Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
In April 1982, the defendant Robert Culp entered a negotiated plea of guilty to two counts of burglary and two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 19-1, 18-2) in Vermilion County case No. 81-CF-383. His guilty plea was accepted and he was thereafter sentenced. In July 1983, while serving imprisonment in this cause, the defendant filed a pro se petition as provided under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1981, ch. 38, par. 122 et seq.) The State filed a motion to dismiss which was allowed on December 28, 1983. From this order, the defendant appeals, alleging that his guilty plea must be vacated as the sentence imposed exceeded that agreed to at the time his plea was entered. We reverse.
At the April 1982 hearing wherein the defendant's guilty plea was taken, the plea agreement was stated to be as follows:
"[Defendant] would plead guilty to Counts I, burglary; V, burglary; VI, armed robbery; and VII, armed robbery, in an amended information in 81 CF 383. The remaining counts of that information [II, III, and IV, theft over and unlawful use of weapons] will be dismissed. All sentences on those four counts would be concurrent, with a ceiling of 15 years, 15 years being the maximum that could be imposed. Further, that [defendant] if called upon would testify truthfully as a State's witness in cases involving [two other individuals]. Further, that [defendant] would not be prosecuted — no charges would be filed on any offenses or alleged offenses of which the State is aware at this time. These would be reflected in Answers to Discovery filed by the State in this case and which are part of the court record at this time."
Defense counsel further stated that the alleged offenses of the defendant, with regard to which the State would not bring charges, included those referred to in about 11 supplements to the State's discovery answers. It was noted also that the plea agreement excluded the possibility of extended-term sentencing, given defendant's prior record, by virtue of the fact that it imposed a maximum possible sentence of 15 years' imprisonment.
Defendant's petition for post-conviction relief alleged that he had entered a guilty plea pursuant to plea agreement in return for a maximum penalty of 15 years' imprisonment and that he had instead been sentenced in excess of the agreement as stated at the entry of his plea, in that he had been ordered to pay some $7,000 in restitution in addition to the term of imprisonment. He further alleged that no one had mentioned such restitution prior to the entry of his plea. He therefore sought vacatur of his sentence as to the restitution as violative of his rights under the constitutions of the United States and the State of Illinois. Counsel was appointed to represent the defendant.
The State's motion to dismiss asserted that defendant's petition failed to raise a constitutional claim cognizable under the Post-Conviction Hearing Act; that the order of restitution was proper under section 5-5-3(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3(b)); and that defendant had waived any errors in sentencing by his failure to file a timely notice of appeal after complying with Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)).
On December 16, 1983, a hearing was conducted on the State's motion. Defense counsel represented to the court that defendant would not have pleaded guilty had he known he would be required to pay the restitution and that he had not been so informed by counsel or the court prior to the entry of his plea. The court allowed the State's motion and remarked that the petition raised no constitutional issue or allegation sufficient to grant post-conviction relief, that the order of restitution had been proper, and that any error had been waived by defendant's failure to appeal after complying with Supreme Court Rule 604(d). The court opined that it had concurred in the sentence stated in the plea agreement only to the extent of an upper limitation on the length of penitentiary sentence, and that all other sentencing options had remained open to it. Moreover, the court regarded the order of restitution as within its sentencing authority even if, as the defendant contends, he was not specifically advised of his responsibility to compensate the victims of his offenses.
We first consider the matter of waiver based upon the defendant's failure to proceed under Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)). Supreme Court Rule 604(d) states in pertinent part:
"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. * * * The trial court shall then determine whether the defendant is represented by counsel and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. * * * The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant * * * to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. The motion shall be heard promptly, and if allowed, the trial court shall vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew. If the motion is denied, a notice of appeal from the judgment and sentence shall be filed within the time allowed in Rule 606."
