{ "id": 2491473, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY V. VALDERY, Defendant-Appellant", "name_abbreviation": "People v. Valdery", "decision_date": "1976-08-31", "docket_number": "No. 75-213", "first_page": "201", "last_page": "204", "citations": [ { "type": "official", "cite": "41 Ill. App. 3d 201" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5311314 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0685-01" ] }, { "cite": "321 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5310047 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0252-01" ] }, { "cite": "84 S. Ct. 790", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "11 L. Ed. 2d 657", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "376 U.S. 936", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379841, 379075, 379274, 379308, 379511 ], "opinion_index": 0, "case_paths": [ "/us/376/0936-03", "/us/376/0936-05", "/us/376/0936-04", "/us/376/0936-01", "/us/376/0936-02" ] }, { "cite": "375 U.S. 277", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11719292 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/375/0277-01" ] }, { "cite": "330 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414266 ], "weight": 2, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0151-01" ] }, { "cite": "188 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360555 ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0085-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 6, "pin_cites": [ { "page": "344" }, { "page": "805" }, { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] } ], "analysis": { "cardinality": 598, "char_count": 9777, "ocr_confidence": 0.879, "pagerank": { "raw": 1.9697402448054438e-07, "percentile": 0.7391627851662395 }, "sha256": "7518217bc2bf0fb4573c8970d4027756a90e8dec0a2e591c2517de02a0ea7149", "simhash": "1:ab2094e477e40cfc", "word_count": 1660 }, "last_updated": "2023-07-14T14:47:10.337116+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. LARRY V. VALDERY, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STENGEL\ndelivered the opinion of the court:\nDefendant appeals from a judgment of conviction for the offense of armed robbery. He was found guilty at the close of a trial by jury and was sentenced to not less than four nor more than 12 years. Defendant seeks a reversal and remandment for a new trial on three grounds: (1) alleged denial of representation by counsel where the sole basis for refusing court-appointed counsel was because he posted bail with funds borrowed from members of his family; (2) improper waiver of counsel; (3) alleged denial of his right to compulsory process. We are primarily concerned with the action of the trial court in failing to appoint counsel for defendant in this action.\nValdery was indicted on May 16,1974, and bail was set at *35,000. On May 21, 1974, the public defender was appointed to represent the defendant because of his indigency. On June 19, 1974, Valdery posted bail and was released from custody. Subsequently the public defender filed a motion for re-examination of the defendant\u2019s indigency on the grounds that he had been able to raise *3,500 to post bail. A hearing on that motion was held on June 28,1974, and the following discussion took place:\n\u201cThe Court: You put up *3,500 bond?\nThe Defendant: My people did.\nThe Court: Well the opinion of the court is that any man who can borrow or raise *3,500 for bail is not an indigent person. So on examination of indigence, the court finds that the defendant is not indigent, and the appointment of the Public Defender is vacated. You will have to get yourself a lawyer, Mr. Valdery.\u201d\nOn September 3, 1974, Valdery appeared in court and requested a continuance in order to retain counsel, and told the court that his brothers and sisters would not let him use the bond money to pay a lawyer. On September 16,1974, the defendant appeared again without counsel, and advised the court he had just started working and was only able to raise *109, but every lawyer wanted at least *1500 to take the case.\nOn September 27,1974, the State moved to have counsel appointed for Valdery and advised defendant the case was set for trial on October 28, 1974. The motion for appointment of counsel was denied and defendant was warned, \u201cNow you are either going to get yourself a lawyer or you are going to try the case yourself.\u201d\nValdery again appeared in court on October 28, 1974, but without counsel and claimed to be without money to hire one. Later that afternoon the State requested that the bail for Valdery be reduced to *25,000 so that Valdery could take *1,000 of the money posted to retain a lawyer. The court again continued the case for trial, and on October 30, 1974, Valdery reported that his mother had agreed to the State\u2019s proposal, but his brother had refused to allow him to use the bail money to pay a lawyer.\nThe defendant proceeded to trial pro se. The State presented two eyewitnesses to the armed robbery who identified defendant and described a tatoo of a cross on the defendant\u2019s forehead and a tatoo resembling a heart on the defendant\u2019s arm. The defendant presented alibi evidence that he was in Louisiana with his father and two brothers on the date of the offense. The defendant testified as well as his mother and two sisters. The defendant did not call any witnesses from Louisiana. The jury returned a verdict of guilty after deliberating for two hours.\nIn Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, the United States Supreme Court held the sixth amendment\u2019s guarantee of counsel for indigent defendants to be a fundamental right, essential to a fair trial, and thus made obligatory on the States by the fourteenth amendment:\n\u201c[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.\u201d (372 U.S. 335, 344, 9 L. Ed. 2d 799, 805, 83 S. Ct. 792, 796.)