People v. Martin

FILED
2021 IL App (4th) 180267 April 13, 2021
Carla Bender
NO. 4-18-0267 4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JEFFREY LYNN MARTIN, ) No. 16CF231
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Justices Holder White and Steigmann concurred in the judgment and opinion.

OPINION
¶1 In March 2016, the State charged defendant, Jeffrey Lynn Martin, with one count

of aggravated battery, a Class 3 felony (720 ILCS 5/12-3.05(c), (h) (West 2014)). At defendant’s

arraignment, the public defender was appointed to represent him. In August 2016, defendant

indicated he wanted to proceed pro se. The trial court admonished defendant about the nature of

the offense, the maximum and minimum penalties, his right to an attorney, and the potential pitfalls

in proceeding pro se before finding defendant’s waiver of counsel to be knowing and intelligent.

In November 2017, defendant requested the public defender be reappointed to represent him at

trial. The court granted defendant’s request, but at the next hearing, defendant again requested to

represent himself, which was denied by the trial court. At the final pretrial hearing in December

2017, defendant again requested to represent himself pro se, which was granted. The trial court

said it would consider defendant’s request if he was prepared to proceed to the previously
scheduled jury trial on Monday. Defendant then confirmed he would be ready, and the court

confirmed with counsel the witnesses defendant wanted to call at trial were under subpoena, and

the trial court admonished defendant again about the nature of the charges and the possible

penalties. Upon hearing one of his witnesses was not available to testify at trial, defendant asked

for a continuance. The trial court stated that if the parties could not agree on a stipulation for the

witness’s testimony, defense counsel would be “back on the hook” and “will be representing

[defendant] on Monday.” After a stipulation could not be reached, defendant indicated he was

ready to go to trial on Monday pro se and confirmed he was ready to proceed even though his

witness would be unavailable to testify. On the day of trial, defendant again asked for a continuance

to subpoena the unavailable witness for a later trial date. The court denied defendant’s request,

reminding him that the previous week he was put on notice about the witness unavailability and

he still maintained he was ready for trial. Trial commenced that day, and defendant was convicted

of aggravated battery and sentenced to seven years in the Illinois Department of Corrections

(DOC).

¶2 On appeal, defendant argues (1) the trial court abused its discretion by denying

defendant’s continuance to subpoena a material witness, (2) the trial court failed to properly

admonish defendant about his right to represent himself in posttrial proceedings, and (3) the trial

court’s seven-year sentence was excessive. The State argues defendant waived any claim of error

regarding the denial of his continuance by agreeing to go to trial pro se without the witness’s

testimony and forfeited it by failing to file a posttrial motion. Additionally, the State says the trial

court did not abuse its discretion because the court found defendant was attempting to thwart the

administration of justice, and the unavailable witness was not material because the entire incident

was captured on the store’s security video. Further, the State argues defendant’s waiver of counsel

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was knowingly and intelligently made, and his sentence was not excessive due to defendant’s

criminal history, the nature and circumstances of the offense, and the fact he was on bond in

another criminal case when he committed this offense. Because we find the trial court failed to

substantially comply with Illinois Supreme Court Rule 401 (eff. July 1, 1984) during posttrial

proceedings, we remand for a new sentencing hearing.

¶3 I. BACKGROUND

¶4 In March 2016, the State charged defendant with one count of aggravated battery,

a Class 3 felony, for attacking a Walmart employee inside the store (720 ILCS 5/12-3.05(c), (h)

(West 2014)). The public defender’s office was appointed to represent him at arraignment.

¶5 At a status hearing in August 2016, defense counsel asked for a 60-day status date

to go over discovery with defendant. Defendant objected and requested “another public defender

that’s more capable.” The trial court, noting the assignment of the attorneys was left to the public

defender’s office, refused. Defendant then indicated he wanted to represent himself because his

current attorney was “conspiring with the State after seven months of all the continuances and

talking to them.” The court set the matter for hearing later in the month to allow defendant

additional time to consider whether he wanted to remain with the public defender’s office or

represent himself. At the later hearing, when the trial court began admonishing defendant about

waiving counsel pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), defendant

asked if he could “waive that,” which the court declined to do. Defendant was then fully informed

of the charges, the possible penalties, and the disadvantages of proceeding pro se. After further

inquiry into defendant’s education, experience with the legal system, and background, the court

found defendant knowingly and intelligently waived his right to counsel.

