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People v. Buster

DECEMBER 7, 1966.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BUCK BUSTER, DEFENDANT, AND JAMES D. REYNOLDS, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Warren County; the Hon. EDWIN BECKER, Judge, presiding. Order finding respondent guilty of criminal contempt of court affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The respondent, James D. Reynolds, was cited to appear and show cause why he should not be held in contempt of the Circuit Court of Warren County for his failure to appear as the attorney of record at two trial settings of the case entitled The People of the State of Illinois v. Buck Buster. An answer was filed to the citation by the respondent, and after a full hearing the court entered an order finding him guilty of criminal contempt and imposing a fine against him in the sum of $50. Respondent appealed from this order to the Third District Appellate Court, which transferred the case to this court for opinion.

The facts are not without some dispute, but there was evidence before the court — including the testimony of the judge who ordered the issuance of the citation, the State's Attorney who prosecuted the criminal case, the respondent and his secretary — sufficient for the court to find the following: That on May 17, 1963, an Information was filed charging Buck Buster, herein called the defendant, with driving a motor vehicle while under the influence of intoxicating liquor; that the defendant was arraigned on June 27, 1963, entered a plea of not guilty and demanded a jury trial; that the defendant, at the time, advised the court that he was represented by the respondent; that the court noted this on the docket as a courtesy; that the respondent, however, was not in court; and that prior to this, on May 20, 1963, he had written to the State's Attorney advising him that he represented Buck Buster.

Thereafter, respondent had several conversations with the State's Attorney regarding the possibility of reducing the charge against his client. On October 18, 1963, the cause was set for trial on November 12. Notice of trial date was given to respondent by mailing to him a copy of the trial calendar, on which he was shown as attorney for defendant. On November 4, 1963, the State's Attorney and the respondent had a telephone conversation in which the former told the latter that the case would probably come up for trial the week following the 12th of November and that he would let the respondent know the exact date.

On November 6, 1963, the respondent wrote a letter to the State's Attorney in which he confirmed the telephone conversation and advised that he would be ready for trial upon reasonable notice. He further asked to be advised of the status of the calendar as soon as possible, and stated that he had tentatively marked such trial date on his own calendar for November 19 at 10:00 a.m.

On November 8 and 11, the State's Attorney again talked to the respondent's office, the last call being at the request of the judge, to advise the respondent that the matter was definitely set for November 19. However, on November 18, the matter was taken off the jury calendar and continued until the next jury setting.

During this period of time, three continuances were shown on the docket sheet, all as having been granted on the motion of the defendant. It is undisputed, however, that the respondent at no time personally appeared before the court and did not file any written pleadings seeking a continuance. The judge testified that on one occasion he received a telephone call from the respondent's office advising the court that the respondent could not be in court on a certain date; and that on at least one of the other continuances, the State's Attorney advised the court that the respondent could not be in court at the time the matter was set.

The case was then set as the first case on May 4, 1964, and notice thereof was sent to respondent by the court on April 17, 1964. In the interim, the State's Attorney and the respondent had discussions regarding the amount of the possible fine if the defendant were to plead guilty. The respondent testified that on April 30, 1964, he agreed with the State's Attorney that the defendant would plead guilty to the charge if the State would recommend a maximum fine of $300 with payment to be made within 120 days.

On May 4, the day set for trial, the defendant ostensibly appeared to plead guilty to the charge. The respondent was not with him. In the meantime, the State's Attorney had received a record of the defendant's past offenses. In view of this record, the State's Attorney was of the opinion that the court would probably levy a fine in excess of $300 — which was more or less customary for a first drunken driving offense — and he so advised the defendant and telephoned the respondent at the same time. The respondent then talked to the defendant, the State's Attorney and the judge on the telephone. In this conversation the judge refused to make any commitment relative to a maximum fine. As a result, the defendant did not plead guilty; and the judge advised the respondent that the State's Attorney would contact him later that day regarding a definite trial date in the immediate future. In this telephone conversation, the respondent asked the defendant to come over to his office immediately to prepare for the trial and pay the necessary trial fee.

Late in the afternoon on May 4, the State's Attorney called the respondent indicating that the case might be tried on May 6. On May 5, the State's Attorney again called the respondent's office at 10:00 a.m., and advised the respondent's secretary that the case would go to trial at 10:00 a.m. sharp, the following morning. This call was made at the request of the judge.

Twenty-eight jurors reported on May 6 and the State was ready to proceed at 10:00 a.m. Neither the respondent nor the defendant appeared at this time. However, the defendant appeared — alone — at 11:00 a.m. In the meantime, the State's Attorney had called the respondent's office and was told by his secretary that the defendant had not been able to produce the necessary trial fee and that the defendant would be in court alone. Thereafter, the court ordered the citation to issue for the respondent to show cause why he should not be held in contempt for his failure to appear at the May 4 and May 6 jury trial settings.

This proceeding does not question the propriety of the respondent's representation of his client insofar as the attorney-client relationship is concerned. The respondent first sought to have the charge against the defendant reduced and he devoted substantial efforts toward this end. He then sought assurance of the State's Attorney and the court that the fine to be imposed would be no greater than $300. Again, he was unsuccessful — but through no lack of endeavor on his part. When it became apparent that all of his exertions were to no avail and that trial could no longer be delayed or avoided, the respondent made preparations on behalf of his client to be ready for trial. It is conceded by all parties that the respondent did not appear before the court because his client did not advance the trial fee.

The issue before this court concerns the relationship of the respondent to the court before which the defendant's case was pending — the relationship of the respondent to the court, as an attorney and as an officer of the court. The respondent contends that since he did not file any written appearance or any written pleading in the case, he was not the attorney of record and was not obliged to appear before the court at the time the matter was set for trial.

Under the factual circumstance outlined above, we deem it immaterial that the respondent filed no written entry of appearance or written pleading. His course of conduct for a period of approximately one year is totally inconsistent with his present assertion that he was not representing his client before the court. The respondent, without reservation, advised the State's Attorney that he represented the defendant in the case in question. Thereafter, the defendant stated in open court that the respondent was his attorney. The respondent was from a city other than where the arraignment took place, and the court, as a matter of courtesy, entered respondent's appearance of record. As we ...


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