good morning your honors may it please the court my name is richard whitney representing the defendant appellant monte engelhart in this matter in this appeal i am asking this court to reverse mr engelharts conviction and remand this clause for new proceedings based on one issue the trial courts one sentence denied mrengelharts clear and unequivocal invocation of his sixth amendment right to represent himself without complying with rule four zero one without conducting any other inquiry and without any explanation the entire exchange occurring prior to the commencement of trial consisted of mr engelhart stating your honor i would like to represent myself and the court responding that will be denied under our sixth amendment jurisprudence the court's duty was to make a sufficient inquiry to determine whether mr engelart's request to represent himself was freely knowingly and intelligently made and if it was to grant that request since it oddly failed to do so and since there was no other basis in the record for finding that mr engelharts request was not freely knowingly and intelligently made the judgment conviction must be reversed counsel at what stage did the defendant make his request at the pretrial hearing on the day of trial but significantly and notably before the commencement of the four id and the reason your honor why that is important is because one of the two arguments that the state has made in this appeal for arguing that's one of the narrow limitations to the sixth amendment right of self representation applies was because it came too late because it came on the on the eve of trial however the very case cited and relied upon the state people be burdened by our illinois supreme court simply made the observation a number of courts have held vinnie defense request and time where it's made just before the commencement of trial however in the numerous cases that the burton court cited most of them were done by federal courts of appeal every single one of those cases held the dividing line between what just before means is if it occurs after the board years begun or after the jury is in panel mr engelharts requests came before the warrant even began and accordingly under the very the very cases cited by our supreme court and burden we find that the first third fourth fifth seventh ninth and 11th federal courts of appeal all held that the dividing line is either the commencement of our idea or the impaneling of scoring and of the jury in this case mr engelharts request came before any of that occurred and accordingly following the very authority that authorities that were indirectly cited in burden we have to find that this request was in fact timely now there is also another exception where the court cited one the third court cited illinois veld court case where the court held the dictor or stated in dicta that the defendant cannot wait until the eve of trial and holding for a continuance announced it is decided to rely upon his skills rather than counsels but notably in this case there was no request for continuance there was no indication implication insinuation or anything of the kind indicating that mr engelhart was doing this for purposes of trying to delay the trial and even if there was a suspicion that that might be the case all the court had to do was enquire or say well mr engelehart we'll talk about this but i'm telling you right now we're not going to do it this is for a continuance the court didn't do any of that there was no inquiry made there was no hint that this was for purposes of delay therefore blew off in the cases that you know that the whole that if it's an improper delay that might be a reason to to deny the request clearly doesn't apply here the court made no inquiry whatsoever just said that will be denied so accordingly we cannot the state cannot take refuge and regrets or other cases and it's a matter of fact in in our reply brief i believe i cited the first district case two thousand and sixteen cases of people b hunt where the the sister pell court held that a request to proceed pro se which is not accompanied by a request for additional time to prepare should generally be viewed as fondly as long as it may be for a trial and again this did occur before trial before the commencement of the ordeal the only other grounds that we stayed relies upon and trying to argue the one of the very narrow restrictions on the sixth amendment right to selfrepresentation might apply is the state of dance was an argument that mr engelhart had been disruptive throughout the pretrial proceedings and therefore it comes with an exception for obstructionist conduct however as the roots in case out of the fourth district cited by both parties what was clear about this is a very narrow exception and it only applies to a defendant who engages enquote serious and obstructionist misconduct unquote and as i went through the reply brief and looked at each of these incidents cited by the state we're not even remotely close to that here what we had in this case basically was a client who was annoyed and perplexed by his attorney and he did express that on on several occasions notably in in three of the occasions cited by the state the exchange between mr engelhart and court began with may i address the court please or on one case it was i would like to respectfully address the court how was that obstructionist conduct that does not even remotely come close to obstructionist misconduct the only thing that even remotely is in the same ballpark was one time at apretrial hearing he made a sarcastic comment that there was a kangaroo court going on that's it he didn't obstruct anything as a matter of fact if you look at the record of the trial itself he behaved himself admirably he did not interrupt the proceedings he didn't cause a fuss he didn't obstruct anything what we have here is a defendant irritated with his attorney he expressed it on a few occasions he did have a lot of questions to the court but he politely asked the court to try and explain things to him none of that rises to the level of serious and obstructionist misconduct which i studied a case in the out of the ninth federal circuit in the reply brief that what that's really referring to is uncontrollable and disruptive behavior in the courtroom again we don't we don't see that here and it's a matter of fact a lot of the exchanges between mrengelhart and his attorney were in the context of the attorney trying to withdraw from representing him clearly these two people did not get along and and it it culminated in the requests made by mr engelhart on one of the occasions cited by the state it was the attorney that interrupted mr engelhart in another occasion he actually corrected his attorney because she misstated the fact about his prior record these are the kinds of things that happened here it does not watch the level of serious and obstructionist misconduct on the supreme court and people the baez which i think is one of the the keystone cases here was very clear that once a clear and unequivocal request is made to represent himself and you can't get much more clear and unequivocal than your honor i would like to represent myself and if the decision is freely knowingly and intelligently made which the court here did not even ask but if it was then there was no reason to suppose otherwise here it must be accepted the three categories of a very narrow restrictions on that wide and none of them apply here the record shows that as we are reading the briefs accordingly on behalf of mr engelharti respectfully request that the judgment of conviction be reversed in this case remanded so that mr engelhart's sixth amendment right to represent himself will be respected thank you your honor thank you council can it please the court good morning your honorscouncil my name is erin wilson legler and i appear on behalf of the state the score should affirm defendant's conviction because his request to proceed pro se was untimely as it was made minutes before the start of our deere because the request was untimely it was within the trial court's discretion to grant