                                          2018 IL App (3d) 150419

                                  Opinion filed April 20, 2018
       _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

       THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
       ILLINOIS,                              )     of the 13th Judicial Circuit,
                                              )     La Salle County, Illinois.
             Plaintiff-Appellee,              )
                                              )
             v. 	                             )     Appeal No. 3-15-0419

                                              )     Circuit No. 13-CF-158

       WILLIE HARRISON,                       )

                                              )     Honorable Cynthia M. Raccuglia,
             Defendant-Appellant.             )     Judge, Presiding.
       _____________________________________________________________________________

              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



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¶ 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 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. Campell, 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



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       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




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       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 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



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       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



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       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 (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



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       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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