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13 October 2000

No. 3--99--0266

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

JUSTICE HOLDRIDGE delivered the OPINION of the Court

Defendant, Bruce L. Fish, was convicted of two counts ofreckless homicide (720 ILCS 5/9--3(a), (e) (West 1998)) followinga stipulated bench trial. He claims that, inter alia, hisconvictions should be reversed because admonishments wererequired under Supreme Court Rule 402 (177 Ill. 2d R. 402) butwere not properly given. We reverse and remand for a new trial.

The State charged defendant with two counts of reckless homicide (720 ILCS 5/9--3(a), (e) (West 1998)) and one count ofaggravated driving under the influence of alcohol (625 ILCS 5/11--501(a)(2), (d)(1)(A) (West 1998)). He filed a motion tosuppress evidence which was denied. He then waived his right toa jury trial and agreed to a stipulated bench trial. Thefollowing colloquy occurred while his attorney discussed thenecessary arrangements with the judge:

"MR. NATHAN [defendant's attorney]: It's only 15minutes, judge. The stipulated bench trial is a plea.

THE COURT: I know.

MR. NATHAN: I don't want to use the wrong words,but there's no evidence in a stipulated bench trial."

The judge then asked the prosecutor to define the chargedoffenses and appraise defendant of the possible penalties. Regarding the penalty for reckless homicide, the prosecutorstated only that the offense carried a sentence of 3 to 14 yearsin the Department of Corrections (DOC). The judge informeddefendant that his waiver would forfeit his right to a jury trialand other corresponding rights (e.g., to present evidence andconfront the witnesses against him). The judge also stated: "Nowdo you understand, Mr. Fish, that if you are found guilty basedupon this stipulation by the court that you subject yourself to apossible penalty of up to 14 years in the [DOC]?" Defendantreplied, "yes."

The prosecutor then recited the facts underlying thecharges. According to those facts, defendant was driving whileunder the influence of alcohol on October 9, 1998. He failed toreduce his speed and caused a crash involving a number of othervehicles. One of the vehicles was occupied by Shirley Matkovicand her grandson Cole, both of whom were killed. Defendant hadno insurance on his vehicle, and a subsequent test of his bloodrevealed .235 grams of ethanol per deciliter.

Defendant's attorney stipulated that the recited facts weresufficient to sustain convictions on the State's charges. However, he moved to dismiss the charge of aggravated drivingunder the influence of alcohol, asserting that it involved alesser included offense of reckless homicide. The judge grantedthe motion, and defendant's attorney stated: "then we ***stipulate that the evidence presented would be the evidencepresented in court by the State, and again that it is sufficientto convict." The judge stated for the record that defendant hadunderstandingly waived his rights with knowledge of the chargesagainst him and the possible penalties. Defendant was then foundguilty on both reckless homicide charges.

At a subsequent hearing, the judge sentenced defendant toconcurrent terms of 14 years in the DOC. The sentence alsoincluded restitution to three families totaling $35,646.18, a$5,000 fine, and payment of court costs. Additionally, thesentencing order included a two-year period of mandatorysupervised release to be served following defendant's releasefrom the DOC.

Defendant filed post-trial and post-sentencing motions whichwere denied. He now appeals.

Defendant claims, inter alia, that his stipulated benchtrial was tantamount to a guilty plea, and thus that hisconvictions should be reversed because the judge did not properlyadmonish him under Supreme Court Rule 402 (177 Ill. 2d R. 402). He asserts that he was prejudiced because, without properadmonishments, his stipulation to the sufficiency of the State'sevidence was not freely and voluntarily entered. In response,the State contends that: (1) defendant has waived his claim; (2)his stipulated bench trial was not tantamount to a guilty plea;and (3) the judge substantially complied with the requirements ofRule 402.

Defendant failed to raise his Rule 402 claim in his post-sentencing motion. Generally, such failure results in waiver ofsentencing claims on appeal. See People v. Reed, 177 Ill. 2d389, 686 N.E.2d 584 (1997). However, "[p]lain errors or defectsaffecting substantial rights may be noticed [on appeal] althoughthey were not brought to the attention of the trial court." 134Ill. 2d R. 615(a). Defendant received a greater penalty than themaximum possible sentence of which he was admonished before hisstipulated bench trial. This action affected his substantialrights. See, e.g., People v. Kull, 171 Ill. App. 3d 496, 525N.E.2d 1223 (1988) (plain error doctrine applicable wheredefendant pled guilty and unknowingly received three-year periodof mandatory supervised release in addition to negotiatedsentence). Accordingly, we will review his claim.

Generally, a stipulated bench trial is not tantamount to aguilty plea if the defendant presents and preserves a defense. People v. Hawkins, 213 Ill. App. 3d 53, 571 N.E.2d 1177 (1991). However, in People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320(1991), our supreme court held that such a trial is tantamount toa guilty plea, despite the presentation and preservation of adefense, if the defendant's stipulation includes a concessionthat the State's evidence is sufficient to convict him. Rule 402admonishments are required in such cases. Horton, 143 Ill. 2d11, 570 N.E.2d 320; People v. Westerfield, 245 Ill. App. 3d 398,614 N.E.2d 493 (1993). These principles are incorporated intothe rule, which reads: "In hearings on pleas of guilty, or in anycase in which the defense offers to stipulate that the evidenceis sufficient to convict, there must be substantial compliancewith the following" admonishments. (Emphasis added.) 177 Ill.2d R. 402.

