                                                                            Digitally signed by
                                                                            Reporter of Decisions
                            Illinois Official Reports                       Reason: I attest to the
                                                                            accuracy and integrity
                                                                            of this document
                                                                            Date: 2018.04.11
                                   Appellate Court                          13:13:07 -05'00'




                        People v. Albea, 2017 IL App (2d) 150598



Appellate Court        THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                THOMAS T. ALBEA, JR., Defendant-Appellant.



District & No.         Second District
                       Docket No. 2-15-0598



Filed                  December 15, 2017
Modified upon denial
of rehearing           January 19, 2018



Decision Under         Appeal from the Circuit Court of Lake County, No. 11-CF-3081; the
Review                 Hon. Mark L. Levitt, Judge, presiding.



Judgment               Reversed and remanded.


Counsel on             Michael J. Pelletier, Thomas A. Lilien, and Fletcher P. Hamill, of
Appeal                 State Appellate Defender’s Office, of Elgin, for appellant.

                       Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                       Lawrence M. Bauer, and Mary Beth Burns, of State’s Attorneys
                       Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                              Presiding Justice Hudson and Justice Burke concurred in the judgment
                              and opinion.


                                               OPINION

¶1          Following a bench trial in the circuit court of Lake County, defendant, Thomas T. Albea,
       Jr., was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and sentenced to
       33 years in prison. Defendant argues on appeal that his conviction must be reversed and a new
       trial ordered because the trial court committed plain error when it denied defendant’s request to
       represent himself at trial. For the reasons that follow, we reverse and remand for a new trial.

¶2                                           I. BACKGROUND
¶3         On October 12, 2011, defendant was indicted on 14 counts of first degree murder (720
       ILCS 5/9-1(a)(1), (a)(2) (West 2010)) and 2 counts of aggravated battery of a child (720 ILCS
       5/12-4.3(a) (West 2010)). The charges stemmed from a September 6, 2011, incident in which
       defendant allegedly struck a minor, X.C., about his body, causing great bodily harm and death.
¶4         On January 4, 2012, retained counsel Robert P. Ritacca appeared on defendant’s behalf.
       Ritacca represented defendant until July 15, 2014, when he moved to withdraw, citing
       defendant’s dissatisfaction with his services. Defendant confirmed that he no longer wished to
       be represented by Ritacca and that he could not afford another attorney. The trial court allowed
       Ritacca to withdraw and appointed the public defender to represent defendant.
¶5         On July 16, 2014, assistant public defender Gillian Gosch appeared on behalf of defendant.
       The trial court continued the matter so that Gosch could review discovery. After several
       continuances, the matter was set for a jury trial on February 27, 2015.
¶6         On February 5, 2015, Gosch informed the trial court that defendant had told her that he
       wanted to represent himself. Defendant confirmed that he wished to proceed pro se.
       Thereafter, the following colloquy occurred:
                    “THE COURT: [Defendant], I don’t hesitate to tell you that that is a bad idea. There
               are a number of things that occur during the course of regular legal proceedings on a
               day-to-day basis, not to mention what occurs during the course of a trial that requires
               somebody with very particularized expert legal knowledge. Ms. Gosch is that kind of a
               person. I know that sometimes when you have discussions with your lawyers—and I
               know you have now had a couple—you might not always agree with what they have to
               say, and you don’t have to always agree with what they have to say, but you do have to
               listen to them when you make judgments about what’s best for you.
                    So you do have a right to represent yourself, but it’s something that is generally
               frowned upon because there is an old saying that a lawyer who represents himself or
               has himself for a client is a fool for both. Do you know what that means?
                    THE DEFENDANT: No.
                    THE COURT: It means it’s not a good idea.
                    How far did you go in school?


