APPEAL from the Circuit Court of Rock Island County; the Hon.
DAN H. McNEAL, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Rock Island County dismissing defendant's post-conviction petition. On April 9, 1965, defendant pleaded guilty to a charge of murder and was sentenced to the penitentiary for a term of 25 years to life. On July 12, 1968, defendant filed a pro se petition seeking post-conviction relief. (Ill. Rev. Stat. 1967, ch. 38, par. 122-1 et seq.) Subsequently appointed counsel filed an amended petition which was dismissed without an evidentiary hearing and defendant now appeals.
The record of the plea hearing discloses that the defendant and the victim had been drinking and thereafter both went to a restaurant for breakfast. After leaving the restaurant, defendant claimed that he did not remember anything until he awakened in decedent's parked car and found the body of the victim alongside of him. He then fled with the victim's ring and wallet. Later, upon discovery of the body, it was determined that the deceased had died of a fractured skull apparently caused by blows inflicted by a brick in a burlap sack discovered in the car. The ring and partially burned wallet were recovered in the vicinity of a home to which the defendant had fled. Defense counsel indicated to the court at the time of defendant's plea that even though he believed the evidence was circumstantial, it was sufficient to prove defendant guilty beyond a reasonable doubt and therefore he had advised defendant to plead guilty.
Prior to accepting the guilty plea the following colloquy ensued:
"THE COURT: You indicate that you advised him as to the possible penalty. What have you told him about the possible penalty?
DEFENSE COUNSEL: I told him the possible penalty, the worst that could happen, the jury could come back and recommend the electric chair and he could be electrocuted.
THE COURT: What about the other penalties that might be available in this case on his plea of guilty?
DEFENSE COUNSEL: I explained that the jury would have to take this recommendation before he would be electrocuted, that any other sentence would be handed down by the jury, the court would decide the sentence.
THE COURT: What about the variation in that?
DEFENSE COUNSEL: The minimum would be 14 years and the maximum would be life."
Thereafter the court proceeded to question the defendant regarding his plea. Defendant answered that he understood the charge against him and that he had a right to a jury trial at which he could call witnesses and offer evidence. The court then inquired as to whether the plea was free from any promises or threats and defendant replied that the plea was freely given. The court then continued:
"THE COURT: And that based entirely on this plea of guilty and waiver of trial by jury, this court can sentence you to the Illinois State Penitentiary for life? You understand that?
THE COURT: And for any term from 14 years ...