author: JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN WARD, Defendant-Appellant.
    Fourth District
    No. 4—90—0386
    Opinion filed February 13, 1991.

      McCULLOUGH, J., dissenting.
    Daniel D. Yuhas and Jon MePhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Donna Dagnall, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant, Stephen Ward, was found guilty of aggravated battery on a corrections officer (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(6)) and sentenced to an extended term of 10 years in prison. On appeal, defendant argues that he was denied his sixth amendment right to conduct his own defense. We agree and reverse.

In October 1989, an indictment charged defendant with two counts of aggravated battery. On November 14, 1989, defendant, an inmate at Pontiac Correctional Center, appeared before the court for the first time on that indictment and was advised, inter alia, that he had the right to be represented by counsel and that if he could not afford to hire an attorney of his own choice, someone would be appointed to represent him, namely, the public defender. When defendant responded that he did not want a public defender, but “would appreciate a bar association [lawyer],” the court replied that defendant did not have the choice of who his appointed counsel would be. The court explained to defendant that the county had a public defender who had the responsibility to represent accused people such as defendant. Defendant continued to object to the public defender’s appointment, explaining that, “I’m a two time loser. I feel that a public defender wouldn’t represent me to the fullest.” The court explained again that under the law, defendant had no choice as to who his appointed lawyer would be, stating, “You can refuse a lawyer all together [sic], but you don’t have a choice ***.” Defendant responded, “If it comes to that, that’s what I’ll do then.” The court appointed the public defender anyway and recommended to defendant that he at least speak to his court-appointed counsel before he decided whether to have that counsel represent him. The court then continued the matter for a few days.

On November 22, 1989, defendant next appeared in court, and the public defender appeared as his counsel. Defendant was arraigned and pleaded not guilty, and the case was set for trial in January 1990. Counsel filed various discovery motions on defendant’s behalf, and they were granted.

On December 22, 1989, defendant appeared in court and complained about the public defender’s representation. After listening to these complaints, the trial court found no deficiencies in counsel’s representation. Defendant continued to indicate that he had a problem with his court-appointed counsel, saying, “I don’t feel comfortable with him.” After further discussion, the trial court told defendant that his choices were either to continue with the court-appointed counsel, to hire a private lawyer, or to represent himself as his own lawyer. When defendant continued to complain and indicated that maybe he should represent himself, the court said that there was no need to make a final decision at that hearing and that they could talk about the matter again in January.

On January 8, 1990, a hearing was conducted on defendant’s motion for a change of place of trial, which was filed by his court-appointed counsel, and the motion was denied. Thereafter, the trial court inquired of defendant regarding his court-appointed counsel, and defendant responded that his position was the same as when he was last in court, namely, that he wanted a different lawyer appointed for him. The court again explained that it was not going to take that action, stating that it could discharge defendant’s court-appointed counsel, but that would leave defendant with only two options: first, that he represent himself; or second, that he or his family hire a private attorney to represent him. Defendant responded that he did not have the resources to do that. Defendant then stated, “I am not going to represent myself. I don’t know how to represent myself.” The matter was continued for trial until February, and the court concluded the proceedings by again informing defendant that it had no reason to discharge his court-appointed counsel.

On February 13, 1990, a different representative of the public defender’s office appeared on behalf of defendant. In conversation with the trial court, defendant indicated that he did not like his new court-appointed attorney any better than the previous one, explaining that the court had “to understand it is not my fault because I am getting a wicked lawyer.” After further discussion with the court, defendant said that he would file a motion to represent himself, “but I am not going to be held accountable for anything that goes wrong in the case because I don’t know anything about the law.” In response, the court said that defendant had the right to make the request and a constitutional right to defend himself, but “I would strongly try and discourage anybody from doing that.” The following colloquy then took place:

“DEFENDANT: No, sir, I am forced with no choice.
THE COURT: See, Mr. Ward, we run into that an awful lot now.
DEFENDANT: Look [at] the way the system operate[s].
THE COURT: Defendant comes in and says ‘judge, this whole system is against me. Everybody is working together on this. They are going to get me convicted. I don’t have a chance. I don’t want this public defender. I don’t want the lawyer you appointed. He is not going to represent me. He is going to sell me out. I am going to get convicted.’ Then I say ‘Do you want a lawyer?’ You say, ‘No, judge, I really like to have a lawyer but I want one other than the state pays for.' I say, ‘It has to be a RD.’ I say, ‘Do you want to represent yourself?’ You say, ‘No, judge, if I was convicted, I will say it was a dumb move on my part and the judge shouldn’t have let me do it. I done a bad job on it and got convicted. I shouldn’t have to do anymore time because I represented myself.’ What happens on those cases the Illinois Supreme Court and U. S. Supreme Court has said ‘Hey, that is too bad. If an inmate wants to represent himself and screws up his case and the court tells him what kind of problems there are and he loses and messes up, then he can’t come back later and say I goofed it up.’
DEFENDANT: I am aware of that.
THE COURT: T want to start over. I don’t like the way it turned out without a lawyer. I want to have a lawyer and see how it turns out.’ No, we do it once. Unless there is some kind of error in the way the case was handled you are stuck with whatever the results are.
DEFENDANT: I am aware of that.
THE COURT: Lets [sic] talk about that.
If you are going to represent yourself, I need to know some things.
How far have you gone in school?
DEFENDANT: Tenth grade.
THE COURT: Are you able to read and write?
DEFENDANT: Yes.
THE COURT: Have you worked on any kind of legal motion in any other court cases you have been involved in?
DEFENDANT: Yes.
THE COURT: Could you tell me the type of case or cases that have been involved?
DEFENDANT: Civil matters.
THE COURT: Have you filed some civil lawsuits in your own behalf?
DEFENDANT: Yes.
THE COURT: Have you tried to represent yourself before?
DEFENDANT: No. Never. I was forced like circumstances like this here.
THE COURT: Have you ever tried to do your own legal research in a law library?
DEFENDANT: Tried to do the best I can.
THE COURT: No. Have you tried to research some problems before?
DEFENDANT: No.
THE COURT: Do you know anything about researching the law?
DEFENDANT: No, I don’t.
THE COURT: Have you ever actually gone through a trial where you have represented yourself?
DEFENDANT: No, sir.
THE COURT: Do you know anything about the rules of evidence which apply in a criminal case?
DEFENDANT: No, I don’t.
THE COURT: Have you ever been forced to try and pick a jury for a jury trial?
DEFENDANT: No, I haven’t.
THE COURT: Have you ever called witnesses into court and questioned witnesses?
DEFENDANT: No, sir.
THE COURT: Have you ever made an argument to a jury about what you believe has been proven or not proven?
DEFENDANT: No, sir.
THE COURT: Have you ever prepared what are called legal instructions as to what the law is that would apply to your case that you wanted the judge to give to a jury?
DEFENDANT: No, sir.
THE COURT: This is a case in which you are charged with two counts of aggravated battery. The possible penalties upon conviction would be an additional term of imprisonment for a period of anywhere from two years up to five years, which would carry with it a one year supervised release or parole period. Depending upon your past record, the state could ask for an extended sentence of anywhere from five to ten years, if you were convicted. You could be ordered to pay a fine of up to $10,000.00 in addition to an additional period of imprisonment. If you have a Class II or higher felony conviction within the last ten years, and I can’t remember if you have indicated— what is your present sentence?
DEFENDANT: 29 years.
THE COURT: For a murder?
DEFENDANT: Yes.
THE COURT: Okay. That is within the last ten years?
DEFENDANT: Yes.
THE COURT: Then I think I may have told you before if you would be convicted of aggravated battery, the only possible sentence you could receive would be a consecutive sentence or add-on sentence of anywhere from two years up to ten years in DOC. There would be no possibility other than prison time and it would not start until after you finished your present sentence together with whatever good time you would have and whatever loss of time you would have. All you are looking at is a possibility of more prison time after you have finished your sentence, if you should be convicted. I want you to understand that it is a possibility. Do you understand that?
DEFENDANT: No. I don’t understand.”

