APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Nathaniel Spurlark, was found guilty of possessing more than 30 grams of cocaine, a controlled substance (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(a)(2)). He was sentenced to a term of 15 to 30 years imprisonment.
On appeal, defendant contends: (1) he was denied the constitutional right to be defended by counsel of his choice; (2) the trial court's failure to conduct a full evidentiary hearing on his motion for substitution of judge constituted reversible error; (3) the trial court abused its discretion when it denied defense counsel's request for a continuance; and (4) the sentence imposed must be vacated and the cause remanded for resentencing because the presentence investigation report (Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1) was not made available to defendant's counsel at least three days prior to the imposition of sentence.
We affirm the trial court.
The pertinent facts disclose that in May 1973 defendant was indicted for possession of cocaine, a controlled substance (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(a)(2)). On June 6, 1973, attorney R. Eugene Pincham entered his appearance on defendant's behalf. On June 8, defendant was arraigned and pled not guilty to the possession charge.
Between June 8, 1973, and January 23, 1975, the start of defendant's trial was continued 36 times. Of the 36 continuances, 21 were requested by defendant. Prior to trial, defendant also filed two motions for substitution of judges, both of which were granted.
On January 23, 1975, defendant's case was assigned to Judge Saul Epton. Judge Epton scheduled the start of defendant's trial for February 26. In selecting this February trial date, Judge Epton alluded to attorney Pincham's pressing case load:
"The Court: Now we have * * * February February 26. Is that an agreeable date?
Mr. Pincham: It is your Honor.
The Court: On all your matters, Mr. Pincham?
On February 26, the defense and the prosecution agreed to a continuance and the trial judge reset the start of defendant's trial for April 7, 1975. On March 29, Pincham appeared in court and requested that the April 7 trial date be continued still further. To ensure Pincham's availability for trial, Judge Epton granted a continuance to July 21.
Attorney Charles Evans appeared in court on July 21, and informed Judge Epton that Pincham was in Boulder, Colorado, and would not return for a couple of weeks. Defendant's trial was reset for September 22.
On September 22, Pincham was granted still another continuance and defendant's trial was rescheduled for December 1. On December 1, Pincham informed the trial judge that he could not try the case because personal matters required his immediate attention. Defendant's trial was reset for January 8, 1976.
Between January 8 and October 8, 1976, the start of defendant's trial was rescheduled six more times, based on the representation that Pincham and his associates were engaged in other litigation. On October 8, attorney T. Lee Boyd, an associate of Pincham's, appeared in court and requested that the start of defendant's trial be continued again. Judge Epton informed Boyd that defendant's trial date had already been continued innumerable times in order to accommodate Pincham and his associates. The trial judge also pointed out that, as a result of these continuances, defendant's case was over three years old and was the only 1973 case still pending on the court's trial call. Judge Epton concluded his remarks by declaring that defendant was going on trial that day as previously scheduled. Boyd then informed the trial judge that he was unfamiliar with defendant's case and that Pincham and Isaiah Gant, another Pincham associate, were committed to other trials at that time.
After further dialogue, the trial judge continued the start of defendant's trial for five days, to October 13. The trial judge admonished Boyd that defendant's trial was to begin on October 13, and that Pincham or Gant were to be prepared for trial on that day.
On October 13, Gant appeared before the trial judge and requested another continuance. When asked if either he or Pincham was ready for trial, Gant answered, "No." After further discussion, the trial judge reset the start of defendant's trial for the following day, October 14.
At 9:30 a.m. on October 14, defendant appeared in court alone. Because counsel did not appear on defendant's behalf, Judge Epton proceeded to trial on another case. When Gant appeared in the courtroom at 3:30 p.m., the trial judge informed him that the case then being tried would conclude Friday, October 15. The trial judge then stated to Gant: "You are on trial Monday morning."
On Monday, October 18, attorney Samuel Bass informed Judge Epton that neither Pincham nor Gant was available that morning to conduct defendant's trial. Judge Epton reset the start of defendant's trial for October 27. Gant appeared in court on October 27 and requested that the trial date be continued yet again to November 3. The motion was granted.
