People v. Cooper

562 N.E.2d 1171, 204 Ill. App. 3d 1035, 150 Ill. Dec. 368, 1990 Ill. App. LEXIS 1657
Procedural entryThis page is a short order in People v. Cooper. Read the opinion of the Court — 239 Ill. App. 3d 336
Appellate Court of Illinois·Decided October 25, 1990·No. No. 5—89—0408·Published

Opinion

PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

Defendant, John W. Cooper, appeals his conviction for driving while license revoked, a Class 4 felony due to its enhancement with defendant’s prior conviction for driving while license revoked, and his conviction for the Class 4 felony of driving under the influence of alcohol. He was sentenced to concurrent terms of 18 months’ imprisonment on both offenses after being found guilty at a bench trial.

At trial, evidence of defendant’s August 19, 1985, plea of guilty to two separate acts of driving under the influence of alcohol in Perry County and defendant’s March 10, ■ 1988, plea of guilty to driving while license revoked in Hamilton County was introduced into evidence. Defendant did not object to the entry into evidence of proof of his Hamilton County conviction for driving while license revoked.

On appeal, defendant argues that because the trial court record in the instant case does not demonstrate that defendant was represented or waived representation in the misdemeanor driving while license revoked guilty plea in Hamilton County, the use of that conviction to enhance the Perry County driving while license revoked charge in the case at bar to a felony was improper, and demands that the Perry County conviction be reduced to a misdemeanor.

The State resists the reduction of defendant’s conviction in Perry County from a misdemeanor to a felony, asserting that the defendant waived the issue of whether he voluntarily declined counsel prior to his guilty plea on the predicate offense in Hamilton County by failing to raise that question in the trial court in the instant case. The State further asserts that even if defendant did not make a valid waiver of counsel in the Hamilton County case, it was proper to consider his prior guilty plea conviction because he did not receive a sentence of imprisonment. The State also maintains that the transcript of the Hamilton County guilty plea established that there was, in fact, a valid waiver of counsel at the time defendant pleaded guilty. Because this court denied the State’s motion for leave to supplement the record on appeal with the transcript of the guilty plea hearing in Hamilton County case No. 88 — TR—118, the State’s latter argument cannot be considered for purposes of deciding this appeal.

Defendant contends that under Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, the use of a prior uncounseled plea of guilty to a misdemeanor is prohibited as an enhancing factor to a subsequent misdemeanor in order to make a subsequent misdemeanor a felony. He asserts that the State must prove that the defendant made a knowing and voluntary waiver of representation in the predicate misdemeanor and argues that there is no presumption that counsel was present at the Hamilton County guilty plea due to the silence of the record on that question.

On appeal, defendant does not assert that he was not properly advised and did not knowingly and voluntarily waive counsel in the Hamilton County misdemeanor driving while license revoked prosecution, nor that he was, in fact, without counsel. He failed to raise the issue in the instant case at trial and concurred in the admission of his prior conviction into evidence in the form of a certified copy of his Hamilton County conviction. Defendant failed to raise the issue of the allegedly uncounseled, involuntary waiver of his rights in the misdemeanor driving while license revoked guilty plea in Hamilton County in a post-trial motion, raising it for the first time in his appellate brief.

In order to preserve an issue for appellate review, that issue must be raised in the trial court by objection as well as by written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In the absence of such preservation, review will be limited to constitutional issues which have been properly raised at trial and which can be raised later in a post-conviction petition hearing, sufficiency of the evidence and plain error. (Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.) Because of defendant’s failure to both raise the issue at trial and preserve it in a post-trial motion, the issue is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 153, 538 N.E.2d 1255, 1257.

Even if, arguendo, the issue has not been waived, defendant’s contentions are without merit. His reliance on Baldasar v. Illinois is misplaced. In Baldasar, the defendant was convicted of theft of property not exceeding $150 in value ás a second offense, a felony. On appeal to the Supreme Court of the United States, that court held that an uncounseled misdemeanor conviction may not be used under the enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. However, the factual situation in Baldasar differs vastly from that in the case at bar. In Baldasar, the record of the predicate proceeding wherein he pleaded guilty affirmatively showed that Baldasar was not represented by a lawyer and did not formally waive any right to counsel. In the subsequent proceeding in which a misdemeanor was enhanced to a felony due to the prior theft, the defense counsel for Baldasar objected to the admission of his prior conviction, arguing at the time that Baldasar had not been represented by a lawyer in the first proceeding, thus making the conviction too unreliable to support enhancement of the second misdemeanor. The Supreme Court held that the uncounseled misdemeanor conviction could not be used to enhance a subsequent misdemeanor to a felony with a prison term.

The case at bar presents a markedly different scenario. Here, defendant has not alleged, nor has he proven, that he was indigent at the time of his prior plea of guilty to driving while license revoked, nor has he alleged, much less proven, that the State somehow prevented him from obtaining the services of retained counsel. He failed to object to the introduction into evidence of his prior conviction, unlike Baldasar where defendant’s counsel interposed what appears to have been a vigorous objection to the admission of the prior misdemeanor conviction. He stated specifically that because Baldasar had not been represented by a lawyer, the conviction was not sufficiently reliable to be used to enhance the second misdemeanor to a felony. Furthermore, Baldasar presented a record on appeal which substantiated that he was, in fact, not represented by a lawyer, nor did he formally waive his right to counsel. In the case at bar, defendant successfully resisted supplementation of the record with the report of proceedings from defendant’s 1988 Hamilton County conviction for driving while license revoked. This court does not subscribe to defendant’s broad statement of the holding in Baldasar, but rather to the more narrow interpretation of Baldasar set forth in Moore v. Jarvis (11th Cir. 1989), 885 F.2d 1565.

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People v. Cooper, 562 N.E.2d 1171, 204 Ill. App. 3d 1035, 150 Ill. Dec. 368, 1990 Ill. App. LEXIS 1657 (Ill. Ct. App. 1990).

562 N.E.2d 1171 (People v. Cooper) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Baldasar v. Illinois
446 U.S. 222 (Supreme Court, 1980)
People v. Volkmar
538 N.E.2d 1255 (Appellate Court of Illinois, 1989)
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People v. Enoch
522 N.E.2d 1124 (Illinois Supreme Court, 1988)
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