Motion — Nathaniel K. Hooker, Petitioner v. Illinois

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IN THE

Supreme Court of the United States

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NATHANIEL KAIN HOOKER,

Petitioner,

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PEOPLE OF THE STATE OF

ILLINOIS,

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Respondent.

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On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Judicial District

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PETITION FOR WRIT OF CERTIORARI

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By: /s/ Nathaniel KainHooker

Pro Se !

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Nathaniel Kain Hooker

538 Bond Avenue N.W.

Apartment 808 : ;

Grand Rapids, MI 49503

708-738-3822

hooker_nathaniel@yahoo.com

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QUESTIONS PRESENTED FOR REVIEW

This case presents an important issue concerning the proper application of Illinois

Criminal Procedures and the Sixth Amendment Right to Effective Counsel, coupled with the

original right to Petition (according to Lord Coke), as well as the Second Amendment Right to

Bear Arms, which is undoubtedly the Right to Defend Oneself.

DID THE CIRCUIT COURT OF WILL COUNTY ERRONEOUSLY DEPRIVE THE

DEFENDANT OF HIS SIXTH AMEDNMENT RIGHT TO COUNSEL DURING HIS

CRIMINAL PROCEEDINGS?

Since this High Court’s decision in Gerstein v. Pugh, 420 U.S. 103 (1975), stating that,

the Fourth Amendment places a right to a defendant, to a Probable Cause Hearing before a neutral

Magistrate, the Illinois Criminal Procedures have consistently failed to uphold to the standard of

the Sixth Amendment Right to Counsel laid out in Gerstein and echoed in Rothgery v. Gillespie

County, 554 U.S. 191 (2008), “[a] criminal defendant’s initial appearance before a magistrate

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judge - where he learns the charge against him and his liberty is subject to restriction, marks the

initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right

to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer)

be aware of that initial proceeding or involved in its conduct. Pp. 5-20.”

Unlike in Rothgery v. Gillespie County, which defines an adversarial proceeding, simply

as, “[a] criminal defendant’s initial appearance before a magistrate judge, where he learns the

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charge against him and his liberty is subject to restriction”, Illinois unconstitutionally misapplies

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Gerstein v. Pugh, as almost a boilerplate statement, and safe word, that if invoked, mutes, and

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buttresses an individual’s Sixth Amendment Right to effective Assistance of Counsel (emphasis

at “effective”). Currently, Illinois applies the Sixth Amendment as follows: “The sixth

amendment of the United States Constitution provides defendant with the right to counsel or

appointed counsel. U.S. Const., amend VI. This right attaches at or after the initiation of

adversarial proceedings. Kirby v. Illinois, 406 U.S. 682, 688-89 (1972); People v. Garrett, 179

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Ill. 2d 239,247 (1997). To determine whether the court infringed on defendant’s right to counsel,

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we must first decide if the proceeding at issue was adversarial, and thus entitled defendant to

representation.”

i Instead of pointing to this High Courts Authority as laid out in Rothgery v. Gillespie

County, 554 U.S. 191 (2008), which agreed with Michigan v. Jackson, 475 U. S. 625, 629,

Brewer v. Williams, 430 U. S. 387, 398-399, and McNeil v. Wisconsin, which all noted the Sixth

Amendment Right to Assistance of Counsel (emphasis on uppercase “Assistance of Counsel”),

applies at “an initial appearance following a charge, and this signifies a sufficient commitment

to prosecute regardless of a prosecutor’s participation, indictment, information, or what the

County calls a “formal” complaint”, Illinois utilizes Gerstein v. Pugh, while ignoring Rothgery

v. Gillespie County, to initiate an arraignment, whereby they can sidestep the Sixth Amendment

Right to Counsel, by including in that “arraignment”, a probable cause/Gerstein Hearing, and

therefore labeling the proceeding as “not a critical stage”, citing incorrectly Gerstein, 420 U.S.

at 122.

The Sixth Amendment states verbatim: “In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein

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the crime shall have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.” Throughout the entirety of the language of the

Sixth Amendment, in can be noted that there are only four words that are capitalized, the

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beginning word “In”, which is due to english grammar, the word “State”, which again is due to

english grammar as the word “State” represent a proper noun. The remaining two words are taken

as a phrase, “Assistance of Counsel”, which is given here as a proper noun, which can be restated

as “Lawyer”. As such, the Sixth Amendment Right to Counsel places as a right to every citizen,

the munition, and arms, as laid out in the Second Amendment Right, to protect oneself, a

“Lawyer” at all times during criminal proceedings. It is not as Illinois specifies it, being the Sixth

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Amendment only applies during “critical stages” categorized as critical by the court, since this

philosophy cannot be applied axiomatically throughout the language of the Sixth Amendment.

Could a court reasonably argue that a defendant after being arrested could constitutionally and

legally be stripped of his right to enjoy a speedy or public trial? Is it possible for the state or court

to impose upon the accused a partial jury of a different State and district where the crime was

committed? The same logic applies to Assistance of Counsel, especially given the brevity of

capitalizing “Assistance of Counsel” as well as including the words “In all criminal

prosecutions”. The purpose of the Sixth Amendment Right is not just to cement the right of a

citizen to counsel during all criminal proceedings, but to buttress acts of malfeasance,

misconduct, partiality, ethical violations, and to maintain proper court decorum, and Rule of Law.

An attorney in the United States is an Officer of the Court, and as such, an oath of

allegiance must be taken, Ex parte Garland, 71 U.S. 333 (1866). Mr. Hamilton, in the seventyeighth number of the Federalist, says that he agrees with the maxim of Montesquieu, that 'there

is no liberty if the power ofjudging be not separated from the legislative and executive powers.'

