APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant, John Wills, appeals from judgments entered pursuant to guilty pleas for the offenses of burglary, escape and armed robbery and from concurrent sentences imposed of 3 to 9 years on the burglary, 3 years and 4 months to 10 years for the escape, and 5 to 30 years for the armed robbery. These three appeals have been consolidated for purposes of opinion.
Defendant raises the following issues for resolution by this court:
(1) Whether defendant's guilty pleas to escape and armed robbery were voluntarily entered.
(2) Whether the trial court erred in not informing defendant of the possibility of probation, conditional discharge, and periodic imprisonment before accepting his guilty pleas to escape and armed robbery.
(3) Whether the trial court erred in not informing defendant of of the possibility of consecutive sentences before accepting his guilty pleas to escape and armed robbery.
(4) Whether the trial court erred in not informing defendant of the existence of a mandatory parole term before accepting his guilty pleas to burglary and escape.
On March 13, 1973, defendant's counsel indicated that defendant wished to plead guilty to burglary. The court admonished defendant in regard to sentencing as follows:
"The Court: All right, sir. State statute in this case provides that a person who is convicted of the offense of burglary may be imprisoned in the penitentiary for not less than one nor more than 20 years. Now, this is what is known as an indeterminate sentence, one year being the minimum that the court can set and 20 years being the maximum that the court can set. In the event you should be imprisoned Now, let me explain that at a sentencing hearing the Court would consider other matters. They would consider probation. You'd have a right to provide for probation. They could consider the possibility of conditional discharge which is a form of probation. The Court would have the sentencing alternative of periodic imprisonment which is a work release type program. But in the event the Court did not select these sentencing alternatives and chose to imprison you feeling that this was the appropriate sentence, you could be sentence [sic] within that range. Now, the full sentence of the Court would be somewhere within that range. Let me give you an example. The Court could set a higher minimum and the Court could set a lower maximum if it saw fit to do so. So by way of example, under the statutory authority, the Court could sentence you to not less than five nor more than 15 years in which case you'd stay at least five years in the penitentiary and could stay up to 15. The Court could sentence you to not less than six years and four months nor more than 20 years. The Court could sentence you to not less than one nor more than three years. The Court will select the minimum and the maximum term within the range that the statute specifies. Do you understand what I mean by an indeterminate sentence and what your exposure would be?
Defendant Wills: Yes, sir.
The Court: Do you understand what the penalty can be for this up to 20 years in jail?
Defendant Wills: Yes, sir."
It was then pointed out to the court that this plea was not being taken pursuant to any type of plea agreement. The court then entered judgment on the plea.
On May 14, 1973, defendant appeared before the court for a sentencing hearing on the burglary judgment. During the hearing and before imposition of the sentence the court was informed that defendant wished also to plead guilty to the offenses of escape and armed robbery. The court then continued the sentencing hearing in order to take pleas to these charges. The court admonished defendant in regard to sentencing as follows:
"The Court: The statute in this state provides as follows:
A person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony. Statute further provides by way of a penalty that a person who commits a Class 2 felony, in this case an escape, while charged with a felony, may be imprisoned in a penal institution for not less than one nor more than 20 years, and in addition thereto fined up to $10,000. Do you have any questions regarding the statutory definition of escape or the possible penalty that could be imposed?
Defendant Wills: No, sir.
The Court: Now, when the statute refers to imprisoned for not less than one nor more than 20 years, this places limitations upon the Court, and in the event imprisonment were selected, you'd have to be sentenced to at least one year and the Court could not sentence you to more than 20 years. However within this range the Court could select a different sentence with a higher minimum or a lower maximum. Let me give you some examples. By way of example the Court could sentence you to not less than one nor more than three years in which case one year would be the minimum, three would be the maximum. Or the Court could sentence you to not less than three years nor more than nine years in which case three years would be the minimum or the shortest amount of time that you would be entitled to be released and the nine years would be the longest period of time that you could be held. Again by way of example, the Court could sentence you to not less than six years and four months to more than 20 years. Do you understand this?
Defendant Wills: Yes, sir.
The Court: Have any questions about the range of possible imprisonment terms that the Court could select on this charge?
Defendant Wills: No, sir."
It was then stated to the court that there were no plea-bargaining agreements in existence as to either charge. The court then admonished defendant in regard to sentencing as follows:
"The Court: * * * Armed robbery is a Class 1 Felony. Statute provides by way of penalty that armed robbery is a Class 1 penalty for which an offender must may not be sentenced to death. The laws of this state provide by way of penalty that a person convicted of a Class 1 felony shall be imprisoned for four to any number of years plus five years parole. In addition thereto he may be fined up to $10,000. In defining the sentence in armed robbery I would explain to you that you are not eligible for parole upon a plea, finding or conviction of armed robbery.
Mr. Litak: I believe the Court said parole and meant to say probation.
The Court: Thank you for correcting me. I mean probation. You are not eligible for probation. As a matter of fact the parole provision is mandatory. You would serve five years parole time after serving your prison term under any circumstances. The limitations placed upon the Court are simply that the Court must sentence you to at least four years. The upper limit is left entirely within the discretion of the Court. The Court could, in an appropriate case, increase the minimum time. You could be sentenced by way of example to not less than four nor more than 12 years. You could be sentenced to a higher minimum of not less than 10 nor more than 30 years. You could be sentenced to a term of years where the maximum was greater and the minimum remained at four so that you could conceivably be sentenced to not less than four years nor more than 60 years, any range that the Court might select. Do you understand the possibility of sentence penalty, imprisonment penalty under the armed robbery charge?
Defendant Wills: Yes, sir.
The Court: Do you have any ...