APPEAL from the Circuit Court of Fayette County; the Hon.
GEORGE KELLY, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Michael Prakel, entered a negotiated plea of guilty to escape in Fayette County and was sentenced to serve from 1 to 2 years.
• 1 Defendant first contends that the court erred in failing to advise defendant of the nature of the charge against him. Defendant made his first appearance in court without counsel on October 29, 1973. At that time the court fully and adequately explained the charge. At the subsequent plea proceedings, held on January 22, 1974, the court referred to the charge by name only. We are not called upon to decide whether the prior admonition was sufficient to carry over to the plea proceedings. We are required only to view the record of the actual plea in its entirety to determine if defendant understood the nature of the charge against him. (People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 187, 317 N.E.2d 559 (1974).) We believe that the court substantially complied with Rule 402(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(1)).
In addition, we believe that the recitation of the factual basis by the State provided a "reasonably clear, hard-to-misunderstand" restatement of the elements of the charge. (People v. Troyan, 21 Ill. App.3d 375, 315 N.E.2d 335 (1974).) "Escape" itself contains no complex or convoluted elements and is recognized and understood by men of normal intelligence by name alone.
• 2 Contrary to defendant's contentions, we believe that the court substantially complied with Rule 402(c) requiring a determination that a factual basis existed for the plea. The State's Attorney recited to the court the operative facts involved in defendant's escape. Defendant now contends that the factual basis statement failed to establish that any act was done intentionally by the defendant and further failed to prove that defendant actually left the State Farm at Vandalia. Neither the defendant nor his counsel demurred to the factual basis statement and defendant reaffirmed his plea of guilty thereafter. This is relevant in determining the adequacy of the statement. (People v. Krantz.) The statement adequately detailed defendant's act in leaving the work detail to which he was assigned. If he left that detail other than intentionally, a situation difficult to imagine, the burden was equally upon him to bring these facts before the court. He had ample opportunity to do so. Defendant also asks us to take judicial notice of the dimension of the State Farm at Vandalia, apparently to suggest that defendant may not have left the prison grounds before capture. We believe the record, in the face of defendant's silence, adequately establishes that defendant escaped from the custody of the Department of Corrections.
Defendant next contends that he was not properly advised of the available penalties for the offense. Escape is a Class 2 felony with a possible sentence of from 1 to 20 years. (Ill. Rev. Stat. 1973, ch. 38, pars. 1003-6-4(a), 1005-8-1(b)(3).) Upon his first appearance in court, defendant was advised that the possible penalty was from 1 to 10 years. During the plea proceedings, defendant was told that the possible sentence was from 1 to 2 years. Defendant's plea was negotiated and he received a sentence of from 1 to 2 years.
We believe that defendant's contention is without merit. In People v. Barr, consolidated for opinion with People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559 (1974), the court found substantial compliance with Rule 402(a)(2) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(2)) where no admonition was reflected on the record. The court stated that defendant had negotiated his plea specifically to avoid the imposition of the maximum sentence and was thus aware of the possible penalty. The court also noted that defendant had received the sentence for which he had bargained. We find no error in compliance with Rule 402(a)(2).
• 3 Defendant also contends that the court erred in failing to admonish defendant of the mandatory parole term required by section 5-8-1(e) (2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(e)(2)). Defendant's plea was taken prior to May 19, 1975. No error was committed. People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505 (1975) (supplemental opinion on denial of rehearing).
• 4 In a supplemental brief filed in this court, defendant argues that he was denied the equal protection of the laws in that the prosecution had the choice to prosecute him for a felony or a misdemeanor. Section 3-6-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1003-6-4) makes it a Class 2 felony for any person to escape from any institution of the Department of Corrections, Adult Division. A sentence under this section must run consecutively to the sentence being served prior to the escape. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4 (g).) The Committee Comments to section 3-6-4 (par. 1003-6-4) state that the new section was designed to "draw together scattered sections dealing with escape" and related offenses. The new section repealed section 7 of "An Act to establish * * * a State Reformatory for Women" (Ill. Rev. Stat. 1971, ch. 23, par. 2807), and sections 14, 15 and 17 of "An Act in relation to the Illinois State Penitentiary" (Ill. Rev. Stat. 1971, ch. 108, pars. 118, 119, and 121). One "scattered" escape provision remains, however. Section 31-6 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31-6) distinguishes escape while in custody for a misdemeanor conviction from escape while incarcerated for a felony. The former is a Class A misdemeanor; the latter a Class 2 felony. In addition, section 31-6 contains no requirement that the sentence run consecutively.
Defendant argues that because he was incarcerated for a misdemeanor when he escaped, his escape could have resulted in a misdemeanor prosecution and that the unfettered discretion in the hands of the prosecutor to choose which statute under which to prosecute denies him the equal protection of the laws.
In People v. McCollough, 57 Ill.2d 440, 313 N.E.2d 462 (1974), the defendant was charged in identical language in two counts with involuntary manslaughter and reckless homicide. Section 9-3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9-3) makes reckless homicide an included offense under involuntary manslaughter if the death was caused by a defendant driving an automobile. That section provides that a defendant may either be charged with reckless homicide or convicted of it under an involuntary manslaughter indictment, information, or complaint. The appellate court had held that the unfettered discretion in the hands of the prosecutor, the grand jury, or the trier of fact denied the defendant the equal protection of the law. (People v. McCollough, 8 Ill. App.3d 963, 291 N.E.2d 505 (1972).) The supreme court reversed, holding that the discretion did not violate constitutional principles. In commenting upon the role of the State's Attorney, the court quoted from People v. Rhodes, 38 Ill.2d 389, 396, 231 N.E.2d 400, 403 (1967):
"The State's Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged."
"The kind of determination committed to the discretion of the State's Attorney by the Statute in this case is the same kind of discretion that is committed to him with respect to a host of other offenses, and is exercised by him every day. It is not, in our opinion, an ...