Defendant’s post-conviction petition properly denied when he sought new counsel on the day of trial

The appellant in People v. White, 2019 IL App (4th) 160793, appealed the trial court’s order dismissing his pro se post-conviction petition, which alleged that trial counsel was ineffective and the trial court violated his right to be represented by counsel of his choice. Ultimately, the Appellate Court of Illinois Fourth District granted a motion filed by the OSAD to withdraw and affirmed the trial court’s judgment.

Ronald White was originally charged and convicted of two counts unlawful delivery of heroin within 1000 feet of a church and sentenced to seven years in prison. Prior to trial, White informed the court of his wish to terminate his public defender and retain private counsel. When questioned by the court regarding that decision, White informed the court, on the day trial was to begin, that his family was attempting to raise money to hire a private attorney. White also stated his displeasure with the representation of his public defender and had filed a complaint with the public defender’s office. Id. at ¶ 6-8. The request for time to hire a private attorney was denied and the case proceeded to a jury trial.

At trial, a confidential information, Curtis Kitchen, testified about an arranged sale between White and himself at a local McDonald’s. Id. at ¶ 12. White was later arrested and blamed the sale on someone else. Id. at ¶ 15. White denied engaging in the sale directly, but did admit to using narcotics with Kitchen in the bathroom during the sale. At the close of evidence, the trial court denied a request by White to instruct the jury of the entrapment defense, and the jury found White guilty. Id. at ¶ 16. White then appealed his conviction, which was affirmed by the appellate court. Id. at ¶ 17.

White filed a pro se post-conviction petition, alleging ineffective assistance of trial counsel and a violation of his right to be represented by counsel of his choice. The petition was dismissed, as the court determined that it was frivolous and patently without merit. Id. at ¶ 19. On appeal, OSAD was appointed to represent appellant. OSAD moved to withdraw as counsel, contending that any appeal in this case would be frivolous. Id. at ¶ 20.

On appeal, White alleged that his post-conviction petition was erroneously dismissed. The OSAD motion noted that it considered whether (1) it was arguable that any procedural error at trial warranted reversal, (2) the post-conviction petition stated an arguable claim of ineffective assistance of counsel, and (3) the post-conviction petition stated an arguable claim that the trial court denied White his right to counsel of his choice at trial. OSAD believed none of the three arguments were viable.

The appellate court concluded that no such procedural errors (as alleged by White) existed and determined that the dismissal within the 90-day period provided by the statute was proper. Id. at ¶ 29-31. The appellate court also concluded that White’s claims regarding the insufficiency of evidence presented by the State did not amount to a claim of ineffective assistance of counsel.

The appellate court also concluded that “although a defendant in a criminal case has a constitutional right to be represented by counsel of his choice, a trial court has the discretion to determine whether a defendant’s right to select counsel unreasonably interferes with the orderly administration of justice.” Id. at ¶ 37. Further, the court stated that “a court does not abuse its discretion by denying a motion to continue to obtain alternative counsel ‘where new counsel is unidentified… especially when a defendant cannot articulate an acceptable reason for desiring new counsel and is already represented by an experienced, court-appointed criminal lawyer.” Id. at ¶ 37. The court determined that because White made no real effort to hire counsel, had neither the money nor contact with alternative counsel, waited until the day of trial to request more time, and failed to provide an acceptable reason for desiring new counsel, the trial court was well within its discretion to deny the motion to continue. Id. at ¶ 39.

The Appellate Court of Illinois Fourth District ultimately agreed with OSAD that none of the above-mentioned claims were arguable, and thus, granted the motion to withdraw and affirmed the judgment of the trial court. Id. at ¶ 59.

 

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