As such, the purpose of “Assistance of Counsel”, is to maintain due process in the courts, by

holding all parties, and all governmental bodies to the strict adherence of the Rule of Law. The

Founding Fathers, prescribed the necessary procedures for a criminal proceeding laid out in the

Sixth Amendment, and to ensure its successful completion, mandated Assistance of Counsel is

necessary in order to ensure an accused can enjoy all the rights listed in the Sixth Amendment

(Due Process).

The Court’s resolution of these issues would not only resolve the direct conflict with

Illinois Criminal Procedures and the Sixth Amendment Right to the “Assistance of Counsel”, but

would provide the much-needed guidance on how to determine when an accused shall enjoy

those rights listed within the Sixth Amendment, during a criminal prosecution. It is respectfully

submitted that this petition presents an ideal vehicle to clarify the scope of the Sixth Amendment

Clause to the right to counsel, namely, “to have the Assistance of Counsel for his defense”.

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LIST OF PARTIES

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j: ii Petitioner, Nathaniel Kain Hooker, was the defendant in the Circuit Court of the Twelfth

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Judicial Circuit, Will County, Illinois, and the appellant in the Appellate Court of Illinois Third

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Judicial District, as well as the appellant in the Illinois Supreme Court. Respondent, the People

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fjofthej State of Illinois, wals the plaintiff in the Circuit Court of the Twelfth Judicial Circuit, Will

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. County, Illinois and the appellee in the Appellate Court of Illinois Third Judicial District, as well.

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as the appellee in the Illinois Supreme Court

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TABLE OF CONTENTS

Questions Presented for Review

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List of Parties

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Table of Contents

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Table of Authorities

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Petition for a Writ of Certiorari

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Opinion and Order Below

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Statement of Jurisdiction.

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Relevant Statutory Provisions......

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Relevant Constitutional Provisions

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Statement of the Case.

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Reasons for Granting the Writ

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A.

There exists confusion within the Illinois Judiciary on what qualifies as a “critical stage”

in the criminal process, for the attachment of the Sixth Amendment Right to the

effective Assistance of Counsel.

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B.

725 ILCS 5/109(a-5) is procedural and therefore retroactive

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Conclusion

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Appendices

Order for Free Transcripts and Appointment of the Office of the State

Appellate Defender as Counsel on Appeal

1 Nathaniel K. Hooker v. People of the State ofIllinois, 17-CM-594

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Decision of the Appellate Court of Illinois Third Judicial District,

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Nathaniel K. Hooker v. People of the State ofIllinois, 3-17-0597

B

Order Denying Petition for Leave to Appeal to the Illinois Supreme Court,

Nathaniel K. Hooker v. People of the State ofIllinois, 125709....

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TABLE OF AUTHORITIES

Cases

Page(s)

Gerstein v. Pugh, 420 U.S. 103 (1975)

Rothgery v. Gillespie County, 554 U.S. 191 (2008)

i,ii, 1,7,10

Kirby v. Illinois, 406 U.S. 682, 688-89 (1972)

i, 7, 9

People v. Garrett, 179 Ill. 2d 239, 247 (1997)

i, 7

Michigan v. Jackson, 475 U. S. 625, 629)......

ii, 9

Brewer v. Williams, 430 U. S. 387, 398-399

ii, 9

McNeil v. Wisconsin

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People v. Garrett, 179 Ill. 2d 239, 247 (1997)

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Ex parte Garland, 71 U.S. 333 (1866)

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People v. Mitchell, 366 Ill. App. 3d 1044,1048 (2006)

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States v. Salerno, 481 U.S. 739, 751 (1987)

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People v. Abernathy, 399 Ill. App. 3d 420, 426 (2010).

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Hurrell-Harring v. State, 930 N.E.2d 217, 223 (N.Y. 2010)

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Gonzalez v. Comm’r of Correction, 68 A.3d 624, 63536 (Conn.), cert, denied, 134 S. Ct. 639

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(2013)

Ditch v. Grace, 479 F.3d 249, 253 (3d Cir. 2007)

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State v. Fann, 571 A.2d 1023, 1026 (N.J. Super. Ct. Law Div. 1990)

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State V. Detter, 260 S.E.2d 567, 583 (N.C. 1979)

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Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012)

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Coleman v. Alabama, 399 U.S. 1 (1970)

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United States v. Wade, 388 U.S. 218 (1967)

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Hamilton v. Alabama, 368 U.S. 52 (1961)

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People v. White 395 Ill. App. 3d 797, 819 (Ill. App. Ct. 2009)

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TABLE OF AUTHORITIES- coat'd

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Cases ~ Continued

Page(s)

Hunter, 2017 IL 1213064 15, 422 Ill.Dec. 791, 104N.E.3d358

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In re H.L., 2015 IL 118529,16, 400 Ill.Dec. 631, 48 N.E.3d 1071

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Landgraf v. USI Film Products ,511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)

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Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27,255 Ill.Dec. 482, 749 N.E.2d

964

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(2001)

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People ex rel. Alvarez v. Howard , 2016 IL 120729, f 19, 410 Ill.Dec. 960, 72 N.E.3d 346

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People v. Ruiz (1985), 107 I11.2d 19, 22, quoting Black's Law Dictionary 1367 (4th ed. 1951)...10

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Ogdon v. Gianakos (1953), 415 Ill. 591, 596

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Chicago

and Western Indiana Railroad Co. v. Guthrie, 192 Ill. 579

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Peoples Store of Roseland v. McKibbin, 379 Ill. 148

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Board of Education v. City of Chicago, 402 Ill. 291..

