*1 sufficiently The attempted burglary. Illinois) of to present enable him of the event the State’s version apprised of as an below, will stand opinion, as this as well defense. The record burglary of attempted prosecution effective bar Thus, 14,1975. on October service station Super Clark particular the Clark possession of regarding ownership lack case, and a of this in the context not a whit” station “matters service unwarranted. is therefore reversal of defendant’s conviction erred trial court contended defendant has also Jury Pattern the Illinois failing give paragraph second by post- Criminal, not raised Instruction, point No. 3.02. Since v. Clark motion, we find been waived. trial to have 3d 472. of the circuit and sentence judgment reasons the foregoing For the County affirmed. Stephenson court of is therefore Judgment affirmed. GUILD, JJ.,
SEIDENFELD and concur. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF OF THE STATE ASAR, Defendant-Appellant. THOMAS BALD District No. 76-535 Second Opinion August filed RECHENMACHER, J., dissenting. *2 Ruebner,
Ralph Nolte, Mulder, Appellate B. Peter and Michael all of State Office, Elgin, Defender’s appellant. for Fitzsimmons, Attorney, Michael (Phyllis State’s and Wheaton Perko J. J. Anderson, Association, Attorneys counsel), Robert both of Illinois State’s for J. People.
Mr. NASH opinion delivered the of the court: JUSTICE Defendant, Baldasar, Thomas O. after by jury, trial was convicted of value, offense, of property exceeding theft not *150in as a a Class second (Ill. 1973, 38, 4 felony Rev. pars. 16—1(a)(1),(e )(1)) Stat. ch. 16—1 years sentenced to a term to three in the penitentiary. of one primary on appeal prior, issue is whether defendant’s constitutionally theft be misdemeanor conviction could present considered so to'elevate the theft offense to a misdemeanor felony thereby increasing penalty might the possible imposed which be upon conviction. holding Defendant contends the Hamlin 407 U.S. 32 L. 92 S. Ct. bars Ed. such agree. consideration. We do May
In 1975 trial defendant was convicted after bench misdemeanor theft and one-year probation was sentenced to a term of and fined *159. in represented by There evidence he was not counsel that trial and no that his at right defendant waived to counsel in that in on present August time. The case was tried an information alleged which first at trial petty proved conviction was penalty provisions order to invoke the Criminal Code enhanced provided 16— (Ill. for such recidivist conduct. Stat. Rev. 1(e)(1).) conviction, As a consequence, after defendant was sentenced the penitentiary penalty for conduct for the maximum would have which been a year penal term of less than one in a other than institution penitentiary except penalty possible for the made enhanced theft conviction.
In after a Argersinger, that defendant was convicted of a misdemeanor counsel, trial his right conducted without where he had not waived counsel, jail. voiding and he was that days sentenced to a term of conviction, stated, Supreme United States Court hold, therefore,
“We a knowing intelligent that absent waiver, offense, person may no imprisoned whether misdemeanor, petty, classified as felony, unless he was 25, 37, represented by at (407 counsel his trial.” U.S. 32 L. Ed. 2d 530, 538, 92 S. Ct. 2012.)
Defendant imprisoned contends that he has been case as a direct or collateral result of his prior uncounseled and the mandate of Argersinger has now been in that the violated earlier applied conviction was to enhance the penalty imposed for his subsequent theft conviction.
Defendant concedes that his earlier 1975 theft conviction was itself valid Argersinger. under represented by While he was not counsel that trial, he imprisoned also was not being after convicted of that theft penalty offense. The imposed then probation offense of and fine left that case the category recognized passed upon by but not the court in Argersinger stated, where it
“We need not requirements consider the of the Sixth Amendment as regards right involved, to counsel liberty where loss of is not however, petitioner for here was in fact jail.” sentenced to 407 U.S. 25, 37, 530, 538, 32 L. *3 Ed. 2d 92 S. Ct.
In Argersinger, the court person may held that no imprisoned offense, any petty, misdemeanor, felony or represented by unless he is has effectively waived his right to at trial. It counsel directed itself cases wherein an uncounseled defendant had been convicted of a criminal offense and was then sentenced to for that offense and that conviction. There is no in the language opinion suggesting a prospective application or readjudication right of defendant’s to counsel should he be convicted the future of the commission of another offense subject be then to another sentence. The that repeat notion offenders are subject to enhanced penalties for their conduct is so basic to our criminal justice system that it escaped could not have the notice of the Yet, Argersinger court. it carefully limited its holding to a conviction and the sentence imposed for that conviction.
