2024 IL 128687

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 128687) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, 

v. CLAYTON T. MARCUM, Appellant. 

Opinion filed March 21, 2024.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. 

Chief Justice Theis and Justices Neville, Overstreet, Holder White, 

Cunningham, and O’Brien concurred in the judgment and opinion. 

OPINION

¶ 1 Defendant, Clayton T. Marcum, was convicted in the circuit court of Ford 

County of two counts of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 

2018)). Defendant was sentenced to consecutive prison terms of seven years on 

each count. Defendant appealed, arguing that his right to a speedy trial had been 

violated, he did not knowingly waive his right to counsel, the State failed to prove 
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him guilty of aggravated domestic battery, and the circuit court violated his right to 

remain silent when it ordered him to participate in the preparation of his presentence 

investigation report. 2022 IL App (4th) 200656-U.

¶ 2 The appellate court agreed that the evidence was insufficient to prove defendant 

guilty of aggravated domestic battery. The appellate court therefore reduced 

defendant’s convictions to Class 3 aggravated batteries and remanded to the trial 

court for resentencing. The appellate court rejected defendant’s remaining 

arguments. In this court, defendant appeals only his speedy trial and waiver of 

counsel claim. For the following reasons, we affirm the judgment of the appellate 

court. 

¶ 3 BACKGROUND

¶ 4 On September 1, 2019, police officer Brandon Ryan of the Paxton Police 

Department received a report of a naked man outside some apartments. When 

Officer Ryan arrived on the scene, he observed a man, later identified as Greg 

Rudin, lying in an alley outside the apartments with various injuries. Rudin was 

taken to a hospital, where he was diagnosed with a subarachnoid hemorrhage and 

broken ribs. 

¶ 5 Bystanders told Officer Ryan that they had seen Rudin with defendant. Officer 

Ryan then spoke with defendant. Defendant said that he and Rudin drank together 

at defendant’s apartment until Rudin left at 10 p.m. Officer Ryan noted that 

defendant had dried blood on his clothing. Defendant then clarified that he and 

Rudin had wrestled and that he assisted Rudin down the stairs. Defendant 

eventually stated that Rudin fell down the stairs. 

¶ 6 Officer Ryan returned to defendant’s apartment with a search warrant. Officers 

found blood on a mattress in the apartment and in a stairwell outside the apartment. 

Defendant stated that Rudin was bleeding prior to leaving the apartment. The 

officers arrested defendant on charges of aggravated battery and obstruction of 

justice. 

¶ 7 Five days after defendant’s arrest, investigating officers met with defendant at 

the county jail, where he made a videotaped confession. Defendant told the officers 
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that he met Rudin several days prior to September 1, 2019, and had a sexual 

encounter with Rudin. On September 1, defendant and Rudin were drinking and 

began to wrestle and engage in consensual horseplay. Defendant admitted that he 

struck Rudin while they were wrestling. The wrestling stopped when Rudin began 

bleeding. Defendant and Rudin then left defendant’s apartment to walk to a bar. 

While on their way to the bar, Rudin fell down the stairs. Defendant tried to help 

Rudin walk outside, but Rudin kept falling. When Rudin fell the last time, 

defendant stomped on Rudin. Defendant told Rudin to stay there, to sleep it off, and 

to take himself home in the morning. 

¶ 8 On September 27, 2019, the State charged defendant with one count of 

aggravated battery, a Class 3 felony, for striking Rudin on the head and body and 

knowingly causing Rudin great bodily harm. The information stated that, if 

defendant was convicted of the charged offense, he could be sentenced to an 

extended term of 5 to 10 years in prison based upon a prior residential burglary 

conviction in Iroquois County. The public defender’s office was appointed to 

represent defendant. 

¶ 9 At the preliminary hearing on September 30, 2019, Officer Ryan testified that, 

when he spoke to defendant at the scene, defendant had dried blood on his shirt and 

jeans. Officer Ryan also testified that, in defendant’s videotaped statement 

following his arrest, defendant admitted that he struck Rudin’s head and saw blood 

coming out of his mouth. Defendant also demonstrated how he stomped on Rudin 

after he fell. Rudin suffered broken ribs, a punctured lung, and three brain 

hematomas. Officer Ryan said that Rudin had recently awakened from a coma and 

was unable to speak. Officer Ryan also testified that he learned during his 

investigation that defendant and Rudin were in a dating relationship. The trial court 

found probable cause to support the aggravated battery charge and suggested an 

October 2019 trial date. Defense counsel objected and, after consulting with 

defendant, proposed a January 2020 trial date. The trial court granted defendant’s 

request.

