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People v. Rednour

DECEMBER 24, 1974.

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

v.

JERRY LEE REDNOUR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Washington County; the Hon. FRANCIS E. MAXWELL, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant, Jerry Lee Rednour, from a judgment entered, on a plea of guilty, by the circuit court of Washington County for the offense of burglary and the imposition of a sentence of not less than 1 nor more than 3 years in the penitentiary.

The defendant commenced this appeal by filing a "motion for summary reversal and remand or, in the alternative, motion for vacation of sentence and remand for resentencing." The three issues raised in defendant's motion were: (1) whether the trial court complied with Supreme Court Rule 401(a)(3); (2) whether the trial court substantially complied with Supreme Court Rule 402(b); and (3) whether the trial court erred in failing to advise the defendant at his sentencing hearing of his right to counsel and his right to have counsel appointed if he were indigent. The State responded to defendant's motion, arguing that the trial court did comply with Supreme Court Rule 401(a)(3) and did substantially comply with Supreme Court Rule 402(b). The State, however, did confess that the trial court erred in not advising the defendant of his right to counsel at his sentencing hearing. Subsequently, the defendant filed a "supplement to brief and argument for the defendant-appellant." The defendant's only additional contention was that the sentence imposed upon him was excessive. The defendant advanced therein his argument that a court of review, i.e., this court, may properly reduce a sentence of imprisonment to probation without remanding the case to the trial court if it determines that the trial court's denial of probation was arbitrary. While the State, in its supplemental brief, concedes that this court has the power to reduce a sentence of imprisonment to probation, it argues that the record in the instant case does not clearly establish that probation is the only proper form of punishment and, therefore, the case should be remanded for resentencing, to allow the trial court to determine if the defendant is entitled to probation.

• 1 We will first address defendant's contentions that the trial court did not comply with Supreme Court Rule 401(a)(3) and did not substantially comply with Supreme Court Rule 402(b). At the defendant's arraignment the following admonitions, with respect to Supreme Court Rule 401(a)(3), were given;

"* * * You have the right to services of an attorney. An attorney of your choice if you choose to hire an attorney. If you show the court that you are not able to pay for the services of an attorney, you would tell the Court and the Court would be obliged to appoint an attorney for you, without charge to you. * * * * * *

At that [preliminary] hearing you are entitled to be represented by an attorney.

* * * Do either of you gentlemen have any questions in regard to these various rights which I have attempted to explain to you?

DEFENDANT: No.

COURT: Do you feel that you understand the explanation that I have made?

MR. REDNOUR: Yes.

COURT: Have either of you contacted an attorney?

MR. REDNOUR: No.

COURT: * * * do you wish to contact ...


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