{ "id": 2786224, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Benny Lee Wise, Defendant-Appellant", "name_abbreviation": "People v. Wise", "decision_date": "1975-02-25", "docket_number": "No. 73-410", "first_page": "158", "last_page": "162", "citations": [ { "type": "official", "cite": "26 Ill. App. 3d 158" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "58 Ill.2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953999 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0057-01" ] }, { "cite": "59 Ill.2d 255", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959171 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0255-01" ] }, { "cite": "58 Ill.2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952306 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0187-01" ] }, { "cite": "21 Ill.App.3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5376913 ], "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0305-01" ] }, { "cite": "18 Ill.App.3d 385", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2608632 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0385-01" ] }, { "cite": "16 Ill.App.3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2520578 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0986-01" ] }, { "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": "268 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "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": "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": "38 Ill.2d 213", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2862552 ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0213-01" ] } ], "analysis": { "cardinality": 510, "char_count": 10876, "ocr_confidence": 0.702, "pagerank": { "raw": 1.2047266313740438e-07, "percentile": 0.5945470179921687 }, "sha256": "6a03210f74612453aa2c17213a15cdfde6552b7f98f15693efb53254c1f4fde4", "simhash": "1:ade2e8329421efe0", "word_count": 1797 }, "last_updated": "2023-07-14T18:35:11.694582+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. Benny Lee Wise, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE CARTER\ndelivered the opinion of the court:\nOn February 16, 1972, appellant Wise was indicted by the grand jury of Jackson County on two counts of armed robbery, two counts of aggravated battery and one count of aggravated kidnapping. Pursuant to plea negotiations, on February 28, 1972, the appellant pled guilty to aggravated kidnapping (count 5 of the indictment), and the remaining four counts were dismissed. Appellant was sentenced to a term of imprisonment of not less than 15 nor more than 25 years to be served concurrently with previous sentences imposed upon him by the Circuit Court of Williamson County and the Circuit Court of Union County. The appellant did not file a direct appeal from this conviction.\nOn October 9, 1973, appeHant filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1963, ch. 38, par. 122 \u2014 1 et seq., as amended to date), seeking a new trial on the ground that his constitutional rights were violated in the proceeding which resulted in his conviction. In particular, appellant alleged in his petition:\n(a) that the trial court had permitted his attorney to enter a plea of guilty on his behalf without having personally requested him to enter a plea of guilty, in violation of Supreme Court Rule 402;\n(b) that the only indication on the record that he had entered a plea of guilty was reflected by his informing the trial court that he desired that the trial court accept a written instrument as his \u201cwritten plea\u201d to the charges of count 5 of the indictment;\n(c) that prior to accepting his plea, in violation of Rule 402(a) (2), the trial court had failed to advise him that consecutive sentences could be imposed since he had previously been convicted of rape in Williamson County on February 25,1972;\n(d) that prior to accepting his plea of guilty, in violation of Rule 402(a) (4), the trial court had failed to advise him that if he entered a plea of guilty there would be no trial; and\n(e) that prior to accepting his plea of guilty, the trial court had failed to admonish him adequately of the penalty which could be imposed; that the trial court merely had advised him that the offense carried \u201can indeterminate term of a minimum of not less than two years imprisonment in the Illinois State Penitentiary, which means that any number of years can be assessed by the Court.\u201d\nIt should be noted that the record and transcript of the proceedings in support of these allegations were attached to the appellants\u2019 post-conviction petition in compliance with section 122 \u2014 2 (Ill. Rev. Stat. 1963, ch. 38, par. 122 \u2014 2, as amended).\nOn October 31, 1973, the State filed its motion to dismiss appellant\u2019s post-conviction petition on the ground that the allegations contained in such petition and the record itself revealed that appellant\u2019s post-conviction petition was nonmeritorious. Hie State took the position that the record of the proceedings of February 28, 1972, revealed that appellant had knowingly and voluntarily entered a plea of guilty to the offense charged in count 5 of the indictment. The trial court below sustained the State\u2019s position and ordered that the appellant\u2019s post-conviction petition be dismissed and that appellant be denied a hearing under the Post-Conviction Hearing Act. From such an order, appellant now brings this appeal.\nWe disagree with the trial court\u2019s finding that appellant\u2019s post-conviction petition is nonmeritorious. Our concern on review is whether the appellant has alleged sufficient facts, borne out by the record and transcript of the conviction hearing, to require an evidentiary hearing on appellant\u2019s post-conviction petition in accordance with section 122 \u2014 6. To determine this, we must look to the allegations contained in the post-conviction petition, construed liberally in favor of the appellant, and as set forth in light of the record and transcript of the conviction proceeding now before us. The function of pleadings under the Post-Conviction Hearing Act is to determine whether the petitioner is entitled to a hearing; it is not the intention or purpose of the Post-Conviction Hearing Act that constitutional claims be adjudicated on the pleadings. People v. Clements, 38 Ill.2d 213.\nSection 122 \u2014 1 provides that a person imprisoned in the penitentiary may institute a proceeding under the Post-Conviction Hearing Act by asserting \u201c* * * that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both * * *.