APPEAL from the Circuit Court of Stephenson County; the Hon.
WESLEY A. EBERLE, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant pleaded guilty to a charge of theft of property worth over $150 and was sentenced to a term of not less than 2 nor more than 6 years in the penitentiary. In this appeal, the defendant contends he was not adequately admonished by the trial court as to the nature of the charge before his plea of guilty was accepted, as required by Supreme Court Rule 402(a)(1).
The facts developed by the testimony at the hearing on the guilty plea established that the defendant and several companions were riding around in an old truck owned by the defendant, and, while doing so, they stopped at a farmhouse for the purpose, so the defendant said, of borrowing some tools to repair his ailing truck. The defendant and his companions had been drinking beer while driving around.
The defendant and his companions knocked at the door of the farmhouse but received no answer. Defendant's companions admitted that they then proceeded to break the door open and to steal several articles of personal property from the house. The defendant never specifically admitted the breaking and entering, but the State was prepared to establish by a fingerprint expert that defendant's fingerprints were found on the bedroom dresser upstairs.
While the defendant and his companions were in the house, a neighbor noticed the truck and called the owner of the house who was visiting at a neighboring farm, asking her if she had given permission to anyone to come upon the premises. Upon receiving a negative answer the neighbor drove his tractor into the driveway and blocked the defendant's egress. Shortly afterward the police arrived, and after the defendant protested his innocence and gave permission for the police to search the truck, the police made a search and found several articles in the truck which the owner identified as being property which belonged to her which had been removed from the house. The defendant contends he did not steal anything from the house, but several of his companions say he did. The defendant claims he does not remember stealing anything from the house.
At his arraignment, the defendant, after proper admonishment as to the nature of the charge, pleaded not guilty. Some 2 months later, after negotiations between his attorney and the assistant State's attorney, the defendant offered to plead guilty to the charge of theft only but not to the charge of burglary. At the hearing on the guilty plea the trial court carefully explained to the defendant his right to a trial by jury, his right to remain silent, his right against self-incrimination, and the maximum and minimum sentences for theft of property over $150, and also inquired whether any threats or promises had been made to induce the defendant's guilty plea. Before accepting the plea of guilty to the theft charge the judge then asked if the State's attorney had any evidence against the defendant, whereupon the State's attorney detailed the evidence indicating both burglary and theft had occurred.
The contention that the trial court did not make sure that the defendant understood the nature of the charge and knowingly pleaded guilty to such charge appears to be based on a part of the colloquy between the court and the defendant, as shown below, which occurred immediately before the State's attorney described in detail what had occurred at the farmhouse:
"[By the Court] Q. Do you enter this plea of guilty to this charge because you did, in fact, do the things it is alleged that you did in Count II of this indictment?
[Defendant] A. No, your Honor.
[By Mr. Mahoney, privately employed Defense Counsel] May I address the Court on that?
[By Mr. Mahoney] Your Honor, Mr. Smeathers has at this time no recollection of doing the acts of which he is charged in Count II. He has been after I obtained discovery of the State's Attorney's evidence and have been confronted with the evidence, and I have gone over it with him, and he and I agree that the evidence is, in fact, insurmountable, and based upon our belief that the evidence has no defense to it, we are entering a guilty plea. That's Mr. Smeathers' understanding at this time, I believe.
[By the Court] Q. Is this correct, Mr. ...