¶ 19                                       CONCLUSION
¶ 20      For the foregoing reasons, we affirm the judgment of circuit court of La Salle County.

¶ 21      Affirmed.




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