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¶6 At the October 2016 status hearing, defendant claimed he did not receive discovery.

During the hearing, due to what the trial court described as defendant’s “rambling thoughts” and

“flights of fancy,” the trial court expressed concern for defendant’s fitness to stand trial. After

further discussion, the court found there was a bona fide doubt regarding defendant’s fitness and

ordered a fitness evaluation. At the fitness hearing in December 2016, due to what was most likely

a typographical error, the fitness report appeared to contain conflicting information about

defendant’s fitness to stand trial. In an abundance of caution, the court reappointed the public

defender’s office to represent defendant for a further fitness hearing the following week. By the

time of the next hearing, the forensic psychiatrist’s updated report indicated defendant was fit to

stand trial and represent himself, noting his above-average intelligence, motivation for self-

representation, and understanding of the legal issues. Pursuant to the stipulated admission of the

updated report, the court allowed defendant to proceed pro se.

¶7 After several continuances by defendant for hearings on various pro se motions, the

case was eventually set for a final pretrial conference on July 13, 2017, with a jury trial set for the

following Monday. During the final pretrial conference, after several outbursts and arguments the

court found unintelligible, defendant said he wanted to subpoena a witness (Stephens) who was

present in the store during the incident resulting in his arrest. He described her as a “critical

witness” and “essential to the defense,” and he had a subpoena “ready to issue.” The State objected,

arguing defendant had over a month to subpoena Stephens and she was not a material witness

because the entire incident was captured on video. Defendant contended Stephens “is a firsthand

witness that I did not *** touch [the victim] or threaten him in any way while she was a foot away

from the defendant, and that she clearly saw the defendant being assaulted.” The court allowed a

subpoena to issue, and because the State had previous contact with this witness, the State was

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ordered to contact her and notify her she was needed for trial the following Monday. By the end

of the hearing, noting after approximately 2½ hours they had been able to address only about a

third of one of defendant’s multiple pro se motions, the trial court expressed concern for

defendant’s dilatory tactics and his “inability to concentrate and to focus in on the issues in this

case” and once again appointed the public defender’s office. The court reset the matter for status

the following week. The public defender’s office subsequently filed a motion to reconsider their

appointment, and at the next hearing, the court again allowed defendant to proceed pro se. The

court appointed the public defender’s office to act as standby counsel, granted defendant’s motion

to continue over the State’s objection, and set the final pretrial and trial in early November 2017.

¶8 The trial court had previously confirmed Stephens was served with a subpoena

directing her to appear for trial in November 2017, and at the final pretrial in November, the State

also confirmed Stephens had been subpoenaed and advised when to appear for trial. At the end of

this conference, defendant once again informed the court he wanted the public defender’s office

to be reappointed to represent him. The court informed defendant that if the public defender was

reappointed this would be the final time and defendant would forfeit his right to proceed pro se.

Defendant said he understood, the public defender was appointed, and the matter was set for a final

pretrial conference the following week.

¶9 At the conference in December 2017, defense counsel requested a continuance and

defendant said he would like to “refuse counsel” due to “conflicts of interest.” The trial court

denied defendant’s request, reminding him of the previous hearing where defendant was warned

about the possibility of forfeiting his right to proceed pro se. The court did, however, continue the

case for another final pretrial conference later that month. At that hearing, defendant again

requested to proceed pro se. The court said it would consider defendant’s request to proceed pro se

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if defendant was “answering ready for trial on Monday.” Regarding Stephens, in response to an

inquiry by the trial court, defense counsel advised that, as a matter of trial strategy, he was electing

not to call her as a witness. (It should be noted, although defendant maintained she was necessary,

Stephens was also a complaining witness against him in another case he had pending at the time.)

Defendant confirmed several more times he was ready to go to trial the following week pro se

based on the witnesses known to be available at that time and the information in his possession.

The trial court reminded him he was only allowing defendant to proceed pro se because he was

answering ready for trial on Monday.

¶ 10 During the proceeding, it was learned Stephens had informed the state’s attorney’s

victim advocate of her unavailability for the next two weeks due to surgery. Upon hearing this

defendant said, “No way. Continuance.” The trial court told the public defender he would be “back

on the hook, literally, in trying this case” if the parties could not reach a stipulation regarding

Stephens’s testimony. Not surprisingly, no such agreement could be reached.

