Opinion
No. 1-11-3323
10-25-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DINAAR WHITESIDE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 11 C5 50104
Honorable
John Joseph Hynes,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Lampkin and Reyes concurred in the judgment.
ORDER
¶ 1 Held: We affirmed defendant's conviction of retail theft of merchandise exceeding $300 where the State proved him guilty beyond a reasonable doubt and the trial court did not deny him the right to counsel. We also corrected the mittimus to reflect an additional day of sentencing credit. ¶ 2 A jury convicted defendant, Dinaar Whiteside, of retail theft of merchandise exceeding $300 and the trial court sentenced him to five years' imprisonment. On appeal, defendant contends: (1) the State failed to prove beyond a reasonable doubt that the retail value of the merchandise exceeded $300; (2) the trial court denied him his right to counsel; and (3) his mittimus should be corrected to reflect an additional day of sentencing credit. We affirm defendant's conviction and direct the clerk of the circuit court to amend the mittimus to reflect an additional day of sentencing credit. ¶ 3 Defendant was charged by information with two counts of retail theft. The first count charged defendant with the retail theft of merchandise valued at more than $300 from a Target store in Oak Lawn. The second count charged defendant with the retail theft of merchandise valued at not more than $300 from the Target store in Oak Lawn, and also alleged that defendant had a prior conviction of retail theft. The State dismissed the second count before defendant's trial. ¶ 4 Defendant was arraigned on March 25, 2011, and appointed an Assistant Public Defender to represent him. On the next court date, March 31, 2011, the Assistant Public Defender agreed to a continuance until discovery was completed. Defendant interrupted the proceedings by stating he did not agree to a continuance and that instead he wanted a "fast and speedy trial." The Assistant Public Defender then informed the trial judge that defendant had just told her he wished to proceed pro se. Defendant responded that he did not want to proceed pro se, but that he did want to "have a part" in his defense. The trial judge explained to defendant that his role was to assist in the defense, and to decide whether to plead guilty, whether to testify, and whether to appeal. The trial judge further advised defendant he would have a difficult time winning his case if he represented himself, and the judge advised defendant to speak with the Assistant Public Defender before deciding to proceed pro se. ¶ 5 At the next court date, May 9, 2011, the parties agreed to continue the case until June 21 for status. At the June 21 status hearing, defendant addressed the trial judge and argued that the criminal complaint was invalid because it was signed by a police officer rather than a Target store employee. The trial judge informed defendant there were no problems with the complaint or information. Defendant then stated he "would like to have a speedy trial in this matter." The Assistant Public Defender stated the only things she needed to do before trial were to file an response to the State's motion for pre-trial discovery and to file a motion in limine regarding the admissibility of defendant's prior convictions for impeachment. The trial judge informed defendant he was "going to get this on trial track as soon as we can." ¶ 6 The Assistant Public Defender informed the trial judge that defendant has "consistently indicated" his desire to either represent himself or to obtain the services of a different Assistant Public Defender. The trial judge informed defendant he would not be able to get a different Assistant Public Defender, that the one appointed for him had practiced for a number of years and was a "quality attorney," but that defendant could represent himself if he wished to do so. The trial judge warned defendant he was "better off with an attorney here, because the [prosecutors] combined have in the area of 30 years of experience that you would be facing alone." Defendant stated he wanted to represent himself. The trial judge continued the case so that the Assistant Public Defender could file an response to the State's motion for pre-trial discovery and to file her motion in limine, and advised defendant to speak with the Assistant Public Defender "about the pros and cons of representing" himself. The trial judge further informed defendant that if he represented himself, he would be "held to the same standard as any attorney would be" and that he would not receive any additional law library time. The trial judge warned defendant he would be at a "supreme disadvantage" if he tried to represent himself, and the judge "strongly" urged defendant to agree to the Assistant Public Defender's representation of him. ¶ 7 On July 19, 2011, two months prior to trial, the Assistant Public Defender appeared in court with defendant and informed the trial judge that she had filed a motion in limine and an response to the State's motion for pre-trial discovery and that defendant had informed her he wanted to represent himself pro se. The trial judge asked defendant whether he wanted to represent himself, and defendant responded affirmatively, noting that he and the Assistant Public Defender "don't have an understanding." The trial judge explained to defendant that he would be at a "supreme disadvantage" if he represented himself, given the assistant State's Attorneys' years of experience. The trial judge provided defendant with a written waiver form and suggested he take some time to speak with the Assistant Public Defender so as to work out their disagreement. The case was passed while defendant and the Assistant Public Defender conversed. ¶ 8 Defendant and the Assistant Public Defender reviewed the waiver form during the recess. Defendant signed the form, which explained his legal rights, the advantages of having a lawyer, the disadvantages of self-representation, and the possible penalties for the charged offenses. ¶ 9 After the case was recalled, the Assistant Public Defender stated that defendant still wished to proceed pro se. The trial judge addressed defendant and informed him of the nature of the charges against him, as well as the minimum and maximum sentences prescribed by law. The trial judge also informed defendant of his right to counsel and of his right to have counsel appointed if he was indigent, and of the "certain advantages" to having the Assistant Public Defender continue her representation of him, including that: she would participate in voir dire and remove persons "who would not be good