People v. Morris

435 N.E.2d 1344, 106 Ill. App. 3d 689, 62 Ill. Dec. 372, 1982 Ill. App. LEXIS 1885
CourtAppellate Court of Illinois
DecidedMay 19, 1982
DocketNo. 17381
StatusPublished
Cited by1 cases

This text of 435 N.E.2d 1344 (People v. Morris) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Morris, 435 N.E.2d 1344, 106 Ill. App. 3d 689, 62 Ill. Dec. 372, 1982 Ill. App. LEXIS 1885 (Ill. Ct. App. 1982).

Opinion

PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant appeals his convictions and sentence resulting from pleas of guilt to forgery and theft over $150 in violation of sections 17 — 3(a) (3) and 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 17 — 3(a)(3), 16 — 1(d)(1)). Following his guilty pleas, defendant was sentenced to 4 years’ imprisonment.

On appeal, defendant argues that he did not knowingly and voluntarily waive his right to counsel before pleading guilty. He also challenges the severity of his sentence, the failure of the trial court to consider mitigating factors in reaching that sentence, and a delay of over two years between the filing of the notice of appeal in the trial court and the docketing of the appeal in this court.

Briefly summarized, the facts indicate that defendant was charged by information with felony theft on the basis that defendant obtained control over a stolen social security check with the intent permanently to deprive the rightful owner of the use of the proceeds of the check. A second count of forgery was filed charging that defendant endorsed the stolen social security check in the name of the payee with intent to defraud.

Defendant first appeared on both of these charges in the trial court on July 11, 1978. A docket entry in the common law record indicates that he appeared without counsel and acknowledged the receipt of a copy of the charges. The trial court also explained the charges and penalties to him as well as defendant’s right to a prompt preliminary hearing. Defendant was then advised of his right to counsel and indicated to the court that he wished to waive counsel and plead guilty.

Defendant’s second appearance was the next day at which time the State’s Attorney represented to the court that defendant’s initial appearance had been continued to the second hearing date because of the absence of a court reporter the previous day and the fact that a record needed to be made of the proceedings when defendant was appearing without counsel. Immediately thereafter, the trial court engaged in the following colloquy with the defendant:

“The Court: You are here without counsel. Is it your desire to have a lawyer represent you?
[Defendant]: No, sir.
The Court: Do you understand if you are without funds to hire a counsel the Court will appoint one for you?
[Defendant]: Yes, sir.
The Court: Are you at this time waiving your right to have a lawyer present?
[Defendant]: Yes, sir.
The Court: What do you wish to do on this charge?
[Defendant]: Plead guilty.”

After this exchange, the trial judge again informed defendant of the charges against him, correctly described the penalties applicable to those charges, and inquired whether defendant understood that he was giving up the right to a jury, to subpoena witnesses, and to confront the witnesses against him. The court also admonished defendant that if his request for probation was allowed and he subsequently violated it, probation could be revoked and he could be resentenced. Defendant indicated that no promises had been made to him and a factual basis for the charges was supplied by the State. Thereafter, the trial court accepted the pleas of guilty and entered judgment thereon. The cause was continued for sentencing and a presentence investigation.

On October 16, 1978, defendant appeared without counsel and was advised of his right to counsel for the sentencing hearing. Upon defendant’s request, the public defender was appointed. Concurrent 4-year terms of imprisonment were imposed on October 20,1978.

On November 13, 1978, appointed counsel filed a petition to withdraw the guilty plea, alleging only that on both the date defendant pleaded guilty and the date he was sentenced he was not mentally competent to understand the nature of the proceedings, the consequences of entering a guilty plea or his sentence, and was not competent to assist his counsel in preparing for the sentencing hearing. A subsequent amendment to the petition to withdraw the guilty pleas was allowed. The amendment alleged that prior to the entry of the pleas, defendant was assured by police that if he would make restitution and enter a plea, he would receive probation. After a hearing on the allegations of the petition, the petition was denied. A notice of appeal was timely filed in the trial court on April 20, 1979. That notice, however, was not transmitted to this court for docketing until August 17,1981.

Defendant’s first contention is that his guilty pleas should have been vacated because he did not knowingly and voluntarily waive his right to counsel before pleading guilty. It is alleged that the trial court did not properly admonish defendant under Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)) before accepting defendant’s waiver of counsel prior to the guilty plea.

Supreme Court Rule 401(a) provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

Relying upon this court’s recent decision in People v. Derra (1981), 92 Ill. App. 3d 1106,416 N.E.2d 688, in which this court held that trial courts are required to strictly comply with the requirements of Supreme Court Rule 401(a), defendant argues that he should be allowed to plead anew because he was not informed of the nature of the charges and the minimum and maximum sentences possible before being informed that he had a right to counsel, and appointed counsel if he was indigent.

We conclude that defendant’s argument is without merit. The transcript of the proceedings at the guilty plea clearly demonstrates that defendant was correctly informed of the charges against him and the possible penalties. Thus, defendant’s only challenge to the procedure employed by the trial court rests on the theory that the trial court must admonish a defendant as to these matters before proceeding to determine whether a defendant understands his right to counsel and wishes to knowingly and intelligently waive this right. We disagree.

Rule 401(a) does not prescribe any particular order in which admonishments must be given. The trial court’s conclusion that defendant has knowingly waived his right to counsel is based on the totality of a defendant’s response to the court’s admonitions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Johnson
462 N.E.2d 930 (Appellate Court of Illinois, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
435 N.E.2d 1344, 106 Ill. App. 3d 689, 62 Ill. Dec. 372, 1982 Ill. App. LEXIS 1885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morris-illappct-1982.