¶ 11 Upon hearing there was no stipulation, the trial court inquired into defense

counsel’s strategy for declining to call Stephens as a witness. Counsel explained she was the

complaining witness in one of defendant’s other cases, he had concerns about her bias, and any

relevant testimony she could render was available simply by viewing the security video. As a

result, the trial court found Stephens was neither a relevant nor material witness. Recalling

defendant’s assertion he would not be prepared to proceed on the following Monday, the following

colloquy took place:

“DEFENDANT: I’m prepared

THE COURT:—without Ms. Stephens’[s] testimony—

DEFENDANT: It’s fine. Let’s roll.

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 THE COURT: Okay.

DEFENDANT: As long as I’m pro se, let’s go.

THE COURT: Yes.

DEFENDANT: I’ll do whatever I got.

THE COURT: That’s—okay.

DEFENDANT: As long as it’s all on record. In English.

THE COURT: I just wanted to make sure. All right. So you’re not moving to

continue. You understand that Ms. Stephens is not going to be here.

THE DEFENDANT: Hey, I’ve—I’ve stated my intent, your Honor.

THE COURT: But I’m making sure that you understand—

DEFENDANT: Yes, your Honor.

THE COURT:—that she’s not here, and that there is no basis, then, to move to

continue, then, with the trial based upon her unavailability as a witness.

DEFENDANT: Your honor.”

¶ 12 When trial was about to begin the following Monday, defendant again raised his

motion for a continuance based on Stephens’s unavailability, claiming she was a material witness.

Defendant contended he would be prejudiced by her absence, her presence was necessary to his

defense, and he was being “rushed to jury trial.” Although defendant contended her testimony

would cover more than he had previously represented to the trial court, he did not elaborate further.

The court reminded defendant this had already been discussed and he opted to proceed pro se

knowing Stephens was unavailable. Defendant’s response was to claim the trial court was violating

unspecified constitutional rights. The court denied defendant’s motion to continue, reading from

the previous week’s docket sheet, which reflected defendant’s desire to proceed pro se with the

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witnesses and evidence known to be available at the time. The trial court found any further delay

would be defendant’s “attempt to thwart the administration of justice” and proceeded to trial that

day.

¶ 13 After the State’s evidence, defendant called no witnesses and elected not to testify.

During closing arguments, defendant engaged in a nearly unintelligible effort to explain the

evidence and, eschewing all offers of assistance, sought, apparently unsuccessfully, to operate the

video player to show something he contended was visible and that he argued would clearly show

he acted in self-defense. Defendant repeatedly sought to argue facts that were either not in

evidence, inadmissible, or not proper for consideration by the jury, resulting in multiple objections

by the State and admonishments by the trial court. After deliberating for 40 minutes, the jury found

defendant guilty of aggravated battery. The trial court then brought up the issue of defendant’s

continued pro se representation:

“Since we’re moving from one phase of the process to another, ***

although you’re entitled to remain pro se on this case, if you desire,

you’re also entitled to, should you wish, to have the Court reappoint

the public defender’s office to represent you for purposes of the

sentencing hearing. Do you know what you would like to do?”

¶ 14 Defendant told the trial court he was “going to remain pro se.” He also informed

the court he had motions on file seeking to have the court reconsider its appointment of the public

defender in his two other pending cases since he wished to proceed pro se in those as well. At the

next hearing scheduled for sentencing, defendant requested “counsel or shadow counsel for

sentencing” because he decided preparing for sentencing was more difficult than he thought.

Reminding defendant of his previous elections to represent himself, the trial court informed

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defendant standby counsel was not an option and that he could either choose to represent himself

or proceed with counsel. Defendant maintained his desire for counsel, and the trial court once

again reappointed the public defender’s office and set the sentencing hearing for March 2018.

