APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 17, 1972.
R. Eugene Pincham, an attorney, was found guilty of contempt of court and fined one hundred dollars. On appeal he raises two grounds of error: (1) that the contempt finding was based on erroneous factual and legal premises, and (2) that he was denied due process of law, assistance of counsel, the right to be advised of the charges against him and an opportunity to be heard. The facts follow.
On May 1, 1969, contemnor-appellant filed a post-conviction petition in the Circuit Court of Cook County on behalf of his clients Frank Luzi and Dante Zorzi, alleging that the trial court erroneously accepted their waiver of a right to a jury trial. The State filed a motion to dismiss the petition and on June 23, 1969, a hearing was had on the State's motion. The court denied the motion and gave the State leave to answer. At the hearing the contemnor-appellant asked the court whether the two defendants could be brought back from the State Penitentiary. The court denied the request, but stated that the defendants should be present at the hearing on the merits of their petition and that they would be ordered brought back when the date for hearing was set. At the conclusion of that hearing the case was sent to Judge Power for trial.
The case first came before Judge Power on September 16, 1969, but was continued because of the absence of the contemnor-appellant. He then sought and was granted a further continuance because he was engaged in trial elsewhere and the case next came on to be heard on November 13, 1969. At that hearing the court directed that defendants' original trial counsel, John Cogan, should be in court to testify and the case was again continued. At the next scheduled hearing the contemnor-appellant was granted another continuance. On the next hearing date, December 4, 1969, Cogan did not appear and the case was continued to December 11th. On the 11th Cogan again failed to appear and the court ordered Pincham to have a subpoena issue for him. During the proceedings on December 11th when the judge discussed the matter of getting Cogan into court, Pincham asked the court to have the defendants brought up from the State Penitentiary if the court granted a hearing. The judge stated that he wanted Cogan in court to contradict the defendants' statements.
At the next scheduled hearing date the contemnor-appellant failed to appear and the case was continued to January 13, 1970. Again Pincham was not present and the judge stated that an order to show cause why he should not be held in contempt of court should issue against him and that he be required to appear and answer. Later that day, however, Pincham did appear in court, was granted another continuance and the rule to show cause did not issue. Again the court asked Pincham to insure the presence of Cogan at the next hearing.
At the next scheduled hearing on January 27, 1970, the contemnor-appellant again failed to appear and the court ordered that a rule to show cause why he should not be found in contempt of court should issue against him and that the hearing on the rule would be held on February 3rd. Pincham was present in court on February 3rd and in response to the rule to show cause why he should not be found in contempt, offered his apology to the court and stated that he had been busy in another courtroom on the day the rule issued. The court replied that Pincham was being unfair and somewhat disrespectful in failing to appear without letting the court know that he was engaged and when he would be available so no one would be inconvenienced. Argument began on the defendants' petition. The following colloquy took place:
"Mr. Pincham: * * * we feel that if the court is going to hear evidence, the petitioners should be brought before the bar to offer whatever evidence they can in support of their allegations.
The Court: You have never raised this issue. This has been pending for sometime. You are going to be fined one hundred dollars for contempt * * *.
Mr. Robbins (Assistant State's Attorney): Judge, I'd like to respond. This is not a true statement.
The Court: You have been raising various issues. I brought everybody in here today to have this hearing. You never indicated that you wanted these people back here * * *. Now this is most dilatory * * *. But you are going to be fined one hundred dollars for being in contempt and for exercising such dilatory tactics.
Mr. Pincham: Judge, from the very beginning and I'll go back and get the transcript we have taken this position.
The Court: No, you haven't. This is the first time that you ever mentioned that you wanted ...