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People v. Bennett

OPINION FILED MARCH 27, 1980.

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

v.

FRANK ALLEN BENNETT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Saline County; the Hon. HARRY L. McCABE, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

Defendant appeals from denial of his motion to withdraw his guilty plea, entered on the charge of murder, for which he was sentenced to 30 years' imprisonment. He further appeals from dismissal of his post-conviction petition, based on the same charge, which has been consolidated with his direct appeal.

Defendant was charged by information with the March 15, 1978, murder of his wife. A competency hearing was held on April 14, 1978, and following the testimony of a court-appointed psychologist, the defendant was found fit to stand trial. At the preliminary hearing on May 9, 1978, probable cause was found. Two days later, defendant requested and received a hearing, at which he pleaded guilty to the murder charge.

At the May 11 hearing, defendant's counsel informed the court that his guilty plea was against counsel's advice, but that defendant had insisted. The court then admonished defendant that he was charged with murder, read the information to him, and advised him of possible penalties. When defendant persisted in his plea, the State's Attorney provided a factual basis for the plea.

The State's Attorney advised the court that, if the case were to go to trial, Glen Amberger, an Eldorado policeman, would testify that on March 15, 1978, he received a call reporting a disturbance at an apartment in Eldorado. When Amberger opened the door of the apartment, defendant handed him a .410-gauge shotgun and told the officer, "I killed the goddamned whore." Amberger thereupon placed defendant under arrest.

Marlin Nelson, an occupant of the apartment, would testify that defendant entered his apartment and, addressing Roseanna Bennett, defendant's wife, stated, "I am going to kill you." He then shot Roseanna in the head, reloaded the shotgun and shot her prone body a second time. Mrs. Marlin Nelson and Shirley Kilmer, who were also present, would testify to the same facts.

The State's Attorney further asserted that Jack Nolen, a detective for the Illinois Division of Investigation, would testify that after Miranda warnings were given, defendant made a voluntary statement. According to defendant's statement, on March 14, defendant's wife failed to pick him up at his place of employment in Kentucky as they had agreed. After several hours of searching, he found his wife at her aunt's home in Eldorado at about 3 p.m. the next day. She refused to go home with him, so he proceeded to the residence of Ed O'Neal in Junction, Illinois, where he borrowed a .410-gauge shotgun and two shells. From there he drove to Eldorado, about 15 miles, and found his wife at the house of Shirley Kilmer. His wife then fled from the Kilmer house to the apartment of Marlin Nelson, to which he pursued her and shot her twice, with intent to kill her.

Finally, the State's Attorney asserted that Dr. Warren Dammers, coroner's physician, would testify that the cause of Roseanna Bennett's death was gunshot wounds of the head and neck. Defense counsel stipulated as to the witnesses' testimony, and the defendant agreed that the factual basis was substantially correct.

The court then advised defendant of his right to a preliminary hearing, to a jury trial, to be prosecuted only on the information, to be confronted by witnesses against him, of his privilege against self-incrimination, and of his right to present evidence in his own behalf. Defendant waived his right of confrontation, and asserted that he understood the charges against him. He affirmed that his guilty plea was voluntary and a result of his own decision, and that he "voluntarily, knowingly and understandingly" waived his rights. The court then accepted his guilty plea.

On June 21, 1978, defendant filed a motion to withdraw his guilty plea. At the hearing on the motion, defendant asserted that he pleaded guilty because he had been nervous, and he "didn't quite understand what was going on." His nervousness arose from the fact that he had never been in jail before. He claimed that, while his counsel had advised him of possible defenses or lesser offenses, he "didn't quite understand them." He also contended that members of his family had urged him to plead guilty, so he could "get it over with."

On cross-examination, defendant admitted that he was just as nervous at the hearing to withdraw the guilty plea as he had been when he entered the plea. He admitted that the plea had not been coerced, and that his attorney had talked to him for 15 or 20 minutes about the consequences of his plea. Included in the discussion was counsel's recommendation that he not plead guilty, because "he said I would maybe get off with manslaughter or something like that."

Defendant's motion to withdraw his plea was denied, and on June 29, 1978, defendant was sentenced to 30 years' imprisonment. The following day defendant renewed his motion to withdraw, it was again denied, and notice of appeal was filed.

On October 2, 1978, defendant filed a pro se post-conviction petition, and counsel was appointed. At a hearing on December 13, 1978, defendant's petition was dismissed on the prosecutor's motion, from which dismissal defendant also appeals.

On direct appeal, defendant contends that his motion to withdraw should have been granted for the following reasons: (1) he was not properly admonished of the nature of the charge against him; (2) he was not advised of the possibility that he could be convicted of some lesser included offense; (3) he was not advised that he had the right to persist in the plea of not guilty, and (4) his guilty plea was not entered knowingly and ...


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