dissenting:
If there is no right to counsel, how can it be reversible error to fail to inform a defendant that there is a right to counsel?
The issue presented here has already been decided by the Illinois Supreme Court. People v. Scott, 68 Ill. 2d 269, 369 N.E.2d 881 (1977), cert. granted sub nom. Scott v. Illinois, 436 U.S. 925, 56 L. Ed. 2d 767, 98 S. Ct. 2817 (1978), aff'd, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979).
Clearly, the purpose of Supreme Court Rule 401 is to assure the knowing waiver of the constitutional right to counsel. People v. MacArthur, 313 Ill. App. 3d 864, 731 N.E.2d 883 (2000), appeal denied, 191 Ill. 2d 549, 738 N.E.2d 932 (2000); People v. Stahr, 255 Ill. App. 3d 624 (1994), appeal denied, 155 Ill. 2d 574 (1994); People v. Haynes, 174 Ill. 2d 204, 241 (1996).
The case law is clear that, regardless of the sentencing options, the right to counsel under the state constitution or federal constitution attaches only if a defendant is actually sentenced to incarceration. People v. Scott, 68 Ill. 2d at 274.
The majority here ignores Illinois Supreme Court and United States Supreme Court precedent on the issue and then embraces Herring, while criticizing the Second District’s holdings in MacArthur, Stahr and Morgese. To reach its conclusion in Herring, the Fourth District simply ignored People v. Scott.
In dealing with whether the failure of the trial court to admonish defendant regarding his right to counsel required reversal of defendant’s conviction, our supreme court stated:
“Defendant finally asserts that, even if he is not entitled to the appointment of counsel, section 109 — 1(b)(2) required the court to advise him of the right to secure counsel and to have counsel present to assist him.
Again, assuming section 109 to be applicable to this case, we do not believe it supports the defendant’s contention. Although we recognize that all defendants are entitled to have counsel assist them in criminal proceedings, section 109 — 1(b)(2) does not require the court to advise them of this right in all cases. Since the defendant was penalized only by fine, he was neither constitutionally nor statutorily entitled to have counsel present. The court was, therefore, under no obligation to obtain a waiver before proceeding to trial without counsel and, hence, was under no obligation to advise the defendant of his right to counsel.” (Emphasis added.) People v. Scott, 68 Ill. 2d at 274, 369 N.E.2d at 883.
The above-quoted language comes from the same court that the majority speaks of when it says “ [presumably, the court has chosen to promote the public policy of ensuring that defendants who face jail time are fully apprised of their right to counsel at the time it will effectively serve its purpose — before trial.” 359 Ill. App. 3d at 284. I find this statement by the majority irreconcilable with the language used in People v. Scott.
The Scott logic and analysis were adopted by the Second District in MacArthur, Stahr and Morgese and labeled by the majority as not only strained, but ill-advised and inefficient. 359 Ill. App. 3d at 283. Criticizing the supreme court’s reasoning does not authorize the appellate court to disregard it.
Furthermore, the majority insists that the language of Rule 401 could easily be amended to effect the result reached by the Second District cases. 359 Ill. App. 3d at 283. Other than this assertion, the majority offers no proposed language. There simply is no way to amend the language of the rule without, in effect, eliminating all admonishments. This is because determining the right to counsel involves a retrospective examination of what occurred after the trial at sentencing.
The majority also seems to suggest that this case is distinguishable from People v. Scott because Supreme Court Rule 401 is being argued here and not there. Even if that were correct, Supreme Court Rule 401, in its present form, was in effect at the time People v. Scott was decided. The language in Supreme Court Rule 401 is no more or less mandatory than that contained in section 109 — 1(b)(2) or section 113 — 3(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109—1(b)(2), 113—3(b) (West 2004)), which were also at issue in People v. Scott, People v. Scott, 68 Ill. 2d at 273. What about the plain language of those statutes? There is no logical reason to treat the statutes differently than Rule 401 unless one believes that Rule 401 came from above the tree line on Mt. Olympus while the statutes came from the foothills. Does the majority suggest that we “enforce” supreme court rules, but not statutes? Of course, there is no law to support the conclusion drawn by the majority that every violation of a supreme court rule requires reversal.
Furthermore, a reading of the appellate court decision in Scott shows that Supreme Court Rule 401 was argued in that case. People v. Scott, 36 Ill. App. 3d 304 (1976). I take judicial notice of the briefs on file in the Illinois Supreme Court showing that the issue was also briefed in the supreme court. In Scott, the defendant specifically argued that he had “not knowingly and intelligently waived his right to counsel because he had not been advised of that right as required by section 109 — 1(b)(2) and by Supreme Court Rule 401(a)(3).” People v. Scott, 36 Ill. App. 3d at 312. The dissenting justice in the appellate court took the position offered by the majority here. Scott, 36 Ill. App. 3d at 314 (Leighton, J., dissenting). The Scott majority, however, in an uncontrollable fit of both common sense and logic, ruled that if there was no right to counsel, waiver under Supreme Court Rule 401 could not be an issue. People v. Scott, 36 Ill. App. 3d at 314. In affirming, the supreme court did not discuss Rule 401; however, it obviously agreed with the appellate court and found that since defendant was not sentenced to incarceration, he was neither statutorily nor constitutionally entitled to have counsel present and, therefore, waiver could not be an issue. People v. Scott, 68 Ill. 2d at 274. That Rule 401 did not apply is implicit in the supreme court’s decision. Rule 401 addresses waiver.
This case is as much about the power of the appellate court as it is about the constitutional right to counsel. The appellate court of Illinois previously rejected the same arguments made by defendant/ appellant here, including the Supreme Court Rule 401(a) argument. People v. Scott, 36 Ill. App. 3d 304 (1976). The supreme court affirmed. People v. Scott, 68 Ill. 2d 269 (1977). The majority opinion here is no doubt driven by a not unreasonable personal belief that all defendants facing convictions of offenses which carry the possibility of jail time have the right to counsel. However, this position has been rejected by both the Illinois and the United States Supreme Courts. See, i.e., Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972) (for an excellent discussion of both sides of the issue). Our supreme court can change the law whenever it chooses. We cannot. I therefore respectfully dissent.