Appeal from the Circuit Court of Du Page County; the Hon.
Anthony M. Peccarelli, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, James R. Bachman, entered pleas of guilty to two counts of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(a)), two counts of aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10-2(a)(5)), and one count of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)(3)). The remaining counts of the 59-count indictment were dismissed pursuant to plea negotiations, which did not, however, encompass sentencing. Defendant was sentenced to terms of 24 years on the deviate sexual assault and aggravated kidnaping convictions and 10 years on the conviction for indecent liberties with a child, all to be served concurrently.
Defendant subsequently moved to withdraw his pleas of guilty. Alternatively, he sought to vacate the sentences imposed, to receive a new sentencing hearing, or to reduce the sentences. At a hearing on the defendant's post-trial motion, the trial court denied the motion, except that it reduced the sentences for aggravated kidnaping to 15 years. Defendant appeals.
We first consider defendant's contention that he should have been permitted to withdraw his pleas of guilty because they were not understandingly entered, in violation of Supreme Court Rule 402 (87 Ill.2d R. 402). He claims that he was under the mistaken impression, along with the trial judge, defense counsel and the State's Attorney, that the aggravated kidnaping charges were Class X felonies when, in fact, none of the indictments charged kidnaping for ransom, and thus the kidnaping charges were Class 1 felonies. (See Ill. Rev. Stat. 1979, ch. 38, pars. 10-2(b)(1), (b)(2).) Trial counsel, in an affidavit, stated that he had advised the defendant that because aggravated kidnaping was a Class X felony, it made little difference relative to sentencing if he pleaded guilty to the deviate sexual assault charges, which were Class X felonies (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(b)).
Whether to permit a plea of guilty to be withdrawn is within the sound discretion of the trial court, not to be disturbed "unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is doubt of guilt of the accused and the ends of justice would better be served by submitting the case to a trial." (People v. Spicer (1970), 47 Ill.2d 114, 116.) A defendant bears the burden of proving that he entered a guilty plea under a misapprehension of the facts or of law, by showing "that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression." People v. Hale (1980), 82 Ill.2d 172, 176; People v. Smithey (1983), 120 Ill. App.3d 26, 33.
• 1, 2 Here it is clear that all parties, including the judge, were under the mistaken impression that 30 charges of aggravated kidnaping which were being dismissed were Class X felonies, punishable by imprisonment for not less than six nor more than 30 years when, in fact, they were Class 1 felonies punishable by imprisonment for not less than four nor more than 15 years. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-1(a)(3), (a)(4).) However, not every misstatement of law will entitle a defendant to a withdrawal of his plea unless substantial prejudice is demonstrated. (See People v. Goodwin (1971), 50 Ill.2d 99, 103; People v. Nichols (1981), 96 Ill. App.3d 354, 357.) Defendant has shown no substantial prejudice. The defendant's bargain was obviously for the purpose of disposing of all of the great number of remaining counts. He also pleaded guilty to Class X felonies, two counts of deviate sexual assault, as well as a Class 1 felony, indecent liberties with a child. He was, in fact, sentenced in the court's modified judgment to the maximum 15 years provided for a Class 1 felony on the aggravated kidnaping charges. Finally, defendant was thoroughly admonished, and he conceded that his pleas were not induced by any threats or promises and that he entered his plea understanding that there was no agreement as to sentencing.
People v. Woodruff (1977), 55 Ill. App.3d 803, principally relied upon by the defendant, is inapposite. In Woodruff, the mistaken impression that defendant was charged with a Class 3 rather than with a Class 4 felony involved a single charge. In addition, prejudice was shown by the fact that a Class 3 felony could subject him to a maximum of five years' imprisonment, while the Class 4 felony with which he was actually charged could have resulted in a maximum three-year sentence. Consequently, defendant, in consenting to a sentencing recommendation of from one to three years' imprisonment, was under the mistaken impression that he was being given some leniency in exchange for his plea.
Other cases cited by the defendant are inapposite as they focus upon rendering a guilty plea void due to the State's unfulfilled promises. Here there were no unfulfilled promises, since the agreement was to dismiss all the remaining counts without reference to their exact classification.
• 3 Defendant next asserts that, where multiple convictions are tainted by improper sentencing, the cause must be remanded for resentencing. People v. Jones (1980), 89 Ill. App.3d 1030, relied upon by the defendant to support this proposition, is distinguishable on its facts. In Jones, the trial court stated that the three crimes for which defendant was convicted were Class X offenses and sentenced defendant to three concurrent nine-year terms of imprisonment. On appeal, the State conceded that the trial court mistakenly classified one of the offenses, aggravated kidnaping, as a Class X crime. In remanding for resentencing the court concluded that it would not speculate as to how the trial court would have ruled had it not been mistaken as to both the number and severity of the offense. (89 Ill. App.3d 1030, 1036.) In this case, however, unlike Jones, the error was remedied in the trial court and the judge reduced the aggravated kidnaping sentence to 15 years, from the 24 years initially imposed, and we need not speculate to uphold the sentence. Other cases cited by the defendant also involve remandment for resentencing after one of the convictions was vacated on appeal and are thereby inapposite.
The defendant also argues that the court's conduct at the sentencing ...