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People v. Robinson

MAY 6, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LLOYD ROBINSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Lloyd Robinson (hereafter defendant) was charged by indictment with the crimes of rape, contributing to the sexual delinquency of a child, indecent liberties with a child, and armed robbery (Ill. Rev. Stat. 1971, ch. 38, pars. 11-1, 11-5, 11-4, 18-2). On 19 March 1973, defendant entered a negotiated plea of guilty to the crime of rape only and was sentenced to a term of 4 years to 4 years and 1 day. Defendant appeals, contending that the trial judge in accepting his plea of guilty failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), and that this court should dismiss the other counts of the indictment to which the defendant did not enter a plea of guilty.

On 19 March 1973, when defendant's case was called, the trial judge stated that it was his understanding that there was to be a negotiated plea of guilty. In response to the trial judge's statement to defendant that defendant was charged with the offense of rape and to the question of the trial judge as to whether he understood that fact, defendant stated that he understood that the indictment charged him with the crime of rape. *fn1 The trial judge informed defendant that by entering a plea of guilty he would waive his constitutional right to have a jury of 12 people selected who would hear evidence and determine his guilt or to have a bench trial. Defendant was informed that in any type of a trial he would be presumed innocent, have the right to confront the witnesses against him, and have a right not to incriminate himself. Defendant was advised as to the possible statutory penalty for the crime of rape. Defendant stated that he understood that there had been a pretrial conference and that upon a plea of guilty to the charge of rape he would be sentenced to a term of 4 years to 4 years and 1 day. Defendant was again advised that he was charged with the crime of rape and he stated that he wished to enter a plea of guilty to that charge. The trial judge stated that he was satisfied from a reading of the State's grand jury minutes and the conversation which occurred at the pretrial conference that there was a factual basis for the plea of guilty. Defendant's plea of guilty was then accepted by the trial court.

Defendant's first contention on appeal is that the trial judge in accepting his plea of guilty failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). Specifically, defendant contends that there was no substantial compliance with Supreme Court Rule 402 (a)(1) or with Supreme Court Rule 402(c).

Before dealing with each of these specific contentions, we note that the decision of our supreme court in People v. Krantz (1974), 58 Ill.2d 187, 193, 317 N.E.2d 559, demonstrates that under some circumstances there may be an interrelationship between Rule 402(a)(1) and Rule 402(c) in that certain methods of complying with Rule 402(c) have the added side effect of aiding in the compliance with Rule(a)(1). In Krantz, the supreme court first noted that only substantial compliance with Rule 402 (a)(1) is necessary, *fn2 and then held that the entire record may be considered in determining whether there was such substantial compliance. In Krantz, the record revealed that defendant Krantz was first informed of the nature of the charge by its name only (forgery), but then later personally acquiesced to the State's attorney's open-court recitation of the factual basis of the plea, *fn3 and stated in open court his reasons for having committed the offense. This combination of factors was held to constitute substantial compliance with Supreme Court Rule 402(a)(1).

In the instant case, however, the method used at the change of plea hearing to effect substantial compliance with Rule 402(c) was not such as to produce any side effect of aiding in the substantial compliance with Rule 402(a)(1), and Krantz is not dispositive of the instant case. Nor have we found or had cited to us any supreme court case deciding the precise issue raised by defendant in the instant case under Rule 402(a) (1).

That issue is: Is there substantial compliance with the requirement that the trial court, before accepting a plea of guilty, personally inform defendant, in open court, of the nature of the offense with which he has been charged, when the trial court merely names the said offense? The indictment was not read to defendant; the factual basis for the plea was not read into the record by the prosecutor in the presence of defendant without objection, nor was the factual basis for the plea stipulated into the record by the prosecutor and defense counsel in the presence of defendant without objection (People v. Hardaman (1974), 59 Ill.2d 155, 157, 319 N.E.2d 800); nor did defendant relate to the court his own understanding of the nature of the offense or a recital of his own conduct and intent. There was simply (on two occasions) a statement by the trial judge to defendant in open court that defendant was charged with the offense of rape and a response by defendant that he understood that.

