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People v. Wenger

OPINION FILED OCTOBER 21, 1976.

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

v.

LARRY LEE WENGER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding. MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The defendant, Larry Lee Wenger, was placed on 2 years' probation after pleading guilty to the offense of possessing less than 2.5 grams of heroin on August 13, 1971, in violation of sections 3 and 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, pars. 22-3, 22-40(6)).

Section 3 provided that:

"It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act."

Section 38 provided that:

"Whoever violates this Act by possessing, or having under his control * * * any narcotic drug shall be fined for the first offense not more than $5,000 and be imprisoned in the penitentiary for a period of not less than 2 years nor more than 10 years."

The trial court admonished the defendant at the time of his conviction and sentencing on October 13, 1971, that he could be sentenced to no less than 1 nor more than 3 years in the penitentiary and fined up to $10,000. The court then sentenced the defendant to 2 years' probation. On October 19, 1973, the defendant's probation was revoked and he was sentenced on May 3, 1974, to a term of from 32 to 96 months in the penitentiary. Defendant did not exercise his right to a direct appeal from that proceeding, but instead filed this post-conviction proceeding on July 7, 1975, alleging that his constitutional right to due process of law was violated by revocation of his probation and imposition of a sentence in excess of the trial court's admonition. Defendant appeals from the order dismissing his post-conviction petition.

Supreme Court Rule 402(a)(2) provides that:

"In hearings on pleas of guilty, there must be substantial compliance with the following:

(a) Admonitions to Defendant.

The Court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences * * *."

(Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2).)

A proper admonition in the instant case would have informed the defendant at the time his guilty plea was accepted that he was accused of an offense carrying a potential penalty of from 1 to 10 years in the penitentiary plus a fine of not more than $15,000. Section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402(b)).

• 1 The State argues that the inadequacy of Rule 402 admonitions is not of constitutional magnitude. This statement is valid on its face, because statutes and rules of court cannot confer constitutional rights. (People v. Barr (1973), 14 Ill. App.3d 742, 303 N.E.2d 202, aff'd, 58 Ill.2d 187, 317 N.E.2d 559.) Mere failure to comply with the requirements of Rule 402 does not ordinarily raise a constitutional issue unless the defendant alleges that the failure resulted in an involuntary or unintelligent plea. (People v. Nardi (1971), 48 Ill.2d 111, 116, 268 N.E.2d 389.) The mere contention that a sentence is excessive when it is within the statutory limits similarly fails to raise a constitutional issue. (People v. Ballinger (1973), 53 Ill.2d 388, 292 N.E.2d 400.) In seeking a review of trial court proceedings under the Post-Conviction Hearing Act the defendant need ...


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