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People v. Majer

OPINION FILED FEBRUARY 27, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRANK MAJER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John Peterson, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Frank Majer, appeals from an order of the circuit court convicting him of reckless driving (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-503(a)), contending (1) the conviction violated the terms of his plea agreement with the State, and (2) was not an authorized disposition under the provisions of the Unified Code of Corrections relating to supervision (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-1-21, 1005-6-1(c), 1005-6-3.1).

A verbatim transcript of the guilty plea hearing held June 13, 1983, which is the subject of this appeal, was not available and the parties have provided an agreed statement of facts pursuant to Supreme Court Rule 323 (87 Ill.2d R. 323(c)(d)). From it and the common law record furnished to this court, certain facts are ascertainable.

Defendant was charged with driving while under the influence of alcohol on January 6, 1983, by an Illinois Uniform Traffic Ticket and Complaint; he was also charged with speeding and improper lane usage. After plea negotiations with the State, defendant and his attorney appeared in the circuit court on June 13, 1983, and he entered a plea of guilty to the D.U.I. offense. The agreed statement of facts by the parties states the plea was entered in accordance with a written plea agreement, which was attached as exhibit A, and was approved by the trial court. That exhibit, which is titled "Traffic School of Behavior Change, Inc. D U I Program Referral," was dated June 13, 1983, and identifies the defendant, court, attorneys and arresting police department, but does not specify the offense to which he entered a plea of guilty. Under a section titled "Plea Agreement," it states defendant pleaded guilty, was found guilty and was placed on court supervision until December 12, 1983. It further provided that defendant was not to commit any alcohol-related offense, was to attend D.U.I. school and was to pay a $350 fine and court costs of $120. The last handwritten entry in the plea agreement section states "Reduce to Reckless Driving."

As a result of this "plea agreement," the trial court entered a written order on June 13 for court supervision, which is attached to the agreed statement of facts as exhibit B. It sets forth that defendant entered a plea of guilty to driving while under the influence of alcohol and, if he successfully completed the terms of supervision, which he had requested, defendant would be discharged and no judgment of guilty would be entered against him. The order for supervision further provided as terms that defendant would not violate any alcohol-related statutes or ordinances; would complete the traffic school; would pay a fine of $350 and report back to the court on December 12, 1983. Under a section titled "Other" was the statement "Reduce to Reckless Driving."

The record also discloses that on December 12, 1983, defendant appeared in court and tendered proof he had paid the fine and court costs and had satisfactorily completed the traffic school. On that same day, the trial court entered an order convicting defendant of reckless driving; no sentence or fine was imposed upon that conviction.

At the hearing of defendant's motion to vacate the conviction, the attorney who had represented him at the time of his guilty plea testified he had not informed defendant the reckless driving conviction would be entered at the end of the supervision period and that it was the attorney's understanding the phrase "reduce to reckless driving" meant the original charge would be so reduced and there would be no conviction after the satisfactory completion of supervision. Counsel stated he had advised his client all charges would be then dropped.

The trial court denied defendant's motion to vacate the reckless driving conviction, finding that the procedures followed were in accord with the practices of the court in such cases. The judge noted that when an order for supervision was entered on a negotiated driving-while-under-the-influence-of-alcohol charge, it was a part of the agreement between defendant and the State that a conviction for reckless driving, or other less severe charges, be entered. The judge considered that the plea agreement removed the case from the provisions of the statute relating to supervision.

I

• 1 Defendant's contention that the conviction for reckless driving violated the terms of his plea agreement with the State is not supported by the record provided to this court.

The parties agree that as a part of the plea agreement defendant pleaded guilty to and was convicted of the offense of driving while under the influence of alcohol and was placed on supervision for six months; they also agree as to the terms of the agreement relating to other violations, traffic school, fine and costs. The State argues that an additional condition of the plea agreement, as shown in the common law record and agreed statement of facts, was that a judgment of conviction for reckless driving would be entered upon successful completion of supervision. Defendant argues that was not included in the plea agreement.

Supreme Court Rule 402(b) provides that where a plea of guilty is tendered pursuant to a plea agreement, the agreement shall be stated in open court. The trial court has a duty to question defendant in open court to confirm the terms of the plea agreement and shall not enter a final judgment without determining whether there is a factual basis for the plea. 87 Ill.2d R. 402(b).

The well-established rule is that an appellant must demonstrate the existence of error in the record, and failure to do so creates a presumption of regularity that attaches to all trial court proceedings. (People v. Calvert (1980), 82 Ill. App.3d 350, 353, 402 N.E.2d 638.) The purpose of appellate review is to evaluate the record presented in the trial court and, generally, review will be confined to what appears in the record. (People v. Benford (1975), 31 Ill. App.3d 892, 894, 335 N.E.2d 106.) Because a court of review cannot presume the existence of an error that the record does not demonstrate affirmatively, it must resolve silence in the record against the defendant. (People v. Harrell (1982), 104 Ill. App.3d 138, 143, 432 N.E.2d 1163.) It is also well-settled that the defendant has the burden of properly preserving the record of the proceedings conducted in the trial court. (E.g., People v. Edwards (1978), 74 Ill.2d 1, 6, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L.Ed.2d 299, 99 S.Ct. 2862; People v. Smith (1969), 42 Ill.2d 479, 483, 248 N.E.2d 68; People v. Turner (1982), 110 Ill. App.3d 519, 522, 442 N.E.2d 637; People v. Malley (1982), 103 Ill. App.3d 534, 536, 431 N.E.2d 708.) Consequently, when the record presented on appeal is incomplete, a court of review will indulge in every reasonable presumption favorable to the judgment from which the appeal is taken, including that the trial court ruled or acted correctly. Any doubt arising from the incompleteness of the record will be resolved against the appellant. People v. Turner (1982), 110 Ill. App.3d 519, 523, 442 N.E.2d 637; People v. Bruhn (1977), 51 Ill. App.3d 269, 271, 366 N.E.2d 932.

The parties filed an agreed statement of facts which included the stipulation that the defendant entered into a plea agreement that the trial court approved. The stipulation stated that a copy of the agreement was attached as an exhibit, and it contains the notation "Reduce to Reckless Driving" under the heading "Plea Agreement." On appeal, the parties dispute the meaning and effect of this phrase, and it is apparent that ...


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