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People v. Nyberg





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit PER CURIAM:

Defendant, Barbara Sue Nyberg, was indicted for the murder of her 4 1/2-month-old son. After two days of a bench trial in the circuit court of Cook County, defendant entered a plea of guilty to voluntary manslaughter and was sentenced to a term of 5 to 20 years in the penitentiary. Defendant appealed, and the appellate court, with one judge dissenting, reversed the judgment of the circuit court and remanded the cause with directions to allow defendant to plead anew. (People v. Nyberg, 24 Ill. App.3d 41.) The appellate court found that there was no factual basis to support the plea of guilty. We granted the State leave to appeal in which it maintains that the trial judge was correct in finding a factual basis for defendant's guilty plea.

The following facts were adduced at defendant's bench trial. On June 3, 1971, defendant, who was 22 years old, resided with her parents and her two children. She was married but separated at that time. At approximately 8 a.m. that morning, defendant was visited by her 17-year-old boy friend, who had earlier been drinking wine. From 8 to 8:30 a.m. defendant consumed two glasses of an alcoholic beverage and prepared the infant's formula. Defendant and her boy friend then proceeded to the upstairs bedroom to feed the infant. She merely placed the baby's bottle near the child's mouth. There were conflicting statements as to whether the infant showed any signs of life at that time.

After engaging in sexual intercourse with the defendant in a downstairs bedroom for a portion of the morning, the defendant's boy friend left the home at approximately 12:30 p.m. Each claimed that the other was alone upstairs with the infant at some time during the morning. After her boy friend had left, defendant discovered that the infant was "unconscious." The police were notified, and when they arrived they found the infant "stiff" and "very pale." The infant also had two marks on its head. At 1:50 p.m. the child was pronounced dead. The infant had been seen alive by defendant's father between 5:30 and 6 a.m. that same morning. There were no other marks or traces of blood on the baby's body, and no one saw defendant strike or hit the infant. Defendant was alone with the two children from 7 to 8 a.m., and the only other person known to have entered the home that morning was defendant's boy friend. Defendant made two separate statements to the police in which she failed to mention that her boy friend was present at her home that morning. Only during her third interview did she inform the police of this fact. On two separate occasions, in the presence of others, defendant stated that she "did it," but later she retracted these statements contending that the only reason she confessed was to get her boy friend "off the hook."

Prior to trial, defendant underwent extensive psychological testing, and the results were made part of the record by the trial judge. The tests indicated that defendant was passive and in the dull normal range of I.Q. She was, however, competent to stand trial, able to understand the purpose of the proceedings and cooperate with her attorney.

After entering her not guilty plea, a hearing was held March 1, 1972, on defendant's pretrial motion to suppress evidence. The report of proceedings indicated that the trial court ruled that certain physical evidence was suppressed, specifically the crib and the attached rod, which were acquired without a warrant. However, the common law record contains an order entered on March 1, 1972, denying defendant's motion to suppress physical evidence and to suppress statements. The order does not state that any physical evidence was suppressed. The State's case in chief commenced May 18, 1972, and on the following day the court held a hearing on defendant's motion to suppress the statement "I did it," which she allegedly made on June 4, 1971. Defendant's motion was denied, and the case was continued until May 22, 1972. The State's Attorney informed the court that on May 22, 1972, Dr. Kearns of the coroner's office would testify. However, the next proceeding, according to the record, was not held until June 29, 1972, at which time a hearing was held on defendant's change of plea. The record does not show any testimony given by Dr. Kearns.

The State raises only one issue on appeal. It maintains that a factual basis for a guilty plea may be made "off the record" and that proof of a criminal agency need not be shown as part of a guilty plea. Supreme Court Rule 402(c) requires the court to determine that a factual basis exists before entry of final judgment on a guilty plea. (People v. Warship, 59 Ill.2d 125.) The means of inquiry utilized by the trial court shall be determined on a case-by-case basis. Its search is not restricted only to what is in the record, but it may use any means at its disposal which will satisfy its inquiry as to whether or not a factual basis exists. See 58 Ill.2d R. 402(c), Committee Comments.

In the instant case, there were several days of testimony, including two days of trial in which the trial court heard the major portion of the prosecution's case in chief before the defendant offered her plea of guilty. Testimony was received which showed that defendant, on two separate occasions, stated "I did it." Also, conferences were held among the judge, defendant's attorneys and the prosecutor during the time period between the last day of trial and the day of the hearing on the change of plea. At that hearing, the court stated:

"So based on all these hearings in and out of chambers, whatever was said here today, there will be a plea of guilty, finding of guilty, judgment on the finding."

Considering this wide exposure to information that the trial court had, we would be hesitant to overrule that court's determination that a factual basis for a plea of guilty existed unless the facts and circumstances of the case clearly showed that it did not exist. "The quantum of proof necessary to determine if there is a factual basis for the plea is less than that necessary to sustain a conviction after a full trial." (People v. Arnold, 18 Ill. App.3d 95, 98.) Therefore, we affirm the trial court's finding that a factual basis exists.

On her appeal to the appellate court and before this court, defendant maintains that the trial judge erred in that he did not personally inform her of and did not determine that she understood the nature of the charge. In our recent decision in People v. Robinson, 63 Ill.2d 141, 145, we stated that the requirements of Rule 402(a)(1) are two-pronged. Not only must the court inform the defendant of the nature of the charge, it must also determine that the defendant understands the nature of the charge. We further held that when defendant is represented by counsel and enters a plea of guilty pursuant to a plea agreement it is appropriate to inform him of the nature of the charge by naming the offense. (People v. Robinson, 63 Ill.2d 141, 146.) In the present case the judge personally informed the defendant of the nature of the charge in the following colloquy:

"Q. You know what you are charged with. You are charged with murder which, in Illinois, demands a minimum 14 year sentence, but that if you plead guilty to a lesser charge of voluntary manslaughter, that carries a sentence of 1 to 20 years. And then if you plead guilty knowing all this, this court would sentence you from 5 to 20 years. * * * Do you understand that?

A. Yes."

This admonishment substantially complies with the first part of the two-pronged test. In determining whether the trial court substantially complied with the latter part of the test, the entire record may be considered. (People v. Krantz, 58 Ill.2d 187, 192; People v. Robinson, 63 Ill.2d 141, 146.) At the change-of-plea hearing in the present case defendant's attorneys informed the court that they discussed the case, and particularly, the plea of guilty with defendant, her mother and father, and her minister. It is also shown that the trial judge carefully and in simple terms admonished defendant, pausing often to ask if she understood his explanation. The judge declared in the record: "I'm quite sure she ...

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