filed:  January 24, 2002

Defendant Pamela E. Herring appeals from a convictionfor driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a) (West 1998)) and two convictions for driving while licenserevoked (DWR) (625 ILCS 5/6-303(a) (West 1998)). We reverse andremand.

I. BACKGROUND

Defendant was charged with DUI on March 16, 1999. Defendant was also charged twice with DWR, once on November 3,1999, and again on November 15, 1999.

The separate bench trials for the DUI and DWR charges,(along with some other charges which are not relevant to thisappeal) were all held on March 31, 2000. The first trial thatday was for the DUI. Prior to the trial date, defendant'scounsel had filed a motion to withdraw because he was not gettingpaid. Counsel's motion was allowed and defendant proceeded prose in her trial for DUI and in her DWR trial later that day. Noverbatim transcript was made of the DUI trial and there is noindication in the record that the trial court admonished defendant of her right to counsel or that defendant waived counsel. Defendant has provided a Supreme Court Rule 323 "bystander'sreport" (166 Ill. 2d R. 323 (c)) of the DUI trial prepared andsigned by the trial judge.

Regarding the DUI, the arresting officer testified thaton March 16, 1999, he observed defendant's car swerve across thecenterline three times. One time, an oncoming car had to driveup onto the curb to avoid colliding with defendant's car. Theofficer followed defendant with his lights on for approximatelythree blocks before she pulled over. Defendant smelled ofalcohol and swayed as she walked. Defendant denied drinkinganything but cough syrup and told the officer that she sufferedfrom hypo-thyroidism. Defendant refused to take field-sobrietytests, but she did submit to a horizontal gaze nystagmus (HGN)test, which results indicated to the officer that defendant wasintoxicated. Defendant was arrested and transported to jail. The jailer testified that defendant smelled strongly of alcohol,was belligerent, emotional and confused, spoke incomprehensiblyat times, took her shoes off and then asked where her shoes were,and admitted drinking that night. The bystander's report doesnot indicate whether a breathalyzer test was administered orrefused.

The trial court found defendant guilty of DUI andsentenced her to 12 months of court supervision and imposed a$600 fine. At a separate bench trial that day, the trial courtfound defendant guilty of both counts of DWR and sentenced her to14 days in jail for each count, sentences to run concurrently,and imposed a $200 fine for each count. This appeal followed.

Defendant seeks reversal of her convictions for DWR,arguing that her waiver of counsel was not effective becausethere is no verbatim transcript of her waiver and the trialcourt's admonishments as required by Supreme Court Rule 401(b)(134 Ill. 2d R. 401(b)). Defendant seeks reversal of her conviction for DUI, arguing that the trial court erred in consideringevidence of the HGN test without first conducting a Frye hearing(see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The State argues that defendant has waived the issue ofwhether she effectively waived counsel because she did not objectat trial or in a posttrial motion. See People v. Johnson, 119Ill. 2d 119, 131, 518 N.E.2d 100, 105 (1987). This court hasconsistently held that the right to counsel is so fundamentalthat we will review as plain error a claim that there was noeffective waiver of counsel although the issue was not raised inthe trial court. See People v. Robertson, 181 Ill. App. 3d 760,763, 537 N.E.2d 1036, 1039 (1989); People v. Langley, 226 Ill.App. 3d 742, 749, 589 N.E.2d 824, 829 (1992); People v. Stoops,313 Ill. App. 3d 269, 273, 728 N.E.2d 1241, 1244 (2000). Wetherefore address defendant's claim on appeal.

Supreme Court Rule 401(a) provides in pertinent partthat a trial court "shall not permit a waiver of counsel by aperson accused of an offense punishable by imprisonment," withoutfirst giving defendant the admonitions contained within Rule402(a). 134 Ill. 2d R. 401(a). "There can be no effectivewaiver of counsel without proper admonitions." Langley, 226 Ill.App. 3d at 749, 589 N.E.2d at 829. A waiver of counsel can beeffective if the admonitions given substantially comply withthose found in Rule 401(a). Stoops, 313 Ill. App. 3d at 273-74,728 N.E.2d at 1244. "Whatever admonishments are given to adefendant, however, must be included in the record since Rule401(b) requires that when a defendant waives the right to counsel, the proceedings must be recorded verbatim, and strictcompliance with Rule 401(b) is required." (Emphasis added.) Stoops, 313 Ill. App. 3d at 274, 728 N.E.2d at 1244. In thiscase, because Supreme Court Rule 401(b) was not strictly compliedwith and there is no verbatim record of whether defendant knowingly and voluntarily waived her right to counsel, waiver ofcounsel was ineffective and we must reverse the convictions forDWR and remand for a new trial. See People v. Montgomery, 298Ill. App. 3d 1096, 1099-1100, 700 N.E.2d 1085, 1088-89 (1998),appeal denied, 182 Ill. 2d 563, 707 N.E.2d 1243 (1999).

