Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. Luther H. Dearborn, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1981.
The defendant, Jimmy Eugene Barker, pleaded guilty to two counts of attempted murder in the circuit court of McLean County. After sentencing in accordance with a written plea agreement, the defendant moved to vacate his guilty pleas under Supreme Court Rule 604(d) (73 Ill.2d R. 604(d)). This motion was denied. The appellate court, in a Rule 23 order (73 Ill.2d R. 23), reversed the defendant's two convictions for attempted murder and remanded the cause to allow defendant to plead anew. (72 Ill. App.3d 1110.) We allowed the State's petition for leave to appeal. 73 Ill.2d R. 315.
The defendant urges us to affirm the appellate court's order, claiming that (1) the indictment to which he pleaded guilty was fatally defective for failing to allege an essential element of the offense, and (2) his guilty pleas were not supported by a factual basis as required by Supreme Court Rule 402 (73 Ill.2d R. 402), and (3) that his pleas were not voluntary since the trial judge failed to admonish him as to the "intent to kill," an essential element of attempted murder. We do not agree and reverse.
On May 25, 1978, an indictment replacing an information charged the defendant with two counts of unlawful use of weapons, one count of armed violence, and two counts of attempted murder. The attempted-murder counts, to which the defendant later pleaded guilty, were identical in their language except for the name of the victim. They stated of the defendant that "he knowingly with intent to commit the offense of murder, did acts which constitute a substantial step towards the commission of murder, to wit: firing a sawed-off shotgun in the direction of Ed Moser [Richard Ryan], a police officer." A negotiated plea agreement was presented to the court on July 6, 1978, in which the defendant agreed to plead guilty to the two counts of attempted murder. In return, the State agreed to nol-pros the remaining three counts, as well as several other unrelated offenses. It was further agreed that the defendant would not be sentenced to more than 20 years' imprisonment. A hearing was held at which the attempted-murder charges were read to the defendant. He was also admonished in accordance with Supreme Court Rule 402 (73 Ill.2d R. 402). At no time was the defendant specifically informed by the court that the "intent to kill" was a necessary element of attempted murder. After admonishing the defendant, the court requested the prosecutor to relate the factual basis for the pleas. After the prosecutor did so, the court asked the defendant if he agreed with the prosecutor's statement and if that was what in fact happened. The defendant answered in the affirmative to both questions. The court then found that there was a factual basis for the pleas and that the pleas were voluntary. The court, after accepting the pleas of guilty, ordered a presentence investigation and report and continued the matter for a sentencing hearing.
A sentencing hearing was held on August 10, 1978, during which the defendant stated, "I never had no intentions of taking no one's life. I was just scared that night and trying to get away." After being sentenced to 20 years' imprisonment, the maximum term provided by the agreement, defendant filed a motion to withdraw his pleas of guilty. Defendant's motion contended that he was not properly admonished as to the nature of the charge and that the factual basis underlying his pleas of guilty did not establish the requisite intent to kill. The motion was denied.
In the appellate court the defendant challenged the denial of his motion and for the first time raised the claim that the indictment was defective. The appellate court ruled that both the indictment and the factual basis were sufficient but reversed the conviction as a matter of "fundamental fairness * * * since it is arguable that his plea related to the lesser mental state [for murder]," that is, a specific intent other than to kill. Throughout all of these proceedings, the defendant was represented by counsel, and no claim has been made challenging the adequacy of that representation.
Defendant argues that the indictment to which he pleaded guilty was fatally defective for failing to allege an essential element of the offense — the intent to kill. We do not agree. In People v. Trinkle (1977), 68 Ill.2d 198, this court held that, to convict one for attempted murder, the State must prove that the accused acted with the intent to kill. Since Trinkle, the court has adhered to that holding. (See People v. Harris (1978), 72 Ill.2d 16; People v. Roberts (1979), 75 Ill.2d 1; People v. Jones (1979), 81 Ill.2d 1.) The defect common to all those cases was not, as is claimed here, a failure to allege an essential element of attempted murder. Rather, the error arose from defining the substantive offense of murder in the instructions in such a way that a lesser mental state other than intent to kill would seemingly support a conviction for attempted murder.
In Harris, for example, the defendant was charged with attempted murder. The jury was instructed both as to the elements of an attempt and the substantive offense of murder. The instruction on murder stated:
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual." (72 Ill.2d 16, 20.)
This instruction was held defective for it allowed the jury to return a guilty verdict if the defendant acted only with intent to do great bodily harm and if he did not have the intent to kill. If it were not necessary to prove intent to kill to convict one for attempted murder, any defendant who committed a battery intending only to harm his victim would automatically be guilty of attempted murder. People v. Trinkle (1977), 68 Ill.2d 198, 201.
