## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Am es , 2012 IL App (4th) 110513

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ERRY L . AMES, J R., Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-11-0513

Filed October 31, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s ca s e was remanded for a new hearing on the revocation of
court supervision imposed following his g uilty plea to a charg e of driving under the influenc e of alcohol, since the trial court essentially forc ed defe ndant to repr esent him self at the hear ing r esulting in the r evocation of supervision by not continuing to offe r court-a ppointed counsel and by failing to admonish defe ndant about the wa i v er of counsel pursuant to Supreme Court Rule 401(a ).

Dec ision Under
Review Appea l from the Circuit C o urt of Menar d County
, No. 09-DT- 36; the Hon. Thomas J. Branna

n, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Allen H. An d re ws , all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

K e nn eth R. Ba

umga rten, State’s Attorney
, of Petersburg (Patr ic k D e lf in o , Robert J

. Bide rman, and Thomas R. Do d egge, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Appleton and Cook c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 In September 2009, the State char g ed defe ndant, J err y L

. Ames, J r., with dr iving unde r the influence of alcohol with a blood or brea th alcohol conce ntration of 0.08% or more (625 I L CS 5/11-501(a) (1) (West 2008)) (count I ) and driving under the influence of alcohol (DUI ) (625 I L CS 5/11-501(a) (2) (West 2008)) (count I I ). In Marc h 2010, defe ndant pleade d g uilty
to count I I
, and the trial court s en t en ced him to one y ear of supervision. In May 2011, the

cour t revoke d defe ndant’s supervision and rese ntence d him to 18 months’ probation and order ed him to serve 60 da y s in the county

jail. ¶ 2 Def

endant appea ls, arguing that t h e t ri al co u rt (1 ) did not proper ly admonish him pursuant to I llinois Supreme Court Rule 401(a) (ef f. J uly 1, 1984) befor e he repr esente d himself at t he Ma y 2 011 revoc ation hear ing and (2) improperly imposed a $500 DUI fine. Be cause we conclude that the court err ed by forc ing defe ndant to proce ed pro se , we reve rse and re mand for a

new r evocation hearing

.

¶ 3 I . BA CKGROUND ¶ 4 In September 2009, the State char g ed defe ndant wi t h dri v i n g u n d er the influence of alcohol with a blood or breath alcohol conce ntration of 0.08% or more (count I ) and DUI (count I I ). In October 2009, the t ri al co u rt appointed attorney Kevin Tippey to repr esent defe ndant. ¶ 5 In Marc h 2010, defe ndant pleade d g uilty to count I I
, the DUI char g e. In exchang e for his
g uilty plea, the State agree d to dismi ss count I . The trial c ourt later se ntence d defe ndant to
one y ear of supervision and ordered him to pay a $500 DUI assessment. As a condition of supervision, the cour

t also order ed him to commence alcohol tre atment within 60 day s. ¶ 6 In October 2010, the State filed a petition to revoke supervision, alleg ing that defe ndant (1) c ommitt ed a new DUI and (2) failed to commence alcohol treatment within 60 day s of

-2-the Marc h 2010 order

. In November 2010, the trial court ag ain appointed Tippey
, this time

to repre sent defe ndant on the State’s pe tition t o revoke

. ¶ 7 On Marc h 11, 2011, Tippey filed a m o t i o n t o wi t h d ra w, as s erting that Tippey and defe ndant “had a signific ant disag ree ment on how best to proce ed with the investigation and
court proce ss” and their rec ent “conf ere nce ended afte r a heate d discussio n i n wh i ch [defendant] fired [Tippey ] and [Tippey ] ag ree d that [hi s] repr esenta ti o n s h ould be terminated due to the t ox ic nature of t he dis cussion and the status of represe ntation due to alleg ations made by [defendant].” ¶ 8 On Marc h 15, 2011, the trial court conducte d a hear ing on Tippey ’s motion to withdraw. Def endant de nied t hat he had “fired” Tippey , explaining that he told Tippey he would talk
to the court and “d i s cu s s wh at’s been g oing on with [t he] case [,] which is absolutely nothing.” Tippey

responde d as follows:
“I tried to take [defendant’ s] ideas[,] which are not nece ssarily on the beate n path as far as a criminal defe nse for a DUI

. Resear ch them and g et back to him. When I tell him that I don’t think that’s how it’s go i n g t o wo rk
, how he desires it to work, he does not like that. I clea

rly reme mber him in a heate d moment tellin g m e I was fired and that I work for him. He doesn’t work for me and that I

would be fire d, Iwas fir ed. *** I like [defendant]. But things rea ched such a level [t hat this] has the ability to be a tox ic situation. I did tell h i m that [a relative passed awa y ]. That it’s tax season. That I was having trouble g etting hi m i n t o review a video that he wants to revie w, which I was g oing to do Saturday passed [ sic ], had a funer al. Due to the leng th of the video, the nature of it, I would need to have him come in afte r hours or on a Saturday to revie w it. I believe that probably led to part of the anxiety with [def endant] but like I said, I think things

rea ched a point whe re I would not fee l comforta ble repr esenting [hi m] and he probably doesn’t fe el comfor

table with my

repr esentation.” ¶ 9 When the trial court asked Tippey whether he believed that he could adequa tely repr esent defe ndant in light of the things that have transpire d, Tippey responde d, “It would be tough, judge .” ¶ 10 The State objec ted to the motion to withdraw, explaining as f ollows:
“Unf ortunately
, defe ndants don’t like the advice that their counsel g ive them