¶ 10 Defendant’s trial was set for January 6, 2020, but on that date, the circuit court 

granted the State’s motion to extend the speedy trial term by no more than 20 days 

in order to complete DNA testing, over defendant’s objection. The trial court set 

the trial for April 2020. 
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¶ 11 At a hearing on March 19, 2020, the State indicated that it had received and 

provided defense counsel with the DNA test results and that the State was ready for 

trial. In March 2020, the State also made an offer of an eight-year sentencing cap 

in exchange for a guilty plea from defendant. After consulting with his attorney, 

defendant rejected the State’s offer. Defendant also stated that he wanted his 

attorney removed from the case. 

¶ 12 On April 13, 2020, the case was continued to July 2020 due to this court’s 

COVID-19 administrative orders. At a May 15, 2020, hearing, defendant again 

informed the court that he wanted his attorney removed. The trial court continued 

the case for a hearing on defendant’s request. On May 22, 2020, the trial court told 

defendant the nature of the charge, admonished defendant of his rights under 

Illinois Supreme Court Rule 401 (eff. July 1, 1984), and discussed with defendant 

his right to counsel and the consequences of proceeding pro se. Defendant affirmed 

that he wished to proceed pro se. 

¶ 13 On July 6, 2020, the State dismissed the aggravated battery count and filed a 

two-count information charging defendant with two counts of aggravated domestic 

battery, a Class 2 felony. Count I alleged that defendant struck Rudin with his fist, 

causing a subarachnoid hemorrhage, that defendant caused great bodily harm to 

Rudin, and that Rudin was defendant’s family or household member. Count II

alleged that defendant stomped on Rudin with his foot, causing rib fractures, that 

defendant knowingly caused great bodily harm to Rudin, and that Rudin was 

defendant’s family or household member. Both counts averred that defendant was 

eligible for extended term sentencing due to defendant’s prior residential burglary 

conviction. 

¶ 14 The new counts proceeded to arraignment. At the arraignment, the trial court 

read the new information to defendant. The trial court admonished defendant that 

he was facing a sentence of 7 to 14 years on each charge, rather than the usual 

sentence of 3 to 7 years, due to his prior residential burglary conviction. The trial 

court also informed defendant that a mandatory supervised release (MSR) term 

would be added to any prison sentence and that probation and conditional discharge 

were available sentences. Defendant sought clarification of the charges. The trial 

court repeated the charges and the possible penalties and also told defendant that 
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he would need to serve 85% of any prison sentence and would be ineligible for dayfor-day credit. Defendant responded that he understood. 

¶ 15 The trial court then confirmed that defendant still wished to represent himself. 

The trial court asked defendant if he understood the charges; defendant responded, 

“Yeah.” The trial court then asked defendant if he understood the minimum and 

maximum penalties, including extended term eligibility, the MSR range, and the 

applicable financial obligations. Defendant responded, “Uh-huh.” The trial court 

next told defendant that he had the right to represent himself but that counsel could 

be appointed for him if he was indigent. When asked if he understood that, 

defendant said “Yeah.” The trial court asked defendant if he wished to waive his 

right to counsel, and the defendant said he did. 

¶ 16 Defendant then asked the court about spending 120 days in custody and whether 

the speedy trial limitation was “completely out the window.” The trial court stated 

that the speedy trial limitation was tolled by this court’s COVID-19 order. 

Defendant responded, “So I have to start all over again? Like be here, like be here 

over a year ago or three more months or four more months?” The trial court 

answered that defendant’s case was continued by agreement and due to COVID19. Defendant replied, “[y]ou can see I been here for about a year, and this ain’t a 

murder charge. I been here for about a year.” The trial court again responded that 

the case was continued by agreement and that the speedy trial period starts over 

every time the case is continued by agreement. Defendant asked the court if there 

were “anymore curve balls I need to be aware of?” The trial court denied there was 

a curve ball and informed defendant that the State simply “elected to file a different 

charge.” 

¶ 17 A preliminary hearing on the new charges was held on August 4, 2020. Officer 

Ryan testified consistently with his testimony at the prior preliminary hearing. 

