APPEAL from the Circuit Court of Madison County; the Hon.
THOMAS R. GIBBONS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT: Mr. JUSTICE KARNS delivered the opinion of the court:
Defendant, Larry Lowe, was convicted of theft under $150 upon his plea of guilty in Madison County. He was sentenced to serve 1 year to run consecutively to the remainder of a term imposed for an offense for which defendant was on parole and for which he was returned to the penitentiary as a parole violator. Defendant had approximately 2 years remaining on the prior sentence.
On appeal, defendant alleges that the court failed to comply with Supreme Court Rules 401 and 402 (Ill. Rev. Stat. 1973, ch. 110A, pars. 401, 402), that the defendant was denied counsel at sentencing, that the sentencing hearing was deficient, and that the sentence imposed was excessive.
Because of our holding that the cause must be remanded for a new plea, we will comment only on the court's failure to comply with Rule 402.
Defendant appeared twice on March 25, 1974. In the morning, counsel was appointed and defendant pleaded not guilty. The record reflects that defendant at no time consulted with appointed counsel. Later, defendant returned to court, without counsel, and entered a plea of guilty. No representative of the State's attorney's office was present at any time. At the beginning of the second hearing, the court stated that defendant had been advised of his rights at the morning session, including "the possible penalty for the offense, if convicted." The first hearing was not transcribed, however, and this court is in no position to determine what transpired or whether or what compliance with Rule 402 occurred. In the guilty plea proceeding itself, defendant was advised that the offense was a Class A misdemeanor and that defendant stood little chance of receiving probation. The record before this court does not reflect that defendant was advised that the possible sentence was any term less than 1 year, (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-3(a) (1)), or that the sentence could be imposed to run consecutively to his prior sentence. This is not substantial compliance with Rule 402(a) (2), and the cause must therefore be remanded to allow the defendant to plead anew. People v. Troyan, 21 Ill. App.3d 375, 315 N.E.2d 335 (1974).
• 1 Since this cause must be remanded, we feel that other errors should be mentioned to prevent their reoccurrence. First we note the absence of the State's attorney from the proceedings. The State's attorney is charged with the prosecution of all criminal cases within his jurisdiction. (Ill. Rev. Stat. 1973, ch. 14, par. 5.) He should be present and involved. The judicial branch of government cannot be expected to and should not act beyond its capacity as arbiter of law and fact.
A Class A misdemeanor carries a possible penalty of "any term less than one year." (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-3(a)(1).) A one year sentence is not authorized by statute.
The judgment of the Circuit Court of Madison County is reversed and the cause remanded with directions that the defendant be allowed to plead anew.
Reversed and remanded with directions.
JONES, P.J., and EBERSPACHER, J., concur.
We have granted the People's petition for rehearing to consider the effect upon this case of the supreme court's recent opinion in People v. Hopping, 60 Ill.2d 246, 326 N.E.2d 395 (1975). The State argued in its original brief that defendant had no right to a transcript of the original arraignment hearing and that defendant's failure to provide this court with a sufficient record by means of a bystander's report of proceedings (Ill. Rev. Stat. 1973, ch. 110A, par. 323) or some other method acted as a waiver of alleged error in the trial court's admonitions. The State cited appellate court opinions from other districts in support of that position. (People v. Hopping, 16 Ill. App.3d 275, 305 N.E.2d 610 (1973); People v. Kline, 16 Ill. App.3d 1017, 307 N.E.2d 398 (1974).) We chose in our opinion not to adopt the view espoused in those cases because of our long-held belief that the only effective way to judge the sufficiency of trial court admonitions is to read the colloquy between the judge and the defendant. In addition, of course, trial courts are required to transcribe verbatim plea proceedings in felony cases. But our supreme court, in a consolidated opinion including Kline and Hopping, held that verbatim transcripts are not required constitutionally or by rule in misdemeanor guilty pleas. Thus, they affirmed the convictions of three defendants and upheld as sufficient the admonitions of the trial court based solely on docket entries in the common-law record. People v. Hopping, 60 Ill.2d 246, 326 N.E.2d 395 (1975).
• 2 Defendant contends on rehearing that he presented to this court a partial verbatim transcript containing sufficient evidence of the trial court's failure to comply with Rules 401 and 402, and that Hopping is therefore distinguishable. We cannot agree. Defendant was twice present before the court on the same day. The first hearing was not transcribed. Defendant apparently pleaded not guilty and was determined to be indigent. The Public Defender's Office was appointed to represent him. Later, defendant returned to court without counsel. At that time, the court stated:
"The record will show the defendant appears in open court in person in the custody of the Alton Police Department; that earlier this day he did appear in open court in the custody of the Alton Police Department; was advised of his rights, the charge, the possible penalty for the offense if convicted, and furnished a copy of the complaint, and it was determined at that time that the defendant understood the language of the complaint and the charge pending against him. Defendant did then enter his plea of not guilty and requested jury trial. On the defendant's request, a hearing was held. He was found to be indigent and the Public Defender of Madison County appointed to assist him without cost. Bail was set at $5,000.00. The Court being advised that the defendant is currently on parole ...