APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1976.
Defendant, Sylvester Ealey, was indicted for murder and two counts of attempt murder arising from an incident in which one person was shot to death and two others received gunshot wounds. On June 25, 1974, defendant pled guilty to murder. The two attempt charges were dismissed. The State recommended a sentence of 99 to 100 years. Following a sentence hearing held on July 26 and August 8, 1974, the court imposed a sentence of 75 to 150 years.
The facts as adduced by the State were that in the early morning hours of the 12th of March, 1974, the defendant along with two accomplices, a Mr. Holloway and a Mr. Reynolds, kidnapped three individuals from the Blue Note Tavern parking lot, the motive being armed robbery. They took them to a secluded area where the defendant shot George Alcott, one of the three individuals who was kidnapped, with a .45 automatic. He then attempted to shoot Thomas Tarzian, the second victim, in the head, but the gun misfired. He then put Tarzian into the trunk of the car where he did in fact shoot him in the head. Ealey then left and rejoined his two accomplices who were in the second car with the third victim, Laurie Stewart. They then drove to a rendezvous where all three raped the victim. After the rape they went to Russell Avenue where the defendant got out of the car and was observed by Holloway and Reynolds, his accomplices, to take the girl into the brush off of Russell Avenue. They heard a gunshot. When the defendant came back through the weeds he was still carrying the .45 automatic with which he had shot Tarzian and Alcott. The defendant returned to the car but the victim did not. Tarzian survived the shot to his head and Alcott survived a bullet wound in his chest. The body of Laurie Stewart was found lying in an open field in the vicinity of 4300 Russell Avenue.
Defendant, on appeal, contends that the record as a whole does not establish that he entered a voluntary and intelligent plea of guilty; that the trial court committed reversible error in depriving him of an absolute right to retain his own private counsel at the arraignment proceedings; and that in view of the age and history of the defendant and in the light of circumstances surrounding the case, the sentence imposed was excessive.
The main issue in this case is whether or not the defendant's guilty plea was entered voluntarily and intelligently. Defendant maintains that it was not. He contends that there was no basis in the record from which the trial court could have reasonably concluded that the defendant committed the offense of murder and that in entering his guilty plea he used language indicating that he was still professing his innocence and that he did not agree with the factual basis established by the State.
1 In entering his guilty plea, in response to the court's question if he understood everything the Assistant State's Attorney said in presenting the factual basis, defendant stated:
"Yeah, I understood everything he said, but I don't agree with all of it, as a matter of fact most of it, you know, isn't the way that it is. But this is still my choice to plead guilty."
In North Carolina v. Alford, 400 U.S. 25, 38, 27 L.Ed.2d 162, 172, 91 S.Ct. 160, the court stated:
"In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it."
Furthermore, defendant in the instant case states in his brief:
"It is undisputed that in the case at bar the trial court read to the defendant that count of the indictment which charged him with the murder of Laurie Stewart and that the defendant indicated that he understood. Were this the only portion of the record on appeal which had to be relied upon to determine whether or not the defendant understood the charge in question, there would be little doubt the defendant would be precluded from now attacking the validity of his plea for the instant reason."
But defendant continued by saying:
"However, the Illinois Supreme Court has held that whether or not a plea of guilty is knowingly and voluntarily entered must be decided based upon a review ...