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People v. Bolden

OPINION FILED APRIL 17, 1978.

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

v.

CHARLES RAY BOLDEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES K. ROBINSON, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The defendant, Charles Ray Bolden, was sentenced to a 6- to 20-year term of imprisonment after a Vermilion County jury found him guilty of delivering less than 30 grams of heroin in violation of section 401(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)).

Defendant was charged with the instant offense after a parolee, James McFarland, made a controlled purchase from the defendant on November 2, 1976. On November 1, 1976, McFarland was picked up by Danville police for suspicion of possessing a stolen adding machine. At the Danville police station, an agent of the Multi-County Narcotics Enforcement Group (M.E.G.), discussed with McFarland the possibility of his participation in a controlled buy of controlled substances. McFarland agreed to make the buy. The adding machine in McFarland's possession was determined to not be stolen.

Before making the proposed purchase, McFarland was subjected to a strip search of his person and officers thoroughly searched his automobile. He was then given a quantity of marked currency with which to make the purchase. McFarland was then followed to the defendant's residence where, according to his testimony, he purchased one "cap" of heroin from the defendant at approximately 8:56 p.m. on November 2, 1976.

On appeal, defendant contends: (1) that the court failed to comply with Supreme Court Rule 401(a) (58 Ill.2d R. 401(a)) in permitting defendant to waive counsel at his preliminary hearing; (2) that the court erred in failing to suppress a $5 bill seized in the course of an illegal search of his residence; (3) that he was prejudiced by use of his prior conviction for possession of heroin for purposes of impeachment; (4) that the court improperly limited his cross-examination of the State's principal witness; (5) that the court erred in giving instructions which failed to particularize the specific criminal acts for which the defendant could be found guilty; and (6) that this case should be remanded for resentencing because the court considered a prior appealed conviction for possession of a controlled substance as aggravating evidence.

Owing to the fact that we are deciding this appeal on the basis of the first issue, we decline to address the remaining issues which we find unnecessary to our determination.

Although the defendant was represented by counsel at his trial, this was not the case at his preliminary hearing on December 7, 1976. The United States Supreme Court has held that a preliminary hearing is a "critical stage" in a criminal proceeding at which a defendant is entitled to counsel. (Coleman v. Alabama (1970), 399 U.S. 1, 9-10, 26 L.Ed.2d 387, 396-97, 90 S.Ct. 1999.) In People v. Adams (1970), 46 Ill.2d 200, 205-06, 263 N.E.2d 490, aff'd (1972), 405 U.S. 278, 31 L.Ed.2d 202, 92 S.Ct. 916, our supreme court held that preliminary hearing procedures in Illinois and Alabama are similar, thereby requiring that Coleman be followed in this State.

• 1 While a defendant is entitled to represent himself pro se, Supreme Court Rule 401(a) (58 Ill.2d R. 401(a)) provides that his waiver of counsel must be knowingly and voluntarily made after certain admonitions are given by the court. (People v. Smith (1975), 33 Ill. App.3d 725, 728, 338 N.E.2d 207.) The Rule specifically provides:

"(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." (58 Ill.2d R. 401(a).)

In the instant case, however, the defendant was not so admonished at the preliminary hearing which took place on December 7, 1976. In fact, the record reflects that the only admonition given to the defendant was that contained in the following colloquy:

"[The Court]: * * * This matter coming on for preliminary hearing on December 7, State present by Assistant State's Attorney DeArmond. Defendant Charles Ray Bolden present pro se. You understand, Mr. Bolden, that you do have a ...


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