No. 2--00--0417

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Du Page County.

	)

	Plaintiff-Appellee,	)

	)

v.	)	No. 99--CF--207

	)

DARROL K. HOPE,	)	Honorable

	)	Kathryn E. Creswell,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BYRNE delivered the opinion of the court:

	Following a jury trial, defendant, Darrol K. Hope, was

convicted of one count each of aggravated battery (720 ILCS 5/12--

4(b)(1) (West 2000)) and battery (720 ILCS 5/12--–--3(a) (West 2000)). 

The trial court sentenced him to six years' imprisonment for

aggravated battery and 364 days in jail for battery.  Defendant

appeals his convictions, arguing that (1) he was prejudiced when

the prosecutor mentioned during closing argument that defendant was

attempting to trick the jury by introducing a lesser-included

offense instruction, (2) the court erroneously denied defendant's

request to proceed pro se, and (3) the six-year sentence for aggravated battery violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  We affirm defendant's convictions, but we vacate his sentence for aggravated battery and

remand the cause for resentencing on that conviction.

FACTS

	Defendant was charged with the aggravated battery of his

sister, Vivian McDonald, and her husband, David McDonald. 

Assistant public defender Jameson Kunz was appointed to represent

defendant, and Kunz informed the court that Dr. Syed Ali had found

defendant unfit to stand trial.  The State then enlisted Dr. Lyle

Rossiter to examine defendant.  Defendant told Dr. Rossiter that he

would not speak with him until Kunz was removed from the case. 

Another assistant public defender accompanied Dr. Rossiter to

examine defendant, and the court subsequently scheduled a fitness

hearing.

	At the hearing, defendant again asked Kunz to withdraw because

he allegedly failed to contact several witnesses.  Kunz responded

that defendant would not disclose the names of the witnesses he

wished to call.  Dr. Rossiter testified that defendant was fit to

stand trial because defendant understood the charges against him,

the potential penalties if convicted, the nature of the court

proceedings, and the roles of the judge, prosecutor, and defense

counsel.  Dr. Rossiter also stated that defendant could recall the

events at issue and assist his attorney at trial.  Dr. Rossiter did

not believe that defendant was schizophrenic.

	Dr. Ali testified that defendant probably suffered from

paranoid schizophrenia.  Defendant had told Dr. Ali that

defendant's sister, Vivian, often played mind games with him and

read his mind in an effort to turn him into a "faggot."  A jury

found defendant fit to stand trial, and the court permitted Kunz to

withdraw from the case.

	Assistant public defender John Elias was appointed, and he

informed the court that defendant had complained that Elias had

needlessly delayed the case and had incorrectly changed defendant's

plea to "temporary insanity."  Elias stated that there was still a

legitimate doubt as to defendant's fitness and that defendant

wanted a new attorney.  Defendant announced that he wished to

represent himself and that he wanted to hire his own attorney.  The

court ruled that no changes to defendant's representation could

occur until his renewed unfitness claim was decided.  The court

subsequently accepted another expert's finding that defendant was

fit.

	Elias later stated that he wished to withdraw because

defendant would not communicate with him.  The court told defendant

that his only alternative was self-representation.  Defendant

responded that he could not read or write very well and that he did

not know the law.  The court stated, "Well, if you are telling me

you don't have any idea what you're doing, I am going to deny the

[public defender's] motion to withdraw."  Defendant was admonished

that his failure to cooperate with counsel would hinder his

defense.

	Assistant public defenders John Elias and Tara Howard

represented defendant at trial.   Defendant's sister, Vivian,

testified that she occasionally permitted defendant to sleep in her

home because he was homeless.  Defendant was allowed to enter the

home only after 9 p.m., but he could not enter the bedroom, and he

was to leave each morning before Vivian left for work.

