People v. Gordon

                                      2023 IL App (5th) 220707-U
            NOTICE
                                                                                         NOTICE
 Decision filed 08/11/23. The
                                                                              This order was filed under
 text of this decision may be               NO. 5-22-0707
                                                                              Supreme Court Rule 23 and is
 changed or corrected prior to
 the filing of a Petition for                                                 not precedent except in the

 Rehearing or the disposition of
                                               IN THE                         limited circumstances allowed
 the same.                                                                    under Rule 23(e)(1).
                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Macon County.
                                                )
v.                                              )     No. 21-CF-1535
                                                )
CORNELIUS D. GORDON,                            )     Honorable
                                                )     Jeffrey S. Geisler,
      Defendant-Appellant.                      )     Judge, presiding.
______________________________________________________________________________

         JUSTICE McHANEY delivered the judgment of the court.
         Justices Moore and Barberis concurred in the judgment.

                                            ORDER

¶1       Held: Where a review of the complete record establishes that the trial court substantially
               complied with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), the
               defendant’s conviction and sentence are affirmed.

¶2       On December 13, 2021, the defendant was charged by information in Macon County with

the following four counts in case No. 21-CF-1535: count I (armed violence), count II (armed

habitual criminal), count III (unlawful possession of a controlled substance with intent to deliver),

and count IV (aggravated fleeing or attempting to elude an officer). On February 9, 2022, an

additional count V was filed (armed violence). The defendant also had pending case No. 21-CF-

819, which charged him with residential burglary and possession of a stolen vehicle. After several

court appearances where the defendant was represented by counsel, he elected to proceed pro se.

Illinois Supreme Court Rule 401(a) admonishments were given. Multiple motion hearings were

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held, and a jury trial commenced. The State elected to proceed only on counts II and IV in 21-CF-

1535, armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2020)) and aggravated fleeing and

eluding or attempting to elude an officer (625 ILCS 5/11-204.1(a)(1) (West 2020)). The jury

convicted the defendant on both counts. He was sentenced to 20 years in the Illinois Department

of Corrections (IDOC) on count II and 3 years IDOC on count IV, to be served concurrently. For

the following reasons, we affirm the convictions and sentence.

¶3                                      I. Background

¶4     On December 14, 2021, defendant appeared in open court for his arraignment on the four-

count information in 21-CF-1535 and requested time to hire an attorney. The defendant was given

a copy of the information and advised of the nature of the charges. On December 28, 2021, the

defendant appeared, and the public defender was appointed. A preliminary hearing was set for

January 19, 2022. On that date, the defendant was in quarantine and unable to be present, so the

preliminary hearing was continued to February 9, 2022.

¶5     On February 9, 2022, the defendant appeared with counsel. On that date, the State added

count V (armed violence) (720 ILCS 5/33A-2(a), 33A-3(a) (West 2008)) to 21-CF-1535 and

dismissed count I, which was the same charge under a different theory. The public defender

indicated that the defendant was given a copy of count V. The preliminary hearing was held, and

the trial court found probable cause. The public defender waived formal arraignment on behalf of

her client. On February 28, 2022, the defendant appeared with counsel, and the case was continued.

On March 28, 2022, the defendant filed a pro se “Motion for Discovery,” a “Writ for Habeas

Corpus,” and a “Motion To Withdrawl [sic]” “Counsel for Ineffective Assistance.” On April 4,

2022, defense counsel informed the court that the defendant also wrote a letter to her, indicating

he wanted to proceed pro se.


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¶6     On April 11, 2022, the defendant appeared with his attorney regarding his motion to waive

counsel. The trial court began by reciting all the charges in both 21-CF-819 and 21-CF-1535,

including the minimum and maximum sentences for each count. Specifically, the defendant was

informed that in 21-CF-819, count I was nonprobationable, and he was extended-term eligible,

making his sentencing range 4 to 30 years in IDOC. Count II was probationable, and he was

extended-term eligible, with a possible sentencing range of 3 to 14 years in IDOC. The trial court

stated that if convicted of both, 21-CF-819 and 21-CF-1535, it was mandatory that they be served

consecutively. At this point, the assistant state’s attorney reminded the trial court that counts I and

III in 21-CF-1535 had been dismissed. The trial court then informed the defendant that count II

was a Class X, nonprobationable offense, and he was extended-term eligible, making his

sentencing range 6 to 60 years in IDOC, served at 85%. Count IV was probationable, and due to

the defendant’s extended-term eligibility, the sentencing range was 1 to 6 years in IDOC. The trial

court continued by stating that count V was nonprobationable, and due to the defendant’s

extended-term eligibility the sentencing range was 15 to 60 years in IDOC. The defendant was

advised of potential fines and mandatory supervisory release periods on each count in both cases.

