People v. Palmer

Filed 5/23/08 NO. 4-07-0620

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
LEON PALMER, ) No. 01CF1149
Defendant-Appellant. )
) Honorable
) John K. Greanias,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In January 2006, a jury convicted defendant, Leon

Palmer (who had earlier waived his right to counsel and had

chosen to represent himself), of residential burglary (720 ILCS

5/19-3 (West 2000)). The trial court later sentenced him to 30

years in prison to be served consecutively with a sentence he had

been serving.

Defendant appeals, arguing that (1) because a bona fide

doubt existed as to his fitness, the trial court erred by allow-

ing him to represent himself at trial without first ordering a

fitness evaluation; (2) the prosecutor's closing argument (a)

improperly attacked defendant's integrity and tactics and (b)

impugned the exercise of his constitutional right to represent

himself; and (3) the court abused its discretion by refusing to

revoke defendant's waiver of counsel for postsentencing proceed-

ings. Because we agree only with defendant's third argument, we
affirm and remand with directions.

I. BACKGROUND

Because defendant challenges neither the sufficiency of

the evidence against him nor its admissibility, we discuss the

evidence and the case's procedural history only to the extent

necessary to put his arguments in context.

In August 2001, the State charged John Doe (identified

only by a description of his deoxyribonucleic acid (DNA)) with

(1) residential burglary (720 ILCS 5/19-3 (West 2000)) (committed

in August 2000), (2) two counts of aggravated criminal sexual

assault (720 ILCS 5/12-14(a)(2) (West 1998)), (3) unlawful

restraint (720 ILCS 5/10-3(a) (West 1998)), and (4) aggravated

battery (720 ILCS 5/12-4(b)(8) (West 1998)) (committed in July

1999). In June 2005, based upon a DNA match, the State moved to

amend the charging instrument to allege that defendant was the

offender. The State explained that it did not know the of-

fender's actual name when it filed the August 2001 charges. The

trial court later granted the State's motion to amend.

In August 2005, defendant appeared in court on these

charges and stated that he wanted to represent himself. The

court admonished him in accordance with Supreme Court Rule 401

(134 Ill. 2d R. 401) and accepted his waiver of his right to

counsel.

In September 2005, the State advised the trial court

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that because defendant had an extensive criminal record, the

possible sentences he faced upon conviction differed from those

that the court explained to defendant when he waived his right to

counsel. The court then informed defendant that it was going to

readmonish him regarding his right to counsel and the correct

penalties he faced. The court also explained that defendant had

another opportunity to accept the appointment of the public

defender's office. After the court again admonished defendant

pursuant to Rule 401, defendant (1) persisted in his intent to

represent himself and (2) again declined the court's offer of

appointed counsel. Defendant also expressed his unhappiness with

the proceedings, stating that they were "pointless."

During the course of pretrial and posttrial proceed-

ings, defendant pro se filed the following documents: (1) an

August 2005 motion to dismiss indictment instanter; (2) an

October 2005 motion for severance; (3) a November 2005 motion to

dismiss charges; (4) a January 2006 motion to dismiss instanter;

(5) a March 2006 motion to reduce his sentence and/or motion to

reconsider his sentence; (6) a May 2006 petition for court-

appointed counsel in relation to filing an amended motion, brief,

and written argument in postjudgment proceedings; (7) a July 2006

petition for writ of coram nobis; (8) a July 2006 petition for

relief from judgment; (9) a July 2006 petition to this court "for

leave to [file an] interlocutory appeal"; (10) a January 2007

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letter to the trial court requesting an extension of time to

complete his research so that he could file an amended sentencing

motion; and (11) a July 2007 motion to reduce his sentence.

In defendant's October 2005 handwritten motion for

severance, he wrote the following: "That the above said cases

was [sic] alleged to have been committed years apart[,] and if

said cases [are] allowed to be consolidated[,] it will prejudice

the jury." Defendant prevailed on this motion, given that the

State, in response, elected to try defendant only on the

residential-burglary charge.

In defendant's November 2005 pro se motion to dismiss,

he "vehemently denie[d] having been anywhere near the alleged

crime scene on the day of the event" and contended that the only

evidence the State had against him were "the bloodstain and the

semen [which] were years old when tested and finally reported[,]

causing at least drying, contamination[,] and generally deterio-

ration of the DNA sample." He asserted that this DNA evidence,

without corroboration, was insufficient to establish his guilt.

