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FOURTH DIVISION
September 30, 2004

On February 2, 1996, defendant pleaded guilty to first degreemurder. The circuit court sentenced him to 40 years in theIllinois Department of Corrections. Defendant did not file amotion seeking to vacate his guilty plea, a motion to reconsiderhis sentence, or a direct appeal from his conviction.

On September 15, 1998, defendant filed a pro se petition forpostconviction relief in which he argued that his 40-year sentencewas excessive. The circuit court, in a written order, summarilydismissed defendant's petition. The court, citing People v.Ballinger, 53 Ill.2d 388, 390, 292 N.E.2d 400 (1973), explainedthat an assertion that an excessive sentence was imposed did notconstitute an allegation of a violation of constitutional dimensionwhere the sentence imposed was within the statutory limits and thestatute was not unconstitutional. On December 16, 1998, defendantappealed the circuit court's dismissal of his postconvictionpetition. We affirmed. People v. Salgado, No. 1-99-0070 (1999)(unpublished order under Supreme Court Rule 23). Our supremecourt rejected defendant's petition for leave to appeal. People v.Salgado, 186 Ill. 2d 585 (1999).

On May 16, 2001, defendant filed a pro se petition fortranscripts and common law record. In his petition, defendantrequested "transcripts of the Extended Jurisdictional Hearingand/or Dispositional [sic] Hearing that was held for the petitionerwho was arrested for murder September 20, 1994."⁽¹⁾ Defendant citedSupreme Court Rules 606 and 607 (134 Ill. 2d 606; 177 Ill. 2d R.607), and the Illinois Post-Conviction Act (the Act) (725 ILCS5/122-1 et seq. (2000)), which, according to his petition,"authorizes [the circuit court] to order a transcript ofproceedings for indigents." On June 11, 2001, the trial courtdenied defendant's petition for transcripts. It is from thisdenial that defendant appeals.

Initially, we note that neither defendant⁽²⁾ nor the State hasfiled a brief in this matter. However, as the issues presented inthe instant case recur frequently, the record here is simple, andthe claimed error is such that we can easily decide it without theaid of either brief, we will decide the merits of the appeal. SeePeople v. Gonzalez, 204 Ill. 2d 220, 223 (2003), quoting FirstCapitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d128, 133 (1976).

The two questions before this court are (1) whether defendantis entitled to the transcripts he requested and (2) whether thecircuit court's denial of his request for transcripts is anappealable order. To answer the first question, we must determinewhen a defendant is entitled to free transcripts.

In the case of a direct appeal, Supreme Court Rule 607(b)states in pertinent part:

"In any case in which the defendant has been foundguilty and sentenced to *** imprisonment, *** thedefendant may petition the court in which he wasconvicted for a report of the proceedings at his trial orhearing.*** The petition shall be verified by thepetitioner and shall state facts showing that he was atthe time of his conviction, *** and is at the time offiling the petition, without financial means with whichto obtain the report of proceedings. If the judge whoimposed sentence *** finds that the defendant is withoutfinancial means with which to obtain the report ofproceedings at his trial or hearing, he shall order thecourt reporter to transcribe an original and copy of hisnotes. *** The clerk of the trial court shall then, uponwritten request of the defendant, release a copy of thereport of proceedings to the defendant's attorney ofrecord on appeal. In the event that no attorney appearsof record, the clerk shall, upon written request of thedefendant, release the report of proceedings to thedefendant, his guardian or custodian." 177 Ill. 2d R.607(b).

As stated above, after a defendant has been sentenced to a term ofimprisonment, he may petition the trial court, pursuant to Rule607(b), for a "report of proceedings at his trial or hearing." 177Ill. 2d R. 607(b). In his petition, the defendant must state factswhich demonstrate to the circuit court that, both "at the time ofhis conviction" and "at the time of filing the petition," he wasnot able to afford a copy of the report of proceedings. 177 Ill.2d R. 607(b). If the trial court finds that the defendant isindigent, it must provide him with a copy of the report ofproceedings. See 177 Ill. 2d R. 607(b) ("If the judge who imposedsentence *** finds that the defendant is without financial meanswith which to obtain the report of proceedings at his trial orhearing, he shall order the court reporter to transcribe anoriginal and copy of his notes" (emphasis added)). Simply put, ondirect appeal, an indigent defendant is entitled to a freetranscript of his trial or hearing as a matter of right. See 188Ill. 2d R. 605 (a) ("In all cases in which the defendant is foundguilty and sentenced to imprisonment *** the trial court shall, atthe time of imposing sentence *** advise the defendant *** of hisright *** if indigent, to be furnished, without cost to him, witha transcript of the proceedings at his trial or hearing"); see alsoHarris v. State, 212 Ill. App. 3d 13, 15, 570 N.E.2d 694 (1991)(stating that the failure to provide an indigent defendant with acopy of his trial transcript for direct appeal is a violation ofthat defendant's right to due process), citing Griffin v. Illinois,351 U.S. 12 100 L. Ed. 891, 76 S. Ct. 585 (1956).

On the other hand, in the postconviction setting, section 122-4 of the Post-Conviction Act provides:

"If the petition is not dismissed pursuant to Section122-2.1, and alleges that the petitioner is unable to paythe costs of the proceeding, the court may order that thepetitioner be permitted to proceed as a poor person andorder a transcript of the proceedings delivered topetitioner in accordance with Rule of the Supreme Court." 725 ILCS 5/122-4 (West 2000) ("Pauper Petitions").

