dissenting:
The opinion of the court declares that, “Sentencing is a critical stage with a right to assistance of counsel unless there has been an effective waiver.” (Emphasis added.) While agreeing with the basic tenet, my differing view stems from the interpretation and application of the emphasized portion to the case at bar.
The citations in the majority opinion relate to the assistance of counsel during the critical stages of a criminal proceeding, there being five such stages: interrogation, identification, preliminary hearing, arraignment and sentencing, the last to include a hearing for the purpose of revoking probation. I have no disagreement with the cited cases under the circumstances disclosed by each, but feel that they are not responsive and can each be distinguished from the issue presented in this review. A reading of the cases discloses that the defendant was not admonished of his right to counsel, was improperly admonished of such right or, even though represented, his counsel was not present at one of the critical stages of the case.
In Hessenauer, one of the principle cases relied upon by the majority, counsel was appointed for the defendant at his preliminary hearing. Subsequently, at his arraignment, the defendant appeared pro se and entered a plea of guilty. Prior to the entry of the plea, he was advised of his right to be indicted by the grand jury, his right to trial by jury and his right to be represented by an attorney during trial. However, he was not advised of his right to have counsel present at this arraignment while his rights were being explained and waived. The judge made no inquiry with regard to the absence of the attorney whom he had appointed, nor did he ask the defendant if he wished to proceed without counsel. Quite obviously, the case was reversed for failure to advise the defendant of his right to counsel at a critical stage of the proceeding — the arraignment itself.
In Vesley, the defendant was originally improperly arraigned; however, this was corrected and, upon re-arraignment, the Public Defender was appointed to represent him. At the time of sentencing, for some unexplained reason, the Public Defender did not appear. The court proceeded and sentenced the defendant. Obviously, the case should have been, and was, reversed. The same factual background is found in Trimble and Strickland, and the same results correctly followed.
In the instant case, the admonishment was unusually explicit in covering, not only the arraignment stage, but also the sentencing stage, when the judge asked the defendant, “Do you understand you have a right to have a lawyer represent you at all stages from now on?” (Emphasis my own.) The majority found this to be a proper waiver of counsel for acceptance of a plea of guilty, but insufficient as to the waiver of counsel at the sentencing stage.
Before accepting the plea of guilty, the trial court advised the defendant of his right to counsel in strict compliance with Supreme Court Rule 401 (Waiver of Counsel) and 402 (a)-(c) (Plea of Guilty). Both rules provide that the defendant must be informed of the minimum and maximum sentence that may be imposed. This was done.
It is my opinion, because of the verbiage used by the court, and even though a three-week period intervened between the acceptance of the plea and sentencing (which is customary), the defendant knew and understood that his waiver of counsel at the time of arraignment meant a complete waiver of counsel for the balance of the proceedings then under consideration by the court.
We are not here concerned with whether a waiver of counsel at the time of revocation of probation, preliminary hearing or preceeding critical stages constitutes a waiver at the time of arraignment, nor are we concerned with fully protecting the rights of the accused on the basis of his innocence. What is involved is whether an admitted offender can. at the time of arraignment, on a plea of guilty, waive counsel for the ensuing proceedings when a proper admonishment has been given.
It is my opinion that there was no duty upon the trial judge in this case to repeat the charge prior to sentencing. Once the right has been properly explained and waived, as I believe was done in this case, the defendant should have the duty to take some affirmative action to reinstate the waived right.
I am of the opinion that the defendant herein effectively waived his right to counsel for the purpose of sentencing and, therefore, I would affirm the trial court in all respects.