## 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 . Sheley , 2012 IL App (3d) 090933

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. NI CHOLAS T. SHEL EY, De fenda nt-Appellant.

District & N o. Third District Docke t No. 3-09-0933

Filed J anuar y 5, 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

. ) In a prose cution for a g gravated batter y , ag gravated assault and c riminal damag e to state-supporte d proper ty , the trial court err ed in denying defe ndant’s reques t t o p ro cee d pro se wher e the trial court did not find that defe ndant suffe red f

rom a “ sever e mental ill ness” to the extent that he was not competent to conduct trial proce eding s by himself, as require d by t he decision of the United States Supreme Court in Indiana v. Edwards
, even though defe ndant may have had difficulty controlling his emotions, especia lly

when ther e wa s nothing in the rec ord showingthat allowinghim to procee d pro sewould result in an unfa ir trial.

Dec ision Under Review Appea l from the Circuit Court of Knox County
, No. 09-CF- 225; the Hon. Stephen C. Mathers, Judge , presiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Fletc her P. Hamill (argued), of State Appellate De fe n der’ s Offic e, of Ottawa, f or appe llant.

J ohn T. Pepmeyer, State’ s Attorney , of Galesburg (Ter ry A. M erte l and Thomas D. Ara do (argued), both of State’s Attorn ey s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE LYTTON de livered thejudgme nt of the cour t, with opinion.
J ustices Carter

and Holdridg e conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Nicholas Sheley was convicted of ag gravated battery ( 7 2 0 IL CS 5 /1 2 -4(b) (18) (West 2008)), ag gravated assault (720 I L CS 5/12-2(a) (6) (West 2008)) and criminal damag e to g overnme nt-supported pro p er ty (720 I L CS 5/21-4(1)( a) (West 2008)). On appea l, defe ndant ar gues that the trial c ourt err ed in deny ing his re quest to proce ed pro sebeca use the court failed to find, pursuant to Indiana v. Edwards
, 554 U.S. 164 (2008), that he suffe red from a “seve re mental illness” to the p oint that he could not conduct his own defense. W e

reve rse a nd rema nd. ¶ 2 Whil e in custody on multipl e m u rd er charg es, defendant was charg ed with aggravated battery
, ag g ravated assault and criminal damag e to proper ty for alleg edly dismantling a chair belong ing to the K

nox County jail a

nd throwing its leg s at a group of corr ectional office rs. ¶ 3 Def

ense counsel was appointed to repr esent defe ndant and subsequently filed a motion entitled “Response to Def endant’ s Ora l Motion to Represe nt Himself.” In the mo t i o n , counsel indicated t h at defe ndant had made an earlier oral motion to repr esent himself. Counsel further noted that defe ndant was awa iting trial for first degree murder and fac ed the death pe nalty

in Knox County

case No. 08-CF- 338. ¶ 4 Attache d to the motion was a repor t by neurolog ist Dr. Robert Hanlon. Dr. Hanlon was asked to examine defe ndant in case No. 08-CF- 338 and provide an objective assessment of defe ndant’s cognitive abilities, incl uding his mental capa city to stand trial, waive trial

co u n s el and repr esent himself at trial. Dr. Hanlon interviewe d defe ndant on October 3 1
, 2008, and Dec ember 6, 2008

. His repor t stated that during the interviews, defe ndant was “consistently aler

t, responsive, and oriented to person, place
, time, and rea s on for the

ev al u at i o n

. ” He also noted t hat defendant had a his tory of poor ang er manag ement and an

e xplosive persona lity and that defe ndant had eng ag ed in “high-volume cra ck coca ine bing e s ” when he was not in jail. He stated that defe ndant’s frustration toleranc e was varia ble but that he showe d normal per sistence a nd “ter mination of responses.”

-2-¶ 5 Def endant tested in the normal intelligenc e quotient (I Q) rang e and his overa ll ex ecutive function was found to be normal. In addition, defe ndant was ab l e to explain the charg es ag ainst him; he under stood the roles of the c ourtroom per sonnel and the witnesses; and he understood the diff

ere nce be tween a

jury trial and a

bench trial. ¶ 6 Dr. Hanlon diagnosed defe ndant with cognitive disorder not otherwise specifie d, coca ine and alcohol abuse, and persona lity disorder not otherwise specifie d. He believed defe ndant possessed the basic mental ability to rende r him fit to stand trial and that defe ndant had the
capa city to knowing ly and intelligently appre ciate his right to counsel. Howeve r, he conclude d that defe ndant could not “re alistically appre ciate the conseque nces and potential pitfalls of waiving his right to counsel.” He specific ally noted that defe ndant could org anize and prepa