¶7     The trial court then admonished the defendant on his right to counsel, appointed or hired,

and his right to proceed pro se. The trial court inquired about the defendant’s age, his highest level

of education, and if he had ever proceeded pro se before. The defendant responded that in 2012 he

proceeded on a case pro se. The defendant was advised of the potential dangers of proceeding

pro se and warned that he would not receive any special treatment due to his choice. The assistant

state’s attorney apprised the trial court of the status of an offer for resolution in detail, and the

defendant confirmed he was rejecting that offer. The defendant then asked the trial court about

some discovery issues and his speedy trial rights, both of which were clearly explained. After the


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defendant signed a “Written Waiver of Counsel” form, which mirrored Rule 401(a)

admonishments, the trial court granted the defendant’s request to proceed pro se and cautioned

him again, stating he was “facing extremely serious charges.” A status hearing and jury trial date

were set.

¶8     On April 22, 2022, the defendant appeared, pro se, for a status hearing and indicated that

discovery was complete. His request for appointment of stand-by counsel was denied. Lastly, he

made a “verbal motion to dismiss for failure to prosecute in my 120 days pretrial.” The trial court

responded that the motion had to be in writing, and he was reminded that the jury trial was set.

Another status hearing was scheduled for May 5, 2022. On that date, the defendant’s written

motion to dismiss was argued and denied. The defendant also recited some issues with the

discovery, indicating he would file a motion to suppress. Another status hearing was set for May

24, 2022.

¶9     On May 24, 2022, the defendant appeared and stated he was ready for trial but had a motion

to suppress with him. The trial court set another status hearing for June 7, 2022, to allow the

defendant time to file any motions he wanted heard. At that next status hearing, the trial court set

the defendant’s motion to suppress and motion for pretrial discovery for hearing on July 12, 2022.

¶ 10   On July 12, 2022, the trial court held a hearing on the defendant’s pending motions. The

defendant made lengthy arguments but did not present any evidence. However, the record does

show the defendant attempted to subpoena witnesses. The assistant state’s attorney responded that

even if the statements in defendant’s motion to suppress were taken as true, because the initial

traffic stop was still valid, the defendant’s motion should be denied. The trial court denied the

motion to suppress and found that the State was in compliance with all discovery rules. Finally, a

motion to reduce bond was heard. The State noted that the defendant accurately stated the law.


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Because there was no change of circumstances and due to the defendant’s prior criminal history,

the trial court denied the motion to reduce bond. Another status hearing was set for August 17,

2022.

¶ 11    On August 17, 2022, the defendant presented another “Motion to Dismiss the Charges”

and made the following statement:

           “THE DEFENDANT: I have did additional research and my cases do not

        follow—fit the Armed Habitual Criminal Act because a—my Unlawful Possession

        of a Weapon is not an aggravated unlawful of weapon. But I have been charged

        with a drug charge, but I haven’t been charged more than two times. So, therefore,

        to be charged under the Armed Habitual Act they say you have to have two or more

        charges. I only got one charge on there that fits the criteria of armed habitual.”

The trial court also heard a “Motion for Bill of Particulars” where the defendant claimed the State

did not produce adequate information on the armed habitual criminal statute so that he could

adequately defend himself. The following exchange occurred:

           “THE COURT: *** What is it that you don’t understand in the charge?

           THE DEFENDANT: First of all, I don’t understand how I’m being charged with

        Armed Habitual when the weapon was never found on me. Also, as I stated that,

        my DNA or fingerprints not on there. And that they found the weapon on the side

        of the passenger, whom they failed a—to even a—arrest or do anything towards

        him.

           THE COURT: Okay. Then as to the Motion for Bill of Particulars I am going to

        deny that. What you’re, basically, arguing is an evidentiary issue and understand




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        what you’re stating. That really is not a Motion for Bill of Particulars. That is

        discretionary with the Court.

           If you don’t understand what you’re charged with that’s one thing. I think you

        understand what you charged with. You’re saying there’s evidentiary issues and

        that will come up in the jury trial. So, as to that I am going to deny the Motion for

        Bill of Particulars.”

¶ 12    On August 19, 2022, the trial court held another status hearing where the defendant asserted

he had “extensively” researched the armed habitual criminal statute and repeated his concerns with

the charge.

