Before we consider the defendant's contention that the circuit court abused its discretion in imposing a sentence of natural life imprisonment, we first address the defendant's contention that the language of section 5-8-1(a)(1)(b) of the Unified Code of Corrections is unconstitutionally vague. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(b).) The defendant contends that section 5-8-1(a)(1)(b) is unconstitutionally vague as the language of that section is similar to the language of an Oklahoma statute which was found to be unconstitutionally vague in a recent decision of the United States Supreme Court. (Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853.) This issue was not raised before the circuit court but is raised for the first time on appeal; however, we are not barred from consideration of this issue as a constitutional challenge to a statute may be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
543 N.E.2d 1374, 188 Ill. App. 3d 299, 135 Ill. Dec. 627 1989.IL.1443
Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. RARICK and HOWERTON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
Defendant, Rodney Dale Barnhill, entered a plea of guilty but mentally ill to the offense of murder on July 9, 1986, and was sentenced to a term of natural life imprisonment on July 30, 1986. The defendant filed a pro se motion to withdraw his guilty plea on August 7, 1986, which was subsequently denied by the court. The defendant appeals.
On appeal, the defendant contends first, that the circuit court did not substantially comply with the requirements of Supreme Court Rule 402(b) (107 Ill. 2d R. 402(b)), when it failed to inquire specifically whether any promises had been made to the defendant to induce his guilty plea; second, that the defendant's plea of guilty but mentally ill was not voluntary and must be vacated as the defendant was promised that if he pleaded guilty he would be sentenced to the Department of Mental Health; and third, that the sentence of natural life imprisonment was excessive. In a supplemental brief filed by the defendant, it is contended that the sentencing statute, wherein a defendant may be sentenced to natural life imprisonment if a court finds that the crime was the result of "exceptionally brutal or heinous behavior indicative of wanton cruelty," is unconstitutionally vague. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(1)(b).) Because of the nature of the defendant's contentions, a statement of facts is not recited here, but the necessary facts are given under the Discussion of each issue.
Defendant's first contention is that the circuit court did not substantially comply with the requirements of Rule 402(b) in that the court did not specifically inquire of him as to whether any "promises" had been made which had induced him to plead guilty. Rule 402 provides in pertinent part:
"In hearings on pleas of guilty, there must be substantial compliance with the following:
(b) . . . The court shall not accept a plea of guilty without first determining that the plea is voluntary. . . . The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea." (107 Ill. 2d R. 402(b).)
Clearly, the statute itself and the case law require only that substantial and not literal compliance with Rule 402(b) is necessary to fulfill the purpose of the statute. (People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559; People v. Clem (1979), 72 Ill. App. 3d 163, 390 N.E.2d 615.) In determining whether there has been substantial compliance, the entire record may be considered. (Krantz, 58 Ill. 2d 187, 317 N.E.2d 559.) After reviewing the entire record in the case sub judice, we determine that there has been substantial compliance with Rule 402(b).
At the hearing in which the defendant tendered his plea of guilty but mentally ill, the circuit court advised the defendant that he was charged with the offense of murder and read the charge against him. When asked by the court if he understood the nature of the charges against him, the defendant responded that he did.
The court admonished the defendant as to all the possible penalties for the offense of murder: a term of 20 to 40 years, the term of years for an extended-term sentence, the term of years if consecutive sentences are imposed, and the possibility of a term of imprisonment for the defendant's natural life. The court explained the mandatory release provisions and the considerations involved in a guilty but mentally ill plea, including the differences between a straight guilty plea and the guilty but mentally ill plea. The defendant was advised by the court that it would be the Judge who sentenced him and no one else. The court asked the defendant if he understood the possible range of penalties, to which the defendant responded affirmatively.
The court inquired as to the defendant's physical well-being and was told that the defendant received medication for his mental illness but that this medication did not interfere with his functioning. The court ascertained that the defendant attended high school until the eleventh grade and that he was in the special education program. The defendant could not read or write and had never worked.
The circuit court explained his constitutional rights to the defendant, i.e., that he had a right to a jury or a bench trial, the right to confront and cross-examine witnesses, the right to plead not guilty, the right to have the State prove him guilty beyond a reasonable doubt, and the continuing right to counsel. The defendant stated that he understood his rights.
The circuit court asked the defendant if he was entering his plea of guilty freely and voluntarily. The court also asked the defendant if he were being forced or compelled "in any way" to enter his guilty plea, and the defendant stated that he was not. The court determined that the defendant had been treated well while incarcerated in the county jail.
The court required the State to put on evidence to show that it was the defendant who in fact committed the offense. This evidence was presented through the testimony of John Moore, an investigator for the Franklin County sheriff's department. Moore had investigated the murder and had taken the defendant's statement in which the defendant confessed to the killing. After hearing the testimony, the court asked the defendant if Moore's statement was substantially true, and the defendant agreed that it was. The defendant admitted that he was pleading guilty because he had murdered the 14-year-old victim.
Lastly, the court considered two reports from psychiatrists and one report of a psychologist, who had examined the defendant to determine his mental capabilities. These reports established that the defendant was mentally deficient, i.e., the psychiatrists found that the defendant had a learning disability and possibly borderline mental retardation and the psychologist diagnosed the defendant as mildly mentally retarded and schizophrenic, but that he was capable of understanding the charges against him and able to assist in his defense.
The defendant argues that because the court did not ask if "promises" were made to the defendant, as required under Rule 402(b), there was not substantial compliance with the statute and the defendant's guilty plea must be vacated. The record reveals that the court did not use the word "promise" in its questioning of the defendant. But as was noted previously, it is substantial and not literal compliance with Rule 402(b) which is crucial. The following colloquy transpired between the court and the Judge at the guilty plea hearing:
"THE COURT: Are you doing this freely and voluntarily?, DEFENDANT: Yes, sir.
THE COURT: You've discussed this matter at length on numerous occasions with your attorney, your family's here today and you've discussed it with your family and you understand that you -- you think this is the best thing for you to do under the circumstances that you are now in, is that correct, Mr. Barnhill?, DEFENDANT: I don't really know, I guess it is.
THE COURT: Okay. But you're doing this freely and voluntarily?, DEFENDANT: Yes.
THE COURT: Nobody's forced you to do this or compelled you to do this in any ...