People v. Day
Case Date: 02/01/2000
Court: 2nd District Appellate
Docket No: 2-98-0718
People v. Day, No. 2-98-07182nd District, 1 February 2000
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 (720ILCS 5/12--4.2 (West 1994)) and agreed to a 15-year prison sentence. The State agreed to dismiss other pending chargesagainst him including a mob action charge. Defendant filed timely pro se motions to withdraw his plea and vacate thejudgment and to reduce his sentence. Defendant's appointed counsel made changes to defendant's claims and presented amodified 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 termsand length of the sentence. He claimed that trial counsel promised him that, with credit for time served and good time, hewould be released in three to four years. He had to accept the State's offer because counsel advised him that his witnesseswould not be believed at trial and that, if he were convicted after a trial, he would receive a 30-year prison sentence. He alsoinformed his counsel that he was not guilty. He asserted that, but for his attorney's insistence on entering a guilty plea, hewould not have entered it. Defendant also claimed that he was misled about the burden of proof needed for conviction. He asserted that the trial courtdid not properly admonish him of his rights so that he did not understand that he was waiving his right to a trial, and he wasmisled as to the State's burden of proof beyond a reasonable doubt. The circuit court denied defendant's motion after ahearing on June 23, 1997, and defendant appealed to this court. On August 7, 1997, this court summarily dismissed theinitial appeal and remanded the cause for a hearing on the pending motion to reduce sentence. After the denial of thismotion, 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. 2dR. 402) and failed to determine whether his plea was voluntary. He asserts that he was prejudiced as a result. He requeststhat his conviction be reversed and that the matter be remanded to allow him to plead anew. Alternatively, he requests areduction in his sentence. We agree that the trial court failed to comply substantially with Rule 402 and that defendant was prejudiced as a result. SeePeople v. Davis, 145 Ill. 2d 240, 250 (1991) (also finding improper admonishment regarding possible sentence reviewableas plain error); People v. Packard, 221 Ill. App. 3d 295, 296-97 (1991). We reverse the orders of the circuit court denyinghis postjudgment motions, and we remand the cause for further proceedings. The trial court shall allow defendant towithdraw 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 defendantpersonally 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 thedefendant 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 pleadguilty; 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 trialby jury and the right to be confronted with the witnesses against him. (b) Determining Whether the Plea is voluntary. The court shall not accept a plea of guilty without first determiningthat the plea is voluntary *** by questioning the defendant personally *** and shall determine whether any force orthreats or any promises, apart from a plea agreement, were used to obtain the plea." 134 Ill. 2d Rs 402(a), (b). Defendant pleaded guilty to a Class X offense having a sentencing range of 6 to 30 years' imprisonment. 730 ILCS 5/5--8--1(a)(3) (West 1994). The sentence also included a three-year term of mandatory supervised release (MSR). 730 ILCS 5/5--8--1(d)(1) (1994). Our review of the record shows that the court erred in a number of ways at the plea hearing. The court did not personallyinform defendant of the nature of the charge, of the minimum and maximum sentences prescribed by law, or of the three-year MSR that would attach to the 15-year sentence. The court did not ascertain whether any promises were made otherthan the agreement to induce the plea and did not advise defendant that he had a right to plead not guilty or that he couldpersist in his plea. Furthermore, the record discloses that defendant had a limited educational background, having been aspecial education student who only reached the ninth grade. When he informed the court that his reading was a little"shaky," the court asked defense counsel to read the guilty plea form aloud. The form that defendant signed stated that hegave up his right to any trial, with or without a jury, and that he was pleading guilty of his own free will. The court did not explain that defendant was giving up his right to be confronted with the witnesses against him. Althoughthe court noted that the State would have to prove him guilty beyond a reasonable doubt, the court then made confusingstatements regarding the burden of proof that would be required. The court asked defendant, "Do you understand you haveto persuade all 12 people on a jury of that?" Then the court asked, "Is it your understanding if we were to try the case andthe State does have some evidence against you so you might be found guilty?" Defendant answered: "What?" The courtthen asked: "Do you understand or do you believe it to be true that the State does have some evidence against you?"Defendant responded, "I feel that my witnesses ain't going to show up. I ain't got a chance to win it." This colloquy isnothing less than confusing and shows that defendant was not properly advised of the State's burden of proof and ofdefendant's right to confront the witnesses against him. Defendant testified that he was confused by the admonitions. The issue before this court is whether the court abused its discretion in denying defendant's motion to withdraw his plea.Davis, 145 Ill. 2d at 244. We conclude that the court abused its discretion in this case. Rule 402 was adopted to insurecompliance with the due process requirement that a plea of guilty must be affirmatively shown to be voluntarily andintelligently made before it can be accepted. People v. Kidd, 129 Ill. 2d 432, 443 (1989). The record must disclose that theconsequences of a guilty plea have been fully explained to a defendant before the plea may be permitted to stand. Kidd, 129Ill. 2d at 444. The court's inadequate admonitions and confusing questions do not satisfy the due process requirements forguilty pleas, and the plea cannot stand. While the failure to admonish a defendant properly does not automatically provide the basis to reverse a judgment or vacatea plea (Davis, 145 Ill. 2d at 250), the errors in this case are sufficiently serious that we cannot say that the plea wasvoluntarily and intelligently made. Due process is violated where a court admonishes a defendant that he will receive ashorter sentence than he actually receives; this includes the failure to advise a defendant of the three-year MSR attached tohis sentence. See People v. Smith, 285 Ill. App. 3d 666, 670 (1996). The failure to advise a defendant of the minimum andmaximum sentences warrants vacatur and remand (see Kidd, 129 Ill. 2d at 446-47), especially where the defendant timelyattempts to vacate his plea (see People v. Packard, 221 Ill. App. 3d 295 (1991)). The State notes that defendant was represented by counsel, and there was testimony at the hearing on the motion by defensecounsel that he advised defendant of the range of the sentence. He denied telling defendant that defendant would receive a30-year prison term if he went to trial and was convicted. Counsel stated, "I told him the range of sentencing, which I'msure included the upper end." The State seems to suggest that counsel's advice to defendant may serve to cure the errors.However, courts have rejected the argument that counsel's advice is a substitute for the required admonishments. It is theduty of the court to address the defendant personally on the record and to ascertain that he understands the consequences ofhis plea. People v. Tripp, 248 Ill. App. 3d 706, 717-18 (1993) (vacating conviction and remanding for defendant to pleadanew); Packard, 221 Ill. App. 3d at 297. In sum, the admonishments did not comply with Rule 402. The court failed to advise defendant of the nature of the offense,the range of the possible sentence, and of the additional requirement that a three-year term of mandatory supervised releasewould be added to the sentence. The court did not explain, except in the most cursory manner, the rights that defendant wasgiving up by foregoing a trial. The court failed to explain clearly the State's burden of proof and defendant's right toconfront witnesses. The court also failed to inquire sufficiently regarding the voluntariness of his plea. Based on our readingof Davis, Kidd, Smith, Tripp, and Packard, we believe that the equities lie with defendant and that he must be allowed towithdraw his plea and plead anew. For the reasons stated, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded forfurther proceedings. The circuit court shall allow defendant to withdraw his plea, vacate his conviction and sentence, andpermit him to plead anew. Reversed and remanded with directions. INGLIS and GEIGER, JJ., concur. |
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