APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE HAYES delivered the opinion of the court:
Defendant-appellant, Alfred Russ, Jr. (hereafter defendant), was charged in a three-count indictment with alternative offenses of murder (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) and with the offense of arson (Ill. Rev. Stat. 1971, ch. 38, par. 20-1). Immediately before trial the two alternative counts of murder were nolle prossed by the State. After a "stipulated bench trial" on a plea of not guilty to the charge of arson, in which there was no attempt to comply with the provisions of Supreme Court Rule 402 relating to pleas of guilty (Ill. Rev. Stat. 1971, ch. 110A, par. 402), defendant was found guilty of arson and was sentenced to the penitentiary for a term of 3 years to 9 years.
On this appeal, defendant presents two issues: (1) the "stipulated bench trial" procedure used was tantamount to the entry by defendant of a plea of guilty to the charge of arson, so that defendant was entitled to the protection afforded by Supreme Court Rule 402 to persons entering pleas of guilty, which protection he did not receive; (2) in any event, he was not proved guilty of arson beyond a reasonable doubt.
The underlying facts are as follows. Counts I and II of the indictment charged defendant with the murder of Providentia Henry on August 10, 1972, in that defendant unlawfully set fire to her apartment, which caused her to jump from a window of the apartment in an attempt to escape from the fire, whereby she fractured her skull and died. Count I charged that defendant's act, done without lawful justification, was performed with the intent to kill or do great bodily harm to Providentia Henry or with the knowledge that his act would cause death to her; Count II charged that defendant's act, done without lawful justification, was performed with the knowledge that it created a strong probability of death or great bodily harm to Providentia Henry. Count III charged defendant with the offense of arson in having set fire to the apartment of Providentia Henry, knowingly damaging it.
The case was called for trial on June 6, 1974, at which time defendant's private counsel, appointed by the court approximately 18 months prior thereto, requested a conference with the court for the reason that, after extensive negotiations, an agreement had been reached with the State's Attorney's Office as to the disposition of the case: defendant was to enter a plea of guilty to the arson charge of the indictment, for which the State would recommend a sentence of 3 years to 9 years, and the State was to dismiss the murder counts of the indictment. It then developed in a colloquy in open court that defendant was confused by the language of the arson charge; he said that he knew that he had set fire to the building, but he maintained that he had not intentionally set the fire, stating to the court generally that he had not meant to set the fire when he did so and that the actual setting of the fire had been an accident. Defendant nonetheless continued to express his desire to enter the plea of guilty to the arson charge in order to receive the benefits of the State's recommendation as to the sentence and of the dismissal of the murder charges. The trial court, however, expressed its reluctance to accept the plea of guilty, because defendant obviously thought himself innocent of the charge owing to his insistence that his setting of the fire had been accidental. But the court also voiced its reluctance not to accept the plea of guilty to the arson charge, because the State could then proceed against defendant on the murder charges. After several conferences were held between defendant and his counsel and between the trial judge and counsel for the parties, defendant expressed his desire to "withdraw" his plea of guilty, at which time the trial judge asked defense counsel if he was "going to proceed with the stipulated bench," to which counsel made no reply. Defendant waived a jury trial, and his counsel then told the court that defendant wished to be tried on a plea of not guilty to the charge of arson.
The State then recited by way of what amounted to an offer of proof the underlying facts of the case. The State's witnesses would testify at trial, if called, the defendant had been heard and seen in the deceased's apartment, threatening to set fire to the apartment if he did not receive money from the deceased; that immediately after the fire the apartment had smelled of gasoline, and a partly full can of gasoline had been found in the apartment; that shortly after the fire, defendant had been admitted to a hospital under an assumed name for burns on his hands; that defendant had admitted starting the fire to an assistant State's Attorney; and that a police investigator had observed the apartment after the fire and in his opinion the fire constituted arson. The facts so recited were then stipulated to by defense counsel, who also expressly waived cross-examination of the State's witnesses and expressly withdrew a pending motion to suppress defendant's statements to the assistant State's Attorney, indicating that defendant would not object to the assistant's testimony in that regard upon trial. Defense counsel then stated that defendant's evidence in the case would consist of those statements made to the court by defendant during the instant proceeding, relating to his lack of intent in setting the fire and to the accidental nature of the fire. The State made no response to this offer of proof by defendant. After the court found defendant guilty of the offense of arson, defense counsel requested imposition of the 3-year to 9-year sentence previously recommended by the State, and defendant was sentenced to that term.