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People v. Clark, 283 Ill. 221

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, Therens v. Therens, 267 Ill. 592

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• Fleisehman v. Walker, 91 id. 318

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Statutes

28U.S.C. § 1254(1)

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Illinois Public Act 100-1, § 1-10 (eff. Jan. 1, 2018)

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725 JLCS 5/109-l(a)(a-5)

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TABLE OF AUTHORITIES- coat’d

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l.r ;'Constitutional Articles and Amendments

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• : III Const, art. VI, §1,9

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III. Const, art. VI, §6...

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; ; jU.S.Const. amend. XIV

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1 -U.S.iConst, amend. VI...

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U.S.1 Const, amend. IV....

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i U.S.1 Supreme Court Order - March 19, 2020

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Bail Reform Act of 1984...

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PETITION FOR A WRIT OF CERTIORARI

Nathaniel Kain Hooker respectfully petitions this Court for a writ of certiorari to review

the Supreme Court of Illinois denial of his petition for leave to appeal on the issue of whether his

Sixth Amendment Right was violated, when the circuit court erroneously arraigned the defendant

without the assistance of counsel for his defense, in light of this Court’s decision in Rothgery v.

Gillespie County, 554 U.S. 191 (2008).

OPINION AND ORDER BELOW

The Supreme Court of Illinois denial of Mr. Hooker’s petition for leave to appeal No.

125709 is included in the Appendix at A.

STATEMENT OF JURISDICTION

The Circuit Court of the Twelfth Judicial Circuit had original jurisdiction over Mr. Hookers'

criminal case pursuant to Ill. Const, art. VI, §1, 9. On September 8, 2017, a notice of appeal was

filed on defendant’s behalf and the Office of the State Appellate Defender was appointed to represent

him. On October 9, 2019, The Appellate Court of Illinois Third Judicial District, according to their

jurisdiction found at Ill. Const, art. VI, §6, affirmed the Circuit Court’s Order. On November 1,2019,

Mr. Hooker submitted a Motion for Extension of Time to File Petition to Reconsider. On November

4, 2019, the Third District Appellate Court granted the extension until December 4, 2019. On

December 3, 2019, Mr. Hooker proceeded Pro Se, and filed a Petition for Rehearing En Banc, with

the Third District Appellate Court. On December 16, 2020, the Third Appellate Court denied the

Rehearing En Banc, and modified their original order. On January 3,2020, Mr. Hooker filed a Prayer

for Leave to Appeal with the Illinois Supreme Court. After several returned Petitions, Mr. Hooker

successfully submitted his Motion with Leave to Appeal, listing his Petition for Leave to Appeal as

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an exhibit, on January 24, 2020. On February 29, 2020 Mr. Hooker filed his Petition for Leave to

Appeal with the Illinois Supreme Court, which was accepted on March 11, 2020. On May 27, 2020,

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the Illinois Supreme Court denied Mr. Hookers’ Petition for Leave to Appeal. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1254(1) and Part III of the Rules of the Supreme

Court of the United States. This petition is timely pursuant to Supreme Court Rule 13.1, andU.S.

Supreme Court Order issued on Thursday, March 19, 2020, extending the deadline to file a

petition for writ of certiorari 150 days from the date of the lower court’s judgement/order.

RELEVANT CONSTITUIONAL PROVISIONS

This case involves the application of the Rule of Law, as applied to Illinois Criminal

Prosecutions.

U.S. Const, amend. XIV.

The Fourteenth Amendment to the United States Constitution provides, in relevant part: "No

State shall ... deprive any person of life, liberty, or property'', without due process of law; nor deny

to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1.

U.S. Const, amend. VI.

The Sixth Amendment to the United States Constitution states: “In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

U.S. Const, amend. II.

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.

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RELEVANT STATUATORY PROVISIONS

725 ILCS 5/109-1

, (a) A person arrested with or without a warrant shall be taken without unnecessary delay

before the nearest and most accessible judge in that county, except when such county

is a participant in a regional jail authority, in which event such person may be taken

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to the nearest and most accessible judge, irrespective of the county where such judge

presides, and a charge shall be filed. Whenever a person arrested either with or

without a warrant is required to be taken before a judge, a charge may be filed against

such person by way of a two-way closed circuit television system, except that a

hearing to deny bail to the defendant may not be conducted by way of closed circuit

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television.

(a-5) A person charged with an offense shall be allowed counsel at the hearing at which

bail is determined under Article 110 of this Code. If the defendant desires counsel for

his or her initial appearance but is unable to obtain counsel, the court shall appoint a

public defender or licensed attorney at law of this State to represent him or her for

purposes of that hearing.

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Effective January 1, 2018, the statutory language at (a-5) was added by Public Act:

1 “A person charged with an offense shall be allowed counsel at the hearing at which

■ bail is determined under Article 110 of this Code. If the defendant desires counsel

for his or her initial appearance but is unable to obtain counsel, the court shall

' i appoint a public defender or licensed attorney at law of this State to represent him

j or her for purposes of that hearing.”

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STATEMENT OF THE CASE

On March 14, 2017, defendant was charged by criminal complaint with domestic battery,

a Class A misdemeanor, for making contact with his spouse, Jaclynn Hooker (C4).

Also on March 14, 2017, defendant appeared before Judge Arkadiusz Smigielski (R3).

The court read the charge and the possible penalties (R3). It asked defendant to plead to the

charges (C3), for which the defendant plead not guilty (C24), and if the defendant intended to

hire a lawyer, which the defendant responded in the affirmative (R3).

The court stated that it would be proceeding through a multitude of hearings, (1) first, the

Court would advise defendant of the nature of the charges, (2) second, the court would determine

whether there was sufficient probable cause to detain defendant, which the court termed a

Ger,stein hearing (R3-4). Gerstien v. Pugh, 420 U.S. 103 (1975), (3) third, the court would set the

defendant bail/bond terms, (4) fourth, the court would confine the defendant to the local jail, (5)

fifth, the court would confiscate the defendants FOLD card and his firearms at his residence, (6)

sixth, the court set an Order of Protection into effect, baring the defendant from his spouse,

children, and place of residence (R5-6).

