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People v. Sutherland

OPINION FILED NOVEMBER 1, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RANDALL W. SUTHERLAND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Morgan County; the Hon. Richard E. Mann, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant Randall Sutherland pleaded guilty to the charge of driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)) in Morgan County case No. 83-TR-2592 and was sentenced to 30 days' imprisonment and ordered to pay court costs. His motion to withdraw his plea of guilty and vacate the judgment was denied. Defendant appeals from the judgment of the circuit court of Morgan County, urging that the trial court erred in (1) denying his motion to withdraw the plea of guilty and vacate the judgment on a record showing that he was not adequately admonished pursuant to Supreme Court Rule 402 (87 Ill.2d R. 402), and (2) imposing a sentence of imprisonment without finding that he posed a threat to the public or that imposition of probation would deprecate the seriousness of the offense (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(a)).

Defendant was charged with this offense on October 17, 1983. On the following day the court called for hearing various traffic tickets, including this charge and Morgan County cases Nos. 83-TR-2593 (no valid operator's license), 83-TR-2594 (illegal transportation of liquor) and 83-TR-2595 (improper lane usage), and a misdemeanor, Morgan County case No. 83-CM-195 (deceptive practice). The defendant stated that he understood the charges and wished to represent himself. He entered pleas of not guilty to all charges and requested jury trial.

On November 9, 1983, represented by counsel, the defendant, through counsel, withdrew his plea of not guilty on this charge pursuant to plea negotiations with the State's Attorney. Defense counsel stated that under the agreement the defendant would make restitution on the deceptive practice charge, and all charges except driving under the influence would be dismissed. The State had indicated it would not seek a jail term, and the plea agreement was otherwise open. Defense counsel requested the court to refer the cause to the probation department for presentencing investigation so he could argue for supervision. The State agreed to referral. The report of proceedings at the time the plea was taken includes this questioning of the defendant by the court:

"THE COURT: Have you, [defense counsel], explained to [defendant] that driving while under the influence of intoxicating liquor is a Class A misdemeanor and that he could, if the maximum penalty were imposed, be subjected to a fine which would not exceed a thousand dollars in amount and a sentence to the local jail or to the Department of Corrections for a period of not to exceed one year, or both?

[DEFENSE COUNSEL]: I have so advised him, Your Honor.

THE COURT: You fully aware of that, [defendant]?

THE DEFENDANT: Yes.

THE COURT: [Defense counsel], have you fully advised him with regard to his right to trial?

[DEFENSE COUNSEL]: I have and he is waiving that right, Your Honor.

THE COURT: You got any question in that respect, [defendant]?

THE DEFENDANT: No.

THE COURT: You satisfied with the manner in which you've been represented by counsel?

THE DEFENDANT: Yeah.

THE COURT: All right.

Your motion for leave to withdraw the plea of not guilty heretofore entered to the charge in 83-TR-2592, * * * is withdrawn.

Are you ready now that I ask you once again how you plead to the charge of driving while under the influence of intoxicating liquor?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: Has there been used any force or threats against you or, other than the result of negotiations made, any promises to you by which your plea of guilty has been induced?

THE DEFENDANT: No.

THE COURT: Your plea of guilty is voluntary on your part?

THE DEFENDANT: Yeah."

A factual basis was provided by the prosecutor, with which the defense counsel and the defendant agreed. The court found a factual basis for the charge and guilty plea, and found the plea knowingly, understandingly, and voluntarily entered. The plea was accepted, defendant was found guilty as charged, and the matter was referred to the probation department for investigation.

Defendant was sentenced after hearing on December 2, 1983, to 30 days' imprisonment. Mittimus was stayed pending appeal. On December 8, 1983, defendant moved to withdraw the plea of guilty and vacate the judgment and sentence thereon. The trial judge denied the motion.

We first consider defendant's argument that the trial court erred in denying his motion to withdraw the plea of guilty and vacate the judgment because he was not adequately admonished pursuant to Supreme Court Rule 402. The State argues the defendant has waived his right to appeal this issue as his motion made no mention of the trial court's alleged failure to admonish him of the right to trial or the right to confront witnesses (87 Ill.2d R. 402(a)(4)). (People v. Adkisson (1980), 83 Ill.2d 1, 413 N.E.2d 1238.) This argument is without merit.

• 1 Examination of defendant's motion reflects that he alleged the trial court had failed to admonish him pursuant to Supreme Court Rule 402(a), stating further particularization of the issue required a transcript of the proceedings at which he had pleaded guilty. The court ruled on the motion by letter opinion filed February 3, 1984, after reading the transcripts in this cause, without further hearing, and did not address whether its admonitions had been in substantial compliance with Supreme Court Rule 402(a). Further, People v. Evans (1967), 37 Ill.2d 27, 31-32, 224 N.E.2d 778, 781, held that if admonishment of the consequences of a plea of guilty by the trial court was improper, the law of waiver would be inapplicable, since the defendant could not have knowingly and intelligently waived his constitutional rights. (People v. Weakley (1970), 45 Ill.2d 549, 552, 259 N.E.2d 802, 804; see also Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) We deem application of the waiver doctrine inappropriate in this case.

Defendant first maintains that the trial court did not personally inquire of him and admonish him that (1) he had the right to plead not guilty and to persist in that plea (87 Ill.2d R. 402(a)(3)), and (2) if he pleaded guilty, there would not be a trial of any kind and that he would be waiving his right to a jury trial and the right to confront witnesses against him (87 Ill.2d R. 402(a)(4)). Defendant's second claim is that at no time prior to accepting his guilty plea did the trial court inform him it was not bound by the terms of the agreement and could impose any sentence legally available for the offense as required under Supreme Court Rule 402(d) (87 Ill.2d R. 402(d)). Defendant alleges that as a direct result of the court's failure to make these admonishments as required by Rule 402, his guilty plea was not knowingly, understandingly, and voluntarily entered.

Supreme Court Rule 402 states in pertinent part:

"The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and ...


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