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People v. Tomczak





APPEAL from the Circuit Court of Du Page County; the Hon. JAMES FITZGERALD, Judge, presiding.


On April 29, 1973, defendant was charged with the offense of theft of property having a value in excess of $150 (Class 3 felony). He was represented by privately retained counsel. After plea bargaining, defendant, on June 25, 1973, entered a plea of guilty to the reduced charge of theft of property valued at "less than $150" (a Class A misdemeanor) and the prosecutor recommended that defendant be granted leave to make application for probation.

Thereafter, on August 8, 1973, defendant was sentenced to probation for one year and fined $200 and costs. Defendant did not appeal from this conviction. Instead, on December 19, 1973, he filed a post-conviction petition alleging a denial of constitutional rights because the court did not, before accepting the guilty plea, admonish the defendant as to (a) the nature of the charge, (b) the minimum and maximum sentence, and (c) defendant's right to persist in his plea of not guilty, and because the factual basis for the guilty plea was not set forth, and the court did not determine that the plea was voluntarily and knowingly entered. *fn1 At the hearing on his post-conviction petition the defendant was sworn and the court, after interrogating him about his age ("20 years"), his educational background ("Two and one-half years of college" at "`Lewis and DuPage College"), and his occupation ("salesman for Sears"), did not permit defendant's counsel to elicit further testimony by the defendant, and denied his petition.

• 1 On appeal to this court defendant argues that he was entitled to a full evidentiary hearing of his post-conviction petition to testify that "he did not knowingly or voluntarily enter his plea of guilty." Defendant acknowledges that the Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122-6) allows the court discretion as to the evidence received at the post-conviction hearing, and that the court has wide discretion as to the type of evidence that may be received at such hearing. In People v. Humphrey, 46 Ill.2d 88, 92, the Supreme Court held that the trial judge did not abuse his discretion "in ruling on the allegations of the petition based on the petition, written statement, answer and trial transcript without the oral testimony of the defendant * * *." In People v. Bliss, 44 Ill.2d 363, 366, 367, the court held that in a post-conviction proceeding "[t]he inquiry is limited to constitutional issues not previously adjudicated," and that on a motion to dismiss a post-conviction petition "the trial judge may render a decision on the basis of the contents of the pleadings read in conjunction with the trial transcript." See also People v. Shaw, 49 Ill.2d 309, 311.

The record here discloses that the trial judge had before him and carefully reviewed the transcript of the proceedings of the June 25 hearing at which defendant was represented by his privately retained counsel. That transcript established that, after the plea agreement was set forth, the defendant had been admonished that he was entitled to a jury trial, that he was entitled to confront his accusers, and that the court was not bound by any recommendation made as a result of any plea agreement. Thereupon, the court asked the defendant:

"* * * Having been admonished of these rights, you do freely and voluntarily enter a plea of guilty to the charge of theft of property, having a value of less than $150.00?"

The defendant answered, "Yes, sir."

• 2 The post-conviction petition made no allegations other than the general ones stated above. No complaint has been made that the prosecutor or the trial court did not carry out the terms of the negotiated plea of guilty, and no complaint of any defect in the trial court's admonitions other than that stated in his post-conviction petition. Neither was there any allegation of any prejudice to the defendant because of such defects. As the court stated in People v. Hoffman, 25 Ill. App.3d 261, 270: "Unsupported conclusional statements in a petition for post-conviction relief are insufficient to require an evidentiary hearing under the Post-Conviction Hearing Act." (See also People v. Morris, 43 Ill.2d 124.) Defendant made no specific allegations showing a denial of his constitutional rights. In effect, the allegations only indicate a failure to comply strictly with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). In People v. Barr, 14 Ill. App.3d 742, 746, where the defendant alleged a denial of his constitutional rights on similar grounds, the appellate court in affirming the trial court's dismissal of the defendant's post-conviction petition held that "the only permissible issue" in such case "is whether defendant's plea of guilty was intelligent and voluntary," and (at 746-747) that "[i]n determining the merits of this situation, and the constitutional sufficiency of the proceedings upon which the plea of guilty rests, we must read the record in a `practical and realistic' manner," citing People v. Kontopoulos, 26 Ill.2d 388, 390. The court also rejected the applicability of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, relied on by the defendant in Barr, as here. The court stated that the record in Barr was not a `silent record' as in Boykin (395 U.S. 238, 243, 23 L.Ed.2d 274, 280) "but a record which speaks out clearly and vigorously to refute defendant's theory."

Barr was affirmed by the Illinois Supreme Court in People v. Krantz, 58 Ill.2d 187, 194-195. In affirming the appellate court, the supreme court said:

"Understandably no claim is made that the defendant, represented by counsel, was unaware of the possible punishment to which his conduct had exposed him. His plea of guilty was the product of negotiating or plea bargaining. He had discussions with the prosecutor, the very purpose of which was to escape the maximum penalty the People could seek. The defendant's negotiating obviously was with knowledge of the possible punishment he was trying to avoid. There is no complaint that the prosecutor or the trial court did not carry out what had been agreed upon. The assistant State's Attorney dismissed three burglary charges which were pending against the defendant, and the trial court imposed the sentence which had been recommended to the court.

No complaint of any defect in the trial court's admonition was made by the defendant until almost two years later when he filed the post-conviction petition. And neither then nor now does he allege any prejudice because of the omission. Rule 402 was designed to insure properly entered pleas of guilty, not to provide for merely an incantation or ceremonial. We have no doubt the defendant understood what punishment, apart from what he negotiated for with the prosecutor, he could have received.

The rule

was designed to satisfy the requirements of Boykin * * *, and to give ...

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