The court determined that the State provided a factual basis for the charge (R4-5). The

court found probable cause and set bond (R5-6). As part of the bond, the court imposed a no

contact order and prohibited defendant from returning to the residence which he bought using his

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VA home loan. Because the defendant was barred from his place of residence, the court allowed

the defendant to reside in Michigan while on bail, ordered the defendant to surrender his firearm

owner’s identification card, and ordered the New Lenox police to enter the defendants home and

seize his firearms (R7-9).

On April 11, 2017, before Judge Edward Burmilia, attorney Isioma Ebiringah entered his

appearance (C8; R13-14), and represented the defendant throughout the remainder of the

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proceedings.

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; | On July 10, 2017, defendant waived his right to a jury trial (C9; R20-21). At defendant’s

bench trial, held on August 16, 2017, the court found that there was evidence showing that there

was a disagreement between the defendant and Jaclynn regarding Jaclynn having taken personal

information off of the defendants phone, and the defendant requesting this information back and

be erased from Jaclynn’s phone (R34-38, 71-75). Defendant pushed Jaclynn in self-defense in

the chest, because after Jaclynn agreed to give the defendant her phone, the defendant was

attacked by Jaclynn (R38-40, 46-47, 59-60, 79). After the defendant gave Jaclynn her phone

back, and she went outside and called her friends and father, she called the police. The

responding officer testified that he saw a red mark on Jaclynn’s chest (R62, 64). The court found

defendant guilty for having touched Jaclynn (R106-108).

Sentencing immediately followed the bench trial (R108). Defendant was a special

disabled veteran, Hillsdale College graduate, attending Northern Illinois University for his

Master’s in Education. The defendant and his wife Jaclynn had just adopted their niece, because

Jaclynns’s sister was killed tragically. The defendant had no criminal history (R71, 109). The

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court sentenced defendant to 12 months’ conditional discharge and ordered him to serve 4 days

in jail (C13; R109-11).

On September 8, 2017 a notice of appeal was filed on defendant’s behalf, and the Office

of the State Appellate Defender was appointed to represent him (Cl 6-17). The Third Appellate

Court affirmed the Circuit Courts Order on October 9, 2019.

Immediately following the Third Appellate Courts Order, the defendant filed a Pro Se

motion for a Rehearing en banc, noting that multiple errors occurred in the axioms of both the

Appellate and Circuit Courts Orders, showing that the defendant was denied counsel during

critical stages, especially during a bail/bond hearing.

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| , j j ’ j The Third Appellate Court acknowledge that a bail/bond hearing took place, but still held ■ :

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MVto their initial judgement, that the defendant did not have the right to counsel, and additionally,

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that 725 ILCS 109(a-5) was instituted by public act almost a year after the defendant was found

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guilty, Jand therefore, the defendant did not have a statutory right to an attorney at the bail/bond ;

/■hearing.

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i ! | The Defendant theh followed the Rehearing en banc with a Petition for Leave to Appeal

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j'tothe Illinois Supreme Court, stating that he was deprived of his right to counsel during critical

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stages of the criminal process. On May 27, 2020, the Illinois Supreme Court denied Mr.

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Hookers’Petition

for Leave to Appeal.

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This Writ of Certiorari follows.

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REASONS FOR GRANTING THE WRIT

A.

; There exists confusion within the Illinois Judiciary on what qualifies as a “critical

; stage” in the criminal process, for the attachment of the Sixth Amendment Right to

the effective Assistance of Counsel.

The defendant respectfully requests to inform this High Court, that on March 14, 2017, as

outlined on the judgment affirmed by the Third Appellate Court, at least two separate hearing

took place, (1) a Probable Cause/Gerstien Hearing, People v. Mitchell, 366 Ill. App. 3d 1044,

1048 (2006) (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)), as well as (2) a bail/bond

hearing, States v. Salerno, 481 U.S. 739, 751 (1987), which is controlled by the Bail Reform Act

of 1984, and outlines the need for counsel since it is a critical step in the judicial proceedings, and

is adversarial in nature, Rothgery v. Gillespie County, Texas. (554 U.S. 191 (2008), (R5:18' *

R6.T3, R7:3-5).

The U.S. Const., amend VI attaches at or after the initiation of adversarial proceedings.

Kirby v. Illinois, 406 U.S. 682, 688-89 (1972); People v. Garrett, 179 Ill. 2d 239, 247 (1997). To

determine whether the court infringed on defendant’s right to counsel, it must first be decided if

the proceeding at issue was adversarial, and thus entitled defendant to representation, which

should be reviewed de novo, People v. Abernathy, 399 Ill. App. 3d 420, 426 (2010). As outlined

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by New York and other states, the question of bail has already been answered, “[tjhere is no

question that ‘a bail hearing is a critical stage of the State’s criminal process.” (Hurrell-Harring v.

State, 930 N.E.2d 217, 223 (N.Y. 2010).) The Connecticut Supreme Court also found that the

defendant’s bail hearing is a critical stage. (Gonzalez v. Comm’r of Correction, 68 A.3d 624,

63536 (Conn.), cert, denied, 134 S. Ct. 639 (2013).). Even before Rothgery, bail hearings were

found to be critical stages of trial by courts in Pennsylvania, New Jersey, and North Carolina.

i

(See Ditch v. Grace, 479 F.3d 249, 253 (3d Cir. 2007); State v. Fann, 571 A.2d 1023, 1026 (N.J.

Super. Ct. Law Div. 1990); State v. Detter, 260 S.E.2d 567, 583 (N.C. 1979).) This makes sense,

i

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8

Critical stages of trial include all pretrial proceedings where a lawyer’s presence can assist the

defendant. (See Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012) (plea negotiations); Coleman v.

