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People v. Baker





APPEAL from the Circuit Court of Clark County; the Hon. RICHARD E. SCOTT, Judge, presiding. MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Post-conviction petition.

Trial court denied.

Baker appeals.

We are required to reverse.

On September 29, 1975, a complaint was filed charging the defendant with the offense of murder. At his initial appearance, Baker indicated that he wished to waive counsel. Due to the severity of the charge and the sentence which could be imposed, however, the trial court appointed an attorney to consult with him concerning his waiver of counsel.

Defendant was arraigned on October 17, 1975, and noted that he had consulted with the appointed attorney on three occasions and that he was satisfied with his consultations. He again reiterated his wish to waive counsel. The trial court accepted defendant's waiver of counsel and defendant entered a plea of guilty.

A sentencing hearing was held four days later on October 21, 1975. Defendant's presentence report was filed and neither the State nor the defendant presented any additional evidence. The court did not ascertain whether the defendant waived counsel at this hearing. The court then sentenced defendant to an indeterminate term of 30 years to life.

On October 19, 1979, defendant filed a pro se post-conviction petition. In this petition, he alleged that he was denied a fair trial because of pretrial publicity, that he was denied a fair trial because of an unintelligent waiver of his constitutional rights, and that there was no competency hearing conducted nor any effort made to determine his competency before the waiver of his rights.

On June 27, 1980, an amended petition was filed alleging that defendant's right to counsel at every critical stage of the proceedings was violated and that he was not informed of, nor did he waive, his right to be represented by an attorney at the sentencing hearing.

Relying upon this court's decision in People v. Swihart (1980), 86 Ill. App.3d 151, 407 N.E.2d 1129, the trial court entered an order granting the State's motion to dismiss defendant's post-conviction petitions.

Defendant now appeals to this court, arguing that he is entitled to a new sentencing hearing because he was not informed at his sentencing hearing of his right to be represented by counsel and that his sentence of 30 years to life following his murder conviction must be vacated because a sentence of life imprisonment was not an authorized sentence at the time.

The first issue presented by defendant is one upon which there is considerable conflict among the cases. In People v. Taylor (1975), 31 Ill. App.3d 987, 335 N.E.2d 533, the defendant was convicted of resisting a police officer following his plea of guilty, and sentenced to six months' incarceration. This court initially held that defendant's plea of guilty was not knowingly and intelligently made under the supreme court rules because of confusion surrounding a negotiated sentence. Additionally, we noted that the record did not show that defendant was advised of his right to counsel or waived such right at the hearing on probation, or at the time sentence was imposed. We noted that sentencing is a critical stage in the conviction and that the record must show that counsel was made available or was validly waived at such time. "A valid waiver of counsel at an early stage of the proceeding does not continue in effect through a subsequent stage." 31 Ill. App.3d 987, 990, 335 N.E.2d 533, 535.

Two years later, in People v. Oatis (1977), 47 Ill. App.3d 229, 361 N.E.2d 1146, this court initially held that the defendant failed to supply sufficient evidence to refute a written jury waiver signed by him which was contained in the common law record. Thus, we affirmed the conviction. The case was reversed and remanded for a new sentencing hearing, however, after we determined that the defendant was not afforded a sentencing hearing and that he was not given an opportunity to present evidence or argument in mitigation. Relying upon Taylor, we further stated that error occurred at the sentencing in that the court proceeded although the defendant appeared without counsel and without having waived counsel.

Our decisions in Taylor and Oatis were recently cited with approval in the case of People v. Morgan (1981), 93 Ill. App.3d 12, 416 N.E.2d 740. Furthermore, our decision in these three cases is consistent with the positions taken by at least two other districts of this appellate court. People v. Hinkle (1971), 1 Ill. App.3d 202, 272 N.E.2d 300, overruled, People v. McCaffrey (1975), 29 ...

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