Since defendant clearly stipulated that the State's evidencewas sufficient to convict him, his stipulated bench trial wastantamount to a guilty plea. This conclusion is not surprisingin light of the colloquy between his attorney and the judgeshowing that they both considered his actions as equivalent to aplea. Accordingly, Rule 402 admonishments were required despitedefendant's presentation and preservation of a defense throughhis motion to suppress evidence.

The State argues that the instant case is distinguishablefrom Horton, asserting that defendant preserved an "actual" or"plausibly viable" defense but the defendant in Horton did not. Such a distinction, however, is not helpful in deciding the issueat hand. In Horton, the defendant's stipulated bench trial wasdeemed tantamount to a guilty plea because his stipulationincluded a concession that the evidence was sufficient to convicthim. The decision did not turn on the perceived viability of thedefense he preserved. This fact is apparent from the language ofRule 402, which expresses the Horton standard (177 Ill. 2d R.402, Committee Comments, at lxxvii) and speaks of stipulations tothe sufficiency of evidence rather than the nature of preserveddefenses.

Rule 402 is a means of enforcing important constitutionaldictates to assure that a defendant enters a guilty plea as "aknowing, intelligent act, done with sufficient awareness of therelevant circumstances and likely consequences." People v.Didley, 213 Ill. App. 3d 910, 915, 572 N.E.2d 423, 426 (1991). Under the rule, a defendant must be admonished of "the minimumand maximum sentence prescribed by law." 177 Ill. 2d R.402(a)(2). A "maximum sentence" includes elements such as aperiod of mandatory supervised release (People v. O'Toole, 174Ill. App. 3d 800, 529 N.E.2d 54 (1988)) and payment ofrestitution (People v. Culp, 127 Ill. App. 3d 916, 468 N.E.2d1328 (1984)). Additionally, Rule 402 requires a judge toquestion a defendant in open court to determine whether his pleawas induced by force, threats, or inappropriate promises. 177Ill. 2d R. 402(b). Admonishments are sufficient if they amountto "substantial compliance" with the rule. 177 Ill. 2d R. 402;People v. Burt, 168 Ill. 2d 49, 658 N.E.2d 375 (1995).

When defendant entered his stipulation, he was admonishedthat he faced a maximum sentence of 14 years in the DOC. He wasnot admonished regarding mandatory supervised release,restitution, fines, or court costs--although he later discoveredthat his sentence included each of these elements. Ultimately,his sentence was two years longer and over $40,000 more costlythan he could have imagined based on the information he receivedfrom the court before entering his stipulation. Under thesecircumstances, we cannot say that the stipulation was "a knowing,intelligent act, done with sufficient awareness of the relevantcircumstances and likely consequences." Didley, 213 Ill. App. 3dat 915, 572 N.E.2d at 426 (1991). The situation is aggravated bythe judge's failure to question defendant about whether hisstipulation was induced by force, threats, or inappropriatepromises.

We are convinced that the admonishments defendant receiveddid not amount to substantial compliance with Rule 402. SeePeople v. Louderback, 137 Ill. App. 3d 432, 484 N.E.2d 503 (1985)(no substantial compliance where admonishment regarding maximumsentence omitted term of mandatory supervised release); Kull, 171Ill. App. 3d 496, 525 N.E.2d 1223 (same); Didley, 213 Ill. App.3d 910, 572 N.E.2d 423 (same result in post-convictionproceeding, and the defendant knew he was subject to fines,restitution, and court costs before pleading guilty).

The State contends that defendant is not entitled to reliefbecause he has failed to specifically argue that he would nothave entered his stipulation if he had received properadmonishments. The State supports this contention by citingPeople v. Smith, 285 Ill. App. 3d 666, 669, 676 N.E.2d 224, 227(1996), where the Appellate Court, First District, stated: "Dueprocess requires only that the defendant not be prejudiced by thecourt's failure to fully and correctly explain his potentialsentence." Along those lines, the court reasoned that adefendant who is improperly admonished must "raise[] a good faithargument that he would not have pled guilty" if properadmonishments had been given. Smith, 285 Ill. App. 3d at 670,676 N.E.2d at 227.

We agree that a defendant should not obtain relief forincomplete admonishments without a good faith argument that theincompleteness prejudiced him. However, when a defendant allegesprejudice and shows that his sentence is two years longer andover $40,000 more costly than the maximum sentence of which hewas admonished, we do not believe relief should be denied merelybecause he fails to mention that he would have acted differentlyif proper admonishments had been given. No court has cited Smithfor such a proposition. Neither do the cases cited in Smith forits prejudice standard support such a proposition.⁽¹⁾ The problemin the instant case is the trial court's failure to give therequired admonishments under Rule 402, not defendant's manner ofclaiming ensuant prejudice.

For the foregoing reasons, we reverse the judgment of theMercer County circuit court and remand for a new trial.

Reversed and remanded.

KOEHLER and SLATER, J.J. concurring.

1. ¹The cases are United States ex rel. Baker v. Finkbeiner,551 F.2d 180 (7th Cir. 1977), and United States ex rel. Williamsv. Morris, 633 F.2d 71 (7th Cir. 1980), vacated as moot sub nom.,Lane v. Williams, 455 U.S. 624, 71 L. Ed.2d 508, 102 S. Ct. 1322(1982). While in each case the court looked for prejudice, itdefined prejudice in terms of whether the defendant's ultimatesentence was more onerous than the one he bargained for or hadbeen admonished was possible.