The trial court denied this motion, and the case proceeded to

trial.

During defendant's opening statement at trial, he

informed the jurors that his blood was present in the residence

and that he would try to show them how it got there. He also

told the jury that someone (whose name he did not know) who was

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related to the people who lived in the residence invited defen-

dant into the house to drink a beer. When he dropped the beer,

he cut his finger, and "a splatter got on the wall."

The State then presented evidence that a window in a

Decatur residence was broken out, and a bloodstain was left,

apparently by the burglar, on a table inside the residence near

the window. The family living in the residence testified (1) as

to the circumstances surrounding the burglary, (2) that they did

not know defendant, and (3) that he did not have permission to be

in their residence. Police and expert testimony described how

the bloodstain was processed and resulted in a DNA match for

defendant. After the State rested, defendant declined to put on

any evidence. Based on the evidence, the jury found defendant

guilty of residential burglary.

At defendant's February 2006 sentencing hearing, the

trial court received the presentence investigation report (PSI),

which showed that defendant was 50 years old and had eight prior

felony convictions, with his first occurring 30 years earlier.

Defendant's convictions included two for residential burglary,

two for burglary, and one for attempted burglary.

The State also presented testimony from a woman who

stated that as she walked home in Decatur on an evening in July

1999, a man began speaking with her and then dragged her from the

road. As she fought with him, the man hit her, knocking her

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unconscious. When she awakened, she was undressed and the tampon

she had been wearing due to her menstruation had been removed.

Decatur police officers later found her clothing and the tampon,

and subsequent testing showed the semen stain found on the

woman's shorts matched defendant's DNA profile.

The State's presentation of this evidence upset defen-

dant, who complained that he had not yet been convicted of this

1999 event and was present in court instead for sentencing

regarding the 2000 residential burglary. The trial court ex-

plained that the State was entitled to present this evidence, and

defendant responded that he wanted to leave the courtroom,

explaining, "You just go on and do what you got to do because I

don't want to hear no [sic] more of this kangaroo type of stuff."

After the State completed presenting evidence regarding

the 1999 incident, defendant returned to the courtroom, and the

trial court sentenced him to 30 years in prison on the

residential-burglary charge.

In March 2006, defendant pro se filed a motion to

reduce his sentence and/or reconsider the sentence. In later

pleadings related to that motion, defendant for the first time

asked for appointed counsel to represent him. In June 2006, the

trial court denied defendant's request for appointed counsel,

explaining as follows:

"(1) Defendant waived his constitutional

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 right to assistance of counsel for proceed-

ings in the [c]ircuit [c]ourt; (2) although

defendant has the right to appointed counsel

on appeal, he does not have the absolute

right to revoke his waiver at this stage of

the proceedings in the [c]ircuit [c]ourt; and

(3) defendant has not shown good cause for

the [c]ircuit [c]ourt to exercise its discre-

tion to allow withdrawal of defendant's waiv-

er of counsel."

In July 2006, defendant pro se filed with this court

his "petition for leave to [file] an interlocutory appeal," which

he stated was being made "pursuant to Supreme Court Rule 308"

(155 Ill. 2d R. 308). In that petition, defendant asserted that

the trial court erred by not appointing counsel at the

postsentencing stage in view of the "obvious behavior problems

during trial which created sufficient doubt about [defendant's]

competence." Defendant added the following: "The trial court

has ignored its reasonable duty to take reasonable measures to

thwart failures of fairness by not investigating his competency

before allowing him to represent his own criminal case *** and

waive counsel." In August 2006, this court denied defendant's

petition, explaining that Rule 308 does not apply to criminal

cases.

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 Also in July 2006, defendant pro se filed for writ of

coram nobis, challenging his conviction on the ground that the

trial court did not make inquiries to determine whether he was

competent to waive counsel. In support of that petition, defen-

dant asserted the following:

"Given the behavior by [defendant], including

outward fits of disorderly conduct during

trial, a sufficient doubt about [defendant's]

competence was created which required and

warranted further inquiry. The correct cour-

se was to suspend trial until evaluation

could be made."

In July 2007, the trial court conducted a hearing on

defendant's posttrial motions, including his petition for writ of

coram nobis, found them to be without merit, and denied them.

This appeal followed.

