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People v. Fred

FEBRUARY 27, 1974.

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

v.

EUGENE EARL FRED, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, JR., Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 26, 1974.

Defendant appeals from two convictions for armed robbery after his pleas of guilty. The cases have been consolidated upon appeal. In No. 11723, a sentence of 5 to 20 years was imposed, while in No. 11724, the sentence imposed was 5 to 10 years. Such sentences are concurrent. The issues are limited to the adequacy of the proceedings under the provisions of Supreme Court Rule 402.

In No. 11723, defendant was charged, together with one Hutson, with armed robbery which occurred on June 5, 1971. After appointment of counsel, defendant pleaded not guilty.

In No. 11724, defendant was charged with an armed robbery occurring on September 21, 1971. After appointment of counsel, defendant pleaded guilty on September 29, 1971. The record shows that the plea was negotiated between counsel in the limited sense that certain other charges would be dismissed upon entering the plea of guilty. The negotiations do not include any recommended term of sentence.

The court's admonition under Supreme Court Rule 402(a) included the statement that the minimum sentence which might be imposed was 2 years. The proceedings show that such was also the view of both the State's Attorney and defense counsel. Illinois Revised Statutes 1969, chapter 38, paragraph 18-2(b) was referred to. However, effective August 24, 1971, that statutory provision was amended to provide that the minimum sentence for armed robbery was fixed at five years, and that upon a second or subsequent conviction of armed robbery, the minimum sentence provided was eight years. This plea was entered to a charge of armed robbery committed subsequently to an armed robbery upon which the charges were then pending. At the sentence hearing, defense counsel presented a number of reasons for a sentence with a minimum of 2 years.

Supreme Court Rule 402(a) is explicit in its requirement that the court shall not accept a plea of guilty without first addressing defendant personally in open court and advising and determining that defendant understands the minimum and maximum sentence provided by law, including the penalty which may be imposed because of prior convictions.

The prosecution cites People v. Miller, 2 Ill. App.3d 851, 277 N.E.2d 898. In that case the negotiated plea included an agreement to recommend the sentence actually imposed by the court, and defense counsel had stated into the record that defendant was advised of the possible sentence which might be imposed. (See also People v. Hartman, 6 Ill. App.3d 543, 285 N.E.2d 600.) Here, no term of sentence had been negotiated and counsel were obviously mistaken as to the minimum term. The prosecution also cites People v. Marshall, 23 Ill.2d 216, 177 N.E.2d 835, and People v. Carter, 107 Ill. App.2d 474, 246 N.E.2d 320. These cases were decided prior to the effective date of Supreme Court Rule 402 as now stated, and under a statute which only required an admonition of the maximum sentence which might be imposed. (Ill. Rev. Stat. 1969, ch. 38, par. 113-4(c).) Upon these facts, we cannot find an affirmative showing of an intelligent and understanding plea of guilty as required by Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.

In No. 11723, defendant appeared with counsel shortly prior to trial and advised the court that defendant desired to plead guilty "to this charge". It appears that the plea tendered was made subsequently to that in No. 11724, but on the same day. Defendant was then admonished in detail concerning his constitutional rights and the penalty which might be imposed, but nothing which discloses a factual basis for the plea of guilty. Supreme Court Rule 402(c) provides that the court shall not enter judgment upon a plea of guilty without first determining that there is a factual basis supporting such plea. In People v. Trinka, 10 Ill. App.3d 183, 293 N.E.2d 179, it is said that a plea of guilty is not the equivalent of a factual basis for such plea.

Here we find no admission by defendant in open court, no testimony of witnesses and no statement of facts to which defendant has assented. In People v. Bauswell, 12 Ill. App.3d 35, 297 N.E.2d 385, this court observed that after a plea of guilty, defendant denied that he had performed the acts charged at his hearing in aggravation and mitigation. It appeared there that the plea was entered for reasons not related to actual guilt.

Supreme Court Rule 402(c) states that the proceedings required by this Rule must be taken verbatim in open court and made a part of the record. The procedures provided in the Rule assure that the record will clearly and affirmatively show that the plea was intelligently and understandingly made within the requirement of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. These procedures are designed to aid the administration of justice to the extent that they generally assure finality of judgment and eliminate unnecessary assertions of error in the taking of pleas of guilty.

• 1 The State has filed a motion to supplement the record in these proceedings by filing a portion of the record from the subsequent trial of the co-defendant, Hutson, at which defendant testified. (See People v. Hutson, 13 Ill. App.3d 775, 300 N.E.2d 305.) The motion is denied for the reason that it does not come within the provisions of Supreme Court Rule 329.

• 2 In No. 11724, the judgment below is reversed and the cause is remanded with directions to permit defendant to plead anew.

• 3 In No. 11723, as in People v. Trinka, 10 Ill. App.3d 183, 293 N.E.2d 179, we conclude that the best interests in the administration of justice would be served if the cause is remanded for the limited purpose of having the court vacate the judgment and then to ascertain for the record the existence of a factual basis for the plea as provided in Supreme Court Rule 402(c). If such factual basis is established of record, the trial court may thereupon enter judgment upon the plea of guilty. In the event no such factual basis is established, then defendant, if he so desires, may withdraw such plea of guilty and the cause shall ...


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