	On January 29, 1999, the night of the incident, Vivian was

home with David and defendant.  Vivian and David left to buy

dinner, and when they returned, Vivian saw defendant walk out of

the bedroom.  Vivian and David watched a movie and ate in the

bedroom.  When David carried the dishes to the kitchen, Vivian

heard him ask defendant why he had been in the bedroom.  David and

defendant argued, and Vivian suggested to defendant that he might

have merely been sleepwalking.  Defendant grabbed Vivian's neck,

beat her, and bit her over her left eye.  As she broke free and ran

toward the front door, she saw defendant enter the kitchen and she

heard a drawer open.  Vivian tried to call the police but the phone

was broken.  David and defendant fought in the bathroom, and she

heard David say, "Why did you stick me with that knife?"  Vivian

called the police from a neighbor's home.

	David testified that he saw defendant choking and biting

Vivian.  David grabbed defendant and, as they fought, David was

forced into the bathroom.  Defendant stabbed David twice with a

knife and bit off part of his ear.  Shortly thereafter, the police

arrived and restrained defendant.

	Defendant testified that Vivian and David had argued for three

weeks before the incident.  During one of the arguments, defendant

saw Vivian retrieve a knife and David beat her head.  On the night

of the incident, defendant went to sleep on the couch, but David

woke him in the bedroom.  Defendant told Vivian that he did know

how he had arrived there, and the two began to argue.  When the

argument escalated, David struck defendant with a shiny object that

defendant believed was a gun.  Vivian and David struck defendant, and defendant grabbed a nearby knife and began swinging it.  David

and defendant wrestled in the bathroom, and David struck him with

a mirror before the police arrived.

	Carol Stream police officer Tom Eby testified that he saw

David strike defendant in the head with a silver object.  At the

time he was handcuffed, defendant was very agitated and attempted

to lunge at another officer.

	During closing argument, Assistant State's Attorney Alexander

argued that the jury should find defendant guilty of the aggravated

battery of David.  The trial court had previously granted

defendant's request to instruct the jury on the lesser-included

offense of battery, and Ms. Alexander told the jury that defendant

was the party who requested the instruction.  The following

colloquy occurred:

		"MS. ALEXANDER [Assistant State's Attorney]: You are

going to get an instruction, you are going to get three

verdict forms for this particular offense.  One, that the

defendant is guilty of aggravated battery.  There is also a

verdict form that says he's not guilty of aggravated battery. 

You are going to read another verdict form, that he's guilty

of battery.  Ladies and gentlemen, the defense has requested

this, and we're asking you not --

		MS. HOWARD [defense counsel]: Objection.

		THE COURT: Sustained.

		MS. ALEXANDER: We are asking you not to fall for the

compromise.  Don't call this horrific crime anything less than what it is.  It's aggravated battery.  It's not merely a

battery.  Find him guilty of aggravated battery."

	Defense counsel did not object to the prosecutor's statement

that the jury should not "fall for the compromise," and the jury

found defendant guilty of the aggravated battery of David. 

Defendant was also found guilty of the battery of Vivian.

	At the sentencing hearing, the State argued that several

aggravating factors found in section 5--5--3.2 of the Unified Code

of Corrections (Code) (730 ILCS 5/5--5--3.2 (West 2000)) supported

the imposition of a long, nonextended sentence under section 5--8--

1 of the Code (730 ILCS 5/5--8--1 (West 2000)).  Specifically, the

prosecutor argued that (1) defendant's conduct caused or threatened

serious harm, (2) defendant had a history of criminal activity, (3)

a long sentence was necessary to deter others, and (4) defendant

committed the felony of aggravated battery while serving probation

for a prior felony.  See 730 ILCS 5/5--5--3.2(a)(1), (a)(3),

(a)(7), (a)(12) (West 2000).  While arguing that defendant's

criminal history warranted a long prison term, the prosecutor

mentioned several of defendant's prior misdemeanor convictions, as

well as his 1991 aggravated battery conviction.  Defendant did not

challenge the statements as untrue.

	The trial court then sentenced defendant to a six-year

extended term for the aggravated battery of David.  The court noted

that it had considered the aggravating and mitigating factors, the

victim impact statements, defendant's psychiatric problems, and all

of his prior convictions.  The court did not expressly find that

defendant's 1991 aggravated battery conviction rendered him eligible for an extended prison term.  The court imposed a

concurrent 364-day jail sentence for the battery of Vivian and

recommended that defendant receive psychiatric treatment while

incarcerated.

