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03/10/88 the People of the State of v. Rick L. Gasper

March 10, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICK L. GASPER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

521 N.E.2d 170, 167 Ill. App. 3d 218, 118 Ill. Dec. 102 1988.IL.344

Appeal from the Circuit Court of Rock Island County; the Hon John O'Shea, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Concurring in part, Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Following his guilty plea, defendant was convicted of deceptive practices. The claims defendant presents for review do not require an extended Discussion of the facts surrounding his offenses, but do require an explanation of the procedural history leading to this appeal.

Defendant, appearing with counsel on December 2, 1986, entered a guilty plea to the above charge. Immediately prior thereto, defense counsel informed defendant that credit for time served was not available and it appeared the sentences would not be concurrent (he was awaiting sentence on a plea in New Mexico and had been commuting between New Mexico and Rock Island several times). The trial court fully admonished him as to the nature of the charge, the potential penalties, his available constitutional rights, and of the general consequences of his guilty plea. Defendant indicated he understood the court's admonition and the trial Judge accepted his plea as knowledgeable and voluntary and ordered a presentence report.

Shortly thereafter, defendant withdrew his plea, claiming he understood he was to receive credit for time served in New Mexico. Defendant also denied his guilt, stating he was unaware there was no money in his account when the six checks in question were issued. In claiming a viable defense, he stated his wife withdrew the funds from their checking account without his knowledge. Defendant was unaware of his wife's whereabouts since they were separated in August of 1985, and he was enjoined from contacting her. The trial court vacated his plea.

On December 3, 1986, defendant, appearing with counsel, entered a negotiated plea to the same. The prosecution provided the factual basis of the charge. The court again fully admonished defendant, and defendant admitted his guilt and stated he understood the admonition. The court accepted this plea as knowing and voluntary and imposed the agreed sentence of two years with credit for time served.

On December 30, 1986, defense counsel filed a motion to withdraw the guilty plea alleging defendant had a valid defense and would not have pleaded guilty had he known he would not receive credit for time served in New Mexico. On January 7, 1987, defendant filed a pro se motion to reduce sentence, alleging he was misled into entering this negotiated plea, he did not have adequate counsel, and he was not receiving proper credit for time served. Defendant all along wanted credit for his time served in New Mexico; however, neither counsel nor the court ever advised him it was available or part of the bargain.

Different counsel was appointed and subsequently filed an amendment to the defendant's pro se motion asserting defendant believed he would get credit for time served in New Mexico, his Illinois sentence would run concurrently, and that he had a valid defense.

Following an evidentiary hearing on the amended motion, the trial court denied the motion to withdraw the guilty plea. In addition, the court found defendant to be in direct criminal contempt since defendant raised bad-faith allegations and twice lied about his potential defense and sentenced him to a six-month jail term to run consecutively to the deceptive practices conviction.

Defendant contends the trial court abused its discretion by disallowing his motion to withdraw his guilty plea. According to Supreme Court Rule 402(a), the trial court must address the defendant in open court and inform him of the following: the nature of the charge, the minimum and maximum penalties prescribed, the right to plead not guilty, and the consequences of pleading guilty. (87 Ill. 2d R. 402(a).) The trial court did so comply and inform defendant. Supreme Court Rule 402(b) provides the trial court must determine the plea is voluntary before accepting it. (87 Ill. 2d R. 402(b).) The trial court accepted this plea as voluntary and knowing in light of the fact defendant was represented and acknowledged the court's admonition. Rule 402(c) requires the court to determine the existence of a factual basis for the plea before entering final judgment. (87 Ill. 2d R. 402(c).) The State provided a factual basis for this plea which defendant acknowledged. The purpose of requiring a factual basis for a guilty plea is to insure the defendant is not pleading guilty to a crime his actions and mental state do not support. (People ex rel. Daley v. Suria (1986), 112 Ill. 2d 26, 490 N.E.2d 1288.) Counsel informed defendant he was likely to be convicted if this case were tried. The trial Judge was in the best position to determine if defendant had a defense worthy of consideration. His determination will not be disturbed on appeal.

It is within the sound discretion of the trial court to permit a defendant to withdraw a guilty plea; and this discretion will not be disturbed unless it appears the guilty plea was entered through a misapprehension of facts or law, defendant has a defense worthy of consideration, or there is doubt of defendant's guilt and Justice would be better served by trial. (People v. Worley (1966), 35 Ill. 2d 574, 221 N.E.2d 267.) On both occasions, defendant said he understood the admonition, acknowledged the factual basis, and admitted his guilt. Defendant claims his plea should be withdrawn because he believed he would receive credit for time served in another State and he would receive concurrent sentences. The record reflects defendant was properly admonished and advised that any sentence he was to ...


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