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Serpico v. Urso

OPINION FILED SEPTEMBER 20, 1984.

SHARON SERPICO, PETITIONER-APPELLEE,

v.

JAMES URSO, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Anne C. O'Laughlin, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Prior to pleading guilty, defendant, who first appeared pro se in response to a summons and complaint charging him with the paternity of plaintiff's child, was not fully informed of certain statutorily prescribed rights as required under section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355). Alleging the trial court's failure to comply with the statute, defendant petitioned to vacate his guilty plea. The court, denying the petition, found defendant to be the father of plaintiff's child and, after a support hearing, ordered him to pay $30 per week child support.

Defendant appeals from the denial of his petition and from the order for child support. He also claims as error the trial court's sustention of the State's objection to calling the prosecuting attorney as an occurrence witness at the hearing on the petition.

We vacate in part, affirm in part, and remand.

Defendant, James Urso, was served with a summons and complaint charging him with the paternity of a child born to plaintiff, Sharon Serpico. On October 6, 1982, defendant appeared pro se before the bench in the circuit court of Cook County in response to the summons. He alleges that while waiting for his case to be called between 9 a.m. and 2 p.m., he consumed at least five ounces of whiskey and that as a result thereof he was unable to comprehend either the nature of the proceedings or of the admonitions he received, as mandated by section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355).

A dispute exists as to whether defendant was informed of any of these rights prior to the court's asking for his plea. The State contends that upon entering the courtroom, defendant was handed a sheet of paper containing some, though concededly not all, of the rights set forth in section 5 of the Act. Defendant, on the other hand, claims that he never received anything advising him of his rights prior to the court's asking him if he was "ready to admit or deny being the father" of plaintiff's child.

It is undisputed that defendant, in response to the court's question, admitted paternity, whereupon the trial court made a "legal finding" that defendant was the father of plaintiff's child. The court then asked defendant if he knew he had a right to a trial on the issue and to a blood test, to which defendant answered in the affirmative. The court then asked defendant if he was waiving his rights and admitting paternity, and defendant answered, "Yes."

Defendant subsequently obtained counsel and filed a petition to vacate his guilty plea and to grant him leave to file a jury demand. The petition alleged that defendant was intoxicated at the time of the October 6 hearing and that he was therefore incapable of understanding and does not remember receiving any admonition of his rights given pursuant to section 5 of the Paternity Act. It further alleges that he was not advised of any of his rights under the Act until after his guilty plea was entered and that when he was advised, it was as to fewer than all of the prescribed rights.

A hearing was held on the petition to vacate on December 2, 1982. Defendant called, as his first witness, Assistant State's Attorney Cynthia Brown. Ms. Brown was the prosecuting attorney on the case and objected to being called as a witness. The court asked both parties to submit briefs on the issue of whether Ms. Brown could be called to testify by the defense, and the case was continued.

On January 31, 1983, the cause again came on for hearing. After arguments of counsel, the court sustained the State's objection to calling Ms. Brown as a witness. The hearing proceeded on the matters of fact raised in defendant's petition.

Defendant called Sharon Serpico as an adverse witness. She testified that on the day of the October 6 hearing, defendant drove her to and from the courthouse. She further testified that she had not smelled any alcohol on defendant's breath but that he had left the courtroom after telling her he was going to put money in the parking meter. She stated that she did not find his behavior odd in any way and that his driving on the way home from the hearing was fine.

Defendant testified on his own behalf. He testified that he had been drinking heavily prior to the hearing, and he denied ever having received any sheet of paper advising him of his rights. When examined on his understanding of the terms contained on the sheet of paper he allegedly received, defendant testified that he did not know the meaning of the terms "out of wedlock" or "the right to confront all witnesses" that may be brought against him. He further denied understanding the meaning of having a right to a blood test, what a jury trial was, or of being held responsible for the support of the child should he be found to be the father.

At the conclusion of the hearing, defendant's petition to vacate his guilty plea and for leave to file a jury demand was denied. A support hearing was held on May 24, 1983, at which time defendant amended and renewed his petition to vacate the plea of guilty entered October 6, 1982. The amended petition was denied. Following testimony by defendant and plaintiff, defendant was ordered to pay Sharon Serpico the sum of $30 per week child support. It is from the entry of this order and from the other adverse rulings entered in the course of these proceedings defendant now appeals.

On appeal, defendant contends that the trial court failed to advise him of certain statutory rights in compliance with section 5 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1355). Section 5 reads in pertinent part as follows:

"* * * Upon the first appearance of the accused, the Judge shall fully advise him of his rights to counsel and to a complete transcript of the proceedings in the cause. The judge shall further inform the defendant that he may plead not guilty, that if a blood test conclusively excludes him as a father he must be found not guilty, that he must be proven guilty by a preponderance of the evidence, that he has a right to a trial by jury in the cause, and that if he is proven to be the father of a child born out of wedlock he will be liable for the support, maintenance, education and welfare of the child until the child attains the age of 18, as well as the reasonable expenses of the mother during the period of her pregnancy, confinement and recovery. If the defendant desires counsel and has been unable to obtain same before the date upon which he appears, the court shall recess or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge. * * *" (Emphasis added.)

The State claims that the trial court complied with section 5 on the grounds that (1) the word "shall" as it appears in the Act should be construed as merely directory rather than mandatory, and (2) even if construed as mandatory, the sheet of paper handed to defendant prior to hearing coupled with the court's admonitions substantially ...


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