Defendant then proceeded to once again complain about being put to the choice of either representing himself or being forced to trial with an attorney from whom he could not get “honest treatment.” The trial court patiently discussed this subject further and again informed defendant that there was no reason why his present court-appointed counsel could not and would not do a good job on his behalf. The court then discussed with counsel possible dates for trial, and the following discussion took place:

“THE COURT: Mr. Ward, after considering your request to represent yourself based upon the theory that the cases — and you are saying we already figure the case is a loser and I might as well mess it up myself—
DEFENDANT: I am not going to mess it up. That is what you are saying.
THE COURT: What I am saying, Mr. Ward, based upon your educational background even though you have filed civil matters in your behalf, based upon your having no trial experience, no research experience, having confirmed with me you do not understand or know what the procedures would be, I do not have to permit you to represent yourself because I have to find that you are capable of doing that. I find specifically for the record, after considering your responses, that you are not capable of doing it, that you are kind of entering into that on the basis that well, I at least will be more interested in my case than the lawyer will be and I will do a better than the lawyer will do, I am not convinced that is true and, accordingly, I am not going to discharge court appointed counsel. So you will have an attorney representing you.”

On April 2, 1990, a hearing was held on a series of motions defendant filed pro se on March 23, 1990, requesting that the court discharge his court-appointed counsel. As noted by the court, those motions again asserted defendant’s dissatisfaction with his court-appointed counsel and his desire to have the court appoint a third lawyer to represent him. The trial court again denied defendant’s request for further relief, reaffirmed its previous findings that defendant was not capable, by virtue of. training or experience or skills to defend himself, and concluded that defendant “very much needs the assistance of counsel.”

On April 9, 1990, defendant’s case was called for trial and defendant appeared in open court and claimed to have no lawyer. When the court pointed out that defendant had court-appointed counsel present, defendant responded that he could not be defendant’s lawyer because the lawyer “ain’t competent.” More discussion then took place between the court and defendant regarding his displeasure with his court-appointed counsel, during which defendant repeatedly interrupted the trial court, requiring the court to inform defendant that if he did not control himself, he would be held in the side room. Defendant said he would prefer that, but later declined to waive his right to be present. Further discussion ensued regarding defendant’s representing himself, but the court found his behavior too disruptive to permit him to do so. (We need not concern ourselves with this later behavior, however, because for the reasons hereafter stated, at the February 13 hearing defendant was improperly denied his right to represent himself. His subsequent disruption was a manifestation of his displeasure with the court-appointed counsel whose services he was continuously rejecting. We decline to speculate as to how defendant would have conducted himself had he been permitted to proceed pro se.)

A trial was finally held, and several correctional officers testified about the incident in which defendant struck one correctional officer above the eye, knocking him to the ground, and requiring four stitches. After the State rested, the defense presented no evidence. The jury returned verdicts finding defendant guilty of aggravated battery, and he ultimately was sentenced to 10 years in prison.

In People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415, the Illinois Supreme Court addressed the issue of a defendant’s right to conduct his own defense and stated the following:

“It is clear that the sixth amendment to the Constitution of the United States [citation] provides for the right of self-representation in criminal proceedings. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525; see also, Ill. Const. 1970, art. I, sec. 8.) The ‘ “right of a defendant to represent himself, when his choice is intelligently made, is as basic and fundamental as his right to be represented by counsel.” ’ [Citations.] The Supreme Court, in Faretta, noted the ‘nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.’ [Citation.] Although a court may consider his decision unwise, if it is freely, knowingly and intelligently made, that decision must be accepted out of ‘that respect for the individual which is the life-blood of thé law.’ ” Silagy, 101 Ill. 2d at 179-80, 461 N.E.2d at 431.

See also People v. Gibson (1990), 136 Ill. 2d 362, 374-75, 556 N.E.2d 226, 231.

The record in the present case makes clear that when defendant was informed by the trial court that his only choices were either to represent himself or to continue with court-appointed counsel, defendant stated that he wished to represent himself. On this record, the court’s decision that defendant had to choose between these two alternatives was entirely correct; the problem arose only when the court would not abide by the choice defendant made.

Supreme Court Rule 401 (107 Ill. 2d R. 401) requires that a court shall not accept a waiver of counsel until it has addressed defendant personally in open court, informing him of and determining that he understands the nature of the charge, the minimum and maximum sentence prescribed by law (including sentences the defendant may be subjected to because of prior convictions or consecutive sentences), and last, that defendant has a right to counsel and, if indigent, to have counsel appointed for him. Because relinquishment of the right to counsel is such a critical step for a defendant to take, the court in People v. Davis (1988), 169 Ill. App. 3d 1, 6, 523 N.E.2d 165, 167-68, wrote the following:

“ ‘[A] defendant may competently waive counsel if such an election is voluntary and constitutes “a knowing and intelligent relinquishment or abandonment of a known right or privilege.” ’ People v. Baker (1982), 92 Ill. 2d 85, 91, quoting Edwards v. Arizona (1981), 451 U. S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1883.
* * *
In ruling on a motion for self-representation, the trial court must determine whether the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel. The criteria generally considered in making that decision include the defendant’s age, level of education, mental capacity and prior involvement, if any, in legal proceedings.”

