Appeal from the Circuit Court of Winnebago County. No. 94--CF--1383 Honorable Robert G. Coplan, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Bowman delivered the opinion of the court
In December 1994, defendant, Will J. Day, entered a negotiated plea of guilty to aggravated battery with a firearm (720 ILCS 5/12--4.2 (West 1994)) and agreed to a 15-year prison sentence. The State agreed to dismiss other pending charges against him including a mob action charge. Defendant filed timely pro se motions to withdraw his plea and vacate the judgment and to reduce his sentence. Defendant's appointed counsel made changes to defendant's claims and presented a modified motion to withdraw the plea in accordance with Supreme Court Rule 604(d). 145 Ill. 2d R. 604(d).
Among other things, defendant claimed that in entering his guilty plea he was misled by his attorney regarding the terms and length of the sentence. He claimed that trial counsel promised him that, with credit for time served and good time, he would be released in three to four years. He had to accept the State's offer because counsel advised him that his witnesses would not be believed at trial and that, if he were convicted after a trial, he would receive a 30-year prison sentence. He also informed his counsel that he was not guilty. He asserted that, but for his attorney's insistence on entering a guilty plea, he would not have entered it.
Defendant also claimed that he was misled about the burden of proof needed for conviction. He asserted that the trial court did not properly admonish him of his rights so that he did not understand that he was waiving his right to a trial, and he was misled as to the State's burden of proof beyond a reasonable doubt. The circuit court denied defendant's motion after a hearing on June 23, 1997, and defendant appealed to this court. On August 7, 1997, this court summarily dismissed the initial appeal and remanded the cause for a hearing on the pending motion to reduce sentence. After the denial of this motion, defendant filed a timely notice of appeal in this cause on June 3, 1998.
On appeal, defendant argues that the trial court failed to admonish him properly under Supreme Court Rule 402 (177 Ill. 2d R. 402) and failed to determine whether his plea was voluntary. He asserts that he was prejudiced as a result. He requests that his conviction be reversed and that the matter be remanded to allow him to plead anew. Alternatively, he requests a reduction in his sentence.
We agree that the trial court failed to comply substantially with Rule 402 and that defendant was prejudiced as a result. See People v. Davis, 145 Ill. 2d 240, 250 (1991) (also finding improper admonishment regarding possible sentence reviewable as plain error); People v. Packard, 221 Ill. App. 3d 295, 296-97 (1991). We reverse the orders of the circuit court denying his postjudgment motions, and we remand the cause for further proceedings. The trial court shall allow defendant to withdraw his plea, vacate his conviction and sentence, and permit him to plead anew.
At the time defendant entered his plea, Rules 402 (a) and (b) provided in pertinent part:
"(a) Admonitions to Defendant.
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:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(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 ...