APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for theft of property in excess of $150, and entered a plea of guilty to the charge. After denying probation, the trial court sentenced him to the penitentiary for a term of not less than four nor more than ten years.
On appeal, defendant contends that (1) the court erred in accepting his guilty plea without properly admonishing him in accordance with Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, and Illinois Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, sec. 402); and (2) the sentence imposed was excessive.
"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065. We cannot presume a waiver of these three important federal rights from a silent record." 23 L.Ed.2d 279-280.
Illinois Supreme Court Rule 402 includes the three requirements of Boykin [(a) (3), self-incrimination; (a) (4), right to trial by jury and right to confront witnesses], but imposes additional responsibilities upon the trial judge. See Rule 402(a), (a) (1), (a) (2), (b) and (c).
Rule 402 is, in part, based upon Rule 11 of the Federal Rules of Criminal Procedure (S.H.A., ch. 110A, sec. 402, Supplement Committee Comments.) Rule 11 states:
"* * * The court * * * shall not accept such plea [plea of guilty] * * * without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea * * *. The court shall not enter judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."
The necessity for personal admonishment by the court and the need for a factual determination in support of the plea was recognized by the United States Supreme Court when it interpreted Rule 11 in McCarthy v. United States (1969), 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166 and stated:
"* * * By personally interrogating the defendant, not only will the judge be better able to ascertain the plea's voluntariness, but he also will develop a more complete record to support his determination in a subsequent post-conviction attack.
* * * Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.
Thus, in addition to directing the judge to inquire into the defendant's understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea * * * Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to `protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" 22 L.Ed.2d 425, 426
The same underlying principles, applicable to Rule 11, found in McCarthy, are also found in Illinois under Rule 402. See, People v. Mims (1969), 42 Ill.2d 441, 444.
In the instant case, the transcript reveals that the trial judge did not, "by addressing defendant personally in open court" [(a)], inform him of the nature of the charge [(a) (1)], his right against self-incrimination [(a) (3)], or his right to confront witnesses [(a) ...