People v. Ramos

FOURTH DIVISION
March 12, 1998


No. 1-94-4309

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
RITA RAMOS, ) THE HONORABLE
) DAVID A. ERICKSON,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE SOUTH delivered the opinion of the court:

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 habeas corpus
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 to supply a bystander's report in order that a proper
consideration can be given by a court of review. People v. Glines,
33 Ill. App. 3d 910, 338 N.E.2d 592 (1975).
Illinois Supreme Court Rule 323(c) provides:

"Procedure If No Verbatim Transcript Is
Available (Bystander's Report).
If no verbatim transcript of the evidence of
proceedings is obtainable the appellant may
prepare a proposed report of proceedings from
the best available sources, including
recollection. In any trial court, a party may
request from the court official any audiotape,
videotape or other recording of the
proceedings. The court official or any person
who prepared and kept, in accordance with
these rules, any audiotape, videotape, or
other report of the proceedings shall produce
a copy of such materials to be provided at the
party's expense. Such material may be
transcribed for use in preparation of a
bystander's report. The proposed report shall
be served on all parties within 28 days after
the notice of appeal is filed. Within 14 days
after service of the proposed report of
proceedings, any other party may serve
proposed amendments or an alternative report
of proceedings. Within 7 days thereafter, the
appellant shall, upon notice, present the
proposed report or reports and any proposed
amendments to the trial court for settlement
and approval. The court, holding hearings if
necessary, shall promptly settle, certify, and
order filed an accurate report of proceedings.
Absent stipulation only the report of
proceedings so certified shall be included in
the record on appeal." 166 Ill. 2d R. 323(c).

In the present case, the record reflects that none of the
participants in the trial has an accurate and complete record of
the trial. Thus, despite exhaustive efforts by defendant to supply
a bystander's report pursuant to Rule 323(c), she has been unable
to do so.
Defendant cites People v. Stark, 33 Ill. 2d 616, 213 N.E.2d 503 (1966), and People v. Seals, 14 Ill. App. 3d 413, 302 N.E.2d 701 (1973), for the proposition that where the record on appeal is
insufficient to permit an effective appeal, the cause must be
remanded for a new trial.
In Stark, 33 Ill. 2d 616, 213 N.E.2d 503, our supreme court
held that where the transcript of the hearing on defendant's motion
to suppress his confession was unavailable through no fault of
defendant and the only evidence as to the circumstances surrounding
defendant's confession was the sheriff's testimony, a new hearing
was required to determine whether the confession, made in the
absence of counsel after the prisoner's presentation to the
magistrate, was admissible.
In Seals, 14 Ill. App. 3d 413, 302 N.E.2d 701, defendant's
conviction was reversed and remanded for a new trial on the basis
that defendant's grounds for appeal made out a "colorable need" for
a verbatim transcript and the State had the burden of showing that
an alternative to the transcript would suffice for an effective
appeal.
Here, in defendant's post-trial motion for a new trial,
defendant raised three claims of error. The State correctly notes
that the first two claims of error, i.e., the propriety of the
court's ruling on defendant's pretrial motion to suppress evidence
and the variance between the indictment and the guilty finding, can
be resolved based upon the record before us.
However, defendant's third claim of error, the insufficiency
of evidence to prove her guilty beyond a reasonable doubt, presents
a colorable need for a verbatim transcript in order to afford
defendant her constitutional right to a direct appeal. The record
reflects that despite the circuit court's explicit instruction to
defense counsel to file a notice of appeal, he failed to do so.
Consequently, defendant's notice of appeal was not filed until
January 11, 1995, nearly three years after her April 14, 1992,
conviction. As a result of the delay in filing the notice of
appeal, the court reporter's office could not locate the transcript
of the trial proceedings. Furthermore, notwithstanding appellate
counsel's diligent attempts to compile a complete record on appeal,
he could not comply with the requirements of Rule 323(c).
In view of the fact that defendant had no control over these
circumstances and this court cannot afford defendant effective
appellate review absent a verbatim transcript of her trial
proceedings, we find that justice requires defendant be granted a
new trial. To conclude otherwise would in effect deny defendant
her constitutional right to a direct appeal.
However, careful review of the record makes clear that
following the hearing, the circuit court properly denied
defendant's pretrial motion to suppress evidence pursuant to Franks
v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
Therefore, we affirm the circuit court's August 28, 1991, ruling on
defendant's Franks motion and remand for a new trial
Remanded for a new trial.
McNAMARA and WOLFSON, JJ., concur.