APPEAL from the Circuit Court of Kankakee County; the Hon.
VICTOR N. CARDOSI, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant, Terry Calhoun, was indicted for the offense of murder. The indictment arose out of a shooting incident occurring on November 4, 1972, which resulted in the death of Frank Smith. Defendant shot and killed Frank Smith after Smith had confronted and argued with defendant's sister and mother on a dance floor. Calhoun claimed that his sister had informed him that Smith had obtained a pistol which he was carrying on his right rear side. As Smith approached the defendant and moved his hand toward his right rear side the defendant fired a shot at the ceiling. When Smith indicated that he had missed him, the defendant fired again this time hitting and killing Smith. No gun was found on Smith.
On January 18, 1973, defendant pled guilty to the offense of voluntary manslaughter and was sentenced to the Department of Corrections for a period of not less than 3 nor more than 9 years. On March 25, 1974, Calhoun filed a petition for post-conviction relief, pro se. Later counsel was appointed to represent him and an amended petition was filed. After an evidentiary hearing, the trial judge dismissed the amended petition for post-conviction relief and defendant appealed.
The sole issue presented for review is whether the record of defendant's guilty plea affirmatively demonstrates that his plea to voluntary manslaughter was knowingly and voluntarily entered. Resolution of whether his amended petition for post-conviction relief was properly denied depends upon whether defendant was adequately admonished concerning the nature of the charge of voluntary manslaughter to which he pled guilty.
Defendant asserts that he was confused by the court's admonishments concerning the nature of the charge to which he pled guilty and was sentenced. He claims the court made mention of the offense of "manslaughter" in a general sense without explaining whether referring specifically to voluntary or involuntary manslaughter. Furthermore he contends that the trial judge erroneously combined the elements and definitions of involuntary manslaughter with those of voluntary manslaughter in his attempt to explain the nature of the charge of "manslaughter." The following colloquy took place at the proceedings where defendant's guilty plea was entered:
"MR. GOULD [Assistant State's Attorney]: Your Honor, we have engaged in negotiations in this case whereby the Defendant would plead guilty to the included offense in Count I of Voluntary Manslaughter, Paragraph 9-2, Chapter 38, Illinois Revised Statutes.
THE COURT: Is that correct, Mr. Davidson?
MR. DAVIDSON [Defense Counsel]: That is correct.
THE COURT: You know about this, Mr. Calhoun?
THE COURT: Your lawyer and the State's Attorney has [sic] discussed this case and they have entered into negotiations as a result of which you would plead. You understand that?
THE COURT: You understand that the Judge did not initiate these negotiations that was a matter they [sic] started between your lawyer and the ...