The only authority in point on this narrow issue which we have been able to find consists of pre-Krantz appellate court decisions, which are in conflict.

One line of appellate court decisions (mostly from the First District but with several from the Second and Third Districts) holds that a defendant is sufficiently informed of the nature of the offense with which he is charged by merely being personally informed of the offense by the trial judge in open court by its name. This is said to be sufficient to advise the defendant of the "essence, general character, kind or sort" of offense which he is accused of having committed. People v. Carter (2d Dist. 1969), 107 Ill. App.2d 474, 246 N.E.2d 320; *fn4 cert. denied, 397 U.S. 1008, 25 L.Ed.2d 421, 90 S.Ct. 1236; People v. Palmer (1st Dist. 1971), 1 Ill. App.3d 492, 274 N.E.2d 910; People v. Wright (1st Dist. 1971), 2 Ill. App.3d 304, 275 N.E.2d 735; *fn5 People v. Tennyson (1st Dist. 1972), 9 Ill. App.3d 329, 292 N.E.2d 223; People v. Bell (3rd Dist. 1974), 17 Ill. App.3d 1077, 309 N.E.2d 238.

A contrary line of appellate court decisions (mostly from the Fifth District but with several from the Fourth District) holds that Rule 402(a) (1) requires more than merely naming the offense. These cases generically require that the defendant be informed of the essential elements of the named offense and of his acts and states of mind which are alleged to constitute those essential elements of his specific offense. This requirement may be fulfilled by reading the indictment or information to the defendant. Some cases hold that it is fulfilled where the defendant recites to the court his own understanding of the nature of the offense with which he is charged or his own account of his conduct and intent. People v. Krouse (5th Dist. 1972), 7 Ill. App.3d 754, 288 N.E.2d 543; People v. Hudson (5th Dist. 1972), 7 Ill. App.3d 800, 288 N.E.2d 533; People v. Ingeneri (5th Dist. 1972), 7 Ill. App.3d 809, 288 N.E.2d 550; People v. Bauswell (4th Dist. 1973), 12 Ill. App.3d 35, 297 N.E.2d 389; People v. Horne (5th Dist. 1974), 21 Ill. App.3d 10, 314 N.E.2d 633 (rape).

From this survey of Illinois decisions, *fn6 we conclude that there is no supreme court decision squarely in point on the narrow issue presented in the instant case. We also conclude that the only authority for the proposition that merely naming the charge is substantial compliance with Rule 402(a)(1) consists of the pre-Krantz cases of the First, Second, and Third Districts. *fn7

Since Krantz does not hold that anything less than the combination of factors there involved would fail to constitute substantial compliance with Supreme Court Rule 402(a)(1), and since the pre-Krantz holdings of the First, Second, and Third Districts are in point, *fn8 we hold in the instant case, that Supreme Court Rule 402(a)(1) was substantially complied with when the trial judge twice personally informed defendant in open court that he was charged with the offense of rape and defendant replied that he understood that the indictment charged him with the offense of rape.

Moreover, we note that, in People v. Dudley (1974), 58 Ill.2d 57, 316 N.E.2d 773, the supreme court held that error had been committed by the trial court in that the trial court had failed to comply at all with two requirements of Supreme Court Rule 402(b), where the plea of guilty was the result of a plea agreement (namely, the agreement shall be stated in open court, and the court shall confirm the terms of the agreement by questioning defendant personally in open court). The supreme court, however, then held:

"It does not follow, however, that the failure to comply with these provisions of Rule 402(b) must result in a reversal of the judgment of conviction. There is no claim that the plea of the defendant, who was represented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant. * * * What we observed in People v. Morehead, 45 Ill.2d 326, 332, is appropriate here: `It is not the policy of this court to reverse a judgment of ...


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