II. ANALYSIS

A. Defendant's Claim That the Trial Court Erred by Not
Ordering a Fitness Evaluation of Him

Defendant first argues that his conviction and sentence

must be reversed and remanded because the trial court erroneously

allowed him to represent himself at trial without first ordering

a fitness evaluation when a bona fide doubt existed as to his

fitness. Citing People v. Sandham, 174 Ill. 2d 379, 382, 673

N.E.2d 1032, 1033 (1996), and section 104-11(a) of the Code of

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Criminal Procedure of 1963 (725 ILCS 5/104-11(a) (West 2004)), he

contends that although a defendant is presumed fit to stand

trial, the court must still order a fitness hearing sua

sponte when a bona fide doubt of fitness arises. Defendant then

asserts that

"[t]hroughout the proceedings in this case,

the court never questioned [defendant's]

fitness to represent himself, despite re-

peated indications before and during trial

that [he] was unable to understand the nature

of the proceedings. Because a bona fide dou-

bt existed as to [defendant's] fitness, the

court had a sua sponte duty to appoint compe-

tent counsel and to have [defendant] evalu-

ated for fitness."

In support of defendant's claim that the record demon-

strates that a bona fide doubt arose as to his fitness to stand

trial or to represent himself, he cites the following: (1) when

the trial court described one of defendant's motions as "gibber-

ish" and asked him to explain it, defendant responded that he

could not see the papers "because of [his] eyes [and his] medical

problems"; (2) when defendant was readmonished regarding his

waiver of counsel under Supreme Court Rule 401, he objected to

the proceedings and initially stood mute in response to the

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court's questions; thereafter, when the court asked if he would

like the public defender's office to be appointed to represent

him, he replied, "I plead the fifth on that"; (3) the remarks

defendant made in his opening statement, particularly about how

he had been in the burglarized residence legitimately and cut his

finger there; (4) "throughout the trial, [defendant] expressed

confusion as to the nature of each exhibit and how one spot of

blood could yield several exhibits"; (5) "[defendant] had trouble

understanding that [one of the residence's occupants] had infor-

mation that might be harmful to [his] case"; (6) defendant told

the probation officer who wrote the PSI that defendant had been

suffering from diabetes for 5 1/2 years, had poor vision, had

arthritis, and his mental health was "not too good" as a result

of depression; and (7) defendant claimed that he took LSD (lyser-

gic acid diethylamide) every day for a year, 20 years earlier,

and had extensively smoked cannabis and crack cocaine. Defendant

summarized his argument as follows: "The defendant's demeanor,

irrationality, and mental[-]health issues should have triggered a

bona fide doubt of fitness to waive counsel." We deem defen-

dant's argument to be wholly without merit.

As the supreme court explained in People v. Johnson,

206 Ill. 2d 348, 361-62, 794 N.E.2d 294, 303 (2002), a defendant

is considered to be fit if he understands the nature of the

proceedings and can assist in his own defense. In Faretta v.

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California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525

(1975), the United States Supreme Court held that a defendant had

an absolute right to represent himself in a criminal case.

Following Faretta, the Supreme Court of Illinois held that

fitness to waive counsel requires no more than fitness to stand

trial. People v. Redd, 173 Ill. 2d 1, 23, 670 N.E.2d 583, 594

(1996). The standard of review regarding the issue of whether a

bona fide doubt existed as to defendant's fitness is abuse of

discretion. Sandham, 174 Ill. 2d at 382, 673 N.E.2d at 1033.

This record compellingly demonstrates that defendant

fully understood the nature of the proceedings and was clearly

able to assist in his own defense. Our earlier reference to some

of the documents defendant filed in this case strongly supports

this conclusion. Indeed, his three-page August 2005 motion to

dismiss indictment instanter demonstrated not only defendant's

command of the English language and his ability to write well,

but also his understanding of some legal technicalities. For

instance, in his October 2005 pro se motion, defendant wrote the

following: "Illinois law mandates that a person (inmate) shall

be taken before the nearest[,] most accessible magistrate in that

area (county), without unnecessary delay[,] and the same holds

true for anyone indicted by an information/indictment."

That portions of some of defendant's motions appeared

to the trial court to be "gibberish" does nothing to diminish our

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conclusion. See Redd, 173 Ill. 2d at 24, 670 N.E.2d at 595

(noting that the defendant's numerous and voluminous motions and

his imprecision in expressing himself as an attorney did not

demonstrate that he lacked the mental capacity to waive counsel).