The guilt of the defendant in the case before us was not determined by a trier of fact but by pleas, so we do not have the possibility of a jury, because of an erroneous instruction relative to the requisite intent, convicting a defendant when he, in fact, did not have the intent to kill. It was the erroneous instruction defining murder which was present in People v. Muir (1977), 67 Ill.2d 86, People v. Trinkle (1977), 68 Ill.2d 198, People v. Harris (1978), 72 Ill.2d 16, and People v. Roberts (1979), 75 Ill.2d 1, that created the difficulty in those cases. In fact, the language that was so troublesome, which is found in the alternate definitions of murder — "He either intends to kill or do great bodily harm * * *" and "He knows that such acts create a strong probability of death or great bodily harm * * *" (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) — is totally absent in this case. None of this language was contained in the indictment. It was not used by the court when admonishing the defendant. At no stage of the proceeding was it even intimated that a person could be found guilty of attempted murder if he only had the intent to do great bodily harm.
As stated earlier, the indictment charged that the defendant with the intent to commit the offense of murder did acts which constituted a substantial step toward the commission of murder, to wit: firing a sawed-off shotgun in the direction of a police officer. The Criminal Code of 1961, in defining the inchoate offense of attempt, provides:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a).)
In this case, the literal requirement of the statute has been complied with. The defendant was charged with the attempt to commit a specific offense (murder) and with doing acts which constituted a substantial step toward the commission of that offense (firing a sawed-off shotgun in the direction of a police officer). Admittedly the indictment could have been in more detail and, in addition to the two allegations it now contains, could have further stated that the acts were performed with the intent to kill. However, this further allegation would have been redundant. Under section 9-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)) a person may commit murder without specifically intending to kill anyone. However, since all murders involve a killing, a person cannot intend to commit murder without intending to kill. It is not logical to argue that an indictment charging one with the intent to commit murder does not charge that he had the intent to kill. Since the indictment has charged that the defendant, with the intent to commit murder, did certain acts, it is unnecessary to again charge that the acts he performed, as a substantial step toward the commission of that offense, were committed with the specific intent to kill. If the indictment had only charged the defendant with the intent to kill and did not include the allegation that the defendant acted with the intent to commit murder, it would have been defective under section 8-4(a) of the Criminal Code, quoted above, in that it would not have charged the defendant with an intent to commit a specific offense. The act of killing, or even intending to kill, is not necessarily a criminal offense (self-defense, for example).
The indictment is not defective. It is sufficiently clear and certain to apprise the defendant of the crimes with which he stands charged in order that he may intelligently prepare a defense and plead the judgments in bar of subsequent prosecutions for the same offenses. (People v. Patrick (1967), 38 Ill.2d 255, 257.) The indictment charges the offenses in the language of the statute and, contrary to defendant's contention, does not omit an essential element.
Defendant next argues that his guilty pleas were improperly accepted since there was no factual support regarding an essential element of the offense — intent to kill. Supreme Court Rule 402(c) requires that, before a court enters final judgment on a plea of guilty, there must be a determination that a factual basis exists for the plea. (73 Ill.2d R. 402(c).) However, the quantum of proof necessary to establish a factual basis for the plea is less than that necessary to sustain a conviction after a full trial. (People v. Nyberg (1976), 64 Ill.2d 210, cert. denied (1977), 430 U.S. 970, 52 L.Ed.2d 362, 97 S.Ct. 1654; People v. Ginder (1975), 26 Ill. App.3d 295; People v. Arnold (1974), 18 Ill. App.3d 95.) All that is required to appear on the record is a basis from which the judge could reasonably reach the conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. (People v. Hudson (1972), 7 Ill. App.3d 800.) In evaluating the sufficiency of the factual basis to support a plea of guilty, a trial judge is in much the same position and would apply similar standards as those used in determining the sufficiency of the State's evidence at trial to withstand a motion for a directed verdict of not guilty.
In the instant case a factual recital was made by the State's Attorney, who described the events leading up to a gun battle in which the defendant was injured. The recital described a chase on foot during which five police officers pursued Barker and attempted to surround him. Speaking specifically of the shooting incident, where the defendant employed a sawed-off shotgun, the State's Attorney said, "Mr. Barker fired one shot in the direction of Detective Richard Ryan and also fired one shot in the direction of Officer Ed Moser." The following discussion was then held in court:
"THE COURT: Mr. Barker, you've heard what Mr. Murphy said here this morning about what happened in this incident, I take it.
THE COURT: You understand what he said?
THE COURT: And is there any question about what he said ...