ANALYSIS

	On appeal, defendant does not challenge the sufficiency of the

evidence.  Instead, he initially argues that he was denied his

right to self-representation.  At several stages of the

proceedings, defendant expressed his dissatisfaction with the

performance of defense counsel.  After defendant was twice found

fit for trial, the court found that defendant voluntarily and

intelligently waived his right to counsel.  However, defendant

subsequently asked the court to appoint someone to help him with

his case.  The following colloquy occurred:

		"THE COURT: Do you want [the public defender's office] to

represent you, or are you going to represent yourself?

		DEFENDANT: That's the problem.  I don't have any idea

about the law.  What I am saying, [assistant public defender

Elias] has caused me so many problems over the last year.

		THE COURT: All right.  Well, if you are telling me you

don't have any idea what you're doing, I am going to deny the

motion to withdraw. [The] January 31st [trial date] will

stand.

		You have to cooperate with your attorney.  The case is

going to go to trial on that day.  If you don't cooperate with

them, then their ability to represent you is going to be

hindered by that lack of information, okay?"

	Defendant asserts that the trial court should have granted

Elias's motion to withdraw and then appoint standby counsel.  It is

well settled that a defendant's waiver of counsel must be clear and

unequivocal.  People v. Burton, 184 Ill. 2d 1, 21 (1998).  When determining whether a waiver is unambiguous, a court should

consider the context of the proceedings and the circumstances of

each case.  Burton, 184 Ill. 2d at 22.  Even if a defendant indicates that he wishes to proceed pro se, he may later acquiesce in representation by counsel.  Burton, 184 Ill. 2d at 23.  Moreover, a defendant can waive his right to self-representation by 

subsequent conduct indicating that he is vacillating or has

abandoned his request completely.  People v. Meeks, 249 Ill. App. 3d 152, 170 (1993).  A trial court's decision on the issue should

not be reversed absent an abuse of discretion.  People v. Fritz, 225 Ill. App. 3d 624, 626-27 (1992).

	Defendant asked the court to permit assistant public defender

Elias to withdraw.  However, defendant subsequently requested

standby counsel because he did not understand the law.  Defendant

stated that he could not read or write very well or afford an

attorney.  Defendant concedes on appeal that he did not have a

right to standby counsel.  See People v. Redd, 173 Ill. 2d 1, 38 (1996) (a trial court has broad discretion to appoint counsel for

advisory or other limited purposes and to determine the extent of

standby counsel's involvement).  We conclude that his repeated

complaints about appointed counsel amounted to an ongoing request

for a substitution of counsel rather than an assertion of his right

to proceed pro se.  In fact, the court twice asked defendant whether he wished to proceed without counsel, and each time

defendant responded that he merely wanted Elias's representation to

end.  Defendant's indication that he wished to proceed pro se was ambiguous, and he acquiesced in Elias's representation at trial. 

Therefore, we conclude that the court did not abuse its discretion

when it denied Elias's motion to withdraw.  See Fritz, 225 Ill. App. 3d at 626-27.

	Defendant next argues that he was denied a fair trial when the

prosecutor mentioned during the closing argument that defendant was

relying on the lesser-included offense instruction to limit his

criminal liability.  Defendant contends that the prosecutor's

statements implied that defendant's introduction of the instruction

was a fraudulent use of trial strategy.

	A trial court's decision on the propriety of closing argument

should not be reversed on appeal unless the court abused its

discretion.  People v. Buss, 187 Ill. 2d 144, 244 (1999).  When the prosecutor's disregard for the bounds of proper argument is

flagrant and purposeful, the only logical conclusion is that the

comments were made for the sole purpose of prejudicing the

defendant.  People v. Moya, 175 Ill. App. 3d 22, 24-25 (1988).  Defendant contends that the prosecutor knew or should have known

that it was improper to inform the jury that defense counsel had

requested the lesser-included offense instruction, and, therefore,

she made the objectionable statement for the sole purpose of

prejudicing defendant.  We disagree.  The record reveals that the

prosecutor's statement was inadvertent and isolated.

