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People v. Losacano

JUNE 11, 1975.

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

v.

PETER M. LOSACANO, SR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McDonough County; the Hon. U.S. COLLINS, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Peter Losacano, Sr., defendant, was charged with four offenses of driving while license was revoked. Defendant entered a plea of not guilty to the initial charge, and after a bench trial in the circuit court of McDonough County defendant was found guilty. Subsequently defendant pleaded guilty to the remaining charges, and on September 18, 1973, the court sentenced defendant to four concurrent 1-year terms of incarceration at the Illinois State Farm.

On August 6, 1973, Peter Losacano, appeared in court in response to a complaint issued to him by a police officer charging him with driving while license revoked. Between August 6 and September 10 Losacano was charged with three additional counts of driving while license revoked.

Defendant entered his written plea of not guilty to the initial charge and moved for appointment of counsel. He swore to and filed an affidavit of assets and liabilities. The affidavit showed $12,000 in liabilities, no real assets, no car, no valuable personal property, no bank accounts, no cash on hand, and $1,200-per-month income from defendant's self-employment as a contractor. (Motor vehicles used in his contracting business were apparently in his wife's name.) Defendant's motion for appointment of counsel was denied.

On September 10, 1973, defendant appeared in court and moved for a continuance. The court denied the motion and held a bench trial on the initial charge. Losacano represented himself. An employee of the Secretary of State's office in Springfield and the arresting officers testified for the State. Losacano testified on his own behalf. The court found him guilty.

The assistant State's attorney then advised the court of the three additional charges pending against Losacano. The court continued the case to allow defendant to consult an attorney about whether to plead guilty to the additional charges.

Losacano entered pleas of guilty to these charges on September 18, 1973, and the court then held a sentencing hearing on all four offenses. At the conclusion of the hearing the court sentenced defendant to four concurrent 1-year terms of incarceration at the Illinois State Farm.

• 1 Defendant's first assignment of error is his claim that his conviction can not be sustained because of the absence of a verbatim transcript of proceedings required by Supreme Court Rules 401 and 402 (Ill. Rev. Stat. 1973, ch. 110A, pars. 401, 402). As we have previously held in People v. Hopping, 16 Ill. App.3d 275, 305 N.E.2d 610, (aff'd, 60 Ill.2d 246,) and People v. Kline, 16 Ill. App.3d 1017, 307 N.E.2d 398, (aff'd, 60 Ill.2d 246,) such rules at the time of these convictions were not applicable to misdemeanor charges. We hold a verbatim transcript was not required in misdemeanor cases.

• 2 In the absence of a verbatim transcript the defendant pursuant to leave granted by this court filed certified bystander's reports. Reports are referred to in plural because each of two judges certified a report relating to the portion of the proceedings in which he participated. Later, the People moved for leave to supplement the record to include other facts or assertions not theretofore presented to the trial court, not included as a part of a bystander's report and not certified by the trial court. The proposed supplement to the record is in the form of two bystander's reports by the two judges contradicting and expanding the certified bystander's reports. No claim has been made that the bystander's reports filed by the defendant were improperly certified by the trial judges nor is any claim made that the State was deprived of an opportunity to participate in the drafting of such bystander's reports. This motion and the defendant's objections thereto were taken with the case for consideration by our order of June 18, 1974. The People now concede under the authority of People v. Rosen, 128 Ill. App.2d 82, 261 N.E.2d 488, the motion to supplement the record is improper, and accordingly such motion is denied.

• 3 Defendant's next assignment of error relates to his claim the trial court erred in denying his request for the appointment of counsel to represent him in the trial court. Relying on People v. Cole, 97 Ill. App.2d 22, 239 N.E.2d 455, and People v. Gustavson, 131 Ill. App.2d 887, 269 N.E.2d 517, the defendant claims the facts disclosed by his affidavit regarding his income and financial condition raised a doubt of his indigency and as a consequence the defendant was as a matter of law entitled to free representation by court-appointed counsel.