re for trial and could u nderstand courtroom developments but could not consistently think coher ently and objectively or maintain his temper. Thus, overa ll, Dr. Hanlon opined that defe ndant lacke d the cognitive capa city to eff ectively repr esent himself in a cour troom. ¶ 7 At the hearing on the motion to proceed pro se , the trial court addre ssed defe ndant and

rea d sever al admonishments to him. Def endant indicated that he understood the trial
proce eding s. Specifica lly
, defe ndant stated that he understood that he would have to follow

ce rt ain rules and proce dures; that the prosec utor and defe nder wer e experience d attorney s who understood those rules ; that if he missed an objection, he might waive his right to challeng e inadmissable evidenc e on appea l; that he would hav e t o p repa re his own jury instructions and make his own trial decisions; that the judge would not be able to help him; that he would not be able to chang e his mind reg arding self-r epre sentation midtrial; and that

a conviction could be used ag ainst him in a capital sentenc ing hearing. The defe ndant stated that he understood the implications of self-r epre sentation and still wished to proce ed pro se

. ¶ 8 Ten day s later, the defe ndant was arr aigned on the charg es in this case

. Whil e befor e the court, de fenda

nt stated that he ha d decide d to acc ept the public def ender as his counsel. ¶ 9 Four months later, defe nse co u n s el an d d ef en dant appea

red in court on defe ndant’s motion to extend discovery dates. Def ense counsel indicated to the court that he neede d more t i m e to file the motions he wanted to file. The court expressed its displeasure at t h i s

. I n response to the trial court’s rea ction, defe ndant asked to addre ss the court and stated, “I see wher e thi s i s h eading at this time.” He asked the court not to hold his counsel’s failure s ag ainst him and indicated that he was unhappy with the wa y i n which his attorney was handling the case

. He then stated that he no longe r wanted to be repr esente d by counsel and that he wished to proce ed pro se and that he might be able to hire private counsel. The court informed defe ndant that a written reque st to proce ed pro se was require d, and the matter was continued. ¶ 10 Shortly there afte r, defe ndant filed a motion to proce ed pro se

. The motion raised sever al issues reg arding defe nse counsel’s strateg ies and noted that psychiatrist Dr. Terr y Killian had examined defe ndant and f ound him capableof re prese nting himself. ¶ 11 Dr. Killian’s repor t was subsequently prese nted to the court. In his report , Dr. Killian stated t hat he had been a

ppointed by the t rial court to evaluate defendant’s fitness to stand trial in case No. 08-CF- 388. He conducte d two interviews with defe ndant, one lasting 4 hours

-3-and 48 minutes and the other lasting nearly 3 hours. Dr. Killian n o t ed t h at defe ndant

demonstrated a thorough understand i ng of the charg es ag ainst him. Def endant told Dr. Killian that he felt his attorne y was causing too many delay s and believed that the delay s g ave the State more time to build its case

. Severa l times du ri n g t h e interviews, defe ndant stated that if the State had the evidenc e it claimed to possess, the outcome of his trial would be the same reg ardle ss of who repr esente d him. He understood that trained attorney s wer e better e quipped to handle his def ense but stated that he wanted to r epre sent himself so that his defe nse would be handled acc ordingto his wishes. Def endant acknowledg ed his ang er control issues, but he told Dr. Killian that he w ould not be disruptive in court. ¶ 12 Dr. Killian diagnosed defe ndant with cocaine-induce d hal l u ci n at i o n s , whi ch wer e in remission, and “proba

ble” antisocial per s o nality disorder. Howeve r, he stated that in his medical opinion, defe ndant did not suffe r from any mental impairments that would aff ect his fitness to sta

nd trial or his a

bility to know ingly and intelligently waive his right to c ounsel. Dr. Killian base d his opinion on defendant’ s ability to remain foc used duringboth leng thy in t er v i ews, his understanding of courtroom proce dures, and his acknow ledgment that his attorney s knew more that he did reg arding leg al strateg ies. Dr. Killian noted that defe ndant distrusted his attorney s but that his distrust did not rise to the level of para noia. He conclude d that defe ndant was f

it to waive counse l and was c ompetent to defe nd himself at trial. ¶ 13 At the hearing on defe ndan t ’s m o t i o n t o p ro ce ed p r o se , defe ndant discussed his complaints reg arding counsel’s perf ormanc e in detail. Counsel then defe nded his decisions and strateg ies. After hearing arg uments by defe ndant and counsel, the trial court admonished defe ndant conce rning his reque s t t o proce ed pro se