. Howeve r, their counsel spend [a] considera ble amount of time revie wing case s and base their prof essional opinion on the laws that apply to the facts of the pa

rticular c ase. *** Mr. Tippey did g ive [defendant] his profe ssional judgme nt and [defendant] does not like that.” ¶ 11 The prosec utor also pointed out that the matter was set for hear ing in the near future, and he was anxious to have t h e ca s e g o forwa rd. In response , defe ndant ag ain asser ted his unhappiness with Tippey ’s re prese ntation. ¶ 12 The trial court g rante d Tippey ’s motion to withdraw and appoint e d a tt o rney J udith L ozier
to repr esent defe ndant. Def endant responde d to that appointment by stating that L ozier had
repr esente d him befor e and “I have a conflict with her.” The court re af fi rm ed the appointment of L ozier despite defe ndant’s misgiving s, explaining to defe ndant that “it is not

uncommon fo r a cl i ent to may be disag ree with what their [ sic ] attorney does or does not

-3-rec ommend.”

¶ 13 Six wee ks later, on May 3, 2011, L ozier filed a motion to withdraw as counsel, asser ting that she had “met with [defendant] and [had] spoken to him on the phone sever al times and *** [had] not been able to communicate eff ectively with him nor have *** any meaning ful discussions reg arding his defe nse.” Fur ther, L ozie r alleg ed “def endant has never been
cooper ative with me nor ha s he bee n willing to listen to leg al advice from me.” ¶ 14 The trial court conducte d a hear ing on L ozier’s m o t i o n t o wi t h dra w at wh i ch s he explained the basis for the motion, as follows:
“I don’t think that [defendant] is interested in any leg al advice from me. I have tried
to talk to him sever al times about his case

. He argues with me. He quest i o n s an y thing that I have to say

. I don’t think that he rea lly –that there is any way that I could eff ectively

as s i s t i n his defe nse at this point. There fore [,] I think that the only thing to do is t o withdraw a

nd let him procee d as he w ishes.” ¶ 15 In response to L ozier’s rema rks, the State had no objection to her b ei n g al l o we d to withdraw but “would ask that we proce ed on a short court date *** beca use [defendant] went down this road with Mr. Tippey ear lier. *** [Defenda nt] has had the benef

it of two experience d counsel [and] he doesn’t seem to want to take their advice
, and if that’s the case , J udg e, I would say

he should proce ed on his own.” ¶ 16 Def

endant then informed the trial court that the only advice both lawy ers had g iven him was “ pretty

much you have to take whatever the prosec utor say s.” He asser ted that Tippey had “done absolutely nothing,” and all L ozier had done is yell at him. The court then asked whether defe ndant objecte d to L ozier’s withdrawa l, and the followingexchang e occ urre d: “[DEFEN DANT]: No sir, I –Ican’ t see– [THE COURT] : I f she doe s withdraw, you are g oing to r epre sent yourself the n. [DEFENDA

NT]: W ell, I

g uess I ’m g oing to have to. [THE COURT ] : W el l
, I mean we can still appoint counsel for y ou, but it doesn’t sound like you have very g ood luck in g etting along with counsel. S o m et i m es , the attorney cannot tell the c lient what the client wa nts to hear.

*** The bottom line is do y ou object if I allow Ms. L ozier’s motion to wit hdraw ? [DEFENDA

NT]: No, Idon’t.” The court there afte r gra

nted L ozier’s motion to withdraw and asked defenda nt whether he
was g oing to r epre sent himself. Def endant r esponded, a s follows: “[DEFEN DANT]: Well, s ir, at this time Ithink that’s my only option. [THE COURT] : Well, as Isay , we c an still– [DEFENDA

NT]: Idon’t have any

body else. [THE COURT]: S o , y o u don’t wish to reta in counsel, and y ou don’t wish to have
court a ppoint counsel, is that corre ct? [DEFENDA

NT]: Well, sir, I ’d like to have counsel but I have g ot to be able to do it, and I ’m just now ge tting on my fee t.

