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People v. Thurston

JANUARY 24, 1975.

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

v.

JAMES THURSTON, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant withdrew a plea of not guilty to murder. He then pled guilty to involuntary manslaughter and was sentenced to 3 to 9 years. On appeal, he contends he was not properly admonished as required by Supreme Court Rule 402. (Ill. Rev. Stat. 1973, ch. 110A, par. 402.) Specifically, he argues the trial court failed (1) to determine that his plea was voluntary and not the result of force, threats or promises apart from the plea agreement; (2) to inform him of the nature of the charge and determine that he understood it; and (3) to state the terms of the plea agreement in open court and confirm them by personally questioning him in open court.

OPINION

Defendant initially argues the trial court merely asked him if he wished to plead guilty and made no inquiry concerning voluntariness, force, threats or promises and thus did not substantially comply with the dictates of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, or with the requirements of Illinois Supreme Court Rule 402.

In Boykin it was held that the record must disclose a guilty plea was voluntarily and understandingly made. In implementation thereof, Rule 402 was adopted, which in pertinent part provides:

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

(b) Determining Whether the Plea Is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea." 50 Ill.2d R. 402.

• 1 The purpose of Rule 402 is to safeguard the rights of an accused by assuring that a guilty plea is intelligently, understandingly and voluntarily made. (People v. Campbell, 13 Ill. App.3d 237, 300 N.E.2d 568.) However, substantial compliance will satisfy the purposes of the Rule. People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30.

Here, following a conference with defendant's attorney, the prosecutor informed the court that the State wished to proceed on the charge of involuntary manslaughter, and the following colloquy then occurred:

"The Court: Very well. Mr. Thurston, your counsel advises me you wish to change your plea of not guilty and plead guilty to the charge of involuntary manslaughter, is that correct?

Defendant: Yes.

The Court: When you plead guilty you automatically waive your right to a jury trial or a bench trial or your right to be confronted by witnesses, do you understand that?

Defendant: Yes.

The Court: Before accepting your plea of guilty it is my duty to advise you on your plea of guilty to involuntary manslaughter, both under the new unified Code and under the statute in existence on the date of this occurrence, sentence could not be less than one nor ...


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