jurors" for defendant; she would file various motions on defendant's behalf; she would give an opening statement, question witnesses and present physical evidence on defendant's behalf; she would object to inappropriate questions and evidence from the prosecution; she would help prepare legal instructions; and she would give a closing argument and argue for leniency during sentencing. Defendant stated he understood. ¶ 10 The trial judge informed defendant that if he proceeded pro se, he "must accept all of these burdens and hazards that accompany this decision," that he would not be excused from complying with any procedural or substantive law, and the judge would not "teach [him] the law here." Defendant again stated that he understood. ¶ 11 The trial judge informed defendant that the prosecutor is trained and experienced in criminal law, giving him a probable advantage over defendant. The trial judge also informed defendant that since he is in custody, he would be restricted in his ability to investigate, research and prepare his defense, and that an attorney would not be subject to such limitations. Defendant stated that he understood. ¶ 12 The trial judge informed defendant he would not be given additional law library time as a result of his decision to proceed pro se, and that if defendant decided to represent himself, he would not be allowed to later change his mind and proceed with counsel. Defendant stated he understood. ¶ 13 The trial judge stated for the record:
"I have considered all of the factors the Supreme Court has asked me to take a look at and in particular the nature and gravity of the charge and the expected factual and legal complexities of the proceedings, the ability and the experience of the defendant and I find that he has gone into this with his eyes open, so consequently I will grant the defendant's motion to proceed pro se."¶ 14 After his motion to proceed pro se was granted, defendant filed a motion requesting transcripts and a motion to "exhaust prior convictions," in which he argued that the State should not be allowed to use any of his prior convictions for sentencing purposes. Defendant also informed the judge he wanted a "fast and speedy trial." The judge informed defendant that if he was demanding trial that day, he would not be entitled to any additional discovery. The trial judge recommended that defendant at least wait until he received the police reports and certain transcripts of prior proceedings from the State. Defendant agreed to delay trial until he received the police reports and transcripts. ¶ 15 On August 25, 2011, the trial judge held a hearing on two motions filed by defendant, a motion to be tried as a habitual drug addict and treated for addictive physical and mental illness, and a motion to suppress evidence. The trial judge denied both motions, noting that defendant had cited to an outdated statute in support of his motion to be tried as a habitual drug addict, and that his motion to suppress failed because he had improperly tried to suppress evidence recovered by a private citizen (the Target store's loss prevention agent) as opposed to evidence recovered by a government agent. The trial judge continued the case by agreement to September 7 for defendant to file an response to the State's motion for pre-trial discovery or adopt the response filed earlier by the Assistant Public Defender. ¶ 16 On September 7, 2011, defendant appeared before the trial judge and expressly adopted the Assistant Public Defender's response to the State's motion for pre-trial discovery and he also adopted her motion to bar the use of evidence of his prior convictions to impeach his credibility. The trial judge ruled that four of defendant's prior convictions would be admissible as impeachment if he testified at trial. Defendant then made an oral motion for bond reduction, which the trial judge denied. Defendant stated he was ready for trial. The trial judge set the case for trial at the earliest possible date, September 20. ¶ 17 On September 20, 2011, defendant appeared in court and moved to dismiss the charges against him and again moved to suppress the evidence recovered by the Target store's loss prevention agent. The trial judge denied defendant's motions. The following colloquy then ensued:
"[Defendant]: Your honor, I will need an attorney to represent me. Bar association attorney or someone to represent me. I really don't know what's going on with the law. ***¶ 18 The trial judge asked defendant whether he wanted to have a jury trial or a bench trial, and defendant responded that he wanted a jury trial. The trial judge explained some "ground rules" governing the jury trial and then he addressed a motion in limine filed by the State. During the course of addressing the State's motion, defendant argued that there were problems with his complaint and information. Defendant mentioned the possibility of filing a civil lawsuit against the State of Illinois, and then he stated:
[The Court]: Your oral motion for an attorney is denied. I went through this with you.
[Defendant]: I need an attorney though, man. I need an attorney to go through this trial.
[The Court]: You have decided not to use an attorney.
[Defendant]: Please stop this one.
[The Court]: You have decided not to avail yourself of an attorney.
[Defendant]: I ain't going to do it like that.
[The Court]: You've decided not to avail yourself of an attorney.
[Defendant]: I need an attorney, man.
[The Court]: You're representing yourself.
[Defendant]: Can't do it. I don't know the law. I don't know what I'm doing.
[The Court]: You're right. You don't know what you're doing. I told you that.
[Defendant]: I'm letting you know now because you're denying every motion I'm asking for. So, basically I have no way of presenting myself.
[The Court]: I told you that originally.
[Defendant]: Well, we can stop it. Give me a lawyer.
[The Court]: No. We can't do that. I told you there is no going back.
[Defendant]: The law says I can have an attorney.
[The Court]: The law says I read that to you, once you decide to go-
[Defendant]: Okay. Okay. Okay. This is what we're going to do then, man, the jury here."
"[Defendant]: I don't think right at all, man. I got rid of my attorney thinking she wasn't doing her job which was my fault. I did that. That was [a] bad decision on my behalf.¶ 19 The trial judge then explained the division of labor between defendant and counsel: that counsel would decide what motions to file, and defendant would decide what plea to enter, whether to take a jury or a bench trial, whether to testify, and whether to appeal. Defendant stated that he understood, and then he stated the following:
[The Court]: Very bad decision.
