{ "id": 4296647, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASHOOR RASHO, Defendant-Appellant", "name_abbreviation": "People v. Rasho", "decision_date": "2010-03-23", "docket_number": "No. 4\u201409\u20140104", "first_page": "1035", "last_page": "1043", "citations": [ { "type": "official", "cite": "398 Ill. App. 3d 1035" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "223 F.3d 665", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11241326 ], "year": 2000, "pin_cites": [ { "page": "668", "parenthetical": "a motion to proceed pro se filed before the jury is empaneled is timely \"unless made for the purpose of delaying or disrupting the trial\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/223/0665-01" ] }, { "cite": "406 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "1160", "parenthetical": "noting that the request to proceed pro se must be timely made; \"[a] defendant cannot await the eve of trial and then, hoping for a continuance, announce that he has decided to rely upon his skills rather than counsel's in presenting his defense\"" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3196144 ], "year": 1980, "pin_cites": [ { "page": "660", "parenthetical": "noting that the request to proceed pro se must be timely made; \"[a] defendant cannot await the eve of trial and then, hoping for a continuance, announce that he has decided to rely upon his skills rather than counsel's in presenting his defense\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0654-01" ] }, { "cite": "567 N.E.2d 642", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "649" }, { "page": "649", "parenthetical": "a trial court may deny a request to proceed pro se when the request comes \"so late in the proceedings that to grant it would be disruptive of the orderly schedule of proceedings\"" } ], "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548979 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1084" }, { "page": "1084" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/1073-01" ] }, { "cite": "430 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12124816 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "404" }, { "page": "440" }, { "page": "1242" } ], "opinion_index": 0, "case_paths": [ "/us/430/0387-01" ] }, { "cite": "718 F.2d 413", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3789489, 1894942 ], "year": 1983, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/231/0001-01", "/f2d/718/0413-01" ] }, { "cite": "703 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "59" }, { "page": "59" }, { "page": "59" }, { "page": "60" }, { "page": "60", "parenthetical": "noting many courts have held a defendant's request is untimely when made just before the commencement of trial" } ], "opinion_index": 0 }, { "cite": "184 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926986 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "21" }, { "page": "21" }, { "page": "22" }, { "page": "23" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0001-01" ] }, { "cite": "422 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9431 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "832" }, { "page": "579-80" }, { "page": "2539-40" } ], "opinion_index": 0, "case_paths": [ "/us/422/0806-01" ] }, { "cite": "239 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "438", "parenthetical": "\"It has been found to be reversible error to refuse a criminal defendant's timely request for self-representation\"" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855147 ], "year": 1968, "pin_cites": [ { "page": "123", "parenthetical": "\"It has been found to be reversible error to refuse a criminal defendant's timely request for self-representation\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0116-01" ] }, { "cite": "858 N.E.2d 616", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2006, "pin_cites": [ { "page": "621" }, { "page": "621" }, { "page": "621-22" } ], "opinion_index": 0 }, { "cite": "368 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265806 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "545" }, { "page": "545" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0540-01" ] } ], "analysis": { "cardinality": 844, "char_count": 19101, "ocr_confidence": 0.773, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3783977367020239 }, "sha256": "797bb22f8a59cf015901966e2a35c9037bfc16ada7f72f39cb67c7425be1424f", "simhash": "1:21a8b4ae16e605c2", "word_count": 3161 }, "last_updated": "2023-07-14T21:50:17.302697+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TURNER and STEIGMANN, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASHOOR RASHO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nIn November 2008, a jury found defendant, Ashoor Rasho, guilty of aggravated battery. In February 2009, the trial court sentenced defendant to five years\u2019 imprisonment. Defendant appeals, arguing the court abused its discretion by denying defendant his right of self-representation at trial. We affirm.