{ "id": 4306760, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRESE FISHER, Defendant-Appellant", "name_abbreviation": "People v. Fisher", "decision_date": "2011-03-08", "docket_number": "No. 4\u201409\u20140713", "first_page": "585", "last_page": "591", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 585" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "237 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3629512 ], "year": 2010, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/237/0001-01" ] }, { "cite": "465 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335001 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/465/0168-01" ] }, { "cite": "876 F.2d 1508", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10540670 ], "year": 1989, "pin_cites": [ { "page": "1512", "parenthetical": "\"To avoid a waiver of a previously-invoked right to self-representation, a defendant is not required continually to renew a request once it is conclusively denied ***.\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/876/1508-01" ] }, { "cite": "184 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926986 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "21" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0001-01" ] }, { "cite": "208 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2548979 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "1085" }, { "page": "1077-79" }, { "page": "1084" }, { "page": "1081-82" }, { "page": "1080, 1084" }, { "page": "1080" }, { "page": "1084" }, { "page": "1085" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/1073-01" ] }, { "cite": "395 Ill. App. 3d 996", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291464 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "1002-03" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/395/0996-01" ] }, { "cite": "401 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4301986 ], "year": 2010, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/401/0564-01" ] }, { "cite": "398 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4296647 ], "year": 2010, "pin_cites": [ { "page": "1040-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/398/1035-01" ] } ], "analysis": { "cardinality": 761, "char_count": 16330, "ocr_confidence": 0.786, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3660456652105972 }, "sha256": "165b67c5b46beba28497a7ab9f45e7c1d8481d200fe27736061aff3e21fb8727", "simhash": "1:df6e9e26525e99e5", "word_count": 2729 }, "last_updated": "2023-07-14T15:37:05.247121+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRESE FISHER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the judgment of the court, with opinion.\nPresiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.\nOPINION\nA jury found defendant, Tyrese Fisher, guilty of a criminal drug conspiracy (720 ILCS 570/405.1 (West 2008)), and the trial court sentenced him to imprisonment for 14 years. Defendant appeals on several grounds, only one of which is necessary for us to consider. We agree with defendant\u2019s argument that the trial court denied him his constitutional right to self-representation and thereby committed a structural error.\nIf a defendant makes a timely and unequivocal choice to proceed pro se in a criminal case and if, after admonitions pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), the trial court finds the choice to be knowing and intelligent, the court must honor the choice, regardless of how unwise the choice might be. The court in this case refused to allow defendant to represent himself, because the court perceived that he lacked sufficient legal expertise to do so. The choice, however, should have been defendant\u2019s, not the court\u2019s. Therefore, we reverse the trial court\u2019s judgment and remand this case for a new trial.\nI. BACKGROUND\nOn October 14, 2008, a grand jury returned an indictment charging defendant with four counts of unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2), (d)(i) (West 2008)), counts which the State nol-prossed. On February 11, 2009, a grand jury indicted defendant on a fifth count, which charged him with a criminal drug conspiracy (720 ILCS 570/405.1 (West 2008)). On October 31, 2008, the trial court appointed the public defender to represent him.\nOn December 5, 2008, defendant filed a pro se motion to dismiss the public defender and to allow him to represent himself, because, as the motion put it, \u201c[t]he defendants [sic] attorney [was] not appropriately handling the case in the way the defendant [was] pleased.\u201d More specifically, the motion made two complaints: (1) \u201c[t]he defendants [sic] attorney has not had any contact including mail, phone or personal visits to discuss changes or updates to the defendants [sic] case,\u201d and (2) \u201c[t]he defendant would like to file his own motion for dismissall [sic] based on written statements stating that he is not responsible of the charges mentioned in the indictment.