-4-THE COURT: [Defenda nt]
, let’s try to stay on point here for a m i n ute. Are y ou saying that y ou want to re tain an attorne y ? [DEFENDA

NT]: I ’d like to but I

–I ’m not sure if I ’m able to.
THE COURT: Well, how about if we set this over for approximately one wee k. Give
y ou time to retain an attorney

. [DEFENDA

NT]: W ell, hopefully

we c an do that.” ¶ 17 The prosec utor objected to the continuance
, explaining that he had witnesses prese nt, and it seeme d to him that “for lack of a better phrase
, [defendant] is [‘] p laying the sy stem.[’] I mean, if he wants to proce ed to hea ringtoday , I ’m rea dy

to do it.” ¶ 18 The trial c ourt then aske d defe ndant whethe r he w ished to proce ed to hear ing that day
, and he responde d as follows: “Ac tually
, your honor, I ’d like to talk to somebody that is more knowledg eable than I

in the court proc eeding s.” ¶ 19 The trial court then continued the matter for two wee ks for defe ndant “to g et an attorney

or re prese nt [ him] self.” The court conclude d the proc eeding s with the following statement to defe ndant: “Please don’t do y ourself a disservice

. Come that day either with y our attorney or be pr epar ed to try

this.” ¶ 20 On May 17, 2011, the trial court opened the hear ing on the petition to revoke supervision by asking defe ndant, “You’ re g oing to repr esent y ourself in this matter, is t h at corr ect? ” Def endant replied, “Well sir, I ’d like to have an attorney ,” and explained that he was unable to hire an attorney

beca use he had been out of work with pneumonia for nine da y s and did
not have the money to hire an attorney

. Def endant then asked for time to reta in an attorney , explaining that beca

use of the g ood weather, he now had offe rs of work. He acknow ledg ed, howeve r, that he did not at that moment have funds with which to hire an attorney

. The State objected to any further continuance s. The court ag ree d with the State, explaining as follows: “[Defe ndant,] when y ou wer e in cour t before , y ou indicated that you wer e either g oing
to repr esent yourself or reta in counsel, and y ou’re submitt ing to t he Court today that basica lly rig ht now y ou wouldn’t have the funds to reta in counsel. So, in other words, I can only assume that even if y ou [had not been sick during the l ast eig ht o r n i n e d ay s] that y ou wouldn’t have been able to reta in counsel, and you did indicate to the Court that
y ou’re g oing to be repr esenting y ourself. So, I am g oing to deny the motion to continue.” ¶ 21 The trial court then conducte d the hear ing o n t h e Oc t o b er 2 0 1 0 p et ition to revoke supervision and required defenda nt to repr esent him self. At the co n cl u sion of t he hearing
, the court found that defe ndant had violated the terms of the Marc h 2010 supervision order

. ¶ 22 Two d ay s l at er , the trial court conducte d a rese ntencing hear ing, and defe ndant ag ain
appea red with o u t co u n sel. The court revoke d defe ndant’s supervision, rese ntence d him to 18 months’ probation, and require d as a condition there of that he serve 60 day s in the county jail. ¶ 23 This appea l followed.

¶ 24 I I . ANALYSI S ¶ 25 Def

endant argues that the trial court (1) did not proper ly admonish him pursuant to Rule

-5-401(a) befor e he repr esente d himself at the May 2011 revoc ation hearing, and (2) improperly

imposed a $500 DUI fine. Be cause we conclude that the court err ed by requiring defe ndant to repre sent himself, we r ever se and r emand f or a ne w re vocation hea

ring

. ¶ 26 Def

endant’ s essential claim is that he wanted to be repr esente d by counsel at the hea ring

on the State’s motion to revoke his supervision but, instead, was forc ed to repr esent himself. The Stat e responds that defe ndant was proper ly require d to do so. Resolving this dispute require s us first to discuss the circ umstances in which a defe ndant in a crimi nal case may repr esent himself at trial. Although the rig ht to counsel is a constitutional require ment, it may be relinquished in three way s: (1) waiver
, (2) forf eiture, and (3) waiver by conduct. State v. Jones
, 772 N.W.2d 496, 5 0 4 (Minn. 2009); State v. Pedoc kie
, 137 P.3d 716, 721 (Utah 2006); United States v. Goldberg
, 67 F.3d 1092, 1099-1101 (3d Cir. 1995). We will discuss

eac h in turn.

¶ 27 A. Waiver of Counsel ¶ 28 In Gallagher v. L en a r t , 2 2 6 I ll. 2d 208, 229, 874 N.E.2d 43, 56 (2007), the Supreme Court of I llinois explained that a waiver arises from an aff irmative act, is consensua l, and consists of an intentional relinquishment of a known right. The court further explained that forf eiture, stric tly

define d, is differe nt from waive r bec ause instea d of being an intentional relinquishment of a known rig ht, forf eiture is the failure to make the timely asser tion of the rig ht. Id. In People v. Blair
, 215 I ll. 2d 427, 443, 831 N.E.2d 604, 615 (2005), the supreme court made the same points in a criminal ca se and in so doingcited appr ovingly a dec ision by this court in People v . Corrie , 294 I ll. App. 3d 496, 506, 690 N.E.2d 128, 134 (1998). ¶ 29 Thus, when a defe ndant i n a cr iminal case w ishes to waive his rig ht to counsel–that is,
to proce ed pro se

