APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN W. NIELSEN, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was charged with aggravated assault (assault with a deadly weapon) to which charge he pleaded guilty and was sentenced to 1 year imprisonment at Vandalia. Within 30 days of his sentencing, the defendant moved to withdraw his guilty plea and vacate the judgment and sentence so that he could plead anew. The trial court denied the motion to vacate his plea and the defendant appeals, raising the following issues:
(1) That the court erred in its initial failure to give the defendant the proper admonishments under Supreme Court Rule 605(b), although this was later cured by allowing the defendant time to file a motion to vacate his plea under Supreme Court Rule 604(d);
(2) Whether it was possible for counsel to comply with the certificate requirements of Supreme Court Rule 604(d), where there was no transcript of the guilty plea hearing and if this was not possible, whether the failure to have the guilty plea proceedings transcribed was a violation of the defendant's constitutional rights;
(3) Whether due process was violated when defendant's guilty plea was entered by him in the fear that if he did not plead guilty the prosecutor might substitute a more serious charge under the same facts, and
(4) Whether the defendant's sentence should be reduced.
The admitted facts are that the defendant who was 27 years old at the time went to the home of his step-father and after an argument with him produced a gun and fired it at his step-father. Fortunately, the gun misfired, although the defendant pulled the trigger twice. The defendant was arrested and charged with aggravated assault. He pleaded guilty to this charge and was then sentenced to serve 1 year at Vandalia.
The defendant has a rather sad history. His adoptive mother and father got divorced and exchanged mates with a neighboring couple when he was a small child. The defendant stayed with his mother, but his step-father rejected him and treated him badly. He was sent to the home of his adoptive father in Florida but did not get along there. He came back to Rockford but was not welcomed by his step-father. While attending high school in Rockford, the defendant was involved in a motorcycle accident in which he lost his leg. He returned to Florida but after learning that his step-father had deserted his adoptive mother and she had had a breakdown and was in Singer Sanitorium, he returned to Rockford. The present charge stems from an incident wherein defendant, who had been drinking, went to his step-father's home and attempted to shoot him.
It appears from the report of the psychiatrist submitted at the sentencing hearing that shortly after the incident in question the defendant obtained employment and was doing well in his job with an electronics firm. While the circumstances of this case were later remarked on by the trial judge as meriting a charge of attempted murder, the defendant was only charged with aggravated assault, to which charge he entered a plea of guilty.
Apparently there was no reporter present at the hearing on the defendant's guilty plea. Within 30 days the defendant moved for his release on probation, which motion was denied. He then moved to vacate his plea of guilty and this motion was also denied.
While the defendant contends he was not admonished as to his right to appeal, following his guilty plea, in accordance with Supreme Court Rule 605(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 605(b)), no issue is made of that fact in this appeal inasmuch as the defendant was allowed to file a motion in compliance with Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)), and thus perfected his appeal.
The defendant complains, however, that the requirements of Supreme Court Rule 604(d) as to filing a certificate with the trial court stating that defense counsel had consulted with the defendant regarding his contentions of error and had examined the court file and report of proceedings at the guilty plea, and made the necessary amendments to present a proper motion as to any defects in such proceedings, are impossible to fulfill in this case because there is no transcript of the report of proceedings at the hearing on the guilty plea. The defendant argues that failure of the court to have a reporter present to transcribe the guilty plea prevented defense counsel from complying with the rule since without the report of proceedings counsel could not adequately state the basis for vacating the plea. The defendant contends that the lack of a transcript of the guilty plea hearing therefore amounts to a deprivation of his right to due process as well as his right to the effective assistance of counsel.
1 We do not believe that the lack of a transcript of a guilty plea proceeding is a constitutional issue in this case. The offense the defendant is charged with aggravated assault is a misdemeanor not punishable by imprisonment in the penitentiary. Therefore, a transcript of the proceedings at the hearing at which the guilty plea was entered is not required. (See section 1 of "An Act prescribing the duties of official court reporters in connection with arraignments and the furnishing of transcripts in certain cases involving indigent persons * * *" (Ill. Rev. Stat. 1975, ch. 37, par. 661; People v. Hopping (1975), 60 Ill.2d 246.) The right to a transcript is not a basic constitutional right, although in cases where the offense is punishable by a penitentiary sentence, a transcript is mandated by Supreme Court Rule 402(e) (Ill. Rev. Stat. 1975, ch. 110A, par. 402(e)). However, Supreme Court Rule 323(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 323(c)) made applicable to criminal appeals by Supreme Court Rule 612 (Ill. Rev. Stat. 1975, ch. 110A, par. 612), provides that the appellant "may prepare a proposed report of proceedings from the best available sources, including recollection" where there is no transcript of the proceedings. As amended and accepted by the other party, and certified by the trial court, this report may be used as a part of the record in the case. In his motion to withdraw his guilty plea, the defendant did not allege that he made any effort to comply with the provisions of Supreme Court Rule 323(c) as to the furnishing of a bystander's report of the hearing at which the guilty plea was entered on October 1, 1975, or by attempting to secure a stipulated statement of facts. The defendant does not contend he is ...