\u201d The motion concluded: \u201cGiven all above, the defendants [sic] attorney should be dismissed and have the defendant represent himself.\u201d In a \u201cwhereof\u2019 clause, the motion requested the following relief: \u201cDefendant\u2019s attorney be dismissed and order defendant to appear in front of this court as pro se ad hoc.\u201d\nOn December 16, 2008, the trial court held a hearing on defendant\u2019s motion to discharge the assistant public defender and to represent himself. In the hearing, referring to defendant\u2019s statement that his attorney was \u201cnot appropriately handling the case in the way the defendant [was] pleased,\u201d the court asked defendant: \u201cSo tell me what it is that would please you.\u201d Defendant replied that his attorney had failed to comply with his request to file a motion for dismissal on the ground that Jerome Smith, rather than he, had committed the alleged offenses. Defendant told the court:\n\u201cI had mailed my attorney a written statement from Jerome Smith that he, basically, said what was done on that date of the events that took place, and I wanted her to put in a motion for dismissal because the surveillance from the tapes and everything shows Jerome Smith doin\u2019 these crimes. The CS [(confidential source)] that the State has shows him sayin\u2019 that Jerome Smith done these crimes, and I was telling her that I need a motion for dismissal, man, because I\u2019m not the one who done these crimes. I\u2019m being charged for a delivery that someone else has done. They doin\u2019 the same charges on my and that person.\u201d\nThus, defendant was under the impression that it was impossible for both him and Smith to incur criminal liability for the same deliveries of a controlled substance \u2014 deliveries which Smith alone physically accomplished. Even though defendant had requested his court-appointed attorney to file a motion for dismissal on the ground that Smith, rather than he, was the culprit, his attorney had failed to do so.\nThat was only part of the reason why defendant distrusted his attorney. He also suspected that she would do to him now what he perceived she had done to him in a previous case in which she was appointed to represent him: concentrate on convincing him to enter a negotiated plea of guilty instead of preparing a vigorous defense for trial. He felt that he was \u201cputting [his] life in the hands of someone\u201d who wanted to make a deal with the State in lieu of making a good-faith effort to defend him, using what he regarded as this dispositive evidence in his favor.\nThe trial court asked the prosecutor if he had \u201cany perspective about the Defendant\u2019s observations concerning the evidence in this case and what it purports to show.\u201d The prosecutor replied that this was \u201can accountability case\u201d and that \u201cthe co-Defendant\u201d had identified defendant as his supplier and had agreed to testify against him. As for the affidavit that defendant claimed was written by Smith, the prosecutor did not believe that Smith had written it, and he anticipated that Smith would deny writing it. Although the prosecutor thought the affidavit might be relevant for an attempted impeachment, the affidavit was not, in his opinion, \u201ca magic wand that [made] the charges disappear.\u201d\nDefendant insisted, however, that this was more than a written statement; it was a notarized affidavit. He told the court:\n\u201cTHE DEFENDANT: Your Honor, at the same statement that he\u2019s saying that I have, it was notarized by the Notary Public here in\u2014\nTHE COURT: Oh, my goodness, it was notarized!\nTHE DEFENDANT: Yes.\nTHE COURT: No kidding! Oh, that makes all the difference. I\u2019m sorry I\u2019m being a little sarcastic\u2014\nTHE DEFENDANT: No problem.\nTHE COURT: \u2014because I did want to hear a little bit about what the facts were since you were alleging them\u2014\nTHE DEFENDANT: Okay.\nTHE COURT: \u2014to be one way and I suspect that maybe there would be a different view of the facts from the State\u2019s Attorney\nTHE DEFENDANT: All right.\u201d\nThe trial court then explained to defendant that just because he had an affidavit presenting a version of the facts that differed from the State\u2019s version, it did not legally follow that the case should be dismissed. Instead, the very purpose of a jury trial would be to choose between the competing versions of what had happened.\nBecause of defendant\u2019s erroneous assumption that the affidavit would obviate a trial, the trial court had grave doubts about his ability to represent himself. The court told him:\n\u201cTHE COURT: But regardless of what the facts are\u2014\nTHE DEFENDANT: Um-hum.\nTHE COURT: \u2014the idea of filing a motion for dismissal tells me I\u2019m talking to somebody who doesn\u2019t know the law. I\u2019m talking to the Defendant here who\u2019s not a lawyer\u2014\nTHE DEFENDANT: Okay.