[Defendant]: I didn't have no paperwork. You tell me what was going on. You know, I don't know, man, I'm just going to plead illiterate right now.
[The Court]: You're what?
[Defendant]: Nothing, man. Nothing, man. I don't know the law right now. I need some legal help. To fight this case. I need somebody to represent me. Some assistance.
[The Court]: Well, the only person you would get to represent you would be [the Assistant Public Defender] again.
[Defendant]: Okay. Well, I'll get her to represent me. I can work with her now cause I know some things that I don't know.
[The Court]: All right. Here's what I'm going to do, you're indicating to me at this point that you are incapable of representing yourself.
[Defendant]: Yes, sir.
[The Court]: Without an attorney.
[Defendant]: Yes, sir.
[The Court]: You understand I'm going to take a look at this. I'm going to look at the law, you understand if I request to reappoint [the Assistant Public Defender] on this case, that she decides all matters of trial strategy, do you understand that?
[Defendant]: Yes, sir."
"[Defendant]: But, you know, you know I just we can proceed today, sir. I just get the cross-examination, you know, in front of the jury. I talk too.¶ 20 The trial judge then interrupted defendant and proceeded to again address the State's motion in limine. Shortly thereafter, defendant asked if he could get "the employment packet of the loss prevention agent as far as their credibility." The trial judge denied the request, and defendant stated the following:
[The Court]: So, now you don't want Ms.--
[Defendant]: I might as well get it going. Get it over with, man. Get it over with, man, because I know-will she be able to represent me today?
[The Court]: No.
[Defendant]: I'm trying to go. Trying to go back to my family. I'm going. I'm going one of two-"
"[Defendant]: I can't do nothing, man. That's why I need a lawyer. I really need, man, you know, you denying everything that I'm requesting. But, you're not denying anything from the State.¶ 21 The trial judge then returned to the State's motion in limine. After resolving all the matters in the motion, the cause proceeded to voir dire. ¶ 22 Trial was continued to the next day, where defendant represented himself pro se. David Cellarius testified that on February 5, 2011, he was working as an asset protection specialist at the Target store located at 4210 West 95th Street in Oak Lawn, Illinois. In his role as an asset protection specialist, Mr. Cellarius acts as an undercover officer for Target, surveilling the store on camera and on the floor. At around 1:20 p.m., on February 5, 2011, Mr. Cellarius was working in plain clothes in the camera room, viewing the store through the surveillance cameras, when he observed defendant enter the store with a woman. The woman took a cart and went into the women's clothing section. Meanwhile, defendant went to a register, acted as if he was reading a magazine, and then when he thought nobody was looking, he grabbed a Target bag from behind the register and placed it under his arm. ¶ 23 Mr. Cellarius testified defendant returned the magazine and met up with the woman in the women's clothing section. The woman was "grabbing clothes and placing the clothes in the cart without the hangers." After she finished grabbing the clothing, they went to the electronics section together and walked near the Xbox 360s. At that point, Mr. Cellarius left the camera room to watch defendant and the woman in person; meanwhile, Mr. Cellarius's colleague, Steve Larson, continued to monitor them via video surveillance. Mr. Cellarius and Mr. Larson stayed in communication via walkie-talkie radios. ¶ 24 Mr. Cellarius testified that when he reached the sales floor, he received a call from Mr. Larson over his walkie-talkie radio stating that defendant had "selected an X-Box 360." After receiving the call, Mr. Cellarius went to the electronics section, where he saw defendant placed the Xbox 360 into his shopping cart. Defendant and the woman then went to the men's clothing section, where defendant placed a package of tank tops into the shopping cart. Then they went to the children's clothing section, where Mr. Cellarius saw defendant tampering with the "spider wrap" on the Xbox 360. Mr. Cellarius explained that spider wrap is a security device placed on high value merchandise that consists of four wires covering each side of the box with a locking device on the bottom. The spider wrap is supposed to be removed by Target team members. ¶ 25 Mr. Cellarius testified he saw defendant pulling on the wires of the spider wrap surrounding the Xbox 360 in an attempt to loosen the wire nut. Defendant was able to take off the wiring. Defendant then walked away from the woman and from the merchandise and went over to the registers and grabbed some empty Target shopping bags. Upon his return, defendant took the women's clothing out of the shopping cart and placed it into one of the Target shopping bags. Then defendant took the Xbox 360 out of the shopping cart and placed it into the other Target shopping bag. ¶ 26 Mr. Cellarius testified defendant then pushed the shopping cart into the women's clothing section, while the woman "wondered off somewhere else." Defendant and the woman met back up at the food court; they did not stop at the registers and pay for the Xbox 360, or the women's clothing, or the tank tops (collectively referred to as the merchandise). Defendant pushed the shopping cart containing the merchandise onto the cart escalator and he proceeded to go down the regular escalator as the woman followed behind him. ¶ 27 Mr. Cellarius testified he went downstairs to stop defendant. Mr. Cellarius's colleagues, Mr. Larson and Charlie Lockwood, were already at the bottom of the escalator when he arrived. As defendant stepped off the escalator, Mr. Cellarius identified himself as "security here at Target." Defendant became scared and said he did not know who Mr. Cellarius was and that the merchandise coming off the cart escalator was not his. Defendant started looking around and then attempted to run away. Mr. Cellarius caught up to defendant, placed him in handcuffs, and escorted him to the "asset protection booking room." Meanwhile, defendant's female companion had "walked off." Defendant never produced a receipt for the merchandise. ¶ 28 Mr. Cellarius testified that in his office, he examined the merchandise and found it to be women's clothing, the Xbox 360, and the five-pack of men's white tank tops. Mr. Cellarius photographed the merchandise for their "store report" which is filled out every time an individual is detained for shoplifting. Mr. Cellarius further testified:
[The Court]: You're requesting things on the day of trial that are not proper and you haven't presented a proper motion.