\nI. BACKGROUND\nOn August 1, 2007, the State charged defendant by information with one count of aggravated battery (720 ILCS 5/12 \u2014 4(b) (18) (West 2006) (as amended by Pub. Act 94 \u2014 243, \u00a75, eff. January 1, 2006; Pub. Act 94 \u2014 327, \u00a75, eff. January 1, 2006; Pub. Act 94 \u2014 363, \u00a75, eff. July 29, 2005; and Pub. Act 94 \u2014 482, \u00a75, eff. January 1, 2006)). The information alleged that on June 4, 2007, defendant, an inmate at the Pontiac Correctional Center (Pontiac), knowingly made physical contact of an insulting or provoking nature with Dustin Baylor. Specifically, the information alleged defendant threw a liquid substance upon Baylor, knowing Baylor was a correctional institution employee and employee of the State of Illinois engaged in the execution of his official duties.\nOn August 15, 2007, the trial court appointed the public defender to represent defendant. At the same hearing, defense counsel informed the court he needed to obtain some mental-health records. The court set the case on the November 2007 trial calendar.\nA number of continuances followed. At the October 17, 2007, pretrial hearing, defense counsel requested a continuance to obtain additional information defendant believed counsel should have. The matter was set for the January 2008 calendar.\nAt the December 19, 2007, pretrial hearing, defense counsel informed the court that defendant had given him additional information and counsel needed to obtain additional documentation from the Department of Corrections (DOC). The court continued the matter to the March 2008 calendar.\nOn February 25, 2008, defendant filed a pro se motion for the appointment of counsel other than the public defender. In the motion, defendant asserted he was an illiterate, mentally ill prisoner. Defendant complained that defense counsel did not \u201cfile a motion on Pontiac Law Library\u201d as defendant had requested, send defendant copies of all motions filed, and \u201cwrite to him.\u201d\nAt the March 5, 2008, pretrial hearing, defense counsel asked for a continuance because defendant believed counsel needed to procure additional documents relating to defendant\u2019s sanity and fitness and \u201cmight have a bearing exactly where he was on certain dates in the penitentiary.\u201d The trial court continued the trial to the June jury calendar. The court also denied defendant\u2019s pro se motion for appointment of counsel other than the public defender. The court informed defendant he would either have his current counsel or nobody, but it noted that defendant and defense counsel appeared to be getting along better now. Defendant agreed he no longer had a problem with defense counsel. The court directed the clerk to show the motion denied and that defendant was in agreement with that denial.\nThe March 10, 2008, docket entry indicates the court granted defense counsel permission to employ a private investigator.\nAt the May 21, 2008, pretrial hearing, defense counsel requested a continuance. Defense counsel informed the court that defendant had made him aware of additional documents defendant believed would be beneficial. Defense counsel explained he had received quite a few pages of records about defendant\u2019s sanity. Today, defendant indicated he thought certain medical records would indicate defendant\u2019s use of psychotropic drugs during the period in question, which might have altered his thinking. The court granted the continuance and set the case on the August jury calendar.\nAt the July 23, 2008, pretrial hearing, defense counsel indicated he was not ready for trial. Defendant had given him additional information, including the names of two potential witnesses defendant wanted counsel to interview. Defense counsel had also not received documents he requested from DOC. The State objected to a continuance, noting that defendant had had a long time to get his witnesses. The court noted defense counsel had also been allowed to hire a private investigator. Defense counsel responded that defendant had also raised a question about his sanity. The court granted one more continuance and set the case on the November jury calendar.\nAt the October 15, 2008, pretrial hearing, defense counsel informed the trial court defendant wanted a continuance. Counsel noted he had received and reviewed defendant\u2019s psychiatric records to see if a psychiatric examination was needed. Counsel did not believe such an examination was needed. Defense counsel had also requested certain medical records but received additional psychological records instead. The trial court denied the motion for a continuance. The court kept the case on the November calendar and told parties they would receive a specific trial date the following week.