* * *

* * * [I]t is the judgment of the Court that appointing another lawyer, will simplyhold the Court hostage and these proceedings would come to an end at this point becauseit signals to Mr. Hughes that a continuation of abuse on the lawyers, will simply result inthat lawyer being given leave to withdraw, also. And we will never terminate theseproceedings."

The court then asked defendant if he was ready to argue the posttrial motion. Defendantresponded that he was not because he was not an attorney. The defendant, however, asked forthe case to be resolved. Without hearing any argument from the State or the defendant, the courtdenied defendant's posttrial motion. The court indicated it was going to take a short recess inorder to read the presentence report prior to sentencing. The State, however, responded that itwas not ready for sentencing. By order of court, the court continued defendant's sentencinghearing to November 21, 1997.

On November 21, 1997, the court conducted the sentencing hearing without appointingcounsel for defendant. Repeatedly, during the hearing, defendant requested the assistance ofcounsel. The trial court denied his request and again stated that defendant waived his sixthamendment right to counsel because he chose "to hold the court hostage" and that no lawyerwould accept appointment in this case due to defendant's behavior toward his previous attorney. After the State presented evidence of aggravation, defendant was sentenced to consecutive prisonterms of 30 and 20 years on the attempted murder and armed robbery convictions, respectively. Defendant now appeals.

II. Sixth Amendment Right to Counsel

Defendant contends that he was denied his sixth amendment right to counsel. Before thehearings on defendant's posttrial motion for a new trial and sentencing, the trial court alloweddefense counsel to withdraw and refused to appoint new counsel. Defendant was not representedby counsel for posttrial motions or sentencing. The State argues that defendant's abusive conducttoward trial counsel constituted a waiver of his sixth amendment right to counsel.

A defendant is entitled to counsel pursuant to the Sixth Amendment of the United StatesConstitution. U.S. Const., amends. VI, XIV. An indigent defendant has the right to have counselappointed for him. Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). The Illinois supreme court has noted that "it is now well established that a defendant has aconstitutional right to be represented by counsel 'at every stage of a criminal proceeding wheresubstantial rights of a criminal accused may be affected' [citation] and that sentencing is one suchstage [citations]." People v. Baker, 92 Ill. 2d 85, 90 (1982), quoting Mempa v. Rhay, 389 U.S.128, 134, 19 L. Ed. 2d 336, 340, 88 S. Ct. 254, 257 (1967). A defendant may waive this right andproceed without counsel but only if the defendant "voluntarily and intelligently elects to do so." People v. Barker, 92 Ill. 2d at 90; see also 134 Ill. 2d R. 401(a). However, even if defendant doesnot elect to waive his right to counsel, defendant may not use this right as a weapon to underminethe trial court's responsibility to administer justice. People v. Myles, 86 Ill. 2d 260, 268 (1981). We review the trial court's finding that defendant waived his right to counsel under an abuse ofdiscretion standard. People v. Jackson, 228 Ill. App. 3d 868, 874 (1992).

On October 31, 1997, more than a month after the defendant had been found guilty of allcharges by a jury, defense counsel made a motion to withdraw from the case. Although duringthe course of the case defense counsel had previously requested leave to withdraw, the recordreflects that defense counsel represented defendant during hearings on pretrial motions and duringthe jury trial. The relationship between defense counsel and defendant was at times volatile,however that difficult relationship did not delay the trial. Even after a physical altercation duringthe course of trial, defense counsel was able to try the case.

The supreme court in Myles addressed the effect of a defendant's abusive conduct towarddefense counsel on the administration of justice. Myles, 86 Ill. 2d at 268. In Myles, the trial courtallowed defendant's first counsel to withdraw after counsel reported he received threats about hisrepresentation in defendant's case. Over defendant's and the public defender's objection, the trialcourt appointed the public defender to represent defendant. Prior to trial, defendant told the trialcourt that he wanted an appointed counsel other than the public defender, but the trial courtdenied defendant's request and also denied the public defender's motion to withdraw. Defendantdid not discuss his case with the public defenders, was abusive toward them, and disrupted thestart of the trial. As a result, the public defenders did not sit with defendant during trial but satin the courtroom. Myles, 86 Ill. 2d at 265. Defendant represented himself during the trial. Although the public defenders did not sit with defendant, they advised defendant on severaloccasions during the trial. Myles, 86 Ill. 2d at 266-67.

On appeal, defendant contended that counsel's failure to participate in the trial denied himhis right to effective assistance of counsel. The supreme court rejected defendant's argument andheld that defendant's own conduct brought upon the quality of representation he received. Thecourt found that defendant sought to prevent the administration of justice and delayed his trialwith his conduct toward his initial counsel and the public defenders appointed to represent him. Myles, 86 Ill. 2d at 270-71.