Officer Ryan also told the court that Rudin was now confined to an assisted living 

facility, was unable to care for himself, and would require assistance for the rest of 

his life. The trial court found probable cause to support the charges and set 

defendant’s trial for October 2020. Defendant then indicated that he was confused 

concerning the nature of the charges, asking “is this still aggravated battery with 
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intent at any time to do bodily harm?” The trial court responded that the charge was 

“a straight domestic battery, which is a Class 2.”1 

¶ 18 Prior to jury selection, the trial court again asked defendant if he understood the 

nature of the charges, what he was charged with, and the possible penalties for those 

charges. The defendant acknowledged he was charged with aggravated domestic 

battery. The trial court clarified that defendant was charged with two counts of 

aggravated domestic battery. The trial court also confirmed that defendant knew he 

was facing a sentence of 7 to 14 years. Defendant then asked the court if he “would 

be charged with two charges” if he was found guilty. The prosecutor responded 

that, if defendant was found guilty, he was “going to be sentenced to one sentence.” 

The trial court then stated, “[y]ou will not be sentenced twice.” Defendant replied, 

“Oh, so I would be looking at seven to 14 years?” The trial court answered, “[y]es.” 

After further admonishments from the trial court, defendant reaffirmed that he 

wished to proceed pro se. 

¶ 19 On the last day of trial, the prosecutor informed the court that there was an error 

in the Law Enforcement Agencies Data System (LEADS) sheet concerning 

defendant. The prosecutor determined that the residential burglary charge listed 

under defendant’s name was not defendant’s case. Defendant confirmed that he had 

never been convicted of residential burglary. The prosecutor told the court that 

defendant was no longer subject to extended term sentencing but rather faced a 

sentencing range of three to seven years’ imprisonment. 

¶ 20 At the close of trial, the jury found defendant guilty of both counts of aggravated 

domestic battery. At defendant’s sentencing hearing, the State asked that 

defendant’s sentences be served consecutively. When defendant asked what that 

meant, the trial court explained that the State was asking for two separate terms of 

seven years, to be served one after the other. Defendant responded, “[l]ike 14 

years?” The trial court confirmed it was 14 years. Following the sentencing hearing, 

the trial court sentenced defendant to a seven-year prison term on each conviction, 

to be served consecutively. Defendant did not file a posttrial motion. 

1The charges were aggravated domestic battery.
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¶ 21 On appeal, the appellate court agreed with defendant that the evidence was 

insufficient for a rational trier of fact to have found beyond a reasonable doubt that 

defendant was in a dating relationship with Rudin. 2022 IL App (4th) 200656-U, 

¶ 68. The appellate court therefore reduced defendant’s convictions to aggravated 

battery and remanded the case to the trial court for resentencing. Id. ¶ 69. Relevant 

to the instant appeal, the appellate court found that defendant’s statutory right to a 

speedy trial had been violated but that the error was not subject to plain-error

review. Id. ¶¶ 44, 51. Accordingly, defendant waived his speedy trial claim when 

he failed to file a motion for discharge pursuant to section 114-1(b) of the Code of 

Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(b) (West 2018)). 2022 IL 

App (4th) 200656-U, ¶ 51. The appellate court also found that defendant knowingly 

waived his right to counsel. Id. ¶¶ 60-61. 

¶ 22 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 

(eff. Oct. 1, 2021). 

¶ 23 ANALYSIS

¶ 24 On appeal, defendant first argues that, despite correctly finding that the State 

violated his statutory right to a speedy trial when it filed the aggravated domestic 

battery charges, the appellate court erred in finding that the violation was not 

subject to plain-error review. The State does not dispute that defendant’s statutory 

right to a speedy trial was violated but disagrees that the violation is subject to 

plain-error review.

¶ 25 The people of the State of Illinois possess a constitutional right to a speedy trial 

under both the United States and the Illinois Constitutions. See U.S. Const., 

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Both this court and the United States 

Supreme Court have recognized that the right to a speedy trial cannot be defined in 

terms of a precise or absolute standard of time. Barker v. Wingo, 407 U.S. 514, 522 

(1972); People v. Henry, 47 Ill. 2d 312, 316 (1970). Given the imprecise nature of 

the constitutional right to a speedy trial, the Illinois legislature has historically 

provided that an accused in custody shall be tried within a certain time. See People 

ex rel. Nagel v. Heider, 225 Ill. 347, 350 (1907) (statute provided that, with certain 

exceptions, accused not admitted to bail shall be tried within four months of his 

date of commitment). The current speedy trial statute is set forth in section 103-5 
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of the Code (725 ILCS 5/103-5 (West 2020)). Section 103-5(a) provides that, with 

certain exceptions, “[e]very person in custody in this State for an alleged offense 

shall be tried by the court having jurisdiction within 120 days from the date he or 

she was taken into custody.” Id. § 103-5(a). Section 103-5 implements the 

constitutional guarantee to a speedy trial; however, the statute is not equivalent to, 

or coextensive with, the constitutional right to a speedy trial. People v. Crane, 195 

Ill. 2d 42, 48 (2001). 

