*1
However,
suggestion
672.
Kirvelaitis,
See
gathering
evidence
other than
authority
purposes
for
of police
the use
107—3
under section
of an arrest
validity
any
wrong.
lights
emergency
Bergeron used his
argues
justify defendant’s
needed to
gather the
evidence
police
radio
Bergeron’s
observation
any part
played
disagree. Neither
arrest. We
lane,
was
of its
weaving in and out
car
defendant’s
Smith,
See
improper lane use.
for
him to arrest defendant
enough for
For the reasons petition for rescission County granting defendant’s of Kendall arrest, her quashing her driver’s license summary suspension of proceedings for consistent the matter further and we remand this decision. and remanded.
Reversed JOHNSON, JJ, concur. and GILLERAN HUTCHINSON ILLINOIS, Plaintiff-Appellee, THE THE OF PEOPLE OF STATE CAMPBELL, Defendant-Appellant. SHERMAN Third District No. 3 — 04—0034 August
Opinion filed LYTTON, J., specially concurring.
SCHMIDT, J., dissenting. Agostinelli, Robert Appellate Office, Ottawa, of State ap- Defender’s for pellant. *2 Tomczak, (Lawrence Jeff Attorney, State’s of Joliet M. Bauer and Deidre Donnellan, A. Attorneys both Appellate Office, State’s Prosecutor’s counsel), People. for the JUSTICE McDADE opinion delivered the of the court: In this case from County, defendant, the circuit court of Will Campbell, Sherman appeals from his driving conviction for aon suspended license, for which he 12 received months of conditional discharge and 240 hours of community Campbell, service. who represented trial, argues himself at that his conviction should be reversed and the case remanded because he was not admonished of his right to an attorney appointed represent him. For the follow- ing reasons, agree, and vacate his conviction and remand.
This case single question involves a law: whether 401) Court Rule 401 requires R. the reversal of a convic tion when a defendant who is imprison a crime for which possible ment punishment, is subsequently but who is not imprisoned charge, properly on that is not attorney admonished to an availability and the court-appointed provides rule open-court the court must admonishment of the counsel, including appointed counsel, person to “a accused anof of added.) fense punishable by imprisonment.” (Emphasis 134 Ill. 2d R. 401(a). split
We note a
between the Second and Fourth Districts of the
Appellate Court on this issue. The Second District has found that
only required
under Rule 401 is
in cases where the
subsequently
prison
is
sentenced
term.
MacArthur,
864,
App.
869,
883,
(2000);
313 Ill.
3d
731 N.E.2d
886-87
Stahr,
626,
624,
394,
(1994);
255 Ill.
3d
App.
627 N.E.2d
395
People Morgese,
1124,
94
App.
Ill.
3d
N.E.2d
relies,
conclusion,
The Second
in reaching
on
Illinois,
367,
Scott
L. Ed.
440 U.S.
2d
different result. In
762 N.E.2d
in
case
(2002),
failure to admonish
a
the court found that
the
imprisoned
reversible error.
actually
defendant was not
was
where the
N.E.2d at 1189.
Herring,
language
of the rule
agree
We
with the Fourth District.
punishable
imprisonment”
“person
by
of an offense
clear: a
accused
134 Ill. 2d R.
in
and on the record.
open
must be admonished
court
the
of
statutory
apply
interpretation
to
401. The rules of
construction
Roberts,
supreme
court rules.
rule,
objective is to
construing
primary
In
a
the
supreme
in
case the
enacting body,
intent of the
to the
256. If intent can be
Roberts,
court. rule, is no need to plain there language determined from the 116, 824 N.E.2d at Roberts, aids. interpretive resort suggestion of the analysis 1Because have undertaken we reasoning disregarded court’s criticized and dissent that we have inefficient,” only strained, is untrue. as “not but ill-advised and Stahr, application, in MacArthur and criticized is the 3d at 287. What we have of Wilk. reasoning Court Rule 401 in contravention language 256. When the plain unambiguous, the rule is we will exceptions, limitations, read into it or in conditions that are conflict with its clear meaning, inject and we will not provi additional Roberts, sions that are not found in the rule.
N.E.2d at 256.
In the meaning case of plainer cannot be admonishments are required when defendant has been with imprisonment offense for which is an penalty available under the statute. The easily court could amend the rule to effect the by result reached MacArthur but it has so. not done Presumably, promote chosen to public policy ensuring jail who face fully apprised defendants time are of their right effectively to counsel at the time it will its serve —before trial. The means which the public policy pursued plain will be on rule, depart face and we will not from it.
