APPEAL from the Circuit Court of Peoria County; the Hon. ESPEY
C. WILLIAMSON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 26, 1973.
By complaint, defendant, Zola Mae Bailey, was charged with the misdemeanor offense of battery. She pleaded guilty in the Circuit Court of Tazewell County and was sentenced to two years probation. She has appealed contending that her conviction and sentence were not in accord with applicable constitutional requirements.
The offense charged was described as occurring on March 18, 1972. A complaint was signed by the victim on March 20. Defendant was arrested on March 22 and released on bail secured by a real property bond of other persons. The case was continued until April 12 and on that date she appeared in court, pleaded guilty and was sentenced to probation with a special condition requiring payment of medical expenses of the victim.
On this appeal the defendant argues generally she was denied due process because the general procedure, statute and rules, failed to accord her fair treatment because she was indigent. In particular, defendant argues her right to legal representation was violated. On the other hand, the State argues the common law record shows defendant's plea of guilty was voluntary and the rules regarding legal representation of an indigent charged with a criminal offense were not applicable as defendant was not in fact imprisoned.
From the common law record there are three items which form the basis of this dispute and which are essential to our resolution of the issue.
At the bottom of defendant's copy of the complaint appears the following,
You are hereby notified that in connection with the charge in the complaint herein you are entitled to a trial by jury or by the Court without a jury and you are entitled to be represented by counsel of your choosing, with the right to have counsel appointed for you in cases involving a jail sentence upon a finding of guilty; * * *."
No verbatim transcript of the proceeding was made. On April 12 defendant signed a written plea of guilty. This document states that the defendant understood the nature of the charge against her and the penalty to which she could be subjected; also that she had a right to plead not-guilty, persist in the plea and to have a trial by jury. The plea further stated she understood a plea of guilty waived the right of trial and the right to confront witnesses against her. This plea also represented no force, threats or promises had been exerted to obtain the plea and she was 33 years old.
On April 12, the trial judge included the following in his order:
"The Court finds that the Defendant is of the age of 33 years or older; and further that Defendant is present in open Court and, being fully advised of his rights herein, understandingly waives his right to a jury trial [and] Enters a plea of guilty after being informed of the maximum penalty provided by law."
It is undisputed the record fails to show defendant was represented by an attorney and the parties concede in fact she was not so represented.
Defendant has referred to several constitutional provisions of this State and of the United States as they have been discussed and applied in the recent case of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. As a general rule Argersinger declares that so far as legal representation is concerned there should be no differences based on whether the offense is regarded as ...