People v. Montgomery

No. 3--97--0300
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, ) No. 96--CM--972
)
v. )
)
MARCUS A. MONTGOMERY, ) Honorable
) James M. Wilson,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:
Following a jury trial, defendant, Marcus A. Montgomery, was
convicted of unlawful consumption of alcoholic liquor by a person
under 21 years of age (235 ILCS 5/6--20 (West 1996)). Defendant,
who was 20 years of age at the time of the offense, was sentenced
to 30 days' imprisonment plus fines and costs. The sole issue on
appeal is whether a bystander's report of the trial court's
admonition given to defendant regarding his waiver of counsel
complies with the requirements of Supreme Court Rule 401(b) (134
Ill. 2d R. 401(b)).
The record reflects that on December 29, 1996, defendant was
charged with the unlawful consumption of alcoholic liquor by a
minor and a court date was set for January 7, 1997. Defendant
appeared pro se on that date, and the court directed defendant to
return on February 18 with an attorney. On February 18, defendant
again appeared pro se and the cause was continued, the court again
directing defendant to retain counsel. On February 25, defendant
appeared pro se and another continuance order was issued for a
March 7 jury trial. On March 7, defendant appeared pro se. The
trial court asked defendant if he had or was getting a lawyer, and
defendant responded that he was not. The trial court asked
defendant if he understood that he would be bound by the same rules
and regulations as if he were a lawyer, and he replied that he
understood. The trial court reminded defendant to return on March
10 and to bring his witnesses with him. The trial court then
referred to defendant's "lack of instruction in the law" and stated
that it did not expect defendant to provide jury instructions to
the court but that the State would be responsible for the
instructions. On March 10, defendant appeared pro se and the trial
court ordered another continuance.
The trial began on March 12, 1997. The record contains an
agreed statement of facts regarding the witnesses' testimony at
trial, the substance of which is irrelevant to the disposition of
this appeal. Defendant signed a "plea of not guilty." The
document provides only that defendant waives his right to an
attorney, pleads not guilty to the charge, and demands a trial by
jury.
On appeal, defendant argues that the record does not show that
he was admonished regarding his waiver of counsel because there was
no verbatim transcript of the trial court's proceedings as required
by Rule 401(b). In response to this argument, the State filed a
motion requesting that the appeal be held in abeyance pending
receipt of a bystander's report. The State contends that the
bystander's report establishes that the trial court gave defendant
the requisite admonitions. The State also notes that the
admonitions were not transcribed because the only court reporter
assigned to the county was engaged in reporting a felony trial.
The State asserts that an otherwise valid conviction should not be
reversed for lack of funding and staffing.
The State filed a motion to file the bystander's report as a
supplement to the record in compliance with Supreme Court Rule
323(c) (166 Ill. 2d R. 323(c)). We allow the bystander's report as
a supplement to the record over defendant's objections. The report
indicates that the trial court gave defendant the admonitions in
accordance with Rule 401(a).
Rule 401(a) sets forth the information that the trial court
must give to a defendant before the trial court accepts an
accused's waiver of counsel. People v. Baker, 94 Ill. 2d 129, 137
(1983). The Rule 401(a) admonitions must be given by the trial
court before a defendant may be found to have knowingly and
voluntarily waived his counsel. The admonitions given by the trial
court need only substantially comply with the requirements of Rule
401(a) in order to obtain a valid waiver of counsel if the record
indicates that the waiver was made knowingly and voluntarily and
the admonitions the defendant received did not prejudice his
rights. People v. Haynes, 174 Ill. 2d 204, 236 (1996).
Rule 401(b) provides that "[t]he proceedings required by this
rule to be in open court shall be taken verbatim, and upon order of
the trial court transcribed, filed and made a part of the common
law record." 134 Ill. 2d R. 401(b). Rule 323(c) provides for the
preparation of a proposed report of proceedings by the appellant in
the event that no verbatim transcript of the proceedings is
available. It further provides that a party may request from the
trial court any audiotape, videotape, or other recording of the
proceedings to be transcribed for use in the preparation of a
bystander's report. 166 Ill. 2d R. 323(c).
