APPEAL from the Circuit Court of Hancock County; the Hon. JOHN
W. GORBY, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant Donald Lee Holvey appeals from a judgment of the trial court of Hancock County denying his petition seeking relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, par. 122-1).
Defendant was charged with separate acts of aggravated battery. On Aug. 1, 1971, he entered a plea of guilty to each of the charges and was sentenced to concurrent terms of not less than 3 years nor more than 6 years in the Illinois State Penitentiary. No appeal was ever taken from that judgment. In March 1972 he filed a petition for post-conviction relief. A hearing was held and relief was denied on August 3, 1972.
Defendant's sole contention is that the trial court failed to determine that a factual basis existed in support of the plea and that this constituted a denial of due process. He contends that the determination of a factual basis is a necessary ingredient of a finding that a plea is voluntary and intelligently made.
The record shows that after reading the indictment to the defendant the following appears:
"The Court: Are you, Mr. Holvey, pleading guilty because you believe to be guilty in fact?
The Court: * * * do you believe yourself in fact guilty or are you merely pleading guilty because somebody has advised you to do so?
Defendant: I know I am guilty, sir."
Aggravation and mitigation were both waived and no pre-sentence report appears in the record.
The above has been held not a sufficient compliance with Rule 402(c) and were this proceeding a direct appeal, under the authority of People v. Walraven, 11 Ill. App.3d 1085, we would likely reverse and remand with directions that the defendant be allowed to plead anew.
• 1, 2 Defendant's appeal, being from the judgment denying his petition for relief pursuant to the Post-Conviction Hearing Act, must be determined on the basis of whether defendant has been convicted and incarcerated in violation of his constitutional rights. (People v. Cox, 12 Ill.2d 265; People v. Bernatowicz, 413 Ill. 181.) A violation of a statute or rules of procedure which do not constitute constitutional rights may not be considered. People v. Masterson, 45 Ill.2d 499; People v. Hangsleben, 43 Ill.2d 236.
McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166, involved the procedure that must be followed under Rule 11 of the Federal Rules of Criminal Procedure before a United States district court may accept a guilty plea and the remedy for a failure to follow that procedure. Federal Rule 11 is similar to our present Rule 402. Rule 11 concludes, "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 petitioner therein contended (1) that the district court had accepted his plea "without first addressing him * * * personally and determining that the plea was made voluntarily with understanding of the nature of the charge * * * and (2) that the court had entered judgment without determining "that there was * * * a factual basis for the plea."
McCarthy stated that although not constitutionally mandated the rule was designed to assist the judge in making the constitutionally required ...