Supreme Court Rule 471, entitled "Transcripts for Poor PersonsBringing Post-Conviction Proceedings," states:

"If a petition filed under the provisions of article122 of the Code of Criminal Procedure of 1963, dealingwith post-conviction hearings, alleges that thepetitioner is unable to pay the costs of the proceeding,the trial court may order that the petitioner bepermitted to proceed as a poor person and order atranscript of the proceedings resulting in the convictiondelivered to petitioner in accordance with paragraph (b)of Rule 607." (Emphasis added.) 134 Ill. 2d R. 471.

Under the plain language of Rule 471, it is clear that during thisinitial stage of review, a defendant who alleges as part of hispostconviction petition that he is indigent is not automaticallyentitled to free transcripts.

In People v. Bonilla, 170 Ill. App. 3d 26, 28, 523 N.E.2d 1258(1988), the defendant did not file a direct appeal from hisconvictions for armed violence and attempted murder. Defendant didfile a pro se petition for postconviction relief, which wasdismissed without counsel having been appointed. One of the issuesraised by defendant on appeal was that the Post-Conviction HearingAct violated due process and equal protection because "the Actfailed to provide for the furnishing of a free transcript to thepetitioner" before the circuit court's ruling as to whether or nothis petition is frivolous or patently without merit pursuant tosections 122-2.1(a) and 122-4 of the Act. Bonilla, 170 Ill. App.3d at 33, citing Ill. Rev. Stat. 1985, ch. 38, par 5 122-2.1(a),122-4.

The defendant argued that he needed a transcript in order tobetter identify and frame the constitutional errors he sought toraise in his petition. The Bonilla court rejected the defendant'sarguments, saying:

"The standard required of a petition is minimal[citation], and section 122-2.1 provides a petitioner anopportunity to be heard in order to present the gist ofhis claim. [Citations.]. Once the petitioner shows ameritorious claim, he is entitled to have a completetranscript furnished to him." Bonilla, 170 Ill. App. 3dat 34.

Bonilla was recently followed in People v. Giampaolo, 344 Ill.App. 3d 1075, 801 N.E.2d 1113 (2003). In Giampaolo, the defendantwas convicted of criminal sexual assault and sentenced to 10 years'imprisonment. One year later, the defendant filed a "Motion forTrial Transcripts and Common Law Records," averring that he couldnot afford them. 344 Ill. App. 3d at 1076-77. The circuit courtdenied the motion, ruling that defendant had not filed a petitionfor relief under the Post-Conviction Hearing Act. The SecondDistrict of the Appellate Court affirmed. In addition to relyingon the holding in Bonilla, the court found that the defendant had"alleged no facts demonstrating that he would be able to raise aconstitutional claim but for the denial of the transcript. Hismere speculation is insufficient. Therefore, we must affirm thetrial court's ruling." Giampaolo, 344 Ill. App. 3d at 1078.

In sum, transcripts must be provided to an indigent defendanton direct appeal (see 188 Ill. 2d R. 605(a); Harris, 212 Ill. App.3d at 15, citing Griffin, 351 U.S. 12 100 L. Ed. 891, 76 S. Ct.585), but it is within the circuit court's discretion whether toprovide a petitioner transcripts during the initial stage ofpostconviction proceedings. See 134 Ill. 2d R. 471; 725 ILCS5/122-4 (West 2000); Bonilla, 170 Ill. App. 3d at 34. Thisdistinction is justified because "a direct appellant must initiallysubmit a brief including facts, legal argument, and citation tolegal authority," whereas "a post-conviction petitioner must submitonly a petition setting forth such facts as indicate a denial ofhis constitutional rights, showing only that his petition is notfrivolous or patently without merit." Bonilla, 170 Ill. App. 3d at34, citing People v. Porter, 141 Ill. App. 3d 208, 215 (1988)(holding that, for purposes of an equal protection challenge, adistinction can be made between indigent defendants who file directappeals and those who file postconviction petitions).

Here, defendant's "petition for transcripts and common lawrecords" cites Supreme Court Rules 606 (dealing with how and whena direct appeal must be filed), 607, and the Post-ConvictionHearing Act as the bases for his request for transcripts. The timefor defendant to file a direct appeal, however, has long sinceexpired. Furthermore, defendant's petition cannot be characterizedas a post-conviction petition for no "gist of a constitutionalclaim for relief" is presented in it. Only issues ofconstitutional magnitude are cognizable under the Act. People v.Shaw, 49 Ill. 2d 309, 311, 273 N.E.2d 816 (1971). Because of thelimiting language of section 122-1(a), even violations of statutorylaw have no remedy under the Act. People v. Harper, 345 Ill. App.3d 276, 283-84, 802 N.E.2d 362 (2003). In the instant case,defendant did not assert a violation of a statutory law, much lessa substantial deprivation of a constitutional right. There wassimply no basis presented in defendant's petition for thetranscripts he sought, and the circuit court acted within itsdiscretion in rejecting defendant's request.

The next question is whether the circuit court's denial ofdefendant's petition for transcripts was a final appealable order. The 1970 Illinois Constitution provides that the appellate courthas jurisdiction to hear appeals from both final judgments andother orders for which the supreme court rules permit interlocutoryappeals. See Ill. Const. 1970, art. 6,