Appeal from the Circuit Court of Winnebago County. No. 91-CM-6966. Honorable Rosemary Collins, Judge, Presiding.
Quetsch, Woodward, Geiger
The opinion of the court was delivered by: Quetsch
JUSTICE QUETSCH delivered the opinion of the court:
Following a bench trial in the circuit court of Winnebago County, defendant, Diane Stahr, was found guilty of the offense of violation of an order of protection (Ill. Rev. Stat. 1991, ch. 38, par. 12-30 (now 720 ILCS 5/12-30 (West 1992))) based on allegations that she created a disturbance by screaming and yelling at Rodney Stahr in violation of an order of protection under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1992)). Defendant was sentenced to a one-year term of probation and was ordered to pay a fine and costs of $200. Defendant appeared pro se at trial. On appeal defendant contends: (1) that her conviction must be reversed because the record fails to show that the trial court addressed her in the manner specified in Supreme Court Rule 401 (134 Ill. 2d R. 401) in connection with her waiver of counsel; and (2) that she is entitled to a $5 credit against her fine for the portion of a day during which she was incarcerated prior to being released on bail.
We first consider defendant's argument that her conviction must be reversed because the record does not establish that the trial court complied with Rule 401. Rule 401 provides, in pertinent part:
"(a) Waiver of Counsel. 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:
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(b) Transcript. The proceedings required by this rule to be in open court shall be taken verbatim, and upon order of the trial court transcribed, filed and made part of the common law record." (134 Ill. 2d R. 401.)
Relying on People v. Robertson (4th Dist. 1989), 181 Ill. App. 3d 760, 537 N.E.2d 1036, defendant argues that because the record does not affirmatively show that she was properly advised in compliance with this rule, any waiver of counsel was invalid. Notwithstanding her reliance on the decision of the Appellate Court, Fourth District, in Robertson, defendant acknowledges that the controlling precedent in this court is People v. Morgese (1981), 94 Ill. App. 3d 638, 418 N.E.2d 1124. In Morgese, we noted that "the purpose of Supreme Court Rule 401 is 'to assure a knowing and intelligent waiver of counsel * * * because in each instance the defendant is waiving constitutional rights.'" (94 Ill. App. 3d at 644, quoting People v. Warfel (1979), 67 Ill. App. 3d 620, 627, 385 N.E.2d 175.) A defendant's sixth amendment right to appointed counsel applies only in cases in which the defendant is actually sentenced to imprisonment. ( Scott v. Illinois (1979), 440 U.S. 367, 373, 59 L. Ed. 2d 383, 389, 99 S. Ct. 1158, 1162; see also People v. Dass (1992), 226 Ill. App. 3d 562, 565, 589 N.E.2d 1065.) In Morgese, we held that in light of Scott Supreme Court Rule 401 must be interpreted to mean that "no unrepresented, indigent criminal defendant can be sentenced to a term of imprisonment unless the record indicates that there was a waiver in accordance with the provisions of Rule 401(a)." 94 Ill. App. 3d at 645.
It is true that section 113-3(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3(b) (West 1992)) provides an indigent criminal defendant a right to appointed counsel that is broader than the sixth amendment right. (See, e.g., Dass, 226 Ill. App. 3d at 565.) Under this provision, an indigent criminal defendant who requests counsel is entitled to court-appointed counsel in all cases except where the penalty imposed is a fine only. ( Dass, 226 Ill. App. 3d at 565; Morgese, 94 Ill. App. 3d at 642.) However, in Morgese we noted that there is no requirement that the trial court advise the defendant of the right under this provision or that there be a knowing and intelligent waiver of the right, since it is not constitutional in origin and the requirements of Rule 401 are inapplicable. ( Morgese, 94 Ill. App. 3d at 644; see also People v. Mattison (1986), 149 Ill. App. 3d 816, 819-20, 500 N.E.2d 1103.) In the case at bar, defendant was not actually sentenced to a term of imprisonment, and therefore, pursuant to our holding in Morgese, the trial court was not required to advise defendant as provided in Rule 401(a).
Defendant argues that Morgese was wrongly decided and should be overruled. Defendant contends that requiring trial courts to comply with Rule 401 whenever imprisonment is an authorized sentence would have the advantage of affording trial courts a broader range of sentencing options. Defendant also suggests that more widespread appointment of trial counsel would help facilitate more meaningful appellate review, since pro se litigants may not be equipped to take proper steps to preserve errors occurring at trial. However laudable these objectives might be in the abstract, defendant cites no authority suggesting that they are the objectives Rule 401 was designed to accomplish. We believe Morgese correctly identified the purpose of Rule 401 to be the assurance that waivers of the constitutional right to counsel are made knowingly and intelligently, and, therefore, the considerations defendant sets forth are not particularly germane to the interpretation of the rule. Defendant also cites decisions which purportedly support the general proposition that the supreme court rules involving criminal procedure require strict, rather than substantial, compliance. However, Morgese addressed the question of when Rule 401 is applicable, not how it is to be complied with. Thus, Morgese is not inconsistent with the cases cited by defendant. We therefore find defendant's contention that the trial court violated Rule 401 to be without merit.
We agree with defendant, however, that she is entitled to a credit against her fine for the time spent in custody prior to being released on bail. Section 110-14 of the Code provides, in pertinent part:
"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the court shall notify the defendant in writing of this provision * * * at the time he is convicted." (Ill. Rev. Stat. 1991, ch. 38, par 110-14 (now 725 ILCS 5/110-14 (West 1992)).)
Although defendant did not apply for the credit in the trial court, the issue is not waived on appeal because the record does not establish that she was properly notified by the clerk of the court. (See People v. Plante (2d Dist. Dec. 6, 1993), No. 2-92-0221, slip op. at 3-4; ...