APPEAL from the Circuit Court of Pulaski County; the Hon.
GEORGE OROS, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Albert "Preacher" Robinson, from an order entered by the circuit court of Pulaski County denying defendant's petition for post-conviction relief, after holding an evidentiary hearing.
On January 14, 1963, an indictment was returned charging the defendant with the offense of murder. At the proceedings heard at the preliminary inquiry the defendant's retained counsel advised the trial court that in his opinion the defendant was incompetent to the extent that he was unable to cooperate with his counsel in assisting in his defense. Whereupon the trial court continued the case "until such time as a jury can be empanled [sic] pursuant to law to determine the matter of the sanity of Albert L. Robinson before plea and before trial." Although the transcript of this competency hearing is not "presently available," the "minutes of the court" as recorded in the common-law record reveal that a jury was impanelled, that the defendant called one witness, that people's instruction number one was given without objection, that oral argument was waived, and that the jury returned the following finding: "We, the jury find that the defendant, Albert L. (Preacher) Robinson, was sane at the empaneling of this jury, and is now sane." The common-law record includes a copy of this finding signed by the 12 jurors, together with a copy of people's instruction number one.
The defendant continued to be represented by his retained counsel, who was present and represented him at the proceedings conducted on February 18, 1963, wherein the defendant entered his plea of guilty. The trial court accepted defendant's plea of guilty, entered a judgment of conviction, and, upon the recommendation of the State's attorney, sentenced the defendant to serve not less than 15 years nor more than 45 years in the penitentiary. From the trial court's entry of the judgment of conviction of February 18, 1963, until February 16, 1970, when the defendant first requested transcripts of the foregoing proceedings, the defendant was incarcerated in the penitentiary. During this period he did not attempt to perfect any appeal from this judgment of conviction. And, only after a lapse of over 7 years has the defendant perfected his request for post-conviction relief pursuant to section 122-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 122-1).
On April 15, 1970, defendant filed a pro se petition for post-conviction relief, alleging that his constitutional rights had been abridged in the following respects: (1) The defendant's "competency" hearing had been improperly conducted and no record of said hearing was available for review; (2) the defendant was not advised by the trial court of his right to appeal; and (3) defendant's counsel provided inadequate representation. Counsel was appointed to represent the defendant and, on December 11, 1970, an amendment was filed to supplement the original pro se petition. The amendment alleged that: (1) The defendant was not indicted in a manner consistent with the Illinois Constitution; (2) the defendant could not understandingly have entered a plea of guilty since defendant was substantially denied a jury trial on whether or not he was sane, and further, that the instruction given the jury was so fundamentally unfair as to have denied the defendant due process of law; and (3) the defendant was denied adequate assistance of counsel. After the State's motion to dismiss was denied, the State filed an answer and, on April 5, 1971, an evidentiary hearing was held by the trial court. The evidentiary hearing was continued until April 7, 1971. The defendant and Dr. Burton Bagby testified at the evidentiary hearing with respect to their recollection of the circumstances surrounding the defendant's sanity hearing conducted on February 18, 1963. The defendant testified that he was in the courtroom on the morning of February 18, 1963, that there was a group of people in the jury box, that he did not sit at the counsel table, that Dr. Bagby was present in the courtroom, that Dr. Bagby came over and spoke to him, but that the doctor did not take the witness stand and testify, that he was there when the jury went out, and that when they returned a short time later they handed a piece of paper to the judge. Dr. Bagby testified that he had known the defendant since his childhood, that he was called to testify on February 18, 1963, but that he had forgotten why he had been called, that he recalled talking to both the defendant and his attorney, but that he did not recall testifying. Under cross-examination, the doctor stated that if he had testified, he would only have spoken about the normal course of events in growing up together with the defendant. There is no record that any other witnesses were called to testify at the defendant's sanity hearing. The State introduced the common-law record of the sanity hearing, together with the finding of sanity signed by the 12 jurors and the transcripts of the proceedings on February 14, 1963, and February 18, 1963, wherein the defendant pled guilty.
