People v. Swihart

• Decision Date: 15 July 1980
• Docket Number: No. 16015,16015
• Citation: 41 Ill.Dec. 631,86 Ill.App.3d 151,407 N.E.2d 1129
• Parties: , 41 Ill.Dec. 631 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Virgil T. SWIHART, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1129

407 N.E.2d 1129

86 Ill.App.3d 151, 41 Ill.Dec. 631

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Virgil T. SWIHART, Defendant-Appellant.

No. 16015.

Appellate Court of Illinois, Fourth District.

July 15, 1980.

Daniel D. Yuhas, Deputy State App. Defender, Springfield, for defendant-appellant. Thomas J. Difanis, State's Atty., Urbana, Gary J. Anderson, Deputy Director, State's Attys. App. Service Commission, Robert J. Biderman, Staff Atty., Springfield, for plaintiff-appellee.

GREEN, Justice:

Following a trial by jury in the circuit court of Champaign County defendant, Virgil T. Swihart, was convicted of resisting or obstructing a police officer. He was sentenced to 90 days' imprisonment and assessed costs of $250 for services provided by the public defender. He served 55 of the 90 days' imprisonment before this court granted defendant an appeal bond. On appeal he asserts (1) he was not properly admonished of his rights before proceeding pro se, (2) his sentence should be reduced to time served, and (3) the $250 he was ordered to pay for the public defender's services: (a) was done pursuant to an unconstitutional statute; (b) or in the alternative was arbitrary and excessive in view of the fact that defendant appeared pro se at trial, and was accorded the public defender's services at only a brief sentencing hearing.

Supreme Court Rule 401(a) (73 Ill.2d R. 401(a)) provides in pertinent part that:

"The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, * * * in open court, informing (defendant) of and determining that he understands * * * :

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed; * * * and

(3) that he has a right to counsel and, if * * * indigent, * * * counsel (may be) appointed * * * ."

Defendant's brief concedes that "(i)n this case, it cannot reasonably be argued that (defendant) did not know that he had a right to counsel or that he failed to understand the nature of the charge." Defendant's sole contention is that he was not adequately informed of the sentence he could receive. Although it is undisputed that defendant was properly advised of the potential sentence at the arraignment hearing defendant contends that it was reversible error not to again admonish him at trial.

The failure to repeat admonitions given at an earlier proceeding is an issue which has arisen with some frequency in Illinois. In People v. McCaffrey (2nd Dist. 1975), 29 Ill.App.3d 1088, 332 N.E.2d 28, defendant waived counsel at both the arraignment hearing and the date originally set for trial. One week later a jury trial began and defendant appeared pro se at both the trial and sentencing hearing, although the public defender was appointed as amicus curiae at the sentencing hearing. On appeal defendant claimed error in the trial court's failure to repeat the right to counsel admonition. The appellate court held that once a knowing and intelligent waiver has been made and not retracted it operates throughout the proceedings. Accord, People v. Saunders (2nd Dist. 1976), 37 Ill.App.3d 556, 346 N.E.2d 94 (holding defendant's knowing and intelligent waiver of counsel at both pretrial hearings and at trial to have remained operative at sentencing hearing obviating any requirement for further admonishments); People v. Bobo (3rd Dist. 1975), 33 Ill.App.3d 274, 337 N.E.2d 227 (holding no need to give further admonishments after three had been given in pretrial proceedings, and defendant still elected to proceed pro se despite express trial court recommendation to the contrary); People v. Jackson (1st Dist. 1978), 59 Ill.App.3d 1004, 17 Ill.Dec. 539, 376 N.E.2d 685 (holding any error in not informing defendant of potential minimum and maximum sentences was harmless in view of defendant's familiarity with criminal law and in view of the fact that sentence actually imposed was identical to that offered in plea negotiations); People v. Smith (3rd Dist. 1975), 33 Ill.App.3d 725, 338 N.E.2d 207 (holding failure to admonish defendant of potential sentences to be harmless error when defendant stated he knew what was involved in the case and expressly invoked his constitutional right to proceed pro se).

The McCaffrey court recognized that there was conflicting precedent and expressly refused to follow People v. Hinkle (2nd Dist. 1971), 1 Ill.App.3d 202, 272 N.E.2d 300, and People v. Miles (5th Dist. 1974), 20 Ill.App.3d 131, 312 N.E.2d 648. In Hinkle and Miles the courts recognized that sentencing was a critical stage of prosecution requiring the right to counsel unless waived. However, the Hinkle court relied upon several cases in other jurisdictions which invalidated practices which denied defendant an attorney at sentencing, even though defendant had elected such representation at trial. Where as here defendant, is properly admonished at an earlier proceeding, and expressly waives his right to counsel there is no reason to assume it has been...