[Defendant] I can't present no motions. And, I can't present no case law because I haven't had a chance to the jail just don't let me go to the law library [sic]. You say I can't just go sit in the law library like I want to.
[The Court]: Be that as it may, you've been representing yourself since at least, since at least July 19th you've had two months actually to do this. All right."
"Q. [A]fter you took a picture of the items, what happened with your merchandise?¶ 29 Mr. Cellarius testified that Target has a video surveillance system he was watching for part of the time that he observed defendant on February 5, 2011. Mr. Cellarius explained that the video surveillance cameras do not capture every single thing that goes on in the Target store, because the cameras are only located in certain areas of the store. The video surveillance of defendant was played for the jury. During the playing of the video, Mr. Cellarius noted the portions showing where defendant and the woman entered the store and where defendant took an empty Target shopping bag from behind the register and concealed it under his arm. The video showed the views from several different cameras, all of which Mr. Cellarius was able to observe at the same time while in the surveillance room. The video also showed the point at which defendant placed the Xbox 360 into his shopping cart and took a second empty Target shopping bag from behind the register. Mr. Cellarius explained there was no video surveillance during the time when defendant removed the spider wrap from the Xbox 360 and when defendant placed the merchandise into the bags because Target did not have video cameras in that section of the store. The video also showed defendant pushing the bagged merchandise past the registers toward the food court and onto the cart escalator. Mr. Cellarius pointed out the security towers at the head of the escalators that are supposed to respond with a siren-like noise and blinking lights to the spider wrap that covers the higher priced merchandise. He noted that when defendant pushed the shopping cart through the security towers, they did not respond in that matter. The video also showed Mr. Cellarius and his fellow security personnel detaining defendant at the base of the escalator and defendant's attempt to flee from them. ¶ 30 Officer Atkinson of the Oak Lawn Police Department testified that on February 5, 2011, he responded to a call from the Target store in Oak Lawn. When he arrived at the Target store, Officer Atkinson went to the "security office" where he saw defendant. Officer Atkinson spoke with "security agents" at Target, who showed him the store surveillance video and provided him with a receipt of the merchandise taken by defendant. Officer Atkinson took defendant into custody. ¶ 31 At the conclusion of Officer Atkinson's testimony, the State rested its case-in-chief. The State's exhibits were admitted into evidence. Defendant indicated outside the presence of the jury that he did not wish to testify in his own defense. ¶ 32 Defendant then recalled Mr. Cellarius, who testified that the spider wrap from the Xbox 360 was not photographed or inventoried. ¶ 33 Defendant rested his case. Following closing arguments from both sides, the trial judge instructed the jury as to the law. The jury subsequently convicted defendant of retail theft of merchandise exceeding $300. Defendant appeals. ¶ 34 First, defendant contends his conviction of retail theft must be reduced from a felony to a misdemeanor because the State failed to prove the element of the offense necessary for a felony conviction, i.e., that the merchandise in question had a value in excess of $300. At the time of the instant offense in 2011, retail theft of property valued at more than $300 was a Class 3 felony, while retail theft of property with a value not exceeding $300 was a Class A misdemeanor. See 720 ILCS 5/16A-10(1), (3) (West Supp. 2011). The Criminal Code of 1961 (the Code) set forth the elements of the offense of retail theft as follows:
A. Well, first, as soon as I [took] a picture of the merchandise, I [got] a receipt to tally up the dollar amount of the merchandise.
Q. And who did that receipt?
A. Steve Larson did.
Q. Did Steve bring you the receipt?
A. He did.
Q. And were you able to look at that receipt?
A. I was.
Q. Were you able to determine that the items on the receipt were the same items that had been recovered?
A. Yes.
Q. How were you able to do that?
A. On the tags they have what we call TBC items, department class items numbers that match up to the items on the receipt.
Q. Did those numbers match up?
A. They did.
Q. Now, Mr. Cellarius, I'm going to show you what has been marked as People's Exhibit No. 1 for identification. *** Could you tell me what that is a photograph of in People's Exhibit No. 1?
A. Yes, that is the merchandise we were able to recover from the defendant.
Q. And does that picture truly and accurately depict the merchandise that you recovered from the defendant back on February 5th, 2011?
A. Yes, it does.
Q. Now, I'm going to show you what has previously been marked as People's Exhibit No. 2 for identification. Could you tell me what People's Exhibit No. 2 is?
