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People v. Ray





Appeal from the Circuit Court of Moultrie County; the Hon. Worthy B. Kranz, Judge, presiding.


Rehearing denied December 31, 1984.

On February 1, 1984, following a jury trial in the circuit court of Moultrie County, defendant, Chester Ray, was convicted of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a)). He was subsequently sentenced to three years' imprisonment and ordered to pay a $1,500 fine. On appeal, defendant contends that (1) he was deprived of his right to counsel; (2) the court erred in permitting the introduction of evidence that he had been arrested on a prior, unrelated charge; (3) the court abused its discretion in denying his motion to continue his sentencing hearing so that he might obtain counsel; and (4) the court erred in imposing a $1,500 fine and failing to give him credit for time served in custody prior to his conviction.

• 1 Defendant's claim that he was deprived of his right to counsel arises from the manner in which the trial court accepted his waiver of counsel. The defendant maintains that the defect in procedure rendered his waiver involuntary. Supreme Court Rule 401(a) states:

"Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." 87 Ill.2d R. 401(a).

This court has held that no waiver of counsel can properly be accepted without strict compliance with each of the required admonitions. (People v. Johnson (1984), 123 Ill. App.3d 128, 462 N.E.2d 930; People v. Derra (1981), 92 Ill. App.3d 1106, 416 N.E.2d 688.) In Johnson, Justice Trapp explained that the strict requirement provides a procedure which eliminates any doubt that the waiver is made with the full understanding of the defendant. The requirement of strict compliance for waiver of counsel is in contrast to requirements for accepting pleas of guilty pursuant to Supreme Court Rule 402 (87 Ill.2d R. 402) where, by the express terms of the Rule, only "substantial compliance" is required.

Here, the court accepted a waiver of counsel from defendant at a preliminary hearing on October 4, 1983. At that hearing, the trial court complied with all of the requirements of Rule 401(a) except that concerning the minimum and maximum sentences. On September 29, 1983, the defendant had been before the court and had been admonished by the court that he was charged with a Class 2 felony for which he could be imprisoned for a period of a minimum of three years and a maximum of seven years, with a mandatory supervised release period of two years to be served after completion of the imprisonment. The record indicates that defendant had previously been convicted of several offenses including burglary in the past 10 years and was thus eligible for an extended-term sentence of a maximum of 14 years. Defendant was not advised of this possibility.

We deal separately with the questions of the failure of the court (1) to ever advise defendant of the possibility of an extended-term sentence, and (2) to otherwise advise defendant at the hearing where counsel was waived as to the minimum and maximum sentences that could be imposed.

• 2 The parties do not dispute that no compliance was made with the requirement for admonishment as to the possibility of an extended-term sentence being imposed. No case touching upon this point has been called to our attention. Obviously, the defendant was not prejudiced by the lack of the admonishment as no extended-term sentence was imposed. Unlike a situation where a defendant is placed on probation and that probation is later revoked, no extended sentence could later be imposed here. We find analogy to the rule in criminal contempt cases where the trial court either fails to obtain a valid jury waiver from a respondent or refuses to honor the respondent's request for a jury trial. Under those circumstances, a respondent's conviction for contempt need not be set aside, but the sanction must be limited to the maximum punishment constitutionally permitted to be imposed without a jury trial. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill.2d 353, 282 N.E.2d 720.) Here, the failure of the court to admonish the defendant as to the possibility of an extended-term sentence would have rendered erroneous any such sentence. As none was imposed, no reversible error occurred.

• 3, 4 The failure of the court at the proceeding where counsel was waived to otherwise advise defendant of the minimum and maximum sentence that could be imposed stands in a different light. Clearly, if the requirement to give this admonition were not complied with, a new trial would have to be ordered, because defendant was given a sentence. The record does show that during the course of the pretrial proceedings there was strict compliance with the requirement for this admonition. The problem is that five days elapsed between the admonition and the waiver of counsel. Although the best practice is to give the admonition at the time of accepting the waiver, the failure to do so is not necessarily fatal. Each case must be determined on its own peculiar circumstances, with the principal focus upon the length of time between the waiver of counsel and the plea. The five-day lapse here was not inordinate and did not create reversible error.

• 5 The introduction of evidence that defendant had been arrested for an earlier, unrelated charge occurred when Charles Hess, a law enforcement officer, identified an arrest card bearing defendant's fingerprints as having been made on January 1, 1980, when defendant was processed at the Moultrie County jail. The fingerprint was then used by a fingerprint expert in presenting testimony that the print on the card was of the same person as a latent print removed from the refrigerator of the house where defendant allegedly committed the instant burglary. Defendant made no objection to the introduction of this evidence and did not raise the issue in the post-trial ...

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