• 4 While we agree representation by counsel is in misdemeanor cases a fundamental right since Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, nevertheless the right of representation does not include the right that such representation be afforded without charge to the defendant merely because of the desire therefor by the defendant. Even believing that a liberal policy is appropriate when the question of indigency arises favoring a course of action which will afford representation we agree with the determination of the trial court that the defendant was not indigent, at least in the sense that it would be unreasonable to expect defendant to pay for the services of counsel in view of his income and assets. Unlike the situation in Cole, there was no showing by the defendant that he was unable to pay the fees requested by an attorney or that he had even talked to an attorney about fees for his representation, and, in the instant case, the defendant's monthly income was substantial. Accordingly, we find no merit to defendant's contention that the trial court erred in failing to afford him representation without charge.

• 5 Nor do we believe the record supports defendant's claim he had not waived his right to be represented by counsel. Defendant's position in this regard seems to be that the trial court did not specifically advise him of his right to be represented by counsel or, more specifically, to be represented by counsel of his own choosing. It is true the bystander's report fails to disclose that defendant was advised of his right to be represented by private counsel of his choice or that he waived such right. Yet when the record is considered as a whole we believe it conclusively demonstrates that defendant was aware of his right to be represented by an attorney, and making no effort to secure such representation, it can be deemed he waived such right. This is not a case like People v. Lyons, 19 Ill. App.3d 294, 311 N.E.2d 370, where the conviction predated Argersinger v. Hamlin, 407 U.S. 25, L.Ed.2d 530, 92 S.Ct. 2006, and consequently the court on review applying the Argersinger rule retroactively recognized the defendant had not been advised of his right of representation in the event of indigency since such admonition had not theretofore been required. In the instant case defendant was not only aware generally of his right to be represented by an attorney but also to be represented by an attorney appointed by the court for him without charge in the event of his indigency. Such conclusion finds further support in defendant's conduct after he was found guilty of the first charge. Before pleading or taking action with respect to the other charges he was given time to consult with an attorney, and the disposition of such charges was delayed, affording defendant an opportunity to consult with an attorney. Under such circumstances, even in the absence of a specific admonishment, we believe the defendant was aware of his right to be represented by an attorney of his own choice and effectively waived such right.

Defendant next argues he never expressly nor understandingly waived his right to trial by jury during the trial court proceedings. This argument is applicable to two different factual aspects of the case because, as indicated above, the defendant pleaded not guilty to the first charge and guilty to the three subsequent charges.

In response to the first charge defendant first appeared in court on August 6, 1973, and at that time asked for the appointment of counsel and filled out and filed an affidavit relating to his finances. As indicated earlier, defendant's request for appointment of counsel was denied. In the file of the case there is a form dated and filed August 6, 1973, signed by the defendant pleading not guilty and waiving trial by jury. In the bystander's report there is no mention of defendant's execution of this document, and such report is completely silent regarding anything that transpired between court, State's attorney and defendant regarding this written plea and waiver. After his trial before the court without a jury on September 10, 1973, defendant was found guilty, and on the same date the State presented evidence in aggravation of the penalty to be imposed. After presenting such evidence the State advised the court of the pendency of the three additional charges for driving while license revoked, and the defendant was advised he could have the penalty assessed on all four charges at one hearing. Defendant requested time to consult with an attorney, and the case was continued until the next day. Defendant did not appear in court on the next day, his bond was forfeited and on the following day, September 12, 1973, he appeared in court in custody of the sheriff. The case was continued until September 18, 1973, and on that date defendant testified in his own behalf concerning mitigation of the sentence and indicated his desire to plead guilty to the other three charges. So far as the bystander's report is concerned defendant's pleas were apparently accepted, because he was sentenced to four 1-year concurrent terms at the State farm as recommended by the State's attorney. Again, the bystander's report is silent concerning any admonitions, advice or the waiver of any rights. Specifically the bystander's report is silent concerning any advice about trial by jury or its waiver by defendant or advice concerning any of the other matters quoted in the Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). Recognizing the insufficiencies in the bystander's reports, the State attempted to enlarge the ...


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