A. It's a receipt of the merchandise that they had on that day.
Q. Does that receipt have a total for the amount of the merchandise?
A. Yes, it does.
Q. What is that total?
A. The total is $394.93.
Q. And does that receipt truly and accurately depict the amount for the merchandise that was taken by the defendant on February 5th, 2011?
A. Yes, it does."
"A person commits the offense of retail theft when he or she knowingly:¶ 35 The Code further provided that "[w]hen a charge of retail theft of property ***, the full value of which exceeds $300 is brought, the value of the property involved is an element of the offense to be resolved by the trier of fact as either exceeding or not exceeding $300." See 720 ILCS 5/16A-10(3) (West Supp. 2011). ¶ 36 In the present case, defendant does not argue that the State failed to prove that he took possession of or carried away merchandise displayed or offered for sale by Target, with the intent of retaining such merchandise or depriving Target permanently of the possession, use or benefit of such merchandise without paying the full retail value thereof. Defendant only argues that the State failed to prove that the value of the merchandise exceeded $300 for purposes of convicting him of a Class 3 felony. ¶ 37 It is not the function of the reviewing court to retry defendant when presented with a challenge to the sufficiency of the evidence. People v. Evans, 209 Ill. 2d 194, 209 (2004). The relevant inquiry is whether, after viewing the evidence, and all reasonable inferences drawn from that evidence, in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Martin, 2011 IL 109102, ¶15. ¶ 38 At trial, Mr. Cellarius, the asset protection specialist at the Target store in Oak Lawn, testified that after defendant was apprehended, he photographed the merchandise taken by defendant. Mr. Larson, a fellow employee of the Target store, gave Mr. Cellarius a receipt "tally[ing] up the dollar amount of the merchandise." Mr. Cellarius testified he compared the price tags on the merchandise with the items listed on the receipt. Mr. Cellarius testified that the items listed on the receipt were the same items that had been recovered from defendant based on the department class item numbers on the price tags that matched the items on the receipt. Mr. Cellarius testified the total value of the merchandise was $394.93. The receipt was admitted into evidence and is contained in the record on appeal. The receipt states in pertinent part:
(a) Takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise." 720 ILCS 5/16A-3(a) (West Supp. 2011).
| "CLOTHING | |||
| 016111448 | MS HOODIE 2@ $16.99 ea | T | $33.98 |
| 016111701 | MSC PANT | T | $16.99 |
| 016111707 | MSC PANT | T | $16.99 |
| 036010030 | FOL ASHIRT | T | $6.99 |
| 282091912 | XHIL DRESS | T | $19.99 |
| MISC 099096999 | MERCHANDISE | FT | $299.99 |
| SUBTOTAL | $394.93" |
¶ 39 Viewing this evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the value of the merchandise exceeded $300 and convicted defendant of the Class 3 felony of retail theft in excess of $300. ¶ 40 Defendant argues, though, that the State did not properly introduce the receipt into evidence as a business record and that both the receipt and Mr. Cellarius's testimony regarding the content of the receipt was inadmissible hearsay. Defendant failed to make any objections either to Mr. Cellarius's testimony regarding the content of the receipt or as to the introduction of the receipt into evidence. "[H]earsay evidence, if admitted without objection, is to be considered and given its natural probative effect." People v. Foster, 190 Ill. App. 3d 1018, 1026 (1989). Accordingly, in the absence of any objections by defendant, the jury could properly consider the receipt depicting the value of certain items at $394.93, and Mr. Cellarius's testimony regarding how the items listed in the receipt matched the merchandise taken by defendant and was valued at $394.93, in determining whether the State proved beyond a reasonable doubt that the value of the merchandise taken by defendant exceeded $300. As discussed, viewed in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt from the receipt and from Mr. Cellarius's testimony that the value of the merchandise taken by defendant exceeded $300. ¶ 41 We further note that defendant has forfeited any plain error review of the admission of the receipt and of Mr. Cellarius's testimony by failing to make such an argument in this court. People v. Hillier, 237 Ill. 2d 539, 545-46 (2010). ¶ 42 Next, defendant contends the trial judge erred when, on the day of jury selection, he denied defendant's request to revoke his waiver of counsel. Defendant waived review by failing to raise this issue in his post-trial motion (People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, he argues for plain-error review of this issue. "Plain error review is appropriate where either an alleged error concerns the deprivation of a fundamental right or the evidence in the case is closely balanced." People v. Ogurek, 356 Ill. App. 3d 429, 433 (2005). The right to counsel is a fundamental right, and the alleged deprivation thereof is properly reviewable for plain error. Id. Accordingly, we consider whether the trial judge committed plain error in denying defendant's request to revoke his waiver of counsel on the day of jury selection. ¶ 43 To adequately consider defendant's claim of error, we first need to discuss the circumstances surrounding his initial waiver of counsel. Under the Sixth Amendment of the federal constitution, a criminal defendant facing incarceration has the right to counsel at all "critical stages" of the criminal process. Iowa v. Tovar, 541 U.S. 77, 80-81 (2004). The Sixth Amendment also provides for the right of self-representation in criminal cases where the defendant knowingly and intelligently waives his right to counsel. People v. Burton, 184 Ill. 2d 1, 21 (1998). To ensure that defendant's waiver of his right to counsel is knowingly and intelligently made, the trial court must admonish him pursuant to Illinois Supreme Court Rule 401(a)(eff. July 1, 1984). Ogurek, 356 Ill. App. 3d at 436. Rule 401(a) states:
"*** 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:¶ 44 The appellate court has further stated that to ensure a defendant's request for self-representation is an intelligent and knowing waiver of his right to counsel, it would be "desirable" for the trial court to inform defendant of the following matters:
(1) the nature of the charge;
(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." Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).