It is clear that there were, in effect, two stipulations in this "stipulated bench trial" on a plea of not guilty: the expressly stipulated testimony comprising the State's case-in-chief and the impliedly stipulated testimony of defendant comprising his defense. The case was then submitted to the trial judge for his finding of guilt or innocence. There was no stipulation by anyone as to what that finding was to be.
On this appeal, defendant contends that the instant "stipulated bench trial" was tantamount to the entry by him of a plea of guilty to the charge of arson, so that he was entitled to the protection afforded by Supreme Court Rule 402 to defendants entering a plea of guilty. In support of his contention, defendant cites four cases: People v. Stepheny (January 1974), 56 Ill.2d 237, 306 N.E.2d 872; People v. Cruz (May 1974), 56 Ill.2d 583, reversing People v. Cruz (1974), 17 Ill. App.3d 441, 308 N.E.2d 349; People v. Smith (November 1974), 59 Ill.2d 236, 319 N.E.2d 760; and People v. Ries, 28 Ill. App.3d 698, 329 N.E.2d 243 (April 1975). In opposition to defendant's contention, the State cites People v. Young (January 1975), 25 Ill. App.3d 629, 323 N.E.2d 788, which distinguishes the Stepheny and Smith decisions.
• 1 We think that the several cases demonstrate that a stipulated bench trial per se may or may not be tantamount to the entry of a plea of guilty. In the cases cited by defendant, it was. In the case cited by the State, it was not. What, then, is the distinction?
We begin with the observation that a plea of guilty waives any and all defenses (People v. Jackson (1970), 47 Ill.2d 344, 265 N.E.2d 622). It follows that, if in a "stipulated bench trial" there is an expressly or impliedly stipulated defense (as well as a stipulated case-in-chief for the State), such a "stipulated bench trial" is not tantamount to the entry of a plea of guilty. In other words, such a total stipulation does not extend to the fact of guilt itself, but leaves to the trial judge the basic judicial function of determining guilt or innocence on the basis of the total stipulation. On the other hand, if the stipulation of the State's case-in-chief extends to stipulating, in effect, the very fact of guilt itself and there is no defense whatever, then such a stipulation is tantamount to the entry of a plea of guilty. Intermediate situations may exist. For example, the stipulation might encompass all the essential facts of the State's case-in-chief and the "defense" might consist solely of defendant's testimony purporting simply to deny one or more of the stipulated facts. Since defendant had already stipulated to the fact or facts which he now purports to deny by way of defense, the reality of the situation is that the defendant has interposed no genuine defense whatever and there actually is no issue of guilt or innocence for the trial judge to determine; hence, despite the purported defense, the stipulation is tantamount to the entry of a plea of guilty.
We proceed now to discuss each of the several cases cited to us.
In Stepheny, there was a purported defense (presumably of self-defense). But defense counsel admitted that the defense was not a genuine defense since he was merely going through the motions of concluding the trial in accord with the terms which he had negotiated with the State during the presentation of the State's case-in-chief, of which terms the trial judge was aware. Defense counsel further himself admitted that, by reason of the negotiation, the case had become an agreed case; he admitted that the proceeding was in reality the equivalent of the entry of a plea of guilty of the lesser included offense of voluntary manslaughter. Our Supreme Court took defense counsel at his word and held that, under the circumstances, defendant was entitled to compliance with the then statutorily required protection afforded to persons entering a plea of guilty. (The statute (Ill. Rev. Stat. 1965, ch. 110, par. 101.26(3)) was the forerunner of the present Supreme Court Rule 402.) Stepheny, therefore, classifies as a "purported defense" case.
In Cruz, the defendant was indicted for the offense of armed robbery. He pleaded not guilty and waived a jury trial. Evidence of the offense was introduced by stipulation, after which defendant was found guilty of robbery. On appeal, defendant's only contention was that his stipulated bench trial was tantamount to the entry of a plea of guilty, so that he was entitled to be admonished pursuant to Supreme Court Rule 402. This court denied his contention and affirmed the conviction. The supreme court, citing Stepheny, reversed the judgments of this court and of the circuit court and remanded the cause to the circuit court. It is not clear from the opinion of this court whether there was or was not a stipulated defense. There is, however, an inference that there was not, because this court ...