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People v. Mcnear

AUGUST 21, 1975.

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

v.

OSCAR JOSEPH MCNEAR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.

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

Defendant, Oscar Joseph McNear, appeals from his conviction of the offense of burglary and from a sentence imposed of 3 years and 9 months to 15 years' imprisonment. The sole issue is whether defendant's guilty plea was induced by the misrepresentations and unfulfilled promises of defense counsel, the State and the trial court.

Defendant was indicted for armed robbery, robbery, burglary, and armed violence. The State subsequently dismissed the robbery and armed violence charges, and on March 11, 1974, the case proceeded to trial on the burglary and armed robbery charges. At the close of the State's case defendant's motion to dismiss the armed robbery charge was granted by the trial court. The defendant testified that he was vacationing in Missouri on the day of the burglary and presented the testimony of several witnesses to substantiate this alibi defense. On March 16, 1974, defendant moved to withdraw his not guilty plea and to enter a plea of guilty to the offense of burglary. The trial court granted defendant's motion to withdraw his plea, and the jury was excused and dismissed.

The trial court then explained to defendant the nature of the offense of burglary. Defendant stated that he understood. The trial court admonished defendant that the minimum and maximum penalty prescribed by law for said offense was an indeterminate sentence of 1 to 20 years' imprisonment, a $10,000 fine and a 3-year parole term. Defendant indicated that he understood. The trial court explained to defendant the various constitutional rights he would be waiving by pleading guilty. The following colloquy then occurred:

"The Court: Now, Mr. McNear, have any promises of any kind or nature been made to you or any threats been made to you by the State's Attorney or your attorney or any person or persons to induce you to make your motion to withdraw your plea of not guilty and enter a plea of guilty?

The Defendant: No, sir.

The Court: Do you understand that if any promises have been made to you by anyone that they would not be in any way binding upon the Court?

The Defendant: Yes."

The State presented a factual basis for the plea. The defendant indicated that the State's presentation was substantially correct. The following then transpired:

"Mr. Sheehan: Your Honor, it is true that there actually was a very limited negotiation in this case and the negotiations was to the effect that if Mr. McNear entered a plea of guilty to the burglary charge pending against him the People would move to dismiss a total of four cases currently pending in Sangamon County again him ____

The Court: Now, are you advising the Court that there has been a partial plea agreement?

Mr. Sheehan: Yes.

The Court: All right. Are there any other provisions or terms of the plea agreement other than what you have now indicated to ...


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