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People v. Ballauer

OCTOBER 9, 1974.

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

v.

DANIEL BALLAUER (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The defendant, Daniel Ballauer, was indicated on April 7, 1972, along with Arthur Peters and John Peters, for both the armed robbery and murder of Frank Posejpal. Arthur Peters was also indicted for the attempted murder of Leslie Russ and Andrew Bultas in connection with the same incident. On February 15, 1973, the defendant pled guilty to murder and armed robbery, and also to the attempted murder of Russ and Bultas. He was sentenced by the court to the penitentiary for a term of 14 to 20 years for the murder, 4 to 16 years for each of the attempted murders, and 14 to 20 years for the armed robbery, all the sentences to run concurrently.

• 1 It is initially pointed out by the defendant on appeal, that although he pled guilty to and was sentenced for the attempted murder of both Russ and Bultas, he was never charged by indictment with those offenses. We agree with the defendant's argument, which the State concedes in its brief, that this is manifest error. We accordingly reverse the defendant's convictions for attempted murder.

The defendant also asserts on appeal (1) the non-compliance by the trial court with certain provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), which imposes certain duties on the trial court in accepting a guilty plea, requires reversal of the murder and armed robbery pleas, and (2) that the murder and the armed robbery arose from the same conduct and that therefore the conviction for the lesser offense of armed robbery must be reversed.

• 2 It is argued first, in regard to Supreme Court Rule 402, that the trial court failed to explain the nature of the charge of both armed robbery and murder to which the defendant was pleading guilty, as required by 402(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(1)). We disagree.

The Rule provides:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge."

The record shows that before the guilty plea was entered, defense counsel informed the court that the defendant wished to withdraw his previous plea of not guilty as a result of negotiations between the defense counsel, the assistant State's Attorney, and the defendant. The defendant verified that statement to the court, and the following ensued:

"THE COURT: Understand by pleading guilty to these charges —

Can I have a copy of the indictment?

MR. WITKOWSKI: Yes, sir.

(Counsel handing document ...


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