Appeal from the United States District Court for the Northern District of Illinois. No. 79-C-20033 -- Stanely J. Roszkowski, Judge.
Before Pell, and Cudahy, Circuit Judges, and Campbell, Senior District Judge.*fn*
Respondent Gayle Franzen appeals a district court order granting, on summary judgment, petitioner Steven Grundset's application for a writ of habeas corpus. At issue on appeal is whether there exists no question of material fact that Grundset's constitutional rights were violated by the State's failure to provide a verbatim transcript of his misdemeanor guilty plea.
The facts are undisputed. On August 6, 1975, Grundset went to the home of his stepfather. An argument ensued concerning alimony and child support payments due the petitioner's mother. Grundset pulled a gun from his pocket and fired it twice at his stepfather's chest. The gun misfired, apparently because of the age of the gun powder. One bullet protruded from the mouth of the gun; the other bullet remained inside the barrel. The petitioner claims he was intoxicated and remembered little until the next morning. He then phoned the police and inquired whether there was a warrant for his arrest. At the request of the police, he went to the station where he was arrested.
Grundset subsequently pleaded guilty to aggravated assault, a misdemeanor. He could have been charged with attempted murder. Grundset was represented by an Assistant Public Defender. No transcript was made of the proceedings and apparently no court reporter was present. The docket entry for the date did not indicate whether the defendant was told that his plea constituted a waiver of constitutional rights. The defendant's signature appears, however, at the bottom of the complaint, following an express waiver of the right to trial by jury. Judge Nielson, who had accepted the plea, later sentenced Grundset to one year at the minimum security center in Vandalia.
Represented by new counsel, Grundset filed motions to withdraw his guilty plea and to vacate his conviction and for release on probation. After denial of the motion for probation, a hearing was held on the motion to withdraw the plea. Grundset alleged unawareness that he might have pleaded insanity, that he was inadequately represented by counsel, that the trial court had failed properly to admonish him at the time he pleaded, and that his plea was coerced by threat of a stiffer sentence if he were charged with attempted murder. At the hearing on his motion to withdraw the plea, Grundset testified that to his knowledge the judge had not discussed the consequences of the guilty plea with him. He admitted, however, that he could not recall exactly what had transpired at the plea proceeding which had been held almost a year earlier. The prosecutor called no witnesses nor offered any argument. He did, however, cross-examine Grundset. Judge Nielson stated that it was his habit to inform defendants of their rights before accepting a plea of guilty and that he was sure "in (his) own mind" that he so informed Grundset. The judge denied the motion to vacate the plea, summarizing the case as one in which Grundset was necessarily anxious to plead guilty to aggravated assault rather than to face a charge of attempted murder.
The Illinois Appellate Court affirmed the conviction but reduced Grundset's sentence to 364 days, the maximum allowed under Illinois law for a Class A misdemeanor. Grundset had argued on appeal that his constitutional rights were violated by denial of a verbatim transcript. He also claimed that his plea was involuntary because the police threatened to charge him with attempted murder if he again went near his victim. The appellate court found neither a constitutional nor a statutory right*fn1 to a transcript of the guilty plea proceeding. The court also noted that Grundset had not taken advantage of Illinois Supreme Court Rule 323(c), Ill.Rev.Stat. ch. 110A, § 323(c) (1977), whereby he might have prepared a bystander's report as a substitute for a transcript. The court found that the guilty plea was not coerced and that, because Grundset failed to raise any substantial issue which would have been preserved by a transcript, his objection failed to raise any serious issue of due process.
Grundset then filed a petition for a writ of habeas corpus in the federal district court, alleging that lack of a verbatim transcript gave rise to various constitutional violations. Judge Roszkowski granted Grundset's motion for summary judgment. He relied on Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 414, 30 L. Ed. 2d 372 (1971), which held that the State must provide an indigent a " "record of sufficient completeness' " to " "place before the appellate court an equivalent record of the events at trial from which the appellant's contentions arise' " and several Illinois cases which had held that the record must affirmatively show the trial judge's compliance with Illinois Supreme Court Rule 402(a). Applying these standards to Grundset's case, the district judge held that no proper record establishing substantial compliance with Illinois Supreme Court Rule 402 and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), was present.*fn2
II. JURISDICTION AND MOOTNESS
A preliminary question is whether this dispute is moot. The analysis is a two-part one, requiring an examination whether the district court had jurisdiction at the time Grundset filed his petition and, if so, whether there remains any relief that this court can grant. Harrison v. Indiana, 597 F.2d 115, 118 (7th Cir. 1979).
Grundset was released on bail shortly after his arraignment and remained free on bail until December 24, 1979. On that date the Governor of Illinois commuted his sentence from 364 days to time served. Grundset filed his petition for a writ of habeas corpus on May 2, 1979.
For jurisdiction to exist in the district court, a petitioner must be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (1976). In Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S. Ct. 1571, 1575, 36 L. Ed. 2d 294 (1973), the Supreme Court held that a prisoner free on bail pending final disposition of his case satisfied the "in custody" requirement. Because Grundset was similarly free on bail on May 2, 1979, the district court acquired jurisdiction to hear the case. Once established, jurisdiction was not defeated by the commutation of Grundset's sentence. Carafas v. LaVallee, 391 U.S. 234, 239, 88 S. Ct. 1556, 1560, 20 L. Ed. 2d 554 (1968). Carafas held that a habeas case is not moot so long as there exist collateral consequences of a conviction that are subject to relief by the district court.
The question before this court is what collateral consequences, if any, follow from Grundset's misdemeanor conviction and whether they are significant enough to overcome a holding of mootness in this case. The standard which governs is stated in Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1899, 20 L. Ed. 2d 917 (1968): "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction" (emphasis added).
It is possible that the conviction for aggravated assault would lead to a stiffer sentence if Grundset again encountered difficulties with the law, see Ill.Rev.Stat. ch. 38, § 1005-5-3.2(a)(3) (1977). Second, it is possible that Grundset could be charged and tried for a subsequent criminal act in a jurisdiction that permitted impeachment by his prior misdemeanor conviction. E.g., State v. Hurt, 49 N.J. 114, 228 A.2d 673 (1967) (per curiam) (crime includes misdemeanors regardless of moral turpitude); Sullivan v. State, 333 P.2d 591 (Okl.Cr.1958) ("conviction of crime" not limited to offense involving moral turpitude); see also The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 297-98 (1968) (suggesting there will always be some state in which a legal disability might exist). Although the potential legal disabilities facing Grundset as a result of his misdemeanor conviction are somewhat more speculative than those facing a convicted felon, see Harrison v. Indiana, 597 F.2d 115 (7th Cir. 1979), the possibility of a disability exists. We find therefore that, under Sibron, the controversy is not moot.
The respondent-appellant contends that the petitioner's constitutional rights were not denied but that even if his rights under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), were abridged, the district court should have held an evidentiary hearing rather than granting Grundset's motion for summary judgment.
Grundset points to a number of grounds which in his view justify the district court's grant of summary judgment. For purposes of discussion, we will group his arguments as follows: (1) the felony/misdemeanor categorization embodied in Illinois Supreme Court Rule 402(e) is an unreasoned distinction violative of the equal protection clause; (2) his sixth amendment right to effective counsel and/or his fourteenth amendment right to an effective appeal was ...