Appeal from the Circuit Court of Clay County; the Hon. E.
HAROLD WINELAND, Judge, presiding. Affirmed and remanded with
This appeal has been brought by the defendant, Charles Billingsley, following his plea of guilty and imposition of sentence to an information charging him with the offense of Theft of Property less than $150 in value. *fn1
From the common-law record it appears that on October 18, 1967, the State's Attorney of Clay County, Illinois, filed an information in the Circuit Court of Clay County charging the defendant and two co-defendants with the offense of Theft. The value of the property was alleged to be less than $150. On the same date the defendant appeared in court, accompanied by counsel, for arraignment. There was no court reporter in attendance and accordingly, a transcript of the proceedings is unavailable. However, an entry of record by the Court indicates that the defendant was furnished with a copy of the information, that the defendant indicated a desire to enter a plea of guilty, the Court advised the defendant of his right to trial by jury and of the penalty prescribed for the offense by statute, that the defendant persisted in the plea of guilty, and that the Court accepted the plea and entered judgment thereon. The defendant also signed a written instrument wherein he entered a plea of guilty and waived trial by jury.
The docket entry of October 18, 1967, next recites that evidence was heard as to aggravation and mitigation and the cause continued until November 6, 1967, for sentencing. From the transcript of proceedings had on November 6, 1967, it appears that the defendant was sentenced to the Illinois State Farm for a period of six months. The defendant has sought to supplement the common-law record by filing in this Court three affidavits. The affiants are the defendant and his two brothers. The affidavits allege facts and circumstances prior to the arraignment.
In his effort to reverse the judgment of conviction the defendant has presented three issues for review. The first is that the defendant is in fact not guilty but entered a plea of guilty only because of certain representations made to the defendant and his brothers by the Court and State's Attorney prior to the arraignment. This issue is based solely upon the affidavits filed by the defendant.
The Supreme Court Rules provide for no procedure by which an appellant may supplement the record by affidavit. Supreme Court Rule 323(c) as made applicable to criminal appeals by Supreme Court Rule 612(c) provides for cases in which there is no verbatim transcript of the evidence or proceeding; however, in the instant case the matters alleged in the affidavits transpired prior to the filing of the information charging the defendant with the offense.
The defendant made no effort to withdraw his plea of guilty or otherwise present the issue to the trial court. When faced with a similar question, the Court in People v. Van Hyning, 72 Ill. App.2d 168, 219 N.E.2d 268 stated:
". . . the necessity for judicial accommodation between the exercise of such power and the orderly administration of justice, as well as the welfare and safety of the public at large, indicates that the reviewing court should exercise judicial restraint in reversing the trial court for errors not brought to its attention by customary procedures. The basic reason for the general rule that issues, points or contentions, other than those going to the court's jurisdiction of the subject matter, or that the indictment does not charge an offense, will not be considered on appeal unless presented in the trial court and properly preserved for review, is that the trial court should not be reversed upon a ground not submitted to it and upon which it did not, and was not asked, to decide. (Citing cases.) Consequently, reversals where the alleged errors were not brought to the attention of the trial court must be limited to errors or defects affecting substantial rights of the defendant errors which in themselves preclude fundamental fairness in the trial. . . ."
Under the circumstances of this case, particularly in view of the fact that the defendant was represented by counsel during the entire proceeding, we would not be warranted in reviewing the issue as presented.
The second issue presented by the defendant is that the judgment should be reversed since the record does not show that the defendant understandingly waived his right to trial by jury, that he understood the consequences of his plea of guilty or that the consequences of his plea were explained by the Court and understandingly persisted in by the defendant, and that the defendant was admonished or apprised of the limits of punishment he might receive.
We note that the defendant does not contend that the consequences of his plea and the maximum penalty which might be imposed by the Court were not explained to him, but that there is no verbatim record of the admonition. In effect the defendant argues that since there is no transcript the judgment must be reversed.
Defendant, on this point, relies upon the language of sections 113-4(c) and 115-2(a) (2) of the Code of Criminal Procedure and People v. Washington, 5 Ill.2d 58, 124 N.E.2d 890 (1955), and People v. Ballheimer, 37 Ill.2d 24, 224 N.E.2d 811 (1967). Section 113-4(c) provides:
"If the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the consequences of such plea and the maximum penalty provided by law for the offense which may be imposed by the court. After such explanation if the defendant ...