Alabama, 399 U.S. 1 (1970) (preliminary hearings); United States v. Wade, 388 U.S. 218 (1967)

(post indictment lineups); Hamilton v. Alabama, 368 U.S. 52 (1961).

Further, the “critical step” or “adversarial nature” of a bond/bail hearing is emphasized

and cemented by the addition of 725 ILCS 5/109(a-5), that was initiated and made effective by

Illinois Public Act 100-1, § 1-10 (eff. Jan. 1, 2018). 725 ILCS 5/109(a-5) does not make a

bail/bond hearing a “critical step”, or “adversarial in nature”, but is instituted for the reason that,

a bail/bond hearing is separate from a probable cause hearing and is not under the umbrella of a

Gerstein Hearing, which attaches no counsel to the defendant, however, moving from a probable

cause hearing to a bail/bond hearing, requires the appointment of counsel, because it is both

adversarial and a critical step.

As outlined by the Third Appellate Court in their judgement:

“The next part of the hearing, sir, will be what’s called a Gerstein hearing.

The State is going to provide me with a very brief statement of facts so that I can

determine if there is sufficient probable cause for your detention. If I find there is

probable cause for you to be detained, we’re then going to proceed to a bond

hearing.”

As outlined by the transcripts and noted by the Third Appellate Court, two separate

hearings took place, “a Gerstein hearing”, proceeded “to a bond hearing”, of which the latter of

the two is both “adversarial” and “critical” in nature as defined by this courts decisions.

However, Mr. Hooker stipulates, that so also is the Gerstein Hearing, both “critical”, and

“adversarial” in nature. The bail/bond hearing is critical in nature as noted by the U.S. Supreme

Court, since where no attorney is present to represent the defendant, there is no one who can

9

present'evidence to the magistrate to demonstrate that the defendant is not a threat to public

safety and should be released pending trial, or that the defendant has ties to the community such

that he will most assuredly appear at all court proceedings, or that the defendant does not have

any resources with which to pay bail money. The United States Supreme Court has held that the

right to counsel attaches at a defendant’s initial appearance in court to face charges, Brewer, 430

U.S. at 397-98, 51 L. Ed. 2d at 436, 97 S. Ct. at 1239, Jackson, 475 U.S. at 633, 89 L. Ed. 2d at

640, 106 S. Ct. at 1409. Once that right attaches, counsel must represent the defendant at every

critical stage of trial see Kirby v. Illinois. The initial bail hearing is a critical stage of trial because

a lawyer can show the magistrate why the defendant is likely to appear at future proceedings,

why the defendant is unlikely to be a danger, and why conditions of release are suitable and do

not punish the defendant for lack of money. This is not something unrepresented defendants can

do. As in all other pretrial proceedings that the Supreme Court has applied the Sixth Amendment

right to counsel, lawyers are necessary at initial bail hearings, People v. White 395 Ill. App. 3d

797, 819 (Ill. App. Ct. 2009).

■ i

' B.

72SILCS 5/109(a-5) is procedural and therefore retroactive.

The interpretation of a statue and the determination of its temporal reach present

questions of law that should be reviewed de novo, Hunter, 2017 IL 121306, If 15, 422 Ill.Dec.

, f

791, 104 N.E.3d 358 ; In re H.L., 2015 IL 118529,16, 400 Ill.Dec. 631,48N.E.3d 1071. The

retroactivity analysis is premised on that set forth by the United States Supreme Court in

Landgraf v. USI Film Products ,511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which

was adopted by the Illinois Supreme Court in Commonwealth Edison Co. v. Will County

Collector, 196 Ill. 2d 27, 255 Ill.Dec. 482, 749 N.E.2d 964 (2001). Hunter, 2017 IL 121306, f 20,

422

Ill.Dec.

791, 104 N.E.3d 358; People ex rel. Alvarez v. Howard , 2016 IL 120729, % 19, 410

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Ill.Dec.^ 960, 72 N.E.3d 346. If the rule is silent as to its temporal reach, the court must determine

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10

whether the rule has a retroactive impact such that it "would impair rights a party possessed when

he acted, increase a party's liability for past conduct, or impose new duties with respect to

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transactions already completed." (Internal quotation marks omitted.) Id. (quoting Howard , 2016

f

IL 120729, H 19, 410 Ill.Dec. 960, 72 N.E.3d 346, quoting Commonwealth Edison , 196 Ill. 2d at

38, 255 Ill.Dec. 482, 749 N.E.2d 964, quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483 ). Since

725 ILCS 5/109(a-5) does not have a retroactive impact, it may be applied retroactively.

ILCS 725 5/109(a-5), is not a substantive change, but a procedural change, since it does

not give a defendant a new right, but merely establishes when that right is to be applied or

attached, see Rothgery at 212 n. 15, 128 S.Ct. 2578. The case before this very court, and the

appellate court, is a question about when an attorney or counsel is attached to a defendant, and

not the right of the defendant to an attorney. In simplistic analysis, counsel is the substance, or

the ingredient, which is already given effect at U.S. Const., amend VI, and IL Const., Sect VIII,

i

and the-court looks to the Rules of Criminal Procedure to note, when in the course of the judicial

mechanism, appointment of counsel is necessary according to precedent and the Due Process

Clause,*stapled with U.S. Const., amend XIV. The right to counsel is already affixed under the

\

U.S Constitution

at VI, as well as the IL Constitution at VIII, ILCS 725 5/109(a-5) merely states

j

via statutory language the procedures and Due Process measures the court must follow when

appointing counsel, and not to the right of counsel. The absolute disagreement with the circuit

and,Third Appellate Court is this very question, “when is counsel required or attached”, and not

the absolute right to counsel.

i

In general, procedural law is

[t]hat which prescribes the method of enforcing rights or

obtaining redress for their invasion; machinery for carrying on a suit." (People v. Ruiz (1985),

107 I11.2d 19, 22, quoting Black's Law Dictionary 1367 (4th ed. 1951).). Further, “[pjractice

means those legal rules which direct the course of proceedings to bring parties into court and the

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course of the court after they are brought in.” Ogdon v. Gianakos (1953), 415 Ill. 591, 596., in

addition, when a change of law merely affects the remedy or law of procedure, all rights of action

will be enforceable under the new procedure without regard to whether they accrued before or

after such change of law and without regard to whether the suit has been instituted or not, unless

there is'a saving clause as to existing litigation. (Chicago and Western Indiana Railroad Co. v.