¶ 26 To claim a violation of the statutory right to a speedy trial, section 114-1 of the 

Code provides: 

 “(a) Upon the written motion of the defendant made prior to trial before or 

after a plea has been entered the court may dismiss the indictment, information 

or complaint upon any of the following grounds: 

(1) The defendant has not been placed on trial in compliance with 

Section 103-5 of this Code. 

 * * * 

(b) The court shall require any motion to dismiss to be filed within a 

reasonable time after the defendant has been arraigned. Any motion not filed 

within such time or an extension thereof shall not be considered by the court 

and the grounds therefor *** are waived.” 725 ILCS 5/114-1(a)(1), (b) (West 

2020). 

¶ 27 Defendant concedes that he did not file a pretrial motion to dismiss on statutory 

speedy trial grounds but argues that this court should review the issue as plain error. 

It is well settled that a defendant must object at trial and raise a purported error in 

a posttrial motion in order to preserve the error for review. People v. Williams, 2022 

IL 126918, ¶ 48. Failure to do either results in forfeiture of the error, but the 

forfeiture may be excused where the error is plain error. Id. Illinois Supreme Court

Rule 615(a) (eff. Jan. 1, 1967) memorializes the plain-error doctrine. Rule 615(a) 

provides, in pertinent part, that “[p]lain errors or defects affecting substantial rights 

may be noticed although they were not brought to the attention of the trial court.” 

Id. 
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¶ 28 The plain-error rule does not allow for review of all forfeited errors. People v. 

Jackson, 2022 IL 127256, ¶ 19. A court will review a forfeited error in two 

circumstances: (1) where the evidence is so closely balanced that the jury’s verdict 

may have resulted from the error and not the evidence or (2) when the error is so 

serious that it affected the fairness of the trial and challenged the integrity of the 

judicial process. Id. Whether there is plain error is a question of law that this court 

reviews de novo. Williams, 2022 IL 126918, ¶ 48. 

¶ 29 Defendant argues that the violation of his statutory right to a speedy trial was 

so serious that it affected the fairness of his trial and challenged the integrity of the 

judicial process. Therefore, defendant maintains that the error may be reviewed 

under the second prong of the plain-error rule.

¶ 30 This court has not had the opportunity to directly address whether a statutory 

speedy trial violation constitutes plain error. The argument was raised in both 

People v. Staake, 2017 IL 121755, and People v. Hartfield, 2022 IL 126729, but 

this court found no error occurred in either case and, therefore, did not reach the 

issue.

¶ 31 This court did discuss section 103-5 in People v. Pearson, 88 Ill. 2d 210 (1981), 

in the context of whether a speedy trial violation may be raised for the first time in 

a posttrial motion. Pearson found that it could not, holding that a motion for 

discharge for a speedy trial violation must be brought to the trial court’s attention 

before trial, based upon the express language of section 114-1 of the Code. Id. at 

219. Pearson noted that the right conferred by section 103-5 was “not absolute in 

the sense that the mere passage of time ousts the court of jurisdiction to try the 

accused and makes his release mandatory.” Id. at 216. Pearson explained that “it 

was long ago established that the right to discharge granted by the statute was 

waived if not asserted by the defendant prior to conviction.” (Emphasis added.) Id.

Further, section 114-1 specifically provided that a “violation of the provisions of 

section 103-5 of the Code relating to speedy trial is waived unless a motion for 

discharge is made prior to trial.” (Emphasis added.) Id. at 217. 

¶ 32 Defendant distinguishes Pearson on the ground that there was no indication in 

that case that the defendant invoked the plain-error doctrine to excuse his 

procedural default. Defendant finds support for his argument in several appellate 

court decisions holding that a violation of the speedy trial statute qualifies for 
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review under the second prong of plain-error review. See People v. Mosley, 2016 

IL App (5th) 130223; People v. Smith, 2016 IL App (3d) 140235; People v. 

McKinney, 2011 IL App (1st) 100317; People v. Gay, 376 Ill. App. 3d 796 (2007). 

