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People v. Carter

MARCH 28, 1969.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WENDELL CARTER (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Defendant appeals from judgment of conviction of Aggravated Kidnapping, entered upon his plea of guilty, and sentence of 10 to 25 years in the penitentiary.

Together with three other persons, defendant had been indicted for the offenses of rape and aggravated kidnapping in two counts. On arraignment, pleas of not guilty were entered to both counts. Thereafter, the plea of not guilty was withdrawn as to the second count of the indictment charging aggravated kidnapping, and a plea of guilty was entered in this count. (The first count charging rape was subsequently nolle prossed.)

Defendant contends that the trial court accepted the plea of guilty without adequately explaining to the defendant the nature of the charge and the consequences thereof; that the court improperly considered arrests rather than convictions in the hearing on probation and in aggravation and mitigation; that in giving identical sentences to all defendants the court did not exercise its discretion; finally, that the punishment was excessive.

Defendant contends that the admonishment by the court failed to comply with the requirements set forth in Ill Rev Stats 1967, c 38, § 113-4(c) and Supreme Court Rule 401(b) (Ill Rev Stats 1967, c 110A, § 401). The pertinent part of the statute requires the court, before accepting the plea of guilty, to "have fully explained to the defendant the consequences of such plea and the maximum penalty provided by law. . . ." The implementing Rule provides, in pertinent part, that the court shall not permit a plea of guilty to a felony "unless the court finds from the proceedings had in open court at the time . . . plea of guilty entered . . . that the accused understands . . . the nature of the charge against him, and the consequences thereof. . . ."

Prior to the admonishment, the record discloses that defendants' attorney had advised the court that the defendants wished to plead to the second count of the indictment. To which the court said, "aggravated kidnapping?", and counsel answered, "Yes."

The court then advised the defendant of the right to trial by jury, the right to confront witnesses, and the right to trial before the judge alone. The court continued:

"And on your plea of guilty the Court might sentence you to the penitentiary for a period of years not less than one or a maximum number of years to be fixed by the Court, or any combination of years not less than the minimum set by the Court and the maximum set by the Court, within the one to the indeterminate number of years fixed by the Court."

Before accepting the plea from the defendant, the court inquired, "Is there anything about it you don't understand?" To which the defendant answered, "No, sir."

When the petition for probation was filed a colloquy occurred in which the court raised the question of whether aggravated kidnapping was an offense upon which probation could be granted, and counsel advised that it was but that rape was not.

We find no reversible error in the court's admonishment of the defendant.

We note that the defendant does not claim he did not understand the nature of the charge to which he pleaded guilty, but takes the position that it is error for the court not to have more fully explained the offense charged.

However, the defendant was advised of the "nature of the charge" by the court's statement that the plea was to "aggravated kidnapping." The Rule does not require that the court state all of the acts which constitute the offense, but that it give its "essence, general character, kind or sort." People v. Harden, 78 Ill. App.2d 431, 444, 222 N.E.2d 693 (1966) (adopted by reference in People v. Harden, 38 Ill.2d 559, 563, 232 N.E.2d 725 (1967)). See also, People v. Doyle, 20 Ill.2d 163, 166-7, 169 N.E.2d 250 (1960).

On this record we distinguish People v. Washington, 5 Ill.2d 58, 61, 124 N.E.2d 890 (1955), and People v. Culbert, 69 Ill. App.2d 162, 166, 215 N.E.2d 470 (1966), both of which have been cited by the defendant. In Washington, the nature of the crime was not mentioned and the trial court made reference only to certain counts of the indictment. ...


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