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06/22/89 the People of the State of v. Ronald Rhodes

June 22, 1989





540 N.E.2d 1114, 185 Ill. App. 3d 114, 133 Ill. Dec. 248 1989.IL.969

Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.


Defendant Ronald Rhodes appeals from an order of the circuit court of Champaign County entered September 13, 1988, in which the court accepted his stipulation and admission to the offense of indirect criminal contempt for violating the terms of a plenary order of protection previously entered against him on September 25, 1987. He maintains for the first time on appeal that that order of protection was void and must be vacated because the court violated his due process rights when it failed to appoint counsel to represent him prior to entry of that order. We disagree and, therefore, affirm.

Effie Williams, defendant's wife, petitioned that court for an order of protection on September 18, 1987. (Ill. Rev. Stat. 1987, ch. 40, par. 2312-2.) The court entered an emergency order of protection on her behalf and continued the matter until September 25, 1987, when it held a hearing on her petition. On that date, both Williams and defendant appeared pro se.

At the hearing, the court determined Williams still desired to pursue her request for an order of protection and was taking further action to dissolve the marriage. The court further explained to defendant the contents of the petition and court record and the relief sought by Williams. When the court asked defendant whether he had any questions concerning what it had just told him, defendant responded, "No, I don't understand none of it."

The court subsequently asked defendant whether he had committed the acts as alleged in the petition. Defendant admitted he had "pushed her, laid her on the bed, and said cool out." He further admitted he had slapped her on at least one occasion. The court then entered the previously described plenary order of protection against defendant on September 25, 1987, to expire on September 1, 1989.

To support his contention that his due process rights were violated as he was indigent and the trial court failed to appoint counsel for him prior to entering the order of protection, defendant relies upon Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153. There, a trial court had refused to appoint counsel for an indigent woman in a proceeding brought by the State to terminate her parental rights. The Supreme Court rejected her claim of a violation of her due process rights under the circumstances present there, concluding that constitutional provision did not require appointment of counsel in every termination of parental rights case.

The State first attempts to distinguish Lassiter by claiming that, here, as in Rosewell v. Hanrahan (1988), 168 Ill. App. 3d 329, 523 N.E.2d 10, an individual filed a petition to begin private proceedings. Since that claim involved no State action, no due process clause protections arose. While we generally agree with the State's argument, we also conclude that, even if the State were the petitioner in the underlying suit when the protection order was entered, defendant still would not have had a right to appointed counsel.

The Supreme Court in Lassiter indicated the decision as to whether due process required appointment of counsel for indigent persons in a case of that nature was to be made by balancing the following three elements: the private interests; the governmental interests; and the risk the procedures used would lead to erroneous decisions. In balancing those interests in the Lassiter decision, the court recognized a parent's interest in the care and custody of his or her children was an important one which warranted protection, especially in those cases involving a termination of all parental rights. Likewise, the State had an interest in the welfare of the child and desired an accurate and just decision, although it also possessed a pecuniary interest in making the decision in the most economical manner possible.

The court further analyzed the State procedures present in the case. It noted the proceedings could be complex and involve parents with little education which might make the risk of error extremely high in some cases. However, after examining the facts of the case before it, the court decided the presence of counsel would not have made a determinative difference there. The court therefore concluded the trial court did not err in failing to appoint counsel for the indigent mother whose parental rights were terminated.

Here, defendant contends a balancing of those factors in his case leads to a result in his favor. He claims his familial interest in his 12-year-old stepson and his property interest in his marital residence outweigh any economic interest the State might have in avoiding additional legal expenses. Further, he argues the risk of an erroneous decision here is high, ...

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