                                                   -2-
             THE DEFENDANT: I got a GED.
             THE COURT: You got a GED? And when did you get that?
             THE DEFENDANT: 2011.
             THE COURT: Okay. And have you had any jobs?
             THE DEFENDANT: No.
             THE COURT: And so tell me what it is or why it is you think that you should
        represent yourself in this case.
             THE DEFENDANT: Well, I talked—I talked to her yesterday and I tried to get her
        to get a continuance as far as the trial is set.
             THE COURT: Well, that’s not up to her. You know that, right? So if she told you
        that I wasn’t going to grant a continuance, she’s probably basing that on her knowledge
        of working in my courtroom because she’s worked in my courtroom for a long time
        now. So she knows that when a case gets to be as old as yours is and when it’s set for
        trial she knows that just asking for a continuance without a really good reason generally
        isn’t going to—going to fly. Okay?
             THE DEFENDANT: All right.
             THE COURT: So if she told you she couldn’t get you a continuance, that was
        probably her accurate opinion about what’s going on in this case. Do you know what I
        mean?
             THE DEFENDANT: All right.
             THE COURT: All right. What else?”
Defendant went on to complain that counsel had not shown him all of the discovery. The court
told defendant that, although counsel could go through the discovery with him, she could not
give it to him. Defendant stated, “That’s not what I’m saying.” Defendant reiterated his
complaint that counsel had not reviewed the discovery with him. Thereafter, the following
colloquy occurred:
             “THE COURT: Well, I know you have been in front of me a lot, [defendant], so
        you know what you are charged with.
             THE DEFENDANT: Exactly, exactly.
             THE COURT: And you know what they’re saying happened, right?
             THE DEFENDANT: Yeah.
             THE COURT: Okay. So a lot of what’s contained in the documents is information
        that might only be useful to the attorney. I mean, if you—if you want me to continue
        the case for a short period of time, like later this week or early the following week, I can
        certainly accommodate that to give Ms. Gosch the opportunity to go through some
        more of the information with you, if that’s what you like.
             But if that’s the only objection you have, I can tell you that my experience with Ms.
        Gosch is she happens to be an outstanding trial attorney, and she has representing [sic]
        people in the [sic] some of the most serious cases that I have ever had in front of me,
        and she is a very skilled and able trial lawyer. So if that’s your only problem, I think
        you should probably try to work with her about this a little bit. Don’t you think that?




                                             -3-
                   THE DEFENDANT: I feel like I won’t receive a fair trial due to the fact that we
              haven’t really had time to go over nothing together except she came up here yesterday
              and that’s all. That’s all.
                   THE COURT: Well, why don’t we try this. Why don’t I give you some more time,
              like we will have you back in here February 17th or 18th. That will give you and Ms.
              Gosch another week and a half, two weeks to go over some of the information just to
              answer any questions that you have about what the evidence is and about what your
              options are.
                   But, you know, it sounds to me like you may have been frustrated because she was
              conveying to you what the State’s offer was in the case. Would that maybe be accurate?
                   THE DEFENDANT: Not really.
                   THE COURT: Well, that’s the situation. So if she tells you something, that that’s
              what that is. She’s allowed to tell you and she should tell you what her opinion is about
              that. Okay? You don’t have to agree with her; she will tell you that. You still have an
              absolute right to have a trial in front of me or in front of a jury.
                   Right now, as a matter of fact, you’re set for a jury trial, and we’re going to start
              picking that jury actually not too long from now. I’ve got it in my calendar for evidence
              starting on March 2nd and jury selection on February 27th. So we’ve got, you know,
              your case right on track to get going. Okay?
                   THE DEFENDANT: Yeah.
                   THE COURT: So what I’ll do is I’ll give you time to talk to, you know, Ms. Gosch
              a little bit more, make sure that you understand exactly what it is that’s going on in your
              case. And then if there is something else that you want to bring to my attention, then
              you can. Okay?
                   THE DEFENDANT: All right.”
¶7        At the next court date, on February 18, 2015, Gosch advised the trial court that she met
     with defendant the day before and reviewed additional documents with him but that defendant
     still wished to represent himself. Defendant confirmed that he wished to proceed pro se. The
     trial court advised defendant that he had the right to do so. The court then went on to state that
     the case involved “a number of relatively complex areas” and that much of the evidence
     “require[d] some expertise in dealing with it appropriately.” The court inquired as to
     defendant’s education and age. Defendant told the court that he was 21 years old and that he
     had a GED. The court asked defendant whether he had “any type of specialized education in
     the legal profession” or “any specialized education in terms of medical knowledge.” When
     defendant responded no, the court stated, “And yet you stand in front of me and you tell me
     today that you think that you would be qualified to represent yourself in a case that would
     require some type of expertise in the law and in medicine?” After defendant responded in the
     affirmative, the court asked defendant why he wanted to represent himself. Defendant stated
     that “[he] didn’t feel like [he] would receive a fair trial with Miss Gillian Gosch.” Defendant
     stated that Gosch told him that he “had a 99.9 percent chance of losing the trial.” He further
     complained that she just recently came to see him, that she should have come to see him
     sooner, and that she should have gone over more material with him. The court explained to
     defendant that Gosch was educated in the law and experienced in the particular type of case
     involved. The court explained that her opinion of the case did not excuse her from her