This court has previously held that in seeking a review of trial court proceedings under the Post-Conviction Hearing Act the defendant need not have exercised his right to direct appeal, although relief in such circumstances can only issue where the defendant has suffered a substantial denial of constitutional rights. (People v. Wenger (1976), 42 Ill. App.3d 608, 356 N.E.2d 432.) The applicability of Rule 604(d) to post-conviction proceedings has been the subject of further explication in People v. Parker (1978), 57 Ill. App.3d 697, 700-01, 373 N.E.2d 737, 740-41, as follows:
"It is clear that the failure to comply with Rule 604(d) forecloses the defendant from appealing his conviction. (People v. Frey (1977), 67 Ill.2d 77, 364 N.E.2d 46; People v. Bryant (1977), 45 Ill. App.3d 428, 359 N.E.2d 888.) But the rule does not purport to do more than that. And while it is also clear that a defendant who has once obtained a review by appeal or writ of error cannot thereafter raise on a post-conviction petition or otherwise any claims which he could have made on the direct appeal but did not (People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25; Ciucci v. People (1960), 21 Ill.2d 81, 171 N.E.2d 34), the rule is clearly different where the defendant for some reason never appealed. As the Illinois Supreme Court explained in People v. Rose (1969), 43 Ill.2d 273, 279, 253 N.E.2d 456, 461:
`The concept of res judicata clearly does not bar petitioners' claims here, since those claims have not been reviewed, and the present proceedings are timely. On the same basis, waiver does not bar assertion here of constitutional rights. While the petitioners have waived, by failure to appeal, those rights based on mere error in the trial, they are still entitled to assert those constitutional rights which the Post-Conviction Act is designed to protect and preserve. The essence of waiver was reiterated by this court in People v. Ashley, 34 Ill.2d 402, 408: "We have consistently held that where review has once been had by a writ of error, * * * any claim which might there have been raised, but was not, is considered waived." (Emphasis added.) (See People v. La Frana, 4 Ill.2d 261, 266.) Thus, a party who fails to take an appeal, whether by careful choice, inadvertence, indigence, or as a result of fleeing the jurisdiction as here, may waive claims of error, but any right which may have existed to a post-conviction hearing on the constitutionality of imprisonment will remain undiminished.'"
Accord, People v. Coultas (1979), 75 Ill. App.3d 137, 139 n. 1, 394 N.E.2d 26, 27 n. 1; see also In re Buchanan (1978), 62 Ill. App.3d 463, 465-66, 379 N.E.2d 122, 124, and cases cited therein.
• 1 As petitioner is appealing from the dismissal of his post-conviction petition, we are limited to considering matters which are of a constitutional dimension. A violation of a statute or a rule of procedure which does not constitute a deprivation of constitutional rights may not be considered. (People v. Robinson (1978), 66 Ill. App.3d 601, 606, 384 N.E.2d 420, 424-25, and authorities cited therein.) Mere noncompliance with Supreme Court Rule 402 does not necessarily raise an issue of constitutional dimension, as evidenced by the language of the rule, but is relevant in a post-conviction proceeding insofar as the record evidences a defendant's plea to be intelligently and voluntarily made. (People v. Turner (1975), 25 Ill. App.3d 847, 852, 323 N.E.2d 371, 375.) Accordingly, we must consider whether the rule was violated and, if so, whether this violation rendered petitioner's plea involuntarily made. In so doing, we have carefully reviewed the record on appeal, such as it is, consisting of the transcripts of the hearing at which defendant's plea was taken, the hearing on the State's motion to dismiss the petition herein, and the petition's common law record. We are unable to determine the basis for an order of restitution of some $7,000, as only two references appear in this record to losses caused by the defendant's conduct, occurring in the factual basis for defendant's plea, i.e., "[h]e then took approximately three or four thousand dollars from the office and left with it" and "they got away with approximately $200."
At the hearing at which defendant's guilty plea was accepted, the trial judge admonished the defendant at length pursuant to Supreme Court Rule 402. The trial court inquired several times whether defense counsel had discussed with defendant the charges against him, the elements of those charges and the possible penalties. The defendant responded that counsel had discussed these matters with him and that he understood them. Defendant agreed that his counsel's statement of the plea agreement, previously referenced, was as he understood it. In addition to previously referenced excerpts, we note the following:
"[Court]: Let's see if your understanding and mine are the same. * * *
[Y]ou're tendering a plea to [counts I, V, VI, and VII] with the understanding that Counts II, III, and IV would be dismissed. * * * [T]hat you would be entitled to a full sentencing hearing and pre-sentence report. The Court would be limited in any penitentiary sentence to a term of 15 years, with all sentences running at the same time or concurrently, and the plea is further conditioned upon your taking the stand and testifying truthfully in the matters relating to [two other individuals]." (Emphasis added.)
Defendant acknowledged that this was his understanding of the agreement. The court informed the defendant of the minimum and maximum sentences prescribed by law for the offenses with which he was charged, advising the defendant of both the range of penitentiary time and fines ...