Opinion
1983.
(58421) Winkler v. Charleston National Bank ........................ Denied.
(58860) Winner v. Casali ........................................... Denied.
(58371) Witkowski v. St. Anne's Hospital of Chicago, Inc.
(Ward, J., took no part.) ................................ Denied.
(58453) Wittenborn v. General Foods Corp. .......................... Denied.
(58774) W.J. Reese Associates, Inc. v. Rock Island Bank Trust Co. ......................................... Denied.
(58656) Wolinsky v. Kadison (Simon, J., took no part.) ............. Denied.
96 Ill.2d 543 111 Ill. App.3d 1159 People v. Hessenauer 45 Ill.2d 63 67-68 Mempa v. Rhay 389 U.S. 128 19 L.Ed.2d 336 88 S.Ct. 254 People v. Baker 92 Ill.2d 85 94-95 People v. Choate 71 Ill. App.3d 267 Lane v. Sklodowski 97 Ill.2d 311 97 Ill.2d 311 318-19 96 Ill.2d 545 113 Ill. App.3d 140 mandamus juvenile court judge mandamus APPENDIX I
The following is the text of Justice Simon's dissent from the denial of leave to appeal in People v. Edwards ().
Reported below: (Order under Supreme Court Rule 23).
JUSTICE SIMON, dissenting:
In my opinion serious errors were made in the disposition of this criminal case which, in view of the crowded conditions of our jails only recently noted by this court, as well as of constitutional considerations concerning waiver of counsel, warrant this court's attention.
The defendant, who had no previous involvement with the law, was prosecuted for battery and criminal damage to property. Before trial he was advised of his right to counsel but indicated that he did not wish to have an attorney. The following colloquy ensued:
COURT: * * * Now are you ready for trial?
DEFENDANT: Yes.
COURT: And you said before that you did not feel that you needed a lawyer?
DEFENDANT: Yes, Sir.
COURT: And you wanted to got to trial without a lawyer?
DEFENDANT: Yes.
COURT: That wasn't because you couldn't afford a lawyer you merely don't think the case is such that you should have a lawyer, is that right? Is that what you are telling me?
DEFENDANT: Pretty much.
COURT: No, tell me.
DEFENDANT: Yes.
The unpublished Rule 23 order of the appellate court indicates that the court admonished the defendant of his right to counsel on other occasions, but there is no indication in either the petition for leave to appeal or the appellate court order of what was said or whether the trial court described to the defendant any of the ways in which an attorney might be useful to him in a criminal prosecution.
The court found defendant guilty of both offenses with which he was charged. According to the petition for leave to appeal, it did not hold a hearing in aggravation and mitigation but sentenced him to 90 days in the Cook County House of Corrections. The defendant appealed, claiming the voluntariness of his waiver of counsel and trial by jury was not adequately demonstrated by the record the trial court allowed to be made, and that, even if he was properly found guilty as charged, he should have been given probation rather than a jail sentence. The appellate court rejected both contentions.
It appears from the appellate court's recitation of the evidence that the evidence as to guilt was closely balanced, and having an attorney at the trial might have made the outcome different. The admonitions that the Rule 23 order indicates were given amounted to no more than an attempt to pin down a reason for the defendant's desire to proceed without a lawyer; nowhere, apparently, did the court try to explain to the defendant, who was unfamiliar with the criminal process, that he had a right to cross-examine witnesses or that attorneys were useful for that purpose as well as many others, such as selecting a suitable trial strategy, raising objections to improper testimony, and advising whether a defendant should waive a jury trial. If this is all the record shows regarding the trial judge's admonitions, I do not understand how it could be maintained that the defendant intelligently surrendered known rights, as the law of this State requires that the transcript affirmatively demonstrate. (1970), , .
The failure to give proper admonitions in the first place was compounded by the court's failure to give any admonitions at all concerning waiver of counsel at the sentencing stage of the proceeding. The United States Supreme Court has held that there is a right to counsel at every critical stage of a trial and that sentencing is a critical stage.
( (1967), , , .) As it is quite possible for a defendant who did not wish counsel at the outset of the guilt phase of a trial to have second thoughts when it comes time for sentencing, the trial court must either have admonished the defendant clearly at some earlier stage of the proceeding that his right to counsel extended to the sentencing stage or admonished him anew at the time of sentencing.
( (1982), , .) No admonition of either sort is indicated in the petition for leave to appeal or the appellate court opinion.
I am also disturbed by the sentence that was imposed in this case. A sentence of imprisonment is proper only if necessary to protect the public or to avoid deprecating the seriousness of the offense.
(Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-1(a).) This defendant was a first-time offender and had held a full-time job for five years. The battery and property destruction here occurred during a family quarrel. Incarcerating the defendant for 90 days for breaking three windows and striking a relative in a heated family argument is a harsh sentence, even if it is less than the maximum that could be imposed for these offenses, and is certain to impair the defendant's ability to support his family. Although there is ordinarily a presumption that a sentence that is imposed in a criminal case is proper if it is within the statutory bounds ( (1979), ), that presumption may be rebutted by evidence showing abuse of discretion or nonexercise of discretion, and it is the duty of the sentencing court to develop evidence regarding what is a proper sentence. See Ill. Rev. Stat. 1979, ch. 38, par. 1005-4-1 (requiring the judge to hear evidence in aggravation and mitigation and arguments as to sentencing alternatives).