. The court informed defe ndant of the difficulties he would fac e and that he would not be able to r aise his own ineffe ctiveness on appea l. The court also reminded defe ndant that he would not be able to chang e his mind once the trial started. Def

endant stated that he understood and t h at he still wished to repr esent himself. ¶ 14 At the close of the hearing, the trial court fo un d t h at co u n s el ’s perf ormanc e was not lacking

. The court indicated that it had revie wed Dr. Killian’s and Dr. Hanlon’s repor ts. The
court noted that Dr. Hanlon stated that d ef en d an t suffe red from “poor ang er control” and

some impairment of executive function. The court also noted that this case was unique beca use defe ndant was fa ci n g the death penalty in another case

. The court then denied defe ndant’s motion, stating:
“B ec ause of the dang er in that subsequent case and the ease with which an uninitiated, inexperience d individual who doesn’t know the law[,] beca use of the

ease with which experience d counsel co u l d draw out damag ing information and/or admissions from you that might not even be important for this trial in front of a jury but which might very well be lethal to you in your capital murder case , I ’m denying your re quest to repr esent y ourself he re.” ¶ 15 After denying defe ndant’s moti o n fo r s el f- re p resentation, the trial court c onsidered defe nse counsel’s motions in limine

. As the trial court stated its ruling s, defe ndant yelled at the judge
, claiming that he was “ignorant and repulsive, stupi d i t y , i gnorant and repulsive, stupidity , that was stupid.” De fenda nt was re moved from the c ourtroom.

-4-¶ 16 At trial, defe ndant was f ound guilty on all counts. Def ense counsel filed a motion for a new tria l, which included se vera l “ pro se ” cla ims of ineffe ctive assist ance

. At the hearing
, the court asked counsel whether he adopted the pro se issues as his own. Counsel stated that he was not adopting defe ndant’s arguments as his own but that defe ndant would have raised the issues if he had been allowed to pr ocee d pro se . The c ourt denied the motion for a new trial without commenting on defe ndant’s ineffe cti v e as s i s tance of counsel claims. It then
sentenc ed def

endant to an a g g reg ate ter m of seven year s’ imprisonment.

¶ 17 ANALYSI S ¶ 18 Def

endant claims t h at t h e t ri al co u rt abused its discretion in denying his reque st to proce ed pro se beca

use the court did not find, nor does the rec ord indicate, that he suffe red from a “s ev er e mental illness” to the extent that he was not competent to conduct trial
proce eding s by himself, as require d by the United States S up re me Court’s decision in Indiana v. Edwards , 554 U.S. 164 (2008). ¶ 19 The state and fede ral constitutions guara ntee a defe ndant the right to self-represe ntation in the trial court. U.S. Const., amends. VI
, XIV; I ll. Const. 1970
, ar t

. I
, § 8

. When a defe ndant elec ts to proce ed pro se , the trial judge is require d to admonish him of the nature of the charg e, the possible penalties should he be convicted, and his right to be repr esente d by counsel. I ll. S. C t. R. 401(a) (e ff. July 1, 1984). ¶ 20 For many year s, constitutional law require d courts to allow a de fenda nt to procee d pro

se as long as the defe ndant was fit to stand trial and the judge was satisfied that the defe ndant understood the admonishments and was executing his or her waiver of counse l knowingly and voluntarily

. See People v. Lego
, 168 I ll. 2d 561 ( 1995). Rece ntly
, howeve r, the United States Supreme Court rec onsidered the constitutional provisions g overning a d efendant’s right to self-re prese ntation in Edwards

. Edwards , 554 U.S. at 174. ¶ 21 In Edwards
, the defe ndant suffe red from schizophrenia. He was initially found to be unfit for trial and was committed to a mental fac ility for sever al months on two separ ate occa sions. He was eventua lly found to be fit and tried. During the trial proce eding s, the defe ndant filed

sever al pro se motions that contained incoher ent and ill o gi ca l argume nts unrelated to the issues at trial, one of which included a reque st to proce ed without the assistance of counsel. The trial court ref

used to allow the defe ndant to proce ed pro se

. Edwards
, 554 U.S. at 170- 71. ¶ 22 On appea l, the United Stat es S up re m e C ourt deter mined that a fit defe ndant could be denied the right of self-r epre sentation. Edwards
, 554 U.S. at 175. The Court conclude d that “the Constitution permits States to insist upon repr esentation by counsel for those competent enough to stand trial under Dusky [ v. United States
, 362 U.S. 402 (1960) (per curia m),] but who still suffe r from s ev er e m en t al illness to the point wher e they are not competent to conduct tria l proce eding s by themselves.” Id. at 178. ¶ 23 In rea ching its decision, the Court noted that, under Faretta v. Calif ornia
, 422 U.S. 806 (1975), the six th and fourtee nth amendments included a constitutional right to proce ed without counsel when a criminal defe ndant voluntarily and intelligently elec ts t o do so. Edwards
, 554 U.S. at 170-71. The Court rec ognized the acc used’s choice to proce ed without

