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People v. Louderback

OPINION FILED OCTOBER 10, 1985.

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

v.

ROGER D. LOUDERBACK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On April 30, 1984, defendant, Roger D. Louderback, was charged by information in the circuit court of Adams County with the offense of indecent liberties with a child. On December 10, 1984, defendant entered a plea of guilty to the charge, which was accepted by the trial court. Defendant was subsequently sentenced on January 28, 1985, to a term of four years' imprisonment. He orally requested to withdraw his plea of guilty on January 31, 1985, and, following a hearing on February 7, 1985, the motion was denied.

Defendant appeals, contending: (1) his plea of guilty was not knowingly and voluntarily made, because, at the time he entered his plea, the trial court did not admonish him regarding either the statutorily prescribed penalties or the mandatory supervised release term; and (2) the trial court considered improper evidence in imposing a sentence of imprisonment rather than probation. We vacate the conviction and sentence and remand to the trial court.

At defendant's arraignment on July 10, 1984, the trial court fully admonished defendant as to the nature of the offense, the minimum and maximum terms of imprisonment, and the mandatory supervised release term. On December 4, 1984, a hearing was held on defendant's motion to suppress statements made to the police in violation of his fourth amendment rights. The State confessed error, and the motion was granted.

On December 10, 1984, the parties tendered a negotiated plea of guilty to the court. The proposed agreement would have bound the court to a sentence of probation. The court refused to accept the agreement noting that the act of sexual intercourse with a child under 16 years of age was a Class 1 felony. The parties then renewed negotiations and, on the same day, presented a new plea agreement to the court. The terms of the agreement provided that defendant would plead guilty to the offense with the understanding that he could receive no greater prison sentence than four years.

• 1 Prior to accepting defendant's plea, the court admonished defendant as required by Supreme Court Rule 402 (87 Ill.2d R. 402). Defendant claims the admonitions were inadequate because (1) the court did not explain the minimum and maximum sentences prescribed by law, and (2) the court did not inform him that he was subject to a term of mandatory supervised release following his imprisonment.

Supreme Court Rule 402 states in part:

"The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences." (87 Ill.2d R. 402(a).)

The supreme court has said that there need be "only substantial, not literal, compliance" with the provisions of the Rule. (People v. Krantz (1974), 58 Ill.2d 187, 192, 317 N.E.2d 559, 562.) In addition, the entire record may be considered in determining whether there was an understanding by the accused of admonishments. People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559.

• 2 We have held previously, that ordinarily, admonitions given to the defendant at earlier proceedings in a particular case cannot be relied upon to remedy a lack of admonitions at the plea hearing in the same case. (People v. Porter (1978), 61 Ill. App.3d 941, 378 N.E.2d 788.) There, the State argued that the entire record, including the arraignment, showed substantial compliance with the Rule. We disagreed and reversed the trial court's denial of defendant's motion to vacate judgment and withdraw his plea of guilty. Similar arguments by the State were raised and rejected in People v. Sutherland (1984), 128 Ill. App.3d 415, 470 N.E.2d 1210.

• 3 The purpose of Rule 402 admonitions is to ensure defendant's understanding of the plea, the rights he is waiving by so pleading, and the results of his actions. In People v. Ray (1984), 130 Ill. App.3d 362, 471 N.E.2d 933, we determined that defendant's demonstration of his understanding of the admonitions at a hearing held five days before the entry of his plea of guilty was sufficient to amount to substantial compliance in that case. We noted that each case must be determined on its own peculiar circumstances with the principal focus upon the length of time between the admonition and the plea. In Ray, a five-day lapse was not considered to be inordinate. Here, the lapse was five months.

Substantial compliance to Rule 402 was found in People v. Hale (1981), 96 Ill. App.3d 187, 420 N.E.2d 1100, where the defendant argued he was not advised, at the time he entered his guilty plea, of the minimum and maximum sentences he could receive for the crime charged. There, the defendant did not testify that he misunderstood the admonitions given one month prior to the entry of his guilty plea, and the court noted that he ...


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