\nOn November 12, 2008, the trial court called the matter for jury trial. Defense counsel informed the court that defendant indicated to him by letter and also in person that day that defendant did not want defense counsel to represent him and wanted to proceed pro se. Defendant had also advised defense counsel of several witnesses defendant believed were necessary that counsel had not heard about previously. The court asked defendant how he wanted to proceed.\nDefendant informed the trial court that he had filed two motions two weeks earlier. The trial judge stated she did not have any file-stamped copies of any motions. Defendant explained to the court that he filed a \u201cmotion to withdraw counsel and go pro se\u201d and a motion for production of medical records he had been trying to obtain. Defendant believed the documents would show that he was on crisis watch and was suffering injuries and could also substantiate his mental-health records, \u201cwhat I suffer from and why I was doing the things I was doing.\u201d\nThe following exchange occurred between the trial court and defendant:\n\u201cTHE COURT: Well, let\u2019s first deal with your request that you be able to represent yourself. I do not have a written motion filed so the most I can take up would be a motion that you are making on your behalf today. Why is it that you now want to represent yourself?\nTHE DEFENDANT: Well, the thing is, I mean, I don\u2019t know. The reason why I want to represent myself [is] I feel I can do better to address my issues because I\u2019ve given significant times, you know to, to, to my [c]ounsel ***; and, and you even gave him almost what, three months to obtain certain, talk to witnesses; I talked to one of the witnesses the other day, Monday. He says no, nobody came [and] talked to him.\nTHE COURT: Well, back in March you had requested a different attorney; and that request was denied. There was never any other issue raised until today. Now here we are ready to start a jury trial, and you are telling me you want to represent yourself.\nIt\u2019s a little too late to let you represent yourself today. Your request is not made on a timely basis. There may be strategy decisions that [defense counsel] has made that is part of his job as the public defender; but I cannot, I\u2019m not going to allow you on the day of trial to all of sudden represent yourself. So your request to do that is denied.\u201d\nDefendant asked about other motions he brought \u201cover here to file.\u201d The trial court refused to consider them because defendant was represented by counsel. Defendant again complained about counsel, arguing his counsel had a conflict of interest because defendant was \u201cbeing represented by somebody appointed by the State.\u201d When the court reminded defendant that he had asked for a different appointment and that request had been denied, defendant stated, \u201cOkay. And I\u2019m requesting to go pro se.\u201d The court responded:\n\u201cI\u2019m telling you on the day of trial I am not going to entertain a pro se request. It\u2019s too late. You should have made it a lot sooner. We were in court on October 15th. Nothing was said on that date. We were in court October 23rd.\u201d\n(The record is unclear as to what occurred on October 23, 2008.)\nDefendant continued to complain. The trial court asked defendant if he wanted to stay in the courtroom for the trial. Defendant indicated he did not. The court warned defendant that if he was argumentative and disruptive, he would not be allowed to stay in the courtroom. The court reminded defendant he had an attorney to assist him, and defendant stated, \u201cI don\u2019t want him.\u201d The court responded, \u201cI am not going to allow him to represent himself on the day of trial. That\u2019s a delay tactic; and it\u2019s, he\u2019s had plenty of opportunities.\u201d\nDefense counsel then asked for the opportunity to explain, for the record, what happened in the case from his view. Defense counsel explained that when he met with defendant, defendant first indicated he was not in the cell where the incident occurred. The court allowed defense counsel to hire a private investigator to examine that claim. Once defense counsel received the appropriate records, it appeared defendant had been in that cell. Defendant next indicated his mental-health records should be reviewed. Counsel examined hundreds of pages of those records. Based on those records, counsel decided not to request a formal psychiatric evaluation as to defendant\u2019s sanity, although counsel noted defendant \u201chad problems.\u201d After discussing that with defendant, defendant next asked counsel to obtain not his mental-health records but his medical records. Defense counsel attempted to do so, but DOC sent more psychiatric records. Counsel also informed the court that in terms of the other witnesses defendant wanted, today was the first day he heard that. Defense counsel did not have any witnesses to call at trial.