FOURTH DIVISION

                                                  August 18, 2005 

1-04-1092

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

)	Circuit Court of

Plaintiff-Appellee,           )    Cook County.	

)

v.			)	

)

ZBIGNIEW RACZKOWSKI,		)	Honorable

)	James P. Etchingham,

Defendant-Appellant.		)	Judge Presiding.

			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 judgment1, 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, § 9), and a trial court obtains personal jurisdiction over a defendant when he appears before it (Speed, 318 Ill. App. 3d at 915).  "Generally, once a court has acquired jurisdiction, no

subsequent error or irregularity will oust the jurisdiction thus

acquired.  Accordingly, a court may not lose jurisdiction because

it makes a mistake in determining either the facts, the law, or

both."  Davis, 156 Ill. 2d at 156.  The question here is whether the denial of an interpreter divested the circuit court of the

jurisdiction to enter judgment on defendant's guilty plea (see

Davis, 156 Ill. 2d at 156), or whether that denial was simply an "error or irregularity" which did not "oust the jurisdiction" of

the court (see Davis, 156 Ill. 2d at 156).

A defendant has a fundamental right, under the confrontation

clause of the sixth amendment, to be present during the testimony

of witnesses against him.  See People v. Escalante, 256 Ill. App. 3d 239, 245 (1994), citing People v. Mallett, 30 Ill. 2d 136, 141-42 (1964).  In nontrial proceedings where the right to confrontation is not implicated, the right to presence originates

in the due process clause, and its scope depends on whether a fair hearing is undermined by the defendant's absence.  United States v. Gagnon, 470 U.S. 522, 526 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1484 (1985).  For a defendant who does not speak or

understand English, his right to presence would ring hollow

unless accompanied by the aid of an interpreter.  See Escalatne, 256 Ill. App. 3d at 246 (citing several cases stating that the

absence of an interpreter will render a defendant who does not

understand English "not present" for trial).  The presence of an

interpreter ensures that such a defendant will not "face the

Kafkaesque spectre of an incomprehensible ritual which may

terminate in punishment."  United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973).  

Section 1 of the Criminal Proceeding Interpreter Act sets

forth the procedures for determining whether an interpreter will

be provided.   See 725 ILCS 140/1 (West 2002)2.  Though the decision to appoint an interpreter is left to the trial court’s

discretion (See Escalante, 256 Ill. App. 3d at 245), that discretion is limited to the factual question of whether an

interpreter is needed; a trial court does not have the discretion

to deny an interpreter to a defendant who needs one (see 725 ILCS

140/1 (West 2002)). 

There is a difference, though, between a defendant who is

"not present" in violation of the sixth amendment or due process

clause, and one who is "not present" for jurisdictional purposes. 

Without the aid of an interpreter, the former, though physically

present in the courtroom, is not "mentally" there, and, thus, he cannot participate in or understand the proceedings.  See United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir. 1970) ("Not only for the sake of effective cross-examination,

however, but as a matter of simple humaneness, [a defendant]

deserve[s] more than to sit in total incomprehensiveness as the

trial proceed[s]").  However, it is only over the latter, who is

not physically present within the courthouse walls, that the

trial court lacks jurisdiction.    

Defendant claims that the absence of an interpreter meant

that he was not present during his plea proceedings.  Not so.  He

was physically present in the courtroom during those proceedings,

which is all that was necessary to invest the circuit court with

the power to enter judgment on his guilty plea.  See Speed, 318 Ill. App. 3d at 915 (stating that a trial court obtains personal jurisdiction over a defendant when he appears before it).  Though the failure to provide an interpreter may have violated

defendant's constitutional and statutory rights, that failing did

not divest the court of jurisdiction over him, but instead merely

rendered his resultant guilty plea voidable if challenged in a

timely manner.  See Speed, 318 Ill. App. 3d at 914 (stating that 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).       

This finding is in accord with our supreme court's decision in Davis.  In Davis, the defendant claimed that his conviction for both the greater offense of possession of cannabis with

intent to deliver and the lesser offense of unlawful possession

of cannabis offended the constitutional prohibition against

double jeopardy under both the United States and Illinois

Constitutions.  Davis, 156 Ill. 2d at 153.  He therefore filed a postconviction petition seeking to vacate his "void" conviction

for the lesser offense.  Davis, 156 Ill. 2d at 153.

The supreme court rejected his argument, finding that his

conviction was merely voidable.  Davis, 156 Ill. 2d at 157-58.  In doing so, the court acknowledged that it was running roughshod

over the defendant's double jeopardy rights:

	     "Defendant's reasoning, although not

expressly articulated, is that because the

constitution prohibits multiple punishments

for the same offense, the improper conviction

on the lesser offense, coupled with the

conviction on the greater offense, exceeds

constitutional authority.  Clearly, the

infringement of certain fundamental rights,

like due process and equal protection, is

constitutionally impermissible.  However,

although violation of such rights may present

a proper subject for an exercise of the

court's jurisdiction, the rights do not,

themselves, vest a court with subject matter

jurisdiction.  See 21 C.J.S. Courts § 9 (1990) (jurisdiction is [a] subject which relates to power of court and not to rights

of parties)."  Davis, 156 Ill. 2d at 157.

Nevertheless, the court found that the apparent double

jeopardy violation did not divest the trial court of the

jurisdiction to enter judgment on defendant's conviction for the

lesser offense:

	"[J]urisdiction or power to render a

particular judgment does not mean that the

judgment rendered must be the one that should

have been rendered, for the power to decide

carries with it the power to decide wrong as

well as to decide right. ***

		***

	     Our constitution confers upon the

circuit courts a general grant of authority

to hear and decide all matters of

controversy.  Such jurisdiction is not

defined by the propriety of the court's

judgments.  'There are many rights belonging

to litigants – rights which a court may not

properly deny, and yet which if denied do not

oust the jurisdiction or render the

proceedings absolutely null and void.'  (Humphries v. District of Columbia (1899), 174 U.S. 190, 194, 43 L. Ed. 2d 944, 945, 

	19 S. Ct. 637, 639, 43 L. Ed. 2d 944, 945.)"  

	Davis, 156 Ill. 2d at 156-57.

While the failure to provide an interpreter may have

violated defendant's rights, it did not affect the power of the

circuit court to enter judgment on his guilty plea.  Therefore, the circuit court properly found that defendant's conviction was

not void and dismissed his motion to vacate.

Affirmed.

GREIMAN and THEIS, JJ., concur.