In an order entered April 8, 1971, the trial court denied the defendant's request for post-conviction relief; therein, the trial court made the following findings: (1) The defendant was not given a transcript of the hearing on his competency and that no transcript is presently available, (2) the petitioner was not advised of his right to appeal from the judgment of the court finding him guilty, after a plea of guilty, of the offenes of murder, (3) neither of these findings, (1) or (2), constituted a denial of the defendant's constitutional rights, (4) the defendant's counsel was competent and of the defendant's own choosing, (5) a valid indictment was returned against the defendant, (6) a sanity hearing was held on February 18, 1963, before a jury, duly selected by law, and properly instructed, (7) the jury returned a signed verdict that the defendant was sane at the time of the impanelling of such jury, and was sane on February 18, 1963, (8) thereafter the defendant knowingly and understandingly entered a voluntary plea of guilty to said indictment, and (9) the defense counsel was not incompetent so as to deny defendant of his right to counsel as required by the Constitution.
In this appeal the defendant contends that the trial court erred when it denied the defendant's "petition for post-conviction relief alleging that he had been denied due process of law in the 1963 hearing to determine if he was competent to stand trial." More particularly, the defendant contends that (1) he "did not receive effective assistance of counsel at his 1963 competency hearing," (2) the trial "court failed to insure that the defendant received a fair and adequate hearing on the question of his competency to stand trial." and (3) the "instruction submitted to the jury on the question of the defendant's competency improperly stated the law."
• 1-5 We particularly note that here there was no direct appeal and that defendant entered a plea of guilty which is not alleged to have been entered involuntarily, although defendant contends the plea could not have been voluntarily entered. Points that could have been raised on direct appeal, even though of constitutional dimension, may be waived for post-conviction purposes, unless fundamental fairness requires otherwise. (People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663; People v. Hammonds, 21 Ill. App.3d 5, 314 N.E.2d 711); and a constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives errors or irregularities that are not jurisdictional. (People v. Newell, 41 Ill.2d 329, 243 N.E.2d 200.) Defendant does not here contend that the court had no jurisdiction to accept his plea. It is not within the purpose of the Post-Conviction Hearing Act to have claims considered which could have been presented on direct review of the conviction. (People v. Myers, 46 Ill.2d 270, 263 N.E.2d 113; People v. Armes, 37 Ill.2d 457, 227 N.E.2d 745.) Defendant does not here contend that he was denied a direct appeal because of the absence of a transcript in 1963 when he could have perfected a direct appeal. Furthermore, as we said in People v. Jackson, 19 Ill. App.3d 404, 406, 311 N.E.2d 714; "The right of appeal in a criminal case and the denial of a transcript are not per se constitutional questions."
• 6-13 Before addressing the defendant's contentions we believe it is necessary to review the general purposes and requirements of our Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.). The Post-Conviction Hearing Act provides a remedy which is civil in nature and in which the defendant has the burden of proving that he was deprived of a substantial constitutional right. (People v. Thomas, 51 Ill.2d 39, 280 N.E.2d 433.) Generally, claims which were or could have been raised on direct appeal may not later be raised in a petition for post-conviction relief. (People v. Brown, 52 Ill.2d 227, 287 N.E.2d 633.) Save fundamental fairness, "Any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived." (Ill. Rev. Stat. 1969, ch. 38, par. 122-3.) Failure to raise the contention that the record fails to affirmatively show that a defendant's plea was knowingly and voluntarily entered in defendant's original or amended petition for post-conviction relief constitutes a waiver. (People v. Caldwell, 55 Ill.2d 152, 304 N.E.2d 292; People v. Barber, 51 Ill.2d 268, 281 N.E.2d 676. See also People v. Williams, 52 Ill.2d 466, 288 N.E.2d 353.) Accordingly, we find that the defendant's failure to raise any contention regarding the inadequacy of the trial court's admonitions in his pro se post-conviction petition, in his supplemental post-conviction petition (filed by his appointed counsel) or on this appeal constitutes a waiver of this contention, and since such waiver is not precluded by fundamental fairness (see People v. Caldwell; People v. Williams; People v. Barber), we will not consider this issue, on our own initiative, for the first time on this appeal from the denial of post-conviction relief. Having thus decided, we will limit our review to those issues presented by the defendant on this appeal.
