                                            Second Division
                                            Filed: December 8, 2009




No. 1-08-1470



THE PEOPLE OF THE STATE OF ILLINOIS,        )      APPEAL FROM THE
                                            )      CIRCUIT COURT OF
           Plaintiff-Appellee,              )      COOK COUNTY
                                            )
                      v.                    )      No. 07 CR 17397
                                            )
EMILIO GORGA,                               )      HONORABLE
                                            )      SHARON M. SULLIVAN,
           Defendant-Appellant.             )      JUDGE PRESIDING.



     JUSTICE HOFFMAN delivered the opinion of the court:

     Following a bench trial, the defendant, Emilio Gorga, was

found   guilty   of   robbery    and   sentenced   to   8   1/2   years’

incarceration.    The defendant now appeals and requests that we

reverse his conviction and grant him a new trial, contending that

the trial court erred 1) when it refused his request to represent

himself and 2) when it allowed an ineffective interpreter to

participate in the trial proceedings.           For the reasons which

follow, we affirm.

     On August 9, 2007, at approximately 7:25 p.m., Vincent Ramirez

was waiting for a bus when two men approached him.           One of the

men, who was later identified as the defendant, was of Hispanic

descent.   The other individual, subsequently identified as the co-
No. 1-08-1470

defendant, Alpha Traore, was an African American.    The men pushed

Ramirez against the wall of a viaduct and started going through his

pockets.    According to Ramirez, Traore took $23 from his wallet.

After the defendant returned Ramirez’s wallet and cell phone, the

men fled.

     At the time of the robbery, Jose Luque was driving in the

vicinity.   When he observed the incident, he got out of his car and

watched from a distance of about five or six feet.        After the

robbers fled, Luque approached Ramirez and signaled two uniformed

police officers, Kurt Catalan and Steve Chon, who were driving in

a passing police car.

     Ramirez told the officers that he had just been robbed and

that during the robbery he felt a hard object which he thought was

a gun.   Ramirez got into the police car and drove with the officers

in the direction that the robbers had fled.   Luque followed in his

own vehicle.    After traveling several blocks, Ramirez saw the men

who had robbed him walking down the street.      At that time, the

police took the defendant and Traore into custody.     Once the men

were in custody, both Ramirez and Luque identified the defendant

and Traore as the two individuals who had robbed Ramirez.      When

arrested, Traore was in possession of $20, and the defendant had a

toy gun.

     Initially, the defendant asserted that he had done nothing.


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No. 1-08-1470

However, it was stipulated that, if called, Detective Hillman would

testify that, after he advised the defendant of his constitutional

rights, the defendant told him that it was Traore’s idea to find

someone to rob because they were broke and that he just stood by

and watched Traore rob Ramirez.        The defendant and Traore were

charged with aggravated robbery.

     The defendant waived his right to a jury trial, and a bench

trial commenced on January 24, 2008. The defendant was represented

by an assistant public defender, and the trial court appointed a

Spanish language interpreter to assist the defendant.      The State

presented the testimony of Ramirez, Luque, Officer Catalan, and

Officer Chon. Ramirez testified using the same interpreter who had

been appointed to assist the defendant.     During the course of the

trial, both Ramirez and Luque identified the defendant as one of

the men who had robbed Ramirez.

     Following the close of the State’s case, the defendant moved

for a directed finding of not guilty which was denied.         After

conferring with the defendant, defense counsel informed the trial

court that the defendant would not be testifying on his own behalf.

Thereafter, the trial court asked the defendant whether he wished

to testify.     The defendant responded that he did not.   After the

trial court informed him that, if he did not testify, he would not

have another opportunity to do so, the defendant requested to speak


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No. 1-08-1470

with his attorney again. After a discussion with his attorney, the

defendant again waived his right to testify.     The defense then

rested without calling any witnesses. Following closing arguments,

the defendant was found guilty of robbery and not guilty of

aggravated robbery.

     The defendant filed a motion for a new trial asserting in

general terms that: the State had failed to prove him guilty beyond

a reasonable doubt, the finding of guilty is against the manifest

weight of the evidence, he was denied his constitutional rights of

due process and equal protection, the State failed to prove the

material allegations of the charge against him beyond a reasonable

doubt, and he did not receive a fair and impartial trial.       The

trial court denied the motion on February 22, 2008.     Although a

sentencing hearing was commenced, the matter was continued to allow

the State time to obtain a certified copy of a conviction which

appeared on the defendant’s presentence investigation report.

