People v. Nemec , 430 Ill. Dec. 665 ( 2019 )

2019 IL App (2d) 170382No. 2-17-0382
Opinion filed April 24, 2019
________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Carroll County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-DT-75
)
WILLIAM L. NEMEC, ) Honorable
) John F. Joyce,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Defendant, William L. Nemec, appeals from an order of the circuit court of Carroll
County revoking his court supervision for driving under the influence (DUI) (625 ILCS 5/11-
501(a)(2) (West 2014)), entering a judgment of conviction, and ordering him to pay all
remaining fines and fees. On appeal, defendant argues that he was deprived of his right to
counsel where he represented himself at his revocation hearing without being admonished of or
waiving his right to counsel. For the reasons that follow, we vacate the order and remand for
further proceedings.
¶2 I. BACKGROUND
2019 IL App (2d) 170382¶3 On August 29, 2014, defendant was charged by complaint with DUI (id.), a Class A
misdemeanor traffic offense (id. § 501(c)(1)). On October 20, 2014, at defendant’s first
appearance, the State advised the trial court that defendant had other traffic cases pending for
which the public defender had been requested and appointed. The State further advised that
defendant had requested that the public defender be appointed to represent him on the DUI
charge. The trial court asked defendant whether his financial situation had changed since the
public defender had first been appointed, and defendant replied that it had “gotten worse.” The
trial court appointed the public defender.
¶4 On May 1, 2015, the parties informed the trial court that an agreement had been reached
with respect to numerous charges against defendant, including the DUI charge. 1 Pursuant to the
agreement, defendant pleaded guilty to DUI and was placed on 24 months’ court supervision and
ordered to pay various fines and costs by September 30, 2016.
¶5 On January 3, 2017, the State petitioned to revoke court supervision, alleging that
defendant willfully failed to pay his fines and costs by September 30, 2016.
¶6 On February 6, 2017, defendant appeared without counsel. The trial court, after noting
that defendant was pro se, stated as follows:
1
Pursuant to the agreement, defendant pleaded guilty and convictions were entered in the
following cases: 14-TR-611 (court costs imposed), 14-TR-612 (court costs imposed), 14-TR-613
($350 fine and court costs imposed), 14-TR-614 (court costs imposed), 14-TR-1267 (court costs
imposed), 14-TR-1270 (court costs imposed), 14-TR-1272 (court costs imposed), and 14-TR-
1274 (court costs imposed). The following cases were dismissed: 14-TR-615, 14-TR-616, 14-
DT-74, 14-TR-1268, 14-TR-1269, 14-TR-1271, and 14-TR-1273. Defendant was ordered to pay
$50 per month to cover the fine and costs in these cases.
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2019 IL App (2d) 170382“[Defendant], on May 1, 2015, you were admitted to 24 months of court
supervision for a DUI. The Petition to Revoke alleges that you failed to pay your fines
and costs. If the State can show by a preponderance of the evidence that you did
something you weren’t suppose [sic] to do or you didn’t do something you were suppose
[sic] to do, then your supervision could be revoked and if it was revoked a conviction
could enter which would have a serious effect on your driving privileges.
You could be resentenced to a period of up to one year in the Carroll County Jail.
You also could have your fine increased to an amount not to exceed $2,500.00. Your
period of time being on probation or supervision is already maxed out at the 24 months.
So where are we going with [defendant]?”
The State asked for a hearing, and the trial court set the matter for March 17, 2017.
¶7 At the start of the revocation hearing on March 17, 2017, the trial court again noted that
defendant was appearing without counsel. The State asked the court to take judicial notice of the
court file and the outstanding balance of $1657. The court asked defendant if he had paid the
balance. Defendant indicated that he had paid the costs imposed with respect to his other cases
but that he had not paid those imposed for the DUI. He asked the court to give him 90 days to
sell certain equipment so that he could make the payment. The court told defendant that it just
wanted to know if defendant had paid the balance that was due. Defendant again stated that he
had not.
¶8 The State called defendant to testify. Defendant testified that his only source of income
was $1288 per month in Social Security. Defendant testified to his monthly expenses and
testified that, since August, he had also spent $2000 to run for mayor. After the State rested its
case, defendant explained that he had been trying to sell various pieces of construction
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2019 IL App (2d) 170382equipment but that it had cost money to get the equipment into selling condition and to run
advertisements in local papers.