¶ 15 Before beginning the sentencing hearing in March 2018, defendant again informed

the trial court he was refusing the assistance of counsel. When asked if he wanted to proceed

pro se, defendant confirmed that he did, telling the court, “let the record reflect I am insisting on

proceeding pro se.” Although he wanted to do so for all three of his pending cases, the court

required him to focus on only the one for which he was presently facing sentencing. Defendant

then said he was not prepared to proceed on that date, however, because he contended he did not

have access to his “legal material” at the prison to which he had been transferred and that he wished

to “proceed with post-trial motions.” A review of the docket reveals no such motions were filed

by defendant at any time within 30 days of the jury verdict or any time thereafter. The court

reminded defendant he had been admonished to file any posttrial motions within 30 days of the

guilty verdict in December. Once defendant reiterated his request to continue pro se, the trial court

relieved the public defender, contingent on defendant’s willingness to proceed to sentencing at that

time. The trial court denied defendant’s oral motion to continue and proceeded to sentencing. The

State presented no evidence in aggravation.

¶ 16 Defendant testified for over 90 minutes, spending most of that time attacking the

veracity of the presentence investigation report and previous trial court rulings.

¶ 17 The trial court sentenced defendant to seven years in DOC and denied defendant’s

motion to reconsider the sentence.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

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¶ 20 Defendant’s claims of error are threefold: (1) the trial court abused its discretion in

denying defendant a continuance of trial in order to subpoena Stephens, and in doing so, it denied

defendant his constitutional right to present a defense; (2) the trial court failed to properly

admonish defendant pursuant to Illinois Supreme Court Rule 401 (eff. July 1, 1984) before

allowing him to proceed pro se at sentencing; and (3) the trial court’s seven-year extended-term

sentence was disproportionate to the seriousness of the offense, and in imposing the sentence, the

trial court placed undue emphasis on defendant’s criminal history.

¶ 21 A. Waiver

¶ 22 The State asserts defendant waived any claim of error or prejudice in the trial

court’s denial of his motion to continue the trial when he consented to proceed to trial knowing his

witness was unavailable. We agree.

¶ 23 Defendant cannot pursue one course of action before the trial court and then claim

error for having done so once he appeals. “It is well settled that a party cannot acquiesce to the

manner in which the trial court proceeds and later claim on appeal that the trial court’s actions

constituted error.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 60, 129 N.E.3d 755; see also

People v. Hughes, 2015 IL 117242, ¶ 33, 69 N.E.3d 791 (“a party cannot complain of error that it

brought about or participated in”). “Active participation in the direction of proceedings *** goes

beyond mere waiver.” People v. Villarreal, 198 Ill. 2d 209, 227, 761 N.E.2d 1175, 1184 (2001).

¶ 24 After a stipulation between the parties could not be reached, and after the trial court

mentioned defendant’s earlier comment he would not be ready to proceed with trial on Monday,

defendant interjected, “I’m prepared.” The court reminded defendant this meant the trial would

proceed without Stephens’s testimony, and defendant stated, “It’s fine. Let’s roll. ***As long as

I’m pro se, let’s go.” Considering defendant’s history of repeatedly vacillating between his desire

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for counsel and demands to proceed pro se and the resultant delay in the proceedings, the trial

court had good reason to ensure defendant understood his demand to commence trial on the

following Monday, pro se, would be without Stephens as a witness. The court confirmed this with

defendant, stating, “So you’re not moving to continue. You understand that Ms. Stephens is not

going to be here.” Defendant responded, “I’ve stated my intent, your Honor.”

¶ 25 During this exchange, the trial court reminded defendant three times that if he

answered ready for trial it would be without Stephens’s testimony and defendant would have no

basis to continue the trial based on the unavailability of her testimony. All three times defendant

confirmed he was ready for trial on Monday. Defendant argues the trial court abused its discretion

by conditioning defendant’s right to represent himself on a requirement that he proceed to trial

without calling Stephens. The record reveals otherwise. The trial court did not force defendant to

trial—defendant’s overarching desire, clearly expressed during the pretrial, was that he be

permitted to proceed on his own behalf and without the assistance of the public defender.

¶ 26 Here, defendant’s acquiescence waived any claim of error in the trial court’s later

denial of his motion to continue on the day of trial. Hibbler, 2019 IL App (4th) 160897, ¶ 60.

Further, his direct participation in the decision to proceed without Stephens, so long as he was

allowed to represent himself, results in estoppel from any claim of error, and we decline to consider

this issue on appeal. People v. Harvey, 211 Ill. 2d 368, 385, 813 N.E.2d 181, 192 (2004).