¶ 33 The appellate court in this case declined to follow the case law cited by 

defendant. The appellate court pointed out that those decisions lacked any analysis 

in finding plain error based upon statutory speedy trial violations. 2022 IL App 

(4th) 200656-U, ¶ 48. The appellate court instead observed that, in section 114-

1(b), the legislature provided for the “forfeiture” of a statutory speedy trial violation 

if the speedy trial violation was not timely raised. Id. ¶ 51. The appellate court 

therefore concluded that, if a statutory speedy trial violation alone constituted plain 

error, the legislature would not have provided for its waiver in section 114-1(b). Id. 

¶ 34 At the outset, we note that the appellate court used the terms “waiver” and 

“forfeiture” interchangeably. Section 114-1(b), however, expressly provides that 

the right to a speedy trial is waived if not filed “within a reasonable time after the 

defendant has been arraigned.” 725 ILCS 5/114-1(b) (West 2020). Accordingly, the 

issue is whether defendant can claim plain error when he has waived his right to a 

speedy trial. We find that he cannot.

¶ 35 In each of the cases relied upon by defendant, the courts conflated a defendant’s 

constitutional right to a speedy trial with his statutory right to a speedy trial. The 

court in Gay originated the error. Without further analysis, Gay stated that a 

“speedy trial is a substantial fundamental right (People v. Crane, 195 Ill. 2d 42, 46, 

743 N.E.2d 555, 559 (2001)); thus, we will review defendant’s claim under the 

plain-error doctrine despite defendant’s failure to file a motion to dismiss the 

charges or file a posttrial motion.” Gay, 376 Ill. App. 3d at 799. Gay’s reliance on 

Crane was misplaced. Crane was referencing an accused’s constitutional right to a 

speedy trial, not his statutory right to a speedy trial. See Crane, 195 Ill. 2d at 46 

(“[t]he sixth amendment right to a speedy trial is fundamental”). 

¶ 36 The McKinney court simply repeated Gay’s misstatement. The defendant in 

McKinney claimed a violation of his statutory speedy trial right and conceded that 

he had failed to properly preserve the issue for review. 2011 IL App (1st) 100317, 

¶ 27. The defendant argued that the court should nonetheless consider the issue 

under the plain-error doctrine. Id. The appellate court, citing Gay, agreed that, 

“despite the defendant’s failure to include this issue in the motion for a new trial, it 
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is subject to plain error review because a speedy trial implicates fundamental 

constitutional concerns.” Id. ¶ 29. 

¶ 37 Mosley also repeated Gay’s misstatement that a speedy trial is a substantial 

fundamental right, without distinguishing between statutory and constitutional 

speedy trial rights. Mosley, 2016 IL App (5th) 130223, ¶ 9. The defendant in Mosley

claimed he was denied his statutory right to a speedy trial. Id. Although the 

defendant failed to raise the issue in the trial court, the Mosley court cited Gay in 

electing to “address the issue under the plain-error doctrine because a speedy trial 

is a substantial fundamental right.” Id.

¶ 38 Similarly, the defendant in Smith claimed a violation of the speedy trial statute 

and failed to preserve the issue for appeal. Citing McKinney, the Smith court stated 

that it would “accept defendant’s request to consider his argument under the plain 

error doctrine.” Smith, 2016 IL App (3d) 140235, ¶ 10. Smith found that the trial 

court had erred in denying the defendant’s motion to dismiss on speedy trial 

grounds because the defendant’s trial was held outside the 120-day statutory speedy 

trial limit. Id. ¶ 20. Smith concluded that the defendant was entitled to relief under 

the plain-error doctrine. Id. ¶ 21. 

¶ 39 As noted, the speedy trial statute was designed to implement the constitutional 

right to a speedy trial, but the constitutional right to a speedy trial is not coextensive 

with the statutorily prescribed period. Crane, 195 Ill. 2d at 48. We observed in 

Pearson, 88 Ill. 2d at 216, that, even prior to the enactment of section 114-1, case 

law had long established that the right to discharge under section 103-5 was waived 

if the claim had not been raised by the defendant prior to his conviction. 

¶ 40 For example, in People v. Morris, 3 Ill. 2d 437, 441-43 (1954), the court 

rejected the defendant’s postconviction claim he had a constitutional right to 

discharge because he was not tried within four months from the time of his 

commitment, as set forth in the statutory speedy trial statute in effect at the time 

(Ill. Rev. Stat. 1953, ch. 38, ¶ 748). The Morris court rejected that claim, pointing 

out that the right to discharge could be waived, and is waived, when the accused 

fails to raise the question prior to conviction. Morris, 3 Ill. 2d at 442. Morris stated, 

“[i]n a case where the question concerns whether there has been a waiver of the 

statute, this court has held the case does not involve the denial of a constitutional 

right, and the defendant cannot raise the issue in a petition under the Post-
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Conviction Hearing Act.” Id. Further, quoting People v. Farley, 408 Ill. 288, 295 

(1951), the Morris court explained, 

“ ‘[i]f a defendant is afforded the basic right of a trial, and the question arises 

as to whether he has waived the requirements of the statute as to the time within 

which he must be tried, *** the decision of such questions does not involve the 

denial of constitutional rights, but only the manner of asserting, waiving or 

enforcing them.’ ” Morris, 3 Ill. 2d at 442. 

