APPEAL from the Circuit Court of Perry County; the Hon. ROBERT
BASTIEN, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
In the circuit court of Perry County, in May of 1967, the defendant, John Hessenauer, waived indictment and pleaded guilty to a complaint that charged him with theft of an automobile valued in excess of $150. (Ill. Rev. Stat. 1967, ch. 38, par. 16-1.) He was sentenced to imprisonment for not less than three nor more than seven years. After evidence was heard in November of 1968, his post-conviction petition was dismissed on February 9, 1969, and he has appealed.
In his amended post-conviction petition the defendant made many charges of violation of actual or supposed constitutional rights. We find it necessary, however, to consider only the one principally urged on this appeal: that he was denied the assistance of counsel at his arraignment and that it was therefore error to accept his plea of guilty.
The record shows that the defendant and a companion, Larry Plymesser, were arrested in Washington County on May 23, 1967, in an automobile that had been reported stolen in adjacent Perry County. They were placed under arrest and taken immediately to the Washington County jail. On the way to the jail, the arresting officers questioned them without giving the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and the State concedes that any statements elicited at that time would not be admissible in evidence. Upon arrival at the Washington County jail, the two men were advised of their right to remain silent and to have an attorney.
Within five hours of their arrest, the two men were taken to the Perry County jail and brought before a judge of the Perry County circuit court for a preliminary hearing on the issue of probable cause. The judge advised the defendant of an indigent's right to appointed counsel, and the defendant specifically requested the court to appoint an attorney to represent him. After hearing evidence, the court found that probable cause existed, bound the two men over to the grand jury, and fixed bail in the amount of $4,000. At that time the judge appointed an attorney to represent the defendant and his companion.
The defendant remained in custody. At no time did his appointed attorney consult with him. About six days after the preliminary hearing, he learned from Plymesser's father that the appointed attorney had refused to take the case. On May 31, 1967, the defendant was brought before the court for arraignment, and at that time he entered his plea of guilty. It is uncontradicted that before pleading guilty he had neither consulted with an attorney nor requested the appointment of new counsel.
At the arraignment the following colloquy occurred between the trial judge and the defendant:
"JUDGE: Before I accept your plea of `Guilty' and waiver of your rights, I will explain your rights so that you may fully understand them in this matter. You have the right to be indicted by a Grand Jury because this is a serious offense. It is a felony. This is a right you can voluntarily waive and give up. Do you have any questions about a Grand Jury or its function?
JUDGE: If you choose to have a Grand Jury, you have the right to be represented by counsel and it is the duty of the State's Attorney to present evidence to the Grand Jury and they will either return a true bill if they feel his evidence is sufficient, and if not, a no true bill. Do you wish to waive that right?
JUDGE: You are willing to do that, waive your right to hearing before a Grand Jury?
The State's Attorney then read, and the defendant signed, a written waiver and consent form by which the defendant acknowledged that he knowingly waived ...