¶ 27 B. Illinois Supreme Court Rule 401

¶ 28 Despite raising the issue now, defendant filed no posttrial motion claiming the trial

court failed to readmonish him about proceeding pro se at sentencing. Having failed to do so, we

would normally find he forfeited appellate review. People v. Piatkowski, 225 Ill. 2d 551, 564, 870

N.E.2d 403, 409 (2007). However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides

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that “[p]lain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the trial court.” Because we acknowledge “the right to counsel is

fundamental” and reviewable as a “substantial right” (see People v. Stoops, 313 Ill. App. 3d 269,

273, 728 N.E.2d 1241, 1244 (2000); People v. Langley, 226 Ill. App. 3d 742, 749, 589 N.E.2d 824,

829 (1992)), we are compelled to address it under “plain error” regardless of defendant’s failure

to raise it previously.

¶ 29 This fundamental right extends to posttrial proceedings. During the sentencing

stage of a proceeding, “defendant’s substantial rights are affected and the defendant has a

constitutional right to counsel at that stage.” Langley, 226 Ill. App. 3d at 749. “The right to counsel

is so fundamental it should not be ‘lightly deemed waived.’ ” Langley, 226 Ill. App. 3d at 749

(quoting People v. Robertson, 181 Ill. App. 3d 760, 763, 537 N.E.2d 1036, 1039 (1989)).

¶ 30 Defendant claims the trial court erred by failing to substantially comply with

Illinois Supreme Court Rule 401 (eff. July 1, 1984) during posttrial proceedings. We agree.

¶ 31 Whether a trial court failed to substantially comply with Rule 401(a)

admonishments is a question of law we review de novo. People v. Pike, 2016 IL App (1st) 122626,

¶ 114, 53 N.E.3d 147.

¶ 32 Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) states:

“[a]ny 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;

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 (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.”

¶ 33 “The purpose of the rule is to ensure that a waiver of counsel is knowingly and

intelligently made.” (Internal quotation marks omitted.) People v. Reese, 2017 IL 120011, ¶ 62,

102 N.E.3d 126. Under the “continuing waiver rule,” although defendants enjoy the right to

counsel during all critical stages of a criminal proceeding, including posttrial and sentencing

proceedings, a defendant can waive the right to counsel and that waiver stays in place throughout

the remaining stages. People v. Baker, 92 Ill. 2d 85, 91-92, 440 N.E.2d 856, 859 (1982). However,

there are two exceptions to the continuing waiver rule, necessitating another Rule 401

admonishment. They are “(1) [when] the defendant later requests counsel or (2) other

circumstances suggest that the waiver is limited to a particular stage of the proceedings.” People

v. Palmer, 382 Ill. App. 3d 1151, 1162, 889 N.E.2d 244, 253 (2008) (citing Baker, 92 Ill. 2d at 91-

92).

¶ 34 Although defendant switched between having counsel and going pro se no less than

eight times, thereby requiring no less than eight Rule 401 admonishments, he focuses his appeal

on one instance, what defendant refers to as his “second” waiver of counsel at sentencing. After

the jury verdict, defendant first indicated he wanted to “remain pro se.” On the day of the

sentencing hearing, he then requested the public defender’s office be appointed to represent him

at sentencing, which the trial court granted. At the next sentencing hearing in March 2018, he

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requested, and was ultimately allowed, to proceed pro se. Defendant contends: “[b]efore accepting

[defendant’s] second waiver of his right to counsel [during posttrial proceedings] the court was

required to readmonish him about his right to self-representation to substantially comply with

Illinois Supreme Court Rule 401(a).” In reality, this was the first waiver of counsel posttrial since

he merely continued his self-represented status initially when asked by the court after the jury’s

verdict was returned. Defendant relies, however, on the first exception to the “continuing waiver

rule,” i.e., when defendant later requests counsel, as the basis for his claim.

¶ 35 In the matter before us, after defendant was convicted, the trial court admonished

him about his right to have an appointed attorney “for purposes of the sentencing hearing.” This

was the only occasion when the trial court admonished defendant to any extent under Rule 401(a)

during posttrial proceedings. After defendant elected to continue in his self-represented status, the

trial court said nothing about the nature of the charge or the possible penalties. When defendant

later accepted the public defender and then sought to proceed pro se once again, there was no

discussion about the nature of the charge, possible penalties, or right to counsel under Rule 401(a).

