APPEAL from the Circuit Court of Crawford County; the Hon.
PHILIP B. BENEFIEL, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
On June 19, 1970, appellant, Donald Lee Mitchell, was charged by a criminal complaint with the offense of burglary, and on the same day, appellant pled guilty to such offense before the Circuit Court of Crawford County. Subsequently, appellant's petition for post-conviction relief (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.) was granted, and a hearing on the post-conviction petition was held on January 11, 1973. After the hearing was concluded, the trial court denied appellant post-conviction relief. It is from such denial that the appellant now brings this appeal. • 1, 2 Appellant asserts that on June 19, 1970, the trial court failed to admonish him of the nature of the charge, as required by Illinois Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402) and its predecessor Rule 401 (Ill. Rev. Stat. 1969, ch. 110A, par. 401), and such failure itself constituted a substantial denial of appellant's constitutional rights. We disagree, for as we have often stated, the individual requirements of former Rule 401, or the present Rule 402 are not constitutionally mandated. Indeed, no statute or rule of court may of itself establish or confer a constitutional right. People v. Orndoff, 39 Ill.2d 96, 233 N.E.2d 378 (1968).
• 3 The purpose behind former Supreme Court Rule 401 and subsequently Rule 402 was to provide a record which would reflect that the plea of guilty was entered intelligently and voluntarily. Clearly, it is a Federal constitutional requirement that the record show that a 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 (1969).) Accordingly, the violation of former Rule 401, or subsequent Rule 402, may or may not be a substantial denial of a constitutional right, depending upon whether the violation affected the intelligent and voluntary nature of the plea.
In McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166 (1969), the United States Supreme Court recognized that a guilty plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. The logic of McCarthy was recognized by the Illinois Supreme Court and applied to Rule 401 in People v. Mims, 42 Ill.2d 441, 248 N.E.2d 92 (1969). Thus the constitutional issue before us is not whether there was a per se violation of former Rule 401 or the subsequent Rule 402, but whether the appellant entered his plea of guilty on June 19, 1970, in an intelligent and voluntary manner. To determine this question, we must look carefully at the record of the proceeding at which appellant entered his guilty plea.
Prior to accepting the appellant's plea, the trial court asked a series of questions which touched upon the nature of the charge of burglary:
"Q. You are charged with Burglary of the Big John store in Oblong. Did you actually enter the confines of the building?
A. Inside the back there.
Q. Did you break the lock off?
A. Yes Gene Wilson was one opened the door
Q. Did you take anything from the store at that time?
Q. Did you go in there with the intention of taking anything?
Appellant was charged by the complaint ...