APPEAL from the Circuit Court of Rock Island County; the Hon.
JOSEPH G. CARPENTIER, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from the Circuit Court of Rock Island County finding defendant Gregory L. Sangster guilty of the offense of attempted burglary, following a jury verdict finding defendant guilty as so charged. Following a presentence report and hearing, the trial court sentenced defendant to a term of from 2 to 6 years in the penitentiary.
On appeal in this court, the sole issue raised by defendant is the contention that he was denied a fair trial because the judge, who defendant contends had notice before the commencement of the trial that he had previously represented defendant as defense counsel in another unrelated criminal proceeding, failed to recuse himself sua sponte.
It appears from the record that defendant was observed standing near the door of a tavern at 5:51 a.m. on May 6, 1975. He was wearing gloves and had an object in his hand. Following a chase, defendant was apprehended and arrested. At the time of the arrest, defendant was neither wearing gloves nor carrying an object.
Upon returning to the tavern, the officers found that the upper bolt type lock on the door was loose and that the hasp padlock, though still intact at the door, was pulled from the door. Later, during a general search of the area, the officer found a glove hanging from a gutter on a storage shed in the area, and retrieved a hammer and screwdriver from another roof. An FBI tool marks identification specialist testified that the retrieved hammer had caused scratches on the hasp lock on the door to the tavern. Defendant did not testify in his own behalf.
At the sentencing hearing, on October 14, 1975, defense counsel requested that the trial judge not take into consideration in sentencing, matters relating to a 1971 burglary, in which the trial judge had acted as counsel for defendant. The following discussion took place at the sentencing hearing:
"The Court: Is there any matter that you wish to contest?
Mr. Walker: The only matters, Your Honor, I would bring to the Court's attention are in his adult record certain matters under consideration where the 1969 burglary and a 1971 burglary in which this Judge, I believe acted as counsel for defendant and I would ask that these matters not be taken into consideration in sentencing since, obviously, there's somewhat of a conflict of interest in these particular matters.
Defendant: How about this?
The Court: This is the first time, Mr. Walker, that you've made any objection; is that correct, the fact that I was counsel for the defendant at one time?
Mr. Walker: I believe, actually, it was brought to your attention by the defendant himself, I believe, in the morning prior to trial in chambers just preceding entry into the Court room. I don't believe there's anything actually in the record.
The Court: But did you file a motion for substitution?
Mr. Walker: I did not file a motion for substitution. The defendant now informs me that he requested I file a motion for substitution. I do not recall that request. I recall the request for continuance based upon the inadequate time for preparation. It's my recollection that the defendant himself brought it to the Court's attention about these particular matters. I only bring it up now as a matter of conflict of interest in the matters in the criminal record that is now before the Court in this consideration.
The Court: Well, I think in this situation at this late a time that I can't honor your request in this matter and I must go by the presentence report. If you have any matters that you wish to contest in this ...