WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
Judges D.J. NORMOYLE and HAROLD P. O'CONNELL, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1960.
In April, 1930, the defendant, Henry Berman, was tried by jury in the criminal court of Cook County for armed robbery, found guilty and sentenced to the penitentiary for a term of one year to life. His oral motion for a new trial was overruled.
Berman was represented by counsel appointed by the court, but no court reporter was provided to take shorthand notes of the trial proceedings. The record indicated that official shorthand reporters began their employment in the criminal court of Cook County on April 1, 1931. Prior thereto, a defendant in that court who desired to obtain the services of a shorthand reporter personally procured such reporter and paid for his services. It is undisputed that Berman was indigent and had no funds with which to pay for such services.
Since his original sentence in 1930, Berman has been continuously confined except for three periods of parole, which he violated after periods of liberty varying from a few months to nearly three years. In January of 1954, he filed a petition in the criminal court of Cook County under the Post-Conviction Hearing Act, (Ill. Rev. Stat. 1959, chap. 38, par. 826 et seq.) alleging that his constitutional rights had been violated through his inability to completely review his conviction on the merits because the proceedings at his trial had not been reported. On motion, this petition was dismissed in the trial court. On May 25, 1954, in cause No. 1699, we denied writ of error to review the judgment dismissing the petition on the ground that failure to report the trial did not raise a constitutional question.
On February 27, 1957, Berman filed a petition in the criminal court under Rule 65-1 (Ill. Rev. Stat. 1957, chap. 110, par. 101.65-1,) in which he requested a free copy of the transcript of proceedings at his trial. Since no such transcript was available, the court denied the petition under the following provisions of the rule: "In the event the court finds that it is impossible to furnish petitioner a stenographic transcript of the proceedings at his trial because of the unavailability of the court reporter who reported the proceedings and the inability of any other court reporter to transcribe the notes of the court reporter who served at the trial, or for any other reason, the court shall deny the petition." Ill. Rev. Stat. 1957, chap. 110, par. 101.65-1(2).
After the petition had been denied, Berman filed a petition for writ of error in this court requesting that the 1930 judgment and sentence be set aside and the cause remanded for a new trial. We appointed counsel to represent him, after which a motion for a new trial was filed in the trial court in order to perfect an adequate record for review. This motion, which was denied on September 30, 1958, alleged that Berman was unable to obtain appellate review of his conviction on the merits because of the State's failure to provide a court reporter to attend the trial and transcribe the proceedings. The motion for a new trial and order denying it have been added to the record on appeal and we granted writ of error to review the judgment of the trial court.
It is defendant's position that the failure of the State to provide a transcript of the proceedings at his trial deprived him of his constitutional right to obtain a proper appellate review of his conviction as required by the United States Supreme Court in Griffin v. Illinois, 351 U.S. 12, 100 L.ed. 891; that by virtue of the decision in Griffin, every indigent defendant in this State has the right to have furnished to him, free of charge a complete transcript of the proceedings at his trial regardless of circumstances or conditions and irrespective of the possibility of its obtainment; that failure to furnish such transcript, for whatever reason, requires that defendant be given a new trial, otherwise the guarantees of due process and equal protection of the law of the fourteenth amendment of the United States constitution have been violated.
Defendant argues that the responsibility for lack of availability of transcript rests with the State, since it should have provided a reporter but failed to do so. He relies additionally upon Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 2 L.ed.2d 1269. The questions presented here are the constitutionality of our Rule 65-1 and whether, under the circumstances of this case, Griffin or Eskridge require that defendant be granted a new trial.
After the decision of the United States Supreme Court in Griffin, we adopted Rule 65-1 to meet its constitutional requirements. We fully considered the scope, philosophy and purpose of that rule in People v. Griffin, 9 Ill.2d 164, and People v. Johnson, 15 Ill.2d 244. While the decision of the United States Supreme Court in Griffin did not specify retroactive operation, we sought to meet the problem fairly by providing that indigent prisoners who had been sentenced prior to April 23, 1956, might, where possible, obtain free transcripts of their trial proceedings and perfect a writ of error in this court. Ill. Rev. Stat. 1957, chap. 110, par. 101.65-1(2).
In People v. Johnson, 15 Ill.2d 244 at page 251, we stated: "Neither the constitutional requirement of equal protection of the law nor that of due process proscribes a classification between groups differently situated, so long as a reasonable basis for the distinction exists. (Morey v. Doud, 354 U.S. 457, 1 L.ed.2d 1485; see concurring opinion in Griffin v. Illinois, 351 U.S. 12, 100 L.ed. 891; People v. Lawrence, 390 Ill. 499.)" In the light of the orderly administration of justice, there is a reasonable basis for classification between indigent prisoners convicted prior to Griffin, where the transcripts of their proceedings are obtainable and where unavailable. It is only where it is impossible to furnish the petitioner a stenographic transcript of the proceedings at his trial that Rule 65-1(2) permits the court to deny the petition for such transcript. (Cf. People v. Johnson, 15 Ill.2d 244, 252.) The rule requires the State to furnish a free transcript if it can be procured. People v. Griffin, 9 Ill.2d 164, 168.
Defendant urges that the rule operates to deny due process and equal protection of the law in that a distinction is made relative to furnishing a transcript to an indigent defendant where it is unavailable and where obtainable. It must be remembered, however, that the Federal constitution neither requires nor demands a retroactive application of a new law. (Great Northern Railway Co. v. Sunburst Oil & Refining Co. 287 U.S. 358, 364, 77 L.ed. 360, 366; Molitor v. Kaneland Community Unit Dist. 18 Ill.2d 11, 28.) The law generally speaks prospectively, but as stated in Griffin v. Illinois, 351 U.S. 12, 26, 100 L.ed. 891, 902: "The judicial choice is not limited to a new ruling necessarily retrospective, or to rejection of what the requirements of equal protection of the laws, as now perceived, require. * * * In arriving at a new principle, the judicial process is not impotent to define its scope and limits."
In giving retroactive effect to the principles announced in Griffin, it was within our power to say that the rule promulgated would apply in certain cases and not in others as long as the classes thereby created did not abridge the requirements of due process and equal protection of the law. Those requirements do not deny a State the right to make classifications in law "when such classifications are rooted in reason." The proscription is against "invidious discrimination." Griffin v. Illinois, 351 U.S. 12, 17, 21, 100 L.ed. 891, 898, 900.
It cannot fairly be said that Rule 65-1(2) invidiously discriminates between indigent prisoners when it offers to those convicted prior to April 23, 1956, a free transcript if it is humanly possible to furnish it, but not otherwise. In promulgating Rule 65-1, we gave consideration to the proper administration of criminal ...