     On April 8, 2008, the defendant attempted to file several hand

written pro se motions for a new trial.     Those motions argued,

inter alia, that the statute providing for extended term sentences

is unconstitutional and that his attorney improperly advised him

not to testify on his own behalf.        The defendant’s attorney

informed the court that the defendant was claiming that he was

denied his right to testify and that "he wanted to tell *** his


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No. 1-08-1470

side of the story."     The trial court continued the case in order to

obtain a transcript of that portion of the trial when the defendant

waived his right to testify.

     On May 5, 2008, the defendant’s attorney stated that he was

filing   a    motion    to    reopen    the     defendant’s      case-in-chief,

representing to the court that the defendant wished to testify on

his own behalf and that he did not understand that he could testify

without the approval of his attorney.                The defendant’s attorney

also informed the court that the defendant no longer wished to be

represented by him and that the defendant wished to represent

himself. Thereafter, the trial court questioned the defendant

concerning his request to represent himself.

     Responding to the court's questions, the defendant stated that

he no longer wanted to be represented by the assistant public

defender because he refused to present several motions which the

defendant    wanted    filed;      primarily,    a    motion    addressing   the

constitutionality      of    the   statute    providing   for    extended    term

sentences.    He also expressed displeasure with the representation

he had received from the assistant public defender, specifically

complaining of the advice he had been given not to testify on his

own behalf.     The defendant told the trial judge that he spoke

English "a little bit." In response to the trial judge's questions

concerning the level of his education, the defendant stated that he


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No. 1-08-1470

was able to read and write and that he had gone to the 6th grade in

Cuba.      The    defendant     denied    ever     having    been   treated   for    a

psychiatric illness and denied that he was taking any psychiatric

medication.       The trial judge examined the hand written motions

which    the     defendant     wished    presented     and    found    them   to    be

unintelligible.         She    questioned      the   defendant      concerning     the

motions.        He admitted that he had not prepared the motions,

although he had signed them.               When the trial judge asked the

defendant about the content of the motions, she could not follow

what he was saying.           Following her examination of the defendant,

the trial judge denied his motion to represent himself and ordered

that    the    assistant     public     defender     continue     representing     the

defendant.

       The assistant public defender reiterated his request that the

trial court reopen the case and allow the defendant the opportunity

to testify on his own behalf.                  He asserted that it was the

defendant's contention that he had not understood what it meant

when he waived his right to testify.                  Defense counsel told the

court that the defendant "thought because I advised him not to,

that meant he couldn’t.         I think he chooses not to follow my advice

and step up on the stand and testify on his own behalf."                   The State

objected.       Nevertheless, the trial judge allowed the defendant to

reopen    the    case   and    testify    because     of    her   belief   that    the


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No. 1-08-1470

defendant may not have fully understood that he was not required to

follow his attorney’s advice against testifying.

      The defendant took the stand and denied that he took part in

the robbery.        He claimed that Traore surprised him when he robbed

Ramirez.     The defendant also denied telling the police that it was

Traore’s     idea    to   rob   Ramirez    because   they   were       broke.      The

defendant testified that he told Traore not to take Ramirez’s money

and that it was he that gave Ramirez back his wallet and cell

phone.      According to the defendant, the toy pistol found in his

pocket by the police was a birthday present intended for his

girlfriend’s son.

      In rebuttal, the State introduced a stipulation that, if

called, Detective Hillman would testify that, after advising the

defendant of his constitutional rights, the defendant stated that

it was Traore’s idea to find someone to rob because they were broke

and that he just stood by watching while Traore robbed Ramirez.

The State also introduced certified copies of the defendant’s pior

convictions for theft, theft by deception, and retail theft.

      Following a second round of closing arguments, the trial court

again found the defendant guilty of robbery and sentenced him as

a   Class    X   offender       to   an   extended   term   of     8    1/2     years’

incarceration followed by a term of 3 years' supervised release.

The defendant moved the court to reconsider the sentence.                        That


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No. 1-08-1470

motion was denied, and this appeal followed.

     For his first assignment of error, the defendant argues that

he was deprived of his sixth amendment (U.S. Const., amend. VI)

right to self-representation when the trial court denied his

request to discharge his attorney and proceed pro se.              He contends

that, when he requested to discharge his attorney and represent

himself,    he   did   so    knowingly,   intelligently,    and     with   full

awareness of both the right being abandoned and the consequences of

his decision to proceed pro se.           See People v. Lego, 168 Ill. 2d

561, 563-65, 660 N.E.2d 971 (1995).                The defendant concludes,

therefore, that the trial court abused its discretion when it

denied his request to represent himself.            We disagree.

