APPEAL from the Circuit Court of Stephenson County; the Hon.
ROBERT D. LAW, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant pled guilty to the charge of unlawful possession of marijuana (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 704(d)) and was granted 2-years' probation with the first 6 months to be served in jail under a work release program. Shortly thereafter he moved to withdraw his guilty plea; this was denied. He appeals, claiming that the trial court abused its discretion in denying his motion and that he was denied effective assistance of counsel at his guilty-plea hearing.
On December 29, 1972, defendant, represented by appointed counsel, appeared in open court and, under the terms of a negotiated agreement, pled guilty to the above charge. Prior to accepting defendant's plea, and pursuant to Supreme Court Rule 402, the trial court informed the defendant, and determined that he understood, the nature of the charge, the possible sentences, his right to plead guilty or not guilty, and that by pleading guilty he waived his rights to trial by jury, confrontation by adverse witnesses and self-incrimination.
Thereafter, the trial court caused the State's attorney to relate the terms of the plea agreement, confirmed the agreement by questioning the defendant, and further determined that the plea was not the result of any force, threats or any promises other than the plea agreement itself. Defendant was then given the opportunity to withdraw or reaffirm his plea of guilty; he reaffirmed it.
The trial court proceeded to determine if there was a factual basis for the plea, first asking defendant to explain what had taken place. Defendant stated that, on the day of his arrest, he had allowed two police officers to search his apartment. Asserting that he really did not know what they were looking for, defendant said, "I had an idea. I thought there might be something in the house, but I wasn't sure because of a friend I had there one time." Thereafter, the following dialogue took place between the court and the defendant:
"Q. Did they find anything in your possession in that house?
A. They found a bag of seed and some stems.
Q. And the bag of seeds and some stems, are they the object of what is called in the indictment, `Cannabis?'
Q. Now you understand you are pleading guilty to this charge, and the charge says you are the one who possessed it, is that true?
A. It was in my house so it has to be in my possession."
Asked by the court if he wished to make a report, the State's attorney related that the defendant lived in a rented apartment; that the owner's daughter had reported considerable activity between the defendant's apartment and an outbuilding and suspected that the defendant was in possession of marijuana; that on the basis of this information, surveillance was initiated which disclosed the defendant and others entering the outbuilding, the other persons leaving with brown paper bags; that these activities led to a search of the outbuilding with consent of the owner; that the search disclosed 345 grams of marijuana and after this discovery, the officers went to the defendant's apartment, obtained his consent to search, and discovered another 79 grams of marijuana and a cake pan lid used for drying marijuana, along with the residue of marijuana, in the oven. It was further reported that at the time of his arrest, the defendant said he used the leaves for making tea and, during an interview, defendant's wife said that defendant and one Mike "Swede" Olson were involved in processing the marijuana leaves. The State asserted it had witnesses ...