\nTHE COURT: \u2014and doesn\u2019t understand the law.\nTHE DEFENDANT: All right.\nTHE COURT: Because you don\u2019t file a Motion to Dismiss in those circumstances. Any lawyer that would do that would be telling me they don\u2019t know the law, and they probably don\u2019t have a license to practice law, and they ought to be prosecuted for practicing law without a license, because it\u2019s \u2014 absolutely no provision of law permits me to dismiss the charges based upon what you say the facts are.\nTHE DEFENDANT: Okay.\nTHE COURT: The answer to your problem is you have got to have a trial.\nTHE DEFENDANT: Okay.\nTHE COURT: And at a trial, the jury will decide what facts to believe, your facts or his facts.\nTHE DEFENDANT: Okay.\nTHE COURT: So I understand that you distrust your attorney, but she gave you the right advice. She told you that you couldn\u2019t do that, and that she would not do that for you because it would show that she doesn\u2019t know the law; and the last thing in the world you want is a lawyer standing up on your behalf proving that she doesn\u2019t know the law.\nTHE DEFENDANT: All right.\nTHE COURT: And you wouldn\u2019t want her to do it, even though you want \u2014 even though you told her to do it, because it would make you both look stupid.\nTHE DEFENDANT: Okay.\nTHE COURT: Are you following me?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: I\u2019m going to deny your motion for dismissal of attorney, because, on the law, she\u2019s right, and you\u2019re wrong; and you\u2019re telling me, whether you like it or not\u2014\nTHE DEFENDANT: Um-hum.\nTHE COURT: \u2014that you need an attorney, so I\u2019m not going to let you represent yourself, and she\u2019s going to remain your attorney. It\u2019s up to her boss to decide what cases to assign to her.\nTHE DEFENDANT: Okay.\u201d\nConsequently, the trial court\u2019s stated reason for denying defendant\u2019s motion to represent himself was not that he was mentally incompetent or that his request for self-representation was unclear or equivocal. Rather, the stated reason was that defendant had evinced an ignorance of the technical rules of law and thus he clearly needed an attorney, regardless of whether he wanted one.\nII. ANALYSIS\nA. Mental Capacity, Not Legal Acumen\nWe ask whether the trial court abused its discretion in denying defendant\u2019s motion to represent himself. See People v. Rasho, 398 Ill. App. 3d 1035, 1040-41 (2010); People v. Shelton, 401 Ill. App. 3d 564, 574 (2010). This standard of review is deferential. Our mere disagreement with the court\u2019s decision would not make the decision an abuse of discretion. People v. Covington, 395 Ill. App. 3d 996, 1002-03 (2009). Rather, \u201cabuse of discretion\u201d is associated with such adjectives as \u201carbitrary\u201d and \u201cclearly illogical.\u201d Id. An abuse of discretion goes outside the range of reasonableness and disregards established principles of law, thereby causing a party substantial prejudice. Id. We conclude that the court\u2019s denial of defendant\u2019s motion to represent himself in this case was an abuse of discretion in that it conflicted with an established principle of law, namely, our holding in People v. Ward, 208 Ill. App. 3d 1073, 1085 (1991), that a defendant\u2019s constitutional right of self-representation \u201cmay not be thwarted by the trial court\u2019s opinion that [the] defendant\u2019s decision is ill-advised, unwise, or unsound, however correct that opinion may be.\u201d\nIn Ward, 208 Ill. App. 3d at 1077-79, the defendant had unequivocally requested to represent himself, but the trial court perceived, through questioning him, that he lacked the legal skills essential to self-representation, and therefore the court denied his request. On appeal, however, we explained that the purpose of entering into a colloquy with a defendant who wished to proceed pro se was not to gauge his ability to defend himself but, rather, to confirm that he had the capacity to make a knowing and intelligent waiver of his right to an attorney. Ward, 208 Ill. App. 3d at 1084.\nThis was not to say that it was inappropriate for the trial court to warn the defendant of the perils of self-representation and to try to impress upon him the advantages of having an attorney. In fact, by way of suggestion, we provided a list of warnings and information that it \u201cwould be desirable\u201d to communicate to the defendant, over and above the admonitions required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984). Ward, 208 Ill. App. 3d at 1081-82. Nonetheless, while the trial court was perfectly free, and even encouraged, to give this extra advice to the defendant, the trial court could not force the defendant to choose wisely. Unless the defendant had a mental disability that incapacitated him from understanding the content of Rule 401(a), the sixth amendment (U.S. Const., amend. VI) required the court to honor his choice to represent himself, even if the choice was in all likelihood a disastrous one for the defense. Ward, 208 Ill. App. 3d at 1080, 1084.