Defendant has neglected to argue on appeal that the DUIconviction must also be reversed on the basis of ineffectivewaiver of counsel. The State, however, anticipated the logicalconclusion that the ineffective waiver of counsel requiredreversing all of the convictions in which defendant was unrepresented, including the DUI. In its brief, the State implicitlyargued against reversing the DUI conviction because defendant wasnot actually sentenced to prison for that charge. The Statecited a series of cases from the Second District which found thatwhile the actual language of Supreme Court Rule 401(a) "might beread to require the admonishments wherever there is a possibilityof imprisonment," "we have consistently held that, like theconstitutional right to counsel itself, the right to Rule 401(a)admonishments attaches only if the defendant is actually sentenced to imprisonment." People v. MacArthur, 313 Ill. App. 3d864, 869, 731 N.E.2d 883, 886-87 (2000) (citing People v. Stahr,255 Ill. App. 3d 624, 626, 627 N.E.2d 394, 395 (1994)), appealdenied, 191 Ill. 2d 549, 738 N.E.2d 932 (2000); People v.Morgese, 94 Ill. App. 3d 638, 644, 418 N.E.2d 1124, 1129-30(1981). In accord with our prior rulings, we address this issueas plain error.

Rule 401(a) provides that the court must give theadmonishments regarding waiver of counsel to "a person accused ofan offense punishable by imprisonment." (Emphasis added.) 134Ill. 2d R. 401(a). The Second District has, in our opinion,misinterpreted the rule as if it read that the court must giveadmonishments to "a person convicted of an offense and punishedwith imprisonment." We recently declined to follow the SecondDistrict's interpretation that Rule 401 rights only attach when adefendant is actually sentenced to imprisonment. See Stoops, 313Ill. App. 3d at 275, 728 N.E.2d at 1245 (conviction of defendantwho was sentenced to probation reversed because trial court didnot properly admonish him in accordance with Rule 401(a)).

In this case, defendant was charged with DUI, a Class Amisdemeanor punishable by imprisonment (see 625 ILCS 5/11-501(c)(West 2000); 730 ILCS 5/5-5-3 (West 2000)), and the trial courtwas obligated to properly admonish defendant in accordance withRule 401(a). Because there is no verbatim record of the admonishment and alleged waiver of counsel as required by Rule 401(b),we find that defendant's waiver of counsel at her DUI trial wasineffective. We therefore reverse the DUI conviction and remandfor a new trial. B. Frye Hearing

Defendant also argues that her conviction for DUI mustbe reversed because the trial court erred in admitting evidenceof a HGN test without conducting a Frye hearing. See People v.Kirk, 289 Ill. App. 3d 326, 332, 681 N.E.2d 1073, 1077 (1997)(HGN evidence inadmissible without Frye hearing in the trialcourt); see also People v. Basler, 193 Ill. 2d 545, 550, 740N.E.2d 1, 4 (2000) (criticizing Kirk). Under this court's rulingin Kirk, on remand the trial court should conduct a Frye hearingregarding the HGN test evidence before considering that evidenceat the new trial.

III. CONCLUSION

We reverse defendant's convictions for DWR and DUI andremand the cases for new trials.

Reversed and remanded.

STEIGMANN, J., specially concurs.

MYERSCOUGH, J., specially concurs in part and dissentsin part.

JUSTICE STEIGMANN, specially concurring:

Reversible error occurred in this case because thetrial court took an action that was both unnecessary and unwise: letting defendant's trial counsel withdraw after entering hisappearance on the ground that he had not been paid. One way toavoid this problem is to put all defense counsel on notice thatwhen they enter their appearance in a criminal case, they willnot be permitted to withdraw on the ground that they had not beenpaid. (This is a practice I successfully used for 12 1/2 yearsas a trial judge.) Such a policy (1) places defense counsel onnotice that entering an appearance in a criminal case is aserious act, not to be engaged in frivolously, and (2) greatlysupports the trial court's administration by removing uncertaintyabout the representation of defendants whose cases are set fortrial.

Perhaps the unfortunate result in this case willconvince this trial court to adopt this policy.

I concur with the majority that there is no verbatimrecord of the admonishment and waiver of counsel required by Rule401(b). Reversal is, therefore, warranted on the DUI. (However,I do note that such a record would not be required had the Statecompletely waived jail time on the offense, whether at sentencingor on revocation of supervision).

However, I disagree that a Frye hearing is required onthe HGN test. While the supreme court may not have spoken withone voice, the supreme court has, nonetheless, spoken. People v.Basler, 193 Ill. 2d 545, 740 N.E.2d 1 (2000).