APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The defendant was charged with a co-defendant, Calvin T. Madison, in a three count indictment with the offenses of murder, felony-murder and armed robbery arising out of an incident that occurred on January 22, 1970. A severance was granted on May 21, 1970, and Madison was tried separately in a five day jury trial that culminated in a verdict of guilty on all three counts. The defendant subsequently entered a plea of guilty to the charge of felony-murder and was sentenced to a term of twenty-five to fifty years in the penitentiary.
On appeal the defendant contends (1) that his plea of guilty was invalid since he had not been advised as to his constitutional right to a bench trial; (2) that he was denied the opportunity to present evidence in mitigation; and (3) that the minimum sentence should be reduced.
On September 2, 1970, after Madison had been found guilty, the defendant, through his court-appointed attorney, in open court requested that plea negotiations be conducted with the state. On September 3, after a plea discussion conference with the court, the defendant withdrew his plea of not guilty and entered a plea of guilty and was sentenced in accordance with the plea agreement. Before accepting his plea, the trial court questioned the defendant at length as to his understanding and agreement to the provisions of the plea negotiations. The court then asked the defendant as follows:
"The court. Now, do you understand that if you enter a plea of guilty you are giving up certain rights that you have, and I want to be certain that you fully understand what those rights are.
First, you waive your right to trial by jury; you understand that?
The court proceeded to explain the function of a jury and the defendant's rights to remain silent, to cross-examine witnesses and to offer evidence on his own behalf. The defendant indicated that he understood those rights and understood that the state would have the burden to prove his guilt beyond a reasonable doubt in the event of a trial. However, the court did not in so many words advise the defendant that he had a right to be tried by the court if he waived a jury, and the defendant now contends that the failure invalidated his plea of guilty.
A similar argument was advanced in the recent case of People v. Wallace, 48 Ill.2d 252, 269 N.E.2d 482, where the accused was admonished as to his right to a trial by jury before the trial court accepted his plea of guilty. The admonition did not include any reference to a trial by the court and Wallace contended that his plea was thus invalid. The Supreme Court rejected that contention and said "We judge that an appropriate admonition and understanding of a right to trial by jury comprehends advice and understanding of a right to trial without jury."
The defendant here, however, maintains that the ruling in the Wallace case is superseded by Supreme Court Rule 402 (Ill. Rev. Stat. 1969, ch. 110A, par. 402) effective September 1, 1970. Paragraph (a) (4) of the new rule provides that a plea of guilty shall not be accepted unless the court informs the defendant, and determines that he understands, "that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him." The committee comments indicate one of the reasons for the new rule was to conform the practice in Illinois to the guidelines set by the Supreme Court of the United States in regard to pleas of guilty in the case of Boykin v. Alabama (395 U.S. 238.) In the Boykin case it was held that it is a violation of due process of law to accept a guilty plea without an affirmative showing, placed in the record, that the defendant voluntarily and understandingly entered his plea.
• 1 Although the guilty plea in the Wallace case was entered before Boykin was decided, our Supreme Court considered that case in its decision and stated ". . . we do not consider that Boykin is authority for the defendant's claim." We conclude, therefore, that Rule 402 does not require that a defendant be specifically admonished as to his right to a trial by the court if he has been properly admonished as to his right to trial by jury and his other rights as enumerated in the rule.
The defendant next contends that he was denied his right to a hearing in mitigation and aggravation as provided by section 1-7(g) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 1-7(g).) The record shows that the trial judge, in open court with the defendant and his attorney present, asked if they wished to introduce evidence in mitigation before sentence was imposed. The following colloquy then took place.
"Mr. Smith (defense counsel): No, your Honor, I think the conference and the results of the conference negotiations arrived at a settlement that I discussed with my client, that is fair, and I think there are things I could ...