Guthrie, 192 Ill. 579; Peoples Store of Roseland v. McKibbin, 379 Ill. 148; Board of Education v.

City of Chicago, 402 Ill. 291.), and 725 ILCS 5/109(a-5) states no saving clause, and therefore is

only procedural in nature and therefore is retroactive.

The word "procedure" includes in its meaning whatever is embraced by the three

technical terms — pleading, evidence and practice. Practice, in this sense, means those legal rules

i

which direct the course of proceedings to bring parties into court and the course of the court after

they are brought in. (People v. Clark, 283 Ill. 221.) The word "practice" is used as meaning that

which regulates the formal steps in an action or other judicial proceeding. Bouvier's definition of

"practice" is, "the form, manner and order of conducting and carrying on suits or prosecutions in

the courts through their various stages, according to the principles of law and rules laid down by

the respective courts." (Therens v. Therens, 267 Ill. 592; Fleischman v. Walker, 91 id. 318.).

CONCLUSION

: If Nathaniel Kain Hookers’ judicial criminal proceedings, namely his probable cause and

bond hearing qualify as “critical”, or “adversarial” in nature, and appointment of counsel was

necessary under this courts prior decisions, Mr. Hooker was improperly denied his Right to Due

Process of Law. And notably, the questions raised by Mr. Hooker will have far-reaching impact

i

not only for other Illinois defendants, but also for defendant throughout the country given the recent

magnitude of change required by a probable cause hearing being mandated as constitutionally required

by this High Court in Gerstein v. Pugh. Furthermore, this case addresses Illinois erroneous application

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'bjfthe njandated probable cause hearing, which Illinois adopts a rule that a Probable Cause hearing is .

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heither‘‘critical” nor “adversarial”. This is an excellent case for certiorari for these reasons. The ;

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■ Court should grant the writ Of certiorari in this case.

! , Respectfully Submitted,

.

By: /s/ Nathaniel KainHooker

ProSe

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^teeter:

Nathaniel Kain Hooker

538 Bond Avenue N.W.

Apartment 808

Grand Rapids, MI 49503 :

708-738-3822

hooker_nathaniel@yahoo .com

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09/11/17 15:48:30 WCCH

IN THE CIRCUIT COURT OF THE

TWELFTH

JUDICIAL CIRCUIT

STATE OF ILLINOIS )

COUNTY OF WILL

)

PEOPLE OF THE STATE OF ILLINOIS

VS.

Nathaniel Hooker

)

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Case No. 17CM594 People of tha Slate versus Nathaniel Hooker

ORDER FOR FREE TRANSCRIPT AND APPOINTMENT

OF THE OFFICE OF THE STATE APPELLATE DEFENDER

AS COUNSEL ON APPEAL

It appearing to the Court that the above named defendant desires to appeal from the order entered by the

, and the defendant is indigent and requests the

September 7. 2017

Court on

appointment of counsel in accordance with Supreme Court Rule 607 (a), and that he requests a report of

proceedings in accordance with Supreme Court Rule 607 (b)

IT IS THEREFORE ORDERED THAT,

(8T57-434;5531

PETER A. CARUSONA, Deputy Defender

Office of the State Appellate Defender

Third Judicial District

770 E. Etna Rd.

Ottawa, Illinois 61350

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is hereby appointed to represent the above named defendant for purposes of appeal.

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IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and file a Notice Of Appda^on

behalf of the above named defendant, and shall send a copy of appeal to the defendant's courfsel.

IT IS FURTHER ORDERED that the Official Shorthand Reporter of this Court shall:

a) Forthwith transcribe an original and a copy of all the notes taken of the proceedings in the above

entitled cause;

b) Without charge to the defendant and within forty-nine days from the date the Notice of Appeal is

filed, file the original of the Report of Proceedings with the Clerk of the Court and on the same day

mail or deliver the copy of the Report of Proceedings to the Defendant.

IT IS FURTHER ORDERED that the Clerk of this Court shall:

a) Send a copy of this order to the Defendant and to Defendant's counsel;

b) Prepare and certify the Record on Appeal pursuant to Supreme Court Rules 324 and 608;

c)1 File the Record on Appeal in the reviewing court within sixty-three days from the date the Notice of

Appeal is filed, or file a Certificate in Lieu of Record pursuant to Supreme Court Rule 325 and send

the Record on Appeal to the Defendant's counsel.

ENTER:

DATED:

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15:4S:30

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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).

2019 IL App (3d) 170597-U

Order filed October 9, 2019.

Modified upon denial of rehearing December 16, 2019

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

THE PEOPLE OF THE STATE OF

ILLINOIS,

Plaintiff-Appellee,

v.

NATHANIEL K. HOOKER,

Defendant-Appellant.

)

)

)

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)

)

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Appeal from the Circuit Court

of the 12th Judicial Circuit,

Will County, Illinois,

Appeal No. 3-17-0597

Circuit No. 17-CM-594

Honorable

Edward A. Burmila Jr.,

Judge, Presiding.

