Appeal from the Circuit Court of Cook County. No. 99 C660853 Honorable George M. Morrissey, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
The defendant, Robert Vasquez, pled guilty to two counts of aggravated criminal sexual abuse and was sentenced to serve two concurrent extended nine-year terms of imprisonment based on a prior conviction pursuant to section 5-5-3.2(b) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-5-3.2(b)(West 1998)) and section 5-8-2 of the Code (730 ILCS 5/5-8-2(West 1998)). On appeal, Vasquez maintains his guilty pleas should be vacated because: (1) the trial court failed to properly admonish him as to the nature of the charges or of the maximum and minimum sentences prescribed by law as required by Supreme Court Rule 402(a)(177 Ill. 2d R. 402(a)), (2) a per se conflict of interest existed where his attorney argued her own ineffectiveness, and (3) section 5-8-2 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we reverse the decision of the trial court.
On June 10, 1999, Vasquez was charged in two separate informations with aggravated criminal sexual abuse pursuant to section 12-16(b) and (c)(1)(i) of the Criminal Code of 1961( 720 ILCS 5/12-16(b), (c)(1)(i)(West 1998)). Vasquez, who was over 17 years old, allegedly sexually abused two minor girls.
On November 30, 1999, Vasquez entered guilty pleas as to both charges. When Vasquez entered his guilty pleas, the following colloquy occurred:
"THE COURT: Furthermore, when you plead guilty, you give up your right to have any type of trial in either one of the two cases. The State won't be calling witnesses against you. Your attorney won't have a chance to cross examine them. Your attorney won't have a chance to call witnesses on your behalf and you won't have a chance to testify because when you plead guilty on these two separate cases there will be no trial. Do you understand that?
THE COURT: What's the recommendation on the cases?
[Assistant State's Attorney]: Nine years.
THE COURT: Concurrent on both of them?
THE COURT: Mr. Vasquez, the State is recommending and your attorney is recommending a sentence of nine years in the Illinois Department of Corrections, concurrent on both of these cases. Other than that recommendation has anybody made you [sic] any other threats or promises to make you plead guilty?
THE COURT: Are you pleading guilty freely and voluntarily?
THE COURT: State the basis?
[Assistant State's Attorney]: Judge, with respect to the case ending in 6853 the evidence would establish on March 16th 1999,***, the defendant was present with the victim at the defendant's father's house. The victim at the time was 12 years old. At that location the defendant French kissed the victim, rubbed her legs, unsnapped her bra and fondled the victim's breast. The defendant placed the victim's hands on the defendant's penis through his jeans.
With respect to case ending in 6854, the evidence would establish that on March 15th, 1999, *** the defendant was present with his eleven year old half sister who is the victim. They were in the attic of the victim's home storing Christmas decorations. The defendant told the victim to take off her overalls which she did. * * * Defendant removed his pants and asked the victim could he pop the cherry and give up her virginity. The defendant then began rubbing the victim's legs. The defendant at that time rubbed his erect penis on the victim's legs and told her not to worry if she saw blood. The defendant told the victim not to tell anyone or something would happen.
THE COURT: Mr. Vasquez, do you understand on these two separate cases those are the facts ...