Indeed, given the technical nature of the rules that apply to

evidence and procedure in criminal cases, we would have expected

to see more instances of "gibberish" than the court found.

We explicitly reject defendant's contentions that any

deficiencies in his pro se representation lend any support

whatsoever to his claim that he was somehow not fit to waive his

right to counsel. See Redd, 173 Ill. 2d at 24, 670 N.E.2d at 594

("Defendant's ability to articulate his case and to precisely

motion the court are merely measures of his proficiency or lack

thereof as a lawyer. His ability to represent himself is not

indicative of his competence to choose self-representation").

Ten years ago, this court noted that "a defendant's decision to

represent himself is universally viewed as unwise" (People v.

Williams, 277 Ill. App. 3d 1053, 1058, 661 N.E.2d 1186, 1190

(1996)), and we adhere to that opinion. Nonetheless, given

Faretta, a defendant retains the constitutional right to choose

to represent himself in a criminal trial no matter how unwise

that decision may be. Thus, as long as a trial court has prop-

erly admonished a defendant in accordance with Supreme Court Rule

401, we will not protect defendant from the consequences of his

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unwise decision to represent himself.

Were we to hold otherwise, we would be inviting defen-

dants "to game the system," a circumstance a California court

called, "[p]laying 'the Faretta game'." People v. Williams, 220

Cal. App. 3d 1165, 1169-70, 269 Cal. Rptr. 705, 707 (1990). Both

trial and reviewing courts must ever be wary of a defendant who

tries to use the exercise of one constitutional right--here, the

decision to represent himself at trial--against another--the

right to stand trial or waive counsel only if he is fit to do so-

-especially when that defendant can attempt to change the court-

room dynamics simply by his own conduct or, more likely, his own

misconduct.

Almost 30 years ago (even before Faretta), the Fifth

District addressed a situation very much like the one in this

case. In People v. Black, 68 Ill. App. 3d 309, 312, 385 N.E.2d

899, 902 (1979), the defendant was convicted of armed robbery

after waiving his right to counsel and choosing to defend him-

self. He argued on appeal that the trial court abused its

discretion by failing sua sponte to order a fitness hearing. The

Fifth District rejected that argument, writing as follows:

"An accused is not entitled to such a hearing

unless the trial court has notice of facts

which raise a bona fide doubt of defendant's

fitness or competency. [Citation.] A care-

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 ful reading of the record reveals no evidence

that defendant was unable to understand the

nature and purpose of the proceedings against

him nor unable to prepare a defense. [Cita-

tion.] Apparently[,] defendant's alleged

'irregular conduct' before and at trial was

no more than an attempt to disrupt these

proceedings. Accordingly, the trial court

did not err in failing to order a fitness

hearing on its own motion." Black, 68 Ill.

App. 3d at 314-15, 385 N.E.2d at 903.

We fully agree with Black's analysis and conclusion and hold that

they apply to this case.

In support of our rejection of defendant's argument, we

note that the trial court demonstrated its awareness of the issue

of fitness when the court, at the September 2005 readmonition

pursuant to Supreme Court Rule 401 regarding defendant's waiver

of his right to counsel (at which proceeding defendant expressed

his displeasure), stated the following:

"For the record[,] I am going to add we have

had this defendant in court before. There is

no basis to find him unfit, so I am not even

going to consider a fitness report. We have

seen his actions. This is [sic] the actions

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 of a person who understands what is going on,

and there is no reason to file a fitness

petition."

We conclude that (1) the record fully supports this determination

by the experienced trial court and (2) the court did not abuse

its discretion by not ordering a fitness examination of defen-

dant.

B. Defendant's Claim That the Prosecutor's Improper
Closing Argument Requires Reversal

Defendant next argues that reversal is required because

the prosecutor's "intentional misconduct included attacks on the

integrity and tactics of the pro se defendant, and impugned

[defendant's] exercise of his constitutional right to represent

himself." Defendant concedes that he made no objection to the

prosecutor's alleged improper argument but asks this court to

review the issue as plain error. Not only do we conclude that no

plain error is present, we conclude that the prosecutor's remarks

did not constitute error at all. See People v. Williams, 193

Ill. 2d 1, 27, 737 N.E.2d 230, 245 (2000) ("Before invoking the

plain[-]error exception, however, 'it is appropriate to determine

whether error occurred at all.' People v. Wade, 131 Ill. 2d 370,

376[, 546 N.E.2d 553, 555] (1989)").