¶ 13    On August 22, 2022, the jury trial commenced. Outside the presence of the jury, the State

provided the defendant with a copy of the statute defining the offense of armed habitual criminal,

and the trial court explained to the defendant how his prior convictions fit the criteria of the statute.

The State then moved to dismiss count V, electing to proceed only on counts II and IV. The trial

court again inquired about the status of an offer, which the defendant refused, stating: “if they not

talking about probation sir, no sir.” The jury trial proceeded over the course of two days, during

which the defendant made numerous objections and arguments as a pro se litigant. At the

conclusion of the jury trial, the defendant was convicted of both counts.

¶ 14    On October 13, 2022, the trial court heard arguments on the defendant’s posttrial motions:

“Motion for a New Trial,” “Motion for Judgment of Acquittal,” “Motion to Arrest Judgment,” and

“Motion to Dismiss Charges,” which motions included caselaw. The court denied all the motions

and proceeded to sentencing.

¶15     A presentence investigation report (PSI) was submitted to the trial court, which included

the defendant’s prior criminal history. The PSI detailed five prior felony convictions, which


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resulted in the defendant being sentenced to a decade or more of imprisonment, and an extensive

list of misdemeanors and probation violations. The trial court sentenced the defendant to

concurrent sentences of 20 years in IDOC on count II and 3 years in IDOC on count IV. The

defendant filed a timely notice of appeal.

¶ 16                                         II. Analysis

¶ 17   The defendant argues that the trial court admonishments at the time he waived his right to

counsel failed to comply with Illinois Supreme Court Rule 401(a).

¶ 18   “The sixth amendment to the United States Constitution (U.S. Const., amend VI)

guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the

correlative right to proceed without counsel.” People v. Wright, 2017 IL 119561, ¶ 39. Because

the right of self-representation is as basic and fundamental as the right to counsel, defendant may

waive his constitutional right to counsel as long as that waiver is voluntary, knowing, and

intelligent. People v. Haynes, 174 Ill. 2d 204, 235 (1996). Illinois Supreme Court Rule 401(a) sets

forth the required admonishments for waiver of counsel. “[T]he interpretation of a supreme court

rule is a question of law that we review de novo.” People v. Campbell, 224 Ill. 2d 80, 84 (2006).

¶ 19   Illinois Supreme Court Rule 401(a) provides:

          “(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;




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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.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

Strict compliance with Rule 401(a) is not required. “[S]ubstantial compliance will be sufficient to

effectuate a valid waiver if the record indicates that the waiver was otherwise made knowingly,

intelligently, and voluntarily, and the admonishments the defendant received did not prejudice his

rights.” People v. Jiles, 364 Ill. App. 3d 320, 329 (2006). A reviewing court will look “to the

overall context of the proceedings, including the defendant’s conduct following the defendant’s

request to represent himself.” (Internal quotation marks omitted.) People v. Ware, 407 Ill. App. 3d

315, 340 (2011).

¶ 20   The defendant argues that on April 11, 2022, when he waived counsel, the trial court simply

read the counts in the information without any further explanation of the nature of the charges. In

support of his argument, the defendant relies on People v. Jiles, which notes that “Rule 401(a)

admonishments must be provided at the time the court learns that a defendant chooses to waive

counsel, so that the defendant can consider the ramifications of such a decision.” Jiles, 364 Ill.

App. 3d at 329. However, the court in Jiles also noted that “substantial compliance will be

sufficient to effectuate a valid waiver if the record indicates that the waiver was otherwise made

knowingly, intelligently, and voluntarily, and the admonishments the defendant received did not

prejudice his rights.” Id. The right to waive counsel is fundamental, and because of the gravity of

the circumstance, each case “must be evaluated on its own particular set of facts.” Wright, 2017

IL 119561, ¶ 54.


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¶ 21   The docket entry dated December 14, 2021, which was the defendant’s first appearance,

states: “Defendant present in custody, tendered copy of the Information, and advised as to the

nature of the charges and possible penalties.” When reviewing a docket entry, “[w]e must presume

the common-law record is correct.” People v. Martinez, 361 Ill. App. 3d 424, 427 (2005); see

People v. Durr, 215 Ill. 2d 283, 306 (2005) (“the common law record imports verity and is

presumed correct”). Only where a conflict between the common-law record and report of

proceedings exists will the report of proceedings prevail. Id. Here, similar to Martinez, there is no

report of proceedings for the December 14, 2021, court appearance. Accordingly, we must

presume that the common-law record is correct. Therefore, we find that the defendant was

adequately admonished of the nature of the charges and possible penalties on December 14, 2021.

