People v. Sorensen

• Decision Date: 10 June 1977
• Docket Number: No. 76-319,76-319
• Citation: People v. Sorensen, 365 N.E.2d 171, 49 Ill.App.3d 984, 7 Ill.Dec. 886 (Ill. App. 1977)
• Parties: , 7 Ill.Dec. 886 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth SORENSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 171

365 N.E.2d 171

49 Ill.App.3d 984, 7 Ill.Dec. 886

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Kenneth SORENSEN, Defendant-Appellant.

No. 76-319.

Appellate Court of Illinois, Fifth District.

June 10, 1977.

Michael J. Rosborough, DeputyState Appellate Defender, Fifth Judicial Dist., Mount Vernon, Randy E. Blue, Research Asst., for defendant-appellant.

Glen L. Bower, State's Atty., Effingham, Bruce D. Irish, Ill. State's Attys.Assn., Statewide Appellate Assistance Service, Mount Vernon, of counsel, for plaintiff-appellee.

JONES, Justice.

Defendant, Kenneth G. Sorensen, after waiving counsel, entered a negotiated plea of guilty to a charge of forgery in the circuit court of Effingham County on February 2, 1976.Pursuant to the negotiations the trial court sentenced defendant to a term of imprisonment of two to six years.

Defendant sent a notarized letter to the court, filed March 2, 1976, requesting that the court allow him to withdraw his plea of guilty; the ground for the request was that defendant was addicted to drugs and consequently did not know what he was doing at the time he entered his negotiated plea of guilty.Pursuant to Supreme Court Rule 604(d)(Ill.Rev.Stat.1975, ch. 110A, par. 604(d)), the court appointed counsel to assist defendant in presentation of his motion to withdraw his plea of guilty and vacate the judgment.Counsel filed a motion to withdraw the plea on March 17, 1976.A hearing was conducted on the motion on March 26, 1976, after which the motion was denied.No transcript was made of this hearing.Defendant appeals.

Defendant contends that the trial court's denial of his motion should be reversed and the cause remanded for rehearing because neither defendant nor his counsel was provided with a transcript of the plea proceeding prior to the hearing on the motion.As a result of such failure, defendant was not afforded the opportunity to adequately present the defects in the plea hearing to the court for consideration in ruling on the motion to vacate.We agree and reverse.This disposition of the case best serves the interests of justice and provides defendant with the assistance that Supreme Court Rule 604(d) dictates.Ill.Rev.Stat.1975, ch. 110A, par. 604(d).

The record supports defendant's assertion that he and his counsel did not have a transcript of the plea proceedings at any time before the hearing on defendant's motion to vacate judgment and withdraw his plea of guilty.The motion filed on March 17, 1976, prays "that leave be granted to amend said motion upon receipt of the complete transcript of the proceeding which took place in said county on February 2, 1976."The record sheet of the circuit court shows that the transcript of the plea proceeding and the order of compliance was filed August 4, 1976.The file date on the transcript and order in the record confirm the record sheet.The order of compliance recites that a copy of the plea proceeding transcript was mailed to defendant on August 4, 1976.This date of filing and of the mailing to the defendant is months after the hearing on defendant's motion.The only evidence which tends to show that a transcript was available before the motion hearing is found in a record entry of February 2, 1976.The entry states, "Arraignment conducted as per transcript filed herein * * *."However, nothing in the record corroborates this statement.

Reiterating for the purpose of comment, defendant's plea was entered on February 2, 1976, his notarized letter to the court to withdraw his plea was filed on March 2, 1976 and a formal motion by his counsel to withdraw the plea was filed on March 17, 1976.The transcript of the plea proceedings, which is a part of the common law record, was not filed until August 4, 1976, a delay of five months.We find this delay inexcusable and prejudicial to defendant's rights to an expeditious appeal.

Research reveals no case in point on the issue whether it is reversible error for a hearing to be conducted on a motion under Supreme Court Rule 604(d) when no transcript has been provided to the defendant.We now hold that it is.From the language of Supreme Court Rule 604(d) it is obvious that where the defendant is indigent, as here, the court should appoint counsel and provide defendant with a transcript.The record shows that no transcript was provided.

Supreme Court...