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SECOND DIVISION
SEPTEMBER 28, 2004
(Nunc pro tunc August 17, 2004)

The defendant, Doraletta Porter, was initially charged withtheft by deception. 720 ILCS 5/16-1, 17-1 (West 2000). TheState alleged the defendant altered a "Ten Times Lucky" lotteryticket, tendered the altered ticket to the Illinois State LotteryOffice, and attempted to collect a reward based on the alteredticket.

However on April 19, 2001, the State orally amended thecomplaint and charged the defendant with attempted theft bydeception. 720 ILCS 5/8-4, 16-1(a)(2), 17-1 (West 2000). TheState read its amended complaint into the record:

"Special Agent Leslie Sargent from theIllinois State Police, 2604, would testifythat on July 26, 2000, at the location of86'' *** on Pulaski in Chicago, Illinois, theState Lottery Claim Center, we are allegingthat the offense of attempt theft bydeception was committed in that DoralettaPorter, with intent to commit the offense oftheft by deception, knowingly performed asubstantial step in that she tendered to theIllinois State Lottery Claim Office analtered lotto ticket, number 45290784080,with intent to gain control over UnitedStates currency, to wit, two thousand fourhundred dollars."

In response to the State's amended complaint, the defendant'sattorney waived reswearing and reverification. The trial judgethen asked the defendant if she wished to waive her right to ajury trial. The defendant stated that she wanted a jury trial. However, the defendant's attorney asked to speak with thedefendant and explained to the trial court that she believed thedefendant was confused. The trial court again asked thedefendant if she wished to waive her right to a jury trial. Thedefendant replied "yes."

A stipulated bench trial was then held. There were noopening statements, the defendant's attorney stipulated to theState's amended complaint in toto, the State rested, thedefendant's attorney called no witnesses, and closing argumentswere waived. The trial court then found the defendant guilty andsentenced her to six-months' supervision and five days ofcommunity service.

The defendant appeals arguing (1) the stipulated bench trialwas tantamount to a guilty plea as her attorney did not preservea defense and her guilty plea was not knowing and voluntary, and(2) her attorney was ineffective.

In its brief before this court the State concedes that,"[i]n [her] [a]rgument, defendant goes through great lengths inorder to show that her stipulated bench trial was tantamount to aguilty plea. The People do not disagree." The State goes on toremark, "[t]he record clearly establishes that the partiesentered into a negotiated plea agreement wherein defendant agreedto waive her right to a jury trial and enter into a stipulatedbench trial on the offense of attempt theft by deception inexchange for the People's recommendation of a sentence ofsupervision." The State nonetheless argues that "contrary todefendant's position, the record also establishes that the trialcourt properly admonished defendant in accordance with SupremeCourt Rule 402 [(177 Ill. 2d R. 402)]" and compares this case toPeople v. Sutton, 229 Ill. App. 3d 960, 594 N.E.2d 752 (1992).

The Sutton court found it unnecessary to reach the issue ofwhether the defendant's stipulation was tantamount to a guiltyplea because, "[a]t no time did defense counsel stipulate to thesufficiency of the evidence to prove guilt beyond a reasonabledoubt." Sutton, 229 Ill. App. 3d at 964. Moreover, in Suttonthe trial court gave the defendant warnings that substantiallycomplied with Rule 402. Sutton, 229 Ill. App. 3d 965. We findSutton distinguishable based on (1) the content of thestipulation in that case, and (2) the extent of the trial court'swarning to the defendant. Instead, we find People v. Campbell,208 Ill. 2d 203, 802 N.E.2d 1205 (2003), to be instructive.

In Campbell, our Supreme Court stated, "when the State'sentire case is to be presented by stipulation and the defendantdoes not present or preserve a defense ***, or where thestipulation includes a statement that the evidence is sufficientto convict the defendant, the stipulation implicates fundamentaldue process concerns and can only be waived by the defendantpersonally." Campbell, 208 Ill. 2d at 218. Because the Stateconcedes that the defendant's attorney's stipulation was"tantamount to a guilty plea," we look to the record to examinewhether the trial court complied with Supreme Court Rule 402which details the admonitions a trial court must give to adefendant when accepting a guilty plea. 177 Ill. 2d R. 402.

Supreme Court Rule 402 states:

"(a) The court shall not accept aplea of guilty *** without first, byaddressing the defendant personally inopen court, informing him of anddetermining that he understands thefollowing:

(1) the nature of charge;

(2) the minimum and maximumsentence prescribed by law, including,when applicable, the penalty to whichthe defendant may be subjected becauseof prior convictions or consecutivesentences;

(3) that the defendant has theright to plead not guilty, or to persistin that plea if it has already beenmade, or to plead guilty; and

(4) that if he pleads guilty therewill not be a trial of any kind, so thatby pleading guilty he waives the rightto a trial by jury and the right to beconfronted with the witnesses againsthim." 177 Ill. 2d Rs. 402.

In this case, the trial court clearly complied with Rule 402in describing the nature of the charges and corresponding penaltyfacing the defendant. 177 Ill. 2d R. 402(a)(1), (a)(2). However, nowhere in the record is there evidence that the trialcourt complied with the third and fourth components of Rule 402. The trial court failed to warn the defendant that her attorney'sstipulation to all the evidence in the State's amended complaintwas effectively a stipulation to the sufficiency of the evidenceagainst her and a corresponding finding of guilt.

