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11/04/87 the People of the State of v. William Culbertson

November 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM CULBERTSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

515 N.E.2d 465, 162 Ill. App. 3d 319, 113 Ill. Dec. 656 1987.IL.1636

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, William Culbertson, appeals from the trial court's denial of his motion to vacate a guilty plea. Defendant pleaded guilty to residential burglary, and he was sentenced to a 12-year term of imprisonment. On appeal, defendant contends that he did not make a voluntary plea of guilty because the trial court failed to admonish him substantially in accordance with the mandates of Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)). Defendant also contends that the trial court abused its discretion in sentencing him to a 12-year term of imprisonment because a codefendant, Melvin Harold Davis, received only a seven-year term of imprisonment. We reverse and remand.

Defendant first contends that he did not enter a voluntary plea of guilty because the trial court did not inform him of his right to a jury trial and he never signed a jury waiver form.

Supreme Court Rule 402(a)(4) provides:

"The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(4) 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).)

Substantial compliance with this requirement is not satisfied simply by showing that defendant has signed a waiver of jury form. People v. Carle (1972), 8 Ill. App. 3d 56, 57-58; People v. Cummings (1972), 7 Ill. App. 3d 306, 308.

In the instant action, the trial Judge and defendant engaged in the following colloquy:

"THE COURT: As you stand before this Court you're presumed to be innocent of this offense and you have a right to plead not guilty thereto. The burden would then be on the State ...


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