{ "id": 2462272, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Francisco Gonzales, Defendant-Appellant", "name_abbreviation": "People v. Gonzales", "decision_date": "1973-06-26", "docket_number": "No. 71-398", "first_page": "265", "last_page": "268", "citations": [ { "type": "official", "cite": "15 Ill. App. 3d 265" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "52 Ill.2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395728 ], "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0227-01" ] }, { "cite": "53 Ill.2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926561 ], "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0388-01" ] }, { "cite": "53 Ill.2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925347 ], "year": 1973, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0109-01" ] }, { "cite": "53 Ill.2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925142 ], "pin_cites": [ { "page": "589-590" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0585-01" ] }, { "cite": "53 Ill.2d 572", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2924359 ], "year": 1973, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0572-01" ] }, { "cite": "48 Ill.2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907531 ], "opinion_index": 1, "case_paths": [ "/ill-2d/48/0187-01" ] } ], "analysis": { "cardinality": 420, "char_count": 7354, "ocr_confidence": 0.745, "pagerank": { "raw": 1.146359328595604e-07, "percentile": 0.5803212851405622 }, "sha256": "a0ee56a75440d143d3baa407d974ead37255a36a182138bc644f4b4529397aa0", "simhash": "1:b30cf45b8c4a8edc", "word_count": 1166 }, "last_updated": "2023-07-14T19:38:17.475453+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Francisco Gonzales, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court:\nThis appeal is from a post-conviction proceeding.\nOn March 8, 1966, after pleading guilty to voluntary manslaughter, defendant was sentenced to a term of 15 to 20 years. Two years later he filed a petition seeking a complete transcript of all court proceedings. The court allowed his request and ordered a transcription prepared and sent to him. This was not done.\nOn February 14, 1969, defendant filed a pro se petition for post-conviction relief and the public defender was appointed to represent him. Two years later, the public defender was replaced by other counsel and, at that time, an amended petition was filed. On August 25, 1971, evidence was heard and relief denied. The next day a notice of appeal was filed. It was not until a year later that a portion of the original proceedings was transcribed and filed in this Court. The portion furnished relates only to the admonition given defendant at the time his plea was accepted.\nDefendant claims that (1) he was denied adequate representation by counsel at his post-conviction hearing in that his attorney failed to review his original court proceedings and (2) that his sentence is excessive.\nWhile the appeal was pending, the State moved for leave to file a certificate of compliance in the form of an affidavit executed by defendant\u2019s counsel at the post-conviction hearing. The motion, together with objections, was taken with the case. Also taken with the case was a motion by defendant requesting that the new Unified Code of Corrections be applied to his sentence.\nDefendant\u2019s motion is denied. We do not consider an appeal from a post-conviction proceedings to be a direct appeal. The words, \u201cfinal adjudication,\u201d found in section 8 \u2014 2\u20144 of the Code and relied upon by the defendant, apply only to direct appeals that were not finally adjudicated as of the effective date of the Act. People v. Chupich (1973), 53 Ill.2d 572, 584; People v. Harvey (1973), 53 Ill.2d 585, 589-590.\nIt is also claimed that the sentence is excessive and defendant requests that we invoke our power under Supreme Court Rule 615(b) (4) to reduce it. We decline. The point was not raised nor urged in the trial court and is therefore waived. (People v. Brouhard (1973), 53 Ill.2d 109, 114.) Even under converse circumstances, this issue is not cognizable when, in a post-conviction proceedings, the sentence is within the statutory limits. People v. Ballinger (1973), 53 Ill.2d 388, 390.\nDefendant\u2019s contention that he was denied adequate representation by counsel is founded upon an alleged violation of Rule 651(c) wherein counsel is required to review the record of proceedings. To satisfy this requirement, the State moved to supplant the record with a certificate of compliance founded upon an affidavit of counsel who represented the defendant at the post-conviction hearing. In substance, the attorney admits that he never read any transcript of proceedings prior to the hearing but that upon reading a portion of the proceedings some 19 months later, he concludes that no additional issues could have been raised. The certificate presupposes that if the balance of the original trial record were transcribed, no substantial constitutional questions would be found. This purely speculative surmise renders the certificate inadequate. The State\u2019s motion is, therefore, denied.