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People v. Hopping

OPINION FILED MARCH 24, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

LARRY HOPPING, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

BRUCE KLINE, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOHN YOUNG, APPELLEE.



No. 46529. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Knox County; the Hon. J.R. Kirkpatrick, Judge, presiding.

No. 46634. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

James Geis, Deputy Defender, Office of State Appellate Defender, of Ottawa (Stephen P. Hurley, Assistant Defender, of counsel), for appellant.

William J. Scott, Attorney General, of Springfield, and Donald C. Woolsey, State's Attorney, of Galesburg (James B. Zagel, Assistant Attorney General, of Chicago, and Roger L. Longtin, Assistant Attorney General, of Springfield, of counsel), for the People.

William J. Scott, Attorney General, of Springfield, and Robert J. Bier, State's Attorney, of Quincy (James B. Zagel and James E. Gildea, Assistant Attorneys General, of Chicago, and Nolan Lipsky, Assistant Attorney General, of Springfield, of counsel), for the People.

Richard J. Wilson, Deputy Defender, Office of State Appellate Defender, of Springfield (John L. Swartz, Assistant Defender, of counsel), for appellee.

We have consolidated three cases in which leave to appeal was granted from three appellate court judgments which are in conflict as to whether the conviction of one who has entered a plea of guilty to a misdemeanor must be set aside because no verbatim transcript of the proceedings upon the entry of the guilty plea is available.

In No. 46529, the defendant, Larry Hopping, was charged with supplying liquor to minors in violation of the Dram Shop Act (Ill. Rev. Stat. 1971, ch. 43, par. 131). On October 16, 1972, he appeared pro se in the circuit court of Knox County and entered a plea of guilty. He was sentenced to 90 days' imprisonment at the Illinois State Farm at Vandalia. No transcript of the proceedings at the time of the entry of his guilty plea is available. The common law record includes the following:

"[T]he Court fully explains to defendant his rights under the law, his right to counsel and his right to a jury trial if he so desires, and further explains to the defendant the consequence and penalties which will result from a plea of guilty * * *."

The record also includes a waiver of trial by jury, signed by the defendant. On November 13, 1972, the defendant filed a notice of appeal from the judgment entered on his plea of guilty.

Represented by appointed counsel on appeal, Hopping contended that his conviction should be reversed because: (1) there was no verbatim transcript available; (2) the record failed to show that the defendant had knowingly waived his right to counsel; and (3) the record failed to show compliance with Rule 402. The Appellate Court, Third District, dismissed the appeal (16 Ill. App.3d 275), holding that a verbatim transcript of the proceedings upon the acceptance of a plea of guilty to a misdemeanor is not required by the Federal or State constitutions and that the record did not show that the trial court had failed to comply with Rules 401 and 402. The court pointed out that the sufficiency of the trial court's compliance could have been reviewed upon a bystander's report of proceedings.

In No. 46634, the defendant, Bruce Kline, represented by retained counsel, pleaded guilty on June 5, 1972, to an information which charged him with possession of a substance containing cannabis in an amount more than 10 grams (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 704(c)). His motion to quash the information on the grounds that the statute involved violated the due process and equal protection clauses of the Federal and State constitutions had previously been overruled. The circuit court of Knox County sentenced him to the county jail for a period of 60 days. On June 30, 1972, Kline filed a notice of appeal. No transcript of the proceedings upon the entry of his plea of guilty is available. The common-law record includes the following:

"[W]hereupon the said defendant, Bruce Lee Kline, is advised by the Court as to his rights and the possible consequences upon his said plea of guilty entered herein, and explains 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 offense charged beyond all reasonable doubt, and to confront and cross-examine witnesses. Whereupon the said defendant, Bruce Lee Kline, waives his right to a trial by jury (which said waiver was filed on May 23, 1972). And the said defendant, Bruce L. Kline, still persisting in his said plea of guilty to the crime of possession of cannabis in manner and form charged in the Information, the said plea of guilty is now accepted by the Court as the final plea of said defendant, and so entered herein."

Represented by appointed counsel on appeal, Kline argued that his conviction should be reversed because the record failed to show affirmatively that his guilty plea had been accepted in compliance with Rule 402. (He also contended that the statute under which he was convicted was unconstitutional. We concur in the appellate court's disposition of this contention.) The Appellate Court, Third District (16 Ill. App.3d 1017), held that a verbatim transcript is not necessary to sustain the guilty plea because Supreme Court Rule 323 (made applicable to criminal appeals by Rule 612(c)) provides an alternative method of compiling a report of proceedings in the absence of a stenographic transcript. The court noted that the defendant had not availed himself of this procedure.

In No. 46657, the defendant, John Young, was charged with two counts of deceptive practices (Ill. Rev. Stat. 1971, ch. 38, par. 17-1) in that he, with intent to defraud and to obtain the property of the named victims, delivered checks to them knowing that the depositary bank would not honor them. On July 19, 1972, the defendant appeared pro se in the circuit court of Adams County, entered a plea of guilty, and was sentenced to concurrent 90-day terms of imprisonment at the State Penal Farm. On the following day the defendant requested a transcript ...


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