Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Judgment of conviction
affirmed but cause remanded with directions.
Defendant appeals from his conviction upon a plea of guilty to an information charging pandering, upon which plea a sentence of 2 to 5 years in the penitentiary was imposed. Defendant's motion in arrest of judgment, or in the alternative, for a new trial, was denied.
Upon this appeal it is urged that defendant's prosecution was not consistent with due process of law and fundamental fairness in that: (1) the trial court accepted an unknowing and involuntary waiver of defendant's right to counsel; (2) the trial court accepted an unknowing and involuntary waiver of defendant's right to be tried upon indictment; (3) the trial court accepted an unknowing and involuntary waiver of defendant's right to trial by jury; (4) the trial court failed to allow defendant adequate time to prepare his defense; (5) the trial court accepted an unknowing and involuntary waiver of defendant's right to present evidence in mitigation for the purpose of sentencing, and unfairly sentenced defendant to an excessively long term in the Illinois State Penitentiary; (6) the errors in the court below, taken and cumulated as a whole, violate traditional standards of due process of law, even if no single error itself violates such standards; (7) a minor defendant, under twenty-one years of age, may not be allowed under any circumstances to waive his constitutional rights unless represented by counsel.
The defendant therefore requests that the judgment of the trial court below be reversed in its entirety; or in the alternative, that such judgment be vacated and remanded to the trial court below for a new trial; or, in the alternative, that the punishment imposed by the trial court be reduced as equity and fundamental fairness demand.
We consider the several contentions in the light of decisions by the Supreme Court that the reasonable intendments not contradicted by the record be taken in favor of the validity of a judgment and that one seeking the reversal of a judgment has the burden of proof as to its invalidity. People v. Wilson, 399 Ill. 437, 78 N.E.2d 514; People v. Couvion, 33 Ill.2d 408, 211 N.E.2d 746.
Within this context we note that the issue in this case must be distinguished from those in many of the authorities cited by defendant, where such issues arise under a motion to withdraw a plea, a petition in habeas corpus, a petition in post-conviction proceedings, a petition in the nature of coram nobis, People v. Jackson, 23 Ill.2d 475, 179 N.E.2d 9, or under our Civil Practice Act, ch 110, § 72 (Ill Rev Stats, 1963); Withers v. People, 23 Ill.2d 131, 177 N.E.2d 203. Under such proceedings the issues are reviewed in the light of facts in evidence or before the court upon affidavits or other verified material, resulting in an affirmative showing that the defendant acted under some disability, or while coerced, overawed or influenced by the representations of some person in authority.
Upon the issue of defendant's waiver of counsel, it is urged that while the court satisfied its obligation to advise the defendant of his right to be represented by counsel, and to have counsel assigned if he was indigent, in language that the defendant would normally be expected to understand, nevertheless, the court failed to meet an obligation to conduct a meaningful inquiry into the particular circumstances in order to satisfy itself that the waiver of counsel, expressed orally and in writing, was intelligently given. It is suggested that acceptance of defendant's waiver of counsel was tantamount to a denial of counsel in that the court did not inquire into matters of intelligence, understanding of the crime charged, emotional state, past criminal record, financial status and support by parents and friends.
The Criminal Code, ch 38, § 113-3(a) (Ill Rev Stats, 1963) provides:
". . . If the defendant desires counsel. . . ." (Emphasis supplied.)
he shall have a reasonable time to procure counsel and consult with him before pleading to the charge. Section 113-3(b) contains the language:
". . . if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed. . . ." (Emphasis supplied.)
Supreme Court Rule 26(2) provides for the appointment of counsel and includes the language:
". . . If he desires counsel, and states under oath he is unable to employ counsel, the court shall appoint competent counsel to represent him." (Emphasis supplied.)
The appointment of counsel thus depends upon an expressed desire of the accused, except as controlled by the following provisions: ch 38, § 113-5 (Ill Rev Stats, 1963) provides:
"No person under the age of 18 years shall be permitted to plead guilty or waive trial by jury in any case except where the penalty is by fine only unless he is represented by counsel in open court."
Supreme Court Rule 26(4) provides:
"In no case shall a plea of guilty or waiver of indictment be received or accepted from a minor under the age of 18 years unless represented by counsel."
We have found no other instructions or directions within the Criminal Code or the Supreme Court Rules relating to the appointment of counsel for a minor, or to the waiver of counsel by a minor. The net result is that an accused of 18 years or better can waive indictment, waive a trial by jury and enter a plea of guilty, although not represented by counsel, unless the record discloses some element which taints the proceeding or convinces that there has been a denial of due process.
Matters of supplemental record establish that the age of defendant at the time of arraignment and plea was 18 years and 5 months.
The propriety of the waiver of counsel by the defendant in this case is to be measured by the standards established in People v. Bush, 32 Ill.2d 484, 207 N.E.2d 446. There the defendant had entered a plea of not guilty and ultimately the public defender was appointed for him. On date of trial defendant moved to be permitted to act in his own behalf. The trial court termed the request unusual and advised defendant that while he had a right to act as his own attorney, there appeared to be difficult legal problems concerning instructions and argument to the jury in the case, and that it was the court's judgment that it was advisable that defendant have an attorney. The court then advised defendant that he was entitled to counsel under the law and that the court was willing to appoint counsel for him. Defendant indicated that he understood his right and desired to waive it.
Upon appeal he contended that he was deprived of his constitutional rights to the assistance of counsel. The argument actually was that a lawyer should have been appointed to explain to the defendant his right to counsel. This argument was rejected by the Supreme Court.
In holding that the defendant was not deprived of his constitutional right to assistance of counsel, the court's opinion cited several opinions as authority for the proposition that the record must show that the defendant had been offered counsel, that there must be more than a routine inquiry as to whether he wished to have counsel, or waived such representation, and the record must show that the offer of counsel was intelligently and understandingly made.
Supreme Court Rule 26(3) provides that:
"The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person . . . unless the court finds from proceedings had in open court . . . [that the accused] understands he has a right to counsel, and ...