In People v. Wheeler, 226 Ill. 2d 92, 123, 871 N.E.2d

728, 745 (2007), the Supreme Court of Illinois recently discussed

the applicable law when a defendant complains of a prosecutor's

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closing argument and wrote the following:

"Prosecutors are afforded wide latitude

in closing argument. [Citation.] In review-

ing comments made at closing arguments, this

court asks whether or not the comments engen-

der substantial prejudice against a defendant

such that it is impossible to say whether or

not a verdict of guilt resulted from them."

The supreme court in Wheeler also wrote that "[w]hether state-

ments made by a prosecutor at closing argument were so egregious

that they warrant a new trial is a legal issue this court reviews

de novo." Wheeler, 226 Ill. 2d at 121, 871 N.E.2d at 744.

During the initial portion of the prosecutor's closing

argument, he said that a case of this kind "is probably the

hardest type of case for a prosecutor to handle because it looks

like Goliath is picking on David, but the thing that you have to

realize is that the defendant has a constitutional right to

defend himself." The prosecutor then mentioned that whether the

jury believed defendant's decision to represent himself was a

wise choice or not, defendant made that decision, which was his

right. The prosecutor also mentioned that he had "tried to

extend [defendant] courtesies and treat him like another lawyer"

and did not try to cut corners, adding that the State "gave you a

case just like [defendant] would have [had] with an attorney

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representing him." The prosecutor concluded by emphasizing to

the jury that the only evidence it could consider was that which

"comes from the witness stand, and things that [defendant] may

have been saying that weren't backed up or weren't produced as

evidence in court, you can't consider."

Regarding these rather mild remarks by the prosecutor,

defendant argues to this court that "[b]y emphasizing that

[defendant] represented himself, the prosecutor set up his

rebuttal during which he demeaned [defendant's] exercise of the

right to self-representation." Before the prosecutor spoke in

rebuttal, defendant presented his closing argument pro se and

informed the jury that he had his argument all written out but

that he hated "to try to talk with paper so I am just going to

speak from here, I mean, from my heart." Defendant then men-

tioned "the people from forensics [who] spoke about DNA," and

added, "I really didn't complete high school or nothing [sic]

like that. I am not going for no [sic] sympathy from nobody

[sic], but I was trying to understand what they was [sic] talking

about [regarding] the DNA and the exhibits." Defendant also

explained his difficulty speaking about the scientific exhibits

"because I was confused so I don't know who else might have been

confused by the confusion."

Defendant concluded his closing argument with a request

that the jury "realize and take into consideration that ***

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things ain't [sic] always the way they appear to be, and you know

*** everything is not always put out there for you to understand.

Some things are not able to be said. *** I'm pretty sure

whatever decision you come up with [will] come from your hearts."

In the prosecutor's rebuttal argument, which was very

short, he first noted the strength of the DNA evidence against

defendant and, in view of that, remarked

"Sometimes, the best defense in the world is,

maybe, not hire a high-powered attorney,

represent yourself, and play on the sympathy

of the jury.

That has no part in your decision in

this case. The decision should come from the

testimony you heard from the witness stand

and not sympathy that [defendant] is trying

to engender."

Defendant deems the prosecutor's rebuttal as containing

"intentional insults designed to discredit [defendant] in the

jurors' eyes as to his role as defense attorney." Further,

defendant contends that these comments penalized him "for assert-

ing his constitutional right to exercise his right to represent

himself and improperly diminished his presumption of innocence."

Given the circumstances of this case, we view the

prosecutor's remarks as entirely proper. Defendant's

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pro se representation was the 800-pound gorilla in the courtroom,

and absent an explanation concerning this situation, the jury

might well have speculated about it and felt sympathy for defen-

dant's plight, when in fact none was due. Further, absent some

explanation, this situation might appear to the jury to be like

Goliath picking on David.

In so concluding, we adhere to the views we recently

expressed in People v. Montgomery, 373 Ill. App. 3d 1104, 1118,

872 N.E.2d 403, 415 (2007):

"To slightly revise a common saying

regarding campaigning for elective office,

trying felony cases before a jury 'ain't

beanbag.' These are serious matters with

high stakes, and we expect advocates in our

adversary system of justice to use all of

their forensic skills to persuade the jury of

the wisdom or justice of their respective

positions."

