APPEAL from the Circuit Court of Jo Daviess County; the Hon.
JAMES E. BALES, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Malcolm Ehrler, appeals from the denial of his post-conviction petition in which he sought to vacate his plea of guilty to the charge of murder. He contends that the plea is void because the admonishment relative to the sentence which could be imposed did not fully advise him of the consequences of his guilty plea.
Defendant had previously been convicted in a jury trial of the murder and sentenced to 25-50 years in the penitentiary. We reversed the conviction in People v. Ehrler (1969), 114 Ill. App.2d 171, and remanded the cause for a new trial. Subsequently defendant entered into informal plea negotiations with the State's Attorney through his counsel, the Public Defender. This resulted in an agreement by the State's Attorney to recommend a 16-40 year sentence. On March 6, 1970, the court accepted the plea of guilty and thereafter sentenced the defendant to 16-40 years in accordance with the recommendation.
Before accepting the plea the court admonished the defendant, as pertinent to the possible punishment for the crime, as follow:
"The Court: You understand that you could be sentenced to death or a minimum term of fourteen years, do you thoroughly understand that?
The Court: Do you understand if you enter a plea of guilty the Court can sentence you to death, or fix your sentence for an indeterminate period of not less than fourteen years?
The Court: Before I can accept your plea of guilty, it is my duty to fully advise you of your rights under the law and of the effect and consequences of your plea of guilty. In this case you are charged with the crime of murder. The Statute provides that the penalty for the crime of murder is punishment by death or imprisonment in the penitentiary for an indeterminate term, a minimum of not less than fourteen years, do you understand that?
The Court: The court finds from the proceedings had in open court at this time that the accused understands the nature of the charge against him, and the consequences thereof. The Court further finds that the defendant understandingly persists in his plea of guilty to the charge of murder. That plea is accepted.
The Court: The court has set the hearing for mitigation and aggravation when you may present anything you have in mitigation. Do you understand that?
• 1 Defendant's argument essentially is that the court's reference to "death or imprisonment in the penitentiary for an indeterminate term, a minimum of not less than fourteen years", does not clearly and unambiguously state the maximum term which defendant is entitled to know before he can enter an understanding plea. Defendant contends that on retrial of a case in which the previous punishment had been a term of years in the penitentiary, the imposition of the death penalty on retrial was a practical impossibility and therefore not the maximum penalty. Defendant concludes that the reference to the death penalty in his case was surplusage and not informative so that the admonishment of "an indeterminate term", read without reference to death, is clearly insufficient. (People v. Terry ...