Find Legal Information

FOURTH DIVISION
August 18, 2005

1-04-1092

MODIFIED UPON REHEARING

PRESIDING JUSTICE QUINN delivered the opinion of the court:

On June 13, 1990, defendant Zbigniew Raczkowski pleaded guilty to a charge of retail theft (720 ILCS 5/16A-3 (West 1992)). The question presented here on appeal, one of first impression in Illinois, is whether the circuit court's failure to provide defendant with an interpreter during his plea proceedings rendered his conviction void. For the following reasons, we find that it did not.

BACKGROUND

After defendant pleaded guilty, the circuit court ordered defendant to pay a fine and sentenced him to one year of conditional discharge, which qualifies as a criminal conviction under the Unified Code of Corrections (730 ILCS 5/5-6-1 (West 1992)). Defendant signed the order, paid his fine, and successfully completed his conditional discharge sentence. No posttrial motions were submitted, no direct appeal was taken, and no postconviction petition was filed.

On August 7, 2003, over 13 years after the circuit court entered judgment on his guilty plea, defendant filed a motion to vacate a void and unconstitutional judgment⁽¹⁾, alleging that his guilty plea and subsequent conviction were void. Specifically, defendant alleged that though, in 1990, he spoke and understood only Polish, no interpreter was present during his plea proceedings. Because he did not understand the proceedings or the potential ramifications of his guilty plea, defendant alleged that he was not "present" for those proceedings. Accordingly, defendant sought to vacate what he characterized as a "void" judgment.

On March 19, 2004, the trial court denied defendant's motion, finding that even though his conviction may have been voidable due to the absence of an interpreter, the proper time to attack that conviction had passed. On appeal, defendant argues that this finding was in error. We disagree.

Initially, we note that no transcript of defendant's 1990 plea proceedings is present in the record. In an offer of proof attached to defendant's 2-1401 motion, defendant's attorney averred the following:

"If Court Reporter Mary Lindemann were allowed to testify at an evidentiary hearing on defendant's aforesaid Motion, she would testify that on August 7, 2003 [defendant's attorney] went to the Third District Court Reporter's Office and ordered the transcript of proceedings of June 13, 1990 in this cause ***. Court Reporter Lindemann would further testify that upon diligent research, she determined that she was the assigned Court Reporter of June 13, 1990 in this case, but cannot produce a transcript of proceedings for that date, because either the proceedings were not transcribed, or her notes were lost. One of those two scenarios exists, she is not sure which one."

A review of the circuit court's half-sheets seems to support the former scenario: "CWIC 402 Conf w/o CR PG JW FG JOF (PRIOR SUP) 1 YR COND DISCHARGE." (Emphasis added).

However, an appellant has the burden of providing the reviewing court with a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient basis. Foutch v. O'Bryant, 99 Ill. 2d 389, 392-93 (1984). Where the issue on appeal relates to the conduct of a proceeding, the issue is not subject to review absent a report or record of the proceeding. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001).

Though the absence of a transcript of defendant's 1990 plea proceedings in the record before us does not appear to be chargeable to either defendant or his attorney, without that transcript this Court cannot evaluate defendant's claims. See Webster, 195 Ill. 2d at 432 (noting that based on the nature of an appeal, the court of review must have the record before it in order to determine whether there is the error claimed by the appellant).

Even assuming, arguendo, that no interpreter was present, we find that his guilty plea was merely voidable, and thus, the circuit court properly denied his motion to vacate his conviction. "Whether a judgment is void or voidable presents a question of jurisdiction." People v. Davis, 156 Ill. 2d 149, 155 (1993). A judgment is void (as opposed to voidable) only if the court that entered it lacked jurisdiction. People v. Rodriguez, 355 Ill. App. 3d 290, 296 (2005); People v. Speed, 318 Ill. App. 3d 910, 914 (2001). For instance, where a court lacks jurisdiction of the parties or the subject matter, or exceeded its statutory power to act, any resulting judgment is void and may be attacked either directly or indirectly at any time. See Davis, 156 Ill. 2d at 156; see also Rodriguez, 355 Ill. App. 3d at 296 ("The jurisdictional failure can be the court's lack of (1) personal jurisdiction or (2) subject matter jurisdiction, but it can also be (3) that the court lacked the power to render the particular judgment or sentence"). "By contrast, a voidable judgment is one entered erroneously by a court acting within its jurisdiction and is correctable on review [only] if a timely appeal is taken." Speed, 318 Ill. App. 3d at 914.

In Illinois, jurisdiction is conferred by the constitution. People v. Gilmore, 63 Ill. 2d 23, 26 (1976). Pursuant to article VI, section 9, of our constitution, the circuit courts have jurisdiction over all justiciable matters (Ill. Const. 1970, art. VI,