Appeal from the Circuit Court of Madison County; the Hon.
Thomas E. Hildebrand, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
At issue in this appeal is whether the trial court should have allowed the defendant's motion to withdraw his guilty plea where no verbatim transcript was kept of the plea proceeding and the defendant alleged an invalid waiver of counsel under Supreme Court Rule 401 (87 Ill.2d R. 401).
On July 15, 1983, the defendant, Michael Nikonowicz, came before Judge Thomas Hildebrand on his first appearance. At that time the court accepted a guilty plea from the defendant to the charge of possessing less than 30 grams of cannabis (see Ill. Rev. Stat. 1983, ch. 56 1/2, par. 704(c)). No verbatim transcript was kept of this proceeding. The only record of the proceeding was made with a rubber stamp on a common law record card, which read as follows:
"Defendant advised of his rights, the charge and penalty thereunder, copy of complaint read and given. Defendant waives jury trial and pleads guilty. Court finds defendant guilty and after hearing in aggravation and mitigation assesses a fine of $1,000 and costs * * *. Sentencing him to 6 months in the county jail. Mittimus to issue."
The date as well as the amount of the fine and costs and the length of the sentence were written in on the appropriate blanks. Underneath, in the judge's hand, was the postscript "Appeal rights given" and the judge's signature.
On August 9, 1983, the defendant filed a motion to withdraw his guilty plea under Rule 604(d) (87 Ill.2d R. 604(d)) in which he alleged, inter alia, that the court had failed to address the defendant in open court and inform him of and determine that he understood the nature of the charge, the possible penalties that could be imposed, and his right to counsel, including the right to appointed counsel if he was indigent. The defendant also asserted that the common law record did not reflect a waiver of counsel by the defendant and that a verbatim transcript had not been taken and made a part of the common law record as required by Rule 401(b). In addition, the defendant alleged that the court had failed to give the admonitions required by Rule 402 (87 Ill.2d R. 402) or make the necessary determinations in accepting the defendant's guilty plea.
At a hearing on this motion, the defendant presented the testimony of Martha Schumaker, a deputy clerk in the Madison County circuit clerk's office. She stated that no record had been made of the July 15 guilty plea proceeding other than the common law record and that nowhere in the common law record did it appear that the defendant had waived his right to counsel. On cross-examination, Mrs. Schumaker testified that the defendant had had two other traffic court cases that same day but that it did not appear that counsel had been appointed to represent the defendant in those cases. The common law record of the July 15 proceeding showed that the public defender had been appointed for the defendant on August 4, 1983.
The State presented no evidence, and, after arguments by counsel, the court commented as follows:
"THE COURT: I would advise you at this time, gentlemen, that [the] court has utilized that rubber stamp and, of course, — only to the recent flurry of motions which have been filed regarding said rubber stamp, there is going to be a new and completely different rubber stamp utilized in the future as soon as it can be produced. But I will advise counsel, for the record, Mr. Nikonowicz appeared in front of me July 15, 1983, in custody and I will take notes since it's my handwriting, since it was my case, and I was the judge. That — although that there is a rubber stamp and it doesn't reflect the waiver of counsel, that Mr. Nikonowicz, when he was brought before me was advised of the charge. The charge was read to him, explained to him. And I said words to the effect that, `Mr. Nikonowicz, you understand what you're here for today, and you're going to plead guilty or not guilty. If you plead guilty, the court will impose a penalty based on the nature of the offense and whether the prior record you have got [sic] taking into account your circumstances and the nature of this offense.'"
Upon objection by defense counsel, the court noted that he was "supplementing the record at this time" and continued:
"I further stated to Mr. Nikonowicz, "That if you plead guilty as I said, the court will impose a penalty. If you plead not guilty, you will have a trial. If you have a trial, you will have a jury or a non-jury trial. If you have a jury trial, six to twelve people called jurors — you have your choice of six or twelve. You get to help choose them, listen to the evidence and determine your guilt or innocence determined on that evidence. If you have a non-jury — judge, me, most likely sitting without a jury will make that decision. And I said do you follow me so far and then I said no matter what kind of trial you have, you have certain rights. You have a right to confront and cross examine the witnesses. That means you can see who's testifying against you and ask them questions about what they say. You can also put on witnesses to tell your side of the story and testify if you want to, but you don't have to if you don't want to. The fact that you don't, can't be used against you because you're presumed innocent. The State must prove you guilty beyond a reasonable doubt. That's their job, not yours. You don't have to prove anything. I said you have a right to have an attorney with you at all stages in these proceedings and if you're charged with an offense that carries jail time, like this one, as a possible penalty and you can't afford one, counsel will be appointed to represent you from the public defender's office. And how much we pay for that representation, we take it up at a later time pursuant to state statute. If you plead guilty, you are giving [sic] your right to a trial, your right to a jury trial, your right to cross and confront witnesses, and your right to put on witnesses to tell your side of the story, and your right to testify. In other words, there's no trial if you plead guilty. I advised Mr. Nikonowicz of the penalties for the charge; asked him how he pled.'"
The court, noting that one of the arguments in the case was lack of compliance with Rule 401, stated that "the problem * * * was that this was not taped. Nobody asked for a bystander's report, and there was not a tape recording made." Subsequent to that time, he added, the court had commenced taping all appearances that might result in imprisonment in order to avoid such problems in the future. The court continued:
"And as I said, I advised Mr. Nikonowicz of his rights regarding counsel and all of his other substantial applicable rights as far as the factual basis. I asked him what happened. He said something to the effect that he had been stopped — exact statement he made, I don't recall. I asked him is there anything he had to say for himself, and he said, `No.' I had a copy of Mr. Nikonowicz's record, rap sheet, his arrest card from the Granite City Police Department * * *. I asked Mr. Nikonowicz about his prior records [sic] which consist of four arrest cards, at least three prior convictions for possession of cannabis. And in light of his prior record, I imposed upon him a penalty which I thought was commensurate with the statutory factors including the nature and circumstances of the offense and his prior record * * *."
The court concluded that "as far as the issue * * * about supplementing the record by the court, I cannot help but take judicial notice of the proceedings when I was the judge in those proceedings." The court then asked the defendant if he had any quarrel with anything the court had said. The defendant replied in the affirmative but, upon advice of counsel, made no further response. Noting that "[there was] no indication that [the defendant] didn't understand what was going on in this case" and that it was the court's understanding from talking to ...