The scope limited of Argersinger expressed is further in its statement that,
“The run of misdemeanors will by today’s ruling. not be affected But in those that up end deprivation person’s the actual of a liberty, the accused will receive the benefit guiding of ‘the hand of counsel’ necessary so liberty (407 when one’s is in jeopardy.” U.S. 25, 40, 530, 540, 2006, 32 L. Ed. 2d 92 S. 2014.) Ct. would, indeed, “run of misdemeanors” if be affected we were to
308
accept defendant’s argument court intended phrase “end up” language other contemplated have its application to the facts in the instant case. addition to the second or subsequent statute, sentencing provision offense our with which here, directly we are concerned there are at least 10 similar enhanced penalty statutes which could applied against repeat not then be they offender are designed though to affect even his earlier convictions met the Argersinger requirements as in the instant case.1
While Illinois previously courts of review applications have considered various (City (1976), contexts Danville v. Clark 63 Ill. 408, 348 844, 899, 50 184, 2d (1976), N.E.2d cert. 429 U.S. L. denied Ed. 2d 266; 97 418, S. Ct. People (1972), 397; v. Ill. Morrissey 52 2d 288 N.E.2d People 470, 396; v. (1972), Coleman 52 Ill. 288 2d N.E.2d v. Scott People (1976), 304, 517; 36 Ill. App. 343 People (1975), 3d N.E.2d v. 32 Ill. Kerner 676, 336 65; App. 1086, 3d People (1974), N.E.2d v. Schultz 21 Ill. App. 3d 183; 316 779, N.E.2d v. People Bailey (1973), 12 Ill. App. 3d 301 N.E.2d 481), none have the question presented decided we are in this case. Of those questions few states which similar concerning have considered extension of Argersinger, support position five would tend to herein reject while two would it. City The former include: Monroe v. (La. 108; 1974), Fincher 305 So. v. Ark. (1975), 2d Alexander State 258 928; 527 S.W.2d (Mass. 1975), Commonwealth v. Barrett 322 89; 950; Maghe (Okla. v. Crim. App. 1973), State 507 P.2d and State v. N.E.2d 406; Kirby (1972), 33 Ohio 62 Op. Misc. Ohio 289 the latter are v. Crim. Aldrighetti (Tex. App. 1974), State 507 S.W.2d 327, 317 (1974), and State v. McGrew Super. (1974). A.2d 390 We N.J. below, find that the in Aldrighetti, quoted conclusion reached correctly reflects scope of Argersinger.
This court has considered similar issues in
People
Placek
818, 357
Ill. App. 3d
v. Heal
Placek,
considered evidence of his traffic a fine against him showing for a current traffic in the absence a that he had represented by previous been counsel at such convictions. The court reviewed supreme and decisions of our v. People Morrissey (1972), 52 Ill. 2d court in 288 N.E.2d and People v. Coleman 470, 288 concluded, 52 Ill. 2d therefore,
“It apparent, is that is oriented toward resulting jail cases prison sentence and the doctrine of that case should have no application where no was confinement imposed. We do not believe it was ever intended to be extended to incarceration, fine, a traffic case where no but had been imposed.
Dealing
point,
Appeals,
with this
the Texas Court of Criminal
27, 1974,
an opinion delivered March
held as follows:
‘[Pjrior final
are
convictions which
otherwise admissible
may be used
purpose
punishment
enhancement of
though
even
obtained while
represented by
defendant was not
counsel and had not
counsel,
long
punishment
waived
so
as the
assessed
imprisonment.’ Aldrighetti
convictions did not include
State,
v.
