{
  "id": 4273269,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY O'LEARY, Defendant-Appellant",
  "name_abbreviation": "People v. O'Leary",
  "decision_date": "2007-09-24",
  "docket_number": "No. 2-06-0764",
  "first_page": "39",
  "last_page": "41",
  "citations": [
    {
      "type": "official",
      "cite": "376 Ill. App. 3d 39"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "42 Ill. 2d 249",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2848669
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/42/0249-01"
      ]
    },
    {
      "cite": "224 Ill. 2d 80",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        3606929
      ],
      "weight": 5,
      "year": 2006,
      "pin_cites": [
        {
          "page": "85-87"
        },
        {
          "page": "84"
        },
        {
          "page": "86"
        },
        {
          "page": "83"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/224/0080-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 301,
    "char_count": 4672,
    "ocr_confidence": 0.779,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.14330700361295196
    },
    "sha256": "fa38a3e5458ab3bf3f638d041f3f5f5e96308feb7601c47d9cb2430099acdd68",
    "simhash": "1:0bc84c4f75140d2e",
    "word_count": 785
  },
  "last_updated": "2023-07-14T14:46:29.545992+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY O\u2019LEARY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendant Mary O\u2019Leary appeals from her conviction of unlawful visitation interference (720 ILCS 5/10 \u2014 5.5 (West 2004)) and subsequent sentence of 1 year of conditional discharge and 10 hours of public service employment. She argues, among other things, that the trial court violated section 113 \u2014 3(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113 \u2014 3(b) (West 2004)) by informing her that she had no right to have a public defender appointed to represent her. The State concedes the point and notes that, in People v. Campbell, 224 Ill. 2d 80, 85-87 (2006), our supreme court held that a defendant has a statutory right under section 113 \u2014 3(b) to have a public defender appointed when the defendant is subject to any penalty other than a fine. We agree with the State that section 113 \u2014 3(b) confers a right to counsel in \u201call cases, except where the penalty is a fine only.\u201d 725 ILCS 5/113 \u2014 3(b) (West 2004).\nThe State further avers that Campbell provides that Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) \u201cmandates that the defendant be informed of her right to counsel.\u201d We disagree with the State on this point. As noted in Campbell, Rule 401(a) applies where a person is accused \u201cof an offense punishable by imprisonment.\u201d Campbell, 224 Ill. 2d at 84, citing 134 Ill. 2d R. 401(a). Unlawful visitation interference is normally a petty offense not punishable by imprisonment; however, any person found guilty of unlawful visitation interference who has two prior convictions of the same crime is guilty of a Class A misdemeanor, which may by punished by imprisonment. 720 ILCS 5/10 \u2014 5.5(c) (West 2004); see 730 ILCS 5/5 \u2014 5\u20143 (West 2004) (sentences available for various levels of offenses). The record indicates that defendant had been convicted one prior time of this offense. Therefore, this was not an offense punishable by imprisonment, and Rule 401(a) does not apply. Accordingly, though the State is correct that defendant was entitled to representation under section 113\u2014 3(b), it is incorrect that Rule 401(a) required the trial court to inform her of her statutory right' to counsel.\nAs this case demonstrates, section 113 \u2014 3(b) and Rule 401(a) do not always work in concert, as might be expected. There are cases in which a defendant may be subject to more than a fine, and thus statutorily entitled to representation, yet not subject to imprisonment, and thus not entitled under Rule 401(a) to be notified of the statutory right to representation. Campbell itself alludes to this apparent discrepancy by discussing People v. Dupree, 42 Ill. 2d 249 (1969), a case in which the supreme court held that a defendant had a statutory right to counsel but no right to be notified of it under a previous version of Rule 401(a). See Campbell, 224 Ill. 2d at 86.\nHowever, even if defendant here was not entitled under Rule 401(a) to be informed of her right to counsel, the State concedes that \u201cdefendant was told that she had no right to counsel.\u201d We take this concession as the State\u2019s acquiescence to defendant\u2019s argument that the trial court\u2019s statement \u201cpre-empted any attempt *** to request the public defender *** by affirmatively misinforming her that she had no right to court-appointed counsel\u201d and thus defendant cannot be said to have waived her statutory right to counsel.\nBecause defendant has discharged her sentence, and because the State has concluded that a new trial would not be \u201cequitable or productive,\u201d the State asks that we vacate defendant\u2019s conviction. While our supreme court has noted that \u201cnullification of a conviction may hold important consequences for a defendant\u201d (Campbell, 224 Ill. 2d at 83), which the State has elsewhere characterized as a \u201c \u2018windfall\u2019 \u201d (Campbell, 224 Ill. 2d at 88 n.1), we defer to the State\u2019s election not to seek retrial here.\nFor the foregoing reasons, we vacate defendant\u2019s conviction.\nVacated.\nBOWMAN and HUTCHINSON, JJ., concur.\nNeither party raises the issue of whether a sentence for a misdemeanor may qualify as \u201cimprisonment,\u201d but we note that subsection 5 \u2014 5\u20143(b)(4) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 5\u20143(b)(4) (West 2004)) refers to \u201cimprisonment\u201d as a punishment for misdemeanors.",
        "type": "majority",
        "author": "JUSTICE O\u2019MALLEY"
      }
    ],
    "attorneys": [
      "Thomas A. Lilien, of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Lawrence M. Bauer and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY O\u2019LEARY, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 06\u20140764\nOpinion filed September 24, 2007.\nThomas A. Lilien, of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Lawrence M. Bauer and David A. Bernhard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0039-01",
  "first_page_order": 57,
  "last_page_order": 59
}