APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
507 N.E.2d 926, 154 Ill. App. 3d 962, 107 Ill. Dec. 773 1987.IL.569
Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. GREEN and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
Following a plea of guilty to aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14), defendant was sentenced to a term of 10 years' imprisonment. No direct appeal was taken, but defendant filed a petition for post-conviction relief under the Post-Conviction Hearing Act (the Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) The circuit court of Macon County ordered the matter docketed for further consideration under sections 122-4 through 122-6 of the Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-4 through 122-6). Upon motion by the State, the petition was dismissed without an evidentiary hearing.
On appeal, defendant alleges two errors: (1) the trial court erred in assigning the cause to a Judge other than the Judge who handled the original plea proceedings, and (2) the trial court erred in dismissing the petition without holding an evidentiary hearing.
The first issue may be dealt with summarily. The trial court followed the procedure stated in section 122-8 of the Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-8) in assigning the petition to a Judge other than the Judge who heard the matter originally. Section 122-8 was subsequently declared to be unconstitutional in People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E.2d 501. Defendant argues that the trial court erred in following the procedure of the unconstitutional statute. We rejected this same argument in People v. Farmer (1986), 148 Ill. App. 3d 723, 499 N.E.2d 710. For the same reasons announced in Farmer, we reject the argument here.
In order to deal with the second issue, we must provide some factual background.
On March 15, 1985, defendant pleaded guilty to aggravated criminal sexual assault. In return, three other related felony charges were dismissed. Also, a pending charge of driving while under the influence of alcohol was dismissed. Defendant received a 10-year sentence to run concurrently with a 5 1/2-year sentence he had received earlier that week on a conviction for aggravated battery. Before accepting defendant's plea, the court questioned him pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402). The following colloquy appears in the record:
"THE COURT: All right. Let's go to the defendant. First of all, we have to determine if you understand [the plea agreement]. Do you think you understand it?
THE COURT: Secondly, we have to be sure since you're in custody of the sheriff that no one is forcing you into this plea agreement by physical abuse, mistreatment, threats, violence. So, my question to you is: Is anybody ...