To ensure that a defendant’s request for self-representation is an intelligent and knowing waiver of his right to counsel, we agree with Professors Wayne R. LaFave and Jerold H. Israel that it would be desirable for a trial court to inform defendant of the following matters:

(1) presenting a defense is not a simple matter of telling one’s story, but requires adherence to various technical rules governing the conduct of a trial;
(2) a lawyer has substantial experience and training in trial procedure and the prosecution will be represented by an experienced attorney;
(3) a person unfamiliar with legal procedures (a) may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, (b) may not make effective usage of such rights as the voir dire of jurors, and (c) may make tactical decisions that produce unintended consequences;
(4) the defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation;
(5) the effectiveness of his defense may well be diminished by his dual role as attorney and accused;
(6) defendant will receive no special consideration from the court;
(7) defendant will receive no extra time for preparation or greater library time (if in prison);
(8) a lawyer can render important assistance (a) by determining the existence of possible defenses to the charges against defendant, (b) through consultations with the prosecutor regarding possible reduced charges or lesser penalties, and (c) in the event of a conviction, by presenting to the court matters which might lead to a lesser sentence;
(9) in the event the court accepts defendant’s decision to represent himself, defendant will not be given an opportunity to change his mind during trial; and
(10) if the court in its discretion is not going to appoint standby counsel, to specifically inform the defendant that there will be no standby counsel to assist him at any stage during trial.

See W. LaFave and J. Israel, 2 Criminal Procedure §§11.5(a), (b), (c), at 42-45 (1984) (hereinafter LaFave and Israel).

As the court noted in Silagy, the defendant’s choice to represent himself must be “intelligently made.” (Silagy, 101 Ill. 2d at 179, 461 N.E.2d at 431.) While the trial court must determine that the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel, the trial court is not permitted to decide whether that decision is wise. However, that is essentially what the trial court decided in this case when it stated that, based upon defendant’s limited background, he was not capable of representing himself. The trial judge specifically noted, “I do not have to permit you to represent yourself because I have to find that you are capable of doing that.” This is an incorrect statement of the law, but an understandable one in view of some confusion regarding this subject in various appellate court decisions.

The Fifth District Appellate Court in People v. Siler (1987), 154 Ill. App. 3d 102, 506 N.E.2d 756, recently wrote regarding the trial court’s inquiry into a defendant’s ability to represent himself and stated the following: “A careful inquiry must be made to determine defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. (People v. Graves (1984), 134 Ill. App. 3d 473, 476, 480 N.E.2d 1142, 1144.)” Siler, 154 Ill. App. 3d at 108, 506 N.E.2d at 760.

In People v. Graves (1984), 134 Ill. App. 3d 473, 480 N.E.2d 1142, the First District Appellate Court stated the following: “A careful inquiry must be made to determine defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. (People v. Kavinsky (1980), 91 Ill. App. 3d 784, 414 N.E.2d 1206.)” Graves, 134 Ill. App. 3d at 476, 480 N.E.2d at 1144.

In People v. Kavinsky (1980), 91 Ill. App. 3d 784, 414 N.E.2d 1206, the First District Appellate Court wrote the following: “In waiver of counsel cases, a careful inquiry must be made to determine the defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 49-50, 372 N.E.2d 1014.” Kavinsky, 91 Ill. App. 3d at 798, 414 N.E.2d at 1217.

In People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 372 N.E.2d 1014, the First District Appellate Court wrote the following:

“[I]n addition to engaging in a colloquy with the defendant to advise him of his right to counsel, the court must still determine for itself whether the accused has the requisite capacity to effectuate an intelligent waiver of his right. The objective criteria commonly utilized by courts to make this determination are the defendant’s age [citation], level of education [citation], mental capacity [citation] and prior involvement, if any, in legal proceedings [citation]. On the basis of the surrounding circumstances and these relevant factors, the trial court must make a subjective evaluation of whether an accused was aware of what he was doing.” (Vanderwerff, 57 Ill. App. 3d at 49-50, 372 N.E.2d at 1019.)

Clearly, the Vanderwerff court was discussing inquiries the trial court should make when determining whether a defendant is making “an intelligent relinquishment or abandonment of a known right or privilege.” These inquiries concerned waiver-, they had nothing to do with inquiring into the defendant’s ability to conduct his own defense, as the courts in Kavinsky, Graves, and Siler stated. Insofar as these cases suggest, as did the remarks of the trial court in the present case, that “a careful inquiry must be made to determine the defendant’s ability to conduct his own defense” (Kavinsky, 91 Ill. App. 3d at 798, 414 N.E.2d at 1217), we decline to follow them. Instead, we agree with Professors LaFave and Israel that there are three possible grounds for denying a defendant’s request to proceed pro se.

First, the request might come so late in the proceedings that to grant it would be disruptive of the orderly schedule of proceedings. We caution, however, that when a request to proceed pro se is made and there is no request for additional time to prepare, a motion to proceed pro se should generally be viewed as timely as long as it is made before trial. LaFave and Israel, §11.5(d), at 47.

Second, a trial judge may terminate self-representation by a defendant who engages in serious and obstructionist misconduct, as noted by the Court in Faretta v. California (1975), 422 U.S. 806, 834 n.46, 45 L. Ed. 2d 562, 581 n.46, 95 S. Ct. 2525, 2541 n.46. While this authority ordinarily would be exercised only after a defendant has begun to represent himself, in exceptional situations, as noted by Professors LaFave and Israel, a defendant’s behavior in the course of seeking to obtain self-representation may in itself be disruptive and thereby justify denying his motion to proceed pro se. (LaFave and Israel, §11.5(d), at 47-48.) As we observed earlier, defendant’s behavior in the present case did not approach being disruptive or obstructionist until after his motion to proceed pro se had been erroneously denied.

Third, defendant’s request for self-representation may be denied when, despite the court’s efforts to explain the consequences of waiver, the court finds the defendant is unable to reach the level of appreciation needed for a knowing and intelligent waiver. (LaFave and Israel, §11.5(d), at 47-48.) We emphasize, however, that this is an inquiry into the defendant’s ability to make a knowing and intelligent waiver of his right to counsel; it is not an inquiry into defendant’s ability to do an appropriate job defending himself at trial. As Professors LaFave and Israel have noted, “trial courts hesitate to deny the request of an adult defendant unless he appears to be suffering from some significant mental disability.” (La-Fave and Israel, §11.5(d), at 48.) We agree that this standard should guide the trial courts as they make such inquiries and resolve the question of whether defendant can make an intelligent waiver of his right to counsel.

