APPEAL from the Circuit Court of Franklin County; the Hon.
WILLIAM G. EOVALDI, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Kenneth E. Edwards, was charged in a two-count information with burglary and theft over $150. Pursuant to plea negotiations he pled guilty to the burglary charge and received the recommended sentence of 2 to 6 years.
On this appeal, defendant raises three issues: (1) whether the guilty plea was not knowing and voluntary because induced by an illusory bargain; (2) whether the trial court should have inquired into defendant's drug abuse history before sentencing the defendant to a term of imprisonment; and (3) whether defendant made a valid waiver of his right to a presentence hearing.
The facts pertinent to discussion of these issues are as follows. On July 15, 1974, defendant made an initial appearance before the trial court. At the beginning of the proceeding the court questioned defendant concerning routine background information, such as his residence, age, education, and employment. During this questioning the court asked the defendant whether he had ever had any treatment for a mental problem. Defendant responded, "No sir, outside of drug treatment." The court then proceeded to explain the nature of the charges and the possible penalties and to admonish the defendant of his various rights.
On July 24, 1974, defendant appeared before the court for arraignment. After defendant had been admonished of and had waived his right to counsel the State's attorney explained that a plea agreement had been reached. The terms of this agreement were that the defendant would plead guilty to the burglary charge and that in return, the theft charge would be dismissed, a sentence of 2 to 6 years would be recommended, and a letter would be written by the State's attorney to the parole board recommending parole at the earliest possible date.
Also during the arraignment the following colloquy occurred:
"Court: And if you do enter a plea of guilty, you have a right to a presentence hearing at which evidence will be presented by both the People and by you to help the court in making up its mind on what the penalty should be. You understand that?
Court: And you desire at this time to waive trial by jury and waive trial by the Court and enter a plea of guilty. Is that right?
Court: And you are then desirous to waiving hearing on the pre-sentence hearing. Is that right?
The court then proceeded to admonish the defendant, determined the existence of a factual basis for the plea, determined the plea to be voluntary, and finally accepted the plea and imposed sentence.
Defendant's first contention on this appeal is that his plea was not knowingly and intelligently made because it was induced by an "illusory" bargain. Defendant's rationale for this contention is that by offering to dismiss the theft charge, which was based on the same act and property as was the burglary charge, the State's attorney offered defendant nothing more than the law required. And, since the defendant was not advised that he could not be convicted and sentenced on both theft and burglary, ...