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People v. Silva

OCTOBER 20, 1971.

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

v.

LUIS CORRAL SILVA, A/K/A CORRAL LUIS SILVA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. COLLINS, Judge, presiding.

MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

The defendant, Luis Corral Silva, was indicted for murder. The defendant pleaded guilty to the lesser included offense of voluntary manslaughter. The trial court sentenced him to not less than eight, nor more than ten years, in the Illinois State Penitentiary. On appeal the defendant's contentions are:

(1) That the trial court failed to inform the indigent defendant of his right to appointed counsel;

(2) That the trial court failed to conduct a full and proper hearing in aggravation and mitigation; and

(3) That the trial court imposed an excessive sentence.

The facts are as follows:

In February, 1969, the defendant was indicted for murder. He pleaded not guilty and on May 2, 1969, his trial and jury selection commenced. The defendant was represented by private counsel of his own choosing. Eight jurors were selected and sworn in and the case was continued to the following Monday, May 5, 1969. On Monday, May 5, 1969, the defendant changed his plea to guilty of voluntary manslaughter and the eight selected jurors were dismissed.

An official interpreter and a private interpreter were present at the trial since the defendant had some difficulty with English. After admonishing the defendant of the consequences of his plea, the trial court found him guilty of voluntary manslaughter.

The stipulated facts were that the defendant fatally shot Hector Enrique Herrera, who was unarmed, five times in both the chest and through the back. A young girl, who was a bystander, was struck in the arm by one of the bullets. After a hearing in aggravation and mitigation, the defendant was sentenced.

• 1 The first contention raised by the defendant on appeal is that the trial court failed to inform the indigent defendant of his right to appointed counsel. The defendant bases this argument on his statement to the court that "he will accept it (guilty plea) because he hasn't got any money to continue fighting his case." In his brief, however, the defendant totally ignored his attorney's reply:

"Well, your Honor, if the Court please, I want to represent to the Court that the fee has been paid in full, has been paid for some time, I have not asked Mr. Silva or members of his family for any more money either directly or by inference."

The court passed the case at the Assistant State's Attorney's suggestion so that the defendant, his attorney, the interpreter, and the defendant's family could get together and clarify the situation. The court informed the defendant of his right to appeal:

"Now, Mr. Silva, I must advise you of your right to appeal and of your right, if indigent, if you cannot afford it, to be furnished without cost to you the transcript of the proceedings and with an attorney to handle your appeal. Mr. Farina, (the defendant's attorney) I want to confer with Mr. Silva as to whether or not he wants to appeal, if he wants to file a notice of appeal with the clerk he may do so, you have thirty days to determine whether or not you want to appeal. Confer with Mr. Silva and advise the court what you want to do."

The contention that the trial court failed to inform the defendant of his right to appointed counsel is not supported by the record. At the trial, the defendant was represented by private counsel and had two interpreters present. We are not ...


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