–a trial court may permi t h i m t o d o so only afte r the court has first admonished him in acc ordanc e with Rule 401(a)
, entitled, “Waiv er of Counsel,” which provides as f

ollows: “(a ) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall

no t p er mit a waiver of counsel by a person acc used of an offe nse punishable by impris o n m en t wi thout first, by addre ssing the defe ndant persona lly in open court, informinghim of and dete rmining that he under stands the following : (1) the na ture of the char g e; (2) the minimum and maxi mum s en t en ce presc ribed by law, including, when applicable
, the pena l t y t o wh ich the defe ndant may be subjected beca use of prior convictions or conse cutive sente nces; a nd (3) that he has a rig ht to counsel and, if he is indige nt, to have counsel appointed for him by

the cour t.” I ll. S. C t. R. 401(a) (e ff. July 1, 1984).
The purpose of Ru l e 401(a) is to ensure that any waiver of counsel will constitute the intentional relinquishment of a known r ight. ¶ 30 To further ensure that a defe ndant’s attempt to waive counsel and repr esent himself is the intentional relinquishment of a known right, this court in People v. W ard, 208 I ll. App. 3d 1073, 1081-82, 567 N.E.2d 64 2
, 647-48 (1991), sug g ested cer tain additional cautionar

y

-6-admonitions t h at a trial court may use. A court’s doing so has the double benef it of (1)

occa sionally discourag ing a defe ndant from proce eding pro se (once he lear ns how difficult defe n d i n g h i mself will be) and (2) making a compre hensive rec ord of the defe ndant’s knowing choice if he persists in waiving counsel, only to later claim (as fre quently happens) afte r he has been tried and convicted that he should not have been permitted to waive counsel beca use he did not rea lly understand the conseque nces of his ha ving done so. Over the last 20 y ear s, this court has seen many instances in which trial courts have used our sug g estions in W ard , and we continue to urg e trial c ourts to do so.

¶ 31 B. F orfe iture of the Rig ht to Counsel ¶ 32 Another method of relinquishing the rig ht to counsel is forf e it ure, which occur s only

afte r

sever e mi sconduct. An example of such misconduct occur red in United St ates v. McLeod
, 53 F.3d 322, 324-25 (11th Cir. 1995), wher e the court reje cted the defe ndant’s claim that he

was unconstitutionally denied his rig ht to counsel when he was forc ed to proce ed pro se

. In McLeod
, the t rial court conducte d a hearing on the defense at t o rn ey ’s motion to withdraw at which the attorney testified t hat t he defenda nt was verbally abusi v e, threatened to harm him, repe atedly threatened to sue him, and had attempted to persua de h i m to eng ag e in unethical conduct in connec tion with the case

. McLeod
, 53 F.3d at 325. The court conclude d that defen d an t, by virtue of his perva sive misconduct, had forf eited his rig ht to counsel. McLeod
, 53 F.3d at 326. See also Commonwealth v. Thomas
, 879 A.2d 246, 258 (Pa. Super. Ct. 2005) (whe re the court conclude d that the defe ndant forf eited his ri ght to counsel “throug h his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defe nse”)

. In State v. Hampton
, 92 P.3d 871, 874 (Ariz. 2004), the Arizona Supreme Court revie wed the ca s e law and conclude d that forf eiture is rese rved for the most sever e

case s of misconduct and should result only when less restric tive measure s are inappropria te.

¶ 33 C. W aiver of Counsel by

Conduct ¶ 34 The Third Circuit Court of App ea l s i n Go l d b er g descr ibed “wa iver by conduct” as a h y b ri d situation that combines elements of waiver and forf eiture. The Goldberg court explained this si tuation, as follows:
“Onc e a defe ndant has been war ned that he will lose his attorney if he eng ag es in dilatory tactics, any misconduct there afte r may be treated as an implied reque st to proce ed pro se and, thus, as a w aiver

of the right to counsel. ***

* * * These are not ‘wa iver’ case s in the true sense of the word. In many situations[ ,] there will be defe ndants who eng ag e in dilator y conduct but who veheme ntly object to be ing fo rce d to proce ed pro se

. These defe ndants cannot truly be said to be ‘wa iving’ thei r Six th Amendment rig hts beca use althoug h they are voluntarily eng ag ing in misconduct knowing what they stand to lose, they are not aff irmatively reque sting to proce ed pro se

. See United States v. Fazzini
, 871 F.2d 635 (7th Cir. [1989] ) (def endant who was war

ned about conseque nces of dilatory conduct insisted he was not waiving his rig ht to counsel),
cert. denied
, 493 U.S. 982, 110 S. Ct. 517, 107 L

. Ed. 2d 518 (1989).” Goldberg
, 67 F.3d

-7-at 1100-01.

¶ 35 We believe this analy sis is sound and adopt it for our case , which we conclude involves waiver o f co u n s el by conduct. We also ag ree , howeve r, with the view of the Minnesota Supreme Court that “[t] he same colloquy require d for aff irmative waiver s must also be g iven befor e a defe ndant can be said to have w aived his rig ht to counsel by conduct.” Jones
, 772 N. W.2d at 505. Thus, we need to decide whether this rec ord supports the trial court’ s conclusion that def

endant wa ived his rig ht to counsel by his conduct.

