                             2016 IL App (2d) 140057
                         Nos. 2-14-0057 & 2-14-0058 cons.
                            Opinion filed March 8, 2016
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 12-CF-1461
                                       )
WILLIS MITCHELL,                       ) Honorable
                                       ) M. Karen Simpson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 12-CF-639
                                       )
WILLIS MITCHELL,                       ) Honorable
                                       ) M. Karen Simpson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.

                                           OPINION

¶1     In these consolidated appeals, defendant, Willis Mitchell, argues that the circuit court of

Kane County erred in denying his motion to withdraw his negotiated plea of guilty to a single

count each of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2012))
2016 IL App (2d) 140057


(case No. 12-CF-639) and resisting a peace officer (720 ILCS 5/31-1(a) (West 2012)) (case No.

12-CF-1461).       According to defendant, those pleas were accepted in violation of his

constitutional right to the effective assistance of counsel. We vacate and remand.

¶2     Defendant’s arrest for possession of a controlled substance occurred following a traffic

stop on March 29, 2012. In addition to the possession charge, defendant was charged with

driving while his license was revoked (625 ILCS 5/6-303(a) (West 2012)) and following too

closely (625 ILCS 5/11-710(a) (West 2012)). Defendant was released on bond. The charge of

resisting a peace officer stemmed from an incident on July 19, 2012. As a result of that incident,

defendant was also charged with two counts of aggravated battery (720 ILCS 5/12-3.05(d)(4)(i)

(West 2012)) and a single count of unlawful possession of cannabis (720 ILCS 550/4(d) (West

2012)). In each case, defendant was represented by an assistant public defender. A trial date of

December 10, 2012, was set for case No. 12-CF-639.

¶3     During a court appearance before Judge Allen M. Anderson on November 28, 2012,

defendant’s attorney, Assistant Public Defender Jillian Weiss, advised the trial court that,

although she had anticipated that defendant would enter a negotiated plea, defendant had

changed his mind.      Defendant then moved for the discharge of his attorney and for the

appointment of new counsel in both of his cases. Defendant stated, “[Weiss] is not representing

me right.” Defendant indicated that she was trying to “make” him plead guilty. Weiss indicated

that she was ready to proceed to trial on the scheduled date if defendant did not enter a

negotiated plea.

¶4      Judge Anderson indicated that there were no grounds for appointing new counsel for

defendant. Defendant indicated that he wished to represent himself. The trial court inquired

about defendant’s age, education, and experience with the justice system. Judge Anderson



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accepted defendant’s waiver of counsel. Before doing so, however, Judge Anderson cautioned

defendant as follows:

                “If I accept the fact that you want to represent yourself *** and you get into this

       and you are halfway through the trial or in the beginning of trial and you think now I

       really need the attorney, you are not going to be in the position to have me reappoint, I

       won’t reappoint a lawyer, just so you know that. You can’t go along this road of self-

       representation and say, well, I have changed my mind. So once you make this choice,

       you are stuck with this choice, and this is a consequence of representing yourself, no

       matter how difficult it becomes, whatever you run into.”

¶5     On December 5, 2012 (which was five days before the pending trial date in case No. 12-

CF-639), defendant again appeared before Judge Anderson. Defendant indicated that he was not

ready for trial. The report of proceedings shows that defendant filed a motion in open court. 1

After the court and the prosecutor reviewed the motion, the following exchange took place:

                “[DEFENDANT]: *** I need counsel. I don’t think I could represent myself.

                THE COURT: Well, when we were here last, I went through a series of questions

       with you and you convinced me that you could. You said you were going to be able to do

       this.

                [DEFENDANT]: Because I wasn’t getting represented right.




       1
           The common-law record includes two written motions filed on December 5, 2012. One

sought appointment of counsel. The other sought appointment of a “bar association attorney”

rather than the public defender.



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             THE COURT: Well, that wasn’t the reason. I can’t give you another lawyer.

      You had a lawyer who I appointed. That lawyer, for whatever reason, you decided you’d

      rather represent yourself. You don’t get to pick and choose lawyers.

             [DEFENDANT]: I understand, Your Honor. But she’s gonna make me take some

      time that I don’t want to take.

             THE COURT: Okay. But I told you, you don’t have to plead guilty. You have no

      burden or obligation to do that.

             We didn’t get into what she said or didn’t say to you.          If she was making

      recommendations, that’s fine. That’s all that it amounts to. But you’re the one making—

             [DEFENDANT]: So that was off the record what we—

             THE COURT: —the decision to plead guilty or not plead guilty. And you’re the

      only one who can make a decision to go to trial or not go to trial.

