APPEAL from the Circuit Court of Du Page County; the Hon.
CHARLES R. NORGLE, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
The defendant, Angela Marie Morgese, was found guilty of retail theft of merchandise valued at less than $150 in violation of section 16A-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16A-3(a)) in the circuit court of Du Page County in a bench trial. Subsequently she was sentenced to six months' probation and, as a condition of probation, was ordered to undergo psychological counseling.
The issue presented for review on this appeal is whether defendant, who was sentenced to a period of probation for misdemeanor theft, has a constitutional or statutory right to court-appointed counsel and, if so, whether defendant waived that right.
On June 6, 1979, a criminal complaint was filed against defendant charging her with retail theft of merchandise valued at less than $150. On June 18, 1979, defendant appeared in court with her husband to answer the charge and the following colloquy took place between defendant's husband and the trial judge:
"THE COURT: Do you intend to hire an attorney to represent her at the trial?
MR. MORGESE: Well, your Honor, if it's necessary to have an attorney.
THE COURT: It isn't required, but it's something that you should decide for yourself whether you wish to be represented by an attorney.
You can proceed without one or with one, whichever you choose.
If you decide that you want legal advice, then you should hire an attorney to be with you in court on August 2nd.
If you feel that you do not need an attorney you should appear without a lawyer on August 2nd at 1:30. You'll be given the opportunity to testify in your own behalf. And the State will have the obligation to prove your guilt beyond a reasonable doubt."
On August 2, 1979, defendant again appeared without counsel and requested a continuance for the purpose of obtaining an attorney to represent her. The defendant stated: "I just got a job two months ago and need more time." At that point, the assistant State's Attorney interjected: "I believe the defendant's husband has gone through bankruptcy proceedings." The trial court continued the case until August 23, 1979.
On August 23, 1979, defendant again appeared without counsel and entered a plea of not guilty. The case was set for bench trial on October 10, 1979. Following the October 10, 1979, bench trial, at which defendant again appeared pro se, the trial court found the defendant guilty and entered judgment of conviction. Thereafter, defendant was sentenced to six months' probation and, as a condition of probation, was ordered to undergo psychological counseling.
It is clear that the United States Supreme Court's recent decision in Scott v. Illinois (1979), 440 U.S. 367, 59 L.Ed.2d 383, 99 S.Ct. 1158, defeats defendant's argument that she had a constitutional right to court-appointed counsel where she was sentenced to a period of probation for a misdemeanor conviction. In Scott, the United States Supreme Court affirmed the Illinois Supreme Court's decision that the Federal Constitution does not require a State trial court to appoint counsel for an indigent defendant who is charged with a statutory offense for which imprisonment upon conviction is authorized but not actually imposed upon the defendant. The defendant in Scott had argued that an indigent defendant charged with a criminal offense which, upon conviction, carries the potential for imprisonment is constitutionally entitled to court-appointed counsel, even if the conviction results in only the levying of a fine. In rejecting this argument, the United States Supreme Court discussed its prior decision in Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, and concluded:
"Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings. Even were the matter res nova, we believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States. We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent ...