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5 June 2000

Defendant, David MacArthur, proceeding pro se after hisretained counsel withdrew, was convicted by a jury of driving underthe influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West1996)) and driving with a blood- or breath- alcohol concentration(BAC) of 0.10 or more (625 ILCS 5/11--501(a)(1) (West 1996)). After obtaining counsel, defendant was sentenced to one year ofconditional discharge. The trial court denied defendant's motionfor a new trial, and he appeals. Defendant argues that the trialcourt abused its discretion in allowing defendant's counsel towithdraw without admonishing him pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) or otherwise ensuring thatdefendant's waiver of his right to counsel was knowing andintelligent. We hold that, because defendant was not sentenced toimprisonment, neither the constitutional right to counsel nor Rule401(a) requires reversal. Therefore, we affirm.

Defendant was charged by citation with improper lane usage(625 ILCS 5/11--709(a) (West 1996)) and operating an uninsuredvehicle (625 ILCS 5/3--707 (West 1996)) and was later charged bycomplaint with DUI and driving with a BAC of 0.10 or more. Defendant entered his written appearance and attorney John Carbonentered an appearance on defendant's behalf. On September 15,1997, Carbon and defendant informed the court that Carbon would nolonger represent defendant. The judge allowed Carbon to withdraw,set the case for jury trial on January 12, 1998, and told defendantthat, if he wished to retain counsel, his attorney should appearwell in advance of the trial date.

On January 12, 1998, defendant appeared pro se. The case wascontinued, and, when the parties next appeared for trial on April15, 1998, defendant was still pro se. Defendant said he was readyfor trial. The State dismissed the improper lane usage anduninsured vehicle charges and, after a jury trial, defendant wasfound guilty on both the remaining charges.

On May 12, 1998, the trial court appointed the public defenderto represent defendant and set May 20, 1998, for sentencing. OnMay 15, 1998, defendant's counsel filed a motion for a new trial. The motion did not assert any claims of trial error. Rather, itstated that defendant believed that there were good grounds for anew trial and that a trial transcript had been requested but notyet received. The motion requested that "this Court refrain fromruling on this motion until after Defendant has had an opportunityto supplement it; after which, Defendant *** will pray that thisHonorable Court grant him a new trial."

On May 20, 1998, the court held a brief sentencing hearing atwhich nobody mentioned the motion for a new trial. The courtsentenced defendant to a year of conditional discharge and costsand admonished defendant that he had 30 days in which to file anotice of appeal. The written sentencing order is not clear, butit appears defendant was sentenced only on the DUI conviction.

On August 1, 1998, defendant filed an amended motion for a newtrial. Observing that the court had yet to rule on his earlier-filed motion for a new trial, the amended motion alleged in partthat the court had erred in allowing defendant to proceed pro sewithout a sufficient inquiry into whether his waiver of his rightto counsel was voluntary and intelligent. On August 20, 1998,defendant filed a second amended motion for a new trial, adding a contention that the trial court erred in failing to follow SupremeCourt Rule 401(a) (134 Ill. 2d R. 401(a)) before acceptingdefendant's waiver of counsel.

After granting the State several continuances, the court heardthe motion on September 25, 1998. Both parties appeared and arguedthe merits of the motion. In denying the motion, the trial judgereasoned that seven months had passed between Carbon's withdrawaland the trial, and in that time defendant had simply elected not tohire an attorney even though he was not indigent and thus did notqualify for appointed counsel. Defendant filed a notice of appealfour days later.

Before addressing the merits, we must address the State'sargument that we lack jurisdiction to hear this appeal. Also, wemust independently consider whether we have jurisdiction and mustdismiss the appeal if jurisdiction is lacking. Ferguson v.Riverside Medical Center, 111 Ill. 2d 436, 440 (1985).

The State asserts that defendant's appeal is untimely. TheState recognizes that, under Supreme Court Rule 606(b) (134 Ill. 2dR. 606(b)), a criminal defendant must file a notice of appealwithin 30 days of the entry of the final judgment or, if a motiondirected against the judgment is timely filed, within 30 days ofthe entry of the order disposing of the motion. The State claimsthat defendant violated this rule because his May 15, 1998, motionfor a new trial was not filed within the required 30 days of theverdicts (see 725 ILCS 5/116--1 (West 1998)) and the notice ofappeal was not filed within 30 days of the final judgment, whichwas the sentence (see People v. Kuhn, 126 Ill. 2d 202, 207 (1988)).

We find no merit in the State's jurisdictional argument. Therecord shows that the written jury verdicts were filed on April 16,1998, and defendant filed his original motion on May 15, 1998, only29 days later. The State's arithmetic is incorrect, and the motionwas timely. When defendant was sentenced, the motion was stillpending. Thus, when the court entered the final judgment (thesentence), there was a pending timely motion directed against thatjudgment and defendant did not need to appeal until after the trialcourt ruled on this motion.

Finding no merit in the State's jurisdictional argument, weconsider sua sponte another jurisdictional issue. The "motion"defendant filed on May 15, 1998, did not actually raise any groundsfor a new trial but only requested that the trial court allowdefendant to raise such grounds later or when the trial transcriptbecame available. Arguably, this filing was in substance not amotion at all, but merely a notice of motion. A notice of motionis not a motion and does not satisfy a statute or rule thatrequires the filing of a motion. See Kollath v. Chicago Title &Trust Co., 62 Ill. 2d 8, 10 (1975). If we discount the "motion" ofMay 15, 1998, defendant did not file a motion directed against thejudgment until August 1, 1998, well over 30 days after the finaljudgment in this case. As a timely motion is necessary to extendthe time in which to appeal (134 Ill. 2d R. 606(b)), defendant'sappeal would be untimely and we would have to dismiss the case.

However, there is an exception to the timeliness requirementof Rule 606(b). Even in the event of an untimely postjudgmentmotion, the parties may revest the circuit court with jurisdictionby actively participating in proceedings that are inconsistent withthe merits of the prior judgment. People v. Kaeding, 98 Ill. 2d237, 241 (1983); People v. Eddington, 129 Ill. App. 3d 745, 751(1984). Here, even if defendant's postjudgment motion wasuntimely, the State (and the trial court) actively participated inproceedings on defendant's motion; indeed, the State even obtainedcontinuances so that it could respond to the merits of the motion. Under these circumstances, we have no doubt that the trial courthad jurisdiction to rule on the motion. As defendant filed hisnotice of appeal only four days after the ruling on his motion, hisappeal is timely and we may address the merits.

Defendant asserts that the trial court erred in accepting hiswaiver of his constitutional right to counsel without first (1)ascertaining that the waiver was knowing and voluntary or (2)admonishing defendant pursuant to Rule 401(a). The State respondsthat neither alleged omission is of any legal consequence becausedefendant was not sentenced to imprisonment. For the reasons thatfollow, we agree with the State.

In Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530,538, 92 S. Ct. 2006, 2012 (1972), the Supreme Court held that theconstitutional right to counsel means that "absent a knowing andintelligent waiver, no person may be imprisoned for any offense ***unless he was represented by counsel at his trial." In Scott v.Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979),the Court clarified that Argersinger's holding is indeed limited tocases where defendants are actually imprisoned. The indigent prose defendant in Scott committed an offense for which he could havebeen, but was not, incarcerated. The Court held that he had notbeen deprived of his constitutional right to counsel. The Courtstressed that actual imprisonment is "a penalty different in kindfrom fines or the mere threat of imprisonment *** and warrantsadoption of actual imprisonment as the line defining theconstitutional right to appointment of counsel." Scott, 440 U.S.at 373, 59 L. Ed. 2d at 389, 99 S. Ct. at 1162.