\nPost-conviction proceedings are limited in scope and this is likely to be the only review to which the defendant will be entitled. The purpose of the Rule is not merely formal and its nonobservance should be discouraged. (People v. Brown (1972), 52 Ill.2d 227, 230.) We are of the opinion that, in keeping with the rule\u2019s intent, a complete record should have been made available to the defendant.\nFor the reasons stated, the judgment appealed is vacated and the cause is remanded for further proceedings in accordance with the views expressed herein.\nMotions taken with the case are denied; judgment is vacated and the cause remanded with directions.\nABRAHAMSON and SEIDENFELD, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE THOMAS J. MORAN" }, { "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court upon rehearing:\nThe State\u2019s petition for rehearing was allowed. Attached to the petition is an affidavit by the court reporter for the original trial which informs us that his shorthand notes of the hearing on aggravation and mitigation proceedings, held on March 21 and 22, 1966, cannot be found. (The transcript of this two-day hearing is the missing portion of the record of proceedings mentioned in the opinion.)\nOne issue raised by defendant\u2019s post-conviction petition is that his plea of guilty was based upon trial counsel\u2019s promise that he would receive a penitentiary sentence of five to fifteen years.\nOn rehearing, the State argues that that portion of the record of proceedings which covers the hearing on aggravation and mitigation is unnecessary. We quote from the State\u2019s brief:\n\u201cA record of the sentencing hearing, however, whether a transcript or a by-stander\u2019s report constructed through recollection, would reveal no information relating to the regularity of defendant\u2019s conviction and sentence which has not already been adduced at the post-conviction hearing. Ordinarily, matters relating to a sentence or a sentencing hearing do not raise issues cognizable under the Post-Conviction Hearing Act. People v. Wilbourn, 48 Ill.2d 187; People v. Bollinger, 53 v.2d 388, 390. Hence, the only way in which a record of the sentencing hearing in this case might be helpful to defendant or his counsel would be if there had been some event recorded at the sentencing hedring which corroborated defendant\u2019s post-conviction allegation that there was a plea agreement under which defendant\u2019s sentence was to be only five years, not the fifteen to twenty year sentence actually imposed. Evidence which has already been adduced at the hearing on defendant\u2019s post-conviction petition, however, supports no reasonable inference except that such an event would not be found in the record of defendant\u2019s sentencing hearing.\u201d (Emphasis added.)\nBy the underscored exception (above) the State has effectively answered its own argument for it is precisely such circumstance, together with defendant\u2019s post-conviction allegations, which makes it imperative that defendant be provided a record of his hearing in aggravation and mitigation.\nAlternatively, the State requests that, upon remand, the scope of review be limited to only new matters that may be revealed by the untranscribed portion of the proceedings.\nSubsequent to the post-conviction hearing, appellate counsel was furnished certain documentary evidence bearing upon the issue raised by defendant. In light of this and in fairness to the defendant, we direct the trial court to conduct a complete new hearing on defendant\u2019s post-conviction petition and hereby reaffirm the orders of the opinion.\nABRAHAMSON and SEIDENFELD, JJ., concur.", "type": "rehearing", "author": "Mr. JUSTICE THOMAS J. MORAN" } ], "attorneys": [ "Paul Bradley, of Defender Project, of Elgin, for appellant.", "Philip G. Reinhard, State\u2019s Attorney, of Rockford (James W. Jerz, of Model District State\u2019s Attorneys Office, of Elgin, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Francisco Gonzales, Defendant-Appellant.\n(No. 71-398;\nSecond District\nJune 26, 1973.\nSupplemental opinion upon rehearing December 14, 1973.\nPaul Bradley, of Defender Project, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford (James W. Jerz, of Model District State\u2019s Attorneys Office, of Elgin, of counsel), for the People." }, "file_name": "0265-01", "first_page_order": 285, "last_page_order": 288 }