APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Defendant pled guilty to the unlawful delivery of more than 30 grams of a substance containing cocaine, a violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401). He was sentenced to 12 1/3 years to 37 years' imprisonment and was fined $10,000. On appeal, he contends, inter alia, that the trial court committed reversible error in failing to indicate to him the defendant that the court was not bound in sentencing by the recommendation of the State's Attorney pursuant to the plea agreement. We therefore reverse and remand so that the defendant may plead anew. As a result, we do not reach the defendant's other contentions.
On February 13, 1975, defendant was brought to trial under two separate indictments. After the first witness testified for the State, a short recess was taken and thereafter defendant's counsel informed the Court that his client wished to withdraw his plea of not guilty, and enter a plea of guilty to one of the two charges. At that time the following colloquy occurred:
"Mr. Weiner [Defense Counsel]: The plea agreement is that on the other case the State would nolle pros.
Mr. Hogan [Assistant State's Attorney]: Your Honor, I just had a conversation with Mr. Dondanville [State's Attorney] and his recommendation to the Court, if the defendant were to plead guilty to this charge, would be that we'd recommend a minimum of four years but no maximum and we would ask that the companion case be nolle prossed upon sentencing or after he is sentenced."
The court then asked defendant's attorney if he had discussed the plea with his client and defendant's counsel responded:
"Mr. Willis understands the possible penalties that the Court may impose. He understands that he has the right to continue on with this trial and confront witnesses and to testify in his own behalf. And he has come to this decision freely and voluntarily. Is that correct, Mr. Willis?"
The defendant responded in the affirmative and the court proceeded to inform the defendant of the rights he waived by pleading guilty. At no time, however, did the court inform the defendant that the court was not bound by the agreement or recommendation of the State as to the sentence.
On March 28, 1975, the defendant appeared before the trial judge for sentencing and, when asked if he had anything to say, defendant replied:
"* * * I am working. I just got a good job. And if I could get probation in any way that I am doing good and I am not selling drugs anymore.
THE COURT: Wasn't it explained that this is not a probation offense?
MR. HOGAN: I don't know * * * don't know if it was explained that it was not a probation offense."
In fact, neither the attorneys nor the judge were sure if the offense was probationable and at that time they checked the ...