Once the trial court (1) has addressed a defendant in open court who wishes to proceed pro se, (2) has appropriately informed him of the rights he is waiving and the potential disadvantages of his action, as we have discussed in this opinion, and (3) finds that defendant is knowingly waiving his right to counsel, then the court should make its findings accordingly and, thereafter, respect the defendant’s decision to exercise his constitutional right of self-representation. That right may not be thwarted by the trial court’s opinion that defendant’s decision is ill-advised, unwise, or unsound, however correct that opinion may be.

Because the trial court in the present case denied defendant his constitutional right to self-representation on the ground that the court viewed defendant as incapable of adequately representing himself, defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.

SPITZ, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

A now deceased reviewing court judge when asked when he dissented answered, when my outrage overwhelms my inertia. This is such a case. Although the record is not flawless, the trial court did not err as asserted by the majority. The defendant never knowingly and intelligently waived his right to counsel. (Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541.) Contrary to the majority position, the defendant’s behavior from the beginning of the proceedings was disruptive and obstructive. The majority reviews some of the proceedings of the trial court concerning defendant’s request for other counsel or desire to represent himself. I might only say that based upon what is stated in the majority decision with respect to the trial transcript, if the defendant had filed an appeal alleging that he had been deprived of his right to counsel, we would reverse posthaste.

Initially, the issue was not brought to the trial court’s attention in defendant’s post-trial motion. For this reason alone, the issue is waived (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), unless it falls within the limited exception of plain error affecting substantial rights (134 Ill. 2d R. 615(a)). This is not such a case.

The defendant first appeared in court on November 14, 1989, when he was arraigned and indicated to the court that he would appreciate a bar association attorney and did not want a public defender. He further indicated “I’m a two time loser. I feel that a public defender wouldn’t represent me to the fullest.” The trial court told the defendant that he did not have a choice between a bar association lawyer and a public defender, but that he could refuse a lawyer altogether. The defendant responded, “If it comes to that, that’s what I’ll do then.” The court at that time appointed the public defender to represent the defendant. Again, on November 22, 1989, the defendant appeared for further arraignment. The defendant waived reading of the charges, entered a plea of not guilty and filed a motion for discovery. The court advised defendant of his right to speedy public trial. The court also advised the defendant that Mr. Ahlemeyer, apparently his attorney, was going to file a motion to change venue. Respondent indicated he understood and that was what he wanted to do. It should be pointed out that at this hearing, defendant made no objection to his representation by Ahlemeyer as public defender. On December 22, 1989, there was a hearing at the request of the public defender for the purpose of determining his further representation of the defendant in the case. The trial court indicated to the defendant that he did not have the right to name the attorney that would represent him. The defendant indicated that he just did not trust the public defender. The trial court indicated that if there was a personality conflict between Ahlemeyer and the defendant, the court would appoint another public defender to represent the defendant, stating:

“If you want to fire Mr. Ahlemeyer, I will let you do that, but if you do, you will be representing either yourself as your own lawyer or you will have to hire a private lawyer. Okay. I am not going to force you to take Mr. Ahlemeyer, if you don’t want him, but if you don’t want him, then you are going to be your own lawyer.”

The defendant responded: “I am going to be my — I ain’t went to school to know the law.” Defendant further stated, “I don’t appreciate being between a loaded shotgun and Mr. Ahlemeyer. Either way I go, I am going to lose.” The court indicated it would take the matter of Ahlemeyer’s representation up again at the next hearing and also indicated, “unless you can come up with something stronger than that, that is not good enough for me under the law to get rid of Mr. Ahlemeyer unless you get rid of him and say fine, I will represent myself.”

Another hearing was held on January 8, 1990, upon the defendant’s motion for change of venue. The motion for change of venue was denied. The court again addressed the defendant: “Mr. Ward, what is your present position as far as counsel is concerned?” The defendant responded that his position was not different, and was the same as the last hearing. The defendant reiterated his feeling that he just did not trust Ahlemeyer as his attorney. The court addressed the defendant: “[I]f I discharge Mr. Ahlemeyer, leaving you with two options. First, that you represent yourself.” The defendant responded: “I am not going to represent myself. I don’t know how to represent myself.” The defendant, in that hearing, further responded with respect to Ahlemeyer’s representation, “Like I don’t have any problem with Ahlemeyer. Like I told him what disturbs me everytime I try to explain my situation it seems like he more leaning to the other side like he was defending the other side.” Further hearing was set for February 13, 1990, and at that time the defendant appeared in court with a representative of the public defender’s office, Paul Mason. The defendant indicated to the court that his present attorney, Mason, told him from the discovery that there was no doubt in his mind what the impact was going to be on the jury’s mind. The court asked, “Did he tell you for that reason I am not going to represent you, I will not call witnesses?” Defendant responded, “No. He did not tell me that.” The court indicated to the defendant that Ahlemeyer and Mason were experienced attorneys, and the defendant’s only response was that because they had told him he could not win the case, “all I am going to ask you is that I will file a motion to represent myself but I am not going to be held accountable for anything that goes wrong in the case because I don’t know anything about the law.” (Emphasis added.) The court indicated that the defendant had the right to make the request and a constitutional right to defend himself. The defendant responded that he was forced because he had no choice. Specifically, defendant said, “I am saying if I am going to be charged with a case and I be appointed a lawyer. That is all I want is a fair representation. That is all I want.” As stated in the majority opinion, the court then went through the questioning of the defendant, which showed that the defendant had gone through the tenth grade in school, was able to read and write, had worked on some legal motions in other court cases which were civil cases; he had filed civil lawsuits in his own behalf, but had never tried to represent himself before; he had tried to do the best he could with the law library, but indicated he had not researched problems before, he did not know anything about researching the law, and that he had never actually gone through a trial where he represented himself. He further acknowledged that he did not know anything about the rules of evidence which apply in criminal cases, he had never tried a case or picked a jury by himself, he had never called witnesses into court and questioned the witnesses, and he had never presented an argument to the jury or prepared instructions to be given to the jury in a criminal case. The court stated: “I am not going to discharge court appointed counsel. So you will have an attorney representing you.” Because the defendant was in Stateville Correctional Center, the court was concerned that his attorney would not be able to talk to the defendant. The court stated he would have to “writ the defendant down” to which the defendant responded: “I would expect to talk with him today and I think if necessary, I can write him back.” At the close of the hearing, defendant was asked if there was “anything you don’t understand or want to say for the record or anything else you want to add?” to which the defendant responded, “No, sir.”

On March 23, 1990, defendant filed several pro se motions, including a motion for withdrawal of the appointed public defender and a motion for the appointment of a bar association lawyer. With respect to the motion for appointment of bar association lawyer, defendant stated he was indigent, without the financial resources to retain counsel to represent him in his defense, and that he had a Federal and State constitutional right to effective assistance of counsel. Although defendant stated at the February 13 hearing he would file a motion to represent himself, he did not do so. In none of defendant’s pro se motions did he indicate he desired to proceed pro se.

