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People v. Morlan

NOVEMBER 7, 1974.

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

v.

JESS J. MORLAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Franklin County; the Hon. FRANK P. HANAGAN, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

On May 18, 1972, an information was filed in the Circuit Court of Franklin County, charging the appellant with rape. On June 6, 1972, pursuant to a negotiated plea, the appellant pled guilty to the charge and was sentenced to the Illinois Department of Corrections for a period of not less than 4 nor more than 6 years. The appellant did not take a direct appeal from this conviction and judgment.

On March 3, 1973, appellant filed a pro se post-conviction petition, pursuant to section 122-1 et seq. of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.), and thereafter the post-conviction petition was amended following appointment of counsel for appellant. On June 6, 1973, exactly one year after appellant had entered his guilty plea, an evidentiary hearing was held pursuant to section 122-6 of the Code to determine whether appellant had been substantially denied certain constitutional rights when he pled guilty on June 6, 1972. The trial court, upon hearing the evidence and examining the documents on file, denied appellant's post-conviction petition, as amended, and dismissed the case. From such order the appellant now brings this appeal.

In denying appellant's post-conviction petition and dismissing the case, the trial court below found — and stated to the effect at the post-conviction evidentiary hearing — that the record of the conviction proceeding on June 6, 1972, revealed that the defendant had knowingly and voluntarily entered his plea of guilty. We disagree.

In reviewing a determination made by a trial judge in a post-conviction hearing under section 122-6 of the Code, we will not disturb such determination unless we find it to be manifestly erroneous. (People v. Brown, 12 Ill. App.3d 535, 299 N.E.2d 37; People v. Rendleman, 11 Ill. App.3d 214, 296 N.E.2d 610). After a review of the report of proceedings on June 6, 1972, together with the transcript of the post-conviction evidentiary hearing, we find the trial court's determination in this case to be erroneous.

We note at the outset that the gist of appellant's post-conviction petition, as amended, focuses upon whether appellant knowingly and voluntarily pled guilty to the charge of rape on June 6, 1972. While not raising the question of whether there was substantial compliance with Supreme Court Rules 401 and 402, the appellant did allege:

(1) that the trial court had wholly failed to inquire into the factual basis of the alleged offense prior to accepting his guilty plea;

(2) that appellant was denied the right to trial by jury;

(3) that appellant was denied the right to confront his accusers;

(4) that appellant was denied the right and privilege against compulsory self-incrimination; and

(5) that appellant was denied effective assistance of counsel at the conviction proceedings on June 6, 1972.

Attached to appellant's post-conviction petition was a copy of the report of proceedings wherein the plea of guilty was entered and accepted on June 6, 1972.

It is a constitutional requirement that the record show that defendant entered a plea of guilty knowingly and voluntarily. (Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) However, there is no constitutional requirement that the record show that the defendant be admonished as to every right which is waived by a guilty plea. People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318; ...


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