We find it particularly suspect that the trial court did notadmonish the defendant after her attorney, in her stipulation tothe State's amended complaint, stipulated to the defendant'sintent in tendering an altered lottery ticket to the IllinoisState Lottery Claim Office. Specifically, the defendant'sattorney stipulated "the offense of attempt theft by deceptionwas committed in that Doraletta Porter, with intent to commit theoffense of theft by deception, knowingly performed a substantialstep in that she tendered to the Illinois State Lottery Claimoffice an altered lotto ticket *** with intent to gain controlover United States currency." Pursuant to the third requirementof Rule 402, the trial court should have admonished the defendantregarding the fact that she had the right to plead guilty or notguilty to the charge against her, yet it failed to do so. 177Ill. 2d R. 402(a)(3).

The trial court also neglected to admonish the defendantthat by pleading guilty, she was waiving her right to a trial ofany kind, including the right to a trial by jury and the right toconfront witnesses. 177 Ill. 2d R. 402(a)(4). The State's briefasserts:

"The record clearly demonstrates that thetrial court complied with the first tworequirements under Rule 402 ***. Inaddition, the trial court also admonisheddefendant of the last two requirements whenit went over the original complaint and theamended complaint and told defendant that thecomplaint was 'just a charging document andthere's a presumption of innocence which willnot be overcome unless proved beyond areasonable doubt.' Defendant was alsoadvised of her right to a jury trial numeroustimes. The record also establishes thatdefendant voluntarily and understandinglywaived her right to a jury trial. Thisconclusion is made evident by the fact thatjury selection had already begun in theinstant case. After the afternoon recess,defendant, after being admonished by thecourt concerning her right to proceed withthe jury trial, waived that right orally inopen court and in a written jury waiver. Therefore, the trial court substantiallycomplied with Supreme Court Rule 402 inadmonishing defendant of her rights."

We cannot agree. Although it may be true that the trial courtrepeatedly made the defendant aware that she had a right to ajury trial, it did not warn her that she had a right to pleadguilty or not guilty, that her counsel's stipulation waseffectively tantamount to a guilty plea, or that she had a rightto confront and present witnesses during the stipulated benchtrial.

The State also asserts the defendant's argument has beenwaived because no objection was made at the time of thestipulation and the issue was not preserved in a motion for a newtrial. Moreover, the State emphasizes the defendant did notargue plain error and the facts of this case do not justify itsuse.

"The rule of waiver is, of course, a limitation on theparties and not the courts." Geise v. Phoenix Co. of Chicago,Inc., 159 Ill. 2d 507, 514, 639 N.E.2d 1273 (1994). Moreover, inthe interest of justice the court may consider an issue a partyhas waived. Geise, 159 Ill. 2d at 514. Although the State iscorrect that no objection was made and this issue was notpreserved in a motion for a new trial, the rights of defendantthat are at stake in this case clearly compel us to analyze thisissue under the plain error doctrine. "The plain error rulebypasses normal forfeiture principles and allows a reviewingcourt to consider a putative trial error when either (1) theevidence is closely balanced or (2) the error is 'so substantialthat it affected the fundamental fairness of the proceeding, andremedying the error is necessary to preserve the integrity of thejudicial process.'" People v. Graham, 206 Ill. 2d 465, 475, 793N.E.2d 231 (2003), quoting People v. Hall, 194 Ill. 2d 305, 335(2000).

The Campbell court found in that case that defendant'scounsel's stipulation was not error, but instead, trial strategy. The focus in that case was on the content of the counsel'sstipulation. "[D]efense counsel cannot stipulate to facts whichestablish the guilt of the accused because the constitutionalright implicated in that situation is the right of a defendant ina criminal case to plead not guilty." Campbell, 208 Ill. 2d at219, citing United States v. Stephens, 609 F.2d 230, 233, n.2(5^th. Cir. 1980). Here, although the defendant challenges hercounsel's stipulation in her ineffective assistance of counselclaim, we need not reach the merits of that argument because wehave determined (1) counsel's stipulation was tantamount to aguilty plea, and (2) the trial court erred in not admonishing thedefendant in accordance with Rule 402.

Our reading of the record makes clear that the defendantagreed to a stipulated bench trial but did not plead guilty. Inthe case sub judice, the defendant's attorney stipulated to theState's entire amended complaint and such a stipulation was theequivalent of a guilty plea by the defendant. "Where thestipulation includes a statement that the evidence is sufficientto convict the defendant or where the State's entire case is tobe presented by stipulation, we find that a defendant must bepersonally admonished about the stipulation and must personallyagree to the stipulation." Campbell, 208 Ill. 2d at 221. Because the State's entire case was presented by stipulation andthe defendant was not personally admonished by the trial courtregarding it, the defendant did not personally agree to thestipulation. We therefore reverse the trial court and remand fora new trial.

CONCLUSION

Based on our foregoing analysis, we reverse and remand.

Reversed and remanded.

BURKE, P.J., and CAHILL, J., concur.

1. This decision was originally filed as an unpublished orderunder Supreme Court Rule 23 (166 Ill. 2d R.23). Upon the motionof the State Appellate Defender, we decided to publish thisdecision with only minor changes to the body of the text.