APPEAL from the Circuit Court of Kane County; the Hon. JOSEPH
M. McCARTHY, Judge, presiding.
MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty to armed robbery and was sentenced to 25 years in the Department of Corrections. He appeals, contending that the court should have permitted him to withdraw his plea and that the sentence imposed was excessive.
On the afternoon of March 5, 1979, the 17-year-old defendant, having earlier ingested three "hits" of LSD and smoked hashish, beat Manutchehr Kaboli to death and robbed him of his wallet. Defendant was charged by indictment with three counts of murder, armed robbery, and armed violence.
After being admonished by the court as required by Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402), defendant pleaded guilty to armed robbery in exchange for the State's agreement to enter a nolle prosequi with regard to the remaining charges.
The first issue defendant raises is that his guilty plea was involuntarily and unknowingly entered. He bases this on the fact that in admonishing him before the entry of his plea the court did not advise him that he could be subject to an extended term pursuant to section 5-8-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2).
At the sentencing hearing the prosecuting attorney stated that due to the brutal nature of the crime the State could ask for an extended term. He added that the State was not asking for that but for 30 years, the maximum term for armed robbery, a Class X felony, when extended term is not involved. The trial judge told defendant at the time of sentencing that psychiatric reports relating the effects of LSD on defendant's behavior were the reason it would not consider an extended term.
Section 5-8-2 of the Criminal Code provides for the imposition of an extended term of imprisonment for offenders when aggravating factors are involved. This section provides a safeguard to prevent the defendant pleading guilty from unwittingly exposing himself to such a sentence:
"If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant's knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice." Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(b).
Defendant argues that because he was not advised of the possibility of an extended term at the time he pleaded guilty the court should have later granted his motion to withdraw his plea. Defendant contends he was subject to, that is, exposed and vulnerable to, an extended term or in danger of receiving such a sentence.
Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) required that in a hearing on a plea of guilty a defendant must be admonished of the possible minimum and maximum penalties prescribed by law. The rule requires substantial compliance. (People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559.) However, even when the rule is not substantially complied with, a reviewing court will not vacate a guilty plea absent an allegation and proof of prejudice. (People v. Dudley (1974), 58 Ill.2d 57, 316 N.E.2d 773; People v. Cohn (1980), 91 Ill. App.3d 209, 414 N.E.2d 543.) It has been held, for example, that where consecutive terms are possible a failure to admonish defendant of such a possibility at the hearing on a guilty plea is not a ground for withdrawal of that plea where in fact no consecutive terms are imposed. (People v. Whitlow (1980), 86 Ill. App.3d 858, 411 N.E.2d 1354; People v. Waud (1976), 43 Ill. App.3d 85, 356 N.E.2d 628, aff'd on other grounds (1977), 69 Ill.2d 588; People v. Mass (1975), 31 Ill. App.3d 759, 334 N.E.2d 452; People v. Back (1974), 18 Ill. App.3d 746, 310 N.E.2d 420.) Further, where the trial court understates the possible maximum penalty but sentences within the limits it had stated, no prejudice results, and defendant is not entitled to withdraw his guilty plea. People v. Hrebenar (1971), 131 Ill. App.2d 877, 266 N.E.2d 733.
• 1 There is no authority directly addressing the question that arises when a trial court fails to apprise a defendant of the possibility of an extended sentence. Defendant argues that the above-cited cases do not support the State's position that the fact he was not sentenced to an extended term negates any error by the court in failing to admonish defendant of the possibility. He argues that section 5-8-2 states not merely that a defendant not advised of the possibility of an extended term may not be so sentenced, but also that he shall not be "subject to" an extended term. Defendant contends that the court's comment that it would not consider an extended term because "psychiatric reports have some significance" evidences the fact that he was "subject to" an extended term at that time. We disagree. We think that, regardless of the court's comment, the failure to admonish defendant precluded the imposition of an extended term. It was incorrect for the court to assume it had the option of so sentencing defendant, but where a defendant by law may not be sentenced to an extended term and he is not so sentenced we do not think reversible error is committed.
Defendant also argues that the court should have permitted him to withdraw his plea because the prosecuting attorney induced him to plead guilty by advising his counsel that an extended penalty would not be sought. At the hearing on the guilty plea the prosecutor advised the court that the agreement consisted of defendant changing his plea to guilty on the armed robbery charge in exchange for the State dropping the charges on the remaining counts. The prosecutor added that "basically * * * there is no agreement with regard to sentencing." Defendant and his attorney stated that the agreement was correctly stated by the prosecution. At the sentencing hearing the prosecutor commented that "[d]ue to the brutality of the case and the surrounding circumstances * * * we could ask for an extended term which would make it anywhere between 12 and 60 years. We are not asking for it in this case. What we are asking for is the maximum [penalty], that being 30 years." At the hearing on defendant's motion to withdraw his guilty plea defendant's attorney informed the court that "I didn't mention to [defendant] that there was a possibility of an enhanced sentence. I told him it should not be considered in his determination whether or not to enter a plea, because I think the State had informed me they had no intention of seeking an enhanced sentence."
• 2 We think the prosecutor's comment to the trial court that the State could seek an extended term was merely a comment meant to reflect the seriousness with which it viewed the crime. Judging by defendant's understanding of the plea agreement, the State could not seek such a sentence for defendant. What the State sought, however, was not an extended term but the maximum penalty within the usual range of sentences for armed robbery. According to defendant's counsel, the State promised defendant it would not seek an extended term, and it did not. At most, its ...