A further pretrial hearing was held on April 2, 1990. The protracted hearing dealt generally with the presentation of witnesses and specifically the desire of the defendant to call a witness named Dr. Shansky. The record of that hearing does not show any request by the defendant to represent himself, but merely his disagreement with the way in which his appointed attorney was handling his ease in the pretrial stages. The trial court denied the pro se motions.

After the April 2 hearings, defendant on April 9, 1990, filed another pro se pleading asking the court to reconsider its denial of his motions as to the methods of discovery, to withdraw appointed counsel, and for appointment of a bar association lawyer. Again, defendant never mentioned his desire to proceed pro se.

The defendant’s jury trial began on April 9, 1990. After some preliminary matters, the defendant indicated he did not have a lawyer and that, just because the public defender was present in court with him, “He can’t be my attorney.” The court told the defendant again that he had the right to proceed without a lawyer. The trial court told the defendant:

“[F]rom Judge Glennon’s docket entries, there is — apparently you have never given them a reason why Mr. Ahlemeyer or now Mr. Mason can’t represent you. Do you wish to tell me anything now concerning why Mr. Mason is not your lawyer? Is there anything you want to tell me on the record now before we start the jury trial?”

Defendant stated it was already on the record as to why he did not want Mason to represent him. The trial court reviewed the proceedings and stated, “I find no reason stated why Mr. Mason cannot represent you.” The prosecutor suggested that the record clearly reflect the defendant’s right to proceed pro se. The defendant said, “I will represent myself.” The court in response, “Okay. If you do that, I will — if you ask for that, I will discharge Mr. Mason. Mr. Mason will not represent you. And I will expect you to follow the rules of law, all of the rules.” And the court told the defendant, “If you want to represent yourself, that is fine. That is your choice. But I will expect you to understand the rules of evidence, the rules of procedure.” The defendant continued his disruptive behavior. His nonresponsive answer was, “Why don’t you just leave me in the bull pen then?” After further questions to the defendant, the court stated, “Okay. I think I am going to simply find he is too disruptive, too argumentative at this point to intelligently make a decision on whether he wishes to proceed pro se or be present.” Although the defendant indicated he would rather be in “the bull pen,” the record shows the defendant was present during the proceedings at trial.

The public defender actively participated in the trial and conducted extensive cross-examination of the State’s witnesses. At the close of the prosecutor’s case, the defendant’s attorney informed the court as follows:

“I talked with Mr. Ward over the lunch recess, and he advised me that he did not want to take the stand. He also advised me that he did not want Jerrico Smalley to take the stand as a witness. And Smalley is here at the courthouse at this time. And based on his instructions, I will not be calling those people. I believe that the defendant would have some comments that he wants to make about that decision. And I would request you to let him make those comments.”

The court allowed the defendant to respond:

“I was advising Paul Mason that the statement that I was not allowed to bring out in my discovery since constantly and repeatedly being brought out now at trial, I will not take the stand, or I won’t allow my witness to take the stand because on the ground that these here — they constantly bringing out the statement that I tried to put on discovery.”

The court also asked the defendant, “Is there something that you wanted to tell the jury that you are not being allowed to?” To which the defendant responded, “No. It is not really that. I believe strongly that if that would have been admitted in a discovery, that would have gave Paul Mason a better idea and investigate the case more.” The court then again asked the defendant, “Have you discussed this with Mr. Mason, and you have decided not to testify, not to call Mr. Smalley?” to which the defendant responded, “Yes.” The court then asked, “And not to call anyone else?” Defendant responded, “Yes.” The court said, “Is that your choice?” and the defendant responded, “Yes.” Defendant’s attorney then responded that they had no evidence to present. With presentation of evidence completed, the conference on jury instructions held, and the jury properly instructed, the jury retired and returned a verdict finding the defendant guilty. The record shows the trial proceeded in an orderly fashion regardless of the disruptions by the defendant. The defendant made no objections to the court as to the effectiveness of his counsel and was allowed to address the court. Defendant’s attorney filed an extensive post-trial motion. In his post-trial motion, defendant did not assert as error the failure to allow him to proceed pro se. The post-trial motion did assert error in denying defendant’s motion to discharge the public defender and “advising defendant that his only choices were to accept Mr. Mason as attorney or to proceed on the case pro se.” A review of the record clearly shows defendant never wanted to proceed pro se.

The defendant’s post-trial motion was denied and, at sentencing hearing, when defendant was given his right to allocution, he indicated he did not desire to say anything.

On the merits, I agree the test is not who would do a better job, defendant pro se or appointed counsel. But this is not the issue. Contrary to the majority’s position, the record is not clear that, when defendant was informed by the trial court that his only choices were to represent himself or continue with court-appointed counsel, he indicated a clear desire to represent himself.

Although defendant said he would file a motion to represent himself, none of the- pro se motions filed made such a request. As pointed out, at the February 13 hearing, defendant stated he would file a motion to represent himself. He subsequently filed several pro se motions and never mentioned his desire to represent himself. Defendant did not want to represent himself. He wanted a choice of attorneys.

I agree with the proposition, cited by the majority, stated in Davis:

“[T]he trial court must determine whether the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel. The criteria generally considered in making that decision include the defendant’s age, level of education, mental capacity and prior involvement, if any, in legal proceedings.” (Davis, 169 Ill. App. 3d at 6, 523 N.E.2d at 168.)

The trial court, at various hearings, inquired of the defendant as to his ability to conduct his own defense. The record is clear the defendant stated he could not do this. This is simply a case where the defendant did not want court-appointed counsel but wanted to participate in the decision as to who his counsel would be.

In Faretta, the defendant responded to the court’s questions indicating that he knew how to handle the trial of the case and was able to make a knowing and intelligent waiver of his right to counsel. This is not the case here. As stated in Faretta:

“Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” (Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 582, 95 S. Ct. at 2541.)

I do not agree that Kavinsky, Graves, and Siler were incorrectly decided. Here, the trial court did not err, the issue on appeal is without merit, and the circuit court of Livingston County should be affirmed.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HILDRUS A. HANCOCK, Defendant-Appellant.
    Fourth District
    No. 4—90—0388
    Opinion filed February 13, 1991.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On December 11, 1989, defendant Hildrus Hancock entered a guilty plea in the circuit court of Vermilion County to the offense of residential burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.) He subsequently received an eight-year prison sentence. Defendant filed a motion seeking to withdraw his guilty plea which was denied on May 10, 1990. This appeal followed.

On appeal, defendant observes that trial counsel failed to file a certificate pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). The rule provides in part:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (107 Ill. 2d R. 604(d).)