\" In dismissing appellant\u2019s petition, the trial court held that the appellant\u2019s assertions in light of the record and transcript of the conviction proceedings did not reveal a \u201csubstantial denial\u201d of appellant\u2019s constitutional rights. We disagree.\nAppellant\u2019s allegations in his petition \u2014 and the record and transcript \u2014 raise the question of whether appellant \u201cintelligently and voluntarily\u201d entered the plea of guilty to count 5 of the Indictment. Even the State acknowledged this question by asserting in paragraph two of its motion to dismiss that \u201cthe record reveals that the defendant was knowledgeable in the ways of court proceedings, was represented by counsel, and knowingly and voluntarily entered the plea on which his conviction stands * * *.\" Clearly, it is a federal constitutional requirement that the record show that the defendant enters a plea of guilty intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.\nThe thrust of appellant\u2019s assertions in his post-conviction petition focuses on the failure of the trial court, prior to accepting the plea, to admonish him with regard to tire possibility of receiving consecutive sentences, and with regard to the possibility of the minimum and maximum sentence prescribed by law (violation of Supreme Court Rule 402(a)(2)), and the failure of the trial court to admonish him regarding the fact that there would be no trial if he entered a plea of guilty (violation of Rule 402(a) (4)). While the requirements of Rule 402 are not constitutionally mandated (People v. Nardi, 48 Ill.2d 111, 268 N.E.2d 389), nevertheless, the fundamental purpose behind Rule 402 is to preserve a record which reflects an intelligent and voluntary plea as required by due process of law. People v. Reeves, 50 Ill.2d 28.\nRegardless of how artfully or artlessly the post-conviction petition is drawn, once a petitioner raises the assertion in his post-conviction petition that the trial court failed to comply with Rule 402, the record and transcript of the conviction proceedings must be reviewed carefully to determine the extent of compliance with Rule 402. This the trial court below failed to do. A review of the record and transcript in this case reveals an almost wholesale disregard of the requirements of Rule 402 at the conviction proceeding.\nWe find, for example, that the trial judge did not determine whether any force, threats, or promises, apart from the plea agreement, were used to induce the appellant\u2019s plea, such determination being required by Supreme Court Rule 402(b). Determining personally from the defendant whether any force, threats or promises were made goes to the very heart of whether the plea was entered voluntarily.\nThe record also reflects that appellant was not admonished as to his right to plead not guilty as required by Rule 402(a)(3); appellant was told merely that he had a right to withdraw his guilty plea. When accompanied by other violations of Rule 402, the failure to admonish regarding the right to plead not guilty has been held fatal to the guilty plea. People v. Avery, 16 Ill.App.3d 986.\nAgain, we find appellant was not personally admonished that a guilty plea waived the right to trial by jury and the right to confront witnesses against him as required by Rule 402(a)(4). The record indicates that appellant was not advised that he had a right to jury trial and to confront witnesses against him. The mere signing of a printed form allegedly waiving these rights is not sufficient of itself to indicate that such a waiver was understandingly made (People v. Paproth, 18 Ill.App.3d 385) although, as the State points out in its brief, it may be a factor.\nThe record also reveals that the trial judge did not personally confirm the terms of the plea agreement with appellant as required by Rule 402(b); the State\u2019s attorney advised the trial court of the \u201csubject and substance\u201d of the negotiation and the trial judge asked the appellant\u2019s counsel and the appellant if they desired to add anything to the record, the appellant\u2019s counsel stating in effect that he had nothing to add to the record.\nAnd finally, we find that the record indicates that the appellant was not admonished as to the nature of the charge as required by Rule 402(a) (1). While appellant was told of the offenses with which he was charged, and was furnished with a copy of the indictment, nevertheless the trial judge did not personally confirm that appellant understood the nature of the charge.\nCertainly a violation of Rule 402 is not per se a substantial denial of a constitutional right, but when the violation is accompanied by a record which does not convince us that the plea was intelligently and voluntarily entered then the defendant\u2019s right to due process has been violated. In the instant case, there were six instances wherein Rule 402 was not complied with. The court in People v. Meredith, 21 Ill.App.3d 305, 308, stated:\n\u201cIn view of the totality of these deficiencies, we hold that the guilty plea was not knowingly made.\nA guilty plea that is not voluntary and knowing is violative of the due process clause.\u201d\nWe are mindful of the supreme court decisions in People v. Krantz, 58 Ill.2d 187, People v. Ellis, 59 Ill.2d 255, and People v. Dudley, 58 Ill.2d 57, wherein it is stated that there need be only substantial, not literal compliance with provisions of Rule 402. The supreme court also said that the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge. However, we believe that there was not substantial compliance with Supreme Court Rule 402, and this was determined upon a review of the entire record. Consequently, we reverse the trial court\u2019s order dismissing the appellant\u2019s post-conviction petition, and we return the case to the trial court of Jackson County for an evidentiary hearing.\nReversed and remanded.\nEBERSPACHER and G. MORAN, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE CARTER" } ], "attorneys": [ "John O. Vogel, of Glen Ellyn, for appellant.", "Howard L. Hood, State\u2019s Attorney, of Murphysboro (John T. Bowman and Gary T. Miller, Senior Law Students, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Benny Lee Wise, Defendant-Appellant.\n(No. 73-410;\nFifth District\nFebruary 25, 1975.\nJohn O. Vogel, of Glen Ellyn, for appellant.\nHoward L. Hood, State\u2019s Attorney, of Murphysboro (John T. Bowman and Gary T. Miller, Senior Law Students, of counsel), for the People." }, "file_name": "0158-01", "first_page_order": 184, "last_page_order": 188 }