It is our opinion, generally, that misdemeanors where no sentence is imposed, confinement are outside Argersinger.” Heal contemplation 965, 968, 313 N.E.2d that Heal recognize While we factually distinguishable from the imprisoned case because the therein because his applied sentencing conviction was issue and not for as an element of a second offense consideration prosecution inas still statements logic we find the of the court’s Argersinger prohibition persuasive. They reflect our view offense after an uncounseled conviction limited in application to a single case which defendant was convicted obtained, although was not limit properly intended to the use of a *5 310
uncounseled, in proceedings upon subsequent conviction future based of a defendant. We conduct believe to be true whether such use of the sought conviction is be made for purposes impeachment, to of sentence or, in determination as the instant to establish an a element of second or subsequent prosecution penalty might offense for which an enhanced imposed. accept
We do not defendant’s contention his prior, that use of directly uncounseled theft conviction results either in collaterally imprisonment for that offense. The fact is that he was sentenced to not, for his second theft conviction suggests, as he again, imprisonment, sentenced and this time to first for the theft A conviction. similar argument by urged to that advanced defendant was in arising cases under the former Criminal (repealed Habitual Act January by 1) effective Ill. Rev. Stat. 126 — him whereby repeated by criminal subject offenses a defendant made to penalties. supreme enhanced Our court that held where more severe punishment imposed was under the Act due to convictions the only. (People v. punishment Kirkrand (1947), was for the new crime 397 813.) logic That should here. apply are persuaded go beyond We further that should we the dictates of principle and extend its to in this case there would be apply little it why apply prohibit rational reason then would not also Heal, where, aggravation enhancement or sentence such cases as a sentencing necessarily past considered criminal judge conduct of defendant, lawful, prior or to the use of uncounseled conviction purposes Supreme defendant. The of the United States yet requires Court has not that the Sixth Amendment such determined extention and we will not do so hee. instructed, jury improperly
The was thus defendant also contends him requiring felony imposed upon theft sentence be vacated and resentencing the cause as a misdemeanor. remanded for prior theft we The State introduced evidence of both the conviction information, also, discussed, earlier which was after alleged testified, copy a certified of defendant’s introduced robbery purposes impeachment. jury The armed conviction theft, instructed on the elements of the offense of second offense correctly been being previously one element therein that defendant had charged, jury correctly by also instructed convicted of the offense of theft. Criminal, 3.13, Instructions, “[ejvidence No. that Jury Illinois Pattern by you a crime is to be considered previous the defendant’s conviction of witness, must not be credibility his as a may insofar as affect crime with which he by you guilt as evidence of his of the considered relating instructions charged.” No other jury. to the were submitted contained instruction the court’s jury if the followed argues He theft the former considered IPI No. 3.13 it could not have Criminal of his conviction) as evidence (as robbery well armed as the element and, therefore, necessary guilt not found could have only the leaving i.e., prior theft charged, offense support in the information alleged current misdemeanor jury. verdict of the jury in the any claim of error has
We find that defendant
waived
and by
on instructions
at
objecting
instructions
the conference
People Ahlberg
v.
failing
post
to raise the issue
his
trial motion.
42 Ill.
Clark
608;
regard
harmless. Evidence
trial,
was
at
for a
and limited
defendant
introduced
each
different
robbery
A
armed
purpose.
limiting
applicable
instruction
the
given.
impeachment
purposes,
properly
introduced
limiting
designed
clearly
While we believe
a similar
instruction
of an
of
impeachment
proof
differentiate
between
arid
element
the
such
charged
offense
have been
defendant
failed to offer
given,
should
instruction
assert
limiting
to the trial court and will not
allowed to
on
v. Willis
People
appeal
(1976),
that the
was not
instructed.
jury
properly
576;
v. Walls
People
33 Ill. 2d
defendant, is not to the case. a defendant was applicable present There alleging tried on an being containing separate indictment counts both (Ill. and felony weapons. misdemeanor offenses of use of Rev. unlawful felony ch. An 1(a)(2), (b).) Stat. element of the count par. 24 — felony was that defendant from the had been convicted of or released penitentiary years. (Ill. within five Rev. Stat. past the 1(b).) A that defendant prior felony conviction of was introduced 24 — felony necessary both to the element the count establish As in tried and for after testified. the being purposes impeachment he present the to consider evidence jury instructed court, however, only. The impeachment purposes trial only jury instructed that as to the of the misdemeanor count elements felony Clearly, as count. it was charged failed to instruct to the error felony trial the judgment against for the court to then enter defendant on jury general finding count after the returned verdict guilty of unlawful use weapons which did not it was specify whether felony under the misdemeanor count.