¶ 36 D. Waiver of Counsel by Conduct in This Case ¶ 37 One of

the diffe renc es betwe en wa iver of c ounsel by conduct a

nd forf eiture of counsel is that the latter may occur beca use of a defe n d an t ’s sever e misconduct without the defe ndant’s first having been wa rn ed of the conseque nces of his eng ag ing in that sever e misconduct. A trial court has the discretion to deter mine that the defe ndant’s misconduct was

so sever e (such as phy sically attacking his defe nse counsel) that no war ning of forf

eiture of counsel was nece ssary or fore seea ble befor e the court conclude s that the d ef en d an t has forf eited his rig ht to counsel and will be re quired to henc efor th repre sent himself. ¶ 38 On the other hand, with reg ard to waiver of counsel by conduct, the misconduct at issue usually occur s over a leng th y p er i o d of time. For a trial court to conclude that waiver of counsel by conduct has occur red in the case before it, the cour t must first comply with the

re qu i re ments of Rule 401(a)
, explaining to the defe ndant what is at stake if his co n du ct continues. Indeed, in the prese nt case , the trial court could have–a nd should have–r epeatedly admonished defe ndant pursuant to Rule 401(a)

. The court should also have emphasized that his condu ct co u l d constitute his waiver of counsel. Be cause the court never admonished defe ndant pursuant to Rule 401(a)
, its implicit finding of waiver of counsel b y conduct cannot stand, a

nd the cour

t committed rever sible err or. ¶ 39 In so concluding
, we note with approva l the following statement from the Ohio Appellate Court: “ ‘A court is under no less obligation to ensure that waiver is knowing and intelligent when voluntariness is deduce d from conduct than when it is asser ted ex pressly .’ ” State v. W ei s s , 6 37 N.E.2d 47, 50 (Ohio Ct. App. 1993) (quoting United States v. Allen
, 89 5 F. 2 d 1577, 1579 (10th Cir. 1990)). Such a conclusion is cons istent with the importance of the rig ht to counsel, as the Fi ft h Di strict Appellate Court rec ently explained: “The rig ht to counsel is a corne rstone of our criminal justice sy stem. T h i s rig ht is enshrined in both the United States Constit ution and the I llinois Constit ution. U.S. Const., amend. I V; I ll. Const. 1970, art. I
, § 8. *** The g ravity of a waiver [of counsel] require s a trial court to fully inform

a defendant of both the nature of the rig ht being abandone d and the conseque nces of the decision.” People v . Black, 2011 I LApp (5th) 080089, ¶ 11, 953 N.E.2d 958. ¶ 40 In rea ching this decision, we have considere d what the Supreme Court of I llinois wrote 30 y ear s ag o in People v . W illiams , 92 I ll. 2d 109, 118, 440 N.E.2d 843, 847 (1982): “[W ]here a defe ndant who is financ ially able to eng ag e counsel has been instructed to do

so within a cer

tain and rea sonable time, but he fails t o do so and does not show

rea sonable cause why he was unable to secur e represe ntation, the court may treat such

a failure as a waiver of the rig ht to counsel and require him to proce ed with the hear ing.”

-8-¶ 41 Although the supreme c ourt did not use the phrase “waiver of counsel by conduct,” its

decision i n W

illiams embodies t hat concept. But, as shown in W illiams
, the circumstances
must be extreme. For instance, the defe ndant in W illiams complained that he was denied due
proce ss when the trial court denied his reque st for a continuance to obtain counsel and forc ed him to defe nd himself at his felony drug trial. Rejecting this argument, the supreme court explained that “the trial co u rt ’s d en ial of the reque st to delay the case further afte r 19 continuance s was certainly not arbitra ry and did not violate due proce ss.” W illiams , 92 I ll. 2d at 118, 440 N.E.2d at 847. Fur ther (and contra

ry to the circ umstances of the prese nt case ), the supreme court noted that “[t] he rec ord shows that the court informed the defe ndant of the rig hts set out in [Rule 401(a) ].” W illiams
, 92 I ll. 2d at 119, 440 N.E.2d at 848. The supreme court in W

illiams also noted that the defe ndant “neve r reque sted the appointment of an attorney

. Under those circ umstances clea rly there was no obliga

tion to appoint counsel.” Id. ¶ 42 The prese nt case differ s from the circ umstances in W illiams beca

use, althoug h defe ndant indicated that he was g oing to try to hire counsel of his own choice
, he never reje cted the idea of the trial court’s appointing counsel for him. Indeed, the court did just that ear ly in this case when it appointed both Tippey and L ozier to repr esent defe ndant. Only afte r t h e co u rt g rante d their respe ctive m o t i o n s to withdraw as counsel did the problem arise about who would be re prese nting de fenda nt.

