Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Maurice W. Lee, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1977.
Following a bench trial in the circuit court of Cook County, defendant, Aubrey Scott, was convicted of theft and fined $50. The appellate court affirmed (36 Ill. App.3d 304), and we granted defendant leave to appeal.
On January 19, 1972, defendant was apprehended for shoplifting merchandise valued under $150, and was charged with theft pursuant to section 16-1 of the Criminal Code of 1961, which provided:
"A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both." Ill. Rev. Stat. 1971, ch. 38, par. 16-1.
Defendant was released on bail pending his first appearance. On the scheduled date, he appeared in court without counsel. The record indicates that the court informed the defendant of the charge and asked him if he was ready for trial. Defendant responded that he was ready for trial, the court directed the clerk to again read the charges, and defendant pleaded not guilty. A jury trial was waived, and a bench trial followed resulting in defendant's conviction and fine. At no time during the proceeding was defendant advised of a right to have the assistance of counsel, or, if indigent, the right to have counsel appointed.
The record indicates that defendant was an indigent at the time of his initial appeal, but there is no indication of his indigency at trial. We will, however, assume for the purpose of this appeal that defendant was indigent at the time of his trial.
Defendant initially contends that all persons charged with a criminal offense which, upon conviction, carries the potential for imprisonment are constitutionally entitled, if indigent, to have counsel appointed, even if the conviction results in only the levying of a fine. Defendant, however, readily concedes that the United States Supreme Court has not to date extended the right of counsel this far.
In Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, the Supreme Court extended the right to counsel to all criminal prosecutions which resulted in actual imprisonment. The Argersinger court stated:
"We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts." 407 U.S. 25, 37, 40, 32 L.Ed.2d 530, 538, 540, 92 S.Ct. 2006, 2012, 2014. Accord, People v. Morrissey (1972), 52 Ill.2d 418; People v. Coleman (1972), 52 Ill.2d 470.
Recently, this court ruled that a defendant is not entitled to the appointment of counsel under either the Federal or Illinois constitutions where he or she is charged with an ordinance violation which provides for a fine only upon conviction. (City of Danville v. Clark (1976), 63 Ill.2d 408, 412-13, cert denied (1976), 429 U.S. 899, 50 L.Ed.2d 184, 97 S.Ct. 266.) We are unpersuaded by defendant's argument that the mere possibility of incarceration upon conviction should trigger a defendant's constitutional right to counsel, for there exists no possibility of incarceration if counsel was not properly waived. We are not inclined to extend Argersinger and Morrissey merely because a defendant is charged with a statutory offense which provides for various sentencing alternatives upon conviction. See Nelson v. Tullos (Miss. 1975), 323 So.2d 539; Mahler v. Birnbaum (1972), 95 Idaho 14, 501 P.2d 282.
Defendant next contends that he was statutorily entitled to the appointment of counsel pursuant to either section 109-1(b)(2) or section 113-3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, pars. 109-1(b)(2), 113-3(b)). Section 109-1(b)(2), set forth in the article entitled "Preliminary Examination," provides ...