APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction and sentence upon a plea of guilty to burglary. Sentence of 1 to 5 years was imposed.
On appeal it is urged that the admonishment pursuant to Supreme Court Rule 402 (50 Ill.2d R. 402) was inadequate because the terms of the plea agreement were not properly set forth in the record, that the trial court abused its discretion by denying probation, and that the sentence is excessive.
The plea was tendered at the time of defendant's arraignment. The trial court admonished defendant pursuant to Supreme Court Rule 402. Thereafter, the prosecutor indicated that the plea was the result of prior negotiations by counsel and defendant, and that it had been arranged that defendant would plead guilty to burglary and move for probation; that the prosecution would abide the recommendation of the probation officer and would not oppose probation if such was recommended; that the People would not seek any terms or conditions in excess of those recommended in the probation report and that the prosecution would enter a nolle prosequi on an indictment charging defendant with forgery. The defendant then indicated that he understood the recommendations as stated and that no other recommendations had been communicated to him. The court advised the defendant in some detail that it was not bound by recommendations of either the State's Attorney or the probation officer, and made clear that the sentence could be any number of years with a minimum of one year.
A continuance was entered pending filing of the probation report. The report subsequently filed recommended a denial of probation. Such report was introduced into evidence, testimony and arguments heard, and the court determined to deny probation.
The following thereafter occurred:
"THE COURT: What was the recommendation at the time of the plea here?
THE STATE: Your Honor, I believe that the recommendation The People indicated to the Court and defendant we would make in the event of denial of probation was a penitentiary sentence of one to six years.
DEFENSE COUNSEL: That is correct.
THE COURT: That is the recommendation, one to six?
DEFENSE COUNSEL: Yes, sir."
The record indicates that defendant was present at these proceedings and that he made no comment in response to counsel's concurrence with the terms of the plea agreement.
Defendant claims a misunderstanding in that the prosecution's proposal to recommend a sentence of 1 to 6 years was not communicated to him. It is not contended that a lesser recommendation was promised. At both the hearing on probation and the hearing in aggravation and mitigation the prosecution indicated that the terms of the agreement included such sentence recommendation in the event probation would be denied. Defendant was present at such hearing and remained silent when such recommendations were stated into the record. Defendant's counsel expressly agreed that the plea agreement included the possible 1-to-6 year recommendation. In addition, at the hearing on the motion for probation, the prosecution indicated that such recommendation was communicated to the defendant, his counsel concurred in the statement and defendant made no response or objection.
• 1 Defendant's contention that the initial statement of the plea arrangement did not include the prosecutor's proposed sentence recommendation is a technical contention without relation to the fact of error. Examination of the record shows substantial compliance with ...