APPEAL from the Circuit Court of Cook County; the Hon. MARK E.
JONES, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The instant appeal involves a consolidation of two cases wherein the defendant, Danny Lee, had been charged by complaint with the commission of aggravated battery, criminal damage to property and reckless conduct. The State moved to nolle prosequi the criminal damage to property charge. The defendant pled guilty to the reckless conduct charge. The State moved to reduce the felony aggravated battery charge to a misdemeanor battery charge. The defendant went to trial on that reduced charge, waived a jury and was found guilty. He was sentenced to one year in the House of Correction on both charges, the sentences to run consecutively.
On appeal, the defendant proffers three contentions, namely, (1) the trial court did not substantially comply with Supreme Court Rule 402 when it accepted the plea of guilty on the reckless conduct charge since the defendant was not properly admonished as to the nature of the charge, his right to plead not guilty, his right to a jury trial and to confront witnesses against him; (2) that he was not proven guilty beyond a reasonable doubt on the battery charge; and (3) regarding the prosecution for battery, he did not knowingly and understandingly waive a jury trial.
Considering the issue pertaining to the reckless conduct charge, the record reveals that when this cause was called for trial, the public defender, representing the defendant, pled guilty before the court to the charge of reckless conduct. The trial judge proceeded to pass the case so that the defendant's mother, who just arrived from Minnesota, could speak to the public defender. When the cause was recalled, the public defender reiterated his plea of guilty to the reckless conduct charge, whereupon, the trial court engaged in the following colloquy with the defendant:
"Now, Danny Lee, you understand on a plea of guilty, you don't get a trial, you just get found guilty, do you understand?
The Court: Then you have a record for criminal damage to property and the statutory penalty is a period in jail up to one year, and a possible fine of one thousand dollars, do you understand, this is what the statutory provisions are, do you understand?
The Court: And you still plead guilty, is that right?
The court then proceeded to question a police officer regarding the instant offense. The officer related that the defendant and one Sean Marionneaux entered a Burger King Restaurant where they had words with a Mr. Pollack. Upon departing the premises, the defendant fired three shots through the window and fled. The officer estimated there were at least five employees and eight or ten customers in the restaurant at the time of the shooting. The defendant disagreed as to the above figures, but admitted there were people in the establishment. When the court inquired whether the defendant substantially agreed to these facts, the public defender, subsequent to ascertaining from the defendant that he had been in the restaurant, replied in the affirmative. The court then heard matters in mitigation and aggravation and withheld sentencing the defendant until a trial on the battery charge was held.
• 1 Defendant contends that the trial court failed to determine whether he voluntarily entered his guilty plea since the court did not properly admonish him in compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). It is therefore argued that the defendant did not intentionally nor knowingly waive his constitutional rights since he did not understandingly and voluntarily enter his guilty plea. Boykin v. Alabama, 395 U.S. 238, 242, 23 L.Ed.2d 274, 89 S.Ct. 1709, 1711.
Supreme Court Rule 402 provides in pertinent part:
"In hearings on pleas of guilty, there must be substantial compliance ...