Writ of error to the Criminal Court of Cook County, Criminal
Division; the Hon. LESLIE E. SALTER, Judge, presiding. Reversed
and remanded in part, affirmed in part.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was indicted for the crime of robbery (Indictment No. 62-855) and in a separate indictment (No. 62-856) was charged with aggravated kidnaping and attempted rape. He changed his plea of not guilty to guilty on the robbery indictment and was sentenced to not less than five nor more than ten years in the penitentiary. He was tried by the court and found guilty on the second indictment and sentenced to not less than five nor more than twenty years, the sentences to run concurrently. Defendant sued out a writ of error in the Supreme Court and the case was transferred to this court.
As to the robbery charge defendant contends that the court accepted the plea of guilty on May 14, 1962, without complying with the standards set forth by statute (Ill Rev Stats 1961, c 38, § 732) and by Rule 26(3) of the Supreme Court in that nothing was said about (1) the maximum sentence which could be imposed; (2) the nature of the crime charged and (3) defendant's right to a jury trial.
The actual admonishment by the court was:
Mr. Landis, when you plead guilty to a charge such as this, the Court may sentence you to a term in the penitentiary in excess of one year. Do you understand that?
THE COURT: I take it you are pleading guilty to the charge of robbery because you did in fact rob this woman?
The court's failure to apprise the defendant of his right to a jury trial is not error when defendant pleads guilty. People v. Outten, 22 Ill.2d 146, 174 N.E.2d 685. The sufficiency of the admonishment to the defendant is governed by the recent Supreme Court decision in People v. Mackey, 33 Ill.2d 436, 211 N.E.2d 706. The defendant in that case pleaded guilty to two indictments charging him with rape and five indictments charging him with armed robbery after an admonishment by the court as follows:
Now, Mr. Mackey, these eight indictments remaining they all either charge rape or robbery and, the Court may sentence you in each of those cases to a term in the penitentiary of more than one year. You understand that this is the penalty provided by law?
To this question the defendant answered: "Yes, sir." The court held the admonishment to be insufficient, stating at page 438 that:
Such an admonition clearly did not apprise the defendant of the "punishment fixed by law" for the crimes of rape and robbery. Defendant's response that he understood he could be sentenced to a term of "more than one year" in the penitentiary also falls far short of the showing required by [Supreme Court] Rule 26. *fn1
Accordingly, we conclude that the admonishment to the defendant in the instant case was insufficient and therefore it was error for the trial court to accept and enter defendant's plea of guilty to robbery.
We next consider defendant's contention that he was not proved guilty beyond a reasonable doubt of aggravated kidnaping or attempted rape as charged in separate counts under Indictment No. 62-856. The complaining ...