People v. Cole

• Decision Date: 29 July 1968
• Docket Number: Gen. No. 67--77
• Citation: 97 Ill.App.2d 22,239 N.E.2d 455
• Parties: PEOPLE of the State of Illinois, Appellee, v. Robert V. COLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 455

239 N.E.2d 455

97 Ill.App.2d 22

PEOPLE of the State of Illinois, Appellee, v. Robert V. COLE, Defendant-Appellant.

Gen. No. 67--77.

Appellate Court of Illinois, First District.

July 29, 1968.

Harris, Holbrook & Lambert, Court Appointed Counsel, Marion, for appellant.

Archie Bob Henderson, Asst. State's Atty., Saline County, Harrisburg, for appellee.

GEORGE J. MORAN, Justice.

Defendant appeals from a jury verdict finding him guilty of resisting a peace officer (Section 31--1, Chap. 38, Ill.Rev.Stat., 1965) for which a judgment and sentence of one year in the Illinois State Penal Farm and a fine of Five Hundred Dollars ($500.00) and costs was entered.

A complaint for resisting arrest was filed with the State's Attorney of Saline County in February of 1967 against the defendant by a Harrisburg City Policeman. Complainant alleged that he arrested defendant at the Amvets Club on the afternoon of February 10, 1967 for intoxication after receiving a call for aid from the proprietores of the club. Defendant Cole was driven by the arresting officer to the police station where the car was parked at the rear of the station and both defendant and the officer alighted from the car from opposite sides. The two walked to the rear of the car whereupon defendant Cole struck and hit the officer in the face. After a struggle, complainant, with the help of a second peace officer, was able to subdue defendant and confine him in a jail cell.

On February 14, 1967, the complaint was filed and that same day defendant was arraigned and entered his plea of not guilty. A pre-trial hearing was held on April 5, 1967 in the Circuit Court of Saline County at which the following discourse transpired:

'COURT: You are here for a pre-trial not a trial, do you have an attorney?

A. No, I am not able to hire an attorney.

COURT: What does the State recommend on this case?

Assistant State's Attorney: The State is going to recommend that he go to Vandalia.

COURT: Do you have a job?

A. B & W Water Works.

Q. How much do you make?

A. $2.53 an hour.

COURT: We can't appoint an attorney for you making that much an hour.

A. I have been off on this leg for five weeks making $42 a week insurance. I might be off a couple more weeks. At this time I have got to have an attorney.

I can't make it by myself. I went to _ _ and he said I would have to have one hundred dollars ($100) and I don't have one hundred dollars ($100). I tried to get an attorney. I am not working now, I can't work with this leg. I make $2.53 an hour when I am working, I am making $42 a week now insurance. I may be off a couple more weeks. I hope to go back to work Monday, I have been off six weeks.

COURT: We can't very well appoint an attorney for you and pay him out of the County's funds if you are employed. You are not going to trial until May.

Assistant's State Attorney: It will be in the first week in May. It will be set Tuesday, May 2, 1967, on the charge of Resisting a Peace Officer.

A. Will I get notice?

COURT: No this is your notice.'

Defendant Cole represented himself at the trial on May 2, 1967. He cross-examined the State's two witnesses and testified in his own behalf in an attempt to interpose evidence of self-defense. The jury retired following final argument and returned with a verdict of guilty. The court heard evidence in aggravation and mitigation of the sentence and subsequently imposed the maximum penalty of the year confinement in the Illinois State Penal Farm plus a fine of Five Hundred Dollars ($500.00) and costs. This court considered and granted defendant's petition for leave to appeal and for appointment of counsel.

Among other contentions, appellant argues the trial court erred at the pre-trial hearing on April 5, 1967 in failing to find that defendant was indigent and thereby appoint counsel to represent defendant. We agree.

The issue of a criminal defendant's right to counsel and constitutional right to appointment of counsel was directly before the United States Supreme Court in the 1962 case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. There the court remarked that '* * * reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' Id. at 372 U.S. 344, 83 S.Ct. 796, 9 L.Ed.2d 805. The same court in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, commented: 'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has no skill in the science of law. * * * He requires the guiding hand of counsel at every step in the proceedings against him.' Id. at 287 U.S. 68, 53 S.Ct. 64, 77 L.Ed. 170. Section 113--3(b), Chap. 38, Ill.Rev.Stat., 1965, provides that, 'In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.'

Our own Supreme Court was not unmindful of the clear and forceful language employed in Gideon and Powell, when the court recently remarked, 'The obvious purpose of our statute is to protect the rights of an accused from being impaired by the absence of legal counsel.' People v. Rebenstorf, 37 Ill.2d 572, 575, 229 N.E.2d 483, 485. This being the thrust of our law concerning appointment of counsel for the indigent, the issue of a court determination of indigency is a dedicate matter and must be delicately decided, always with an eye toward protection of the rights of the accused from any possible impairment.

Formerly, our courts were required to provide counsel for a criminal defendant upon his request and his oath that he was unable to procure counsel (a condition that would have been fulfilled in the instant case.). See Chap. 38, Par. 730, Ill.Rev.Stat., 1961, and People v. Bassinger, 403 Ill. 108, 85 N.E.2d 758; People v. Garrett 43 Ill.App.2d 183, 193 N.E.2d 229. Having now entrusted the determination of indigency to the discretion of the courts, the law nonetheless requires a high degree of care and the punctilio of discretion.

In the instant case the court was advised that the State...