Defendant also observes that counsel could not have reviewed the report of proceedings on the guilty plea hearing, because it was not prepared until after the hearing on the motion to withdraw his guilty plea. Accordingly, defendant believes these failures mandate reversal of the denial of his motion.

Recently, in People v. Johnson (1990), 207 Ill. App. 3d 122, this court addressed an identical situation. There, after reviewing the recent cases of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, and People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, we concluded the failure to comply with Rule 604(d) in this fashion constituted reversible error. This, of course, controls in the present case. We therefore vacate the court’s order and remand this case for further proceedings.

We do so, even though it appears from a cursory review that the plea was voluntary. However, as the Hayes court observed:

“[W]e are compelled to follow the supreme court’s directive in Wilk that Rule 604(d) contains rules which must be followed and are not merely suggestions. We ano longer approach these cases in terms of whether the error in failing to comply with Rule 604(d) was harmless or prejudicial, but instead follow a rule of strict compliance.” (Hayes, 195 Ill. App. 3d at 961, 553 N.E.2d at 33.)

In Johnson, this court stated:

“The supreme court has made clear that defendants must comply with this rule. No less can be required from the trial court and counsel. Expedience is no substitute for compliance.” (Johnson, 207 Ill. App. 3d at 125.)

We regret the waste of judicial resources created by this case and those above. However, it is a simple matter for counsel to follow the requirements of Rule 604(d) and for the courts to ensure that this is done, especially since the filing of the certificate is a condition precedent to a hearing on the motion. (See People v. Dean (1978), 61 Ill. App. 3d 612, 615, 378 N.E.2d 248, 251.) The reviewing courts have repeatedly observed that the provisions of Rule 604(d) are mandatory. (See, e.g., Dean, 61 Ill. App. 3d at 615, 378 N.E.2d at 251; People v. Lange (1978), 59 Ill. App. 3d 603, 604-05, 375 N.E.2d 919, 920; People v. Evans (1977), 46 Ill. App. 3d 689, 690, 361 N.E.2d 77, 77.) Yet, counsel and courts still fail to comply. This may be due, in part, to the perception that the reviewing courts will treat any omission of this type as harmless error, which has also occurred. (People v. Taylor (1982), 110 Ill. App. 3d 1140, 1148-49, 443 N.E.2d 699, 705-06; People v. Steinmetz (1982), 110 Ill. App. 3d 439, 442, 442 N.E.2d 645, 648; Evans, 46 Ill. App. 3d at 690, 361 N.E.2d at 77.) Thus, a mixed message has been sent. In light of Wilk, this will no longer occur.

For the aforementioned reasons, the order of the circuit court denying defendant’s motion is vacated, and the matter is remanded for further proceedings.

Vacated and remanded.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY EUGENE SHELTON, Defendant-Appellant.
    Fourth District
    No. 4—90—0485
    Opinion filed February 21, 1991.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant, Gary Eugene Shelton, was convicted of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1). The presentence report prepared for defendant’s sentencing hearing revealed that he had been convicted of burglary in both 1983 and 1984. At the sentencing hearing, the court asked the prosecutor about the applicability of section 5 — 5—3(cX8) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(cX8)), which provides that under certain circumstances a defendant convicted of a Class 2 felony, such as burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(b)), shall be sentenced as a Class X offender. The prosecutor admitted that he had not previously considered that statutory provision and stated it appeared to him that defendant was eligible to be sentenced as a Class X offender under that section. Defendant’s counsel did not address the applicability of section 5 — 5—3(cX8) of the Unified Code, but instead argued for a minimal sentence. The trial court concluded that it was required by section 5 — 5— 3(cX8) of the Unified Code to sentence defendant as a Class X felon and sentenced him to 10 years in the Illinois Department of Corrections. The court also ordered that sentence to run consecutively to the sentence imposed upon defendant for his conviction of an unrelated felony offense.

On appeal, defendant challenges only his sentence, arguing the court erred when it (1) sentenced him as a Class X offender under section 5— 5 — 3(cX8) of the Unified Code, and (2) ordered his sentence to be served consecutively. We reverse and remand for a new sentencing hearing.

Section 5 — 5—3(cX8) of the Unified Code reads as follows:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Hlinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).)

The plain language of this section requires the court and the parties to focus on the date the first and second felonies were committed, not the dates upon which defendant was convicted. However, in the present case, no information was ever presented to the trial court, either through testimony, representations of counsel, or the presentence report, to indicate when defendant committed the burglaries of which he was convicted in 1983 and 1984. The only information before the court regarding these prior convictions was contained in the presentence report which, regarding these burglaries, read in its entirety as follows:

“2/22/83 Burglary 4/6/83 Plea of guilty (83 — CF—66) entered.
5/5/83 Sentenced to thirty (30) months probation; $500.00 fine; $50.00 surcharge; $70.00 costs; six (6) months imprisonment.
10/31/85 Petition for Revocation filed as Defendant failed to pay his fine, costs, and surcharge by May 5,1985.
11/6/85 Petition dismissed.
12/5/85 Discharged.
* * *
4/22/84 Burglary 7/12/84 Plea of guilty
(84 — CF—117) entered.
8/28/84 Sentenced to ZVz years Department of Corrections.
5/23/86 Released on parole.
5/26/88 Discharged.”

The dates preceding the word “Burglary” in each of these entries— February 27, 1983, and April 22, 1984 — may be the dates on which these burglaries were committed, but they also may be the dates on which defendant was arrested for these crimes or the dates on which he was formally charged with these crimes. Accordingly, because this record does not provide the dates on which the 1983 and 1984 burglaries were committed, the trial court erred in sentencing defendant as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code, his sentence must be reversed, and the cause remanded for resentencing. See People v. Parks (1988), 168 Ill. App. 3d 978, 986-87, 523 N.E.2d 130, 136.

Defendant further argues that if we determine that his sentence as a Class X offender must be reversed and the cause remanded for resentencing, double jeopardy principles preclude the trial court from reimposing a Class X sentence upon remand. In support of this argument, defendant cites People v. Hamilton (1990), 198 Ill. App. 3d 108, 555 N.E.2d 785, a decision of the Second District Appellate Court. However, for the reasons that follow, we find that two decisions of the First District Appellate Court, which are in disagreement with Hamilton on this point, are more persuasive. See People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067; People v. Brooks (1990), 202 Ill. App. 3d 164, 559 N.E.2d 859.

