APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a guilty plea which the defendant entered to a burglary indictment. The defendant contends that the trial court erred by refusing to allow him to withdraw his plea of guilty.
On October 15, 1973, the defendant's attorney stated to the court that the defendant had made a confession and that he recognized that he had very little defense and would like to enter a plea of guilty. Defendant's attorney advised the court, "I have indicated to him [defendant] that in all probability, even though there was no recommendation, but if the defendant was telling the truth about his record, that there is an excellent chance that he would make probation." The defendant's attorney also stated that there had been no plea negotiations and then made oral application for probation.
The court then asked the defendant if he had sufficient time to speak with his attorney and if he understood the crime with which he was charged. The defendant stated that he had sufficient time to speak with his attorney and knew he was charged with burglary. The defendant was informed of the maximum and minimum sentences. The court then said:
"Q. Do you understand that it is the court's duty to impose sentence? It is not what Mr. Cook [defendant's attorney] or what Mr. Aguirre [State's attorney] might think. It's what I think and what I do that counts, do you understand that?
The defendant was informed of his right to a trial, of his right to a trial by jury or a judge, and that a plea of guilty waived this right. He was informed of his right to a speedy and public trial, his right to confrontation of witnesses, his right to call witnesses, his presumption of innocence and his privilege against self-incrimination, and that by pleading guilty he waived all of these rights. The defendant stated that he understood these rights. He was then asked by the court whether any threats had been made to him or his family to induce the plea, and if any promises or rewards had been made to induce the plea. The defendant stated that no threats or promises had been made and that the plea was the result of his own decision.
The factual basis for the crime was established and the defendant stated that the facts as adduced by the State's attorney were true. The defendant's guilty plea was accepted and the matter was referred to the probation department for report. Later, after seeing the presentence report which did not recommend probation, the defendant appeared before the same trial judge. He was then represented by a different attorney who advised the court that there was some confusion as to whether there had been a plea negotiation. On the basis of the discussion the new attorney had with the defendant, and on the basis of confusion over the plea negotiations, the new attorney stated that the defendant would like to move to withdraw his plea of guilty.
The defendant then took the stand and in response to questions by his attorney, stated that he had discussed the consequences of his change of plea with his first attorney. He said that his first attorney merely told him to plead guilty and he would get probation. The defendant also stated that the first attorney had made no indication to him that any arrangements with anyone or any agreement had been made about probation. The following exchange also took place:
"Q. What precisely did Mr. * * * tell you other than what you already stated?
A. He just told me if I pleaded guilty that most likely I would get probation on the case." (Emphasis supplied.)
The defendant, in response to questioning by the State's attorney stated that he was under the impression that he would get probation when he pled guilty. However, when asked what his first attorney promised him, the defendant stated several times that he said "I would get probation." The defendant also stated that he told his first attorney that he had been on probation before and informed the first attorney of everything concerning his prior record.
The trial court then questioned the defendant. The court's questioning showed that the defendant remembered entering his plea of guilty. He also remembered what the first attorney had said concerning his chances as to probation. The questioning revealed that the defendant understood the court's admonishment and that the defendant knew that sentence was to be imposed by the judge. The questioning also revealed that the plea was not induced by any force, threat or promises. Testimony regarding the defendant's prior record followed.
The defendant's attorney at the presentence hearing also testified. He testified that when he took the case the defendant's first attorney advised him that the disposition of the case would be probation. He stated that he did not know what the defendant had been told by his first attorney, but relying on what was told by the first attorney and some of the defendant's statements with regard to his prior record, the defendant may not have understood the ...