• 14 As noted previously, the defendant's claim for post-conviction relief centers around the hearing on his competency, held on February 18, 1963. The defendant's counsel and the State's attorney, by means of the common-law record and the testimony of the defendant and Dr. Bagby, were able to reconstruct the general format and content of the defendant's 1963 competency hearing, at the evidentiary hearing on the defendant's post-conviction petition. Ordinarily, we would resolve any conflicts in the evidence proffered at the evidentiary hearing in favor of the State since the defendant has the burden of proof in a post-conviction hearing and, further, since the trial court found the defendant's proof insufficient upon which to grant relief. We believe, however, that it would be fundamentally unfair to place such a heavy burden on the defendant in the instant case in view of the unavailability of a transcript to the defendant's 1963 competency hearing.
• 15, 16 We acknowledged the extreme importance of a trial transcript in People v. Bonn, 19 Ill. App.3d 443, 311 N.E.2d 766, wherein we noted that "[t]he purpose of a free transcript is to enable a defendant to review the proceedings in order to perfect his appeal or, as in this case, his petition for post-conviction relief." (19 Ill. App.3d 443, 444-45, 311 N.E.2d 766, 768.) We have seriously considered whether the absence of a transcript in the instant case resulted, ipso facto, in the denial of the defendant's constitutional right to review the proceedings and perfect his request for post-conviction relief. However, Supreme Court Rule 323(c), (d) allows for the preparation of a record by alternative means where no verbatim transcript is available. (Ill. Rev. Stat. 1969, ch. 110A, par. 323(c), (d).) And, unless a defendant makes out a colorable need for a verbatim record of a criminal proceeding, an "alternative" record may be sufficient. See Mayer v. City of Chicago, 404 U.S. 189, 30 L.Ed.2d 372, 92 S.Ct. 410. See also People v. Kline, 16 Ill. App.3d 1017, 307 N.E.2d 398.
• 17-19 In the instant case neither the defendant's contentions nor his argument in support thereof make out even a colorable need for verbatim record, i.e., a transcript, of his 1963 competency hearing. As noted by our supreme court in People v. McKinstray, 30 Ill.2d 611, 198 N.E.2d 829,
"Insanity which bars trial of an accused has been defined as inability to understand the nature of the crime charged or inability to reasonably and rationally defend against such charge, including cooperation with counsel. (People v. Burson, 11 Ill.2d 360, 369, 143 N.E.2d 239.) In a pretrial sanity hearing the defendant is required to offer evidence sufficient to rebut the presumption of his sanity, and then it is incumbent upon the People to prove his sanity by a preponderance of the evidence. People v. Bender, 20 Ill.2d 45, 169 N.E.2d 328." (30 Ill.2d 611, 615, 198 N.E.2d 829, 832.)
Hence, in order for the State to have any burden in a pretrial sanity hearing, the defendant must offer evidence sufficient to rebut the presumption of his sanity. Not only does the record before us fail to show that the defendant rebutted the presumption of his sanity, but the defendant does not even suggest that he offered evidence sufficient to rebut this presumption or that such evidence was available at the time of his competency hearing. The only indication of the defendant's incompetency must be derived from defense counsel's statement at the preliminary inquiry that in his opinion the defendant was unable to cooperate with counsel and assist in his defense. Our supreme court in People v. Slaughter, 46 Ill.2d 114, 262 N.E.2d 904, held that a mere statement by defense counsel that defendant could not cooperate with him does not create such a bona fide doubt as to draw the ...