	Every defendant has the right to a trial free from improper

prejudicial comments by the prosecutor.  However, the prosecutor is

allowed a great deal of latitude during closing arguments.  People v. Pasch, 152 Ill. 2d 133, 184 (1992).  Although the prosecutor's remarks may sometimes exceed the bounds of proper comment, the

verdict must not be disturbed on appeal unless the remarks

substantially prejudiced the accused so that the verdict would have

been different absent the comments.  Pasch, 152 Ill. 2d at 185.  Here, there was overwhelming evidence of defendant's guilt.  David

testified that defendant stabbed him twice with a knife, and David

was treated for stab wounds.  Vivian testified that she heard

defendant retrieve something from a kitchen drawer before David

shouted, "[W]hy did you [defendant] stick me with that knife?"  The

trial court sustained defense counsel's objection to the admittedly

improper remark, and we conclude that the comment did not affect

the jury's verdict.

	Defendant also claims that the prosecutor's statement

"insinuated that defendant was conceding that he had committed a

battery."  We disagree.  The prosecutor expressly argued that

defendant did not commit battery.  She asserted that defendant's conduct warranted an aggravated battery conviction instead. 

Therefore, we conclude that the trial court did not abuse its

discretion when it permitted the prosecutor to argue that the jury

should not "fall for the compromise" of finding defendant guilty of 

mere battery.

	Finally, defendant contends that his six-year sentence for

aggravated battery violates Apprendi.  We agree.  At the sentencing hearing, the trial court noted that it had considered the

aggravating and mitigating factors of sections 5--5--3.2 and 5--5--

3.1 of the Code.  The prosecutor specifically argued that

defendant's 1991 aggravated battery conviction warranted a long,

nonextended prison term under section 5--5--3.2(3), and the court did not expressly find that the conviction authorized an extended

term.

	In Apprendi, the Supreme Court invalidated a New Jersey hate crime statute that increased the nonextended 5- to 10-year

sentencing range for possession of a firearm for an unlawful

purpose to an extended 10- to 20-year term if the trial judge found

by a preponderance of the evidence that the defendant, when

committing the offense for which he was being sentenced, had acted

with a racially biased purpose.  Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.  The Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." 

(Emphasis added.)  Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

	This case is similar to People v. Chanthaloth, 318 Ill. App. 3d 806 (2001).  In that case, a jury found the defendant guilty of

home invasion and residential burglary, and the trial court imposed

a 40-year extended term of imprisonment and a consecutive 4-year

nonextended term of imprisonment for the respective offenses.  The

trial court found that the following aggravating factors rendered

the defendant eligible for an extended sentence for home invasion:  (1) the crime was exceptionally brutal and heinous (see 730 ILCS

5/5--5--3.2(b)(2) (West 1998)), (2) the victim was over the age of

60 (see 730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)), and (3) the

victim was physically handicapped at the time of the offense (see

730 ILCS 5/5--5--3.2(b)(4)(iii) (West 1998)).  Chanthaloth, 318 Ill. App. 3d at 814.  On appeal, we vacated the defendant's residential burglary conviction and sentence (Chanthaloth, 318 Ill. App. 3d at 814) and also held that the extended sentence for home

invasion violated Apprendi (Chanthaloth, 318 Ill. App. 3d at 818).  We noted that the State had presented evidence that the victim was

over the age of 60, and that factor was not challenged by the

defense.  Therefore, we concluded, the age of the victim was an

element of the aggravating offense that was submitted to a jury and

proved beyond a reasonable doubt in compliance with Apprendi.  We nevertheless vacated the defendant's extended sentence because it

appeared that the trial court had considered not only the victim's

age but also the victim's disability and the nature of the crime. 

Chanthaloth, 318 Ill. App. 3d at 818.  Under Chanthaloth, even if a finding of one aggravating factor complies with Apprendi, an extended sentence should nevertheless be vacated and the defendant

resentenced when (1) the record reflects that the trial court found

other aggravating factors that should have been proved beyond a

reasonable doubt and submitted to a jury and (2) the court

erroneously considered those factors when imposing the sentence. 

See Chanthaloth, 318 Ill. App. 3d at 818.

