APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
• 1 The defendant, Steven Gaines, was charged with the offense of deviate sexual assault. He withdrew his plea of not guilty, entered a plea of guilty and was sentenced to imprisonment for a term of 4 to 6 years at the Illinois State Penitentiary at Menard. This is a consolidated appeal from the judgment rendered on his guilty plea and from the dismissal of his petition for post-conviction relief. The two phases of the appeal have been commingled in his argument and brief. The legal issues pertaining to each phase are different, and we will consider them separately. People v. McCarroll (1973), 10 Ill. App.3d 249, 294 N.E.2d 52.
Gaines contends that: (1) his prosecution as an adult was based on a sex classification and thus violated his right to equal protection under the law; (2) his guilty plea was neither intelligently nor voluntarily made; (3) his sentence was influenced by the court's considering improper testimony concerning previous criminal behavior for which he had been arrested but not convicted; (4) his sentence was excessive because the court misapprehended the permissible punishments and, (5) his post-conviction hearing was unfair because the judge who presided at his trial conducted the hearing.
When Gaines' case was called for trial, his counsel requested a conference with the assistant State's Attorney and the judge. Gaines' approval of the request appears of record. After the court reconvened, the People read into the record a short narrative of the facts of the case. Gaines, through his counsel, stipulated to those facts. The court then explained the charge of deviate sexual assault and the punishment that could be imposed upon him: imprisonment from 4 to 14 years. Gaines acknowledged his understanding of the charge and of the potential punishment. There followed an explanation by the court of the defendant's rights and the consequences of their waiver, and an inquiry into the voluntariness of the plea. Gaines at that point hesitated, saying that the plea was not a result of his own decision, but rather "my attorney's and my mother's and my father's." He was then questioned, first by counsel and then by the court:
"Counsel: Mr. Gaines, your mother and I have had a discussion a few moments ago in the jury room of this courtroom?
Counsel: Did we discuss the possibilities of entering pleas and not entering pleas?
Counsel: And was it your decision with our conversation that a plea of guilty should be entered?
Counsel: It is your wish not to enter a plea of guilty?
Counsel: You do not wish to enter a plea of guilty?
Counsel: You wish to enter a plea of not guilty?
Counsel: What is your desire, ...