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People v. Sullivan

JUNE 18, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES SULLIVAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of La Salle County; the Hon. WALTER DIXON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

In April of 1969 the defendant James Sullivan was indicted for the crimes of burglary and theft from a business known as Herrcke's Hardware and also for the crimes of burglary and theft from a business known as Cofoid's Store, both business establishments being located in La Salle County. On May 5, 1969, the defendant entered a plea of not guilty to the charges of burglary and theft. On June 16, 1969, the defendant, being represented by court appointed counsel, withdrew his not guilty pleas and pled guilty to each of the four charges. The circuit court of La Salle County imposed concurrent sentences of not less than 4 years nor more than 7 years in the penitentiary on each of the four crimes charged.

The defendant now appeals from these convictions and a denial of a post-conviction petition and urges as error that the trial court did not personally inform him of the nature of the charges against him; that the trial court did not properly describe the penalty which could be imposed; that there was a failure to apprise him of his right to persist in his plea of not guilty and lastly, there was a failure to admonish the defendant that by changing his plea of not guilty to guilty he was also waiving the right to be confronted with witnesses who might appear against him.

The required procedure at the time of the defendant's guilty plea is set forth as follows in chapter 38, section 115-2 of the Criminal Code:

"(a) Before or during trial a plea of guilty may be accepted when:

(1) The defendant enters a plea of guilty in open court;

(2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea."

Also in effect at the time the defendant tendered his plea of guilty were the regulations set forth in Rule 401(b) of the Supreme Court, Ill. Rev. Stat. 1969, ch. 110A, sec. 401(b), which provided:

"(b) Procedure on Plea or Waiver. The court shall not permit a plea of guilty * * * by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands * * * the nature of the charge against him, and the consequences thereof if found guilty, * * * The inquiries of the court, and the answers of the accused to determine whether he understands his rights * * * and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case."

In order to resolve the issues raised by the defendant we must examine the record so as to determine whether or not he had a full comprehension of his plea of guilty. In the trial court the following pertinent colloquy ensued:

"State's Attorney: * * * Let the record further show that heretofore on May 5, 1969, the defendant entered a plea of not guilty to all the respective indictments. At this time, it is my understanding that the defendant, by and through counsel, tends to move for the vacation of the previously entered plea of not guilty, and instead plead guilty to each and every one of the aforementioned indictments, being four in number. Is that correct?

Public Defender: That is correct, your honor.

The Court: The court will allow you your motion to withdraw your plea of not guilty. And, before I allow your plea of guilty, I have to tell you a ...


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