APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Jackson County releasing defendant, Donald Reese, from the custody of the Illinois Department of Corrections.
The circuit court found that defendant's guilty plea was unfairly induced in violation of his due process rights because he was not admonished during the plea negotiations of the three year mandatory parole term which attached by operation of law to his negotiated one- to three-year term of imprisonment. (United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180; United States ex rel. Ferris v. Finkbeiner (7th Cir. 1977), 551 F.2d 185.) The court's release order purports to be made pursuant to both the Illinois Habeas Corpus Act (Ill. Rev. Stat. 1977, ch. 65, par. 1 et seq.) and the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.).
The issue on appeal is whether the circumstances surrounding the plea, including the failure to admonish Reese of the mandatory parole term, rendered his plea unintelligent and involuntary.
On December 14, 1973, defendant, then 17 years old, pleaded guilty to one offense of burglary pursuant to a plea agreement. The plea agreement contemplated defendant's entry of a guilty plea in the expectation that a specified sentence would be imposed and that other charges before the court would be dismissed. Prior to hearing the terms of the plea agreement, the court indicated that if it did not concur in the recommended sentence, defendant would be allowed to withdraw his guilty plea.
The terms of the plea agreement, as stated by the assistant State's Attorney, were that the State "would recommend that the defendant be sentenced to not less than one year as a minimum nor more than three years as a maximum to the Illinois Department of Corrections on the plea of guilty" and that the court dismiss three pending charges of misdemeanor theft, burglary and felony theft. The defense attorney agreed that this was the negotiation, and defendant indicated that he had nothing to add. The court then sentenced defendant in accord with the plea agreement.
1 Defendant was not informed during the plea proceedings of the mandatory parole term which would attach to his sentence of imprisonment. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(e)(2).) Nevertheless, he was fully admonished in conformity with Supreme Court Rule 402(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)) as then interpreted. Trial courts> were not required by that rule to admonish the defendant of the mandatory parole term prior to May 19, 1975. People v. Wills (1975), 61 Ill.2d 105, 330 N.E.2d 505, cert. denied (1975), 423 U.S. 999, 46 L.Ed.2d 374, 96 S.Ct. 430; People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559.
The proceedings conformed in all other respects with Rule 402 with the exception that the court failed to question defendant whether any force, threats or promises, apart from the plea agreement, were used to obtain his plea of guilty.
The defendant was released from the penitentiary and placed on parole on November 27, 1974. He was subsequently reincarcerated as a parole violator on July 2, 1976. In February of 1977, defendant commenced a collateral attack upon the judgment which culminated in a hearing on his supplemental petition, which pleaded in the alternative for a writ of habeas corpus or post-conviction relief.
Defendant submitted his own affidavit in support of the supplemental petition. In the affidavit, defendant stated that as he understood it, the negotiated agreement required him to serve a maximum of three years in prison for his guilty plea, that before his guilty plea was accepted he was not told by the court, the State's Attorney or his own attorney of any mandatory period of parole to which he would be subject, that he was, in fact, unaware of any such period of parole and that he would not have pleaded guilty had he known his maximum period of potential incarceration was six years rather than three years.
At the time of the hearing, defendant was incarcerated solely on the basis of the mandatory parole term. After hearing arguments of counsel, the instant release order was entered.
We note at the outset that the appropriate Federal courts> and our State courts> have taken divergent positions with respect to the making of guilty pleas in the absence of admonishment as to the mandatory parole term.
The leading State court case is People v. Wills (1975), 61 Ill.2d 105, 330 N.E.2d 505, decided by our supreme court. In Wills, the court held that Supreme Court Rule 402(a)(2) (Ill. Rev. Stat. 1977, ch. 110A, par. 402(a)(2)):
"* * * requires that a defendant be admonished that the mandatory period of parole pertaining to the offense [Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(e)] is a part of the sentence that will be imposed and that he can be held subject to the jurisdiction of the Parole and Pardon Board for a period of time equal to the maximum term of imprisonment provided in ...