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People v. Smith

OPINION FILED FEBRUARY 9, 1976.

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

v.

TERRY SMITH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant, Terry Smith, was indicted for one count of murder and one count of voluntary manslaughter. In accordance with the terms of a negotiated plea, defendant plead guilty to voluntary manslaughter and was sentenced to a term of imprisonment for not less than 6 2/3 years nor more than 20 years. The murder count was dismissed on motion of the State. The issues presented by this appeal are whether defendant's guilty plea was involuntary due to a misrepresentation by the trial court and whether the sentence was excessive.

During the course of the guilty plea proceeding, the trial court admonished defendant pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, § 402) and then made the following statement:

"Now, I must also say to you that you are eligible for parole after three years and you will be given credit for the time you have spent over here."

In actuality, defendant will not be eligible for parole until after serving approximately 4 years and 7 months. Defendant contends that, although the trial court was not obligated to provide him with this information, nevertheless, the misrepresentation rendered his guilty plea involuntary and unintelligent.

• 1 A guilty plea must be shown to have been entered voluntarily and with knowledge of the consequences of the plea. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) Although compliance with Supreme Court Rule 402 is normally sufficient to demonstrate a valid plea, a guilty plea will be reversed if it appears that the plea was obtained by unfulfilled promises of a reduced sentence or by misrepresentations as to the sentence to be imposed. (People v. Washington (1967), 38 Ill.2d 446, 232 N.E.2d 738.) However, this court will not reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied. People v. Dudley (1974), 58 Ill.2d 57, 316 N.E.2d 773.

For example, in People v. Brooks (4th Dist. 1972), 4 Ill. App.3d 835, 282 N.E.2d 187, the trial court understated the minimum sentence for armed robbery before accepting the defendant's guilty plea. Although at that time the rule governing guilty pleas did not require admonition as to the minimum sentence (Ill. Rev. Stat. 1969, ch. 110A, § 401(b)), the defendant contended that this misstatement rendered his plea involuntary. After reviewing the record, the court held that error was not prejudicial because there was no indication that the defendant had entered his plea in reliance on this misrepresentation, citing People v. Carter (2d Dist. 1969), 107 Ill. App.2d 474, 246 N.E.2d 320, cert. denied (1970), 397 U.S. 1008, 25 L.Ed.2d 421, 90 S.Ct. 1236. See also People v. Hartman (2d Dist. 1972), 6 Ill. App.3d 543, 285 N.E.2d 600.

In the instant case a negotiated plea was tendered to the court after months of negotiations between the parties. The record shows full and complete compliance with Supreme Court Rule 402. We note the statement by defense counsel to the trial court that:

"I would add this matter and this decision comes after many months of discussion with Mr. Smith * * * and also after discussions with members of Mr. Smith's immediate family."

During the court proceedings, the following colloquy occurred:

"THE COURT: Do you understand the Negotiated Plea that's being presented here?

THE DEFENDANT: Yeah.

THE COURT: And do you agree ...


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