Following Myles, courts have found that a defendant abandons his right to counsel whenhis conduct toward counsel prevents the effective resolution of the case and unnecessarily delaystrial. People v. Kennedy, 204 Ill. App. 3d 681, 684 (1990). In Kennedy, defendant objected torepresentation by the public defender and, after the trial court refused to appoint defendantdifferent counsel, he requested to serve as co-counsel with the public defender. The publicdefender objected to defendant's request. The trial court advised defendant that he could proceedpro se or consent to the representation of counsel. Defendant then filed an ARDC complaintagainst his counsel and the court allowed counsel to serve only as "backup" with defendantrepresenting himself. Defendant next filed a federal suit against counsel and the trial courtallowed counsel to completely withdraw. The trial court found that defendant had abandoned hisright to court-appointed counsel and elected to represent himself during trial. Kennedy, 204 Ill.App. 3d at 683. Affirming the trial court, the appellate court noted that, in attempting to delaytrial, defendant filed numerous motions for continuances and substitution of judges and fourfederal lawsuits against the prosecutors and the judges. Moreover, defendant's complaints againsthis counsel further sought to compromise the trial court's rulings and succeeded in causing a two-year delay. The court therefore concluded that the trial court properly balanced defendant's rightto counsel with its responsibility to administer justice and found that defendant's conductconstituted a waiver of counsel. Kennedy, 204 Ill. App. 3d at 683-84.

Like Myles and Kennedy, courts examining the issue of whether a defendant's conducttoward defense counsel has amounted to an abandonment of the right to counsel have similarlyfocused on the delay in proceeding to trial and the authority the court has to refuse to allowdefendant to seek new counsel or obtain counsel on the eve of trial. In People v. Vaughn, 116 Ill.App. 3d 193, 197 (1983), this court recognized that defendant's inability to cooperate with fivedifferent court-appointed attorneys caused numerous trial delays and, therefore, the trial courtproperly denied defendant's request for another attorney on the day of trial, finding that defendantelected to proceed pro se with standby counsel. Vaughn, 116 Ill. App. 3d at 197. A defendant'srequest to change counsel shortly before the commencement of trial has been denied because ofthe trial court's inherent discretion to balance defendant's right to choose the counsel of his choicewith the orderly administration of justice. People v. Phelps, 197 Ill. App. 3d 954, 957, 959(1990); People v. Volkman, 235 Ill. App. 3d 888, 893 (1992). In both Phelps and Volkman, thiscourt did not find that the defendants abandoned their right to counsel but affirmed the trial courts'denial of defendants' request to change trial counsel shortly before or on the day of trial. Phelps,197 Ill. App. 3d at 959; Volkman, 235 Ill. App. 3d at 893.

In this case, on the day of trial, defendant did not seek to change counsel or engage in acourse of conduct that attempted to delay trial. We note that, during the State's case in chief,defendant attacked his trial counsel outside the presence of the jury, because defendant believeddefense counsel did not properly preserve the record and obtain all the transcripts regarding hisspeedy trial claim. After the court found defendant in direct criminal contempt, defendantapologized for this outburst, did not engage in similar interruptions, and did not request a newcounsel. The court then required defendant to wear leg shackles when he sat at defense table. Thus, the record reveals that unlike Myles, Kennedy, and Vaughn, defendant did not wish tochange counsel immediately prior to the start of trial or the posttrial proceedings, and did not usehis right to counsel to delay the trial proceedings or posttrial proceedings. The issue here iswhether defendant's conduct toward defense counsel constituted a waiver of counsel and justifiedthe trial court's decision to refuse to appoint new counsel for posttrial motions and sentencing.

The record indicates that after the trial court denied defendant's motion for dischargepursuant to the speedy trial act and the jury returned guilty verdicts, defendant engaged in a courseof conduct to discredit his attorney. Once defendant began this campaign of abuse, the attorney-client relationship broke down to the point that defense counsel requested to withdraw. Beforethe hearings on posttrial motions and sentencing, defendant had filed an action in federal courtagainst defense counsel and had written numerous letters to various agencies complaining ofdefense counsel's conduct. However, defendant did not request a new counsel or ask to proceedpro se for posttrial hearings. Rather, it was counsel that asked leave to withdraw. Based ondefense counsel's motion, not defendant's request, the trial court allowed defense counsel towithdraw and found that by abusing his attorney defendant waived his right to counsel.

We conclude the trial court properly allowed defense counsel to withdraw, however, atthat point, new counsel should have been appointed to represent defendant during these criticalposttrial proceedings. Defendant was placed in a position of arguing posttrial motions, presentingevidence of mitigation to support a reduced sentence, and countering the State's attempts tosentence him to consecutive terms in prison without counsel. The record does not demonstratedefendant's level of education, mental capacity, experience and understanding of the posttrial andsentencing stages of the legal proceedings.