JUSTICE O’BRIEN delivered the judgment of the court.

Presiding Justice Schmidt and Justice McDade concurred in the judgment.

ORDER

Held. After reviewing the transcript and the docket entry, we conclude that the March 14,

2017, hearing was a probable cause hearing where defendant did not have a right

to counsel. Thus, the court did not deprive defendant of his sixth amendment right

to counsel.

; Defendant, Nathaniel K. Hooker, appeals from his conviction for domestic battery.

12

Defendant argues the Will County Circuit court deprived him of his right to counsel when it

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conducted an arraignment after defendant stated he intended to retain private counsel and before

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counsel appeared on defendant’s behalf. We affirm.

13

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I. BACKGROUND

On March 14, 2017, the State charged defendant by criminal complaint with one count of

14

domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2016)). On the same date, defendant appeared

before the court in the custody of the Will County sheriff. The court apprised defendant of the

charge and the applicable sentence. Defendant told the court that he intended to retain private

counsel. The court then conducted a Gerstein hearing and explained to defendant:

“The next part of the hearing, sir, will be what’s called a Gerstein hearing.

The State is going to provide me with a very brief statement of facts so that I can

determine if there is sufficient probable cause for your detention. If I find there is

' i

probable cause for you to be detained, we’re then going to proceed to a bond

hearing.

By no comment that I make or question that I ask, sir, am I suggesting that

you discuss the facts or circumstances that led to these charges or to your arrest.

The last thing your attorney would want is for you to be discussing this case in front

i

of a courtroom full of people being audio as well as video recorded and in the

presence of an assistant state’s attorney, understood?”

Defendant responded that he understood the court’s suggestion. The State told the court that

defendant was taken into custody following an incident where he pushed his spouse “in the chest

several times” resulting in “redness” to the victim’s chest. The court found that the State had

alleged “probable cause to detain” defendant. The court then set defendant’s bond, ordered

defendant to surrender his firearms and Firearm Owners Identification (FOID) card, and ordered

2

defendant to have no contact with the victim. The court scheduled the cause for a pretrial hearing

on April 11, 2017.

15

The docket entry for the March 14, 2017, hearing states:

“People present

. Defendant present in custody of the Will County

Sheriff pursuant to video court. Complaint is filed and copy served on the

defendant. Charges and rights explained. Defendant enters a plea of not guilty. Case

is set for jury pretrial. Based on sworn testimony of Assistant State’s Attorney ***,

Court finds probable cause to continue the defendant’s detention. Gerstein hearing

completed. Bond set in the amount of $5,000.00- 10% to apply. As a condition of

bond, defendant shall have no contact with Jaclynn Hooker or the residence located

at 705 Beech Lane in New Lenox, IL. In addition, upon release from custody,

defendant shall, within two days, surrender any and all firearms to the New Lenox

Police Department and surrender F.O.I.D. card to the Clerk of the Circuit Court.

Defendant is allowed to reside with parents in Muskegan, Michigan. Copy of

mittimus issued in open court. Defendant remanded to the custody of the Will

County Sheriff.”

16

The next transcript in the report of proceedings is from the April 11,2017, hearing. At the

beginning of this transcript, private counsel entered his appearance. Counsel then asked to continue

the case to May 22, 2017. The State did not object, and the court granted counsel’s request.

17

On August 16, 2017, the cause proceeded to a bench trial. At the conclusion of the bench

trial, the court found defendant guilty of domestic battery. The court sentenced defendant to 12

months of conditional discharge and ordered defendant to serve four days in the Will County Adult

Detention Center. Defendant filed a notice of appeal.

3

II. ANALYSIS

If 8

Defendant argues the circuit court deprived him of his right to counsel when it conducted

19

an arraignment hearing on March 14, 2017, after defendant announced his intent to retain private

counsel but before counsel was able to enter an appearance. After reviewing the record, we find

that on March 14, 2017, the court conducted a probable cause hearing, a proceeding where

defendant does not have the right to counsel.

110

The sixth amendment of the United States Constitution provides defendant with the right

to counsel or appointed counsel. U.S. Const., amend VI. This right attaches at or after the initiation

of adversarial proceedings. Kirby v. Illinois, 406 U.S. 682, 688-89 (1972); People v. Garrett, 179

Ill. 2d 239, 247 (1997). To determine whether the court infringed on defendant’s right to counsel,

1

we must first decide if the proceeding at issue was adversarial, and thus entitled defendant to

representation. We review this issue denovo. People v. Abernathy, 399 Ill. App. 3d 420, 426

(2010).

Defendant argues he had the right to counsel because the March 14, 2017, hearing was an

111

arraignment. An arraignment is the “initiation of formal criminal proceedings.” People v. Stroud,

208 Ill. 2d 398, 404 (2004). “The arraignment is the proceeding where the defendant is called to

the bar, is advised of the charges against him, and is required to answer the accusation contained

in the indictment.” People v. Garner, 147 Ill. 2d 467, 480 (1992). A defendant’s answer to the

charge, i.e., plea, is determinative of the need to proceed to trial as it defines the issues to be

; ■ : i

decided at trial. Id. Due to the importance of the arraignment, a defendant has the right to be

represented by counsel during this proceeding. Id. (citing Brewer v. Williams, 430 U.S. 387, 398

; i

(1977)). In addition to a defendant’s constitutional right to counsel, section 113-3 of the Code of

i

Criminal Procedure of 1963 (Code) provides a defendant with a statutory right to counsel “before

i

4

pleading to the charge.” 725 ILCS 5/113-3(a) (West 2016). Where a defendant is unable to obtain

counsel before an arraignment, this section requires the court to recess the proceedings until

defendant has obtained and consulted with counsel before entering a plea to the charge. Id.