Morris concluded that the defendant’s postconviction petition did not raise a 

constitutional question but, rather, raised a question concerning the statutory 

procedure implementing a constitutional right. Id. at 443. 

¶ 41 Consistent with the long-held application of waiver in our case law, section 

114-1 of the Code expressly states that a violation of section 103-5 is waived unless 

a motion for discharge is made prior to trial. As the appellate court noted, the 

legislature would not have provided for waiver of the speedy trial statute if a 

violation of that statute alone resulted in an unfair trial or challenged the integrity 

of the judicial process. 2022 IL App (4th) 200656-U, ¶ 51. We therefore hold that 

a violation of section 103-5 does not alone constitute plain error. To the extent that 

the decisions in Gay, McKinney, Mosley, and Smith held to the contrary, those 

decisions are hereby overruled. We therefore affirm the appellate court’s finding 

that defendant waived his right to claim a violation of the speedy trial act in this 

case.

¶ 42 Defendant next argues that he did not knowingly waive his right to counsel 

because the trial court failed to substantially comply with Illinois Supreme Court 

Rule 401(a) (eff. July 1, 1984). 

¶ 43 This court has recognized that an accused has a right to self-representation that 

is “ ‘as basic and fundamental as [the] right to be represented by counsel.’ ” People 

v. Wright, 2017 IL 119561, ¶ 39 (quoting People v. Nelson, 47 Ill. 2d 570, 574 

(1971)). Thus, as long as a defendant’s waiver of his constitutional right to counsel 

is voluntary, knowing, and intelligent, he may waive that right. Id. 

¶ 44 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) governs an accused’s 

waiver of his right to counsel. Rule 401(a) provides: 
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“Any waiver of counsel shall be in open court. The court shall not permit a 

waiver of counsel by a person accused of an offense punishable by 

imprisonment without first, by addressing the defendant personally in open 

court, informing him of and determining that he understands the following: 

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, 

when applicable, the penalty to which the defendant may be subjected 

because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel 

appointed for him by the court.” Id.

Compliance with Rule 401(a) is required for an effective waiver of counsel. Wright, 

2017 IL 119561, ¶ 41. 

¶ 45 Defendant claims that the trial court failed to comply with the second 

admonition, that the court inform him of the possible penalties he was facing. 

Defendant points out that he was initially told that he was eligible for extended term 

sentencing based upon a prior residential burglary conviction and faced a sentence 

of 7 to 14 years’ imprisonment on each count of aggravated domestic battery. In 

fact, defendant did not have a prior residential burglary conviction, so he was not 

eligible for extended term sentencing. Defendant instead was subject to a term of 

three to seven years’ imprisonment on each count. Defendant also states that the 

trial court did not advise him that he could receive a prison sentence on each 

conviction or that he could be ordered to serve those convictions consecutively. In 

addition, defendant was instructed that he faced an MSR term of four years to life, 

when in fact he was subject to an MSR term of four years. Defendant argues that 

the trial court’s admonishments fell far short of what Rule 401(a) requires and that 

the appellate court erred in finding substantial compliance with the rule. 

¶ 46 Although this court has held that compliance with Rule 401(a) is required for 

an effective waiver of counsel, this court has also recognized that strict, technical 

compliance with Rule 401(a) is not always required. People v. Haynes, 174 Ill. 2d 

204, 236 (1996). Substantial compliance with Rule 401(a) will effectuate a valid 

waiver “if the record indicates that the waiver was made knowingly and voluntarily, 
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and the admonishment the defendant received did not prejudice his rights.” Id. Each 

waiver of trial counsel must be assessed on the particular facts of the case. People 

v. Reese, 2017 IL 120011, ¶ 62. 

