APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 3, 1979.
Petitioner, Augusto Cosey, appeals from the judgment of the circuit court of Cook County dismissing his amended petition for post-conviction relief. The petition sought to set aside a negotiated plea of guilty to armed robbery and unlawful use of weapons, entered on May 5, 1975, on the ground that the plea was not entered knowingly and voluntarily. The issue on appeal is whether the failure to inform the petitioner that specific intent was an element of each offense and that each conviction carried a mandatory parole term resulted in a substantial deprivation of his constitutional rights which would render his guilty pleas involuntary. The pertinent facts follow.
By three indictments, petitioner, Augusto Cosey, was charged with the commission of two armed robberies (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and the offense of unlawful use of weapons within five years after conviction of a felony (Ill. Rev. Stat. 1973, ch. 38, par. 24-1).
At the trial on May 9, 1975, counsel for the petitioner indicated to the court that petitioner, as a result of a conference, wished to withdraw his previously entered pleas of not guilty, and to enter guilty pleas as to all three charges. Counsel further stated that the understanding of the petitioner was that if he entered a plea of guilty to all charges, he would receive sentences of five to ten years on each of the armed robberies and one to ten years on the unlawful use of weapons charge, all sentences to run concurrently.
The court then informed the petitioner that he was charged with the commission of two armed robberies, and the offense of unlawful use of a weapon within five years after conviction of a felony. The court further informed the petitioner of the minimum and maximum possible sentences for each conviction and that each sentence could run consecutively or concurrently. The petitioner stated that he understood. The court further admonished petitioner that by pleading guilty he was giving up his right to trial by jury and the right to subpoena witnesses and compel those giving testimony against him to do so in open court and to subject themselves to cross-examination. The petitioner then acknowledged that no threats or promises had been made in order to obtain his guilty pleas.
Following this, the court discussed the proffered plea agreement with the petitioner. Petitioner agreed that his understanding of the plea bargain was the same as set forth by the court. The court then obtained the underlying factual basis of each charge from the Assistant State's Attorney. The facts were stipulated as accurate by the petitioner. No one advised the petitioner that a mandatory period of parole would be part of the sentence imposed and that he could be held subject to the jurisdiction of the Pardon and Parole Board pursuant to section 5-8-1(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(e)).
After having determined that the petitioner understood the charges and sentencing provisions and that the plea had not been coerced, the court entered findings of guilty on all three charges and, in conformity with the plea negotiations, sentenced him to concurrent terms of imprisonment of five to ten years on each of the charges of armed robbery, and one to ten years for the offense of unlawful use of weapons. No appeal was taken.
On July 29, 1975, petitioner filed a pro se petition seeking relief under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.). On April 1, 1976, the State filed a motion to dismiss the petition. On August 26, 1976, petitioner filed an amended petition alleging that his constitutional rights were violated at his hearing in that the court did not inform him that the Unified Code of Corrections required a mandatory parole term, nor did the court inform him that the offenses with which he was charged were crimes requiring specific intent.
On August 26, 1976, the court dismissed the petition on the ground that there was no constitutional violation and, therefore, no alleged ground upon which to base relief under the Post-Conviction Hearing Act. Petitioner filed a timely notice of appeal.
Petitioner contends that his pleas of guilty were not intelligently and voluntarily given because he was not informed that armed robbery and unlawful use of weapons were specific intent crimes and that a conviction on each charge carried a mandatory parole term. He further maintains that the allegations in his petition raise constitutional issues so that it was error for the trial court to dismiss the petition without a hearing, and further, that this court should vacate the pleas entered to allow the petitioner to go to trial. The State replies that there was no error of a constitutional dimension in the plea hearing and, therefore, the dismissal of the petition was proper.
1 Under the Post-Conviction Hearing Act, this court is limited to a consideration of only those issues which involve substantial deprivations of a constitutional right. (People v. Calhoun (3d Dist. 1976), 39 Ill. App.3d 204, 349 N.E.2d 135.) Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, sets forth the constitutional requirements for accepting guilty pleas in State court proceedings. The Illinois Supreme Court in People v. Reeves (1971), 50 Ill.2d 28, 29, 276 N.E.2d 318, stated that:
"Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review `the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily.' [Citations.]"
Unlawful use of weapons is a specific intent crime in that the accused must knowingly carry or possess the weapon. Ill. Rev. Stat. ...