We believe that the Second District meshes the constitutional right with the admonishments established 401. may It be true that only requires the constitution that a defendant imprisoned assigned who has clearly counsel or right. However, waived that dealing are not itself, constitutional but rather with the admonishments, given must which to a defendant as established rule. We do not believe scope that the of the rule is tested or limited serves, requirement plain it but rather its language. Undoubtedly, the to counsel and the to admonishments about that derive from the same concern proper representation liberty defendants receive when their Nevertheless, rights stake. two are they originate different and from different sources.
In years nine after its decision in our Wilk, decided all directed that court’s rules of criminal
procedure procedure, sug mandatory; they are are rules of not mere gestions. They binding parties are on and courts alike. We are manner enforce unambiguous consistent with the rule. language Moreover, given prior sentencing trial admonishments are *4 end, matter, judgment. practical comes at the after the As a the failure imposition prison to the admonitions either forecloses the time requires a trial if the or new unadmonished defendant is incarcerated. open It question, present also leaves as what if fails meet the punishment imposed can be a defendant conditions community discharge probation perform requisite or of his or completely are avoided alternatives problematic service. Since such (as punishable op- any crime admonishing defendant counsel, as of his or her punished) incarceration posed MacArthur, directs, interpretation advanced Rule 401 and inefficient. only strained but ill-advised Morgese seems not required. least, Rule 401 compliance with very At the substantial 269, 274, 728 N.E.2d Stoops, (2000). the rule is sufficient when compliance with Substantial voluntary and where knowing and to counsel was did not by the defendant that was received N.E.2d rights. Haynes, prejudice his any not receive admonish the defendant does When however, court need not consider whether ments, reviewing Childs, People v. defendant his waived did not. clearly He 166-67 did that defendant not receive the record reflects 401. Because of failure admonishments consistent with Rule admonish, should be vacated and case the defendant’s conviction It at 1245. Stoops, remanded. likely sentence that the circuit pears that defendant has satisfied the County for conviction of this of appropriate court of Will found to be trial at this time would be both unfair requiring fense new resources. We believe to him and wasteful circuit court’s circumstances, unique simply vacating the conviction because of these remanding appropriate. the case be would
CONCLUSION proceed properly The defendant was not admonished of adopt we decline as with counsel in cases only requires admonishments interpretation the rule imprisonment, where unambiguous plain, interpretation supported is not since that find the defendant’s conviction language of the rule. We therefore the case remanded. must be vacated and and case remanded. Conviction vacated LYTTON, concurring: specially JUSTICE should that defendant’s conviction Justice McDade concur with vacated. be criminal guarantee both Illinois constitutions
The federal and Const., U.S. amend. represented defendants the only apply VI; I, § has been held art. 8. This Const. *5 286
when
actually
the accused is
sentenced to imprisonment. Argersinger
Hamlin,
25, 37,
v.
407 U.S.
32 L. Ed. 2d
92 S. Ct.
2012
(1977).
(1972);
People
v.
272
The Code
provides
of Criminal Procedure of 1963 also
for the
3(b) (West 2002).
right
1(b)(2),
to counsel. 725 ILCS
113—
5/109 —
These
judge
sections
the trial
to inform the
defendant of
(725
appoint
counsel and
counsel if
indigent
the defendant is
1(b)(2) (West 2002))
ILCS
penalty
only”
unless “the
is a fine
5/109 —
(725
(West
3(b)
2002)).
section,
ILCS
As
“penalty”
used in this
5/113 —
punishment
refers to the
actually imposed
upon
convic
tion,
a potential
not
punishment provided for in the criminal statute.
People v.
Illinois 401(a)), Court 401 Ill. 2d R. is issue in counsel, does not concern the rather the but court’s duties right. when a criminal defendant waives that Unlike the provisions, statutory application Rule 401’s depend does not on the penalty imposed, but on whether “punishable by the offense is ’’ imprisonment. defendant was with driving while his license was suspended, which punishable by imprisonment up year. for to one (West 303(a) 8—3(a)(1) (West 2002); 625 ILCS 730 ILCS 5/6 — 5/5 — 2002). Although defendant did not have to have counsel (see pointed 273-74), him for plain language required judge 401 that the trial concerning admonish him effects his represent 401(a); decision to himself. 134 Ill. R. People 2d (2002). Herring, v. 3d 262 Because the court did trial required, admonish defendant as defendant’s conviction should be vacated. SCHMIDT, dissenting:
JUSTICE If there is no how can it fail be reversible error to to inform defendant that there to counsel? presented
The issue
here
already
decided
the Illinois
(1977),
Court.