                                                  -4-
     obligation to represent defendant zealously. The court stated, “If I thought for a minute that
     there was a lawyer that I appointed to represent you that wasn’t going to do her job, I would
     excuse that lawyer in a heart beat [sic] because I would never allow you to go to trial if I
     thought the lawyer wasn’t doing the job.” The court also explained that counsel had a lot of
     preparation to do, which she could not do if she were spending time with defendant in jail. The
     court stated, “[Y]ou’re not her partner in law. Okay? You’re her client.” The matter concluded
     with the following:
                 “THE COURT: ***
                 So is there anything else that she has not done, except for sharing with you an
             opinion that you don’t like?
                 THE DEFENDANT: No.
                 THE COURT: So do you think that it would be a good idea to try to represent
             yourself just because you don’t like what she’s telling you?
                 THE DEFENDANT: No.
                 THE COURT: So we’re going to go forward with Miss Gosch, and, if there’s
             something that comes up, you’ll bring it to my attention right away; right?
                 THE DEFENDANT: Yes.”
¶8       At the outset of the next court date, on February 26, 2015, Gosch informed the trial court
     that defendant wished to speak. Defendant then stated, “I was seeing if I can go pro se today.”
     The court responded as follows:
                 “Okay, [defendant]. We started to have this conversation a couple days ago. I
             thought you had seen the better of that decision. It is a very difficult thing to represent
             yourself. Even lawyers should never undertake representing themselves. You are far
             too close to the proceedings to make informed good decisions. As I told you I am going
             to be in court obviously during the entirely [sic] of the proceedings. If any problems
             come up and you feel there’s something you need to bring to my attention even outside
             the presence of [the] jury I am going to let you do that, but in terms of the technical
             aspects of representing yourself at trial, knowing the proper objections to make,
             knowing the motions to make, you put yourself at an extreme disadvantage especially
             given your educational background, your life history that you indicated to me earlier, a
             very difficult in [sic] actually an impossible thing to do, [defendant].
                 You wouldn’t know how to preserve your own record. You wouldn’t know the
             proper things to say or what to do. Don’t you think you might wind up in a much worse
             situation than you’re in if you made mistakes on the record if I were to let you represent
             yourself; isn’t that right?”
     Defendant agreed but then stated, “I’d rather take my chances representing myself.”
¶9       Thereafter, the court again inquired as to defendant’s age and education. The court told
     defendant that he had “no ability to file any type of motions.” The court asked defendant
     whether he had gone through the file, whether he knew what it meant to conduct discovery,
     whether he knew how to make objections, whether he knew how to conduct jury selection, and
     whether he would be able to preserve the record. After defendant responded no, the court
     emphasized that Gosch was “an extremely experienced litigator and a very able trial attorney.”
     The court stated, “You got to make sure you have the best representation going to trial
     examining and cross-examining doctors, medical reports, going through police officers [sic].”