Supreme Court Rule 401(a) states that, before permitting awaiver of counsel by one accused of "an offense punishable byimprisonment," the trial court shall admonish the defendant of thenature of the charge, the minimum and maximum sentences, and that the defendant has the right to counsel and, if he is indigent, tohave counsel appointed. 134 Ill. 2d R. 401(a). The quotedlanguage might be read to require the admonishments wherever thereis a possibility of imprisonment. However, we have consistentlyheld that, like the constitutional right to counsel itself, theright to Rule 401(a) admonishments attaches only if the defendantis actually sentenced to imprisonment. People v. Stahr, 255 Ill.App. 3d 624, 626 (1994); People v. Morgese, 94 Ill. App. 3d 638,644 (1981). This is because the purpose of Rule 401(a) is toensure the knowing and intelligent waiver of the constitutionalright to counsel. Stahr, 255 Ill. App. 3d at 626; Morgese, 94 Ill.App. 3d at 640.

Defendant concedes that, under Scott, Stahr, and Morgese, anindigent defendant who is not actually sentenced to imprisonmentmay not complain on appeal that the trial court denied him hisconstitutional right to appointed counsel or that the trial courterred in failing to comply with Rule 401(a) before accepting awaiver of appointed counsel. However, defendant maintains thatthis case is distinguishable because, unlike Scott, Stahr, andMorgese, this case does not involve an indigent defendant for whomthe trial court would have to appoint counsel but rather a non-indigent defendant for whom no such affirmative action by the trialcourt would be necessary.

While defendant is correct that the aforementioned cases didinvolve indigent defendants, we do not see how anything in thoseopinions suggests that a nonindigent defendant's constitutionalright to counsel would be significantly greater than that of theindigent defendant. The key consideration in these cases is thatactual imprisonment is a punishment so different in kind fromlesser penalties that the constitutional right to counsel protectsonly against uncounseled convictions that actually result inimprisonment. Nothing in the pertinent case law suggests that anuncounseled conviction that does not result in imprisonment isconstitutionally impermissible if the defendant has enough money toretain counsel of his choosing.

Moreover, granting the relatively affluent defendant a broaderright to representation than that given the indigent defendant isthe sort of invidious discrimination that courts have proscribed. The Supreme Court has admonished us that a defendant's right tocounsel on his one appeal of right may not depend on " 'the amountof money he has.' " Douglas v. California, 372 U.S. 353, 355, 9 L.Ed. 2d 811, 814, 83 S. Ct. 814, 816 (1963), quoting Griffin v.Illinois, 351 U.S. 12, 19, 100 L. Ed 891, 899, 76 S. Ct. 585, 591(1956). Certainly, the same principle applies to the right tocounsel at the trial itself.

Defendant cites no authority holding that a nonindigentdefendant's right to retained counsel is greater than an indigent'sright to appointed counsel. Although the issue has not been raisedsquarely in Illinois, we have found one opinion from anotherjurisdiction rejecting any such two-tiered right to counsel.

In Layton City v. Longcrier, 943 P.2d 655 (Utah App. 1997),cert. denied, 953 P.2d 449 (Utah 1997), cert. denied, 523 U.S.1125, 140 L. Ed. 2d 949, 118 S. Ct. 1811 (1998), the pro sedefendant was convicted and received a fine and a suspended jailsentence. On appeal, he argued first that the trial court erred infailing to determine whether he was indigent and thus qualified forappointed counsel. The appellate court disagreed, explaining that,under Scott, only actual imprisonment triggered the right toappointed counsel. Longcrier, 943 P.2d at 658. The defendantargued second that, even if he did not qualify for appointedcounsel, the trial court violated his constitutional right toretained counsel. The appellate court observed that the defendantcould cite no case making the constitutional right to retainedcounsel broader than the right to appointed counsel, and itconcluded that any such disparity would treat defendantsdifferently solely because of their wealth and would thus run afoulof equal protection. Longcrier, 943 P.2d at 659-70. We agree withLongcrier's reasoning, and we similarly decline to make the rightto retained counsel broader than the right to appointed counsel.

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.