or deny the request as per the pry brief defendant accuses the state of misrepresenting the supreme court's decision in people versus burden in burden the supreme court held and i quote from page twenty four of the opinionthe timing of the request is also significant a number of courts have held that a defendant's request is untimely whereas where it is made just before the commencement of trial after trial begins or after meaningful proceedings have begun once such proceedings have begun the trial judge has discretion to deny defendant's request to represent himself the supreme court went on to conclude that the defendant's request to proceed pro se there was not clear or unequivocal but it also noticed noted that the request was made untimely because it was made just prior to the defendants sentencing in that case prior to sentencing in that case council the opposing council said that all the cases lineup say the dividing lines for dear if you make the request prior to that then it was time your honor those cases are federal circuit court cases whereas we're bound by the direct language that our supreme court stated and our supreme court in burdens stated just before the commencement of trial that would obviously include the beginning of the proceeding in which for deere is to be conducted and that is exactly when mr englehart made his request in this case the parties had appeared in court to start for a year and before they brought the potential jurors in this exchange occurred and because excuse me it's the state's position that that particular timing falls directly within our supreme court's language just before the commencement of trial consequently the decision to grant or deny defendant's requests was a matter within the court's discretion and to that end prior two defendant's request to proceed pro se the state had informed the trial court that the defendant had a pattern of dispensing with attorney after attorney to delay court proceedings how many attorneys did he go through in this particular case he only had one but he also had another case proceeding in the trial court and it was in that case that the state was referring to the defendant's pattern of delaying proceedings by going between different attorneys defendant had also been unruly and uncooperative at various points throughout these proceedings but to be clear the state is not suggesting that the request to deny is validated by the obstructionist conduct exception that was noted in woodriff and woodson as the defendant has indicated instead to see is merely pointing out defendant's conduct to contextualize the trial courts the decision when it was exercising its discretion as it was faced with an untimely request to proceed pro se and so excuse me trial towards exercise discretion that did not employ your honor if the request to receive is untimely and the decision is therefore within the trial court's discretion the trial court is not under an obligation to conduct those inquiries i realized that when we review an exercise of discretion we have to read we necessity reviewed those factors in the background the underlying factors in the courts determining that it can exercise its discretion and then exercise so basically to rephrase what i've asked did the trial courts on inquiry as to the reasons or the ability or anything back in any way the actual size of discretion as far as the underlying basis on which we need to review no your honor it did not and that is because the request was untimely had their requests been timely the trial court would have been under an obligation to conduct those inquiries and determine whether the request was clear or unequivocal but because the request was untimely the trial court was not under an obligation to conduct those inquiries as illustrated by the facts in burten instead it was within the trial court's decision to look at the circumstances and understand the context and determine whether or not the request should be granted or denied and given the circumstances before the court at that time wherein he was aware that the defendant had this pattern in his other case and the defendant had been very uncooperative with his counsel and had interrupted the proceeding sometimes civilly sometimes not civilly with those circumstances before the trial court the trial court properly exercises this discretion and required counsel to continue representation therefore the request to deny was not an abusive discretion and if your honor's do not have further questions the state would respectfully ask that this court affirm defendant's conviction just briefly arrives three points one i fail to see any relevance to any prior pattern in another case of mr engelhart request allegedly requesting different attorneys that's not what he was requesting here yes it would have been a concern if if he had said yeah i want to discharge my attorney so that i can get another one thereby fomenting another delay but that was not the case here he said i don't want to represent myself and with no insinuation that he wanted any delay they were there ready for trial apparently he was ready for trial at least in the absence of any inquiry we can't assume otherwise secondly again the the illinois supreme court holding in burten was based on its conclusion that the defendant did not clearly and unequivocally invoke his right to represent himself completely different issue from what we have here there's no question that mr engelhart did that here so it was a bask in dicta where the supreme court maybe statement and again the focal is a number of courts have held that a defendant's request is untimely where discourse made just before the commencement of trial unquote and it was in that context that it cited all of these cases saying that just before means after warder so again the very source relied upon by the state does not support the conclusion of wants this court to draw it supports the conclusion that i'm asking this court to draw yes it wouldn't have been better if it had been made a few weeks before force but it was still timely under the very array of case law cited favorably by the illinois supreme court in burten for these additional reasons we respectfully ask that mr engelharts conviction be reversed thank you for the timing of this request before here daniel jury panel the legitimate apart court's consideration in the exercise discretion well i would say your honor given the importance and the magnitude of the sixth amendment right which as the court in the lego case all also by the illinois supreme court said if the decision is freely knowing and told you it made it must be accepted out of the respect for the individual which is the lifeblood of the law i would say that that it's at least implied by burten that if it comes before gardere it still has to be respected absent some other consideration that might you know give the court a reason to deny the request but since none of those other factors are present and since there was no request for a continuance or even a hint of that then if for these reasons i believe that it would have to come as an abuse of discretion to simply summarily deny particularly with no input and that's the other part of our argument here on this appeal is there is a duty under rule four zero one eight and make this inquiry which the court failed to do granted almost all the case law comes in cases in which the defendant was granted the right to represent himself and you know that had buyer's remorse so to speak and and so on it is a little unusual for us to involve it here but clearly if the court has a duty to inquire before accepting the request implicitly must have a corelative duty to make the or before denying the request unless there is some other reason why a serious instruction that's misconduct to denial again that's not that's not present here i would ask on the basis of the numerous federal authorities cited in burden that that this court find that the court abused its discretion in denying the request thank you your honor we appreciate briefs and arguments counseling take the case on her advisement