¶ 43 E. Dea ling With Difficult Def endants Reg arding
Who W ill R epre sent Them ¶ 44 We are not unsy mpathetic to the serious problem that this trial court and other trial courts
encounte r when dealing with difficult defe ndants reg arding repr esentation. The State’s
sug g estion in this case that defe ndant might be “play ing the sy stem” by his claimed difficulty both in g etting along with appointed counsel and in failing to hire an attorney of his own choice may have been ri gh t , but trial courts mus t still handle such situations with extreme

car e for at least two rea sons: (1) a defe ndant’s rig ht to counsel is a fundame ntal constitutional rig ht and (2) if a court makes a mistake reg arding this issue, it will constitute reve rsible err or. I n o t h er words, if a court of revie w deter mines that the trial court improperly forc ed a defe ndant t o repr esent him self at trial, there is no such thing as “har mless err or.” Reversal will occur, no matter how other wise er ror- fre e the pr ocee dings ma y have be en. ¶ 45 As a re sult of these conc erns, we offe r the followingsug g estions to tria l c ourts dealing with difficult defe ndants reg arding repr esentation.

¶ 46 1. Motions To W ithdraw ¶ 47 In most case s dealing with d i ff i cu l t defe ndants reg arding repr esenta tion, the difficulty manifests itself by a defe ndant’s claimed inability to hire counsel. Altho u gh that situation

occur red at a later point in this case , the circ umstances here are somewhat unusual beca use the trial court initially appointed two differ ent attorney s (Tippey and L ozier) at two differ ent times to repr esent defe ndant. Def endant was unhappy with both of his two court-a ppointed attorney s. They
, in turn, found their dealing s wi t h him to be unpleasant and unproductive, causing t h em to file motions to withdraw. We note that the court’s decision to forc e

-9-defe ndant to repr esent himsel f ar o se only afte r–and beca use–the court g rante d counsel’s motions t o withdraw. ¶ 48 We do not question the v a r ious asser

tions that both court-a

ppointed counsel made in their motions to withdraw; we mere ly note that the circ umstances those motions descr ibe “come with the territory .” That is, attorney s appointed to repr esent indige nt defe ndants in criminal

case s will rar ely find their clients mistaken for Rotary C l u b members or other leading citizens of the community . Instead, their clients are fre quently ang ry , ignor ant, suspicious, and perso nally abusive toward their court-a ppointed counsel. Such is the rea lity of the criminal justice sy stem. But, so what? Cases involving such clients must still g o forwa rd, and
court-a ppointed counsel should understand that (1) they can do no more than their best under difficult circ umstances and (2) in most instances, there is no rea son to believe–a s shown in this very case –that any

other c ourt-appointed attorney will be able to do better

. ¶ 49 Trial courts should not hesit at e t o re j ect motions to withdraw filed by court-a ppointed counsel when those motions are based on the g round that the relation ship betwee n the defe ndant and counsel has become “poisonous” or unpleasa nt due t o t h e d ef

endant’ s bad behavior

. Instead of g ranting such motions, the court should make clea r to the defe ndant that (1) failing to cooperate with his counsel will hurt only the defendant and (2) the court will
not repla ce counsel. P er h ap s a gra phic way of getting this point acr oss is to explain that if the defe ndant is convicted and sentenc ed to prison, when the bus from the penitentiary comes to pick him up, only

he will g et on. His lawyer w ill go home. ¶ 50 Despite the d i ff i cu l t i es co u rt -a p p o i n t ed co u n s el may encounte r repr esentingan obstructionist defenda

nt determined to interfe re w ith an order ly and construc tive attorney

client relationship, trial court s s h o u l d almost never permit such counsel to withdraw from
repr esenting that defe ndant. A trial court’s doing so only rew ards and enable s bad behavior

. Courts delude themselves by thinking an obstructionist defe ndant is somehow g oing to behave better when a ne w cour t-appointed c ounsel enter s the picture. ¶ 51 The issue in this case could have–and should have–bee n avoided. The trial court could have denied the att orney s’ motions to withdraw. See I ll. S. Ct. R. 13(c) (3) (ef f. Fe b. 16, 2011) (a motion to withdraw “may be denied by the cour t if the gra

nting of it would delay the t rial of th e case, or would otherwise be i nequitable” ); People v. Howard
, 376 I ll. App. 3d 322, 342, 876 N.E.2d 36, 51 (2007) (whe n dealing with a motion to withdraw under Rule 13(c) (3), a

trial court ha s “broa d discretion”)

.

¶ 52 2. Trial

Courts Shoul d Offer To Appoint Counsel and Use Se ction 113-3.1 of the Code of Criminal

Procedureof 1963 W

ith Defendants W

ho
Claim T hey Cannot Hire Counsel ¶ 53 Section 113-3.1 of the Code of Criminal Procedur e of 1963 (Code) (725 I L CS 5/113-3.1 (West 2010)) provides trial courts with the means of trying to persua de nonindige nt defe ndants to hire lawyers of their own choice

. Indeed, a pri m ar y p urpose underly ing that section, which auth o ri z es t ri al courts to order defe ndants to pay a rea sonable sum for the service s of appointed counsel, was to addre ss situations such as that in the prese nt case