In Hamilton, the court considered the defendant’s claim that double jeopardy barred his being resentenced as a Class X offender in light of the decision of the United States Supreme Court in Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852. In Bullington, the Court held that the double jeopardy clause of the fifth amendment to the United States Constitution bars the State from seeking the death penalty against the defendant on retrial where, in a death sentencing procedure that resembles a trial on the issue of guilt or innocence, the jury decides against the death sentence after the original conviction. (Bullington, 451 U.S. at 446, 68 L. Ed. 2d at 284, 101 S. Ct. at 1862.) The issue in Hamilton was whether the double jeopardy clause applies to a sentencing proceeding in which the State may prove certain facts that will cause a defendant’s possible sentence range to be elevated beyond the range normally applicable for the crime of which he stands convicted. (Hamilton, 198 Ill. App. 3d at 112, 555 N.E.2d at 787.) The court concluded that the double jeopardy clause did apply to the sentencing procedures which caused Hamilton to be sentenced as a Class X offender because “unlike the normal sentencing proceeding where the majority of facts considered are nonadversarial in nature, the State was required to prove certain facts beyond a reasonable doubt.” (Hamilton, 198 Ill. App. 3d at 112, 555 N.E.2d at 787.) While conceding that section 5 — 5—3(c)(8) of the Unified Code imposes upon the State no burden of proving the prior convictions in question, the Hamilton court cited People v. Harris (1987), 157 Ill. App. 3d 70, 74, 510 N.E.2d 107, 111, for the proposition that the State had to prove the prior convictions beyond a reasonable doubt. Hamilton, 198 Ill. App. 3d at 113, 555 N.E.2d at 787.

Hamilton and Harris are not the only cases which hold that the State must prove beyond a reasonable doubt the eligibility of a defendant to be sentenced under section 5 — 5—3(c)(8) of the Unified Code. The most recent case so holding is Brooks, which cites as support for this proposition Hamilton, Harris, and People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1079, 545 N.E.2d 942, 948. (Brooks, 202 Ill. App. 3d at 177, 559 N.E.2d at 867.) We will analyze the support these cases claim for this holding.

In Harris, the First District Appellate Court, when analyzing the same statutory provision at issue in the present case (although it was then Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(c)(7)), wrote the following:

“The prior convictions used to enhance the sentencing provisions under the Code must be proved beyond a reasonable doubt. (People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812; People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864.)” Harris, 157 Ill. App. 3d at 74, 510 N.E.2d at 111.

In People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864, the Third District Appellate Court was dealing with a defendant who was convicted of armed robbery and sentenced to life imprisonment as a habitual criminal under section 33B — 1 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1). Citing People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812, and People v. Stewart (1961), 23 Ill. 2d 161, 177 N.E.2d 237, the court in Mason concluded that the State had to prove beyond a reasonable doubt a defendant’s prior convictions which, under the habitual criminal statute, required the court to impose a life sentence. Mason, 119 Ill. App. 3d at 522, 456 N.E.2d at 867-68.

In Stewart, the supreme court considered the appeal of a defendant who was convicted of burglary and sentenced to thé penitentiary for life as a habitual criminal under the habitual criminal statute, which then read as follows:

“§1. Whenever any person who has been convicted of burglary *** shall thereafter be convicted of any of such crimes, committed after the first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crimes at the time of the last conviction therefor; and whenever any such person, having been so convicted the second time, as above provided, shall be again convicted of any of said crimes, committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period not less than fifteen (15) years: provided that such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment. ***
§2. On any trial for any of said offenses, a duly authenticated copy of the record of a former conviction and judgment of any court of record, for either of said crimes against the party indicted, shall be prima facie evidence of such former conviction, and may be used in evidence against such party.” (Ill. Rev. Stat. 1955, ch. 38, pars. 602, 603.)

The supreme court reversed Stewart’s conviction because the court concluded the evidence was not sufficient to identify Stewart as the person whose record of conviction was introduced into evidence to prove Stewart’s eligibility to be sentenced under the habitual criminal statute. (Stewart, 23 Ill. 2d at 163-64, 177 N.E.2d at 238-39.) In so holding, the court cited approvingly its earlier decision in Casey as standing for the proposition that the State must prove the identity of the person charged with being a habitual criminal. Stewart, 23 Ill. 2d at 163-64, 177 N.E.2d at 238-39.

The State argued to the supreme court that if it were to find the evidence insufficient regarding Stewart’s identity as a habitual offender, then Stewart’s conviction should be permitted to stand with only the sentence vacated and remanded for resentencing. The supreme court rejected this argument and wrote the following:

“In the present case, the jury that found the defendant guilty of burglary and larceny also had before it what purported to be his record of a prior conviction of burglary. In the absence of the habitual criminal charge, the record of the prior conviction would not have been admissible. Upon the authority of the cases cited, we conclude that there must be a new trial.” Stewart, 23 Ill. 2d at 166, 177 N.E.2d at 240.

In Casey, the court was also confronted with an appeal of a defendant who had been found to be a habitual criminal under the same statute (Ill. Rev. Stat. 1947, ch. 38, par. 602) discussed in Stewart. (Casey, 399 Ill. at 375-76, 77 N.E.2d at 814.) The court in Casey also concluded that .the State had the burden of proving defendant’s identity regarding his alleged prior convictions beyond a reasonable doubt. Casey, 399 Ill. at 380-81, 77 N.E.2d at 816.

The decisions which hold that section 5 — 5—3(cX8) of the Unified Code requires the State to prove the applicability of the statute to a particular defendant have misconstrued the cases they cite as supporting that holding. For example, Stewart was concerned with the application of the 1955 habitual criminal statute, which made the issue of the defendant’s prior convictions a jury question. Likewise, in Mason, the court was construing the modem habitual criminal statute (section 33B — 1 of the Criminal Code) and its conclusions have nothing to do with section 5 — 5—3(c)(8) of the Unified Code.

A comparison of sections 33B — 1 and 33B — 2 of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, pars. 33B — 1, 33B — 2) with section 5 — 5— 3(c)(8) of the Unified Code shows that the legislature, when it intends to do so, is perfectly capable of imposing procedural requirements upon the State at a sentencing hearing before a court may impose a sentence not normally available. Section 33B — 1 of the Criminal Code reads as follows:

“(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.
(b) The 2 prior convictions need not have been for the same offense.
(c) Any convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this Section as one conviction.
(d) This Article shall not apply unless each of the following requirements are satisfied:
(1) the third offense was committed after the effective date of this Act;
(2) the third offense was committed within 20 years of the date that judgment was entered on the first conviction, provided, however, that time spent in custody shall not be counted;
(3) the third offense was committed after conviction on the second offense;
(4) the second offense was committed after conviction on the first offense.
(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.” (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1.)