¶ 47 In addressing this issue, the appellate court noted that defendant did not raise 

the issue in a posttrial motion. 2022 IL App (4th) 200656-U, ¶ 54. The appellate 

court stated it would first address whether an error occurred before considering 

whether defendant preserved the error for review or whether plain-error review was 

appropriate. Id. The appellate court found no error, concluding that the trial court 

substantially complied with Rule 401(a) and that defendant’s waiver of counsel was 

valid. Id. ¶ 59. 

¶ 48 The appellate court is correct that, in addressing a defendant’s claim under the 

plain-error doctrine, we must first determine whether any error occurred. People v. 

Thompson, 238 Ill. 2d 598, 613 (2010). In finding substantial compliance, the 

appellate court pointed out that the information provided to the trial court at the 

time the trial court gave the Rule 401(a) admonishments did indicate that defendant 

was eligible for extended term sentencing. 2022 IL App (4th) 200656-U , ¶ 58. The 

error was not discovered until defendant’s trial had begun. Id. In addition, the trial 

court’s admonishments concerning the MSR term were greater than the actual MSR 

term, so defendant could not claim prejudice in his decision to waive counsel based 

upon the MSR term. Id. The trial court also admonished defendant that he could 

receive a prison sentence of up to 14 years. Id. Given the fact that defendant knew 

he could receive a prison sentence of up to 14 years, the appellate court stated it 

could not see how an admonishment that defendant faced a maximum of 7 years on 

each count, which could run consecutively, would have affected defendant’s 

decision to proceed pro se. Id. ¶ 59. 

¶ 49 The appellate court next rejected defendant’s claim that the trial court should

have readmonished him prior to sentencing. Id. ¶ 60. The defendant claimed that 

the discovery that defendant was not eligible for extended term sentencing 

constituted a change in circumstances that required the trial court to readmonish 

him. The appellate court again pointed out that the discovery that defendant was 

not eligible for extended term sentencing did not alter the maximum penalty 

defendant faced, and defendant did not indicate how a correct explanation of why 

defendant would receive a sentence of up to 14 years would have affected his 
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decision to proceed pro se. Id. The appellate court therefore found that defendant’s 

right to counsel was not violated. Id. ¶ 61. 

¶ 50 In this court, defendant concedes that he agreed to proceed pro se knowing that 

he faced the possibility of 14 years in prison on each of the aggravated battery 

counts under the extended term provisions. Defendant claims, however, that he may 

have considered it unlikely that he would receive an extended term sentence 

because he knew he had never been convicted of a residential burglary and, for that 

reason, may have elected to proceed without counsel. Defendant also argues there 

is a difference between being subject to a 14-year sentence on each count versus 

facing a 14-year sentence only if he was convicted on both counts and was 

sentenced to a term of 7 years on each count, to be served consecutively. Defendant 

further points to the trial court’s error in admonishing him that he faced an MSR

term of four years to life, when he only faced an MSR term of four years. 

¶ 51 According to defendant, the trial court’s misstatements prejudiced him in his 

decision to reject counsel. Defendant notes that he was dissatisfied with appointed 

counsel’s temperament and counsel’s refusal to file certain motions on his behalf. 

Defendant claims that, with accurate admonishments, he may have been more likely 

to countenance appointed counsel’s ill temperament. For that reason, defendant 

maintains that any errors in the trial court’s attempts to comply with Rule 401(a) 

were not harmless.

¶ 52 This court has consistently found substantial compliance with Rule 401(a) when 

the trial court accurately stated the maximum sentence prescribed by law. For 

example, in People v. Coleman, 129 Ill. 2d 321, 331 (1989), the trial court 

admonished the defendant that the maximum sentence prescribed by law was the 

death penalty and that the minimum sentence was a 20-year term of imprisonment. 

In fact, the minimum sentence was natural life imprisonment. Id. at 332. Coleman

stated that, “[w]here a defendant knows the nature of the charges against him and 

understands that as a result of those charges he may receive the death penalty, his 

knowledge and understanding that he may be eligible to receive a lesser sentence 

pales in comparison.” Id. at 333-34; see also Haynes, 174 Ill. 2d 204 (court found 

substantial compliance with Rule 401(a) where the defendant was admonished that 

he faced the possibility of the death penalty but was not admonished of the 

minimum and maximum penalties for a burglary charge); People v. Johnson, 119 
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Ill. 2d 119 (1987) (court found substantial compliance with Rule 401(a) where the 

defendant was admonished that he faced the possibility of the death penalty but was 

erroneously told that the minimum sentence was a number of years rather than life 

imprisonment). 