                                                  -5-
       The court continued, “Don’t you think it’s in your best interest at least to let her begin
       representing you, and if there is an issue bring it to my attention? That’s what you need to do,
       [defendant]. If you want to have a fighting chance you need to have a lawyer. You are nodding
       your head yes. You think that’s your best idea?” Defendant responded, “I still rather take my
       chances going pro se.” The court asked whether defendant was prepared for trial tomorrow.
       When defendant responded that he was not, the court stated, “Well, how do you think I am
       going to let you go pro se?” The remainder of the conversation addressed defendant’s
       complaints that counsel had not gone over “video segments” with him or contacted any of the
       witnesses provided by defendant’s family. Arrangements were made for counsel to review the
       video with defendant the next morning with jury selection to follow. At the conclusion of the
       proceedings, the State advised the court that defendant had rejected its offer of 25 years for first
       degree murder. Gosch told the court that she had advised defendant to accept the offer.
¶ 10       The next day, February 27, 2015, defendant waived his right to a jury trial. The matter
       proceeded to a bench trial on March 2, 2015.
¶ 11       The evidence at trial established that, during the late evening of September 14, 2011,
       defendant was playing video games with three-year-old X.C., the son of defendant’s girlfriend,
       Qa’Chelle, in the living room of Qa’Chelle’s apartment while Qa’Chelle slept upstairs.
       Sometime after midnight, defendant told Qa’Chelle that X.C. did not seem well. Qa’Chelle
       discovered X.C. slumped over and not talking, and she took him to Vista Medical Center West.
       X.C. was airlifted to Children’s Memorial Hospital where he died from massive internal
       bleeding. Medical testimony established that X.C. suffered from severe internal injuries in his
       abdominal area and that none of the injuries could have occurred more than a few hours before
       his arrival at the hospital. The injuries had been caused by at least three blows from a round
       object, possibly a fist. An autopsy revealed that X.C. suffered from additional injuries to his
       chest cavity.
¶ 12       The State’s evidence further established that defendant made a series of statements to
       police. Defendant told police at the scene that X.C. had fallen and hit his head. Defendant later
       told detectives that he had punched X.C. in the abdomen one time because X.C. swore at the
       video game. Finally, after being told that it was impossible for X.C.’s injuries to have resulted
       from one blow, defendant told detectives that he had hit X.C. four or five times.
¶ 13       The judge found defendant guilty of first degree murder and found that the offense was
       exceptionally brutal and heinous. Defendant’s motion for a new trial was denied. Following a
       sentencing hearing, the trial court sentenced defendant to 33 years in prison.
¶ 14       Defendant timely appealed.

¶ 15                                          II. ANALYSIS
¶ 16        Defendant argues that the trial court erred in denying his request to represent himself at
       trial. Defendant acknowledges that he did not raise this issue in his motion for a new trial and
       thus has forfeited it. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, he argues that
       the issue is reviewable under the plain-error rule.
¶ 17        Under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967), “[p]lain errors or defects
       affecting substantial rights may be noticed although they were not brought to the attention of
       the trial court.” The plain-error rule allows review of a forfeited claim of error if the error is
       clear or obvious and either (1) “the evidence is so closely balanced that the error alone


