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09/22/87 the People of the State of v. Philip Bosworth

September 22, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILIP BOSWORTH, DEFENDANT-APPELLANT

DEFENDANT, PHILIP BOSWORTH, ENTERED A NEGOTIATED PLEA OF GUILTY TO MURDER (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 9-1(A)(2)) AND, PURSUANT TO THE PLEA AGREEMENT, WAS SENTENCED TO A 40-YEAR TERM OF IMPRISONMENT. HE APPEALS FROM THE TRIAL COURT'S DENIAL OF HIS MOTION TO WITHDRAW HIS GUILTY PLEA TO MURDER.



Before proceeding to the merits of defendant's appellate contention relating to the factual basis for the plea, we must first consider the State's argument that the specific issue raised on appeal was not raised in the motion to withdraw the plea of guilty and is waived. We agree with the State that the record demonstrates that the motion to withdraw does not raise the issue concerning the factual basis for the plea of guilty now raised on appeal. Supreme Court Rule 604(d) provides, in pertinent part, that "[upon] appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived." 103 Ill. 2d R. 604(d).

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

513 N.E.2d 1173, 160 Ill. App. 3d 714, 112 Ill. Dec. 564 1987.IL.1408

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant raises the following issue on appeal: whether the trial court properly accepted his guilty plea where the factual stipulation supporting that plea indicated the existence of a possible defense to murder consisting of the lesser offense of involuntary manslaughter.

Defendant was originally charged with three counts of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)). On March 17, 1986, defendant pleaded guilty to murder as set forth in count III of the indictment, which stated that "he struck Justine Bosworth on

The factual stipulation on which the court based its acceptance of defendant's guilty plea established that the victim, defendant's seven-week-old daughter, was found dead in her crib on November 20, 1985. An autopsy revealed that the baby had died as a result of trauma to her skull. The stipulation also revealed that, in an interview with the police, defendant stated that he was angry when he went into the baby's room at 2:30 a.m. As he entered her room, he tripped on some clothes and fell into the baby's crib, causing her to cry even louder. He then told the police that this caused his anger to come out; and, with a backhanded motion and a closed fist, he hit the baby on top of her head and she quieted down. He stated that, in his mind, when he hit the baby he was hitting his wife. Following the interview, defendant made a written statement which contained these facts.

Upon hearing the stipulation, the trial Judge asked defendant if his attorney had advised him of and whether he understood "the other lesser type of penalties . . . a jury could reasonably find based on the facts." Following a five-minute recess, the defendant's attorney clarified that he had previously informed the defendant of other possible penalties and, during the recess, more fully explained the related sentencing. The court then accepted the defendant's guilty plea.

In an amended motion to withdraw his plea of guilty and vacate the sentence pursuant to Supreme Court Rule 604(d) (103 Ill. 2d R. 604(d)), defendant asserted generally that he was not advised pursuant to Rule 402, that he did not knowingly, intelligently, or voluntarily waive his right to a jury trial or understand the admonishments of Rule 402, that the sentence was improper, and that the plea was not voluntary because the police threatened his wife. The last allegation was subsequently withdrawn and, following arguments of counsel, the motion was denied.

Nevertheless, Supreme Court Rule 615(a) provides an exception to the rule of waiver where there has been plain error. The rule provides, in part, that "[plain] errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." (107 Ill. 2d R. 615(a); see People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that the accused is denied a fair trial. People v. Friesland (1985), 109 Ill. 2d 369, 375, 488 N.E.2d 261.

While the filing of a motion to withdraw a plea of guilty and vacate the judgment thereon is a prerequisite to the right of appeal (People v. Frey (1977), 67 Ill. 2d 77, 85-86, 364 N.E.2d 46; People v. Potts (1985), 136 Ill. App. 3d 1059, 1063-64, 484 N.E.2d 306), it has been held, however, that the plain error rule is applicable when there is a failure to raise an issue in a motion to withdraw a plea of guilty pursuant to Rule 604(d) (People v. Adkisson (1979), 78 Ill. App. 3d 923, 927, 397 N.E.2d 922, rev'd on other grounds (1980), 83 Ill. 2d 1, 413 N.E.2d 1238; see People v. Waldorf (1981), 94 Ill. App. 3d 976, 980-81, 419 N.E.2d 428). Assuming, without deciding, therefore, that the plain error rule may be applied to review the claimed error in the guilty plea proceeding here (cf. People v. Adkisson (1980), 83 Ill. 2d 1, 8, 413 N.E.2d 1238), we shall examine defendant's contention to determine from the record of the plea of guilty hearing whether an error affecting substantial rights was committed.

Defendant contends that his plea of guilty should not have been accepted by the trial court because the facts given to support the guilty plea establish that his acts were committed with a mental state which would establish involuntary manslaughter and not murder. Defendant characterizes the trial Judge's comment at the plea proceeding concerning whether his trial counsel had advised him of any lesser offenses with other penalties which a jury could find in a trial as "a doubt" whether the facts of the case constitute murder.

The pertinent part of the record of the plea proceeding which concerns the factual basis for the plea and the ...


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