"(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;¶ 45 "Whether a defendant effects a waiver of counsel is a question for the trial court, and the court's decision will be reversed only for abuse of discretion." People v. Griffin, 305 Ill. App. 3d 326, 329 (1999). ¶ 46 In the present case, defendant effected a valid waiver of counsel. Specifically, after defendant informed the trial judge on June 21, 2011, he wanted to represent himself, the judge continued the case and advised defendant to speak with the Assistant Public Defender about the "pros and cons of representing" himself. The trial judge also informed defendant (pursuant to Ward) that if he represented himself, he would be at a supreme disadvantage, he would be held to the same standard as an attorney, and he would receive no additional law library time. At the next court date, on July 19, 2011, defendant reiterated his desire to represent himself, stating that he and the Assistant Public Defender "don't have an understanding." The trial judge provided defendant with a written waiver form and passed the case for him to again speak with the Assistant Public Defender. Defendant signed the waiver form after reviewing it with the Assistant Public Defender. After the case was recalled, the Assistant Public Defender stated that defendant still wanted to proceed pro se. The trial judge gave defendant his Rule 401(a) admonishments, specifically, the judge informed defendant of the nature of the charge, the minimum and maximum sentence prescribed by law, that he has a right to counsel, and that counsel would be appointed for him if he was indigent. Defendant stated he understood. In addition to the Rule 401(a) admonishments required to be provided prior to accepting a waiver of counsel, the trial judge also gave several of the admonishments recommended in Ward, including that: a lawyer has substantial experience and training in trial procedure such as how to conduct voir dire, make opening statements and closing arguments, question witnesses and make objections to inadmissible evidence, prepare jury instructions, and argue for leniency during sentencing; the prosecution will be represented by an experienced attorney that will probably give the State an advantage over a defendant appearing pro se; the effectiveness of his defense may well be diminished by his dual role as attorney and accused; defendant will receive no special consideration from the court; defendant will receive no extra time for preparation or greater law library time; and in the event the court accepts defendant's decision to represent himself, he will not be given an opportunity to change his mind during trial. Defendant stated he understood. Finding that defendant was electing to proceed pro se "with his eyes open" as to the consequences of his decision, the trial judge accepted his waiver of counsel. Defendant makes no argument that the trial judge committed an abuse of discretion in so accepting his waiver of counsel and we find that the waiver was knowingly and intelligently made. ¶ 47 Having found defendant's waiver of his right to counsel was knowingly and intelligently made, we proceed to address defendant's argument on appeal that the judge erred in subsequently denying his request to revoke his waiver of counsel on the day of jury selection. Where the issue of the trial judge's denial of a defendant's request to revoke his waiver of counsel has been preserved for appeal, our standard of review is abuse of discretion. See Griffin, 305 Ill. App. 3d at 329. Here, as discussed, we review the judge's decision for plain error because defendant failed to preserve the issue for appeal by raising it in his posttrial motion. ¶ 48 The trial judge committed no plain error here. On the day of jury selection, after the trial judge denied defendant's motions to dismiss the charges against him and to suppress the evidence recovered by the Target store's loss prevention agent, defendant stated he did not "know what's going on with the law" and he requested that an attorney be appointed to represent him. The trial judge denied defendant's request for an attorney, reminding him that he had previously waived counsel. Defendant admitted he did know what he was doing, that he did not understand why the judge was denying all his motions, and that he now realized he needed an attorney. The trial judge reminded defendant that he had been warned when waiving his counsel that he would not be allowed to later change his mind. Defendant responded, "Okay. Okay. Okay. This is what we're going to do then, man, the jury here." ¶ 49 Defendant argues on appeal that the trial judge was mistaken in his belief that a waiver of the right to counsel can never be revoked and that the judge erred in failing to give "[p]roper consideration of [his] request-that is, examining the circumstances of the request, rather than rejecting it summarily because of a misapprehension of the law." In support, defendant cites Griffin, 305 Ill. App. 3d at 329, which held that a trial court has the discretion to accept a revocation of an earlier waiver of counsel. ¶ 50 However, our review of the record indicates that after initially summarily denying defendant's request for a revocation of his waiver of counsel, the trial judge here engaged in a further colloquy with defendant and fully examined the circumstances of his request. Specifically, after informing defendant he would not be allowed to revoke his waiver of counsel, the trial judge explained some ground rules governing defendant's coming jury trial, addressed a motion in limine filed by the State, and then discussed again defendant's revocation request. During this discussion, defendant stated he had made a bad decision in waiving his right to counsel, and the judge agreed it was a "[v]ery bad decision. Defendant admitted he now realized he did not "know the law" and that he needed "legal help" and "somebody to represent [him]." The trial judge then informed defendant that the only person who would be appointed to represent him would be the same Assistant Public Defender who had represented him earlier. Defendant stated he would be willing to work with her now and that he would like her to represent him. The trial judge questioned defendant further as to whether he was now indicating that he was incapable of representing himself without an attorney. Defendant