APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE DAVID A. ERICKSON, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice South
On March 25, 1991, defendant, Rita Ramos, was charged with the offense of delivery of a controlled substance (cocaine) with the intent to distribute. Prior to trial, defendant filed a motion to suppress any evidence obtained pursuant to the search warrant and to produce the informant who defendant alleged falsely supplied information for the search warrant. The court denied the motion. There is no transcript of the trial proceedings or a bystander's report contained in the record on appeal. However, the common law record indicates that on March 23, 1992, following a bench trial, the court found defendant guilty of the lesser included offense of possession of a controlled substance.
On April 14, 1992, defendant filed a post-trial motion for a new trial alleging that (1) the trial Judge incorrectly denied her pretrial motion to suppress; (2) she was improperly convicted of possession of a controlled substance after being charged with delivery of a controlled substance; and (3) the evidence was insufficient to prove her guilty beyond a reasonable doubt. The court denied defendant's post-trial motion, and she was sentenced to four years' imprisonment to be served consecutively to a 15-year sentence for a prior DuPage County conviction. We remand for a new trial.
On the day defendant was sentenced, April 14, 1992, the court appointed the State Appellate Defender to represent her on appeal and instructed trial counsel to file the notice of appeal. Notwithstanding this instruction, neither defense counsel nor the appellate defender filed a timely notice of appeal.
On July 13, 1993, defendant filed a post-conviction petition alleging she was denied due process by her attorney's failure to file a notice of appeal. On July 28, 1993, the court denied the petition without a hearing. Thereafter, defendant filed a notice of appeal from that order.
On January 11, 1995, nearly three years after defendant's conviction, this court allowed her to file a late notice of appeal. Defendant then moved to dismiss her appeal from the post-conviction petition, which this court allowed on January 25, 1995.
Over the next year and a half, former appellate counsel for defendant made efforts to compile a complete record on appeal. On August 31, 1995, he filed the common law record and a one-volume supplement containing the report of proceedings from the hearing on defendant's motion to suppress and the proceedings from the April 14, 1992, hearing on post-trial motions and sentencing. Also contained in the supplemental record is an affidavit of the official court reporter stating that she was the court reporter for defendant's March 23, 1992, bench trial and that a diligent search for the stenographic notes was unsuccessful.
In an attempt to prepare a bystander's report in lieu of a verbatim transcript of defendant's trial pursuant to Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)), appellate counsel for defendant spoke with the defense attorney, the prosecutor and the trial Judge. Defendant's trial attorney searched for but could not locate his file from this case. The prosecutor's file, although containing some information, including the police reports, search warrant, defense counsel's motions and a petition for relief, is insufficient to adequately reconstruct the trial proceedings. The trial Judge also searched his office but could not locate his notebook from the bench trial.
Moreover, none of the individuals had sufficient recollection of the witnesses' testimony or objections made to adequately reconstruct the trial proceedings. Additionally, defendant was instructed to provide her own recollection of the trial proceedings, which she attempted to do three times.
After an unsuccessful attempt to compile a complete record on appeal and after reviewing defendant's handwritten version of the trial, former appellate counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). In that motion, he explained the steps he took to compile a verbatim record and bystander's report of the trial.
On July 17, 1996, this court granted defendant leave to allow her present attorney to substitute as counsel on appeal. Thereafter, the Anders motion was withdrawn.
On appeal, defendant contends that she must be granted a new trial because, through no fault of her own, there is no transcript of her trial proceedings; a bystander's report cannot be prepared by the parties or certified by the circuit court; the fragments of her recollections and nontrial transcripts that do exist indicate a constitutional violation occurred at trial; and she was denied her right to a direct appeal. The State responds that defendant has not been denied her right to an appeal and should be denied a new trial because she has failed to allege any issue for resolution that requires a verbatim report of the trial proceedings.
This court has held that it is defendant's burden to provide a sufficient record to support a claim of error and, absent such record, it will be presumed that the court heard sufficient evidence and argument to support its decision. Foutch v. O'Bryant 99 Ill. 2d 389, 459 N.E.2d 958 (1984); Ciers v. O.L. Schmidt Barge Lines, Inc., 285 Ill. App. 3d 1046, 675 N.E.2d 210 (1996). As previously noted, however, the official court reporter has provided an affidavit stating that a diligent but unsuccessful search had been made for the stenographic notes from defendant's bench trial. In the absence of a verbatim transcript, the defendant is required ...