No similar present confusion exists the case there is no uncertainty as to the jury. jurors, determination of the We believe context, understood that limiting pertaining instruction prevent did not them properly considering from evidence of an element of the offense. if Obviously, they they had not done so would not have returned the guilty they verdict as did.
For judgment the reasons stated herein the trial court will be affirmed.
Affirmed.
BOYLE, J., concurs. RECHENMACHER, Mr. dissenting: PRESIDING JUSTICE respectfully I I recognize Argersinger dissent. court directed itself to cases an had wherein uncounseled defendant been convicted of a criminal offense and was then sentenced to for that offense I recognize conviction. further that in the instant case because, 1975 theft conviction itself was valid under while Argersinger trial, represented the defendant was not counsel at he also was However, imprisoned following his I do not with agree conviction. they its majority say “carefully when court limited holding imposed to conviction and the sentence for that conviction.” analyze
I would “Argersinger problem” by breaking the broad Argersinger-type cases into down four classifications:
(1) convictions; jail Uncounseled misdemeanor under no counsel, sentence imposed knowingly can be unless defendant has *7 waives counsel. case,
(2) Cases the subject like instant where a defendant is to much earlier, penalties more severe in a of an case because Imprisonment uncounseled misdemeanor conviction. in such cases would earlier, bé increased as a consequence direct of the uncounseled conviction.
(3) Cases similar to Ill. App. v. Heal wherein prior, the court are in a considers uncounseled convictions that contained presentence report. Although not really Heal did involve the problem (since jail imposed), no the court’s citation sentence Aldrighetti (Tex. 1974), in State Crim. 507S.W.2d the context pre-sentence of the report, implies prior, use the imposing can in misdemeanor convictions be considered the court and the Heal which both the State is Certainly this the view sentence. majority take. the approved the court Aldrighetti v. State wherein
(4) Cases like earlier, impeachment for uncounseled conviction introduction of an in Heal. Aldrighetti noted, ápproval As was cited with purposes. wholly different of cases of the last three classes Each one considerations, case) is (in type a a holding point on one policy the other point one of holding involving on distinguishable thus from case, prior, Thus, proof of the in the instant types example, of cases. for in and can State’s case chief is an element of the uncounseled conviction reasons, evidence, policy proven through competent be whereas for sentencing reports or at hearsay presentence in can be introduced Therefore, assuming the court hearing, such as was at issue Heal. in impeachment approved the use of uncounseled convictions Heal, in that arise policy in of the different considerations sentencing view no chief, Heal is the in when conviction is an element of case the in authority this case. for the introduction of the earlier conviction Further, case, extra years (potential) imprisonment in instant the two case, Aldrighetti In the are the direct result of earlier conviction. impeachment purposes, where the misdemeanor was introduced for imprisonment link the defendant’s between the conviction and remote, that, quite to state “but for” speculative; impossible or even it was gone jail, or the earlier defendant would not have said in the Heal can would have received a lesser sentence. The same be context, extent, though sentencing lesser since involves court’s discretion, and of that prior convictions but one factor the exercise are case, far direct Clearly, discretion. in the instant a more be case in consequence of the conviction than would use earlier involving presentence reports. cases either or my holding that a in this opinion, follows from these distinctions an as an precluding introduction of uncounseled conviction chief, directly to enhanced leading element of the State’s case punishment, of such preclude would not the introduction convictions Thus, holding here impeachment, would presentence reports. or for an enhanced provides arise convictions where the statute penalty upon a second conviction. to the uncounseled convictions
Turning primary question of whether cases, my thought question specific can used class of it is court, others, held that should in the This has negative. be answered where “the applied should be to invalidate direct collateral misdemeanor consequences from uncounseled added.) liberty imprisonment.” (Emphasis convictions relate loss of Here, 818, 821.) (People v. Placek the direct *8 consequence was an the uncounseled misdemeanor extra years basis, two added maximum sentence. On this seems to me that the instant case falls within and should be reversed and resentencing remanded a misdemeanor. WETHERELL, Wetherell, Minor, Guardian, BRIAN Linda his Mother and al., Plaintiff-Appellant, v. Defendants-Appellees. ROBERT MATSON et Fourth District No. 14019 Opinion August Rehearing filed denied 1977. October