APPEAL from the Circuit Court of Grundy County; the Hon.
ROBERT E. MALMQUIST, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Following a negotiated plea agreement, defendant Lewis Mahood pleaded guilty to four counts of burglary in the Circuit Court of Grundy County. One count of burglary and one count of theft were dismissed apparently because they arose out of the same conduct.
It appears from the record that at the time of sentencing, defendant was currently serving a sentence imposed in West Virginia by the terms of which he had been sentenced to probation on one misdemeanor and three felony charges. The State's Attorney recommended that the sentences to be imposed by the Illinois Court in the instant case run concurrently with the West Virginia sentence the defendant was serving. It was stated that the sentence to be imposed in Illinois should commence from the time of defendant's incarceration in this State. It is contended on appeal that defendant's guilty plea was, therefore, based on a promise which neither the court nor the prosecution could deliver and that, consequently, because of the use of the term "concurrent", the guilty plea could not stand. This is premised on the assertion that the defendant must have understood that he was to be sentenced to a term of four (4) to twelve (12) years which were to run concurrently with any West Virginia sentence imposed. The record, however, indicates that prior to the imposition of the sentences, the trial court raised a question in defendant's presence as to whether the Illinois court had any authority to impose sentence in accordance with the understanding. The court then said that, to the extent that the Illinois court could arrange concurrent sentences, sentence would be imposed on the basis of the State's Attorney's recommendation. The court expressly stated in defendant's presence that the court could not bind West Virginia and explicitly stated to the defendant that in Illinois these sentences would commence actually with the day he was incarcerated awaiting trial and the sentences would not be postponed to commence after the West Virginia sentence. The court questioned Mahood asking him whether he understood the court, and defendant replied that he did.
• 1 While we realize that a guilty plea made as a result of an unfulfilled promise for a lighter sentence must be vacated (People v. Spicer, 47 Ill.2d 114, 264 N.E.2d 181), it is clear from the record that the court adequately explained to defendant exactly what sentence the defendant was receiving. The court did not say that the West Virginia sentence would run concurrently with the Illinois sentence, but, in fact, the court made clear to the defendant that the Illinois sentence would begin immediately and would run concurrently with the existing West Virginia sentence and with anything which might happen currently with regard to sentencing in West Virginia. The court also expressly stated that it could not bind West Virginia and that the only effect of the plea agreement would be that the Illinois sentence would begin to run immediately and would continue to run irrespective of what occurred in West Virginia. On such basis, the sentences imposed in Illinois were exactly the sentences which had been agreed upon in plea bargaining and there was no representation inconsistent with the sentences as actually imposed. The record does not support defendant's contention that there was an express representation that the sentences would be "concurrent" with any West Virginia sentence, other than the fact that the Illinois sentence would be imposed immediately and be applicable from the time the defendant was incarcerated in Illinois.
• 2, 3 The State also points out that the court has the power to order sentences in Illinois to run concurrent with sentences in other states, and points out, as an illustration of policy, that there is an express statute in Illinois for making Illinois and Federal sentences concurrent. (Ill. Rev. Stat. 1971, ch. 38 § 1-7(n).) It is also pointed out that, as a practical matter, defendant is not placed in a dilemma. It is noted that under People ex rel. O'Connor v. Bensinger, 48 Ill.2d 440, 270 N.E.2d 1, the State of Illinois, after defendant was sentenced in Illinois, could not send defendant to another state for revocation of probation and the serving of a sentence. The Supreme Court stated that it violated the defendant's constitutional rights to sentence him, then send him to a sister state for a trial, sentencing and service of a sentence, and, thereafter, attempt to bring him back to serve his original sentence in Illinois. Defendant in the case at bar, therefore, would be required to serve his Illinois sentence first, before he could be sent to West Virginia to serve any sentence which might be imposed on a probation revocation.
In the cause before us, so far as the record is concerned, the court imposing the new sentence was an Illinois court since defendant was already under sentence in West Virginia. The Illinois court, therefore, determined that the sentence imposed would run concurrently with the existing sentence in West Virginia. On the basis, therefore, of our review of the record we do not believe that there is any reversible error in the imposition of the sentence and that defendant got exactly what he had bargained for as to sentence.
Judgment of the Circuit Court of Grundy County will, therefore, be affirmed.
Mr. JUSTICE STOUDER dissenting:
I do not agree with the majority of the court. From the record it appears to me the meaning of the plea bargain, its effect or consequences, and the meaning of the sentences imposed are confusing, susceptible of misunderstanding or erroneous. Consequently, I believe the proceedings are contrary to Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), relating to the acceptance of guilty pleas.
After the court explained to defendant the meaning and effect of serving four Illinois prison sentences concurrently, the State's Attorney stated,
"I would also like to point out, Your Honor, my recommendation would be that these sentences run concurrently with the sentences he is currently serving out of the State of West Virginia, the County of Jackson, where he was sentenced to a period of probation for one ...