1|12

i . An arraignment, however, is not necessarily a defendant’s first appearance before the court.

A defendant who is arrested without a warrant has the right to a probable cause hearing which

must occur before the State may impose “an extended restraint on [his] liberty.” People v. Mitchell,

366 Ill. App. 3d 1044, 1048 (2006) (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). This

probable cause hearing must be held within 48 hours of a defendant’s arrest. Id. Section 109-1 of

the Code codifies a defendant’s right to a probable cause hearing following a warrantless arrest.

725 ILCS 5/109-1 (a) (West 2016). Section 109-1 (b) requires the court to:

“(1) Inform the defendant of the charge against him and shall provide him

with a copy of the charge;

(2) Advise the defendant of his right to counsel and if indigent shall appoint

a public defender or licensed attorney at law of this State to represent him in

accordance with the provisions of Section 113-3 of this Code;

(3) Schedule a preliminary hearing in appropriate cases;

(4) Admit the defendant to bail in accordance with the provisions of Article

110 of this Code; and

(5) Order the confiscation of the person’s passport or impose travel

restrictions on a defendant arrested for first degree murder or other violent crime as

defined in Section 3 of the Rights of Crime Victims and Witnesses Act, if the judge

determines, based on the factors in Section 110-5 of this Code, that this will

5

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reasonably ensure the appearance of the defendant and compliance by the defendant

with all conditions of release.” Id.

Due to the nonadversarial nature of a probable cause hearing, it “is not a ‘critical stage’ in the

prosecution that would require appointed counsel.” Gerstein, 420 U.S. at 122.

. The transcript of the March 14, 2017, hearing establishes that this proceeding was a

113

probable cause hearing. At the beginning of the hearing, the court apprised defendant of the charge

i

and his right to counsel. Before the State read its factual basis, the court advised defendant, who

had indicated that he intended to retain private counsel that he should not comment on the facts or

circumstances that led to his arrest. In other words, defendant should not respond to the State’s

presentation of the factual basis. Defendant abided by the court’s recommendation, and after the

<

State presented the factual basis, the court found “probable cause to detain.” The transcript of the

hearing ended shortly after the court set defendant’s bond and scheduled the next hearing date.

Thus,'the hearing comported with the probable cause hearing requirements prescribed by section

109-1 'of the Code and Gerstein. Importantly, this proceeding is distinguished from an arraignment

because the court never asked defendant to respond to the charge or enter a plea, and instead

advised defendant not to engage in adversarial conduct by responding to the State.

j We note that despite the lack of reference to entering a plea, the docket entry for this

114

hearing states “[defendant enters a plea of not guilty. Case is set for jury pretrial.” (Emphasis

added.) From this statement, defendant argues the March 14, 2017, hearing was an arraignment

i

and he was entitled to counsel. However, given the court’s repeated references to Gerstein, its

■ I

advice to defendant, and defendant’s complete lack of response to the charge, the docket reference

' i

to a “plea” appears to be a scrivener’s error. As such, it does not alter our conclusion that this was

a probable cause hearing.

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j Even if we did not find that the reference to a “plea” was a scrivener’s error, we would find

115

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that the docket entry is contradicted by the transcript and conclude that the oral recording

(transcript) controls over the written docket entry. Such a result would be justified by an extension

of the doctrine that a court’s oral pronouncement controls when it is found to be in conflict with a

written order. Danada Square, LLC v. KFCNational Management Co., 392 Ill. App. 3d 598, 607

(2009).

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After reviewing the transcript and the docket entry, we conclude that the March 14, 2017,

.1

hearing was a probable cause hearing where defendant did not have a right to counsel. Thus, the

court did not deprive defendant of his sixth amendment right to counsel.

Following the entry of our order, defendant filed a petition for rehearing. In the petition,

117

defendant asks that we reconsider our finding that he did not have the right to counsel during the

March 14, 2017, hearing because section 109-1 (a-5) of the Code entitled him to the assistance of

i

counsel during his initial appearance. 725 ILCS 5/109-l(a-5) (West 2018). However, section 1091 (a-5) did not take effect until January 1, 2018, almost one year after the hearing at issue, and

therefore does not apply to defendant’s case. See Pub. Act 100-1, § 1-10 (eff. Jan. 1, 2018) (adding

725 ILCS 5/109-1 (a-5)). Moreover, this amendment does not apply retroactively because:

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(1) section 109-1 (a-5) does not expressly state its temporal reach, and (2) it constitutes a

substantive change to the law—it creates a statutory right to counsel during a bail hearing—which

applies prospectively. See People v. Stefanski, 2019 IL App (3d) 160140, H 12-14. We find

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defendant’s remaining arguments to also be without merit and deny his petition for rehearing.

III. CONCLUSION

118

119

, The judgment of the circuit court of Will County is affirmed.

120

Affirmed.

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SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING

200 East Capitol Avenue

SPRINGFIELD, ILLINOIS 62701-1721

(217) 782-2035

Nathaniel K. Hooker

FIRST DISTRICT OFFICE

160 North LaSalle Street, 20th Floor

Chicago, IL 60601-3103

(312) 793-1332

TDD: (312) 793-6185

586 E. 6th Street

Pentwater Ml 49449

May 27, 2020

t " -jrrre”- ”^>eople'StateTafiliino*s; respondent, v:iNaHw»eH<^ooker,- -

petitioner. Leave to appeal, AppeHafte Court, Third District.

125709

The Supreme Court today DENIED the Petition for Leave to Appeal or, in the

alternative, Petition for Appeal as a Matter of Right in the above entitled eausej

The mandate of this Court will issue to the Appellate Court on 07/01/2020.

Very truly yours,

Clerk of fhe ^Supreme Court

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