{ "id": 2514344, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Donald Lee Holvey, Defendant-Appellant", "name_abbreviation": "People v. Holvey", "decision_date": "1974-03-08", "docket_number": "No. 72-217", "first_page": "809", "last_page": "812", "citations": [ { "type": "official", "cite": "17 Ill. App. 3d 809" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "303 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 742", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2686393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0742-01" ] }, { "cite": "47 Ill.2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903996 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0585-01" ] }, { "cite": "400 Ill. 22", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "25 L.Ed.2d 747", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12058257 ], "weight": 2, "pin_cites": [ { "page": "756" }, { "page": "1468" } ], "opinion_index": 0, "case_paths": [ "/us/397/0742-01" ] }, { "cite": "7 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "50 Ill.2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911346 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0028-01" ] }, { "cite": "48 Ill.2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905423 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0111-01" ] }, { "cite": "7 Ill.App.3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2671545 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0800-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "394 U.S. 831", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181959 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/394/0831-01" ] }, { "cite": "394 U.S. 459", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174781 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/394/0459-01" ] }, { "cite": "43 Ill.2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2842720 ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0236-01" ] }, { "cite": "45 Ill.2d 499", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895177 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0499-01" ] }, { "cite": "413 Ill. 181", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313866 ], "opinion_index": 0, "case_paths": [ "/ill/413/0181-01" ] }, { "cite": "11 Ill.App.3d 1085", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2931215 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/1085-01" ] } ], "analysis": { "cardinality": 449, "char_count": 7082, "ocr_confidence": 0.751, "pagerank": { "raw": 2.4927125076359e-07, "percentile": 0.8087081524830212 }, "sha256": "b8dba6ce29196a2295ddd146ac8d0f76de7352814be87810b031e71f255381b4", "simhash": "1:bf89f7c6bd60ee26", "word_count": 1174 }, "last_updated": "2023-07-14T21:35:57.081722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Donald Lee Holvey, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DIXON\ndelivered the opinion of the court:\nDefendant Donald Lee Holvey appeals from a judgment of the trial court of Hancock County denying his petition seeking relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, par. 122 \u2014 1).\nDefendant was charged with separate acts of aggravated battery. On Aug. 1, 1971, he entered a plea of guilty to each of the charges and was sentenced to concurrent terms of not less than 3 years nor more than 6 years in the Illinois State Penitentiary. No appeal was ever taken from that judgment. In March 1972 he filed a petition for post-conviction relief. A hearing was held and relief was denied on August 3, 1972.\nDefendant\u2019s sole contention is that the trial court failed to determine that a factual basis existed in support of the plea and that this constituted a denial of due process. He contends that the determination of a factual basis is a necessary ingredient of a finding that a plea is voluntary and intelligently made.\nThe record shows .that after reading the indictment to the defendant the following appears:\n\u201cThe Court: Are you, Mr. Holvey, pleading guilty because you believe to be guilty in fact?\nDefendant: Yes, sir.\nThe Court: 9 * 9 do you believe yourself in fact guilty or are .. you merely pleading guilty because somebody has advised you to do so?\nDefendant: I know I am guilty, sir.\u201d\nAggravation and mitigation were both waived and no pre-sent\u00e9nce report appears in the record.\nThe above has been held not a sufficient compliance with Rule 402(c) and were this proceeding a direct appeal, under the authority of People v. Walraven, 11 Ill.App.3d 1085, we would likely reverse and remand with directions that the defendant be allowed to plead anew.\nDefendant\u2019s appeal, being from the judgment denying his petition for relief pursuant to the Post-Conviction Hearing Act, must be determined on the basis of whether defendant has been convicted,and incarcerated in violation of his constitutional rights. (People v. Cox, 12 Ill. 2d-265; People v. Bernatowicz, 413 Ill. 181.) A violation of a statute or rules of procedure which do not constitute constitutional rights may not be considered. People v. Masterson, 45 Ill.2d 499; People v. Hangsleben, 43 Ill.2d 236.