APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE KARNS delivered the opinion of the court:
Defendant Thomas Latham appeals from the judgment of guilty and sentence of 4 to 8 years imprisonment following the entry of an unnegotiated plea of guilty to the offenses of conspiracy to commit murder and solicitation to commit murder. Defendant argues that the plea was not voluntarily and intelligently entered and that the court erred in imposing the 4- to 8-year sentence.
The factual basis for the plea reveals that a Mrs. Jack Foster wanted her husband killed in order to collect the proceeds of an insurance policy on the life of her husband. Defendant participated in this scheme and was arranging for the hiring of a contract killer when the police arrested both Mrs. Foster and defendant. Mrs. Foster had been willing to share the insurance proceeds with defendant and the killer.
At the guilty plea hearing, defendant's retained counsel stated that defendant was entering an unnegotiated plea of guilty to both offenses. The court admonished defendant of the nature of the charge and his rights pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402) and determined that the plea was voluntarily and understandingly entered. In explaining the minimum and maximum terms the court stated:
"Solicitation is Class I, Conspiracy is Class II felony. A Class I felony carries a possible punishment of not less than four years, upward * * *. A Class II felony carries a possible punishment of not less than one year nor more than twenty years or multiples thereof, like 5 to 15, 6 to 18 * * *."
It was defense counsel's understanding, and the trial court agreed, that solicitation and conspiracy were "included" offenses and that defendant would be sentenced on only one of these crimes. Throughout these proceedings, however, it was not clear which of these two offenses the parties and the court believed was the lesser included offense.
At the sentencing hearing, the trial court imposed the 4- to 8-year term without stating on which charge defendant was being sentenced. The mittimus reflected that only one sentence was imposed, although it revealed that defendant was guilty of both offenses.
Defendant thereafter filed a motion to set aside the guilty plea and reconsider the sentence. At the hearing on this motion, defense counsel stated that defendant had informed him that he did not fully understand the guilty plea proceedings. After evidence was heard, the trial court denied the motion.
1 We first note that the trial court imposed only one sentence when defendant pleaded guilty to two offenses. At the guilty plea hearing, defense counsel stated a belief, with which the trial court concurred, that the crimes of solicitation and conspiracy were included offenses which mandated only one sentence. Defendant argues in his brief that, as the alleged offenses arose out of the same course of acts and conduct, this court must find the presence of a lesser included offense. On appeal, defendant argues that solicitation is a lesser included offense of conspiracy. People v. King, 66 Ill.2d 551, 363 N.E.2d 838 (1977), cert. denied (1977) 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273, cited by both parties, makes it clear that two or more offenses are not necessarily lesser included crimes just because they arise out of a series of incidental or closely related acts. To constitute a lesser included offense:
"[I]t is necessary that the greater offense include every element of the lesser offense plus one or more other elements. [Citations.] To say this another way, a lesser included offense, sometimes referred to as a `necessarily included offense,' is one composed of some, but not all of the elements of the greater offense, and which does not have any element not included in the greater offense [citation] so that it is impossible to commit the greater offense without necessarily committing the lesser offense." (People v. Delk, 36 Ill. App.3d 1027, 1041, 345 N.E.2d 197, 209 (5th Dist. 1976).)
It is obvious that neither solicitation nor conspiracy is a lesser included offense of the other. The elements comprising these two offenses contain a critical difference. To prove the offense of solicitation, the State must show that an individual, with the intent that an offense be committed, requests another to commit that offense. (Ill. Rev. Stat. 1975, ch. 38, par. 8-1(a).) To prove a conspiracy, the State must show that an individual agrees with another to commit an offense and then performs an act in furtherance of the conspiracy. Ill. Rev. Stat. 1975, ch. 38, par. 8-2(a).
2 Our finding that the crimes to which defendant pleaded guilty are not included offenses would under normal circumstances necessitate a sentence for both violations. In the present situation, however, it appears that defendant entered a plea of guilty on the belief that he would be sentenced on only one offense. Not only did defense counsel and the trial court agree with this proposition, but the State, in its brief, seems willing to concede the existence of a tacit agreement which provided for defendant pleading guilty to two offenses but being sentenced on only one. In light of this plea arrangement which, we emphasize, arose out of the misconception of the parties that either solicitation or conspiracy was a lesser included offense, it was therefore proper for the court to sentence defendant on only one offense in accordance with the parties' agreement.
Defendant, however, contends that his plea was not voluntarily and intelligently entered, and consequently argues that the original 4- to 8-year sentence cannot stand. Defendant, apparently believing that he was sentenced on the offense of solicitation to commit murder, argues that the trial court misinformed him that the mandatory ...