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08/21/87 the People of the State of v. Michael Stice

August 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL STICE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

513 N.E.2d 463, 160 Ill. App. 3d 132, 112 Ill. Dec. 49 1987.IL.1211

Appeal from the Circuit Court of Effingham County; the Hon. E. C. Eberspacher, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and LEWIS,* J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

The defendant, Michael Stice, pleaded guilty to rape, attempted aggravated kidnapping, and attempted criminal sexual assault and was sentenced to concurrent terms of imprisonment for 14, 14, and 7 years, respectively. Defendant's motion to withdraw his guilty pleas, filed pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), was denied after a hearing. On appeal, defendant contends (1) that his guilty pleas were not voluntarily and intelligently made where the court failed to admonish him regarding the specific nature of his constitutional rights; (2) that his guilty pleas were not voluntarily made when the factual basis failed to show sufficient corroboration of his confessions; (3) that his conviction for attempted criminal sexual assault must be vacated because the criminal sexual assault statute (Ill. Rev. Stat. 1985, ch. 38, pars. 12-12, 12-14) is unconstitutionally vague; and (4) that the cause must be remanded for a hearing on the voluntariness of his statements, and if they are found to be involuntary, his pleas of guilty must be vacated.

In his initial contention on appeal, defendant requests that we reverse his guilty plea conviction on the ground that the trial court's admonitions to him were inadequate. A review of the record reveals that the defendant filed four motions to vacate his guilty plea. In the first two motions, the defendant alleged that the State had coerced him into relinquishing his right to move to suppress his confession. In the second two motions, the defendant attacked the constitutionality of the criminal sexual assault statute. We note that in none of the four motions did defendant raise the issue of the sufficiency of his admonitions. Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) states that no appeal from a judgment entered upon a plea shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The rule further provides that upon appeal any issue not raised by the defendant in the motion shall be deemed waived. In the case at bar, defendant did not raise the issue of the adequacy of his admonitions in his withdrawal motions. Consequently, he failed to preserve the point for review and it is deemed waived.

Even if the issue had been properly preserved, we find that the guilty plea admonitions substantially complied with Supreme Court Rule 402 (107 Ill. 2d R. 402). In attacking the adequacy of his guilty plea admonitions, the defendant specifically contends that the admonitions were inadequate because the court failed (1) to explain what a jury trial entailed; (2) to tell him that the presumption of innocence meant that he did not have to present a defense; and (3) to advise him that, in pleading guilty, he was giving up his right to confront his accusers. We note that such admonitions may be deemed insufficient only insofar as that they did not mention the defendant's right to confront his accusers; however, we find that this defect was not substantial.

According to the docket minutes, on December 18, 1984, the defendant was advised of the charges, the possible sentences, and his rights. At the hearing on the defendant's negotiated plea of guilty, on April 25, 1985, the court ascertained that the defendant, who was represented by counsel, understood his constitutional and statutory rights. The court explained to the defendant that if he pleaded guilty, there would be no trial and he would be sentenced in accordance with the plea agreement. The defendant stated that he had not been threatened and that he had not received any promises other than those stated in open court. Prior to accepting defendant's plea, the court gave the following admonition:

"You understand that as you stand there right now you are still presumed innocent in regard to these matters and you are entitled to trial by jury? If you wish to avail yourself or take advantage of the opportunity to be tried by jury, all you need to do right now is tell me that, I'll return these 3 pleas now and you may tear them up and we'll proceed as if this here this afternoon had not taken place. Do you understand that?"

After the defendant stated that he understood the admonition, the court accepted his plea.

Supreme Court Rule 402(a), governing admonitions to the defendant, states, in pertinent part, that the court, prior to accepting a plea of guilty, must advise the defendant that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty, he waives the right to a trial by jury and the right to be confronted with the witnesses against him. (107 Ill. 2d R. 402(a)(4).) In People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559, 562, the supreme court determined that Rule 402 requires only substantial compliance. Furthermore, in People v. Mendoza (1971), 48 Ill. 2d 371, 270 N.E.2d 30, the supreme court rejected the defendant's contention that he was not sufficiently admonished where he was not informed that, in pleading guilty, he was waiving the privilege against self-incrimination and the right to confront his accusers. The court reasoned that the fact that the defendant was not specifically admonished as to each and every consequence of his plea did not demonstrate that he was, in fact, unaware of the consequences. The court noted, in this regard, that the defendant was represented by counsel, and that he did not allege that counsel failed to adequately advise him of the consequences of a guilty plea. (48 Ill. 2d 371, 374, 270 N.E.2d 30, 32.) The court further noted the absence of any evidence in the record or any affidavit by defendant supporting his claim on appeal that he did not understand the consequences of his plea. 48 Ill. 2d 371, 374, 270 N.E.2d 30, 32; see also People v. Williams (1973), 16 Ill. App. 3d 199, 200-03, 305 N.E.2d 544, 547-48.

In the instant case, the Judge's failure to tell the defendant that, in waiving his right to trial, he was waiving his right to confront his accusers did not constitute a substantial defect in the admonitions. Accordingly, the defendant's plea of guilty was not invalidated.

With respect to the defendant's other contentions -- that the Judge should have explained what a jury trial entailed and should have told the defendant that the presumption of innocence meant that he did not have to present a defense, we note that there are no cases supporting these propositions. Rule 402(a) does not contain such a requirement, and the supreme court in Mendoza expressly held that it is not necessary to specifically admonish a ...


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