People v. Hopping
| Decision Date | 24 March 1975 |
| Docket Number | 46634 and 46657,Nos. 46529,s. 46529 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Larry HOPPING, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Bruce KLINE, Appellant. The PEOPLE of the State of Illinois, Appellant, v. John YOUNG, Appellee, |
| Court | Illinois Supreme Court |
James Geis and Stephen P. Hurley, Ottawa, for appellants in Nos. 46529 and 46634.
Richard J. Wilson and John L. Swartz, Springfield, for appellee in Mo. 46657.
William J. Scott, Atty. Gen., Springfield, and Donald C. Woolsey, State's Atty., Galesburg , for the People in Nos. 46529 and 46634.
William J. Scott, Atty. Gen., Springfield, and Robert J. Bier, State's Atty., Quincy , for the People in No. 46657.
We have consolidated three cases in which leave to appeal was granted from three appellate court judgments which are in conflict as to whether the conviction of one who has entered a plea of guilty to a misdemeanor must be set aside because no verbatim transcript of the proceedings upon the entry of the guilty plea is available.
In No. 46529, the defendant, Larry Hopping, was charged with supplying liquor to minors in violation of the Dram Shop Act (Ill.Rev.Stat.1972, ch. 43, par. 131). On October 16, 1972, he appeared Pro se in the circuit court of Knox County and entered a plea of guilty. He was sentenced to 90 days' imprisonment at the Illinois State Farm at Vandalia. No transcript of the proceedings at the time of the entry of his guilty plea is available. The common law record includes the following:
'(T)he Court fully explains to defendant his rights under the law, his right to counsel and his right to a jury trial if he so desires, and further explains to the defendant the consequence and penalties which will result from a plea of guilty * * *.'
The record also includes a waiver of trial by jury, signed by the defendant. On November 13, 1972, the defendant filed a notice of appeal from the judgment entered on his plea of guilty.
Represented by appointed counsel on appeal, Hopping contended that his conviction should be reversed because: (1) there was no verbatim transcript available; (2) the record failed to show that the defendant had knowingly waived his right to counsel; and (3) the record failed to show compliance with Rule 402. The Appellate Court, Third District, dismissed the appeal (16 Ill.App.3d 275, 305 N.E.2d 610), holding that a verbatim transcript of the proceedings upon the acceptance of a plea of guilty to a misdemeanor is not required by the Federal or State constitutions and that the record did not show that the trial court had failed to comply with Rules 401 and 402. The court pointed out that the sufficiency of the trial court's compliance could have been reviewed upon a bystander's report of proceedings.
In No. 46634, the defendant, Bruce Kline, represented by retained counsel, pleaded guilty on June 5, 1972, to an information which charged him with possession of a substance containing cannabis in an amount more than 10 grams (Ill.Rev.Stat.1971, ch. 56 1/2, par. 704(c)). His motion to quash the information on the grounds that the statute involved violated the due process and equal protection clauses of the Federal and State constitutions had previously been overruled. The circuit court of Knox County sentenced him to the county jail for a period of 60 days. On June 30, 1972, Kline filed a notice of appeal. No transcript of the proceedings upon the entry of his plea of guilty is available. The common-law record includes the following:
Represented by appointed counsel on appeal, Kline argued that his conviction should be reversed because the record failed to show affirmatively that his guilty plea had been accepted in compliance with Rule 402. The Appellate Court, Third District (16 Ill.App.3d 1017, 307 N.E.2d 398), held that a verbatim transcript is not necessary to sustain the guilty plea because Supreme Court Rule 323 () provides an alternative method of compiling a report of proceedings in the absence of a stenographic transcript. The court noted that the defendant had not availed himself of this procedure.
In No. 46657, the defendant, John Young, was charged with two counts of deceptive practices (Ill.Rev.Stat.1971, ch. 38, par. 17--1) in that he, with intent to defraud and to obtain the property of the named victims, delivered checks to them knowing that the depositary bank would not honor them. On July 19, 1972, the defendant appeared Pro se in the circuit court of Adams County, entered a plea of guilty, and was sentenced to concurrent 90-day terms of imprisonment at the State Penal Farm. On the following day the defendant requested a transcript of proceedings and was informed that none was available. Included in the common-law record was the trial court's signed order, which stated:
The defendant Young, represented by appointed counsel on appeal, argued that the failure to transcribe verbatim the proceedings accompanying his plea of guilty deprived him of due process and equal protection of the law. The Appellate Court, Fourth District, agreed, one judge dissenting, and reversed the judgment of conviction and remanded the cause for further proceedings. (17 Ill.App.3d 960, 309 N.E.2d 80.) The majority took the position that, because the rules of this court require a verbatim transcript of the proceedings upon a plea of guilty to a felony, equal protection and due process of law are violated if a similar verbatim transcript is not furnished to one who pleads guilty to a misdemeanor.
The argument of the defendants rests upon Rules 401 and 402 of this court. Rule 401 deals with waiver of counsel, and it requires that in the case of an offense punishable by imprisonment in the penitentiary the proceedings relating to the waiver of counsel 'shall be taken verbatim, transcribed, filed, and made a part of the common-law record.' (50 Ill.2d R. 401.) Rule 402 is concerned with admonitions to a defendant in connection with th entry of a plea of guilty, and it similarly requires that in the case of an offense punishable by imprisonment in the penitentiary the proceedings required by the rule 'shall be taken verbatim, transcribed, filed, and made a part of the common-law record.' 50 Ill.2d R. 402.
The defendants contend that these rules must be construed to require that verbatim transcripts be furnished to indigent defendants who plead guilty to misdemeanors, and that, unless such transcripts are furnished to them, their rights to equal protection and due process under the fourteenth amendment to the Constitution of the United States have been violated.
The contention is that the kind of a record which these rules require with respect to felony cases must be furnished in misdemeanor cases as well. Rules 401 and 402, however, do not purport to state constitutional requirements. Their purpose is rather a prophylactic one, to provide for the preservation of a complete record on the basis of which to apprasie attacks made upon judgments of conviction in cases in...
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