APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The defendant, Fairleigh Gray, was charged in a two-count information with possession of a stolen vehicle and theft. Following a bench trial, the defendant was found guilty of theft and sentenced to the Illinois Department of Corrections for a term of 3 to 9 years. On appeal the defendant contends that (1) the trial court erred by refusing to allow him to withdraw his jury waiver and by failing to inquire whether said waiver was voluntary; (2) he was denied the right to counsel of his choice; (3) the trial court erred by denying his motion for a new trial without conducting an evidentiary hearing; and (4) his sentence was excessive.
The defendant was arrested on February 23, 1977, in connection with the theft of a 1968 automobile. The record indicates that on April 11, 1977, the defendant was represented in court by an assistant public defender of Cook County. From that date the defendant's trial was continued eight times by agreement of the parties and three times on the motion of the defendant.
On March 8, 1978, the trial was scheduled to begin before a jury. The defendant's attorney informed the court that the defendant desired to waive a trial by jury and had signed a written jury waiver. Following the defendant's signature on the waiver is some writing which appears to read "while into."
The trial court asked the defendant if he understood that he had the right to a jury trial and if he desired to waive that right. The defendant replied, "Yes, sir" to both questions. The court asked the defendant if the signature on the jury waiver was his signature. The defendant again answered, "Yes, sir." The court then questioned the defendant concerning his age and education and concluded that the defendant "knowingly and intelligently waives his right to a jury trial and elects to be tried by this court * * *." The trial was continued to April 13, 1978, and on that date to May 11, 1978.
On May 11 the defendant and his attorney informed the court that two defense witnesses were unavailable due to their intoxication. The court agreed to give the defendant sufficient time to subpoena these witnesses. The defendant's attorney then requested that the court inquire of the defendant whether he felt that he was being adequately represented. Thereafter, the following colloquy occurred:
"The Defendant: At this time I feel as though I haven't been properly represented. In the first place when I appeared in Court a month, two months ago — the fact I could not get a continuance without having a jury trial because my witnesses was suppose to be intoxicated and I also was too.
I asked the court for approximately two weeks continuance so I can get these witnesses and another attorney.
The Court: You will have a chance to get the witness, Mr. Gray.
The Defendant: I would like to have another attorney of my own choice because me and my attorney, I'm not discrediting him or anything but we got differences and we can't get together.
Defendant's attorney: The primary difference, if I may state, I believe you heard Mr. Gray say that Mr. Gray is basically alleging at this point that he waived the jury to get a continuance. * * *"
The court advised the defendant that his attorney was representing him well and would continue to do so. The court also assured the defendant that he would have an opportunity to subpoena his witnesses. The defendant asked "just give me three or four days," and the court agreed.
The trial commenced and the State presented its evidence. At the close of the evidence the defendant moved for a directed finding of not guilty. This motion was denied and the trial was continued to May 19, 1978.
On May 19 the defendant did not appear in court, although his witnesses were present. The trial was continued to May 22, 1978, and again the defendant failed to appear. After the court denied the defense counsel's request for another continuance, the defense rested. The court found the defendant guilty of theft and set June 26 as the date for sentencing. When the defendant failed to appear ...