¶9 The trial court held defendant in contempt of court, finding that defendant’s failure to pay
was willful and wanton, specifically noting that defendant had “chosen to pay other things.” The
matter was set for sentencing. The court then advised defendant as follows:
“Now let me tell you what my options are. Okay. I can revoke your supervision.
If I do that, then I can sentence you to a period not to exceed one year in the Carroll
County Jail, number one.
Number two, a conviction would be entered which means then you’ll definitely
never drive again and you’ll have a criminal record.
Option number three, I could increase your fine. Okay. That could only go up
another seven hundred and some bucks. You can’t pay $1,700.00. I don’t think you’re
going to be able to pay $2,500.”
The court further advised defendant that, with respect to the finding of contempt, it could either
fine defendant or incarcerate him for up to six months.
¶ 10 The sentencing hearing took place on April 24, 2017. At the outset of the hearing,
defendant told the court that he had mailed in an application to have the public defender
appointed. The court noted that defendant filed his financial affidavit on April 19, 2017. The
court then stated: “So you’re asking now that we’ve gone through a hearing on this and all of the
continuances, now at this point when it comes to settling—sentencing, you’re asking for a Public
Defender?” Defendant responded, “Well, I guess I could have asked a long time ago, but that’s
something that I evidently didn’t do.” The State asked the court to deny defendant’s request to
have the public defender appointed. The court did so, and the matter proceeded.
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2019 IL App (2d) 170382¶ 11 The State asked the court to take judicial notice of defendant’s failure to pay since the
revocation hearing, which the court did. Defendant then testified on his own behalf.
¶ 12 Following defendant’s testimony, the trial court revoked defendant’s supervision, entered
a judgment of conviction, and ordered defendant to pay off the remaining fines and costs at a rate
of $100 per month until March 28, 2018.
¶ 13 Defendant timely appealed.
¶ 14 II. ANALYSIS
¶ 15 Defendant argues that he was deprived of his right to counsel where he represented
himself at his revocation hearing without first being admonished of or waiving his right to
counsel. In response, the State maintains that defendant knowingly and intelligently waived his
right to counsel where the trial court substantially complied with Illinois Supreme Court Rule
401(a) (eff. July 1, 1984) and where, despite not being told of his right to counsel, the record
shows that defendant was aware of that right but chose not to be represented at the revocation
hearing.
¶ 16 Initially, we note that defendant forfeited the issue by failing to raise it below.
Nevertheless, “[b]ecause the right to counsel is fundamental, an appellate court may review a
failure to substantially comply with Rule 401(a) under the plain-error doctrine despite a
defendant’s failure to properly preserve such an error.” People v. Vázquez, 2011 IL App (2d)
091155, ¶ 14.
¶ 17 There is no question that defendant had a statutory right to counsel at the hearing on the
State’s petition to revoke his supervision. See 730 ILCS 5/5-6-4(c) (West 2016) (“The evidence
[at a hearing on a petition to revoke supervision] shall be presented in open court with the right
of confrontation, cross-examination, and representation by counsel.”); see also 725 ILCS 5/113-
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2019 IL App (2d) 1703823(b) (West 2016) (“In all cases, except where the penalty is a fine only, if the court determines
that the defendant is indigent and desires counsel, the Public Defender shall be appointed as
counsel.”); People v. Campbell, 224 Ill. 2d 80, 85 (2006) (“[E]ven if defendant did not possess a
sixth amendment right to counsel in this case, he did possess a statutory right to counsel, as this
was not a case in which the penalty imposed was a fine only.” (Emphasis in original.)).
Therefore, prior to allowing defendant to represent himself, the trial court was required to obtain
a waiver of defendant’s right to counsel pursuant to Rule 401(a). See People v. Wright, 2017 IL
119561, ¶ 41 (“[C]ompliance with Rule 401(a) is required for an effective waiver of counsel.”).
¶ 18 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) states as follows:
“(a) Waiver of Counsel. 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.”
“The purpose of Rule 401(a) is to ensure that any waiver of counsel will constitute the
intentional relinquishment of a known right.” People v. Ames, 2012 IL App (4th) 110513, ¶ 29.
Our supreme court has noted, “ ‘[S]trict technical compliance with Rule 401(a) *** is not always
required. Rather, substantial compliance will be sufficient to effectuate a valid waiver if the
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2019 IL App (2d) 170382record indicates that the waiver was made knowingly and voluntarily, and the admonishment the
defendant received did not prejudice his rights.’ ” Wright, 2017 IL 119561, ¶ 41 (quoting People
v. Haynes, 174 Ill. 2d 204, 236 (1996)).
¶ 19 The State argues that, because the trial court substantially complied with Rule 401(a) and
because defendant was aware of his right to counsel, his “waiver” was effective. The trial court
admonished defendant in accordance with sections (a)(1) and (a)(2) of Rule 401, but it did not
admonish defendant in accordance with section (a)(3). To be sure, as noted by the State, courts
have found effective waivers of counsel where there had been no admonishment of the right to
counsel. See People v. Phillips, 392 Ill. App. 3d 243, 260-61 (2009) (the defendant’s “clear and
unequivocal waiver,” which he made several times, was valid, despite the trial court’s failure to
admonish him of the nature of the charge or of his right to counsel, where the defendant was
represented by appointed counsel and counsel was present when the defendant expressly stated
that he wished to represent himself); People v. Jackson, 59 Ill. App. 3d 1004, 1008 (1978) (the
defendant knew of his right to counsel, despite not being admonished of that right, where the
defendant had been represented by the public defender until he discharged him against the advice
of the trial court, and thus the defendant’s waiver of counsel was valid).
¶ 20 Here, however, unlike in the cases cited above, we are not asked to consider whether
defendant’s express request to proceed pro se was made knowingly, despite the trial court’s
incomplete admonishments, because defendant never made such a request. In order to accept the
State’s argument that defendant knowingly waived counsel, we would have to find that
defendant’s silence after the trial court noted that he was appearing pro se constituted an
“intentional relinquishment of a known right.” See Ames, 2012 IL App (4th) 110513, ¶ 29.
Given the trial court’s failure to admonish defendant that he had the right to counsel at the
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2019 IL App (2d) 170382revocation hearing, we will not make such a finding, as the record does not support an inference
that defendant knew of his right to counsel. We reject the State’s argument that defendant’s
statement at the beginning of the sentencing hearing—“[w]ell, I guess I could have asked a long
time ago, but that’s something that I evidently didn’t do”—indicated that he knew of his right to
counsel when he appeared at the revocation hearing. Indeed, defendant could have learned of the
right after the revocation hearing and only now realized that he “could have asked a long time
ago.” And although defendant was represented by the public defender when he pleaded guilty in
the present case, he was not represented when he first appeared on the petition to revoke
supervision, a distinct proceeding. In fact, he was never represented with respect to the petition.
Thus, we cannot infer that defendant knew that he had a right to counsel on the petition.
¶ 21 Based on the foregoing, we find that, under the circumstances presented here, the trial
court’s failure to admonish defendant of his right to counsel and failure to obtain a knowing
waiver of counsel constituted plain error, and thus the order granting the petition to revoke
supervision, as well as the conviction, must be vacated.
¶ 22 The question becomes whether the case should be remanded for a new hearing on the
petition. Defendant, relying on Campbell, argues that, because he has since complied with the
terms of his court supervision, a remand would be neither equitable nor productive. In
Campbell, following a bench trial, the defendant was found guilty of driving on a suspended
license. Campbell, 224 Ill. 2d at 83. He was sentenced to 12 months’ conditional discharge,
ordered to pay a $100 fine, and ordered to perform 240 hours’ community service. Id. On
appeal, the defendant argued that his conviction should be reversed because the trial court
accepted his waiver of counsel without complying with Rule 401(a). Id. At the time of appeal,
his sentence had been fully discharged. The supreme court agreed with the defendant, holding
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2019 IL App (2d) 170382that, where there was no compliance, substantial or otherwise, with Rule 401(a), the defendant’s
waiver of counsel was ineffective. Id. at 84-85. The court vacated the defendant’s conviction of
DUI outright, noting that the “defendant has already discharged his sentence, and a new trial
therefore would be neither equitable nor productive.” Id. at 87. The State filed a petition for
rehearing, arguing that vacating the defendant’s conviction conferred a “ ‘windfall’ ” on him. Id.