\nThe trial court noted the case had been pending for over one year. The court granted defense counsel numerous continuances to gather additional information and a private investigator was hired. The court refused to continue the trial to allow defense counsel time to talk to the witnesses defendant brought to his attention the day of trial.\nDefendant attempted to interrupt the trial court. When the court advised defendant it was not his turn to talk, defendant responded:\n\u201cCome on. Let\u2019s get out of here, man. I\u2019m not going to sit up here and put up with this lady\u2019s bullshit. Let\u2019s go. Come on. Let\u2019s get out of here, man. I don\u2019t give a fuck about her man. Get me out of this courtroom.\u201d\nThe court directed that defendant be removed from the courtroom and that the trial would proceed in his absence. Defendant responded, \u201cThis woman\u2019s driving me fucking nuts.\u201d The court later noted on the record that the correctional officers from DOC informed her defendant was about to explode in the jury room, and defendant was returned to prison.\nThe trial proceeded in defendant\u2019s absence. The State presented evidence that defendant threw a substance that smelled and looked like feces on a correctional officer and two nurses who were trying to deliver medication to defendant in his cell. Defense counsel cross-examined the State\u2019s witnesses but presented no evidence. The jury found defendant guilty of aggravated battery.\nDefense counsel filed a posttrial motion asserting, among other things, that defendant was entitled to a new trial because the trial court improperly denied defendant\u2019s motion to proceed to trial pro se.\nOn February 11, 2009, the trial court denied the posttrial motion. The court noted the issue of defendant proceeding pro se was not raised until the day of trial. Following the sentencing hearing, the court sentenced defendant to five years\u2019 imprisonment.\nThe record does contain a pro se motion to withdraw counsel and \u201c[g]o \\p]ro [s]e.\u201d In the motion, defendant complained that defense counsel did not write defendant in a timely manner of \u201cget what [defendant] has request for [sic].\u201d Defendant sought to proceed pro se or be appointed new counsel other than the public defender.\nThe motion was entered on the handwritten docket sheet immediately after the November 12, 2008, jury trial docket entry. In the record itself, the motion follows a November 13, 2008, order directing DOC to provide certain information to the court-services department for preparation of the presentence investigation report.\nThe motion to withdraw counsel and proceed pro se is, however, file-stamped October 31, 2008. The certificate of service provides:\n\u201c[T]hat on the Oct. 29.08 2008 [sic], [defendant] gave the following motion to [t]his Q]udge and copy [sic] State[\u2019s] Attorney of Livingston County on the above day to be heard by this [c]ourt.\u201d\nOn February 19, 2009, defendant filed his notice of appeal.\nII. ANALYSIS\nDefendant argues the trial court abused its discretion when it denied him the right to self-representation. \u201cOn review, the trial court\u2019s decision on a defendant\u2019s election to represent himself will be reversed only if the court abused its discretion.\u201d People v. Rohlfs, 368 Ill. App. 3d 540, 545, 858 N.E.2d 616, 621 (2006); but see People v. Bowman, 40 Ill. 2d 116, 123, 239 N.E.2d 433, 438 (1968) (\u201cIt has been found to be reversible error to refuse a criminal defendant\u2019s timely request for self-representation\u201d).\nDefendant asserts he made a clear and unequivocal request to represent himself but his request was improperly summarily denied by the trial court. Defendant argues the court should have admonished defendant in accordance with Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)). Defendant further argues his request was not untimely because he filed it two weeks before trial and it was not accompanied by a request for additional time to prepare.\nA defendant has a right to self-representation in criminal trials under both the United States and Illinois Constitutions. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a78; Faretta v. California, 422 U.S. 806, 832, 45 L. Ed. 2d 562, 579-80, 95 S. Ct. 2525, 2539-40 (1975); People v. Burton, 184 Ill. 2d 1, 21, 703 N.E.2d 49, 59 (1998). The right is \u201cnot absolute and may be forfeited if the defendant engages in serious and obstructionist misconduct, or if he cannot make a knowing and intelligent waiver of counsel.\u201d Rohlfs, 368 Ill. App. 3d at 545, 858 N.E.2d at 621.