                                                    -6-
       threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
       error” or (2) “the error is so serious that it affected the fairness of the defendant’s trial and
       challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
       People v. McDonald, 2016 IL 118882, ¶ 48. Defendant has the burden of persuasion to
       establish plain error. Id. If he fails to meet his burden, his forfeiture will be honored. People v.
       Hillier, 237 Ill. 2d 539, 545 (2010). The first step in plain-error review is to determine whether
       clear or obvious error is present. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 18        Defendant argues that the trial court erred in denying his unequivocal request to represent
       himself based on its opinion that proceeding without a lawyer was not in defendant’s best
       interest. The State responds that the trial court properly exercised its discretion, as defendant’s
       request was untimely and the trial court was protecting defendant’s right to a fair trial.
¶ 19        “The sixth amendment to the United States Constitution (U.S. Const., amend. VI)
       guarantees an accused in a criminal proceeding both the right to the assistance of counsel and
       the correlative right to proceed without counsel.” People v. Wright, 2017 IL 119561, ¶ 39
       (citing Faretta v. California, 422 U.S. 806, 832-34 (1975)). Our supreme court has long
       recognized that the right to self-representation is “as basic and fundamental as [the] right to be
       represented by counsel.” (Internal quotation marks omitted.) Id. “An accused may therefore
       waive his constitutional right to counsel as long as the waiver is voluntary, knowing, and
       intelligent.” Id.
¶ 20        “It is ‘well settled’ that waiver of counsel must be clear and unequivocal, not ambiguous.”
       People v. Baez, 241 Ill. 2d 44, 116 (2011). “In determining whether a defendant’s statement is
       clear and unequivocal, a court must determine whether the defendant truly desires to represent
       himself and has definitively invoked his right of self-representation.” Id.
¶ 21        “Although a court may consider the decision unwise, a defendant’s knowing and intelligent
       election to represent himself must be honored out of that respect for the individual which is the
       lifeblood of the law.” (Internal quotation marks omitted.) Wright, 2017 IL 119561, ¶ 39. “The
       requirement of knowing and intelligent choice ‘calls for nothing less than a full awareness of
       both the nature of the right being abandoned and the consequences of the decision to abandon
       it.’ ” Baez, 241 Ill. 2d at 117 (quoting People v. Lego, 168 Ill. 2d 561, 564 (1995)).
¶ 22        Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) seeks to ensure that a defendant has
       such an awareness before his waiver is accepted.1 Specifically, the rule provides:
                 “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.


           1
            Along with the Rule 401(a) admonishments, it is desirable for the court to inform the defendant of
       the 10 matters set forth in People v. Ward, 208 Ill. App. 3d 1073, 1081-82 (1991).

                                                      -7-
       “[S]ubstantial compliance [with Rule 401(a)] 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.” (Internal quotation marks
       omitted.) Wright, 2017 IL 119561, ¶ 41.
¶ 23       The trial court’s denial of a defendant’s request to waive counsel and proceed pro se is
       reviewed for an abuse of discretion. Baez, 241 Ill. 2d at 116. The application of an incorrect
       legal standard constitutes an abuse of discretion. People v. Woodson, 2011 IL App (4th)
       100223, ¶ 21.
¶ 24       Here, defendant requested to represent himself at three different hearings, and there is no
       doubt in our minds that each request was unequivocal and unambiguous. However, rather than
       admonishing defendant under Rule 401(a) and determining whether defendant’s request was
       voluntary, knowing, and intelligent, the trial court focused exclusively on defendant’s ability
       to represent himself. This was error. At the hearing on February 5, 2015, the court told
       defendant that the request was “a bad idea” and that a trial required “somebody with very
       particularized expert legal knowledge.” The court asked defendant about his education and
       employment experience. The court also inquired as to why defendant wanted to represent
       himself. When defendant told the court that counsel had not reviewed discovery with him, the
       court told defendant that it would give him time to talk to counsel and address his concerns
       about his case. At the next court date, defendant persisted in his request to proceed pro se. In
       response, the court again inquired into defendant’s educational background. The court asked
       defendant whether he had “any type of specialized education in the legal profession” or “any
       specialized education in terms of medical knowledge” and whether he felt that he was qualified
       to represent himself. Although defendant agreed, at the end of the hearing, when the court
       stated that “we’re going to go forward with Miss Gosch,” at the outset of the next court date,
       defendant reiterated his request to proceed pro se. The court once again emphasized that
       proceeding pro se would place defendant “at an extreme disadvantage,” and it focused on
       defendant’s lack of legal knowledge. Although defendant agreed with the court, he stated, “I’d
       rather take my chances representing myself.”
¶ 25       The State attempts to justify the trial court’s refusal to allow defendant to proceed pro se by
       arguing that the court was “protecting defendant’s right to a fair trial,” given defendant’s age,
       education, and lack of employment history. The State cites Indiana v. Edwards, 554 U.S. 164
       (2008), which holds that a court can refuse to allow a severely mentally ill defendant to
       proceed pro se if the court is convinced that he cannot competently represent himself. Id. at
       177-78. Here, however, there was no indication that defendant was severely mentally ill.
       Moreover, “a defendant need not possess the skill and experience of a lawyer in order to
       choose self-representation competently and intelligently.” Lego, 168 Ill. 2d at 564. Indeed, the
       denial of a defendant’s request to proceed pro se based on a perceived lack of legal knowledge
       and ability “has been repeatedly rejected.” Woodson, 2011 IL App (4th) 100223, ¶ 23. If a
       defendant’s waiver of his right to counsel is made voluntarily, knowingly, and intelligently, a
       court must accept that waiver, even where such a decision is unwise or likely to be a detriment
       to the defendant. See Baez, 241 Ill. 2d at 116.
¶ 26       The State also argues that defendant’s request was untimely. According to the State,
       although the trial was still three weeks away, defendant’s request was untimely because
       “meaningful proceedings” had already occurred. In support, the State relies on People v.
       Burton, 184 Ill. 2d 1 (1998). In Burton, while represented by counsel, the defendant pleaded