     A   criminal      defendant's   right    of    self-representation     is

embodied in the sixth amendment to the United States Constitution.

Faretta v. California, 422 U.S. 806, 821, 45 L.Ed.2d 562, 574, 95

S.Ct. 2525, 2534 (1975).         Article I, section 8 of the Illinois

Constitution has a similar provision that guarantees an accused the

same right.      Ill. Const. 1970, art. I, §8; People v. Leeper, 317

Ill. App. 3d 475, 480, 740 N.E.2d 32 (2000).           The erroneous denial

of a defendant's request to represent himself is a structural

defect that defies a harmless-error analysis and requires a per se

reversal.     People v. Bingham, 364 Ill. App. 3d 642, 648-50, 847

N.E.2d 903 (2006).          However, the constitutional right of self-


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No. 1-08-1470

representation    is   not   absolute      and   may   be   forfeited    if   the

defendant cannot make a knowing and intelligent waiver of counsel

(People v. Rohlfs, 368 Ill. App. 3d 540, 545, 858 N.E.2d 616

(2006)) or if the defendant's request to represent himself is

untimely (People v. Burton, 184 Ill. 2d 1, 24, 703 N.E.2d 49

(1998)).

     Assuming for the sake of analysis that the defendant's request

to proceed pro se in this case was knowingly and intelligently

made, the question remains as to its timeliness.              The timing of a

defendant's request to represent himself is significant.                 Burton,

184 Ill. 2d at 24.          Court's have held that such a request is

untimely when it is first made after the trial or meaningful

proceedings have begun. Burton, 184 Ill. 2d at 24; Leeper, 317 Ill.

App. 3d at 481.

     In the instant case, the defendant's request to discharge his

attorney and proceed pro se came very late in the proceedings.

When the request was first made, the defendant had already been

found guilty and his original motion for a new trial had been

denied.    Pending     was    his   attorney's     request    to   reopen     the

defendant's case-in-chief to permit the defendant to testify on his

own behalf.

     The   decision    of    whether    to   grant     or   deny   a    criminal

defendant's request to represent himself is a matter committed to


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No. 1-08-1470

the sound discretion of the trial court, and its ruling in such a

matter will not be disturbed on review unless that discretion has

been abused.     Burton, 184 Ill. 2d at 24-25; Rohlfs, 368 Ill. App.

3d at 545.   In this case, we find no abuse of discretion.   At the

time that the defendant first requested to represent himself, his

appointed attorney had an intimate and lengthy involvement in the

case, having represented the defendant throughout the trial and in

his original post-trial motion.        Simply put, the defendant's

request to proceed pro se after he had already been found guilty

came too late.    Burton, 184 Ill. 2d at 24-25.

     Next, the defendant argues that the trial court erred when it

allowed an ineffective interpreter to participate in the trial

proceedings.      He also complains about the fact that the same

interpreter was allowed to act both as his interpreter and the

interpreter for the State's witnesses.      In response, the State

contends that the defendant has forfeited these issues by failing

to raise any objection at trial or in his post trial motions.    We

agree with the State.

     To preserve an issue for appellate review, a defendant must

both object at trial and raise the issue in a written post-trial

motion.   People v. Bush, 214 Ill. 2d 318, 332, 827 N.E.2d 455

(2005); People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124

(1988).   In this case, the defendant neither raised the competency


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No. 1-08-1470

of the interpreter or objected to the scope of the interpreters

activities in the trial court, nor did he raise the issues in any

of his post-trial motions.       Consequently, he has forfeited the

issues for purposes of this appeal.         Bush, 214 Ill. 2d at 332;

Enoch, 122 Ill. 2d at 186.

     The defendant acknowledges that he has forfeited these issues

by failing to object at the trial level or raise them in his post-

trial motions.    Nevertheless, he urges us to consider the issues

under the plain-error doctrine.     We decline to do so.

     Plain errors or defects affecting substantial rights may be

considered on appeal even if they were not brought to the attention

of the trial court.      134 Ill. 2d R. 615(a).          The plain-error

doctrine   bypasses   normal   forfeiture   principles    and   allows   a

reviewing court to consider unpreserved errors "when either (1) the

evidence is close, regardless of the seriousness of the error, or

(2) the error is serious, regardless of the closeness of the

evidence."    People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d

467 (2005).   "In both instances, the burden of persuasion remains

with the defendant."     Herron, 215 Ill. 2d at 187.

