Appeal from the Circuit Court of St. Clair County, the Hon.
Kenneth J. Juen, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION IN WHICH MR. CHIEF JUSTICE GOLDENHERSH AND MR. JUSTICE SIMON JOIN:
This capital case presents questions involving the permissible reach of prosecutorial discretion under the due process clause of the United States Constitution and the appropriateness of the penalty of death for this defendant under the eighth amendment of the Constitution and Illinois law. For the reasons which follow, we consider only the former issue. The defendant initially pleaded guilty in the circuit court of St. Clair County to indictment counts of murder, attempted murder, armed robbery, and armed violence, pursuant to a plea bargain under which, inter alia, the defendant would receive a sentence of 60 years in the penitentiary. A subsequent motion to vacate this plea was granted, but when the case proceeded to trial, defendant entered an unnegotiated plea of guilty. A sentencing hearing was held before the court, and defendant was sentenced to death. This appeal followed. See 73 Ill.2d R. 603.
Defendant Walker and Paul Bainter were jointly indicted on June 18, 1978, for murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1)), armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2(a)), armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2), conspiracy to commit armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8-2(a)), and four counts of attempted murder (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a)). The defendant originally entered a not guilty plea, and the St. Clair public defender was appointed to represent him.
The public defender's unopposed motion for a psychiatric examination of defendant to determine his competency to stand trial and his sanity at the time of the offense based upon his "long history of mental and psychiatric problems" was granted on June 27, 1978. The report and an addendum to the report filed by the court-appointed psychiatrist on July 18, 1978, and September 7, 1978, respectively, contained conclusions that defendant was competent to stand trial and was sane at the time of the crimes, but noted defendant's past history of drug and alcohol abuse and defendant's "dull normal intelligence." Defendant obtained a new attorney on August 8, and the case was set for trial on October 2, 1978.
Defendant's counsel and the State's Attorney concluded a plea bargain in which the defendant pleaded guilty to each charge except the one charging conspiracy, which the State agreed to drop. The State also agreed to recommend a 60-year prison term for murder and other sentences for concurrent terms which are not relevant here.
On October 2, the court explained the terms of the indictment but inaccurately advised the defendant of the maximum penalties which could be imposed for his crimes. The court twice told defendant that "[t]he range of sentencing could be 40 to 80 years," whereas the indictment's terms, alleging murder and armed robbery, justified a death sentence hearing. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6); People v. Brownell (1980), 79 Ill.2d 508, 524-25.) The State's Attorney took a leading role in these proceedings, advising the court of the sanction possibilities for several indictment counts, and did not challenge the court admonitions on the murder count. Thus these proceedings did not comply with our Rule 402. (73 Ill.2d R. 402(a)(2).) (The importance of Rule 402 was evidenced at this hearing. When the trial court informed defendant that the offense of murder carried with it a possible $10,000 fine, defendant answered: "I'd like to state this is the first time I heard that." This fact, however, did not result in defendant changing his decision to plead guilty.) The court proceeded to inform defendant of the constitutional rights he was waiving by pleading guilty and attempted to ascertain whether his plea was knowing, voluntary and intelligent.
Defendant's counsel set forth the factual basis for the plea. Near the end of the proceeding defendant interjected his concept of what the plea represented:
"THE DEFENDANT: I'd like to say that even though the facts of all this points against me, it's more or less finding me guilty that I have no knowledge that I actually committed these crimes, and even though I have pleaded guilty I cannot say that I am guilty."
The defendant's attorney then, with the court's permission, questioned the defendant:
"Q. Eugene, I think what you are trying to say is that you don't recall after you went up into the cafe, isn't that right? You don't recall anything that took place after that?
Q. You're not saying you weren't there?
Q. You remember being there, don't you?
A. I remember being there.
Q. And you remember having the gun and having the green Army fatigue jacket on, don't you?
Q. What you are saying to the Court is what I had stated earlier, are you not, that you simply don't recall firing the gun or killing, specifically, at Mrs. Wallace or any of the other people?
THE COURT: Mr. Walker, you understand that you are admitting here today though that you did all those things the State said you did?
Q. Your Honor, I think its's a problem in that this young man, I believe him, honestly does not recall firing the gun. And I think that's the point he was trying to make to the Court.
THE COURT: Is that correct, Mr. Walker?
The plea was then entered. The court agreed to accept the plea as negotiated but apparently did not formally enter the sentence, for the case was ordered continued pending the receipt of a presentence report. (See Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1.) Therefore, ...