Appeal from the Circuit Court of Champaign County; the Hon.
John G. Townsend, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
On June 4, 1982, defendant while on parole pleaded guilty to a charge of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19-3.) Subsequently, the trial court sentenced defendant to eight years' imprisonment with the sentence to be served consecutively to any time served as a result of any parole revocation. Defendant filed a petition and an amended petition for post-conviction relief. Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.
In his petitions, defendant alleged the sentence was not pursuant to the plea bargain to which he had agreed. After a hearing, the trial court dismissed the petitions. Defendant appeals, arguing his plea was involuntary because the trial court failed to admonish him of the possibility of consecutive sentences and the State did not comply with the plea bargain. The State argues the plea was voluntary because consecutive sentencing is a collateral consequence of a plea. The State also argues that testimony presented at the post-conviction hearing shows defendant agreed to a consecutive sentence.
• 1 The transcripts of the June 4, 1982, plea hearing show the trial court did not advise defendant of the possibility of consecutive sentencing prior to accepting his plea. Additionally, neither defendant's trial counsel nor the prosecutor mentioned the possibility of consecutive sentencing on the record. We therefore, reverse, vacate the plea, and remand to give defendant an opportunity to plead anew.
At the June 4, 1982, hearing, the trial court purported to admonish defendant according to Supreme Court Rule 402 (87 Ill.2d R. 402). However, in stating the minimum and maximum sentences, the trial court failed to advise defendant that the sentence could be made consecutive to a sentence imposed as a result of a prior conviction or revocation of parole. 87 Ill.2d R. 402(a)(2).
The prosecutor stated that in exchange for the plea, the State would move to dismiss another charge and confine its sentencing recommendation to 10 years. Defendant stated that he had discussed the agreement with his attorney and understood it. The trial judge pointed out that based upon defendant's history, defendant could be sentenced to the full range of sentences previously stated, considering the limitations stated in the agreement. Defendant indicated that no other promises had been made in exchange for his plea and that the prosecutor's summary of the factual basis of the offense was accurate. The trial court accepted the plea, dismissing the other charge.
A sentencing hearing was held on July 8, 1982. At the hearing, the State recommended defendant be sentenced to 10 years' imprisonment served consecutive to any sentence received as a result of a parole revocation. The court sentenced defendant to eight years' imprisonment consecutive to "any time served as a result of any parole revocation."
On December 7, 1983, defendant filed a pro se petition for post-conviction relief. (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.) In the petition, defendant alleged that he was denied his constitutional rights because his sentence did not comply with his original plea bargain. Appointed counsel filed an amended petition which questioned the consecutive nature of the sentence.
At the hearing on defendant's petition, defendant's trial counsel and the prosecutor stated that they had discussed consecutive sentencing. Defense counsel testified that he informed defendant that the State would not recommend a concurrent sentence. Defense counsel was certain defendant knew that under his agreement the recommendation would be for a consecutive sentence.
Defendant testified in his own behalf. He stated that no one had advised him that his sentence could be a consecutive one prior to his plea. Defendant stated that he would not have pleaded guilty had he known a consecutive sentence could be imposed. His parole on a previous offense had been revoked. His sentence for residential burglary had been made consecutive to the sentence on his previous offense.
The court at the post-conviction hearing asked the trial attorneys whether any conversations about consecutive sentencing had occurred in open court. The prosecutor stated that he was not sure. The hearing transcripts show that consecutive sentencing was not mentioned at the plea hearing.
The post-conviction court found the allegations of the petition were unfounded. It noted that even if testimony could be viewed as reflecting on the voluntariness of defendant's plea, defendant's testimony was not credible. The court denied relief.