Thus, the issue we confront is whether the bystander's report
that is completed pursuant to Rule 323(c) satisfies the
requirements of Rule 401(b). We hold that it does not.
The rules for statutory construction apply to supreme court
rules. People v. Munetsi, 283 Ill. App. 3d 326, 335 (1996). The
principal rule of statutory construction is to ascertain and give
effect to the true intent of the governing body that adopted the
enactment. Munetsi, 283 Ill. App. 3d at 335. That intent is
determined first from the language of the enactment. Where the
language is clear, it will be given effect without resort to other
aids of construction. Munetsi, 283 Ill. App. 3d at 335.
It has long been established that an accused in a criminal
proceeding has the constitutionally guaranteed right to proceed
without counsel. Haynes, 174 Ill. 2d at 235. The supreme court
has declared that the right of self representation is as basic and
fundamental as the right to be represented by counsel. People v.
Nelson, 47 Ill. 2d 570, 574 (1971). As such, an accused may waive
the right to counsel as long as the waiver is voluntary, knowing,
and intelligent. Haynes, 174 Ill. 2d at 235.
The language of Rule 401(b) is clear and unambiguous: it
mandates that, when the defendant waives the right to counsel, the
proceedings must be recorded verbatim. The requirement of verbatim
transcription is for the benefit of the defendant as well as the
trial court because it creates a record that the defendant's waiver
was made knowingly and voluntarily, allows the trial court to
consider any alleged errors, and allows the appellate court to
consider the record of the hearing on review. See People v. Wilk,
124 Ill. 2d 93, 106 (1988). In light of the clear and unambiguous
language of Rule 401(b) requiring the verbatim recording of the
hearing on defendant's decision to waive the assistance of counsel,
we hold that the bystander's report submitted by the State does not
satisfy the requirements of Rule 401(b).
In People v. Robertson, 181 Ill. App. 3d 760 (1989), the
common-law record did not contain the trial court's admonitions
regarding defendant's waiver of counsel. The court held that the
trial court was required to comply strictly with the verbatim
mandates of Rule 401(b). Robertson, 181 Ill. App. 3d at 763. The
court reasoned that, without a verbatim record of the waiver of
counsel, there is no method of determining whether defendant
knowingly and intelligently waived counsel. See also People v.
Nikonowicz, 127 Ill. App. 3d 738 (1984); People v. McCarty, 101
Ill. App. 3d 355 (1981), aff'd in part and rev'd in part, 94 Ill. 2d 28 (1983); People v. Lyons, 19 Ill. App. 3d 294 (1974); cf.
People v. Hopping, 60 Ill. 2d 246 (1975)(misdemeanor offenses
excused from strict compliance under previous version of Rule 401).
Additionally, we are compelled to comply strictly with Rule
401(b) as a result of the constitutional requirements for all
offenses punishable by imprisonment. The critical emphasis is upon
the record of a waiver hearing, not upon any allegations of
nonwaiver. Moreover, where the record fails to show that the
defendant voluntarily and knowingly waived his right to counsel,
the State may not place the burden of showing nonwaiver on him.
People v. McCarty, 101 Ill. App. 3d 355 at 360. Under the
circumstances, the burden of providing a verbatim transcript
properly rested with the State. People v. Nikonowicz, 127 Ill.
App. 3d at 745.
Furthermore, our holding does not conflict with Rule 323(c).
Rule 401(b) clearly provides that the proceedings must be taken
verbatim during the time when the admonitions were given. Rule
323(c) accommodates the verbatim requirement of Rule 401(b) by
allowing the parties to use an audiotape or videotape of the
proceedings. Additionally, the use of an audiotape or videotape of
the proceedings provides an easy and effective way to preserve the
admonitions when a county, such as Kendall, lacks sufficient funds
or staffing.
We conclude that Rule 401(b) requires that a verbatim record
of the waiver proceedings be made. The State has failed to present
such a transcript. Accordingly, because there is no verbatim
record of whether defendant knowingly and voluntarily waived his
right to counsel for us to review, we must reverse the judgment of
the trial court of Kendall County and remand the cause for a new
trial.
Reversed and remanded.
THOMAS and RATHJE, JJ., concur.