APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Lester E. Willis appeals from the order of the circuit court of Cook County dismissing his petition for post-conviction relief without an evidentiary hearing. He argues that he was entitled to an evidentiary hearing because the petition, affidavits and transcript of his trial wherein he pleaded guilty made a prima facie showing of his right to relief where (1) the admonitions of the court preceding his plea of guilty were insufficient to establish that he had been informed of the nature of the charges against him and that a factual basis for his plea existed and (2) his guilty plea was induced by misrepresentation of counsel that the sentence he would receive on his plea would run concurrently with another sentence to be imposed for a probation violation.
The facts are not in dispute, although there is a dispute as to the legal consequences of the facts. Petitioner Willis pleaded guilty to charges of auto theft and armed robbery in August 1967, for which he was sentenced to concurrent terms of 5 years probation, with the first 5 months to be served in custody. Eight months later, in April, 1968, petitioner had been charged by indictments with four counts of rape, two counts of attempt rape, two counts of robbery and one count of attempt robbery. He was also charged with contempt of court. Petitioner was represented on these charges by Assistant Public Defender Cornelius Toole, who appeared with petitioner before the court and informed the court that he had conferred with petitioner and specifically advised him of his right to trial and the possible sentences upon conviction for the offenses charged. Mr. Toole informed the court that Willis wanted to withdraw his plea of not guilty and plead guilty to the offenses charged. Mr. Toole then questioned petitioner in open court and Willis acknowledged that his plea was freely and voluntarily made.
The court then questioned Willis, ascertaining that Willis was aware he was waiving his right to a jury trial by his pleas of guilty and that Willis knew what the possible sentences were on each of the charges. The court accepted the pleas. The prosecutor then sought to establish a factual basis for each plea through stipulation in the following manner:
"Mr. Moran: It is stipulated between Mr. Toole, representing Mr. Willis, that if the witnesses were called on Indictments 68-296 and 68-297, charging the offenses of attempt to commit rape, they would testify to facts set forth in those indictments charging the offense of attempt to commit rape.
Mr. Toole: So stipulated."
The same form was followed for each offense charged.
Evidence was offered in aggravation and mitigation, with no mention of any agreement between the State and petitioner as to the sentences to be recommended. The court sentenced Willis to imprisonment for from 10 to 14 years for the attempt rape and attempt robbery convictions, and 10 to 15 years for the rape and robbery convictions, and one year for the contempt conviction, all sentences to run concurrently. These sentences were less than those recommended by the State.
On May 22, 1968, Willis appeared before the judge who had sentenced him to probation in 1967 to answer the State's petition for revocation of probation. Willis was represented by a second assistant public defender, Harold Cowan. The State introduced certified copies of the convictions entered in April. The judge revoked the probation and sentenced Willis to imprisonment for from 5 to 15 years for armed robbery and for from 5 to 10 years for theft, these sentences to run concurrently with each other but consecutive to the sentences imposed on petitioner's guilty pleas the month previously. Defense counsel's only recommendation was that the maximum sentence imposed not exceed three times the minimum, which recommendation was followed by the court. The court repeated the sentence upon inquiry by defense counsel and the prosecutor repeated the sentence for a third time, giving the docket numbers of the convictions for clarity. The court then inquired whether petitioner had been advised of his right to appeal, right to a free transcript and appointed counsel and petitioner responded affirmatively. The court nevertheless repeated to petitioner that he had a right to a transcript, a notice of appeal to be filed at his request and appointment of counsel for his appeal, all without cost. Petitioner again responded affirmatively. No one made any mention of an agreement as to sentencing and neither petitioner nor his counsel made any remark or protest about the sentence.
No appeal was taken from the above proceedings.
On November 11, 1972, Willis filed a pro se petition for post-conviction relief. The public defender was appointed to represent him and a supplemental petition, supported by affidavits of petitioner and Cornelius Toole, was filed on September 14, 1973. The court granted the State's motion to dismiss the petition after argument on October 29, 1973. Petitioner appealed, but during the pendency of the appeal petitioner's attorney became aware, for the first time, that Willis's mother had allegedly been present during a discussion between petitioner and Toole prior to petitioner's pleas. Leave was sought to file her affidavit in this court, which we denied in an order reversing the trial court's dismissal and remanding to allow the lower court to consider the petition in light of the additional affidavit.
The trial court allowed petitioner's motion to file his mother's affidavit. The State again moved to dismiss and, after argument on November 5, 1975, the motion to dismiss was granted.
• 1 The thrust of petitioner's first contention is that he was denied due process of law by the court which accepted his guilty pleas because that court failed to determine a factual basis for his pleas and failed to admonish him as to the nature of the charges against him. The trial court properly dismissed this part of the petition, because there is no requirement under either the State or Federal constitutions that a trial court accepting a guilty plea must determine a factual basis or admonish the defendant as to the nature of the charges. (People v. Brittain (1974), 19 Ill. App.3d 616, 312 N.E.2d 39; People v. Holvey (1974), 17 Ill. App.3d 809, 308 N.E.2d 622.) Only "a substantial denial of his rights under the Constitution of the United States or of the State of Illinois" may be properly advanced by petitioner in a post-conviction ...