APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant John Waldorf pled guilty to three counts of aggravated battery and was sentenced to five years' probation. Subsequently defendant filed a petition to vacate the guilty plea. Following a hearing the trial court denied the petition. On appeal defendant contends: (1) the trial court failed to substantially comply with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1975, ch. 110A, par. 402); (2) defendant was coerced into pleading guilty by his original trial attorney; (3) the trial court applied the wrong standard in determining whether defendant's plea should be vacated.
The plea at issue was entered on July 12, 1976. Defendant was then represented by attorney James Brandvik. Brandvik informed the court on that day that he and the State's Attorney had had a conference, had reached an agreement, and wished to confer with the court. The court addressed the defendant, informing him that at such a conference all the facts concerning the charges against him would be disclosed to the court along with the defendant's previous criminal record, if any, and additional background information concerning him. The court also told the defendant that the "results" of the conference would be conveyed to him and that if he was dissatisfied with those results then the case would be tried before a jury with the same judge presiding. Defendant stated that he understood all this and requested such a conference.
The case was passed, and subsequently defense counsel informed the court that he had discussed the matter with the defendant and that defendant wished to withdraw his plea of not guilty and enter a plea of guilty to the indictment. The court ascertained from the defendant that this was correct and then informed him of the possible penalties for aggravated battery, which defendant said he understood. The court told defendant he was entitled to a trial by jury and defendant indicated that he had voluntarily signed a jury waiver. The court also ascertained that defendant was aware of his right to a presentence investigation report but had also signed a waiver of that right. Defendant acknowledged that he understood he was pleading guilty to three counts of aggravated battery, which the court read to him. The following colloquy then ensued:
"The Court: Let the record show the defendant understands the charge against him, that he persists in pleading guilty. Are you pleading guilty because in fact you are guilty or because someone threatened you, intimidated you, molested you, or promised you anything other than what was agreed upon during the conference between the Court, your attorney and the State's Attorney? Anyone promised you more than that?
The Defendant: No, your Honor.
The Court: Let the record show the defendant understands the consequences of the plea. The Court will accept the plea of guilty and listen to the stipulated facts."
It was stipulated that defendant was 52 years of age and that on November 18, 1974, he had cut off Mrs. Candis Eberhart in traffic and then followed her to Evanston. There he confronted her husband and fired a "device capable of firing a blank cartridge" at him. The carbon residue from that cartridge entered Mr. Eberhart's eye causing him bodily harm. The court found defendant guilty based on this stipulation and entered judgment on the finding. In aggravation the State relied on the facts in the stipulation, noted that defendant had no criminal record, and recommended a sentence of five years' probation. Defense counsel confirmed defendant's lack of a criminal record and informed the court that an agreement for restitution had been reached with the Eberharts. The court accepted the recommendation of the State and sentenced defendant to five years' felony probation.
Defendant was informed by the court that he had a right within 30 days to change his plea from guilty to not guilty. He was told he would have to do this by sworn petition, to be followed by a hearing. If the court sustained the petition the cause would be reinstated.
On August 6, 1976, defendant, represented by new counsel Charles Schwartz, filed a petition to vacate the plea, alleging that he had been coerced by his trial counsel into pleading guilty. An additional allegation that defendant was not admonished pursuant to "appropriate Supreme Court rule" concerning the nature of the plea bargaining was struck by defendant's counsel prior to the hearing. Counsel also stated to the court that the petition did not "allege any technical violations of Supreme Court Rule 402."
At the hearing defendant testified that his prior counsel had told him they would go to trial on July 12, 1976, and he had expected to do so. He testified further that this attorney had not prepared him as a witness and had done no investigation that he knew of, although he admitted the attorney had filed for discovery, had met with him to ascertain his version of the incident, had represented him at the preliminary hearing and questioned witnesses there, and had appeared with him in court over 20 times. According to defendant on July 12 his counsel told him he (counsel) was going to meet with the prosecuting attorney and after that conference told him he would meet with the judge and the prosecuting attorney. Following this second conference the attorney told defendant it was his judgment that defendant should plead guilty and that he would see about probation. According to defendant the attorney told him he had no other choice, that if he went to trial the judge had indicated he would probably receive a sentence of one to three years in prison. Defendant testified that he was upset and could not believe what he heard. He felt "betrayed." He objected at first but finally acquiesced, having discussed the matter with his wife and having given it "a lot of thought."
Defendant contended at the hearing that he was never told by his former attorney that he had a right to go to trial and to bring in witnesses. He admitted making all the statements of understanding recorded in the transcript of the hearing but claimed he made those statements on the advice of counsel and had been afraid to say no to any of the questions. Defendant recalled that at one point during the plea proceedings he began to say something but his counsel signaled him not to do so.
Defendant's wife also testified that on July 12 attorney Brandvik told them following his conferences with the State and the court that the court had informed him if defendant were found guilty he would receive a sentence of three years' imprisonment. Defendant became very upset, stating that he wanted a chance to go to trial and tell his story to prove his innocence. Brandvik told defendant he could get him five years' probation but if he went to trial he would be sure to go to jail. Brandvik told them he did not think they could win the case because the State had another witness so that it would not simply be their word against that of the Eberharts. He told defendant's wife the decision ...