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People v. Gray

NOVEMBER 6, 1968.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LEE ANDREW GRAY (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

CRIME CHARGED: Murder.

JUDGMENT: On July 5, 1960, on a plea of guilty, the trial court imposed a sentence of 18 years.

PROCEEDINGS ON APPEAL: On June 21, 1965, this court gave the defendant leave to proceed as a poor person, appointed counsel to represent him on appeal, and extended the time for filing record, abstract and briefs. The record was filed in due course, together with a report of proceedings, the court having previously directed that it be prepared without cost to defendant.

On March 6, 1968, the attorney appointed to represent defendant filed a petition for leave to withdraw from the case on the ground that he was unable to find any legal points which were arguable on their merits. He also filed a brief in support of the petition, in which he sought to comply with the requirements of Anders v. California, 386 U.S. 738. This brief set forth three points as the only ones the defense counsel thought might arguably support the appeal:

1) The court did not properly admonish defendant as to the significance and consequences of changing his plea of not guilty to a plea of guilty;

2) The court committed prejudicial error in not granting defendant's motion to suppress certain evidence;

3) The court committed prejudicial error in not granting defendant's motion for a severance and for a separate trial.

On March 6, 1968, copies of his attorney's motion and brief were served by mail upon defendant in the penitentiary, and thereafter he was notified by this court that he might have until May 17, 1968, to raise any points he might choose in support of his appeal. The records of this court show that defendant filed a response to the notification, in which he set up nothing new, but made the statement that in his opinion his constitutional rights were violated.

OPINION.

[1-3] 1) On June 27, 1960, defendant filed a jury waiver, and on June 28 the defendant's then attorney moved the court to withdraw the plea of not guilty. The court properly advised defendant as to the effect of the granting of such motion. The defendant persisted in his motion and the court thereupon permitted defendant to enter a plea of guilty. It is the law that a plea of guilty can only be entered after the defendant has been advised by the court of his plea. (Ill Rev Stats 1961, c 38, § 732; c 110, § 101.26.) Noncompliance with the statute has been held to constitute reversible error. People v. Ross, 409 Ill. 599, 100 N.E.2d 923.

In discussing a plea of guilty, in Krolage v. People, 224 Ill. 456, 79 N.E. 570 the court said at page 459:

"The plea can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea. . . . The mere inquiry whether he understood that if he pleaded guilty the court would sentence him to the penitentiary, and his answering that he did so understand, was no explanation whatever on behalf of the court."

In the instant case, the record discloses that the trial judge discussed with the defendant the significance of the plea of guilty, and advised the defendant of the consequences of a guilty finding to a charge of murder. In People v. Scott, ...


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