¶1dissenting:
¶2I disagree with the majority’s holding that defendant has waived his right to appeal by failing to file a post trial motion. The majority relies on the opinion of this court in People v. Hammond, 48 Ill. App. 3d 707, 362 N.E.2d 1361, which construed section 116 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 116 — 1) as requiring a written post trial motion in order to preserve the right to appeal. Section 116 — 1 describes the procedure for a motion for a new trial but does not expressly require the motion in order to preserve issues on appeal or contain any reference to the waiver rule. As I argued in my dissent in Hammond, the majority’s construction of section 116 — 1 places a substantial limitation on the right to appeal and therefore represents an unconstitutional legislative infringement of the exclusive judicial power to regulate appeals. In addition, the restrictive interpretation of section 116 — 1 adopted by the majority in Hammond and in the present case effectively denies the right to appeal from a criminal conviction to persons who have been denied effective assistance of counsel at trial.
¶3Criminal defendants have a right to be represented by counsel at all critical stages of the proceedings. (Escobedo v. Illinois, 378 US. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758; People v. Noble, 42 Ill. 2d 425, 248 N.E.2d 96; People v. Hessenauer, 45 Ill. 2d 63, 256 N.E.2d 791.) The right to assistance of counsel embraces effective representation throughout all stages of the trial. (McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441; People v. Allen, 132 Ill. App. 2d 1015, 270 N.E.2d 54.) This right to effective assistance extends to all critical stages of a criminal proceeding which may generally be described as those stages at which a defendant’s rights may be lost or waived, or the outcome of the proceedings otherwise substantially affected. In Illinois, for example, it is generally held that the withdrawal of a guilty plea (People v. Holmes, 12 Ill. App. 3d 1, 297 N.E.2d 204), and sentencing proceedings (People v. Green, 34 Ill. App. 3d 153, 340 N.E.2d 58) are critical stages of the criminal justice process at which a defendant is entitled to effective assistance of counsel.
¶4Under the waiver rule adopted by the majority in Hammond and in the present case, the filing of a post trial motion must also be treated as a critical stage of a criminal proceeding. Section 6 of article VI of the Illinois Constitution provides that appeals from final judgments of a circuit court lie as a matter of right to an appellate court. (Ill. Const. 1970, art. VI, §6.) Since the majority holds that the failure to file a post-trial motion precludes a defendant from pursuing his right to appeal, this stage of the proceedings is certainly a critical one at which defendant is entitled to effective assistance of counsel. Effective assistance of counsel at this stage must include at a minimum an obligation on the part of trial counsel to advise the defendant of the nature of his right to appeal (People v. Wilson, 50 Ill. 2d 323, 278 N.E.2d 775) and to preserve defendant’s right to appeal (People v. Brown, 39 Ill. 2d 307, 235 N.E.2d 562). A defendant may, of course, waive his right to appeal, but this waiver must be a knowing waiver. Defendant has a right to decide to appeal or not to appeal. (People v. Whitfield, 40 Ill. 2d 308, 239 N.E.2d 850.) A waiver of the right to appeal should not be presumed but should clearly appear in the record. A waiver of defendant’s right to appeal by virtue of trial counsel’s failure to complete the necessary procedural steps for appeal, therefore, should not be binding on a defendant unless the record indicates that the defendant participated in the waiver. People v. Whitfield, 40 Ill. 2d 308, 239 N.E.2d 850.
¶5It is generally held that where the alleged incompetency of trial counsel has resulted in substantial prejudice to a defendant without which the outcome of a criminal proceeding would probably have been different, the defendant has been denied the right to effective assistance of counsel. (People v. Goerger, 52 Ill. 2d 403, 288 N.E.2d 416.) Since the majority would deny the right to appeal to a defendant who has not filed a motion for a new trial, the failure of trial counsel to file a post trial motion in my opinion constitutes a per se denial of effective assistance of counsel where the record at trial reveals the existence of substantial questions for review. In this situation defendant must be allowed to appeal from a criminal conviction despite the failure of trial counsel to file a post-trial motion. The doctrine of waiver should not be applied to deny a defendant’s right to appeal where the asserted waiver is the result of ineffective assistance of counsel. (See People v. Brown, 39 Ill. 2d 307, 235 N.E.2d 562.) Yet, the majority has formulated a waiver rule which penalizes a defendant for the incompetency of his trial counsel for failing to preserve defendant’s right to appeal by not filing a post trial-motion, a result which is entirely inconsistent with defendant’s right to effective assistance of counsel and .with fundamental precepts of due process.
¶6In the present case defense counsel made timely objections during trial which afforded the trial court an opportunity to correct the errors which are not presented on appeal.
¶7This dissent is buttressed by the rationale of Petition of Croteau, 234 N.E.2d 737 (Mass. 1968), wherein the Supreme Court of Massachusetts held that review of a sentence by the appellate court is a critical stage of the proceedings at which a defendant is entitled to assistance of counsel.
¶8Much of the evidence in this case was irrelevant to the issues. The error was compounded by the argument of the State’s Attorney. I would remand for a new trial.