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People v. Allen

FEBRUARY 10, 1975.

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

v.

BRADLEY EDWARD ALLEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendant was charged with the offense of burglary. He waived indictment, entered a plea of guilty and was sentenced to not less than 1 year nor more than 3 years in the penitentiary. In this appeal the defendant contends his conviction should be reversed because the trial court failed to properly admonish him in accordance with Supreme Court Rule 401(b) before accepting the defendant's waiver of indictment.

Supreme Court Rule 401(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 401 (b)) provides as follows:

"(b) Waiver of Indictment. Any waiver of indictment shall be in open court. The court shall not permit a waiver of indictment by a person accused of a crime punishable by imprisonment in the penitentiary unless he is represented by counsel or has waived counsel as provided in paragraph (a) of this rule and unless the court, by addressing the defendant personally in open court, has informed him of and determined that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and

(3) that he can be prosecuted for the offense only after indictment by a grand jury unless he waives indictment.

Prosecution may proceed by information or complaint after waiver of indictment by the defendant if the State expressly concurs in the waiver in open court."

• 1 It should be noted that the language of Rule 401 quoted above, while clear and definite as to the judge's obligation in admonishing the defendant, does not prescribe any particular language, nor does it require that the defendant himself use any particular form of acknowledgment of his understanding of the admonishment. All that is required is that the judge inform the defendant personally in open court of his rights and determine that the defendant understands such rights well enough to make a knowing and intelligent waiver of them. As long as the judge brings the question to the attention of the defendant in open court so that it becomes part of the common-law record and obtains from the defendant a response indicating to the judge's satisfaction a knowing intention to relinquish such right, there is substantial compliance with the rule, People v. Loy, 52 Ill.2d 126; People v. Page, 38 Ill.2d 611, 615-616.

• 2 Prior to the waiver of indictment the defendant had made a written confession, which was on file with the police, describing the burglary in detail. No motion was made to suppress this confession, and it may therefore be deemed to have been voluntary. In the light of this prior confession it is clear that the following colloquy, which took place in open court, evidenced a knowing and voluntary waiver by the defendant of his right to indictment by the grand jury:

"THE COURT: Bradley Edward Allen, were you in the courtroom when I was explaining to the Behrendts what a waiver of the Grand Jury is?

THE DEFENDANT: Yes, your Honor.

Q. Could you ...


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