APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES M. WILSON, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant, Ollie Bobo, age 20, was indicted for felony theft, and following a jury trial where she appeared without counsel she was found guilty of misdemeanor theft. After a sentencing hearing she was sentenced to a three-month term of incarceration in the Peoria County jail. The court later modified this sentence to a term of periodic imprisonment.
On appeal in this court, the defendant contends that the trial court erred by proceeding with a jury trial at which defendant appeared pro se without obtaining a proper waiver of counsel under the requirements of Supreme Court Rule 401(a), which provides as follows:
"(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law * * *; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." 58 Ill.2d R. 401(a).
Because of an incomplete report of proceedings, both parties seem to agree that the defendant was not informed of the possible penalty and was informed on the day of the trial, March 19, 1974, that the charge was theft with no further explanations.
It is beyond question that defendant here was entitled to counsel. However, the right to counsel can be waived as the Constitution does not mandate that a defendant be forced to utilize counsel. Carter v. Illinois, 329 U.S. 173, 91 L.Ed. 172, 67 S.Ct. 216; People v. Bush, 32 Ill.2d 484, 207 N.E.2d 446; Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525.
• 1 In examining the record we note that the praecipe filed requests a transcript of the proceedings of the arraignment hearing as well as a transcript of the hearings on all motions. The record however did not contain these transcripts, and the defendant states, on page 6 of her brief, "No transcripts exist." The State likewise failed to furnish a complete report of these proceedings pursuant to Supreme Court Rule 608(a), nor was there any "agreed statement of facts" in lieu of a proper report of proceedings as Supreme Court Rule 323(d) provides. Rule 401(a) requires that any waiver of counsel shall be in open court and in addition provides for a verbatim report in 401(c):
"(c) Transcript Required. 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."
The requirement that the inquiries of the court and the answers of the accused shall be recited in the record has, as one of its purposes, obviously, provision for a form of procedure which will eliminate any doubt that there was compliance with the rule. (People v. Rivers, 22 Ill.2d 590, 177 N.E.2d 154; People v. Washington, 5 Ill.2d 58, 124 N.E.2d 890.) The procedure established by the rule is mandatory.
Through error or inadvertence the hearings prior to trial were not included in the original record filed in this court on June 21, 1974. Under such circumstances, this court feels substantial justice should not be emasculated through such happenstance.
Consequently, this court was presented with either accepting an incomplete report of proceedings or ordering the record to be completed by adding matters which should have been included pursuant to Supreme Court Rule 366(a)(3). A supplemental report of proceedings was requested and promptly filed by the Circuit Court of Peoria County in this court on October 10, 1975. This contained reports of proceedings for February 4, 1974, February 20, 1974, and March 1, 1974, all of which demonstrate compliance with Rule 401(a).
An arraignment hearing before Judge Haugens was held on February 4, 1974, and the defendant acknowledged that she received a copy of the indictment. The following colloquy then occurred:
"Court: The indictment charging you with the offense of theft more in particular, the indictment charges you on June 16, 1973 in Peoria County, with knowingly exerting unauthorized control over property of Belscot Retailers, Inc., a corporation, said property being men's and women's clothing and sunglasses having a total value of more than $150 and that you did by doing so intended to permanently deprive the owner ...