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People v. Gonzales

JUNE 26, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRANCISCO GONZALES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. FRED J. KULLBERG, Judge, presiding. MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE THOMAS J. MORAN delivered the opinion of the court upon rehearing:

This appeal is from a post-conviction proceeding.

On March 8, 1966, after pleading guilty to voluntary manslaughter, defendant was sentenced to a term of 15 to 20 years. Two years later he filed a petition seeking a complete transcript of all court proceedings. The court allowed his request and ordered a transcription prepared and sent to him. This was not done.

On February 14, 1969, defendant filed a pro se petition for post-conviction relief and the public defender was appointed to represent him. Two years later, the public defender was replaced by other counsel and, at that time, an amended petition was filed. On August 25, 1971, evidence was heard and relief denied. The next day a notice of appeal was filed. It was not until a year later that a portion of the original proceedings was transcribed and filed in this Court. The portion furnished relates only to the admonition given defendant at the time his plea was accepted.

Defendant claims that (1) he was denied adequate representation by counsel at his post-conviction hearing in that his attorney failed to review his original court proceedings and (2) that his sentence is excessive.

While the appeal was pending, the State moved for leave to file a certificate of compliance in the form of an affidavit executed by defendant's counsel at the post-conviction hearing. The motion, together with objections, was taken with the case. Also taken with the case was a motion by defendant requesting that the new Unified Code of Corrections be applied to his sentence.

• 1 Defendant's motion is denied. We do not consider an appeal from a post-conviction proceedings to be a direct appeal. The words, "final adjudication," found in section 8-2-4 of the Code and relied upon by the defendant, apply only to direct appeals that were not finally adjudicated as of the effective date of the Act. People v. Chupich (1973), 53 Ill.2d 572, 584; People v. Harvey (1973), 53 Ill.2d 585, 589-590.

• 2 It is also claimed that the sentence is excessive and defendant requests that we invoke our power under Supreme Court Rule 615(b) (4) to reduce it. We decline. The point was not raised nor urged in the trial court and is therefore waived. (People v. Brouhard (1973), 53 Ill.2d 109, 114.) Even under converse circumstances, this issue is not cognizable when, in a post-conviction proceedings, the sentence is within the statutory limits. People v. Ballinger (1973), 53 Ill.2d 388, 390.

• 3 Defendant's contention that he was denied adequate representation by counsel is founded upon an alleged violation of Rule 651(c) wherein counsel is required to review the record of proceedings. To satisfy this requirement, the State moved to supplant the record with a certificate of compliance founded upon an affidavit of counsel who represented the defendant at the post-conviction hearing. In substance, the attorney admits that he never read any transcript of proceedings prior to the hearing but that upon reading a portion of the proceedings some 19 months later, he concludes that no additional issues could have been raised. The certificate presupposes that if the balance of the original trial record were transcribed, no substantial constitutional questions would be found. This purely speculative surmise renders the certificate inadequate. The State's motion is, therefore, denied.

• 4 Post-conviction proceedings are limited in scope and this is likely to be the only review to which the defendant will be entitled. The purpose of the Rule is not merely formal and its nonobservance should be discouraged. (People v. Brown (1972), 52 Ill.2d 227, 230.) We are of the opinion that, in keeping with the rule's intent, a complete record should have been made available to the defendant.

For the reasons stated, the judgment appealed is vacated and the cause is remanded for further proceedings in accordance with the views expressed herein.

Motions taken with the case are denied; judgment is vacated and the cause remanded with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.

The State's petition for rehearing was allowed. Attached to the petition is an affidavit by the court reporter for the original trial which informs us that his shorthand notes of the hearing on aggravation and mitigation proceedings, held on March 21 and 22, 1966, cannot be found. (The transcript of this two-day ...


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