\nB. An Unequivocal Request To Proceed Pro Se\nA waiver of counsel must be clear and unequivocal, not ambiguous. People v. Burton, 184 Ill. 2d 1, 21 (1998). The State argues that defendant was unclear and equivocal about his desire to represent himself. We disagree. In his motion, defendant stated: \u201cGiven all above, the defendants [szc] attorney should be dismissed and have the defendant represent himself,\u201d and he requested that \u201cDefendant\u2019s attorney be dismissed and order defendant to appear in front of this court as pro se ad hoc.\u201d This got the message across just fine.\nThe State tries to manufacture equivocation out of the deferential \u201cokays\u201d and \u201call rights\u201d with which defendant punctuated the trial court\u2019s remarks. Defendant said nothing, however, that could be reasonably interpreted as a withdrawal of his request to represent himself \u2014 and the very fact that, after these \u201cokays\u201d and \u201call rights,\u201d the trial court expressly denied his request to represent himself shows that the court did not understand the request to be withdrawn. We \u201cindulge in every reasonable presumption against waiver of the right to counsel,\u201d but the operative word here is \u201creasonable.\u201d (Internal quotation marks omitted.) Burton, 184 Ill. 2d at 23. By saying \u201cokay\u201d after the court denied his request, defendant did not acquiesce to representation by the assistant public defender. The ruling had to be \u201cokay,\u201d for the time being. See Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir. 1989) (\u201cTo avoid a waiver of a previously-invoked right to self-representation, a defendant is not required continually to renew a request once it is conclusively denied ***.\u201d).\nIt is true that defendant appeared to acquiesce to the trial court\u2019s argument that he was grossly ignorant of the law and therefore ill-qualified to represent himself, as evidenced by his idea of filing a motion for dismissal premised on Smith\u2019s affidavit. Nevertheless, defendant\u2019s apparent acquiescence on that point did not erase his unequivocal request to represent himself, a request which the court had before it in writing. Because a denial of the right of self-representation would have been a structural error, automatically requiring reversal (McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); People v. Auerett, 237 Ill. 2d 1, 13 (2010)), the court should have gone further by asking defendant outright if he still wanted to represent himself \u2014 thereby making it defendant\u2019s choice rather than the court\u2019s. The court could have phrased the question this way, for example: \u201cNow, Mr. Defendant, I have explained to you why representing yourself would be unwise. Nonetheless, that is your right if you still wish to do so. So, I need to ask you: Do you still wish to represent yourself in this case?\u201d Then, if the defendant answered yes, the court should have allowed him to represent himself, provided that he understood the admonitions in Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).\nIII. CONCLUSION\nWe have no doubt that the trial court was sincere in its effort to dissuade defendant from making a foolish choice, but \u201c[t]he right of a defendant to represent himself, when his choice is intelligently made, is as basic and fundamental as his right to be represented by counsel\u201d (internal quotation marks omitted) (Ward, 208 Ill. App. 3d at 1080), and the sixth amendment leaves a court no option but to honor that choice after admonishing him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), provided that the election of self-representation is not so late as to be disruptive (Ward, 208 Ill. App. 3d at 1084). Because the trial court in this case denied defendant his constitutional right to self-representation on the ground that the court viewed him as incapable of adequately representing himself, we reverse the conviction and remand this case for a new trial. See Ward, 208 Ill. App. 3d at 1085.\nReversed and remanded.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Michael J. Pelletier, Karen Munoz, Molly C. Dickason, and Molly A. Corrigan, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "William A. Yoder, State\u2019s Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and James C. Majors, 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. TYRESE FISHER, Defendant-Appellant.\nFourth District\nNo. 4\u201409\u20140713\nOpinion filed March 8, 2011.\nMichael J. Pelletier, Karen Munoz, Molly C. Dickason, and Molly A. Corrigan, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nWilliam A. Yoder, State\u2019s Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0585-01", "first_page_order": 601, "last_page_order": 607 }