                                              ***

             [THE COURT:] So I can’t grant your motion. I don’t have the ability, nor am I

      going to change directions on that and appoint somebody else for you.

             You had the Public Defender’s Office. Whatever reasons, you didn’t agree with

      the strategy and whatever else. In my mind, that doesn’t mean she wasn’t able to

      represent you or to go to trial or to deal with the issues. And that’s the decision you’ve

      made. So you are representing yourself.

             [DEFENDANT]: So I’m obligated to just go along with the public defender I got,

      that whatever she says, that I suppose [sic] to just agree with it?

             THE COURT: You can disagree with what your attorney says.

             [DEFENDANT]: I know. So I don’t feel that I could go to trial with her though.



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                                                     ***

               [THE COURT:] You’ve made the decision to represent yourself. I’m not going to

       about [sic] go back and say, you now have a lawyer, because you told me you were going

       to represent yourself. And that’s kind of what I told you. It’s a decision you needed to

       make.

               I remember saying, you can’t later on change your mind. And I asked you several

       times, Mr. Mitchell, do you understand this is what you’re asking for, this is what you’re

       going to do?

               [DEFENDANT]: Yeah, I understand what you’re saying though. I had time to

       think about it though.

               THE COURT: Well, I appreciate that, that you may have had time to think about

       it. But the case is set for trial.

               I’ll give you more time to prepare. You can do what you feel you need. ***

               I’m not going to hold you to trial Monday, if you don’t think you’re ready to go

       Monday. But that decision you made is a decision that you made. I don’t have any

       reason to change position on that.”

¶6     Judge Anderson indicated that he would set the case for trial near the end of February

2013. However, defendant expressed interest in engaging in further negotiations with the State.

Defendant and the prosecutor were given time to confer privately while Judge Anderson attended

to other matters. When the case was recalled that same day (December 5, 2012), defendant and

the prosecutor had reached an agreement whereby defendant would plead guilty to the charges of

unlawful possession of a controlled substance and resisting a peace officer. The agreement

provided that defendant would be sentenced to consecutive prison terms of three years for



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2016 IL App (2d) 140057


unlawful possession of a controlled substance and two years for resisting a peace officer. The

trial court accepted defendant’s negotiated guilty plea and sentenced defendant in accordance

with the agreement. The State nol-prossed the other charges.

¶7     Thereafter, defendant timely filed a pro se motion to withdraw his guilty plea and vacate

the judgment. Although that motion appears only in the common-law record for case No. 12-

CF-639 (the controlled-substance case), the parties agree that defendant sought to withdraw his

plea of guilty as to both cases. The trial court appointed counsel to represent defendant in

connection with his motion. On October 23, 2013, defendant’s attorney filed an amended

motion in both cases, arguing, inter alia, that the trial court erred in accepting defendant’s guilty

plea without reappointing counsel. The motion was heard by Judge M. Karen Simpson, who

concluded that Judge Anderson was not obligated to appoint counsel other than the public

defender. Judge Simpson further concluded that it was clear that, if Judge Anderson had offered

to reappoint the public defender, defendant would have rejected the offer. Accordingly, Judge

Simpson denied defendant’s motion. Defendant filed timely notices of appeal in both cases and

we consolidated the appeals.

¶8     The following principles guide our review of the trial court’s ruling on defendant’s

motion to withdraw his guilty plea:

               “A defendant has no absolute right to withdraw a plea of guilty. [Citations.]

       ‘Rather, he must show “a manifest injustice under the facts involved” to obtain leave to

       withdraw his plea.’ [Citation.] The defendant bears the burden of showing the necessity

       for withdrawal. [Citation.] Withdrawal is appropriate if the guilty plea was entered

       through a misapprehension of the facts or of the law, the defendant has a defense worthy

       of consideration, or there is doubt of the defendant’s guilt and the ends of justice would



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       be better served by submitting the case to a trial. [Citation.] However, we may reverse

       the trial court’s ruling only if the court abused its discretion. [Citation.]” People v.

       Edmondson, 408 Ill. App. 3d 880, 884 (2011).

A guilty plea entered by a defendant who has been deprived of the right to the effective

assistance of counsel is not a voluntary plea. Id. Under those circumstances, the refusal to

permit the defendant to withdraw his or her plea is reversible error. Id. at 887.

¶9     Here, counsel was initially appointed for defendant, but defendant later waived his right

to counsel, opting to represent himself. There is no dispute that the waiver was effective and

that, as a result, defendant had no right to counsel. Clearly, had matters continued in that state,

defendant could not argue that the lack of counsel rendered his plea involuntary. The point of

controversy here is whether defendant revoked the waiver of the right to counsel and, if so,

whether Judge Anderson was obligated to reappoint counsel.

