APPEAL from the Circuit Court of Jackson County; the Hon.
EVERETT PROSSER, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT: On February 16, 1972, appellant Wise was indicted by the grand jury of Jackson County on two counts of armed robbery, two counts of aggravated battery and one count of aggravated kidnapping. Pursuant to plea negotiations, on February 28, 1972, the appellant pled guilty to aggravated kidnapping (count 5 of the indictment), and the remaining four counts were dismissed. Appellant was sentenced to a term of imprisonment of not less than 15 nor more than 25 years to be served concurrently with previous sentences imposed upon him by the Circuit Court of Williamson County and the Circuit Court of Union County. The appellant did not file a direct appeal from this conviction.
On October 9, 1973, appellant filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1963, ch. 38, par. 122-1 et seq., as amended to date), seeking a new trial on the ground that his constitutional rights were violated in the proceeding which resulted in his conviction. In particular, appellant alleged in his petition:
(a) that the trial court had permitted his attorney to enter a plea of guilty on his behalf without having personally requested him to enter a plea of guilty, in violation of Supreme Court Rule 402;
(b) that the only indication on the record that he had entered a plea of guilty was reflected by his informing the trial court that he desired that the trial court accept a written instrument as his "written plea" to the charges of count 5 of the indictment;
(c) that prior to accepting his plea, in violation of Rule 402(a) (2), the trial court had failed to advise him that consecutive sentences could be imposed since he had previously been convicted of rape in Williamson County on February 25, 1972;
(d) that prior to accepting his plea of guilty, in violation of Rule 402(a) (4), the trial court had failed to advise him that if he entered a plea of guilty there would be no trial; and
(e) that prior to accepting his plea of guilty, the trial court had failed to admonish him adequately of the penalty which could be imposed; that the trial court merely had advised him that the offense carried "an indeterminate term of a minimum of not less than two years imprisonment in the Illinois State Penitentiary, which means that any number of years can be assessed by the Court."
It should be noted that the record and transcript of the proceedings in support of these allegations were attached to the appellants' post-conviction petition in compliance with section 122-2 (Ill. Rev. Stat. 1963, ch. 38, par. 122-2, as amended).
On October 31, 1973, the State filed its motion to dismiss appellant's post-conviction petition on the ground that the allegations contained in such petition and the record itself revealed that appellant's post-conviction petition was non-meritorious. The State took the position that the record of the proceedings of February 28, 1972, revealed that appellant had knowingly and voluntarily entered a plea of guilty to the offense charged in count 5 of the indictment. The trial court below sustained the State's position and ordered that the appellant's post-conviction petition be dismissed and that appellant be denied a hearing under the Post-Conviction Hearing Act. From such an order, appellant now brings this appeal.
• 1 We disagree with the trial court's finding that appellant's post-conviction petition is non-meritorious. Our concern on review is whether the appellant has alleged sufficient facts, borne out by the record and transcript of the conviction hearing, to require an evidentiary hearing on appellant's post-conviction petition in accordance with section 122-6. To determine this, we must look to the allegations contained in the post-conviction petition, construed liberally in favor of the appellant, and as set forth in light of the record and transcript of the conviction proceeding now before us. The function of pleadings under the Post-Conviction Hearing Act is to determine whether the petitioner is entitled to a hearing; it is not the intention or purpose of the Post-Conviction Hearing Act that constitutional claims be adjudicated on the pleadings. People v. Clements, 38 Ill.2d 213.
Section 122-1 provides that a person imprisoned in the penitentiary may institute a proceeding under the Post-Conviction Hearing Act by asserting "* * * that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both * * *." In dismissing appellant's petition, the trial court held that the appellant's assertions in light of the record and transcript of the conviction proceedings did not reveal a "substantial denial" of appellant's constitutional rights. We disagree.
• 2 Appellant's allegations in his petition and the record and transcript raise the question of whether appellant "intelligently and voluntarily" entered the plea of guilty to count 5 of the Indictment. Even the State acknowledged this question by asserting in paragraph two of its motion to dismiss that "the record reveals that the defendant was knowledgeable in the ways of court proceedings, was represented by counsel, and knowingly and voluntarily entered the plea on which his conviction stands * * *." Clearly, it is a federal constitutional requirement that the record show that the defendant enters a plea of guilty intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.
The thrust of appellant's assertions in his post-conviction petition focuses on the failure of the trial court, prior to accepting the plea, to admonish him with regard to the possibility of receiving consecutive sentences, and with regard to the possibility of the minimum and maximum sentence prescribed by law (violation of Supreme Court Rule 402(a) (2)), and the failure of the trial court to admonish him regarding the fact that there would be no trial if he entered a plea of guilty (violation of Rule 402(a) (4)). While the requirements of Rule 402 are not constitutionally mandated (People v. Nardi, 48 Ill.2d 111, 268 N.E.2d 389), nevertheless, the fundamental purpose behind Rule 402 is to preserve a record which reflects an intelligent and voluntary plea as required by due process of law. People v. Reeves, 50 Ill.2d 28.
• 3 Regardless of how artfully or artlessly the post-conviction petition is drawn, once a petitioner raises the assertion in his post-conviction petition that the trial court failed to comply with Rule 402, the record and transcript of the conviction proceedings must be reviewed carefully to determine the extent of compliance with Rule 402. This the trial court below failed to do. A review of the record and transcript in ...