. Trial courts can say

to such a de fenda

nt that if he fa ils to hi re an attorney of hi s own choice, t he

-10-court will appoint counsel a nd require the def

endant to pay

for the se rvice s of that counse l
to the extent the court finds he is capa ble of doing so, with a possible maxi mum pay ment of $5,000 on a fe lony

charg e. ¶ 54 Ex perie nce shows that trial courts who utiliz e section 113-3.1 of the Code as we sug g est will ultimately not have many defe ndants choosing court-a ppointed counsel when those defe ndants in fac t have t h e m ea ns to hire their own attorney s. In handling those few defe ndants who are sufficie ntly stubborn to persist in their dubious claims of not being able
to aff ord to hire private counsel, trial courts should resist distorting the important, fundame ntal rig ht to counsel, g uara nteed b y t h e s i x th amendment to the United States Constit ution and article I
, section 8, of the I llinois Constit ution of 1970 (I ll. Const. 1970, art. I
, § 8), by eng ag ing in some sort of con t es t o f wi lls with these defe ndants and by making such defe ndants repr esent themselves. Instead, courts confr onted with such a d ef en d ant should appoint counsel and utiliz e section 113-3.1 of the Code t o its fullest, requiring that defe ndant to pay

$5,000 for c ourt-appointed c ounsel in an appr opriate c ase. ¶ 55 Us i n g this statute, a trial court should explain to a defe ndant (who has not waived his rig ht to counsel pursuant to Rule 401(a) and clea rly has no intent to voluntarily proce ed pro

se beca use he is “g aming the sy stem”) that he will be repr esente d by counsel at trial. The only question is whether he will be repr esente d by an attorney of his own choice or one appointed by the court, but either way he will likely wind up paying a considera ble sum of money

. The
court should further sug g est that, in view of these two choice s, perha ps the defe ndant might
want to re consider his c laimed difficulty in hiring a

n attorney of his own choice

. ¶ 56 A prime example of a tr ial court’s appropr iately dealing with suc h a situation is shown in the rec ent decision of this court in People v. Belk
, 403 I ll. App. 3d 1056, 936 N.E.2d 721 (2010). I n Belk
, the defendant was char g ed with two counts of aggrav at ed crimi nal s exual abuse (720 I L CS 5/12-16(d) (West 2006) ), and he privately reta ined counse l. Belk
, 403 I ll. App. 3d at 1057, 936 N.E.2d at 722. After many continuance s, his counsel filed a motion to withdraw, specify

ing, in part, that the defe ndant did not want counsel to continue to repr esent him and that there had been “irre concilable differ ence s” betwee n counsel and defe ndant. At the hearing on counsel’s moti on, the t rial court asked co u n s el i f the defendant int ended to hire new counsel, and counsel replied that he was uncer tain. Counsel explained to the court that the defe ndant had told him defe ndant wanted to repr esent himself the last time they had spoken. Id. The trial court g rante d the motion to withdraw and continued the case for a few day s to see if de fenda

nt was g oing to r etain new counsel or pr ocee d pro se

. Id. ¶ 57 At the next hear ing, the trial court told the defe ndant that he had three options: (1) r etain

new counsel of his c hoice, (2) have counsel appointed for him, if indigent, or ( 3) re prese nt himself. In response to the court’s questions, the defe ndant indicated he was g oing to be able to hire an attorney

“ ‘w ithin the nex t week or so.’ ” Id. ¶ 58 The trial c ourt continued the matter for a month, a nd at the next hearing , the def endant informed the court that he had hired a new attorney

. The State announce d rea dy for trial, and the case was continued for another month for the appea ranc e of the defe ndant’s new attorney and for schedulingthe trial. Belk, 403 I ll. App. 3d at 1057-58, 936 N.E.2d at 722. ¶ 59 At that next hear ing, the defe ndant informed the trial court that he had not y et been a ble

-11-to hire the new attorney

. The court offe red to appoint the public defe nder, but the defe ndant

replied that he wanted “g ood counsel” and that was why he and h i s fa m i l y wer e trying to raise money for private counsel. The court responde d that public defe nders are g ood lawyers and stated that if defe ndant did not have the money to hire this new lawy er, then his choice

was to repr esent himself or acc ept appointment of the public defe nder. Belk
, 403 I ll. App. 3d
at 1058, 936 N.E.2d at 722-23. The trial court set a t ri al d ate for a month later whether defe ndant had private counsel or not and d i re cted the State to provide all discovery to defe ndant. The court ag ain offe red to appoint the public defe nder, but th e d efe ndant declined. Belk, 403 I ll. App. 3d at 1058, 936 N.E.2d at 723. ¶ 60 When the trial court called the case for trial a month later, it first denied the defe ndant’s
pro se motion for continuance and declined the defe ndant’s reque st for 60 more day s to hire private counsel. The court informed defe ndant that his choice was now acc eptanc e of the appointment of the public defe nder or proce eding pro se

. The defe ndant ref used appointment of the public defe nder. The court then g ave the defe ndant t h e require d admonitions for waiver of counsel pursuant to Ru l e 4 0 1(a)

