APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The Defendant-Appellant, Freddie Lee Bell, was jointly indicted, on November 5, 1969, with Harold Junior Bradford, Kenneth Lynn and Albert James Love, for the murder of one Hobart Hostetler, committed during the course of an attempted armed robbery. The Public Defender was appointed for all four defendants.
Thereafter, the Public Defender filed a motion which asserted that the defense of Bradford and the defenses of the other three defendants represented a conflict of interest. Pursuant to the motion the Public Defender was relieved of his representation of Bradford for whom other counsel was appointed. The Public Defender continued his representation as to defendants Bell, Love and Lynn.
On January 15, 1970, Bradford entered a plea of guilty to the crime of murder, and was sentenced to an indeterminate term of 30 to 60 years. Five days later, on January 20, 1970, the State's Attorney filed an information jointly charging the defendants Bell, Lynn and Love with the crime of voluntary manslaughter committed during the attempted armed robbery of Hostetler. On that same day, the defendant Bell, together with Lynn and Love, waived indictment, trial by jury and simultaneously entered pleas of guilty to voluntary manslaughter. The defendants and the People then waived hearing in aggravation and mitigation, and the State's Attorney recommended the sentences which were ultimately imposed by the Court. At this juncture the Court inquired of defendant's attorney whether he wanted to be heard why the Court should not accept the sentence recommendation and adopt it. To this inquiry counsel responded "No, Your Honor, and if I may I would like to make a brief statement as to the sentence recommended". The Judge replied that he would hear defendant's attorney "* * * because, as you know, I have said how can this be reconciled in view of the sentence imposed on a co-defendant. (Referring to the sentence imposed on Bradford) I am ready to listen to you".
Defendant's attorney then told the Judge, that this case had arisen out of an agreement of the four defendants to rob a gasoline station in Decatur, Illinois. That Lynn, Love and Bradford proceeded toward the gas station and "* * * an old man came towards them and Mr. Bradford, I am informed from all the facts and circumstances in this case, announced his intention or desire to commit a robbery of this individual rather than to go ahead what has been suggested in the beginning. Mr. Bell, of course, not being present at the time and knew nothing of this, and Mr. Lynn and Mr. Love strenuously objected to this action on the part of Mr. Bradford, told him that they did not want to become involved in that and did not want anything to be done to the man. But Mr. Bradford insisted at that time that he was going to do it anyway and he parted company with Mr. Love and Mr. Lynn and went up and carried out his intentions without the assistance or backing of the other defendants in this case. It was in the process of the commission of this crime that Mr. Hostetler lost his life. The defendants' position in the case has been that they attempted to withdraw and I do believe that they did attempt to withdraw from the situation and to disassociate themselves from Mr. Bradford in the action that he took.
It is also clear from the evidence that Mr. Bradford is the one who possessed the weapon and intended to carry this crime out, and in fact did carry it out, where the others not only tried to disassociate themselves from this activity but were also without any weapons themselves.
Further * * * each of these three individuals who now stand before the Court were in position of giving full cooperation to the police department, and it is due in some part to their willingness to tell about what happened that the crime was solved and that the individual who actually perpetrated this killing was finally brought into court and a conviction was obtained * * * Because of these factors that are involved, * * * the information was filed in this case * * * of which the defendants have now been convicted, and it is for this reason that the recommendation is made in the case. I think I feel and also the State's Attorney feels that there is a substantial difference in the responsibility and in the degree of participation, and in the attitude of these three individuals from that of Mr. Bradford * * * It is for this reason that I feel the sentence should be accepted by the Court".
The State's Attorney then stated: "I ratify the suggestions made by counsel as far as the People's position and reason, and the People's position in this matter. Again there is the legal theory involved here as to actually in fairness in application to these three defendants as compared to the co-defendant, and substantially his statement of our position is the same as stated here in the court room". Whereupon the court imposed identical sentences of 7 to 20 years on Bell, Lynn and Love.
In their argument, the People state that the pleas of Bell, Lynn and Love were "obviously negotiated pleas", and while the pleas were taken prior to the adoption of Supreme Court Rule 402, and the formal requirements of that Rule did not obtain, the record amply supports that observation and we treat this for what it plainly was: a negotiated plea.
Defendant Bell urges here that the trial judge, before accepting the plea, did not adequately inform the defendant of the nature of the crime of voluntary manslaughter "* * * as well as his position regarding the principle of criminal accountability, which bore on the defendant's situation".
On the day of Bell's plea he, together with Lynn and Love, had received copies of the information and indicated their desires to plead to voluntary manslaughter. They had previously (on November 6, 1969) been arraigned on the murder charge and had received copies of that indictment. The indictment charged the four defendants as principals. The murder indictment reciting that Bradford, Lynn, Love and Bell had committed the offense of murder in that they, pursuant to a plan to commit the offense of armed robbery, attempted to take United States currency from the person of Hobart Hostetler, by threatening the use of force while armed with a gun and did kill Hostetler during the attempt in that they shot him with a gun. The information charged Bell, Lynn and Love with voluntary manslaughter in that they, pursuant to a plan to commit the offense of armed robbery, attempted to take money from the person of Hobart Hostetler by threatening the use of force with a gun, and did kill Hostetler during the attempt to commit armed robbery, in that they shot him with a gun; and that at the time of the killing they were acting under a sudden and intense passion, resulting from serious provocation by the individual killed.
Before accepting the pleas the Court inquired if each understood what he was accused of doing in the information, to which question each answered yes. He asked if they understood that it involved the death of one Hobart Hostetler, and the purported robbery of the deceased, to which Bell and each of the other defendants answered in the affirmative. The Court explained the minimum and maximum limit of the sentence which could be imposed, explained their right to a trial by jury and took their waiver of the same, asked them if they were each pleading guilty because they were, in fact, guilty of voluntary manslaughter, to which each defendant replied affirmatively; made long and careful inquiry to determine whether or not they had been subjected to any threats, coercion or improper inducement of any kind in connection with their pleas, and each responded that nothing of the sort had occurred. The Court found that their pleas were voluntary and accepted the pleas. Their counsel stated to the Court that all three of the defendants had been given an opportunity to confer with members of their family and had fully considered the matter with them and also with counsel.
Following imposition of sentence the judge inquired of each defendant as to whether the sentence was more severe or longer than their counsel or the State's Attorney might have indicated that they would receive on their plea, or whether anyone had misinformed them as to what they might receive on the pleas and each answered in the negative.
• 1 In determining whether a defendant has been sufficiently admonished and comprehends the nature of the charges against him the "total record" must be considered. (People v. McGrady, (Ill. App.2d), 267 N.E.2d 515.) We have examined the "total record" here, and the context in which it was made, together ...