¶ 53 This court has found substantial compliance even where the trial court 

understated the maximum term prescribed by law in its admonishment. In Wright, 

2017 IL 119561, the trial court incorrectly admonished the defendant that he faced 

a 60-year maximum sentence, rather than the correct, 75-year maximum sentence. 

Wright found that the trial court had substantially complied with Rule 401(a) and 

that the defendant made a voluntary, knowing, and intelligent waiver of counsel 

prior to being allowed to proceed pro se, despite the trial court’s incorrect 

admonishment concerning the maximum sentence. Id. ¶¶ 54-55. Wright noted that 

the defendant’s reason for proceeding pro se was due to speedy trial concerns and 

did not hinge on the maximum sentence for the charged offenses. Id. ¶ 55. 

¶ 54 In this case, defendant was correctly admonished concerning the maximum 

sentence he could face. The trial court’s error was in admonishing defendant how 

he would serve that sentence and in overstating the MSR term. Defendant’s 

explanation to the court for proceeding pro se was that appointed counsel “has been 

abusive and aggressive toward me and forced papers in my hand, as well as using 

foul language when I asked him, at least, four times, to go to Court for a bond 

reduction, and he wouldn’t do that along with many other things.” As in Wright, 

the defendant’s reason for proceeding pro se did not hinge upon how defendant 

might serve the 14-year maximum penalty for the charges against him. Defendant’s 

speculation that he might not have proceeded pro se had he known how the 14-year 

penalty might be imposed is not supported by the record. Further, as the appellate 

court found, defendant chose to proceed pro se believing he potentially could face 

an MSR term of four years to life. Under the circumstances, we see no prejudice to 

defendant’s right to waive counsel when he was in fact subject to a significantly 

lower MSR term.

¶ 55 Defendant next argues that, even if he waived his right to counsel at trial, the 

appellate court erred in finding that he knowingly waived his right to sentencing 

counsel. Defendant claims that the discovery that he was not subject to extended 
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term sentencing was a substantial change of circumstances requiring 

readmonishment prior to sentencing. 

¶ 56 This court applies the “continuing waiver” rule regarding a defendant’s waiver 

of counsel. People v. Simpson, 172 Ill. 2d 117, 138 (1996). The continuing waiver 

rule provides that, “absent significantly changed circumstances or a later request 

for counsel, an intelligently and knowingly made waiver of counsel applies to all 

phases of trial.” Id. Circumstances that require a trial court to readmonish the 

defendant before sentencing “include lengthy delays between trial phases, newly 

discovered evidence which might require or justify advice of counsel, new charges 

brought, or a request from defendant.” Id. 

¶ 57 Defendant argues that the discovery that he was not subject to extended term 

sentencing was a substantial change in circumstances requiring readmonishment. 

The appellate court rejected this claim, holding that the discovery that “defendant 

was not extended-term eligible[ ] did not alter the true maximum penalty defendant 

was facing.” 2022 IL App (4th) 200656-U, ¶ 60. Nor did defendant give any 

indication that he wanted the assistance of counsel at sentencing. Id.

¶ 58 The appellate court was correct. Defendant characterizes the finding that he was 

not eligible for extended term sentencing as an amendment to the information. It 

was not. As the appellate court found, defendant was always on notice that he faced 

a maximum sentence of 14 years’ imprisonment. A change in how the 14-year 

sentence might be imposed did not constitute a significant change in circumstances 

requiring the trial court to readmonish defendant of his right to counsel at 

sentencing. 

¶ 59 As the appellate court found, the trial court substantially complied with Rule 

401(a) in admonishing defendant. Defendant therefore effectively waived his right 

to counsel at trial and continuing through sentencing. Because the trial court 

substantially complied with Rule 401(a), defendant has failed to establish a clear or 

obvious error as required to obtain relief under the plain-error doctrine. The 

appellate court correctly rejected defendant’s claim that he did not knowingly waive 

his right to counsel. 
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¶ 60 CONCLUSION

¶ 61 For the foregoing reasons, we affirm the appellate court’s finding that defendant 

waived any claim that his statutory right to a speedy trial was violated. We also 

affirm the appellate court’s determination that defendant’s waiver of his right to 

counsel at trial and sentencing was voluntary, knowing, and intelligent based upon 

the trial court’s substantial compliance with Rule 401(a). We therefore affirm the 

appellate court’s judgment on those issues. We remand the case to the trial court 

for further proceedings consistent with the appellate court’s order remanding the 

case to the trial court for resentencing on the reduced convictions for aggravated 

battery.

¶ 62 Appellate court judgment affirmed.

¶ 63 Cause remanded.