We note that section 33B — 1(a) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1(a)) is very similar to the first sentence of section 5 — 5—3(c)(8) of the Unified Code. Likewise, section 33B — 1(d) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1(d)) is very similar to the second sentence of section 5 — 5—3(c)(8) of the Unified Code. The difference between these two statutory schemes becomes apparent upon considering section 33B — 2 of the Criminal Code, which reads as follows:

“(a) A prior conviction shall not be alleged in the indictment, and no evidence or other disclosure of such conviction shall be presented to the court or the jury during the trial of an offense set forth in Section 33B — 1 unless otherwise permitted by the issues properly raised in such trial. After a plea or verdict or finding of guilty and before sentence is imposed, the prosecutor may file with the court a verified written statement signed by the State’s Attorney concerning any former conviction of an offense set forth in Section 33B — 1 rendered against the defendant. The court shall then cause the defendant to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former conviction and of his right to counsel at such hearing; and unless the defendant admits such conviction, the court shall hear and determine such issue, and shall make a written finding thereon. If a sentence has previously been imposed, the court may vacate such sentence and impose a new sentence in accordance with Section 33B — 1 of this Act.
(b) A duly authenticated copy of the record of any alleged former conviction of an offense set forth in Section 33B — 1 shall be prima facie evidence of such former conviction; and a duly authenticated copy of the record of the defendant’s final release or discharge from probation granted, or from sentence and parole supervision (if any) imposed pursuant to such former conviction, shall be prima facie evidence of such release or discharge.
(c) Any claim that a previous conviction offered by the prosecution is not a former conviction of an offense set forth in Section 33B — 1 because of the existence of any exceptions described in this Act, is waived unless duly raised at the hearing on such conviction, or unless the prosecution’s proof shows the existence of such exceptions described in this Act.” Ill. Rev. Stat. 1989, ch. 38, par. 33B — 2.

The language contained in section 33B — 2 of the Criminal Code demonstrates that the legislature intended to require a special sentencing proceeding before a defendant can be sentenced as a habitual criminal to a mandatory life sentence. The procedures specified in that section are similar to those provided in section 9 — 1(d) of the Criminal Code for proceedings after the return of a guilty verdict in a first-degree murder case -when the State is seeking the death penalty. Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(d).

Because of the special sentencing procedures set forth by the legislature in section 33B — 2 of the Criminal Code, we agree with Mason that the State must prove a defendant’s prior convictions beyond a reasonable doubt in order for the defendant to be sentenced as a habitual criminal under that section. Conversely, the absence in section 5 — 5—3(c)(8) of the Unified Code of similar special sentencing procedures leads us to conclude that the State has no burden of proving a defendant’s eligibility to be sentenced as a Class X offender under that statute.

Further support for the argument that the legislature intended sections 33B — 1 and 33B — 2 of the Criminal Code to be treated differently than section 5 — 5—3(c)(8) of the Unified Code is that all of these statutes were enacted at the same time as part of the same comprehensive revision of Illinois criminal law. That revision occurred in 1977 when legislative proposals of then-Govemor James R. Thompson — the “Class X package” — were enacted as Public Act 80 — 1099, effective Feb. 1, 1978 (1977 Ill. Laws 3264). Clearly, the legislature contemplated different procedures regarding sections 33B — 1 and 33B — 2 of the Criminal Code and section 5 — 5—3(c)(8) of the Unified Code when it passed these statutes (with their differing procedural requirements) as part of the same bill. Accordingly, we reject any argument that the legislature intended for these statutory provisions to be treated identically.

We agree with the holding in Washington that the prior convictions of the defendant in the present case for burglary (and the dates upon which those offenses were committed) are facts which “merely enhance^ the penalty for an offense without changing the elr ements of the offense”; therefore, the State need not plead nor prove these facts at trial or at the sentencing hearing. (Washington, 195 Ill. App. 3d at 530, 522 N.E.2d at 1073.) We further agree with the following from Washington:

“To obtain a burglary conviction, the State needed to prove defendant guilty of a knowing entry into a building, without authority and with the intent to commit a felony or theft. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a).) To obtain enhanced sentencing for that burglary conviction as a Class X offender pursuant to section 5 — 5—3(c)(8) of the Unified Code of Corrections, the State needed to prove defendant’s prior convictions. The prior convictions were therefore not elements of the substantive offense of burglary but merely matters to be considered for sentence enhancement. Accordingly, there was no requirement that they be pleaded or proven at trial. See People v. Palmer (1984), 104 Ill. 2d 340, 348, 472 N.E.2d 795, 799-800.
The double jeopardy clause also would not apply to resentencing because defendant was not placed in jeopardy at the first sentencing proceeding. The bar of double jeopardy precludes a second prosecution for the same crime after an acquittal or a conviction or multiple punishments for the same crime. (People v. Young (1983), 116 Ill. App. 3d 984, 989, 452 N.E.2d 718, 721.) Double jeopardy interests only are implicated in a sentencing proceeding if a defendant has been placed in jeopardy at that proceeding. (People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 477, 521 N.E.2d 864, 867.) That determination involves a consideration of whether the proceeding ‘was itself a trial on the issue of punishment.’ Bullington v. Missouri (1981), 451 U.S. 430, 438, 68 L. Ed. 2d 270, 279, 101 S. Ct. 1852, 1858.
The sentencing proceeding in this case did not amount to a trial on the issue of punishment. It consisted.merely of a presentation of the presentence investigation report, arguments by the State and defense counsel and a statement by the defendant. No witnesses were called to testify and there was no formal introduction of evidence. After the arguments and statement, the trial court sentenced defendant. This proceeding clearly lacked the hallmarks of a trial on the punishment (Bullington, 451 U.S. at 439, 68 L. Ed. 2d at 279, 101 S. Ct. at 1858), and the double jeopardy clause does not apply.” Washington, 195 Ill. App. 3d at 530-31, 552 N.E.2d at 1073-74.

In People v. Powell (1990), 199 Ill. App. 3d 291, 294, 556 N.E.2d 896, 898, this court discussed information presented at a sentencing hearing as follows:

“[W]e hold that all information appearing in a presentence report may be relied upon by the sentencing judge to the extent the judge finds the information probative and reliable.” (Emphasis in original.)

Thus, in accordance with the views expressed in Powell and Washington, we hold that the factual basis for a defendant’s eligibility to be sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code may be presented in any manner that the sentencing court, in its discretion, finds to be reliable and trustworthy. (See People v. La Pointe (1981), 88 Ill. 2d 482, 498, 431 N.E.2d 344, 351.) The formal rules of evidence do not restrict this presentation, nor does the State have any burden of proving defendant’s eligibility to be sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code.

Because we are reversing defendant’s sentence and remanding for a new sentencing hearing in accordance with the views expressed herein, we need not address other arguments defendant raises regarding alleged improprieties in the sentence imposed.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.