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03/17/89 the People of the State of v. Keith Radunz

March 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KEITH RADUNZ, DEFENDANT-APPELLANT

ON AUGUST 3, 1987, RADUNZ APPEARED BEFORE THE TRIAL JUDGE AND ENTERED A PLEA OF GUILTY TO AGGRAVATED CRIMINAL SEXUAL ABUSE. (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 12-16(C)(1).) THE COURT THEN ADVISED DEFENDANT AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 189, 180 Ill. App. 3d 734, 129 Ill. Dec. 505 1989.IL.348

Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Jr., Judge, Presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. DUNN and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant, Keith Radunz, appeals from a decision of the circuit court of Stephenson County denying his motion to withdraw his guilty plea. The court found that Radunz had been properly admonished pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402) and that Radunz had adequate representation at the trial level. We affirm.

In April 1987, Radunz was arrested and charged with two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)). Radunz retained William Wise, an attorney, to represent him in the proceedings. Radunz' attorney and the State's Attorney engaged in negotiations, and an agreement was reached. Radunz agreed to plead guilty to one count of aggravated criminal sexual abuse, to undergo psychiatric evaluation and to pay for any counseling necessary for the victim and her family. In exchange, the State's Attorney agreed to drop the remaining charge and to recommend a four-year term of probation, six months in the Stephenson County jail and a $500 fine. The court was not asked to participate or concur in this agreement pursuant to Supreme Court Rule 402(d)(2) (107 Ill. 2d R. 402(d)(2)).

"THE COURT: . . . [Both] of the charges against you are Class 2 Felonies in this State and if you enter a plea of guilty, just as if you would be found guilty after trial, and the Court would have the following alternatives at the time of Sentencing. And you could be sentenced to the penitentiary, and if so for a definite term which would not be less than three years, nor more than seven. And depending on prior record, or other circumstances, an extended term might be considered and if so it could be up to 14 years in length. And if you're sentenced to the penitentiary there could be two years of supervised release, or there would be, and that used to be called parole, and that would be from the date of release of confinement.

And if you're sentenced to probation for that offense, and that would be up to four years in length. And if you're fined, it can be an amount not to exceed $10,000.00. And if you're sentenced to periodic imprisonment it would be for a definite term not less than 18 nor more than 30 months. And those are the alternatives.

And now what I want you to understand is that if you have entered into a negotiated plea with the State's Attorney, and that will be stated on the record, and the terms of the plea negotiation. And the State will be bound by whatever has been promised to you by the State, and they would be bound at the time of Sentencing and cannot recommend something more severe then [ sic ] they have agreed to recommend.

And if they have agreed to dismiss a charge, and that would be dismissed on their motion. And I certainly cannot impose a sentence for a charge that is dismissed. But, I want you to understand that the Court would be free to consider all of the alternatives that I just mentioned if you enter a plea of guilty, and as I say, and it's the same as if you were to be found guilty after trial. And the alternatives are the same; and do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And do you also understand that if you enter a plea of guilty, and that means that you're waiving your right to a trial and giving up your right to require the State to prove guilt beyond a reasonable doubt and the right, or rather the presumption of innocence that you would have throughout the trial, and you'd be giving up your right to be confronted by the State's witnesses and to have your attorney question them. And to either testify, or remain silent at your own trial, and the right to call witnesses and subpoena them, if necessary, to require their presence in Court; and do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And I want you to understand that I don't know any terms of a plea negotiation, and I have not participated in that, but it will be stated on the record, and I will ask you if you're agreeing to at least those terms. And what are the terms then of the plea negotiation?"

The prosecutor then provided the court with the factual basis of the charge. The court asked Radunz if he acted intentionally, and he responded that he had. Thereupon the court accepted the guilty plea and set a date for sentencing.

On August 21, 1987, a sentencing hearing was held. The State's Attorney complied with the plea agreement and recommended probation. The court concluded that probation would deprecate the seriousness of the offense and that Radunz presented a danger to society. The court sentenced Radunz to a term of four years in prison.

On August 28, 1987, Radunz' attorney presented a motion to withdraw as counsel. The court granted this motion and immediately directed the clerk to file a notice of appeal on behalf of defendant. The court also appointed the State Appellate Defender's office to represent Radunz on appeal.

On September 7, 1987, a notice of appeal was filed on behalf of Radunz. Radunz' appellate counsel filed a motion to remand. On September 28, 1987, this court remanded the case to allow for the filing of a motion to withdraw the guilty plea pursuant to Supreme Court Rule 604(d). (107 Ill. 2d R. 604(d).) Counsel was appointed for Radunz, and a motion to vacate the guilty plea was filed.

On March 16, 1988, a hearing on the motion was held. Radunz testified as follows:

"Q. Mr. Radunz, on August 3rd, 1987, you pled guilty to a count of aggravated criminal sexual abuse. Is that correct?

A. Yes, sir.

Q. And this was pursuant to plea negotiations between your attorney and the state's attorney's ...


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