The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Hinkle, Defendant, 1 Ill. App. 3d 202

Mr. JUSTICE WILLIAM L. GUILD delivered the opinion of the court: Defendant was sentenced in the circuit court of De Kalb County to a term of 1-5 years in the penitentiary after waiver of his right to counsel, indictment, trial. He entered a plea of guilty and applied for probation which was denied. On direct appeal from Ins conviction for theft, defendant claims error in failure of the trial court to advise him of his constitutional right to assistance of counsel at the time of sentencing.

In June of 1969, the defendant and his female companion went to a used car lot in De Kalb at night, broke a window in a 1960 Chevrolet and when they could not start it, they towed it to a bam. In about a week the defendant had removed the motor and transmission from the stolen car and installed them in the girl’s car. The defendant had been released on parole two months earlier, after having served two years of a 2-4 year sentence imposed for burglary.

At arraignment on June 27, 1969, the court was informed defendant had been served with a copy of the information, and the following colloquy ensued: ‘The Court: Do you have a lawyer? Defendant: No, I don’t. The Court: Do you understand you have a right to have a lawyer represent you at all stages from now on? Do you intend to hire a lawyer? Defendant: No Sir, your Honor, I would like to enter a plea of guilty. The Court: What? Defendant: I would like to enter a plea of guilty. The Court: Your age is what? Defendant: 20. The Court: Speak up now so she can take this down.

You understand the right to a lawyer includes the right to have the public defender appointed for you if you have no funds, the court could upon your request appoint the public defender. Do you want to ask for tire public defender? Defendant: No, Sir, your Honor.” There was no further reference to counsel until after pronouncement of sentence three weeks later, but step by step, defendant was then advised of his right to indictment and signed a waiver; his right to jury trial, and signed a waiver; his right to trial by comt, and the possible penalty.

After defendant stated he was pleading guilty because he was in fact guilty and that no promise or threats had been made by anyone, the plea was accepted and the matter continued for defendant to file an application for probation. A pre-sentence investigation report prepared by a Probation Officer lists additional convictions for no driver’s license, petty theft, contributing to the sexual delinquency of a child, and leaving the scene of an accident. It further indicates the same trial court judge handled the present and all previous charges against defendant.

After opportunity to read the report during a brief Court recess, defendant acknowledged the prior petty theft and did not dispute any other statements in the report. At the hearing on probation, July 18, 1969, the trial judge said the parole officer was there to take defendant back “whatever the court did.” The State adopted the probation officer’s report as aggravation, and when asked if he had any mitigation evidence, defendant said he could see nothing else.

The assistant state’s attorney, however, said defendant had aided the police and had testified in three criminal cases, and upon the State’s recommendation, defendant was sentenced to a term of 1-5 years. Defendant concedes on this appeal that his right to counsel at arraignment was effectively waived. The question turns upon the court’s failure to again advise him of this right at sentencing. Like other rights, assistance of counsel can be knowingly and intelligently waived and the Constitution does not require that counsel be forced upon a defendant. (Carter v.

Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; People v. Bush (1965), 32 Ill. 2d 484, 207 N.E.2d 446; City of Chicago v. Kiger (1970) (Ill.App.2d), 264 N.E.2d 488.) But courts indulge every reasonable presumption against waiver and acquiescence in the loss of fundamental rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. While persons accused of federal crimes have long enjoyed the right to counsel guaranteed by the sixth amendment of the constitution of the United States, persons accused of serious state crimes could not necessarily claim the same protection until Gideon v.

Wainright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed. 2d 799, swept away a double standard and extended that fundamental right to defendants in state courts through the due process clause of the Fourteenth Amendment. It was rapidly expanded to critical stages other than the trial itself, as custodial interrogation (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); pre-trial identification procedures (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149); preliminary hearing (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999,); and in Mempha v.

Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, to sentencing following revocation of probation. Mc Connell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed. 2, applied the Mempha rule retroactively. We agree that sentencing is a critical stage of the proceeding, and in so doing are in agreement with People v. Vesley, 86 Ill.App.2d 283, 229 N.E.2d 886, and with the majority of other States. (Trimble v. State of Florida, 170 S.2d 453; State v. Strickland, 27 Wis.2d 623, 135 N.W.2d 295.) Later Case Service, 20 A.L.R.2d 1240-1246, Secs. 1, 3, notes a few decisions to the contrary.

It indicates many findings of federal and state courts before Mempha, supra, that sentencing is a critical state with a right to assistance of counsel unless there has been an effective waiver. These cases usually involve sentencing of a defendant in the absence of counsel, although there had been representation or appointment of counsel at an earlier stage of the proceeding. We must consider then, the suggestion of the State that this situation is distinguishable because defendant’s effective waiver at arraignment continued through the subsequent sentencing.

This is the rationale of a few cases noted in Later Case Service, 20 A.L.R.2d 1240-1246, sec. 3, including in Re Grayson, 242 Cal.App.2d 110, 51 Cal.Rptr. 145, which was decided prior to Mempha v. Rhay, supra. The Grayson court said the right need not be repeated every time the defendant comes to court, and that generally, where there has been an effective waiver, he must take some affirmative steps to reinstate the right to assistance of counsel. We must disagree in recognition of the flow of the law from Gideon v.

Wainright, supra, and the explicit direction of the Illinois Supreme Court: “A finding of waiver will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected the representation of appointed counsel.” People v. Hessenauer, 45 Ill.2d 63, 256 N.E.2d 791. There was no waiver of the right to assistance of counsel at sentencing as the record clearly shows there was neither offer nor rejection. It is to be expressly noted that the record discloses no plea bargaining in this case.

The defendant merely plead guilty to the offense charged. In this respect this case differs somewhat from those cases in which defendant has been represented by counsel and has entered into a "negotiated plea.” The ruling in this case is applicable to the instant factual situation where the defendant had no counsel at any time. We therefore affirm the judgment of guilty and reverse the order denying probation and imposing sentence. This cause is remanded with directions to set aside that order and to hold further proceedings consistent with the views expressed in this opinion.

Affirmed in part, reversed in part, and remanded with directions. ABRAHAMSON, J. concurs.