Defendant's case was held on the trial call November 3 and 4. On November 5, Pincham appeared before the trial judge and demanded a jury trial. However, Pincham also stated that because he was engaged in other litigation he did not have time to either pick a jury or to proceed to trial that day. Judge Epton responded:
"[T]his matter has been held on our call for several days * * *; we have reached a point where the record indicates a substantial number of continuances and all sides that is I should say both sides were advised that this matter would go to trial."
After explaining that he was already involved in a criminal trial before Judge Strayhorn, Pincham stated:
"That case should conclude by Tuesday. Today is Friday. * * * I would, therefore, request of the Court to hold [Spurlark's] case on call until such time as I finish the case before Judge Strayhorn."
The trial judge agreed, stating:
"THE COURT: Let the record show that based upon Mr. Pincham's representation that he has not finished his case before Judge Strayhorn and that this will be a jury trial, this case will start just as soon as he concludes his case before Judge Strayhorn. If it is Monday, it will start Tuesday. If his case is finished before Judge Strayhorn on Tuesday, this case will start on Wednesday.
I intend to call Judge Strayhorn and ask him to advise me when the case that you are trying now is completed, and I am sure that he will and you will also, Mr. Pincham.
MR. PINCHAM: I will report to you.
THE COURT: Then there is no problem."
During the November 5 proceedings, Pincham remarked that defendant's case had achieved some notoriety in the local press as a result of its numerous continuances. Pincham also stated he was unaware what had prompted the media attention.
Defendant's case was held on Judge Epton's trial call November 8, 9, 10, 11 and 12. On Friday, November 12, Pincham concluded his trial before Judge Strayhorn. On the following Monday, November 15, Gant appeared before Judge Epton and informed him that Pincham was still not available to try defendant's case because Pincham was now on trial in Federal Court before Judge Leighton. Gant requested that the start of defendant's trial be continued to some future date. The trial judge responded:
"Mr. Pincham will appear here. Mr. Pincham advised me that the moment he got through with the trial before Judge Strayhorn he would call and he would be here to proceed on this trial.
Mr. Pincham did not call me. He called the State's Attorney and he said he would be before Judge Leighton. We will now send for the jury and we will hold Mr. Spurlark here and you advise Mr. Pincham that he is on trial in this court * * *. Pincham promised me personally that he would be here and try this case the moment he got through before Judge Strayhorn. I have been sitting here waiting for Mr. Pincham * * *. I will send for the jury. We will wait."
Pincham did not appear. The trial judge informed Gant that he was to pick the jury and to handle the defendant's defense. The record discloses that as early as 1974 Gant had in fact answered ready to proceed with defendant's defense and had demanded trial. Gant now asserted, however, that he was unfamiliar with the case and could not proceed. He stated further that he was not defendant's attorney of record and that the defendant "persists in the fact he is represented [only] by Mr. Pincham."
The trial judge directed Gant to proceed with the trial. Following further dialogue, the trial judge again ordered Gant to proceed with the trial. At this point, Gant walked out of the courtroom. *fn1 The trial judge reset the start of defendant's trial for Tuesday, November 16.
On November 16, Gant appeared before the trial judge and presented a motion to allow Pincham to withdraw as defendant's attorney of record. At the same time, attorney Arnette Hubbard requested leave to enter the appearance of Sam Adam as defendant's new attorney.
The trial judge informed Gant that Pincham's request to withdraw as defendant's attorney of record would not be granted until defendant appeared in court represented by other counsel ready to proceed to trial.
The trial judge denied Ms. Hubbard's request for leave to enter the appearance of Sam Adam as defendant's new attorney. Adam, at that time, was engaged with Pincham in litigation before Judge Leighton, and was not available to proceed with defendant's trial before Judge Epton. Furthermore, Adam's request for leave to enter his appearance on defendant's behalf was conditioned on the trial judge continuing the start of defendant's trial for an additional 30 days. The trial judge found this condition unacceptable.
After stating his position on the above two motions, the trial judge reset the start of defendant's trial for Wednesday, November 17. The defendant appeared in court on November 17 and informed the trial judge that he was waiting for someone from Pincham's office to appear on his behalf. Gant and Boyd did appear, later that same morning, but neither attorney was ready to proceed to trial.
It was at this point the trial judge addressed the defendant:
"You can represent yourself in this case, or you can have a lawyer of your own choosing, or I am going to appoint Mr. Cornelius Toole *fn2 to represent you."
Defendant responded that he did not want to represent himself. As for defendant's second ...