                                                    -8-
       guilty to first degree murder. Id. at 6. Later, during his capital sentencing hearing, he made
       certain statements that he claimed on appeal indicated a desire to proceed pro se. Id. at 20-21.
       The supreme court held that the defendant’s statements were equivocal and did not amount to a
       request to proceed pro se. Id. at 24. The court also went on to “note the timing of this
       exchange” and found that, even if the defendant had made an unequivocal request, the trial
       court had discretion to deny it because it was made after the guilty plea, a “meaningful
       proceeding[ ].” Id. at 25. Here, however, unlike in Burton, defendant made an unequivocal
       request three weeks before trial. Moreover, the trial court never ruled that the request was
       untimely. The only proceedings held prior to the request were the arraignment and status
       hearings on discovery; no “meaningful proceedings” had yet occurred.
¶ 27        Based on the foregoing, we find that the trial court clearly abused its discretion when it
       denied defendant’s unequivocal and unambiguous request to represent himself, based on its
       belief that the request was not in defendant’s best interest, rather than determining whether
       defendant’s request was voluntarily, knowingly, and intelligently made.
¶ 28        Having found clear error, the question becomes whether the error is reversible plain error.
       Defendant contends that he has established reversible plain error under the second prong of the
       plain-error rule. We agree. As noted, under the second prong of the plain-error rule, after
       establishing error, the defendant must show that “the error is so serious that it affected the
       fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
       of the closeness of the evidence.” McDonald, 2016 IL 118882, ¶ 48. The supreme court has
       “equated second-prong plain error with structural error.” People v. Clark, 2016 IL 118845,
       ¶ 46. Structural error is an error “ ‘affecting the framework within which the trial proceeds,
       rather than simply an error in the trial process itself.’ ” Neder v. United States, 527 U.S. 1, 8
       (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). In Neder, the Supreme
       Court recognized that the erroneous denial of self-representation at trial is structural error. Id.
       (citing McKaskle v. Wiggins, 465 U.S. 168 (1984)). Given our conclusion that the trial court
       erred in denying defendant his right to self-representation at trial, we hold that the error
       constitutes second-prong plain error.

¶ 29                                        III. CONCLUSION
¶ 30       Based on the foregoing, we reverse the judgment of the circuit court of Lake County, and
       we remand for a new trial. In so doing, we note that the evidence was sufficient to prove
       defendant guilty of first degree murder beyond a reasonable doubt, and thus a retrial will not
       violate defendant’s right to be free from double jeopardy. See People v. Jiles, 364 Ill. App. 3d
       320, 330-31 (2006).

¶ 31      Reversed and remanded.




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