In People v. Timmons, 233 Ill. App. 3d 591 (1992), the defendant had been representedby four different attorneys, filed numerous civil lawsuits against judges, prosecutors and formerdefense counsel, and was denied leave to replace his fourth court-appointed attorney. At thatpoint defendant stated that he would be forced to proceed pro se, and threatened to cause sucha commotion that the trial could not proceed. The trial court denied any further continuances,found his conduct was an election to proceed pro se and appointed standby counsel. Theappellate court concluded that the trial court was justified in finding defendant's conducttantamount to an election to proceed pro se. Timmons, 233 Ill. App. 3d at 596. Here, however,unlike Timmons, the defendant only changed attorneys once. Moreover, defendant, unlike thedefendant in Timmons was not given standby counsel to provide assistance and advise him at acritical stage of the proceedings. Timmons, 233 Ill. App. 3d at 596-97.

The trial court in refusing to appoint counsel for defendant's posttrial proceedings focusedon defendant's abusive conduct. We recognize that the right to counsel may not be employed asa weapon to thwart the administration of justice, Timmons, 233 Ill. App. 3d at 596. However,there is no evidence that defendant's conflicts with his attorney delayed the resolution of theposttrial proceedings and undermined the administration of justice. After the court alloweddefense counsel to withdraw, defendant told the court he wanted to resolve the posttrialproceedings on that date. The State, however, indicated it was not ready for the sentencinghearing and by order of court the defendant's sentencing hearing was continued to November 21,1997. Therefore, the trial court had ample time to appoint defendant a new attorney to representhim during posttrial proceedings and represent him at sentencing. While the State agrees thatdefendant's conduct did not delay his trial or otherwise thwart the administration of justice, theState argues that defendant's abuse of defense counsel amounted to a waiver of the right tocounsel. Although defendant developed serious hostility toward defense counsel, there is noevidence that this hostility was a tactic used by the defendant to delay hearings on his posttrialmotions or sentencing. In fact, defendant sought resolution of the posttrial proceedings onOctober 31, 1997.

We do not believe that defendant's sharp conflicts with counsel after the conclusion of ajury trial that resulted in guilty verdicts are a sufficient basis to find a waiver of the right tocounsel. During the course of defendant's sentencing hearing, defendant repeatedly requested theassistance of counsel. The sixth amendment right to counsel is an important right, and thedefendant is entitled to counsel throughout his entire trial, including posttrial proceedings. U.S.Const., amends. VI, XIV; People v. Baker, 92 Ill. 2d 85 (1982). Here, the trial court judge waswell aware of the importance of this right. He struggled to balance the defendant's right tocounsel with his obligation to administer justice and recognizing these competing interests stated:

"* * * if there's any one single right that the criminal defendant is most supremely

entitled to, seems to me that it is his 6th Amendment right to counsel. I reach thatconclusion because a lay person is very hard pressed to protect any of his rights withoutcounsel. And so it is not simply his 6th Amendment right to counsel that is at stake; it'sthe protection of all of his rights. His 4th, 5th, 6th, 8th Amendment rights which areimplicated in a criminal proceeding are rendered impaired to an extreme degree when adefendant is unrepresented."

After documenting at length the abusive conduct of defendant toward defense counsel, by bothwords and actions, the court concluded that the defendant's conduct "has completely andsufficiently demonstrated in this Court's judgment a waiver of his right to counsel * * * There'sno lawyer out there that is better qualified to represent him. And there certainly is no lawyer outthere that I am willing to expose to the viciousness of Mr. Hughes."

The trial court concluded that defendant would cause any future appointed counsel towithdraw by subjecting new counsel to abuse. However, we note that, during the course of theproceedings, while there was frequently discussion about the defendant representing himself orseeking other representation, there was only one substitution of attorneys. The withdrawal of thepublic defender and the substitution of private defense counsel took place in September of 1996and did not serve to unduly delay the proceedings. Moreover, the trial was not delayed by anyconflict between defendant and defense counsel. We recognize that a defendant can waive hisright to counsel by using that right to merely delay or frustrate the proceedings. People v.Kennedy, 204 Ill. App. 3d 681 (1990). We in no way condone the abusive conduct of defendant. However, we note that when the court was about to proceed to conduct the sentencing hearing,the State was not ready to proceed and the court ordered a continuance. Appointing defendantcounsel at that time would not have delayed proceedings since they were already delayed by orderof court. We therefore conclude that this record fails to establish that defendant's conductfrustrated or delayed resolution of the posttrial proceedings or otherwise undermined theadministration of justice so as to constitute a waiver of the right to counsel.

Based on the totality of the circumstances, the court's failure to appoint counsel torepresent defendant during the posttrial proceedings after defendant repeatedly requested theassistance of counsel denied defendant his sixth amendment right to counsel. In light of thisruling it would be premature to address the other issues raised by defendant. We vacate thesentences entered and remand the case for the appointment of counsel and hearings on defendant'sposttrial motions, motion for a new trial and sentencing.

Remanded with directions.

RAKOWSKI and GALLAGHER, JJ., concur.