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People v. Bauta

APRIL 27, 1970.




Appeal from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding. Affirmed.


The defendant, Andrew M. Bauta, pleaded guilty and was convicted of unlawful possession of narcotics. He was sentenced to the penitentiary for a minimum of five years and a maximum of five years and one month.

On appeal, the defendant contends that (1) the information was legally insufficient because it failed to show the place of the offense or the chapter and section number of the statute purportedly violated; (2) his plea of guilty was not voluntarily made since it was induced by the suggestion of the court that a failure to enter a plea could result in his receiving a more substantial prison sentence and (3) the trial court accepted his plea without a showing that it was voluntarily and understandingly made by him.

The record reveals that on August 19, 1968, the defendant, Andrew M. Bauta, appeared before Judge Kenneth R. Wendt of the First Municipal District of the Circuit Court for a hearing to determine probable cause on a narcotic charge. At the hearing, Richard McKelvey of the vice control division of the narcotic unit of the Chicago Police Department testified, that on April 24, 1968, a special employee came to his office and advised that he could make a controlled purchase of heroin from a person known to him as Andrez. The informer was given $25 of prerecorded money and taken to the vicinity of 2742 West Adams Street. The informer was to honk his horn as a prearranged signal for the defendant to come to the car and sell him the narcotics. After the informer honked the horn, the defendant emerged from the apartment building and entered the informer's car. Officer McKelvey testified that he was about four feet from the defendant when the defendant entered the car. When the officer observed a prearranged signal that the informer had purchased the narcotics, he and another officer came to the car and the special employee gave them a container holding an unknown quantity of white powder. The officer arrested the defendant and observed him placing between his legs the $25 in prerecorded currency. The white powder was submitted to the crime laboratory and was found to be heroin. The court then stated that the case was going to the grand jury.

Officer Paul Louis then testified that on May 23, 1968, a police informer stated that he could purchase a $25 bag of heroin from a person called Andrez. The informer was searched, found to be free of all narcotics and money and then given $25 of prerecorded money. Officer Louis drove the man on that day to Washtenaw and Division and then observed him enter a green Ford. He was about twenty to twenty-five feet away when he saw the informer hand the defendant $25 and the defendant in turn give the informer a packet. The informer then returned to the squad car and gave the officer the packet which was field tested. A letter from the crime laboratory stated that the packet was found to contain heroin. The defendant was arrested on the evening of May 24, 1968, and $20 of the prerecorded money was found in his pocket.

The court commented that there were two sales and that the defendant had previously been placed on probation by him and had served one year in the House of Correction. "I imagine the State wants a bunch of years. I have him on three years' probation . . . I will imagine they want to start with at least five years." The trial judge then asked the public defender if he wanted to talk to the defendant. "They have got two sales here. There is corroboration. They recovered the money. . . ."

The public defender then asked if something couldn't be done for this man. The prosecutor said that since this would be the second conviction, he couldn't go under five years. The judge gave the public defender a few minutes to discuss it with the defendant. Afterwards the public defender informed the court that he had told the defendant that if he could plead guilty at this stage of the proceedings his sentence would be around five years, while if the case went to the grand jury there was a possible sentence of from ten years to life. The public defender then requested one or two weeks for the defendant to think it over. When the court questioned whether the defendant had a language barrier, the public defender stated, "No, he knows . . . more about it than I do, your Honor." The hearing was continued until August 23rd.

When the case was called on August 23rd, the public defender informed the court that the defendant would plead guilty. The prosecutor said that the State would recommend five years to five years and one month. It was agreed that the defendant would plead guilty to only one count of possession. The public defender then stated:

Your Honor, I have completely admonished my client of his constitutional rights. I have told him in a case like that he has a right to go in front of a grand jury. . . . I told him he has a right to a trial by jury which in this case he chooses to waive. I told him in a case like this and by throwing himself on the mercy of the court he faces the possible sentence of two to ten years on the possession of heroin charge, . . . or if he goes upstairs he faces a possible mandatory life sentence on . . . two sales.

The public defender had his client sign a jury waiver form and then entered a plea of guilty. He also informed the court that he had advised his client that in a case like this if he wanted to plead guilty he had a right of appeal. The court told the defendant that he was charged with two sales of heroin and, if found guilty, he could get ten years to life. He told the defendant that he had been given considerable time to think it over and asked "do you recall that?" and the defendant answered "yes, sir." The following colloquy then took place:

THE COURT: "So for four days you have had a chance to think about this and take this plea for five years, is that right?"

MR. BAUTA: "Yes, sir."

THE COURT: "And do you still wish to do that, ...

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