\nThe overwhelming weight of authority indicates that the right to counsel is one of the most fundamental rights known to our system of criminal justice and that, if the system must bend in any direction, it must be in favor of the implementation of that right.\nA number of cases have held that the fact that an accused succeeded in obtaining his release on bail does not conclusively determine his nonindigency for the purpose of appointment of counsel.\nIn People v. Eggers (1963), 27 Ill. 2d 85, 188 N.E.2d 30, it was held that the trial court committed reversible error where an attorney was not appointed for defendant solely because defendant had spent *350 for a bail bond. The State attempts to distinguish Eggers since the bail bond statute has been changed; yet in January of this year the supreme court issued a supervisory order in People ex rel. Baker v. Power (1975), 60 Ill. 2d 151, 330 N.E.2d 857, where court-appointed counsel had been denied because the defendant was at liberty on bail. Specifically citing Eggers, the court vacated the trial court\u2019s order denying appointed counsel and ordered a hearing to determine whether the petitioner was indigent and qualified for appointment of counsel \u201cwithout regard to petitioner\u2019s release on bail.\u201d 60 Ill. 2d 151, 152.\nThe A.B.A. Standards Relating to Providing Defense Services \u00a76.1 (1968), cites Eggers in support of its recommendation that \u201cCounsel should not be denied to any person merely because his friends or relatives have resources adequate to retain counsel or because he has posted or is capable of posting bond.\u201d\nIn a related case, although the United States Supreme Court was not required to decide the question of appointment of counsel, it was nevertheless stated, in a concurring opinion, that the fact that a defendant may be able to muster enough resources of his own or of a friend or relative, to obtain bail does not in itself establish his nonindigence for the purpose of purchasing a complete trial transcript. Hardy v. United States (1964), 375 U.S. 277,11 L. Ed. 2d 331, 84 S. Ct. 424, modification denied, 376 U.S. 936, 11 L. Ed. 2d 657, 84 S. Ct. 790. .\nHere the trial judge denied court-appointed counsel solely because funds were on deposit with the circuit clerk. We recognize that the trial judge was correct in asserting that present Illinois law provides that only the defendant may execute the bail bond (Ill. Rev. Stat. 1975, ch. 38, par. 110 \u2014 7(a)), but that does not establish that a cash deposit requires the court to find the defendant nonindigent and thus not eligible for court-appointed counsel. The position that bail funds are to be counted among defendant\u2019s assets was rejected in People v. Dabbs (4th Dist. 1974), 24 Ill. App. 3d 252, 321 N.E.2d 185.\nNothing in the various bail provisions mandates that a person who has made funds available for deposit on an accused\u2019s bond also has necessarily dedicated the funds to use for counsel fees.\nThe State\u2019s position would discourage potential benefactors from making bond deposits for trustworthy defendants. If the General Assembly intended to transmute bond money into counsel fee money for otherwise indigent defendants, it could have done so without any uncertainty. Such an interpretation by the trial court is not a rational extension of the legislation as enacted; on the contrary, it chills the statute\u2019s overriding concept and spirit to sub-zero standards.\nIn People v. Whitney (3d Dist. 1974), 24 Ill. App. 3d 685, 321 N.E.2d 317, in an unpublished opinion, this court reversed the defendant\u2019s conviction because of failure to appoint counsel where the record showed that the defendant possessed a minimal amount of assets without any demonstrable source of income. In reaching that decision, this court held that the determination as to the defendant\u2019s indigency should be made by the trial court on the basis of as complete a financial picture as is feasible and the court should give consideration to the fact that the defendant need not be totally devoid of means to be indigent, it being sufficient if he lacks the financial resources on a practical basis to retain a competent attorney to represent him.\nIt is obvious that counsel would have been of great value to defendant at the pre-trial stage and certainly during his jury trial. While we recognize the difficulties a trial judge faces in situations of this kind, in view of the record before us, we believe that the trial court in this cause did not properly exercise its discretion and that the failure to appoint counsel for defendant constituted reversible error. Here, the trial judge on remand should secure information as to Valdery s present actual financial status, independent of bail money loaned to him by others, before deciding whether he qualifies for court-appointed counsel.\nWe are aware that in many cases the funds deposited for bail are unconditionally the defendant\u2019s for use by him in retaining counsel. Had that been true here, the ruling of the trial court would have been appropriate. The other issues raised in this cause we need not discuss in view of our disposition of this appeal. This cause is therefore reversed and remanded to the trial court with directions to vacate the judgment in this cause and to appoint counsel for defendant, if he lacks funds to retain an attorney.\nReversed and remanded with directions.\nALLOY, P. J., and STOUDER, J., concur.", "type": "majority", "author": "Mr. JUSTICE STENGEL" } ], "attorneys": [ "Robert Agostinelli and Mary Robinson, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Martin Rudman, State\u2019s Attorney, of Joliet (Alan Bruggeman, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY V. VALDERY, Defendant-Appellant.\nThird District\nNo. 75-213\nOpinion filed August 31, 1976.\nRobert Agostinelli and Mary Robinson, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMartin Rudman, State\u2019s Attorney, of Joliet (Alan Bruggeman, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0201-01", "first_page_order": 229, "last_page_order": 232 }