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People v. Rosado

ILLINOIS APPELLATE COURT — FIRST DISTRICT


NOVEMBER 5, 1971.

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

v.

JOHN ROSADO, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant entered guilty pleas to three counts of armed robbery and was sentenced to a term of three to seven years on each offense, the sentences to run concurrently. On appeal he contends that he was denied his constitutional rights in that the court failed to fully inform him of the nature of the crimes with which he was charged and that the court did not adequately inform him of the nature of the sentences which could be imposed as a result of his plea.

Defendant was indicted for three separate offenses of armed robbery. At his arraignment on those charges he was given a copy of each indictment and through his attorney, a public defender, waived formal reading thereof and entered a plea of not guilty. Some weeks later, on October 13, 1967, defendant withdrew his not guilty plea and entered a plea of guilty. At that time the following colloquy took place.

"Mr. BANKS [Public Defender]: As to Mr. Rosado, Your Honor, we ask leave of Court at this time to withdraw the plea of not guilty heretofore entered and enter a plea of guilty to said indictments. I have talked to my client and he has asked me to do this.

Is that right, Mr. Rosado?

THE DEFENDANT: Yes.

Mr. BANKS: And I have explained to you the possible penalties involved because of the plea of guilty.

THE DEFENDANT: Yes.

Mr. BANKS: And you are doing this of your own voluntary act, is that right?

THE DEFENDANT: Yes.

Mr. BANKS: I have also advised him that by doing so, he is waiving his right to a trial by jury, Your Honor.

Is that right?

THE DEFENDANT: Yes.

THE COURT: Mr. Rosado, I am going to have the prosecutor tell you how long you can be sent to the penitentiary for the crime to which you wish to plead guilty.

What is the possible punishment?

Mr. DIVANE [Assistant State's Attorney]: One to an indeterminate number of years.

THE COURT: You could be sent to the penitentiary for a term from one to any number of years on conviction of the crime you are pleading guilty to. Do you understand that?

THE DEFENDANT: I understand.

THE COURT: You can be sent to the penitentiary, under the law, from one up to any number of years. Do you want to plead guilty to that crime?

THE DEFENDANT: Yes.

THE COURT: You are being charged with three counts of armed robbery.

Is that right?

Mr. BANKS: That's correct, Judge.

THE COURT: You understand that, don't you?

THE DEFENDANT: Yes, sir.

THE COURT: Are you pleading guilty to these crimes because you really are guilty?

THE DEFENDANT: Yes, sir.

THE COURT: How far did you go in school?

THE DEFENDANT: Up to eighth grade, sir.

THE COURT: Within the continental United States?

THE DEFENDANT: Yes, sir.

THE COURT: So you speak English well, don't you?

THE DEFENDANT: I understand, sir.

THE COURT: Let pleas of guilty be entered for the defendant as to each of the three indictments.

Mr. DIVANE: At this time, Your Honor, there will be a stipulation between the People of the State of Illinois, by and through John J. Stamos, State's Attorney of Cook County, and the defendant, in his own proper person, through his Attorney, Mr. Banks, Assistant Public Defender, that the defendant is —

Mr. BANKS: Twenty-five years of age."

After the pleas were entered stipulations set out the evidence which the State would have introduced on each indictment. Based upon those stipulated facts and the guilty pleas the court found defendant guilty and, after a hearing on aggravation and mitigation, sentenced defendant to three concurrent terms of three to seven years.

Opinion

Defendant first contends that the trial court, by merely mentioning the name of the offenses charged, did not fully inform him of the nature of the offenses to which he was entering guilty pleas. We cannot agree with defendant in this regard.

The rule is succinctly stated in Ill. Rev. Stat. 1967, ch. 110A, par. 401(b) which states:

The court shall not permit a plea of guilty * * * [unless the accused] understands the nature of the charge against him, and the consequences thereof if found guilty * * *."

In People v. Harden (1966), 78 Ill. App.2d 431, aff'd, 38 Ill.2d 559 (1967) the court construed the meaning of this section, cited at that time as Ill. Rev. Stat. 1963, ch. 110, par. 101.26(3). That court held that even though the trial court only referred to the offense by its name the defendant was adequately informed of the nature of the charge against him. The court stated at page 444:

"The noun `nature' connotes and is synonymous with the words essence, general character, kind or sort. In such sense the language of the Rule does not call upon the trial court to state to the defendant all of the acts which do or may constitute the offense."

In making the determination of whether or not defendant understood the nature of the charge against him the court in Harden considered the entire record. In doing so it noted that prior to entering his guilty plea, defendant had received a copy of the information charging him with the offense to which he plead guilty. Although the Supreme Court did not expressly treat this matter in its opinion, it specifically agreed with and adopted this reasoning and conclusion. People v. Harden (1967), 38 Ill.2d 559, 563.

• 1 We conclude, therefore, that the defendant's receipt of the indictments specifically detailing the offenses charged together with the trial judge's admonition that defendant was charged with three counts of armed robbery and defendant's comment that he understood, clearly show that the defendant was advised of the nature of the charge against him.

• 2 Defendant contends that Boykin v. Alabama (1969), 395 U.S. 238 requires that the trial court must see to it that the defendant understands the acts sufficient to constitute the offense with which he is charged. Without passing on this point we note that Boykin does not apply to this case as the guilty plea here was entered prior to June 2, 1969, and Boykin is not retroactive People v. Williams (1970), 44 Ill.2d 334, 343.

Defendant also contends that because the trial court, in its admonition to defendant, referred to the charges against him as "the crime" he was not adequately informed of the nature of the sentences which could have been imposed for the crimes to which he had entered guilty pleas. Specifically, defendant contends that he was unsure whether he was entering guilty pleas to one or to three charges. We cannot agree.

The rule is plainly set out in Ill. Rev. Stat. 1967, ch. 110A, par. 401(b) which requires that the defendant must understand the consequences of his plea of guilty. It is further stated in Ill. Rev. Stat. 1967, ch. 38, par. 115-2(a) (2) that the defendant must be apprised of the maximum penalty provided by law which may be imposed upon acceptance of his guilty plea.

• 3 The record in the instant case clearly discloses that the defense attorney and defendant discussed the entering of a guilty plea to the "indictments." The defense attorney also addressed defendant in open court saying that he had explained the "possible penalties" to the defendant. The defendant affirmed that such conference took place. Although the trial judge did refer to "the crime" to which defendant entered guilty pleas, he unequivocally stated to the defendant, prior to acceptance of the guilty pleas, "You are being charged with three counts of armed robbery. Is that right?" Defendant's response was "Yes, Sir." The court also asked defendant, "Are you pleading guilty to these crimes because you are really guilty?" Defendant's response was "Yes, sir."

• 4 This colloquy convinces us that the defendant understood the consequences of his guilty plea in that he understood he could be sentenced for each of three offenses. We reach this conclusion by reading the record in a practical and realistic manner to determine whether an ordinary person in the circumstances of defendant would have understood the trial court's remarks and advice as conveying the required information. People v. Kontopoulos (1962), 26 Ill.2d 388, 390; People v. Marshall (1961), 23 Ill.2d 216, 218; People v. Outten (1961), 22 Ill.2d 146, 149; People v. Doyle (1960), 20 Ill.2d 163, 167.

The judgment of the trial court is affirmed.

Judgment affirmed.

ENGLISH, P.J., and DRUCKER, J., concur.

19711105

© 2002 VersusLaw Inc.



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