C. Defendant's Claim That the Trial Court Abused Its
Discretion by Refusing To Revoke His Waiver of
Counsel For Postsentencing Proceedings

Last, defendant argues that the trial court abused its

discretion by refusing to revoke his waiver of counsel for

postsentencing proceedings. He points out that after sentencing,

he pro se filed a series of pleadings, including a motion to

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reconsider his sentence, and asked for the appointment of counsel

to represent him. The trial court denied his request. The State

concedes defendant's argument on this point, and we accept the

State's concession.

In People v. Baker, 92 Ill. 2d 85, 91-92, 440 N.E.2d

856, 859 (1982), the Supreme Court of Illinois held that a

defendant's waiver of the right to counsel carries through to all

subsequent proceedings unless (1) the defendant later requests

counsel or (2) other circumstances suggest that the waiver is

limited to a particular stage of the proceedings. Here, after

representing himself at trial and at the sentencing hearing,

defendant sought the appointment of counsel to represent him on

his motion to reconsider his sentence.

In People v. Williams, 358 Ill. App. 3d 1098, 1105, 833

N.E.2d 10, 16 (2005), this court held that a hearing on the

motion to reconsider sentence is a critical stage of the criminal

proceedings. Thus, an indigent defendant is entitled to the

appointment of counsel at that stage. However, in June 2006, the

trial court denied defendant's request for appointed counsel at

that stage, ruling, in part, that (1) defendant did not have the

absolute right to revoke his waiver and (2) he had not shown good

cause for the court to exercise its discretion to allow with-

drawal of defendant's waiver of counsel. We conclude that the

court erred by ruling that defendant needed to show good cause

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for his request.

In People v. Burton, 184 Ill. 2d 1, 24, 703 N.E.2d 49,

60 (1998), the Supreme Court of Illinois addressed the timing of

a defendant's request to waive counsel and wrote the following:

"A number of courts have held that a defen-

dant's request is untimely when it is first

made just before the commencement of trial,

after trial begins, or after meaningful pro-

ceedings have begun. [Citations.] Once such

proceedings have begun, the trial judge has

discretion to deny a defendant's request to

represent himself."

Several years before Burton, this court similarly addressed the

subject in People v. Ward, 208 Ill. App. 3d 1073, 1081-82, 567

N.E.2d 642, 647-48 (1991), in which we strongly suggested a

series of specific points for trial courts to discuss with a

defendant who has informed the court that he wishes to waive his

right to counsel (in addition to the Rule 401 admonitions). One

of the points we urged a court to make was that "in the event the

court accepts defendant's decision to represent himself, defen-

dant will not be given an opportunity to change his mind during

trial." Ward, 208 Ill. App. 3d at 1082, 567 N.E.2d at 648.

If a trial court has fully complied with Rule 401 (and

especially if the court has followed our Ward suggestions), the

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court can hold the defendant to his election to proceed pro

se even though the defendant subsequently changes his mind during

trial. Indeed, considering (1) the importance of judicial

administration and (2) the need to avoid giving a defendant the

opportunity "to game the system" (as discussed earlier), a court

would be justified in informing a defendant of a deadline (per-

haps a few weeks before the trial date) by which his decision to

proceed pro se at trial will become irrevocable, making clear

that it is not just at trial itself that the decision will become

irrevocable.

However, nothing about the circumstances in this case--

namely, defendant's request for court-appointed counsel to assist

him on his postsentencing motion suggests any abuse of the

system. For whatever reason, defendant finally changed his mind

about the wisdom of pro se representation. We emphasize that

defendant's change of mind occurred at a new stage of the pro-

ceedings, which constituted a clean slate for the trial court's

consideration of the issue. Thus, the court erred by requiring

him to demonstrate good cause for doing so.

Accordingly, although we affirm defendant's

residential-burglary conviction, we remand for the appointment of

counsel for postsentencing purposes in accordance with the views

expressed herein.

III. CONCLUSION

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 For the reasons stated, we affirm defendant's

residential-burglary conviction and remand for further proceed-

ings in accordance with the views expressed herein. Because the

State has in part successfully defended a portion of the criminal

judgment, we grant the State its statutory assessment of $50

against defendant as costs of this appeal. See People v. Smith,

133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985), citing

People v. Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194, 199

(1978).

Affirmed and remanded with directions.

APPLETON, P.J., and KNECHT, J., concur.

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