APPEAL from the Circuit Court of Rock Island County; the Hon.
CONWAY L. SPANTON, Judge; presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a conviction based on a plea of guilty to two indictments for burglary against Richard Lee McCrady as a result of which he was sentenced to from five to 20 years on each indictment with the sentences to run concurrently.
From the record it is shown that defendant appeared in open court with his private counsel. Defendant's counsel told the judge that he had discussed the case with defendant and had advised defendant that the State had to prove him guilty beyond a reasonable doubt and that defendant was entitled to a trial with or without a jury if he so desired. The attorney also advised the court, in the presence of defendant, that after knowing all of this, the defendant had decided to plead guilty to 2 out of 3 of the charges of burglary. The attorney then filed a written waiver of jury and plea of guilty form signed by defendant as to 2 of the indictments involving burglary. In this form, defendant pleaded guilty to both charges and waived a jury trial and consented to an immediate hearing and sentencing. The trial judge then asked defendant if he understood all that his attorney had told the judge and him. The court also advised that defendant had a right to a jury trial and that the State had to prove him guilty beyond a reasonable doubt. Defendant stated he understood this. The judge also informed defendant that his sentence could run from one year to life. The trial judge then specifically asked defendant if it was his signature which appeared on the waiver form for each case and defendant acknowledged that he had signed both forms. The judge asked the defendant if any promises or threats had been made to get him to sign and defendant answered, "no". Defendant's attorney on behalf of defendant then waived a hearing in aggravation and mitigation and an assistant State's Attorney told the court that the State intended to dismiss the third charge. In the course of this discussion prior to sentencing, it developed that defendant had a prior record and had served a prison term of two and a half years in Iowa. The following appears from the record:
"THE COURT: HOW long did he serve?
MR. KELLY: TWO and one half years. The only thing * * * I don't want to put on any testimony * * * I would like to point out to the Court he did have a problem and that problem was narcotics use. It would be difficult to prove beyond a reasonable doubt at the time the offenses were committed that he was on narcotics. He has been arrested for being `high' on narcotics.
THE COURT: It may be the cause * * * the fact that he was a user.
THE COURT: The sentence follows, doesn't it Mr. Kelly, unfortunately.
THE: COURT: I will accept the recommendation and sentence you, Mr. McCrady, not less than five and not more than twenty years in indictment No. 69 Y 1804; and sentence you to a term of not less than five and not more than twenty in indictment No. 69 Y 1805 both sentences to run concurrently. Do you understand?
The record also discloses that there were three indictments for burglary as against defendant. It was also shown that defendant was arraigned before a magistrate and received copies of the complaint in all three cases, and that he was also arraigned, after his indictment by the grand jury, at which time a record was made that defendant was furnished with a copy of the indictments against him. These indictments contained specific statements to the effect that the named defendant on a certain date "committed the offense of Burglary, in that he, without authority, knowingly entered into a building * * * [describing the name of the owner and location] * * * with intent to commit therein a theft." At the time of his arraignment and prior to any discussion of sentencing, defendant tendered a written waiver of jury and plea of guilty in which he recited that he entered a plea of guilty in the manner and form as charged in the indictment; that he waived a trial by jury and consented to an immediate hearing and consented that the court fix his punishment under his plea in the case. This was done as to both indictments.
On appeal in this Court, defendant contends that it was reversible error for the trial judge to accept a plea of guilty without first inquiring personally of defendant whether or not defendant knew the nature of the charges against him and determining whether or not defendant's conduct was sufficient to constitute the offense charged. It is pointed out that under Illinois Supreme Court Rule 401(b) (1969 Illinois Revised Statutes, ch. 110A, Rule 401(b)) it is provided in part as follows:
"The court shall not permit a plea of guilty * * * unless the court finds from proceedings had in open court at the time [a] plea of guilty is sought to be entered * * * that the accused understands the nature of the charge ...