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People v. Penermon

OPINION FILED JULY 22, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSEPH D. PENERMON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was charged in the circuit court of Macon County with four offenses: (1) aggravated assault in violation of section 12-2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-2(a)(1)); (2) battery in violation of section 12-3(a)(1) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 12-3(a)(1)); (3) disorderly conduct in violation of section 26-1(a)(1) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 26-1(a)(1)); and (4) failure to possess a valid firearm owners identification card in violation of section 2(a) of "An Act relating to the acquisition, possession, and transfer of firearms * * *" (Ill. Rev. Stat. 1981, ch. 38, par. 83-2(a)). He entered a plea of guilty to the offense of failure to possess and at trial was found not guilty of disorderly conduct. These matters are not involved in this appeal. Following a bench trial he was found guilty of aggravated assault and battery and was sentenced to 364 days' imprisonment.

On appeal defendant alleges two errors which are to a large extent interrelated: (1) summary denial of counsel by the trial court, and (2) failure of the trial court to obtain a knowing and intelligent waiver of counsel. The evidence is not disputed; the transcript of it has been submitted and it was prima facie sufficient to sustain the finding and judgment of the trial court. Since we find that the alleged errors deprived defendant of a fair trial, the case will be remanded for a new trial.

The record indicates that an admonition of rights occurred en masse to a group of accused persons. It included the possible penalties of each class of misdemeanor and the right to counsel. Following the general admonition, defendant was called forward to the bench and entered a plea of not guilty to all charges except the failure to possess. These events occurred on August 21, 1981. We have heretofore approved of such a general admonition as a useful tool in the expedition of judicial business. People v. Henderson (1982), 104 Ill. App.3d 62, 432 N.E.2d 660.

The judge handling the matters on this occasion then "transferred" the case to another judge and fixed a date of September 17, 1981, for that appearance for the purpose of fixing a trial date. On September 17 defendant appeared as ordered and the court set October 8, 1981, as the date for trial by the court. Defendant orally moved for the appointment of the public defender and tendered an affidavit of assets and liabilities. The record contains no colloquy between the defendant and the court and does not indicate that the court examined the affidavit. We have only the terse statement by the court, "Motion for the appointment of public defender denied."

On October 8, 1981, defendant again appeared as ordered and the record contains the following:

"THE COURT: 81-CM-1015. People vs. Joseph D. Penermon.

Defendant present. People present by James Majors. Cause called for Court Trial as allotted. Defendant announces not ready and moves to continue cause.

I am going to give you time to obtain your attorney, Mr. Penermon. I want to advise you, you have previously been advised the Public Defender would not be appointed to represent you. You have adequate assets to take care of it yourself. That was done on September 17th. You indicated to me this morning you have not done anything to obtain an attorney yet. I am going to reallot this for Court Trial October the 29th at 1:30 p.m., in this courtroom. You are to be ready for trial at that time. I am advising you that you should have your attorney at that time. If you do not have your attorney present at that time the Court is going to deem that as a waiver of right to counsel. You have any questions?

DEFENDANT: No.

THE COURT: You understand what I am saying.

DEFENDANT: Uh-huh.

THE COURT: If you show up at that time without an attorney we are going to proceed to trial because I am going to then assume ...


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