No hearing on mitigating factors was held, according to the
petition for leave to appeal, and therefore it is difficult to understand how the sentence imposed resulted from an exercise of discretion of the type contemplated by the criminal code. More importantly, however, imprisonment in this case will add to the crowding in our jails in addition to frustrating the defendant's chance to continue participating in society as a useful citizen. In (1983), , the Director of the Department of Corrections argued to this court that overcrowding in Illinois prisons was so dangerously close to the constitutionally permissible limits that he was justified in ordering early release of certain prisoners. Although we ruled in that case that he could not use the meritorious good-time provisions of the criminal code to alleviate prison overcrowding, we emphasized that crowded prison conditions may ultimately be the concern of the judiciary.
(, .) Certainly they are the concern of society. I believe that the starting point for this concern should be the trial courts, and that by imprisoning first-time misdemeanants guilty of the kind of conduct charged here our judicial system is closing its eyes to the possibility that United States district courts may be compelled to order release of prisoners guilty of far more serious conduct than what occurred here. For these reasons I would consider the imprisonment of this defendant a likely abuse of discretion, and I think this court should allow the defendant's petition for leave to appeal and hear the merits of his appeal.
APPENDIX II
The following is the text of Justice Simon's dissent from the denial of leave to appeal in People v. J.A.G.
().
Reported below: .
JUSTICE SIMON, dissenting:
I dissent from my colleagues' decision to deny leave to appeal in this case in order to object to the limbo in which the juvenile petitioner is left by being sentenced to the custody of the Department of Corrections, as well as to express my disagreement with the appellate court's conclusion that it could not entertain, by
means of a direct appeal, a challenge to the type of detention imposed on the minor in this case.
The minor, who had been in the custody of the Department of Corrections on previous occasions, was adjudicated delinquent because he committed three acts of battery. At the dispositional hearing an associate clinical services director of the McLean County Alcohol and Drug Assistance Unit's Lighthouse drug rehabilitation program, appearing by special leave of the court, reported that the minor had an extensive history of drug use, that his previous criminal activity as well as the three acts of battery charged in this case were connected to the use of mood-altering substances, that he needed residential care and counseling and extended family counseling in order to overcome his apparent dependence on these substances, and that her program offered this sort of care. Two probation officers testified that the minor had received no drug-related counseling or treatment at the Department of Corrections' juvenile facility at Hanna City, in which he had previously been confined and to which the State sought to have him sent in this case. The minor testified that he had received counseling at Hanna City but that it was only sporadic and was conducted by volunteers who had little first-hand knowledge of what drugs "were about." He also testified that he continued to take drugs while incarcerated at Hanna City because of the frequency with which they were smuggled in by residents.
The State offered no evidence contrary to this. The court sentenced the minor to the custody of the Department of Corrections and forwarded the Lighthouse program director's recommendations to the Department's Valley View Youth Center. The superintendent of Valley View responded that his facility did not have the ability to give the minor the treatment he required. The court failed to change its dispositional order, however, and this appeal followed.
I disagree first with the appellate court's conclusion that the issue raised in this appeal, which was essentially that the trial court abused its discretion by committing the minor to the Department of Corrections in the face of this record and that the
order it entered was unconstitutional, was cognizable only in a petition or injunction proceeding directed against officers of the Department. The substance of the petition was that the , not the officers of the Department, was guilty of an abuse of discretion which warranted immediate reversal of the disposition he had announced. Surely this is cognizable on direct review of the dispositional order, just as an unconstitutional imposition of the death penalty is directly reviewable. The officers of the Department do not have to be joined as parties: They have no interest at stake in such a proceeding.
More troubling, however, is the disposition of the minor in this case, which the appellate court allowed to stand. The record is full of evidence, which was not controverted, that the minor had a serious drug and alcohol problem which was the cause of his antisocial behavior, and that it was not improving with the limited treatment available in the facilities of the Department of Corrections. Despite this evidence, and the report which stated that he badly needed specialized treatment, the juvenile court placed him in the custody of a correctional facility where there is no treatment suitable to his needs. While perhaps nothing in the appellate court opinion prevents the minor from proceeding by injunction or against the Department of Corrections in order to be rescued from the bureaucratic quicksands in which the court's order places him, this seems from society's as well as the minor's viewpoint a most roundabout way to proceed, especially in view of the minor's own testimony that the availability of drugs in correctional facilities added to his drug problem and perhaps helped lead to his recidivism. A juvenile dispositional order should be tailored to an individual's needs with the view towards rehabilitating him, but even if this ideal cannot always be achieved, no order should be entered which is likely to make the problem worse. I predict that is what will happen in this case, and I therefore believe that the Supreme Court of Illinois should hear this appeal. I would allow the juvenile's petition for leave to appeal before the juvenile's condition is worsened rather than improved by his detention in a facility which appears to be unequipped to help him. I
believe we should look into this further because the appellate court's disposition appears to be a miscarriage of justice in that it approves the conclusion that nothing better can be done.