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People v. Cole

DECEMBER 31, 1975.

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

v.

MACK T. COLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. PAUL E. RINK, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Defendant Mack T. Cole was charged with the murder of his wife but pleaded guilty to the lesser included offense of voluntary manslaughter pursuant to plea negotiations. The defendant was originally sentenced to a term of 12 to 20 years. On one previous appeal that sentence was vacated and his case remanded to the circuit court for a new sentencing hearing. On November 16, 1973, the trial court imposed a sentence of not less than 6 years and 8 months nor more than 20 years. Again the defendant directly appealed to this court and we affirmed the sentence imposed at 23 Ill. App.3d 620, 321 N.E.2d 71. Subsequently Cole filed a timely petition for post-conviction relief based on alleged defects in the conduct of the hearing wherein his guilty plea was accepted. He appeals from the denial of his petition for post-conviction relief. The defendant raises three issues in his appeal, (1) whether defendant was properly admonished by the trial court to determine if the defendant understood the nature of the charge against him; (2) whether defendant was properly admonished by the trial court that he had a right to persist in his plea of not guilty, (3) whether the trial court entered a judgment on defendant's plea of guilty without first determining that there was a factual basis for the plea.

The defendant basically contends that the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, § 402) were not followed by the trial court and that therefore reversible error was committed in the denial of his petition for post-conviction relief.

• 1-3 Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969), established that the constitution requires the record to affirmatively show that a defendant has entered his guilty plea knowingly and voluntarily. Our Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, § 402) followed Boykin and was enacted to insure compliance with the requirements that a guilty plea be knowingly and intelligently made in addition to giving visibility to plea negotiations. "Their [Rules 401 and 402] purpose is a rather prophylactic one, to provide for the preservation of a complete record on the basis of which to appraise attacks made upon judgments of conviction in cases in which a lengthy period of imprisonment may be involved." (People v. Hopping, 60 Ill.2d 246, 251, 326 N.E.2d 395, 398 (1975).) In People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318 (1971), the Illinois Supreme Court held that there is no constitutional requirement that the record show that a defendant be specifically admonished as to each of the several rights which are waived by a guilty plea. If defendant Cole's guilty plea was not a substantial denial of a constitutional right, then even a failure to literally comply with the provisions of Rule 402 will not require a reversal of his conviction. (See People v. Roberts, 27 Ill. App.3d 489, 326 N.E.2d 116, 119 (1975); People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559 (1974).) The burden is upon the defendant to establish that he was deprived of a substantial constitutional right. (People v. Newberry, 55 Ill.2d 74, 302 N.E.2d 34 (1973).) The defendant does not claim that his guilty plea was involuntary or that he made it unknowingly and would not have made it had he known all his constitutional rights, even though he insists he did not understand. "[S]supreme court cases indicate that where there is no claim that the plea (or waiver) is not voluntary, or that any harm or prejudice occurred, or that defendant was unaware of the factors of which the court neglected to admonish him, then the error is harmless." People v. Roberts, 27 Ill. App.3d 489, 493 (1975).

• 4 Because this is a post-conviction proceeding brought under the Post-Conviction Hearing Act, it is only proper to determine whether there was a substantial denial of defendant's rights under the Constitution of the United States or the State of Illinois or both. (Ill. Rev. Stat. 1973, ch. 38, § 122-1 et seq.; People v. Newberry; People v. Holvey, 17 Ill. App.3d 809, 308 N.E.2d 622 (1974).) "[M]ere noncompliance with Supreme Court Rule 402 does not raise an issue of constitutional dimension but is relevant in a post-conviction proceeding only so far as the record does or does not demonstrate the defendant's plea was intelligently and voluntarily made." (People v. Turner, 25 Ill. App.3d 847, 852, 323 N.E.2d 371, 375 (1975).) Upon our review of the entire record in this case we determine that there was an affirmative demonstration that Cole's plea of guilty was made knowingly and voluntarily.

The following took place in open court:

"MR. CARPENTIER: Your Honor, this is Mack T. Cole. Mr. Cole was charged in Indictment No. 71 CF 101 with the crime of Murder. I was appointed to represent him, and I have conferred with Mr. Cole on several occasions and have made an investigation of this case and have discussed my investigation with Mr. Cole. At this time he has requested me to advise the Court that it is his desire to enter a plea of guilty to Voluntary Manslaughter. Is that correct, Mr. Cole?

THE DEFENDANT: Yes.

THE COURT: Is that a count included?

MR. CARPENTIER: It would be a lesser included offense.

THE COURT: Do you waive the reading of the Indictment, Mr. Carpentier?

MR. CARPENTIER: Yes, we waive the reading of the Indictment, Your Honor.

THE COURT (Addressing Defendant): You are ...


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