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                                   Appellate Court                          Date: 2016.02.01 15:30:00
                                                                            -06'00'




                  People v. Bartholomew, 2015 IL App (4th) 130575



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             THOMAS M. BARTHOLOMEW, Defendant-Appellant.



District & No.      Fourth District
                    Docket No. 4-13-0575



Filed               July 7, 2015



Decision Under      Appeal from the Circuit Court of McLean County, No. 12-CF-1022;
Review              the Hon. John C. Costigan, Judge, presiding.



Judgment            Reversed; cause remanded.



Counsel on          Michael J. Pelletier, Jacqueline L. Bullard, and John M. McCarthy, all
Appeal              of State Appellate Defender’s Office, of Springfield, for appellant.

                    Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                    David J. Robinson, and James C. Majors, all of State’s Attorneys
                    Appellate Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE HARRIS delivered the judgment of the court, with opinion.
                    Presiding Justice Pope and Justice Holder White concurred in the
                    judgment and opinion.
                                             OPINION

¶1       In April 2013, a jury convicted defendant, Thomas M. Bartholomew, of two counts of
     aggravated battery, both Class 2 felonies (720 ILCS 5/12-3.05(d)(4), (h) (West Supp. 2011))
     and one count of battery, a Class A misdemeanor (720 ILCS 5/12-3(a)(1), (b) (West 2010)). In
     June 2013, the trial court sentenced defendant to 13 years in prison.
¶2       On appeal, defendant asserts the trial court failed to substantially comply with Illinois
     Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing him to proceed pro se. We
     reverse and remand for a new trial.

¶3                                       I. BACKGROUND
¶4       On September 28, 2012, the State charged defendant by information with two counts of
     aggravated battery, both Class 2 felonies (720 ILCS 5/12-3.05(d)(4), (h) (West Supp. 2011)).
     The State alleged that on September 27, 2012, defendant knowingly (1) caused great bodily
     harm to a peace officer engaged in the execution of his official duties when he punched him in
     the mouth (count I); and (2) made contact of an insulting or provoking nature to the same peace
     officer when he punched him in the chest (count II). On April 8, 2013, the State charged
     defendant by information with battery, a Class A misdemeanor (720 ILCS 5/12-3(a)(1), (b)
     (West 2010)), based on the September 27, 2012, incident. The State alleged defendant
     knowingly and without legal justification caused bodily harm to the victim when he punched
     him in the face with his fist.
¶5       On April 8, 2013, defendant’s jury trial commenced with defendant represented by an
     assistant public defender. The State presented its evidence–the details of which are not
     important to this appeal–and rested its case. Defendant, outside the presence of the jury, then
     requested to proceed pro se for the remainder of the trial. In considering defendant’s oral
     motion to proceed pro se, the trial court informed defendant that it first had to determine
     whether he had “the requisite capacity to make a knowing and intelligent waiver of [his] right
     of counsel, not whether [he] can conduct [his] defense or not.” The court then asked defendant
     a series of questions regarding his age, education level, mental health, and his prior
     involvement with legal proceedings. Next, the court informed defendant that he would be held
     to the same standard as an attorney–who has substantial experience and training in trial
     procedure–in presenting evidence, and that by representing himself, he may fail to make
     appropriate objections, and therefore, allow into evidence that which may not otherwise be
     admissible. The court further admonished defendant he could not later claim ineffective
     assistance of counsel from that point forward in the trial. Defendant stated he understood the
     court’s admonishments and that his decision to proceed pro se would result in the discharge of
     his assistant public defender. Thereafter, the court found that defendant understood the
     admonishments, discharged the assistant public defender, and allowed him to proceed pro se.
¶6       After defendant presented evidence–the details of which are not important to this
     appeal–the jury returned guilty verdicts on all counts. Following a sentencing hearing, the trial
     court sentenced defendant–who, due to his prior record was subject to mandatory Class X
     sentencing–to 13 years in prison on count I. Counts II and III were merged into count I.
¶7       This appeal followed.



                                                 -2-
¶8                                               II. ANALYSIS
¶9         On appeal, defendant asserts the trial court failed to substantially comply with Illinois
       Supreme Court Rule 401(a) (eff. July 1, 1984) prior to allowing him to proceed pro se. The
       State concedes the court did not substantially comply with Rule 401(a) and that defendant’s
       conviction and sentence should be reversed. We agree.
¶ 10       Rule 401(a) provides as follows:
               “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.” Id.
       In People v. Campbell, 224 Ill. 2d 80, 84, 862 N.E.2d 933, 936 (2006), our supreme court
       stated, “[t]he purpose of this rule is ‘to ensure that a waiver of counsel is knowingly and
       intelligently made.’ ” (quoting People v. Haynes, 174 Ill. 2d 204, 241, 673 N.E.2d 318, 335
       (1996)). Thus, Rule 401(a) admonishments “must be provided when the court learns the
       defendant has chosen to waive counsel so the defendant can consider the ramifications of his
       decision.” People v. Stoops, 313 Ill. App. 3d 269, 275, 728 N.E.2d 1241, 1245 (2000). Prior
       admonishments, if any, are not sufficient. Id. “Accordingly, substantial compliance with Rule
       401(a) is required for an effective waiver of counsel.” Campbell, 224 Ill. 2d at 84, 862 N.E.2d
       at 936.
¶ 11       In this case, the trial court did not address any of the three elements required by Rule 401(a)
       prior to allowing defendant to proceed pro se during the defense portion of his trial.
       Accordingly, defendant’s waiver of counsel was ineffective and his conviction and sentence
       must be reversed. See id. at 85, 862 N.E.2d at 936 (a conviction following an ineffective
       waiver of counsel cannot stand).

¶ 12                                       III. CONCLUSION
¶ 13       For the reasons stated, we reverse the defendant’s conviction and sentence and remand for
       a new trial.

¶ 14       Reversed; cause remanded.




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