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People v. Lee





APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.


Rehearing denied October 2, 1981.

Petitioner, counsel for defendant, John Lee, in the criminal trial below, appeals, claiming he is entitled to an award of attorney's fees for legal services to defendant. Petitioner is one of several attorneys who entered an appearance on behalf of defendant. Though he filed motions in the trial court to be appointed as attorney for defendant, the trial court consistently denied the appointment on the basis that defendant did not have the right to force the court to appoint counsel of defendant's choosing. Since petitioner was never appointed as counsel for defendant, the trial court refused to award attorney's fees.

On March 5, 1979, defendant, John Lee, was charged by indictment with two counts of aggravated battery, one count of mob action, and three counts of armed violence. On March 12, 1979, he was arraigned and was asked if he wanted counsel appointed for him. Defendant Lee declined counsel at that time.

On April 4, 1979, an attorney named Deutsch appeared on behalf of co-defendant Lamont Richards. He represented to the trial court that he and an attorney, Shelley Bannister, represented the "Pontiac Brothers Legal Defense" and were willing to work with and advise defendants before attorneys of their own choosing could be found. Though Deutsch represented that the attorneys' involvement would be limited, the trial court informed him that if counsel entered their appearance they would be construed as general appearances.

On April 5, 1979, Shelley Bannister filed her appearance on behalf of defendant, John Lee. During the hearing she represented to the court that defendant was making an attempt to obtain a trial attorney.

On August 28, 1979, after the cause had been transferred to McLean County from Livingston County, another attorney, Val Klink, entered his appearance for defendant Lee. On October 24, 1979, Bannister appeared on a motion for a continuance and advised the court that Klink was ill and could not appear or proceed any further with the defense of Lee. Klink died that same day.

Bannister represented that she wished to withdraw from the case because defendant Lee did not want her to represent him. The court refused to allow her to withdraw without affording Lee the opportunity to find other counsel. Bannister then represented to the court that Lee was looking for another attorney and Klink's office was assisting him in finding substitute counsel. During the course of the same hearing, defendant Lee addressed the court, stating that he knew he needed counsel and would like more time to find an attorney for himself. The trial court then continued the matter to allow Lee the opportunity to find substitute counsel.

On November 26, 1979, Bannister filed a written motion to withdraw, claiming that on July 13, 1979, defendant Lee requested counsel of his choice by means of a motion which was denied by the trial court. Bannister's motion also stated that Klink was dead and that defendant Lee was in the process of selecting new counsel.

A docket entry for July 13, 1979, indicates that there was an oral motion for appointment of counsel of choice for defendant Lee which was denied. There is no hearing transcript of the July 13 proceedings contained in the record.

Bannister's motion to withdraw was presented to the trial court by an attorney for the co-defendant. The trial court refused to allow Bannister to withdraw at that time because she failed to attend the hearing. Defendant Lee represented to the court that he had spoken with another attorney by the name of Toole about the possibility of representation. Toole had not made any definite commitment at that time to represent defendant, however.

The trial court then addressed the following remarks to defendant:

"I understand you can't hire a lawyer and I told you previously if you want the court to appoint counsel, but I'm not going to appoint counsel of your own choosing. If the court appoints counsel, I'll appoint counsel that is the choice that I presented to you previously and we discussed previously and the same situation pertains now, if you don't have funds to hire a lawyer, the court will engage counsel to represent you in this particular matter, but I'm not going to select a counsel that you choose, that would be a selection the court would make. * * * But I still would indicate to you there is no ...

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