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01/25/88 the People of the State of v. Gary Kaeding

January 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY KAEDING, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

518 N.E.2d 1058, 165 Ill. App. 3d 188, 116 Ill. Dec. 237 1988.IL.75

Appeal from the Circuit Court of Winnebago County; the Hon. Richard W. Vidal, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Following a jury trial in the circuit court of Winnebago County on September 8 and 9, 1986, the defendant, Gary Kaeding, appearing pro se, was found guilty of speeding and driving with only one headlight. In this pro se appeal, he raises 13 issues.

According to the record, the defendant was issued two uniform traffic citations and complaints on October 17, 1985, at 8:10 p.m. by Trooper Craig Allen of the Illinois State Police. Defendant was traveling 63 miles per hour in a 55 mile-per-hour zone and had only one headlight illuminated. He appeared in court on November 13, 1985, as directed on the citations, and, according to the docket sheet, pleaded "NG." Amongst numerous motions filed thereafter, the defendant demanded that a court reporter be present at all proceedings and that the cause be dismissed for jurisdictional defects.

The next hearing on December 20 was called for the purpose of plea negotiations; however, no negotiations occurred, and defendant's conduct in refusing to step aside and get the notice of the jury trial date caused the court to place him in a holding cell for 40 minutes. Thereafter, the defendant refused to sign the notice of hearing for January 17, 1986. Defendant filed a demand for trial by jury, and more motions to dismiss. The motions to dismiss were heard and denied on January 10. The docket sheet entries do not reflect a court appearance by the defendant on January 17, 1986. Defendant's "Affidavit of Record" contained in the common law record purports to detail the events on that date, and his brief is appended with a report of proceedings for that date under case number 86 -- CM -- 311 and case name "People v. John Doe a/k/a Steve (no last name)." Defendant's affidavit is not properly part of the common law record and may not be considered by this court. (People v. Berkowski (1944), 385 Ill. 392; People v. McGrath (1967), 85 Ill. App. 2d 388.) Similarly, the report of proceedings from the unrelated cause, People v. John Doe, is not properly before this court.

The docket sheet reflects the defendant failed to appear on February 3, but he filed a number of "demands" and motions arising out of the events which purportedly occurred at the January 17 hearing. The two uniform citations were dismissed when the defendant failed to appear, leave was given to file verified complaints, and a warrant for defendant's arrest was issued. He was arrested and released on bond on February 4, and agreed to appear on February 7. The record does not reflect what action, if any, was taken on that date. In July, defendant filed another motion to dismiss the charges for lack of jurisdiction in that the 55 mile-per-hour speed limit was fraudulently enacted under threat of withheld Federal highway funds. The cause proceeded to jury trial on September 8 and 9, 1986. The defendant's motions to dismiss on the basis of lack of jurisdiction and for violation of his right to speedy trial were heard and denied. As noted, the defendant was found guilty as to both counts. On October 14, the court entered judgments of conviction and fined the defendant a total of $300.

Initially we note defendant's brief fails to conform to the requirements of Supreme Court Rule 341 in that it has an improper and inadequate appendix, no meaningful statement of facts, and-save for nondispositive references to sections of the criminal and traffic codes, the constitution and the supreme court rules-cites no pertinent authority in support of his arguments. (107 Ill. 2d Rules 341(e)(6), (e)(7), 342(a).) As frequently stated, this court is entitled to have the issues clearly defined and supported by pertinent authorities (Boeger v. Boeger (1986), 147 Ill. App. 3d 629; In re Estate of Kunz (1972), 7 Ill. App. 3d 760), and a reviewing court will not apply a more lenient procedural standard to pro se litigants than is generally allowed attorneys. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448.) In addition to the inadequacy of defendant's brief, defendant's post-trial "Motion to Vacate Judgment" specifies as error only one of the issues he now presents. It is clear that in criminal cases tried to a jury, a written motion for a new trial specifying the grounds therefore must be filed by the defendant within 30 days of the jury's verdict. (People v. Caballero (1984), 102 Ill. 2d 23; People v. Miles (1986), 151 Ill. App. 3d 485; Ill. Rev. Stat. 1985, ch. 38, par. 116-1.) Moreover, application of the plain-error doctrine is not warranted in order to save the remaining issues. The doctrine of plain error-that is, an error or defect affecting substantial rights (107 Ill. 2d R. 615(a))-may be applied where an issue not properly preserved for review serves to deprive a criminal defendant of a fair and impartial trial or where the evidence is closely balanced. (People v. Friesland (1985), 109 Ill. 2d 369; People v. Bosworth (1987), 160 Ill. App. 3d 714.) Such is not the case here.

In our own discretion, however, and notwithstanding the fact defendant's argument is unsupported by citation of authority, we proceed to consider the issue defendant has attempted to preserve for review by including it in his post-trial motion: whether the court had jurisdiction of the cause. Defendant argues that it did not, since no plea was ever entered, nor was he either informed of the criminal nature of the offense or rearraigned after the two uniform traffic citations and complaints were dismissed and criminal complaints filed.

Contrary to the defendant's assertion, the common law docket sheet entry for November 13, 1985, shows the defendant pleaded "NG" to both charges. Moreover, his own "Affidavit of Record," which is not properly part of the common law record, shows he appeared in court on that date as directed on the citations and that he did not respond to the court's thrice-asked question: "How do you plead?" Section 113-4 of the Code of Criminal Procedure of 1963 (the Code) provides that, "[if] the defendant stands mute a plea of not guilty shall be entered for him and the trial shall proceed on such plea." (Ill. Rev. Stat. 1985, ch. 38, par. 113-4(b).) Thus, there was no error in the defendant's arraignment.

As to the criminal complaints filed after the uniform traffic citations were dismissed, the complaints which were substituted charged the defendant with violations of the same sections of the Illinois Vehicle Code as did the uniform traffic citations. (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-601(b), 12-211(a).) After the complaints were filed, defendant made no further objection to the court's jurisdiction on the basis he had not been arraigned, and he appeared and proceeded to trial pro se on the date set by the court. Under these circumstances, defendant has waived any claim of error with regard to arraignment. People v. Hahn (1980), 82 Ill. App. 3d 173; see also People v. Jones (1977), 56 Ill. App. 3d 600; Ill. Rev. Stat. 1985, ch. 38, par. 113-6.

We comment briefly on the defendant's remaining contentions which, as noted above, have not been preserved for review ...


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