	Here, defendant was convicted of aggravated battery, which is

a Class 3 felony ordinarily punishable by a nonextended term of two to five years' imprisonment.  See 720 ILCS 5/12--4(e) (West 2000);

730 ILCS 5/5--8--1(a)(6) (West 2000).  Defendant was eligible for

an extended term of 5 to 10 years' imprisonment because he had been

convicted of aggravated battery within 10 years of his prior

aggravated battery conviction.  See 730 ILCS 5/5--5--3.2(b)(1), 5--

8--2(a)(5) (West 2000)).  The trial court imposed a six-year

extended term of imprisonment, and Apprendi did not require the jury to find beyond a reasonable doubt that defendant had a prior

conviction of aggravated battery.  However, the record does not

reveal whether the trial court correctly relied upon only the 1991 aggravated battery conviction when extending defendant's sentence

beyond the maximum.  If the court, in fact, found that other

aggravating factors under section 5--5--3.2 warranted the

imposition of an extended sentence, the sentence would violate

Apprendi because those factors were not submitted to the jury and proved beyond a reasonable doubt.  Because we cannot determine

whether the court considered defendant's 1991 conviction only when

imposing the extended term, we vacate defendant's sentence for

aggravated battery and remand the cause for resentencing.  See

Chanthaloth, 318 Ill. App. 3d at 818.  If the trial court elects to impose an extended sentence on remand, Chanthaloth requires the court to expressly note that it is relying only on the prior Class

3 felony conviction under section 5--5--3.2(b)(1) of the Code.  See

Chanthaloth, 318 Ill. App. 3d at 818

	For these reasons, defendant's convictions of aggravated

battery and battery are affirmed, but his sentence for aggravated battery is vacated, and the cause is remanded for resentencing on

that conviction.

	Affirmed in part and vacated in part; cause remanded with

directions.

	GROMETER, J., concurs.

	PRESIDING JUSTICE HUTCHINSON, dissenting:

	My dissent in this case reaches only the Apprendi sentencing issue.  As author of People v. Chanthaloth, 318 Ill. App. 3d 806 (2001), I do not understand that case to mandate the remand of this

matter for resentencing.

	The Chanthaloth case was an early disposition in the Apprendi series of cases.  While it remains a valid analysis of the law of

sentencing after the Apprendi decision, later decisions by the supreme court, this appellate district, and the other appellate

court districts across the state have sharpened and clarified the

Illinois sentencing law as it relates to Apprendi challenges.  See People v. Ford, No. 90083 (October 18, 2001); People v. Rivera, No. 2--98--1662 (December 5, 2001); People v. Reed, 324 Ill. App. 3d 671 (2001); People v. Vida, 323 Ill. App. 3d 554 (2001); People v. Nita, 319 Ill. App. 3d 949 (2001).  Very recently, the First District found that the trial court properly considered the age of

the victim when imposing an extended- term sentence even though the

victim's age had not been submitted as a factor to the jury.  The

reviewing court determined that evidence of the victim's age had

been presented during the trial, was undisputed by the parties, and

did not require the trial court to weigh evidence or examine the defendant's mental state.  The reviewing court held that it was

harmless error.  People v. Blackwell, 1--99--4064, slip op. at __ ______ _  _

(September 18, 2001).

	Finally, the principle that a trial court need find only a

single statutory factor in aggravation to impose an extended

sentence has also recently been reinforced.  People v. Peacock, 324 Ill. App. 3d 749, 756-567 (2001).

	In this case, the trial court noted that it had considered

defendant's prior criminal history, which included a 1991

aggravated battery conviction, as well as other aggravating and

mitigating factors when sentencing defendant.  While I will concede

that the trial court did not expressly highlight this conviction or

indicate specific reliance on this conviction, the fact remains

that such a prior conviction exists.  More significantly, this

prior conviction is of aggravated battery, and the charge for which

defendant received an extended-term sentence is an aggravated

battery.

	Since the trial court need find only a single statutory factor

in aggravation to impose an extended term, and the use of the

defendant's prior criminal history is not prohibited by Apprendi (530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63), I

would allow the sentence to stand and affirm this case in its

entirety.