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People v. Kline

FEBRUARY 8, 1974.




APPEAL from the Circuit Court of Knox County; the Hon. WILLIAM K. RICHARDSON, Judge, presiding.


Bruce L. Kline appeals from a judgment of the Circuit Court of Knox County entered on June 5, 1972, which found Kline guilty of possession of more than ten grams of cannabis in violation of section 4(c) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56 1/2, § 704(c)). Kline was sentenced to serve sixty (60) days in the Knox County Jail. The judgment of guilty was entered upon a plea of guilty by defendant Kline to the offense charged. Prior to the plea of guilty by defendant Kline, he had moved to dismiss or quash the complaint against him on the ground that the Cannabis Control Act was unconstitutional. The trial court denied that motion. Defendant then waived prosecution by indictment and consented to a proceeding by information to which he pleaded guilty.

On appeal in this court, defendant asserts three general grounds for reversal of his conviction: (1) that defendant's conviction should be reversed because no transcript exists with respect to the hearing on his plea of guilty; (2) that the tender and acceptance of the plea of guilty to comply with the requirements of Illinois Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402); and (3) that the statute under which defendant was convicted violates the United States and Illinois constitutions for the reason that (a) it provides penalties according to the weight of the substance containing the cannabis and (b) the penalties are prescribed by arbitrary classifications.

The charge to which defendant tendered his guilty plea was, as concerns us in consideration of the case before us, punishable by imprisonment other than in the penitentiary for not more than one (1) year (Ill. Rev. Stat. 1971, ch. 56 1/2, § 704(c)). That offense now is defined as a Class A misdemeanor punishable by any term of imprisonment for less than one year (Ill. Rev. Stat., 1973 Supp., ch. 56 1/2, § 704(c), and ch. 38, § 1005-8-3). The same offense was classified at the time of Kline's conviction as a misdemeanor. Ill. Rev. Stat., 1972 Supp., ch. 38, §§ 2-7, 2-11.

The courts of this State have had occasion in many cases to consider Illinois Supreme Court Rule 402 referred to which requires "substantial compliance" with the provisions therein set forth with respect to the tender and acceptance of pleas of guilty. We have noted in the past that such Rule 402 was at least partially the result of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969). The Supreme Court in the Boykin case enunciated the minimal requisites governing acceptability of guilty pleas in State proceedings. It was basically held that defendant must have entered such plea both voluntarily and understandingly. The Illinois Rule 402 gave "visibility" to any agreement upon which a plea of guilty was based (See Ill. Rev. Stat., ch. 110A, § 402 Committee Comments).

Subsection (e) of Rule 402 is addressed to the issue raised by the defendant's contention as to the absence of a transcript in the following language:

"(e) Transcript Required.

In cases in which the defendant is charged with a crime punishable by imprisonment in the penitentiary, the proceedings required by this rule to be in open court shall be taken verbatim, transcribed, filed, and made a part of the common-law record."

Since, by its terms, the offense of which Kline was convicted, was not punishable by penitentiary imprisonment, we must look elsewhere than to Rule 402(e) for a requirement, if any, that a transcript must have been prepared.

Defendant Kline argues, on the authority of Mayer v. Chicago, 404 U.S. 189, 30 L.Ed.2d 372, 92 S.Ct. 410 (1971), that Rule 402(e) creates an irrational distinction between penitentiary and non-penitentiary imprisonment. The court in Mayer found that Illinois Supreme Court Rule 607(b) (Ill. Rev. Stat. 1971, ch. 110A, § 607(b)) violated the fourteenth amendment of the United States Constitution because it required that a free transcript be given indigents only in felony and not in nonfelony cases. Kline argues, further, that even if a verbatim transcript were not required, the People must afford indigents a "record of sufficient completeness" to permit proper consideration of their claims. Draper v. Washington, 372 U.S. 487, 499, 9 L.Ed.2d 899, 83 S.Ct. 774 (1963), quoting Coppedge v. United States, 369 U.S. 438, 446, 8 L.Ed.2d 21, 28, 82 S.Ct. 917, 921 (1962).

The appellant misplaces his reliance on the foregoing authority. That authority prescribes what materials a State must provide to an indigent. The issue at bar, on the other hand, concerns not whether Kline had a right to receive certain materials because he was indigent, but, rather, whether, regardless of indigency, a verbatim transcript of proceedings at which a plea of guilty is tendered and accepted must have been prepared in the type of proceeding now on appeal. Mayer was based upon the Supreme Court's finding that the size of the defendant's pocketbook bore no more relationship to his guilt in felony than in nonfelony cases, and that, therefore, the classification of the offense was an untenable basis upon which to deny a free transcript to an indigent. The issue confronting us, on the other hand, does not involve any distinction based on ability to pay but only a distinction based on a particular type of proceeding, regardless of ability to pay. Rule 402(e) requires a verbatim transcript in a certain type of proceeding for all defendants and (again for all defendants) does not require such transcript for a certain other type of proceeding. It is notable that facilities or personnel for preparation of a transcript of record, in minor criminal matters, are simply not available in most courts in this State. We do not read Mayer, or its progeny, including Draper, supra, and Coppedge, supra, as requiring a verbatim transcript in particular types of cases, but merely as requiring that "Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts," Mayer v. Chicago, 404 U.S. 189, 193, 30 L.Ed.2d 372, 378, 92 S.Ct. 410, 414 (1971), quoting Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, 591 (1956).

• 1, 2 We are not, however, by the foregoing analysis, making an absolute determination that verbatim transcripts need be prepared in conformity with Rule 402(e) only in the proceedings for which such transcripts therein are prescribed, and that no record for appellate review of guilty pleas need be made in all other proceedings. Rather, we note that Illinois Supreme Court Rule 323(c) and (d) does allow alternate means for the preparation of a record with respect to review of such pleas, or other procedure where no verbatim transcript is available. (Ill. Rev. Stat. 1971, ch. 110A, § 323(c) and (d)). Given (1) the existence of such alternative means, (2) the State's interest in economizing the costs of judicial administration, and (3) the failure of Kline in the case at bar even to have attempted to use such other means, it is obvious that a verbatim transcript of the guilty plea proceedings was not a sine qua non of a sustainable conviction based upon such plea.

We are considering whether it has shown that the State failed to comply substantially with the requirements of Rule 402. Based on our foregoing discussion, we consider the appellant to have had the responsibility, in the case at bar, either of presenting a record on appeal sufficient to have allowed us to find the alleged noncompliance of which he complains or of being bound by what is disclosed by the record which in fact is before us. No supplementary record whatever was tendered in conformity with Rule 323. See Ill. Rev. Stat., ch. 110A, § 323(c). (Use of the Rule is readily available to indigents.)

• 3, 4 The only "record" before us of the guilty plea proceedings is that shown by the minutes of the court clerk. Such minutes, brief in form and limited in scope, recite that the defendant tendered a plea of guilty, that he then was "advised by the Court as to his rights and the possible consequences upon his said plea of guilty entered herein"; that the court explained to him "his full legal and constitutional rights in the premises, and his right to a trial by a jury and to require proof of the charged offense beyond all reasonable doubt, and to confront and cross-examine witnesses"; that the defendant waived his right to a jury trial and persisted in his plea; and that the court accepted the plea and adjudged the defendant guilty. The presumption is that the common law record imports verity unless contradicted by other facts in the record. (People v. Williams, 27 Ill.2d ...

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