\nMcCarthy v. United States, 394 U.S. 459, 22 L,Ed,2d 418, 89 S.Ct. 1166, involved the- procedure that must be followed under Rule 11 of the Federal Rules of Criminal Procedure before a United States district court may accept a guilty plea and the remedy for a failure to follow that procedure. Federal Rule -11 is similar- to our present Rule 402. Rule 11 concludes, \u201cThe Court shall not enter judgment upon, a plea of guilty unless it is satisfied that there is a factual basis for the plea.\u201d The petitioner therein contended (1) that the district court had accepted his plea-\u201cwithout first addressing him 900 personally and determining that the plea was made voluntarily with understanding of the nature of the charge * * * and (2) that the court had entered judgment without determining \u201cthat there was 9 9 9 a factual basis for the plea.\u201d\nMcCarthy stated that although not constitutionally mandated the rule was .designed to assist the judge.in niaking the constitutionally required determination that the plea is truly , voluntary.\nIn Halliday v. United States (1969), 394 U.S. 831, 23 L.Ed.2d 16, 89 S.Ct. 1498, the court noted again that the holding in the McCarthy case was based solely upon the application of Rule .11. and not upon .constitutional grounds.\nIn Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, the court held that the waiver of constitutional rights which takes place when a plea of guilty is entered in a state criminal trial could not be presumed from a silent record, and that there was reversible error where the record did not disclose that the defendant voluntarily and understanding^ entered a guilty plea.\nThere was some question raised by the Boykin case as to whether the states are now required to apply the standards of Federal Rule 11 to the acceptance of guilty pleas. In his dissenting opinion in the Boykin' case, Mr. Justice Harlan, joined by Mr. Justice Black, stated that so far as one could make out from the court\u2019s opinion, what was now in effect being held was that the prophylactic procedures of Criminal Rule 11 are substantially applicable to the States as a matter of federal constitutional due process.\n\u25a0 Boykin was decided June 2,1969. Thereafter, our Supreme Court Rules were amended and since September 1, 1970, require that \u201cThe court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.\u201d See People v. Hudson, 7 Ill.App.3d 800.\nIn People v. Nardi, 48 Ill.2d 111, the court stated that Rule 402(c) was not- constitutionally mandated.\nIn People v. Reeves, 50 Ill.2d 28, the court stated, \u201c* * * in our opinion Boykin does not in any manner alter or modify the constitutional standard by which the validity of a plea of guilty is to be determined. The constitutional requirement, both pre and post Boykin is that a plea of guilty be \u2018intelligent and voluntary.\u2019 Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review \u2018the record must affirmatively disclose that the defendant who pleads .guilty enters his plea understanding and voluntarily.' (Brady v. United States, 39.7 U.S. 742, 747 footnote (4), 25 L.Ed.2d 747, 756, 90 S.Ct. 1463, 1468.) This requirement has been in effect in Illinois since 1948. See former Rule No. 27A, 400 Ill. 22.\u201d\n.-. There has been no allegation in defendant\u2019s brief that his guilty plea was not voluntarily and intelligently made. There was substantial compliance with Rule 402(a), (b) and (d) and defendant does not contend otherwise. He was represented throughout by privately retained couns\u00e9l of .his .own choosing.\n\u2022 Illinois cases cited by defendant with one exception are all decisions resulting from direct appeals not appeals from post-conviction proceedings \u00e1s'is the case here. The exception is People v. Bowers, 47 Ill.2d 585. In, th\u00e1t; b\u00e1se the defendant contended that the facts adduced did not show a factual basis for a charge of robbery. The court held that there was a sufficient showing of a factual basis for the plea of guilty and that the argument was without merit. Constitutional aspects were not raised or discussed. The case does not support defendant\u2019s position. See People v. Barr, 14 Ill.App.3d 742, 303 N.E.2d 202.\nWe do not believe that defendant\u2019s claim concerns a denial of a constitutional right. The judgment of the Circuit Court of Hancock County is accordingly affirmed.\nJudgment affirmed.\nALLOY, P. J., and STOUDER, J., concur.", "type": "majority", "author": "Mr. JUSTICE DIXON" } ], "attorneys": [ "Robert Agostinelli, Assistant Appellate Defender, of Ottawa, for appellant.", "Max B. Stewart, State\u2019s Attorney, of Carthage (Kai A. Wallis, of Circuit Attorney Project, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Donald Lee Holvey, Defendant-Appellant.\n(No. 72-217;\nThird District\nMarch 8, 1974.\nRobert Agostinelli, Assistant Appellate Defender, of Ottawa, for appellant.\nMax B. Stewart, State\u2019s Attorney, of Carthage (Kai A. Wallis, of Circuit Attorney Project, of counsel), for the People." }, "file_name": "0809-01", "first_page_order": 831, "last_page_order": 834 }