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People v. Ballay

JULY 9, 1975.

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

v.

CARL J. BALLAY, A/K/A EDWARD SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. RYAN, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered by the Circuit Court of Cook County denying defendant's post-conviction petition.

The issues presented on appeal are (1) whether the trial court properly dismissed defendant's post-conviction petition without an evidentiary hearing; and (2) whether the trial court erred in sentencing defendant to concurrent sentences of 9 to 15 years on all seven indictments.

The defendant, Carl J. Ballay, a/k/a Edward Smith, was indicted for two counts of rape, one count of attempt rape, three counts of armed robbery, three counts of aggravated assault, and one count of theft. On the day of his scheduled trial, defendant requested a continuance in order to obtain a new attorney since he felt his present attorney was not doing what defendant thought could be done. The trial court denied defendant's request and rejected defendant's claim that his attorney was incompetent. A recess was then taken, during which the defendant conferred with members of his family and his attorney.

Upon resumption of the proceedings, defendant's attorney informed the court that defendant wished to change his plea to guilty. Thereupon, the trial judge questioned defendant as to his plea. The defendant reaffirmed his desire to plead guilty. The court inquired if defendant understood a plea of guilty waived his right to trial by jury. Defendant answered he understood. The trial judge then admonished the defendant as to the possible penal consequences of his guilty plea. The defendant indicated he understood, and added he was pleading guilty "[b]ecause I am guilty." The court then listed all the indictments, naming the major charge under each one. After defendant informed the court he understood all this, the trial judge accepted defendant's guilty pleas and found defendant guilty on all seven indictments. The court sentenced defendant to a term of 9 to 15 years on each of the seven indictments, the sentences to run concurrently.

Defendant did not appeal from the judgment of the trial court, but filed a post-conviction petition on April 27, 1972, and a supplemental petition on October 3, 1973. Defendant's petition was dismissed by the trial court on November 21, 1973, without an evidentiary hearing. From the dismissal of his post-conviction petition, defendant now appeals.

The defendant first contends the trial court erred in dismissing the post-conviction petition without an evidentiary hearing. Defendant maintains his constitutional right to due process of law had been violated in that: (1) the trial court failed to state the nature of the offenses with which defendant was charged; (2) the court failed to admonish defendant of the penalties prescribed by law for the offenses with which he was charged; and (3) the trial court failed to determine whether defendant's pleas were entered voluntarily and knowingly.

• 1 The rule of procedure in effect at the time defendant's pleas of guilty were accepted by the trial court was Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, § 401(b)), which provided, in pertinent part:

"The court shall not permit a plea of guilty * * * unless the court finds from proceedings had in open court * * * that he [the accused] understands the nature of the charge against him, and the consequences thereof if found guilty * * *."

The purpose of Supreme Court Rule 401 was to establish a procedure which would ensure the knowing and voluntary entry of guilty pleas. (People v. Rivers (1961), 22 Ill.2d 590.) It was not necessary, under Supreme Court Rule 401, that the trial court state all of the acts which constituted an offense in order for the defendant to understand the nature of the charge against him. In the present case, the trial court, prior to accepting defendant's pleas of guilty, informed the defendant of the names of all the offenses with which he was charged, and determined from defendant that he understood those charges. We believe that by naming the charges against the defendant, the trial court effectively admonished defendant of the nature of the charges in compliance with Supreme Court Rule 401. The appellate court, in People v. New (1975), 25 Ill. App.3d 605, has recently stated that Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, § 402), which replaced the more lenient standards of Supreme Court Rule 401 with even more stringent requirements, does not require a trial judge to recite all the facts which constitute an offense. The court held that merely stating the name of the charge is sufficient to apprise the defendant of the nature of the offense charged.

• 2 The object of the admonishment of the court is to inform the defendant of the consequences of his plea of guilty and to give him the right to withdraw his plea of guilty if he so desires after hearing those consequences. (People v. Kontopoulos (1962), 26 Ill.2d 388.) With regards to the possible penalties for the offenses with which defendant was charged, the court in the present case admonished the defendant as follows:

"The Court: You also know that on a finding of guilty of robbery and rape I can sentence you to the penitentiary for not less than 4 years and up to any number of years?

The Defendant: Yes, sir. I understand.

The Court: The sentence on aggravated ...


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