\nFor a defendant to invoke the right of self-representation, he must knowingly and intelligently relinquish the right to counsel, and the waiver of counsel must be clear and unequivocal, not ambiguous. Burton, 184 Ill. 2d at 21, 703 N.E.2d at 59. A defendant does not exercise his right of self-representation unless he \u201c \u2018articulately and unmistakably demands to proceed pro se.\u2019\u2019 \u201d Burton, 184 Ill. 2d at 22, 703 N.E.2d at 59, quoting United States v. Weisz, 718 F.2d 413, 426 (D.C. Cir. 1983). \u201cCourts must \u2018indulge in every reasonable presumption against waiver\u2019 of the right to counsel.\u201d Burton, 184 Ill. 2d at 23, 703 N.E.2d at 60, quoting Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 440, 97 S. Ct. 1232, 1242 (1977).\nIn this case, the trial court apparently did not have defendant\u2019s written motion to proceed pro se at the commencement of trial. As noted, the document is file-stamped October 31, 2008. However, the document physically appears in the record on appeal after a November 13, 2008, document and appears on the handwritten docket sheet after the docket entry for the jury trial.\nNonetheless, even assuming the document was actually filed on October 31, 2008, approximately two weeks before trial, the motion did not contain an unequivocal assertion that defendant wanted to proceed pro se. In the body of the motion, defendant asked to proceed pro se or to receive new counsel other than the public defender. Given the language in defendant\u2019s motion, defendant\u2019s earlier request to obtain new counsel, and the denial of his last motion to continue, his request to proceed pro se was not unequivocal. See, e.g., Rohlfs, 368 Ill. App. 3d at 545, 858 N.E.2d at 621-22 (finding no unequivocal invocation of the right to proceed pro se where the defendant vacillated between wanting new counsel, wanting to represent himself, and ultimately abandoning his request to proceed to trial pro se; trial court did not abuse its discretion because it appeared the defendant was attempting to \u201cundermine his attorney\u2019s professional judgment and to obstruct the orderly prosecution\u201d of the case).\nMoreover, defendant\u2019s request to proceed pro se on the day of trial was not timely and was accompanied by an implicit motion for a continuance. A request made before trial commences is generally viewed as timely if it is not accompanied by a request for additional time to prepare. People v. Ward, 208 Ill. App. 3d 1073, 1084, 567 N.E.2d 642, 649 (1991), citing 2 W. LaFave & J. Israel, Criminal Procedure \u00a711.5(d), at 47-48 (1984); see also, e.g., People v. Woodruff, 85 Ill. App. 3d 654, 660, 406 N.E.2d 1155, 1160 (1980) (noting that the request to proceed pro se must be timely made; \u201c[a] defendant cannot await the eve of trial and then, hoping for a continuance, announce that he has decided to rely upon his skills rather than counsel\u2019s in presenting his defense\u201d); United States v. Johnson, 223 F.3d 665, 668 (7th Cir. 2000) (a motion to proceed pro se filed before the jury is empaneled is timely \u201cunless made for the purpose of delaying or disrupting the trial\u201d).\nIn this case, defendant orally sought to proceed pro se immediately prior to the commencement of trial but also clearly wanted additional time to prepare. Defendant complained that he wanted to procure additional documents and call witnesses who were not present the day of trial. The trial court concluded that defendant\u2019s attempt to proceed pro se was a delay tactic. We agree. On the facts of this case, the court did not abuse its discretion by denying defendant\u2019s untimely request, the day of trial, to represent himself. See Ward, 208 Ill. App. 3d at 1084, 567 N.E.2d at 649 (a trial court may deny a request to proceed pro se when the request comes \u201cso late in the proceedings that to grant it would be disruptive of the orderly schedule of proceedings\u201d); Burton, 184 Ill. 2d at 24, 703 N.E.2d at 60 (noting many courts have held a defendant\u2019s request is untimely when made just before the commencement of trial).\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment. As part of our judgment, we grant the State\u2019s request that defendant be assessed $50 as costs for this appeal.\nAffirmed.\nTURNER and STEIGMANN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE MYERSCOUGH" } ], "attorneys": [ "Michael J. Pelletier, Gary R. Peterson, and Janieen R. Tarrance, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas J. Brown, State\u2019s Attorney, of Pontiac (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASHOOR RASHO, Defendant-Appellant.\nFourth District\nNo. 4\u201409\u20140104\nOpinion filed March 23, 2010.\nMichael J. Pelletier, Gary R. Peterson, and Janieen R. Tarrance, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Brown, State\u2019s Attorney, of Pontiac (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1035-01", "first_page_order": 1051, "last_page_order": 1059 }