APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 2, 1975.
The defendant, Robert L. Rudnicki, was indicted on two counts of armed robbery, one count of rape, and two counts of deviate sexual assault. After a plea conference, requested by the defense, the defense counsel informed the court that his client wished to withdraw his previous plea of not guilty and enter a plea of guilty. After detailed admonishments, the plea was accepted by the trial court judge. The defendant was sentenced to a term of 5 to 15 years on the armed robbery and rape counts and to a term of 5 to 10 years on the deviate sexual assault counts, the sentences to run concurrently.
On appeal the defendant contends that (1) since the trial court judge only advised him that he could be sentenced on the armed robbery and rape counts to an "indeterminate" number of years as a maximum sentence, he was not adequately informed of the maximum sentence as required by Supreme Court Rule 402(a)(2) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2)); (2) the remark by the trial court judge in advance of the plea conference that the defendant could not use an unsatisfactory result in the plea conference as a basis for a motion to substitute judges was highly improper and in effect forced him to plead guilty in a coercive atmosphere; and (3) there was no determination that a factual basis existed for the plea of guilty to Count I, alleging armed robbery of Julie Giannini, and therefore subsection (c) of Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402(c)) was violated. In sum, the defendant seeks to vacate the judgment on all five counts of the indictment on the claim that the record does not show that his guilty plea was voluntarily entered, or in the alternative asks that his plea to Counts I, II and III be vacated since he was inadequately advised of the maximum sentence prescribed by law for those offenses and further that his plea to Count I be vacated since no factual basis was found to exist with respect to that count.
We first discuss whether the court's admonishment regarding the possible maximum sentences for armed robbery and rape was sufficient under Rule 402, the pertinent portion of which provides:
"In hearings on pleas of guilty, there must be substantial compliance with following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(2) the minimum and maximum sentence prescribed by law * * *." Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2).
The record indicates that, subsequent to the plea conference in which the trial judge, the assistant State's attorney, and counsel for the defendant all participated, the latter informed the court that he had consulted with his client and advised him of his rights, particularly the right to a trial by jury, and also of the nature of the conference and of the conclusions reached. He stated that after their discussion, the defendant decided to withdraw his plea of not guilty and to plead guilty instead. The court then inquired of the defendant whether he heard his attorney request that he be permitted to plead guilty, and the defendant replied in the affirmative. The court then admonished him that by doing so he automatically waived his right to a jury trial, and he said he understood. The court began to read to him the separate counts of the indictment. In Count I he was charged with taking an amount of money from Julie L. Giannini while armed with a dangerous weapon. In Count II he was charged with taking an amount of money from John L. Giannini while armed. The court then stated:
"Under those two charges in the indictment the Court could sentence you to any indeterminate number of years, a minimum of two years, and an indeterminate number of years as a maximum number."
The court asked whether he understood the nature of those charges and "the possible penalty the Court could sentence [him] to." He responded in the affirmative. Count III was then recited, charging the defendant with rape in that he had sexual intercourse with Julie L. Giannini by force and against her will, and the defendant indicated he understood the nature of that charge. The record then shows the following:
"THE COURT: And you understand under the statute the Court could sentence you to any indeterminate number of years, with a minimum of four years, you understand the possible penalty under the statute?
The other counts of the indictment and the possible penalties upon conviction were then also ...