-5-an attorney , even though the decision may lead to his or her own detriment. Howeve r, the

Court deter

mined that the right to self-r epre sentation could be limit ed based on mental competenc y , noting that the right to proce ed p r o s e wo u ld not aff irm the dignity of a defe ndant who lac ked the menta l capa city to conduct his defe nse without the assistance of counsel. Id. at 178. ¶ 24 Subsequent case s applying Edwards have found that a defe ndant was properly denied the right to proce ed pro se wher e (1) the defe ndant suffe red from schizophrenia and ref used to take his medication (

Ji v. State
, 316 S.W .3d 860 (Tex. Ct. App. 2010)), (2) the defe ndant suffe red from a sever e mental illness with para noid ideations ( State v. McNeil
, 963 A.2d 358 (N.J. Super. Ct. App. Div. 2009)), and (3) the defe ndant was schizophrenic and a psychiatrist opined that he wa s i n cap able of controlling his outburst and would cre ate “a specta cle” duringtrial ( State v. Lewis , 785 N.W.2d 834 (Neb. 2010))

. ¶ 25 Her e, the rec ord fails to show that defe ndant suffe red from a “seve re mental illness” that would aff ect his compe tency

to conduct his own def

ense. B oth Dr. Killian and Dr. Hanlon opined that def

endant ha d coca ine-induce d mental hallucinations i n the past and e x hibited antisocial behavior
, but neither expert diagnosed a sever e m en t al illness. Dr. Killian

s p e c if ically found that defe ndant did not suffe r from any mental impairment that would af f e c t his fitness to stand trial or his ability to repr esent himself. Although Dr. Hanlon opined that defe ndant was incapa

ble of self-r epre sentation, he noted that defe nd an t wa s of aver ag e intelligenc e and within the normal rang e of executive function. He also ref raine d from diagnosing defe ndant as suffe ring from a s p ec ific mental illness. Def endant demonstrated to both Dr. Hanlon a

nd Dr. Killian that he understood the charg es ag ainst him, that he was knowledg eable reg ardingcourtroom procee dings, and that he wa s coher ent and c apable of participating e ffe ctively

in a conve rsation. ¶ 26 The defe ndant’s courtroom demea nor also demonstrated his ability to repr esent himself. Def endant actively partici p at ed in defe nse counsel’s arguments and motions. Def endant interjec ted when he rea liz ed that co u n s el filed sever al pretria l motions in an untimely

manner , asking the court not to hold counsel’s perf ormanc e ag ainst him. In addition, defe ndant filed a

well-written and log ical motion to procee d pro se

. ¶ 27 The only evidenc e of defe ndant’s lack of control in this case occur red afte r the trial court denied his pro se reque st and defe nse counsel’s pretria l motions. Alt h o u gh d efe ndant’s
courtroom outburst w as inappropriate, it a ppear ed to be an isolated incident that transpire d afte r the trial court’s adver se ruling s. It does n o t support the denial of defe ndant’s constitutional right to foreg o the assistance of counse l. Cf. Lewis , 785 N.W.2d at 841 ( pro

se motion denied wher e defe ndant had extensive history of exhibi ting bizarre behavior and becomingdisruptive at pre trial hea ring s). ¶ 28 In this case, de fenda nt’s mental and e motional capabilities indicate that he can pr epar e his own defe nse. Although defe ndant may have difficulty controlling his emotions, he does
not suffe r from a severe mental illness that impairs his ability to conduct trial proce eding s under the Edwards standard. Moreove r, n o t h i n g in the rec ord demonstrates that allowing defe ndant t o proce ed pro se would result i n an unfa ir trial on these c harg es. Thus, the trial
court err ed in denying defe ndant the ri ght to repr esent himself. We there fore rema nd the

-6-cause for a new tria l. ¶ 29 Ba sed on our decision, we need not revie w defe ndant’s postt ri al claims of ineff ective assistance

.

¶ 30 CONCLUSI ON ¶ 31 The judgme nt of the circ uit court of Knox County is reve rsed, and the cause is r emande d for a new tria l.

¶ 32 Reverse d and re manded.

-7-