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People v. Harpole

OPINION FILED JULY 3, 1985.

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

v.

MALCOLM N. HARPOLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Randolph County; the Hon. Jerry D. Flynn, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

The 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 proceedings and the defendant alleged he did not waive his right to counsel and his right to a trial by jury.

On May 21, 1984, defendant, Malcolm N. Harpole, was convicted of the offenses of driving under the influence of intoxicating liquor and improper lane usage following his pleas of guilty. The trial court found defendant guilty of the charges and imposed a $260 fine plus $111 costs for the first charge and a $26 fine plus $25 costs on the second. A court reporter was not present during the plea and sentencing proceedings, nor was defendant represented by counsel.

On June 20, 1984, defendant, represented by counsel, filed a motion to vacate his guilty pleas. Defendant alleged that his pleas were not knowingly and voluntarily entered because he did not waive his rights to counsel and a jury trial and that he was not guilty of the charges. He also contended that in violation of Supreme Court Rule 401(b) (87 Ill.2d R. 401(b)) a court reporter was not present during the proceedings.

On July 11, 1984, the trial court conducted a hearing on defendant's motion to vacate the pleas. At the hearing, the defendant testified he was 73 years old and that at the time of his pleas he was not represented by counsel. He stated that at the time he appeared before the bench, five or six other defendants simultaneously appeared in unrelated matters. He denied being advised by the trial court that he had a right to counsel and a trial by jury. Defendant testified that a court reporter was not present during the proceedings. He stated that he insisted on his innocence at the time of the pleas. Defendant further testified that he informed the trial court that at the time of his arrest he had diabetes, high blood pressure, asthma, gout and a bleeding condition for which he took "four or five pills every day."

During a colloquy between the defendant and the court, defendant stated he did not commit the offenses and had so advised the court at the time of the pleas and sentencing. In response, the court stated it was possible defendant was before him with four or five other defendants but that he had advised defendant of his right to counsel, and a jury trial. The court stated that it recalled the incident "vividly because I probably had a more extended conversation with Mr. Harpole than I've had with any other defendant that's been charged with D.U.I. in the recent past." The court said the defendant had indicated "he did not feel that he was guilty," but that notwithstanding, he wanted to plead guilty.

At the conclusion of the hearing, the court stated that Supreme Court Rule 401 did not require that a transcript be furnished because the rule referred to offenses punishable by imprisonment, and since defendant was placed on "conditional discharge of [sic] probation," the rule did not apply. The court further stated that defendant had been adequately advised of his rights and that he waived his rights knowingly and voluntarily. The court therefore denied defendant's motion to vacate the pleas.

• 1 As indicated above, the issue we face is whether the trial court should have allowed defendant's motion to vacate his pleas of guilty where no verbatim transcript was kept of the plea proceedings and defendant alleged he was not advised as to his right to counsel and his right to a jury trial.

Supreme Court Rule 401 (87 Ill.2d R. 401) provides:

"(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 understand the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.

(b) Transcript Required. The proceedings required by this rule to be in open court shall be taken verbatim, transcribed, filed and ...


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