     Here, the defendant cannot satisfy the first prong of the

plain-error doctrine because the evidence was not closely balanced.

The defendant was identified by Ramirez, the victim, and Luque, the

eye witness, both shortly after the incident and again in court.


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No. 1-08-1470

Additionally, he was apprehended in the company of Traore a short

distance from the place where Ramirez was robbed, and the defendant

admitted to the police that Traore robbed Ramirez. The evidence of

the defendant's guilt was overwhelming.

       Second, we do not find that the alleged errors relating to the

interpreter affected the fairness of the trial.                      The defendant's

assertions that he was deprived of his right to confront witnesses

because he could not fully understand the victim's testimony as it

was    translated   is    not    supported      by    the    record.        The   victim

testified      in   Spanish,         the    defendant's           primary     language.

Consequently, the defendant cannot claim that he did not understand

what    the   victim     was    saying.         As   for    the    accuracy       of   the

interpreter's translation, nothing in the record establishes that

it was in any way inaccurate.              It is true that, in his brief, the

defendant points to two limited exchanges between the prosecutor

and Ramirez which he claims represent mistranslations. However, we

find nothing in the first exchange which suggests that the witness

did    not    understand       the   question        or     that    his     answer     was

unresponsive.       As for the second exchange consisting of four

questions and answers, only the last answer appears to be somewhat

unresponsive.       This isolated unresponsive answer hardly evinces

ineffective translation.

       The defendant also claims that the trial court erred in


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No. 1-08-1470

allowing the same interpreter to translate for him and the State's

witnesses.     He claims that he was entitled to a second interpreter

to   correct   the   mistakes   of   the   interpreter   translating   the

testimony of the State's witnesses and to allow his attorney to

identify mistranslations. The flaw in the defendant's arguments in

this respect is the absence of any evidence in the record that the

interpreter made any material mistakes in translating.             Absent

evidence of a mistranslation in critical testimony, the defendant

cannot establish any prejudice in the trial court's failure to

employ two separate interpreters.          See People v. Tomas, 136 Ill.

App. 3d. 1054, 1056-59, 484 N.E.2d 341 (1985).           See also Hung v.

State, 284 Ga. 796, 798, 671 S.E.2d 811, 814 (2009); New Mexico v.

Nguyen, 144 N.M. 197, 201, 185 P.3d 368, 372 (2008); but see People

v. Romero, 153 Cal. App. 3d 757, 760, 200 Cal. Rptr. 404, 405-06

(1984).

      For the foregoing reasons, we affirm the judgment of the

circuit court.

      Affirmed.


      THEIS and KARNEZIS, JJ., concur.




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        No. 1-08-1470

                     REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                            (Front Sheet to be attached to Each Opinion)


Please use the              THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
                                              Plaintiff-Appellee,
Complete                            v.
TITLE
of Case.                    EMILIO GORGA,

                                              Defendant-Appellant.


Docket No.
                                              No.                   1-08-1470
Court
                                                         Appellate Court of Illinois
                                                         First District, Second Division
Opinion Filed
                                                              December 8       , 2009
                                                        (Give month, day and year)


                            JUSTICE THOMAS E. HOFFMAN, J., delivered the opinion of the Court.

                                                    THEIS and KARNEZIS, JJ.                           , concur[s].
JUSTICES
                                                                                                     , dissent.


Appeal from the                     Lower Court and trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the                            Appeal from the Circuit Court of Cook County.
Judge Presiding.
                            The Hon.                SHARON M. SULLIVAN                       , Judge(s) Presiding.


For Appellants,             Indicate if attorney represents APPELLANTS or APPELLEES and include
John Doe, of                attorneys of counsel. Indicate the word NONE if not represented.
Chicago.
                     FOR APPELLANT: DeP aul University Co llege of Law, of Chicago. Pro fessor Andrea Lyons,
For App ellees,                               Asso ciate D ean for Clinica l Programs, of counsel.
Smith & Smith,
of Chicago.

Also add attorneys
for third party      FO R A PPE LLE E(S):     Anita A lverez, Statre's Atto rney, of Chicago. James E . Fitzgerald,
appellants and/or                             Peter Fischer and Kathleen Warnick, Assistant State's Attorneys, of
appe llees.                                   counsel.




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No. 1-08-1470


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