responded affirmatively. The trial judge stated he was "going to look at the law" and decide whether to grant defendant's request to revoke his waiver of counsel and appoint the Assistant Public Defender. Thus, contrary to defendant's argument on appeal, the trial judge was clearly indicating that he was not summarily denying defendant's revocation request but that instead he was going to consider the circumstances and research the law before deciding whether to grant or deny defendant's request. ¶ 51 The trial judge then informed defendant about the division of labor between counsel and defendant, specially, that counsel would decide what motions to file, and defendant would decide on what plea to enter, whether to take a bench or a jury trial, whether to testify, and whether to appeal. Defendant then stated, "But, you know, you know I just we can proceed today, sir. I just get the cross-examination, you know, in front of the jury. I talk too." The trial judge questioned defendant as to whether he had changed his mind and no longer wished to revoke his waiver of counsel. Defendant stated, "I might as well get it going. Get it over with, man. Get it over with, man, because I know-will she be able to represent me today?" The trial judge stated that the Assistant Public Defender would not be able to represent him that day, and defendant then stated: "I'm trying to go. Trying to go back to my family. I'm going. I'm going one of two-." ¶ 52 The trial judge ended his colloquy with defendant and began addressing the State's motion in limine, obviously believing that defendant no longer wished to revoke his waiver of counsel, but rather wished to proceed to trial immediately in a pro se capacity. Defendant argues on appeal that instead of assuming defendant was withdrawing his motion to revoke his waiver of counsel, the trial judge should have tried to "clarify [defendant's] wishes" and make certain defendant wanted to proceed pro se. Defendant cites Griffin, 305 Ill. App. 3d at 330, which held that when a pro se defendant makes an ambiguous statement expressing an interest in the assistance of counsel, the trial judge is obligated to question him regarding whether he wished to revoke his earlier waiver. The failure to so question the defendant constitutes an abuse of discretion. Id. ¶ 53 The trial judge committed no abuse of discretion (and consequently no plain error) here because after defendant stated he wanted to immediately proceed to trial, the judge did question him further regarding whether he had changed his mind and no longer wanted to revoke his waiver of counsel. In response to the trial judge's questioning, defendant stated he wanted to "[g]et it over with." The trial judge informed defendant that the Assistant Public Defender would not be able to represent him that day. Defendant's response was not to say that he would wait until the Assistant Public Defender was ready to represent him, but rather that he was "trying to go." On these facts, the trial judge committed no abuse of discretion (and consequently no plain error) either in the procedure employed to determine whether defendant wanted to revoke his waiver of counsel or in the determination that defendant had decided to waive counsel and proceed to trial that day in a pro se capacity. ¶ 54 Following the trial judge's determination that defendant had decided not to revoke his waiver of counsel, the judge addressed the State's motion in limine . Defendant then asked if he could get "the employment packet of the loss prevention agent as far as their credibility." The trial judge denied defendant's motion, at which point defendant appeared to again change his mind about waiving counsel, stating he "need[ed] a lawyer" because the judge was denying all defendant's motions but was "not denying anything from the State." The trial judge explained that defendant was "requesting things on the day of trial that are not proper" and that defendant had not "presented a proper motion." Defendant argued that he was unable to present any case law in support of his motions because he was not allotted enough time in the law library. The trial judge noted that defendant had been representing himself for two months, during which time he could have researched any case law in support of his motions. The trial judge returned to the State's motion in limine, after which the cause proceeded to voir dire and then to trial at which defendant represented himself pro se. ¶ 55 Even assuming that defendant's statement that he "need[ed] a lawyer" constituted a motion to revoke his earlier waiver of counsel, the trial judge committed no abuse of discretion (and consequently no plain error) in denying said motion and proceeding to trial at which defendant represented himself pro se. As discussed, when defendant sought to waive counsel two months before trial on July 19, 2011, the trial judge fully complied with Rule 401(a) by informing him of the nature of the charge, the minimum and maximum sentences, and of his right to counsel including his right to have counsel appointed for him if he is indigent. In addition, the trial judge also gave several of the admonishments recommended in Ward, including that: the State will be represented by an experienced attorney; the Assistant Public Defender will be able to render important assistance for defendant; the effectiveness of his defense will be diminished by his dual role as attorney and accused; defendant will receive no extra law library time or extra consideration from the court if he represents himself; and if the court accepts defendant's decision to represent himself, he will not be given an opportunity to change his mind during trial. Defendant stated he understood the Rule 401(a) and Ward admonishments, and accordingly the trial judge accepted his waiver of counsel. Two months later, on the day of jury selection on September 20, 2011, defendant stated he wanted to revoke his waiver. After initially refusing to consider defendant's request, the trial judge reconsidered and stated he would "look at the law" and consider defendant's request. Moments later, defendant changed his mind, stating he wanted to go to trial immediately even in the absence of counsel. Accordingly, the trial judge proceeded with trial preparations. Defendant then changed his mind a second time, stating he "need[ed] a lawyer." At this