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People v. Miller

OCTOBER 9, 1974.

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

v.

DAVID MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Edwards County; the Hon. BRUCE SAXE, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Upon his plea of guilty the defendant, David Miller, was convicted of contributing to the delinquency of a minor child (Ill. Rev. Stat., ch. 23, § 2361(a)). From the judgment of the circuit court of Edwards County, the defendant has brought this appeal.

The defendant was charged by information filed November 16, 1972, which stated:

"That on October 26, 1972, in Edwards County, David Miller committed the offense of Contributing to the Delinquency of a Minor Child in that the said David Miller, a male person over the age of 17 years did knowingly cause Debbie Weisenberger, a female child under the again of 18 years to become a delinquent child, in that he knowingly caused Debbie Weisenberger to be present upon a public street, in the City of Albion, Illinois, after the hour of 11:00 P.M., in violation of Paragraph 2361(a), Chapter 23, Illinois Revised Statutes."

An warrant of arrest was issued, defendant was arrested and bail set at $10,000 on the same date. On the following day, November 17, the defendant was first brought before the court, acknowledged receipt of a copy of the information, the information was read to him and upon being asked if he understood the charge indicated that he did by "nodding his head yes." After further explanation of the charge and without being advised of the possible penalty he was asked: "Do you have any questions about the charges filed against you and the possible penalties?" to which the defendant responded by nodding his head no. This was followed by the following colloquy:

"By the Court: I have given you a copy of the Information. You are entitled to have a lawyer represent you?

Defendant: No.

By the Court: How much money is in his possession.

Sheriff: $100.00.

By the Court: If you desire to have a lawyer the money you have would have to be expended toward hiring an Attorney, expenses for an Attorney. When expenses for an Attorney went beyond funds you have available it is my obligation to appoint a lawyer to represent you."

No further inquiry was made to determine defendant's indigency. On several subsequent occasions during the course of the proceedings, the court advised the defendant that he was entitled to be represented by a lawyer. However, on only one of those occasions, the first above recited, did the court make an effort to advise the defendant that he had right to appointed counsel.

After further proceedings it was determined defendant was 20 years of age and defendant was sentenced to the Illinois State Farm at Vandalia for 1 year and assessed a fine of $40 and costs. Defendant remained incarcerated at the State Farm from November 17, 1972, until May 31, 1973, when he was released on bail pending appeal, by this court.

Among numerous other contentions, the defendant asserts that the court erred in accepting the defendant's guilty plea as the defendant was not represented by counsel and did not knowingly and intelligently waive his right to counsel.

In Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, the United States Supreme Court held that the sixth amendment to the Constitution of the United States (made applicable to the States through the fourteenth amendment, Gideon v. ...


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