Consequently, there was never an admonishment about the nature of the charge nor the minimum

and maximum possible penalties of the offense at a separate, critical stage of the proceedings. See

People v. Burton, 184 Ill. 2d 1, 22, 703 N.E.2d 49, 59 (1998) (right to counsel attaches at all critical

stages of criminal prosecution and will not be taken away unless affirmatively waived by

defendant). “The trial court’s admonishments upon defendant’s second waiver of counsel fell so

far from Rule 401(a)’s terms, they cannot be considered substantial compliance with the rule.”

People v. Cleveland, 393 Ill. App. 3d 700, 711, 913 N.E.2d 646, 656 (2009), overruled on other

grounds by People v. Jackson, 2011 IL 110615, 955 N.E.2d 1164.

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¶ 36 We are not unsympathetic to the plight of the trial court. The record reflects

defendant was abrasive, disruptive, and insolent at almost every proceeding, and yet the court

made an admirable effort to accommodate him. Defendant continuously interrupted the trial court

to broach irrelevant topics and eventually had to be removed from the courtroom briefly during

several proceedings due to his disruptive behavior. Several pretrial and status proceedings,

normally reserved for 10 to 15 minutes at most, routinely took up hours of the trial court’s time

due to defendant’s constant irrelevant ramblings. The record also reflects defendant was previously

fully informed on his right to be represented by counsel during the pretrial stage (ironically,

defendant requested to “waive” Rule 401 admonishments during his first pro se request), and he

vacillated numerous times between being represented by counsel to representing himself during

pretrial proceedings (approximately eight times). Indeed, in August 2016, during his first request

to proceed pro se, defendant confirmed he previously represented himself in a felony case, was

familiar with conducting legal research, had been through three previous trials, and had previously

assisted in closing arguments and preparing jury instructions. Thus, it is doubtful the repetition of

Rule 401 admonishments defendant initially sought to “waive” would have had a significant

impact on defendant’s decision for self-representation, but that is not the proper analysis. See

People v. Fort, 2017 IL 118966, ¶ 18, 88 N.E.3d 718 (prejudice is presumed because of the

importance of the right involved). Rule 401(a) admonishments must be provided “ ‘where a

defendant waives counsel, proceeds pro se, requests counsel for a distinct stage of the proceedings,

receives counsel, and then decides to waive counsel again.’ ” (Emphasis in original.) People v.

Washington, 2016 IL App (1st) 131198, ¶ 60, 64 N.E.3d 28 (quoting Cleveland, 393 Ill. App. 3d

at 712).

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¶ 37 We have no doubt, after considering the entirety of the record, defendant

knowingly and voluntarily waived his right to counsel. The record reveals his insistence on

self-representation to the extent that, at one point, he was “beseeching” the court to allow him to

do so. Defendant vacillated between representation by counsel or self-representation throughout

the proceedings, each time intending to thwart the trial or sentencing. However, we are required

to mechanically apply Rule 401 here.

¶ 38 Rule 401 was designed to be a shield to protect defendant’s rights; it should not be

used on appeal as a sword to abuse the intent of the rule. The only issue raised at defendant’s

hearing for a motion to reconsider the sentence was defendant’s claim seven years was excessive

for an “overenhanced misdemeanor.” Throughout the nearly 2000-page record, we could not find

one instance where defendant raised substantial compliance with Rule 401 as an issue during the

pretrial, trial, or posttrial proceedings. We surmise it was not raised before the trial court because

it was never an issue—until now. Since defendant requested and received representation for

sentencing, and then later requested and was granted the right to represent himself, it was

incumbent upon the trial court to substantially comply with Rule 401. Because it failed to do so,

we are unable to conclude defendant provided a knowing and voluntary waiver of counsel. This

omission requires remand for a new sentencing hearing. We decline to address the other issues

raised by defendant in light of our remand.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we reverse the trial court’s judgment and remand the cause

for resentencing consistent with this order.

¶ 41 Reversed and remanded.

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 No. 4-18-0267

Cite as: People v. Martin, 2021 IL App (4th) 180267

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 16-CF-
231; the Hon. Scott D. Drazewski, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Michael Gomez, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Don Knapp, State’s Attorney, of Bloomington (Patrick
for Delfino, David J. Robinson, and James Ryan Williams, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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