369
People
68
2d
N.E.2d 881
granted
Illinois,
cert.
Scott v.
sub nom.
436 U.S.
56 L. Ed. 2d
(1978), aff'd,
MacArthur,
(2000),
denied,
Ill. App.
3d
appeal
(2000);
Again,
section
to be
Although
the defendant’s contention.
we
supports
believe
recognize that all defendants are entitled to have counsel assist
1(b)(2)
them in criminal
does not
proceedings,section 109—
the court to
them of
in all cases. Since the
advise
this
fine,
penalized only
he
by
defendant was
ally
was neither constitution
was,
statutorily
counsel
The
present.
nor
entitled
therefore,
proceeding
obligation
under
before
no
to obtain waiver
and, hence,
obligation
to trial without counsel
was under no
added.)
(Emphasis
the
of his
to counsel.”
advise
defendant
People
majority says [presumably, of when it speaks the court chosen promote public policy ensuring jail the that defendants who face fully apprised time are the time it ef of their at will fectively Ill. at I find serve its trial.” 359 —before this the by majority language statement irreconcilable with the used People in v. Scott. logic adopted
The analysis Scott and were the Second District Morgese majority in and labeled the as not only strained, 3d at 283. but ill-advised and inefficient. 359 Criticizing reasoning does court’s not authorize disregard pellate court to it.
Furthermore, majority language that the of Rule 401 insists result the Second easily could be amended to effect the reached assertion, at cases. 359 283. Other than majority language. way There is no to amend proposed offers no without, effect, eliminating all admonish- language of rule in
ments. This is determining because to counsel involves a retrospective examination what occurred after the trial at sentenc- ing. majority suggest also that distinguish seems this case is
able People from v. Scott because Court being argued correct, Supreme not there. Even if were that Court form, present its People in was in at the time v. Scott language decided. Court Rule 401 is no more or 1(b)(2) less mandatory than contained in that section or section 109— 3(b) of the Code Criminal Procedure of 1963 ILCS 113— (West ( b) 5/109—1(b)(2), 2004)), which were also issue in 3 113— 273. What about the plain language those logical statutes? There is reason treat differently statutes than Rule 401 unless one believes that Rule 401 came from above the line on Olympus tree Mt. while the statutes came majority suggest from foothills. Does the that “enforce” rules, course, but not statutes? Of there is no law to support every the conclusion drawn that violation of a requires court rule reversal.
Furthermore, reading appellate court decision argued shows that Court Rule 401 was in that case. judicial 3d 304 take notice briefs on showing file in Illinois Supreme Court the issue was also briefed in the court. In specifically argued he knowingly had “not intelligently waived he had not been as because advised 1(b)(2) 401(a)(3).” by Supreme section Court Rule 109— *7 Scott, justice v. 312. dissenting appellate The in the position court majority took offered here. J., (Leighton, dissenting). however,
3d at 314 majority, The Scott an logic, uncontrollable fit of both common and that if sense ruled there was no under waiver Court Rule could affirming, not be an issue. 314. In 401; however, obviously agreed did not discuss Rule appellate with the found that since defendant was not incarceration, statutorily he was constitution neither nor ally present and, therefore, could entitled have counsel be an That Rule 401 did not issue. 274. ply implicit in the court’s decision. Rule 401 addresses waiver. court as power appellate
This case as much about the it is appellate about the The court of Il- previously rejected arguments linois the same made defendant/ 401(a) argument. here, including Supreme Court appellant court affirmed. 3d 304 opinion here is Ill. 2d 269 all defendants personal not unreasonable belief driven doubt jail time carry possibility facing convictions of offenses rejected by However, position has been See, i.e., Arg Supreme Courts. and the United States both the Illinois Ct. 2006 Hamlin, 25, 32 L. Ed. 2d S. ersinger issue). (1972) (for Our discussion of both sides excellent cannot. change it chooses. We court can the law whenever respectfully dissent. MURPHY, In re OF WILLIAM Petitioner and Counter MARRIAGE MURPHY, respondent-Appellee Cross-Appellant, and CATHERINE A. Respondent Counterpetitioner-Appellant Cross-Appellee. 3—04—0142, cons.
Third Nos. — 0310 3—04 Opinion August filed