Additionally, on February 9, 2022, the defendant was present and heard extensive testimony during

the preliminary hearing. On that same date, the defendant was handed a copy of the amended

information, which added count V. On March 28, 2022, the defendant began filing his pro se

motions and ultimately waived his right to counsel on April 11, 2022. The defendant also cogently

argued several motions, before ultimately proceeding to a jury trial pro se.

¶ 22   “Substantial compliance occurs when any failure to fully provide admonishments does not

prejudice defendant because either: (1) the absence of a detail from the admonishments did not

impede defendant from giving a knowing and intelligent waiver or (2) defendant possessed a

degree of knowledge or sophistication that excused the lack of admonition.” People v. Pike, 2016

IL App (1st) 122626, ¶ 112. An otherwise inadequate admonition may be constitutionally

sufficient, and therefore does not constitute error, if the absence of a detail did not impede the

defendant from giving a knowing and intelligent waiver. People v. Black, 2011 IL App (5th)

080089, ¶ 20. In deciding whether a defendant’s waiver of counsel was valid, the dispositive issue


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is whether the waiver of counsel was made knowingly, understandingly, and effectively in light of

the entire record. People v. Gilkey, 263 Ill. App. 3d 706, 711 (1994).

¶ 23   Here, the defendant actively participated in 13 pro se pretrial hearings and never wavered

on his desire to represent himself. The only reasons even given by the defendant for his desire to

represent himself were related to his speedy trial rights and the lack of a probation offer. The

defendant filed 12 pro se pretrial and 9 pro se posttrial motions, argued them all, and referenced

his “extensive research” with respect to the motions. Given the defendant’s lengthy criminal

history and his prior pro se experience, coupled with his pro se experience here, we find that the

defendant’s familiarity with the legal process establishes that the defendant possessed the degree

of knowledge or sophistication that excused the lack of a complete Rule 401(a) admonishment by

the trial court. Pike, 2016 IL App (1st) 122626, ¶ 112. Accordingly, after reviewing the entire

record, we conclude that the trial court substantially complied with Rule 401(a).

¶ 24   The defendant next argues that the trial court’s admonishments were insufficient to satisfy

Rule 401(a) because the defendant was incorrectly advised that the maximum sentence he could

receive on the armed habitual criminal charge (count II) was 60 years. The defendant maintains

that because the State used the defendant’s prior felony conviction as a predicate offense for the

charge of armed habitual criminal, it was precluded from using that same conviction to impose an

extended-term sentence. Therefore, the maximum sentence for count II was 30 years, not 60.

However, the defendant was admonished that the maximum sentence he could receive on count V

(armed violence) was 60 years. We find People v. Coleman, 129 Ill. 2d 321 (1989), and People v.

Johnson, 119 Ill. 2d 119 (1987), to be instructive. The court in People v. Coleman reasoned that:

“Where a defendant knows the nature of the charges against him and understands that as a result

of those charges he may receive the death penalty, his knowledge and understanding that he may


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be eligible to receive a lesser sentence pales in comparison.” Coleman, 129 Ill. 2d at 334. Likewise,

in People v. Johnson, the court upheld a waiver of counsel and found substantial compliance with

Rule 401(a) despite the fact that the trial court failed to specifically advise the defendant that he

faced a mandatory minimum sentence of life imprisonment. Johnson, 119 Ill. 2d at 131-32. Here,

as in Coleman and Johnson, the erroneous sentencing admonishment did not invalidate the

defendant’s waiver of counsel. Analogously, the defendant was fully aware that the sentencing

range for armed violence (count V) was substantially longer than the sentencing range he faced

for armed habitual criminal (count II). Given that, the importance of the defendant having specific

knowledge that the maximum sentence he faced for armed habitual criminal (count II) was 30

years less than the maximum sentence he faced in count V clearly “pales in comparison.” Coleman,

129 Ill. 2d at 334. Accordingly, we find that the trial court’s admonishments, despite the incorrect

sentencing range for armed habitual criminal, substantially complied with Rule 401(a).

¶ 25                                  III. Conclusion

¶ 26   For the above reasons, we find that the trial court substantially complied with Illinois

Supreme Court Rule 401(a). Accordingly, the defendant’s conviction and sentence are affirmed.


¶ 27   Affirmed.




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