point, the trial judge refused to allow defendant to revoke his waiver of counsel. Where defendant waited until the day of jury selection on September 20, 2011, to make an oral motion to revoke his waiver of counsel, and where in arguing the motion he changed his mind twice as to whether he wished to proceed with counsel, we hold that the trial judge committed no abuse of discretion (and consequently no plain error) in holding defendant to the waiver of counsel he knowingly and intelligently made on July 19, 2011, after the Rule 401(a) and Ward admonishments had been given. ¶ 56 This case is similar to People v. Ogurek, 356 Ill. App. 3d 429 (2005). In Ogurek, the defendant there, Kenneth L. Ogurek, was charged with two counts of predatory criminal sexual assault of a child and initially was represented by an Assistant Public Defender (APD). Id. at 430-31. Mr. Ogurek later chose to represent himself after being given his Rule 401(a) admonishments. Id. at 431. The trial judge appointed standby counsel. Id. at 432. On the day of trial, prior to the arrival of the prospective jurors, Mr. Ogurek requested that standby counsel be allowed to either help him or take over the case. Id. Mr. Ogurek cited his "lack of success" during the two prior days of pre-trial hearings as the motivation for his request. Id. The trial judge cautioned Mr. Ogurek he would only consider appointing the Public Defender's office, meaning that his previous APD might be reassigned to the case. Id. The judge asked standby counsel if he was prepared to try the case, and he stated he was not. Id. The judge then denied Mr. Ogurek's request that standby counsel take over the case. Id. Mr. Ogurek thereafter stated he did not want the APD to represent him. Id. The judge noted Mr. Ogurek was not seeking the reappointment of counsel; rather, he was seeking the appointment of counsel of his choice. Id. Noting that a defendant is not entitled to have counsel of his choice appointed to represent him, the judge again denied his request. Id. The cause proceeded to trial with Mr. Ogurek representing himself, and he was convicted and sentenced to natural-life imprisonment. Id. at 432-33. ¶ 57 On appeal, Mr. Ogurek argued his Sixth Amendment right to counsel had been violated when the trial judge denied his request to have standby counsel take over the case. Id. at 436. The appellate court disagreed, noting in pertinent part:
(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." People v. Ward, 208 Ill. App. 3d 1073, 1081-82 (1991).
"Initially, we agree with the trial court that defendant's request was untimely. Defendant's request was not made until almost literally the last possible moment before the commencement of trial. [Standby counsel] was understandably not prepared to assume control of the case. No other attorney would have been prepared to proceed. Defendant's request surely would have delayed the trial. Such a request is clearly untimely. [Citation.] In short, defendant was in a predicament of his own making. After being more than fully admonished regarding his decision to proceed pro se, defendant chose to do so. Having been allowed to proceed as he wished, he created the situation where no attorney, including [standby counsel], was in a position to try the case. It was not incumbent on the trial court to accommodate defendant by delaying the trial after he came to regret his exercise of his right to proceed in this manner." Id. at 437.¶ 58 Similarly, in the present case, defendant made a knowing and intelligent election to proceed pro se on July 19, 2011, after being fully admonished pursuant to Rule 401(a) (as well as under Ward). Defendant's request for counsel was made on the day of jury selection on September 20, 2011, after his lack of success in pre-trial proceedings. As in Ogurek, defendant created the situation where no attorney was in a position to try the case on that date, and it was not incumbent on the trial judge to delay the trial simply because defendant had some regrets as to his earlier decision to proceed pro se. ¶ 59 Defendant argues, though, that the trial judge should have granted his motion to revoke his waiver of counsel because the request was made for "legitimate reasons," specifically, because he realized that he did not understand the law and was incapable of representing himself. Defendant also argues the motion should have been granted because the appointment of counsel would have caused only "minimal inconvenience" to the parties, witnesses, and court, where jury selection had not yet begun, defendant had been arraigned only six months earlier, and "there is no evidence that a continuance would have inconvenienced the two witnesses who testified" at trial. We disagree. As discussed, the trial judge commits no abuse of discretion in denying defendant's motion to revoke his waiver of counsel on the day of jury selection where defendant's decision to proceed pro se created the situation where no attorney was in a position to try the case on that day. Id. We have also held that where, as here, the trial judge has fully complied with Rule 401(a) and has given the Ward admonishment that the decision to proceed pro se will become irrevocable, the trial judge commits no abuse of discretion in holding defendant to his election to proceed pro se. See People v. Palmer, 382 Ill. App. 3d 1151, 1163 (2008). This is especially so under the unique facts of this case, where defendant waited until the day of jury selection before requesting to revoke his waiver of counsel, then changed his mind about revoking the waiver, then changed his mind yet again. On these facts, the trial judge did not abuse his discretion (and consequently committed no plain error) in putting an end to defendant's equivocation over whether or not to revoke his waiver of counsel on the day of jury selection, and instead holding him to his election to proceed pro se. ¶ 60 Finally, defendant contends he is entitled to an additional day of sentencing credit, for a total of 285 days. The State agrees. Pursuant to the agreement of the parties, we order the clerk of the circuit court to amend the mittimus to reflect sentencing credit for 285 days. ¶ 61 For the foregoing reasons, we affirm defendant's conviction and order the clerk of the circuit court to amend the mittimus to reflect sentencing credit for 285 days. ¶ 62 Affirmed; mittimus amended.