at 88 n.1. The State requested a new trial. Id. The court rejected the State’s argument and
stated, in relevant part, as follows:
“We question whether defendant would perceive himself the beneficiary of a ‘windfall,’
having already served the 12 months of conditional discharge, performed the 240 hours
of community service, and paid the $100 fine imposed in this case. In any event, the
State did not raise this argument in its brief and therefore under Supreme Court Rule
341(e)(7) *** may not raise it in arguing for rehearing.” Id.
¶ 23 The State, relying on Vázquez, 2011 IL App (2d) 091155, argues that we should remand
the cause for a new hearing on the petition to revoke supervision. In Vázquez, the State charged
the defendant with two misdemeanors: contributing to the delinquency of a minor and harboring
a runaway. Id. ¶ 4. The defendant waived his right to counsel and proceeded to a jury trial. Id.
¶¶ 4, 9. The jury found the defendant guilty on both counts, and the court sentenced him to
concurrent terms of probation, with 180 days in jail. Id. ¶¶ 9-10. The defendant appealed,
arguing, inter alia, that he did not receive sufficient Rule 401(a) admonishments and that the
court should vacate his conviction because he had already completed his sentence. Id. ¶ 1. The
State conceded that the admonishments were insufficient, but it disagreed as to the appropriate
remedy. Id. ¶ 12. The defendant argued that he was almost identically situated to the defendant
in Campbell and that a retrial would serve no good purpose. Id. ¶ 16. The State responded that
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2019 IL App (2d) 170382the defendant’s case was distinguishable from Campbell due to a disparity in the seriousness of
the offenses. Id. We agreed with the State and held that a retrial would be both equitable and
productive. Id. ¶¶ 16-17. We discussed Campbell’s holding and concluded, in relevant part, as
follows:
“We note that, generally, vacatur of a conviction is followed by remand for retrial, and
we conclude that a decision to vacate a defendant’s conviction without remand for retrial
must be limited to the facts of Campbell. We note further that the Campbell court’s
reasoning was that retrial would be neither equitable nor productive. The court did not
elaborate on which facts or circumstances it considered in concluding that retrial would
be neither equitable nor productive, nor did it enunciate factors to guide future courts. In
the absence of such guidance, we must look to the facts upon which the decision was
based. In Campbell, the facts included both that the defendant served his complete
sentence and that the charge at issue was a misdemeanor traffic offense—driving with a
suspended license.” (Emphasis omitted.) Id. ¶ 18.
As a result, we declined to apply Campbell to “criminal convictions of a very different character
from the one involved in Campbell.” Id. ¶ 19. In further distinguishing Campbell, we
emphasized that driving with a suspended license is a traffic offense that does not inherently
involve danger to the public, in contrast to the defendant’s charges of harboring a runaway and
contributing to the delinquency of a minor, which are offenses directed against minors, who are
most vulnerable and in need of protection. Id. ¶ 20.
¶ 24 Based on our reasoning in Vázquez, we agree with the State that a remand is warranted.
Like Vázquez, the present case is readily distinguishable from Campbell based on the seriousness
of the offense at issue. Here, defendant pleaded guilty to DUI, an offense of a very different
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2019 IL App (2d) 170382nature than driving on a suspended license given that it involves a clear danger to the public. To
be sure, defendant has since complied with the conditions of his court supervision. Nevertheless,
“[t]here is nothing inequitable in allowing the State the opportunity to obtain convictions for
wrongdoing, even if the court is ultimately unable to impose any additional penalty.” Id. ¶ 21.
Indeed, “the more severe the offense at issue, the greater the importance of the conviction.” Id.
¶ 25 Given the above, we conclude that a remand for a new hearing on the State’s petition to
revoke supervision is both equitable and productive.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we vacate the order of the circuit court of Carroll County granting
the State’s petition to revoke supervision, vacate the conviction entered thereon, and remand for
further proceedings.
¶ 28 Vacated and remanded.
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