¶ 10   In People v. Baker, 92 Ill. 2d 85, 91-92 (1982), our supreme court embraced the majority

rule that “a competent waiver of counsel by a defendant once made before the court carries

forward to all subsequent proceedings unless defendant later requests counsel or there are

circumstances which suggest that the waiver was limited to a particular stage of the

proceedings.” (Emphasis added.) Courts must “ ‘indulge in every reasonable presumption

against waiver.’ ” People v. Burton, 184 Ill. 2d 1, 23 (1998) (quoting Brewer v. Williams, 430

U.S. 387, 404 (1977)). Similarly, “a reviewing court should make all reasonable presumptions in

favor of a revocation of that waiver.” People v. Griffin, 305 Ill. App. 3d 326, 330 (1999).

¶ 11   After having waived counsel, defendant filed two motions for the appointment of

counsel. Neither requested any specific attorney, but one of the motions sought appointment of a

“bar association attorney,” rather than an attorney from the public defender’s office. In that



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2016 IL App (2d) 140057


motion, defendant asserted that the public defender’s office was “not equipt [sic] to handle the

nature of [his] case.” Defendant also asserted that every attorney with the public defender’s

office had a conflict of interest.

¶ 12    It is undisputed that there were no grounds for appointing counsel other than the public

defender to represent defendant. Absent a showing that defendant would be prejudiced by the

public defender’s representation, the trial court lacked the discretion to honor that request.

People v. Adams, 195 Ill. App. 3d 870, 872 (1990). The State argues that, because “defendant

made it clear to the trial court that he did not want the Public Defender,” the trial court did not

err in refusing to reappoint counsel. We disagree. That defendant did not “want” the public

defender to represent him is certainly true insofar as, if given a choice, he clearly would have

preferred other counsel. However, despite defendant’s misgivings about the public defender’s

ability to represent him, it does not follow that he would have chosen self-representation over

reappointment of the public defender’s office, if those were his only alternatives.

¶ 13    Because defendant is entitled to every reasonable presumption in favor of his claim that

he revoked his prior waiver of counsel (Griffin, 305 Ill. App. 3d at 330), we must presume that,

having realized the disadvantages of self-representation, he would have preferred to have the

public defender’s office reappointed. However, during the December 5, 2012, hearing, Judge

Anderson conveyed a clear disinclination to reappointing counsel. Judge Anderson reminded

defendant that he had established his desire and ability to represent himself. Judge Anderson

stressed that it was defendant’s choice to represent himself and that he had been warned that he

would not be permitted to change his mind.        It is not surprising that defendant reprised his

complaints about the public defender, possibly hoping to convince Judge Anderson that it had

been unfair to force defendant to choose between the public defender and self-representation in



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the first place. Under the circumstances, it is difficult to assess how resistant defendant was to

representation by the public defender, with self-representation as the only alternative. We note

that, although defendant expressed dissatisfaction with the public defender’s office as a whole,

Weiss was the focus of his complaints. It is at least conceivable that, had the trial court

reappointed the public defender’s office, the office could have assigned a different assistant

public defender to represent defendant.      It does not appear that this possibility was ever

suggested or explored before defendant entered his guilty plea.

¶ 14   The State cites People v. Pratt, 391 Ill. App. 3d 45 (2009), for the proposition that a

defendant has no absolute right to revoke a waiver of counsel. In holding that the trial court

acted within its discretion in denying the defendant’s post-waiver request for counsel, the Pratt

court reasoned that “the defendant’s right to counsel ‘may not be employed as a weapon to

indefinitely thwart the administration of justice or to otherwise embarrass the effective

prosecution of crime.’ ” Id. at 56 (quoting People v. Friedman, 79 Ill. 2d 341, 349 (1980)).

Here, however, the trial court was willing to delay the trial for months so that defendant could

prepare to represent himself. Reappointing counsel would not have resulted in more delay. The

considerations described in Pratt did not warrant the trial court’s refusal to reappoint counsel for

defendant. Indeed, it is hard to discern any reason for Judge Anderson’s decision other than to

hold defendant to the consequences of his prior waiver. Doing so did not serve the interests of

justice, and defendant’s guilty plea cannot be allowed to stand based on conjecture that, had his

right to counsel been fully respected, he would not have availed himself of it.

¶ 15   For the foregoing reasons, we vacate the denial of defendant’s motion to withdraw his

guilty plea and remand the cause to the circuit court of Kane County with directions that the

motion be granted.



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¶ 16   Vacated and remanded with directions.




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