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People v. Smith

OPINION FILED MAY 31, 1985.

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

v.

HANAN C. SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 2, 1985.

Following the revocation of his probation in two Kane County court cases, defendant Hanan C. Smith was sentenced to a term of four years' imprisonment in case No. 83 CF 619 for theft over $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)), and three years' imprisonment in case No. 82 CF 1102 for retail theft of property valued at less than $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3(a)). Defendant's sole contention on appeal is that he did not effectively waive his right to counsel at the sentencing hearing.

On October 20, 1982, defendant was charged in case No. 82 CF 1102 with the offense of retail theft of property valued at less than $300, a Class 4 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3(a).) Defendant pleaded guilty to the charge on January 26, 1983; he waived his right to a presentence investigation and a hearing in aggravation and mitigation. He was thereafter sentenced to 30 days' imprisonment in the Kane County jail and was placed on 12 months' probation.

On July 25, 1983, the State filed a petition to revoke defendant's probation in case No. 82 CF 1102, alleging that on July 5, 1983, the defendant committed the offense of theft of a typewriter valued at more than $300, a Class 3 felony (see Ill. Rev. Stat. 1983, ch. 38, par. 16-1(e)(3)), and attempted theft of another typewriter valued at more than $300, a Class A misdemeanor (see Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)). These same two offenses formed the basis of a two-count indictment filed against the defendant in case No. 83 CF 619. On that date, July 25, 1983, defendant was informed of the nature of the theft and attempted theft charges, the minimum and maximum periods of imprisonment which could be imposed upon conviction of those offenses, and the fact that he had a right to counsel and a preliminary hearing. He was also informed that if his probation in case No. 82 CF 1102 (for retail theft) is revoked, he could be sentenced to a term of imprisonment of not less than one nor more than three years in the Department of Corrections. A public defender was then appointed to represent defendant in both the probation revocation proceeding and in the hearing on the underlying offenses of theft and attempted theft.

On September 23, 1983, defendant entered a negotiated plea of guilty to the theft-over charge in case 83 CF 619, and he was sentenced to a period of 24 months' probation on that charge. The charge of attempted theft in case 83 CF 619 was nol-prossed on motion of the State. Defendant also stipulated to the probation violation in case 82 CF 1102, and was resentenced to 24 months' probation in that case, the sentence to run concurrently with the probation in 83 CF 619. Prior to accepting defendant's guilty plea and admission of probation violation, defendant was again advised by the court of the nature of the theft-over charge and its minimum and maximum penalties. Additionally, at the end of the hearing, defendant was advised by the court that if he should violate his probation he would be resentenced on the theft charge (in case 83 CF 619) to a two- to five-year term of imprisonment, with a likelihood that the sentence would be more than the minimum.

On March 2, 1984, the State filed petitions to revoke defendant's probations in cases 82 CF 1102 and 83 CF 619. The petitions alleged that on February 11, 1984, defendant committed the offense of retail theft of property having a value of less than $150 (see Ill. Rev. Stat. 1983, ch. 38, par. 16A-3(a)), and that on February 20, 1984, defendant committed the offense of theft of property having a value of less than $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)). Defendant was again appointed counsel to represent him in the probation revocation proceedings.

On April 6, 1984, the cause proceeded to a hearing on the petitions to revoke probations. Following the introduction by the State of several exhibits and the testimony of four witnesses, the court found defendant in violation of his probation in both cases. The cause was then continued for sentencing on May 17, 1984.

On May 7, 1984, defense counsel moved to withdraw as counsel. The motion alleged that the office of the public defender had received a letter from defendant in which defendant charged the public defender with incompetent representation. Following the arguments of counsel at the hearing on the motion to withdraw, defendant was given the choice of either representing himself or of having the public defender continue to represent him at sentencing. The court noted that it could recall nothing during the probation revocation hearing which would indicate that defense counsel did not adequately represent the defendant. The court also stated that the evidence was quite clear that a probation violation had occurred. The following colloquy then occurred:

"[THE COURT]: Mr. Lorek [defense counsel], are you prepared to proceed with this hearing if Mr. Smith elects to continue with you?

THE DEFENDANT: No sir, I definitely do not.

MR. LOREK: No, your Honor, because —

THE COURT: Well, apparently Mr. Lorek isn't prepared to go forward with this ...


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