Motion for supervisory order.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Does a circuit judge have authority to find a defendant guilty of a lesser included offense of the one for which the defendant was indicted when the defendant enters a guilty plea only to the greater offense? The State challenges such action by the trial judge, Fred G. Suria, a judge of the circuit court of Cook County, in the cases which are the subject of this proceeding.
Defendants Milton McCarter, Johnson Hughes, Ernest McCarter, Frank Sims, and Michael Alfred were charged in that court with various one-count indictments alleging possession of a controlled substance (heroin) with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401). In the case of each of these defendants except Alfred the amount involved was more than 15 grams. Alfred was charged with possessing with intent to deliver more than 10 but less than 15 grams. Defendant Tony Henry was charged in the same court with two counts of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) and two counts of felony theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1).
During conferences requested by the defendants in which Judge Suria participated and at which an assistant State's Attorney was present Judge Suria indicated that he would find the defendants guilty of lesser offenses and sentence them to probation if they pleaded guilty to the charges. The State did not agree to Judge Suria's proposal. Following these conferences, however, each defendant withdrew his previously entered not guilty plea and entered instead a plea of guilty to all charges in the indictment naming him. The State then offered stipulated testimony supplying the factual basis for each plea as required by our Rule 402(c) (87 Ill.2d R. 402(c)), and Judge Suria found each defendant guilty of lesser offenses than those to which they had pleaded guilty. While the narcotics offenses to which the defendants pleaded carried a mandatory prison sentence (with the possible exception of the charges against Alfred), Judge Suria sentenced each defendant to probation on the lesser offenses on which he found them guilty.
The State petitioned this court for a supervisory order pursuant to Supreme Court Rule 383 (94 Ill.2d R. 383) directing the respondent, Judge Suria, (i) to vacate his findings of guilt on the offenses other than those for which the defendants were indicted, and (ii) to vacate the defendants' guilty pleas and require each defendant to enter a new plea to the offenses with which he was charged. We ordered briefs filed on that petition and have heard oral argument.
The defendants argue that on the basis of the stipulated testimony Judge Suria properly found the defendants in the narcotics cases guilty of simple possession rather than possession with intent to deliver. They contend that the stipulated testimony did not show any sales activity and, at least with respect to defendant Sims, no relationship to narcotics at all. Defendant Henry's position is that his statement to undercover police officers, set forth in the stipulated testimony, that he had stolen two radios he was offering to sell in a resale shop did not establish that he was guilty of burglary. He refers to an offer of proof he presented that if called to testify his testimony would be that he did not steal the radios out of autos but instead bought them on the street not knowing that they had been stolen. He also points out that the stipulated testimony related to the value of the radios when they were purchased new, not to their value when they were stolen out of automobiles a few weeks after their purchase. Because the undercover officers involved had purchased the radios from Henry for less than $75 each, the value of the stolen items was alleged by Henry to be less than the minimum amount required to make him eligible for conviction of felony theft. Henry therefore argues that the stipulated testimony established at most that he committed only the misdemeanor theft of which Suria found him guilty.
Supreme Court Rule 402(c) reads:
"(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea." 87 Ill.2d R. 402(c).
The determination required by the rule is intended to protect those accused of crime by ensuring that they have not pleaded guilty by mistake or under a misapprehension, or been coerced or improperly advised to plead to crimes they did not commit. The rule is not intended to convert a guilty plea into a substitute for a trial. The manner in which the rule is to be applied was accurately stated by our appellate court in People v. Dilger (1984), 125 Ill. App.3d 277:
"The purpose of the rule is to allow the trial court to insure that defendant is not pleading guilty to a crime which his acts and mental state do not support. (People v. Barker (1980), 83 Ill.2d 319, 327-28, 415 N.E.2d 404, cert. denied (1981), 452 U.S. 964, 69 L.Ed.2d 976, 101 S.Ct. 3116; People v. Martin (1978), 58 Ill. App.3d 633, 637, 374 N.E.2d 1012, appeal denied (1978), 71 Ill.2d 612.) The quantum of proof necessary to establish a factual basis for a plea is less than that necessary to sustain a conviction after a full trial. (People v. Barker (1980), 83 Ill.2d 319, 327, 415 N.E.2d 404, cert. denied (1981), 452 U.S. 964, 69 L.Ed.2d 976, 101 S.Ct. 3116; People v. Nyberg (1976), 64 Ill.2d 210, 215, 356 N.E.2d 80, cert. denied (1977), 430 U.S. 970, 52 L.Ed.2d 362, 97 S.Ct. 1654.) In evaluating the sufficiency of the factual basis to support a plea of guilty, the trial court should apply standards similar to those used to determine the sufficiency of the State's evidence at trial to withstand a motion for a directed verdict of not guilty (People v. Barker (1980), 83 Ill.2d 319, 328, 415 N.E.2d 404, cert. denied (1981), 452 U.S. 964, 69 L.Ed.2d 976, 101 S.Ct. 3116), and a plea of guilty should not be accepted if a defense worthy of consideration exists. People v. Spicer (1970), 47 Ill.2d 114, 116, 264 N.E.2d 181; People v. Ramos (1982), 110 Ill. App.3d 225, 228, 441 N.E.2d 1153, appeal denied (1982), 91 Ill.2d 578.
* * * If, after considering the factual basis for a plea offered by the State, a court finds that there is an insufficient basis offered on which it may accept a plea of guilty from defendant, the court has no alternative other than to submit the case to trial. In this case, the trial court apparently considered the factual statements by the assistant State's Attorney as evidence upon which it was authorized to decide whether defendant was guilty or not guilty. That is not the purpose of Rule 402(c), and neither that rule nor any other authority permits resolution of a case on this basis." (Emphasis added.) 125 Ill. App.3d 277, 281-82.
Thus, if the trial judge was not satisfied that any defendant was guilty of the offense to which his guilty plea was directed, the authority and obligation of the trial judge was limited to refusing to accept the plea; his authority did not extend to finding any defendant guilty, without a trial, of a lesser included offense to which the defendant had not entered a plea.
By finding the defendants guilty of lesser offenses than the ones to which their pleas were directed, the circuit judge rejected the pleas entered to the greater offenses. It follows logically that since the pleas that were entered were not accepted, there were no pleas outstanding on the basis of which the ...