. When it finished its admonitions, it ag ain told defe ndant it would appoint counsel o r d ef en dant was g oing to g o to trial and repr esent himself. Def

endant ag ain responde d that he wanted more time to hire an attorney of his own choice

. The court responde d, “ ‘we’r e going to trial.’ ” Belk
, 403 I ll. App. 3d at 1059, 936 N.E.2d at 723. ¶ 61 There afte r, defe ndant repr esente d himself at trial, was convicted, and was sentenc ed to three y ear s in prison. On appea l, he contende d that he did not waive his rig ht to counsel and should not have been requir ed t o repr esent himself. This court emphatica lly reje cted that contention, explaining, in par t, as follows: “The fac ts are undisputed. After defe ndant’s ori gi n al counsel was allowed to withdraw, the trial court repe atedly offe red to appoint counsel for defe ndant if he could
not aff ord to hire private counsel. Def endant repe atedly declined, stating he did not want the public defe nder appointed to repr esent him. The court repe atedly told defe ndant his choice was either t he publi c def ender or represe nting hims elf. Defenda nt still declined the appointment of c ounsel.” Belk, 403 I ll. App. 3d at 1060, 936 N.E.2d at 724-25. ¶ 62 In conclusion, this court adde d the following :

“While defe ndant never used the words ‘I waive my right to counsel,’ his actions and words show wa iver. He knew he could have counsel appointed but chose to repr esent h i mself. Given the context of the proce eding s and the rec ord, defe ndant clea rl y an d unequivoca lly g ave up his rig ht to be repr esente d by counsel.” (Emphasis in original.) Belk, 403 I ll. App. 3d at 1061, 936 N.E.2d at 725. ¶ 63 The key fea

ture of the trial court’s handling o f t h e d i ff i cu l t defe ndant in Belk was the court’s repe ated offe r of court-a ppointed counsel if the defe ndant (as he claimed) was unable to hir e counsel of his own choice

. The court’s doing so avoided the claim that defe ndant in the case befor e us was able to make–name ly
, that beca use he was unable to hir e counsel of his own choice
, the trial court forc ed him to repr esent himself at trial. Instead, had defe ndant here been offe red court-a

ppointed counsel y et ag ain and ref used the offe r, then his position would have been much like that of the defe ndant in Belk

. (We mention ag ain, howeve r, that

-12-by itself this off er of counsel would not be enoug h. The trial court would also have neede d to admonish defenda

nt in accor dance with Rule 401(a), a s the court did in Belk .) ¶ 64 In praising how t he trial court handled the defendant in Belk
, we note two areas whe re the court could have done an even better job. First, for the rea sons ear lier discu s s ed, we question whether the court should have gr anted the defe ndant’s ret ai n ed counsel’s moti on in Belk to withdraw. Perhaps a better course of action would have been to hold that motion in abey ance until such time (if ever) that new counsel enter ed his or her appea ranc e on behalf of the defe ndant. The court could then als o h av e ex p lained that in the absenc e of such an appea ranc e, the motion to withdraw would be denied, and privately reta ined counsel would be require d to continue to repr esent the defe ndant. Reg arding our ear l i er discussion about how trial courts should be very reluc tant to g rant motions to withdraw in criminal case s, we emphasize that we draw no distinction whatsoeve r betwee n such motions, whether filed by
court-a ppointed counsel or pr ivately reta ined counse l. ¶ 65 Second, we sug g est that the trial court in Belk could have mentioned section 113-3.1 of
t h e C ode, pointing out the likelihood that the defe ndant would be require d to pay for the service s of any court-a

ppointed counsel. (This sug g estion i s n o t i n consistent with the
supreme court’s decision in W illiams beca

use when that case was decide d, section 113-3.1 of the Code had not y et been enac ted.) Howeve r, as the enthusiastic aff irmance by this court in Belk demonstrates, the se additional matters w ere not nece ssary for this court to appr ove of the trial court’s decision to make the defe ndant in Belk repr esent himself at trial under the particula r circ umstances of

that case

.

¶ 66 F. De fenda nt’s Claim That the Trial Court Improperly
I mposed a $500 DU IFine ¶ 67 Def

endant also contends that the trial court improperly i m p o s ed a $ 5 0 0 DU I fi n e. Specifica lly
, defe ndant asser ts that the fine is not authorized by section 11-501(c )(4) of the I llinois Vehicle Code (625 I L CS 5/11-501(c) (4) (W est 2008)), as his breath alcohol

conce ntration was not 0.16 or more . Be cause we have concluded that defe ndant i s entitled
to a new revoc ation hear ing (and we presume the trial court will impose the approp ri ate statutorily authorized fi n es on rema nd in the event the court deter mines that defe ndant violated the terms of his supervisi on), we need not addre ss the parties’ contentions in this
reg ard.

¶ 68 I I I . CONCLUSI ON ¶ 69 For the rea sons stated here in, we reve rse the trial court’s judgme nt and rema nd for a new

revoc ation hear ing.

¶ 70 Reverse d and re manded.

-13-