{ "id": 3222953, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK ALLEN BENNETT, Defendant-Appellant", "name_abbreviation": "People v. Bennett", "decision_date": "1980-03-27", "docket_number": "No. 79-83", "first_page": "596", "last_page": "601", "citations": [ { "type": "official", "cite": "82 Ill. App. 3d 596" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "310 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "424" } ], "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. 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FRANK ALLEN BENNETT, Defendant-Appellant." ], "opinions": [ { "text": "Mme JUSTICE SPOMER\ndelivered the opinion of the court:\nDefendant appeals from denial of his motion to withdraw his guilty plea, entered on the charge of murder, for which he was sentenced to 30 years\u2019 imprisonment. He further appeals from dismissal of his post-conviction petition, based on the same charge, which has been consolidated with his direct appeal.\nDefendant was charged by information with the March 15, 1978, murder of his wife. A competency hearing was held on April 14,1978, and following the testimony of a court-appointed psychologist, the defendant was found fit to stand trial. At the preliminary hearing on May 9, 1978, probable cause was found. Two days later, defendant requested and received a hearing, at which he pleaded guilty to the murder charge.\nAt the May 11 hearing, defend\u00e1nt\u2019s counsel informed the court that his guilty plea was against counsel\u2019s advice, but that defendant had insisted. The court then admonished defendant that he was charged with murder, read the information to him, and advised him of possible penalties. When defendant persisted in his plea, the State\u2019s Attorney provided a factual basis for the plea.\nThe State\u2019s Attorney advised the court that, if the case were to go to trial, Glen Amberger, an Eldorado policeman, would testify that on March 15,1978, he received a call reporting a disturbance at an apartment in Eldorado. When Amberger opened the door of the apartment, defendant handed him a .410-gauge shotgun and told the officer, \u201cI killed the goddamned whore.\u201d Amberger thereupon placed defendant under arrest.\nMarlin Nelson, an occupant of the apartment, would testify that defendant entered his apartment and, addressing Roseanna Bennett, defendant\u2019s wife, stated, \u201cI am going to kill you.\u201d He then shot Roseanna in the head, reloaded the shotgun and shot her prone body a second time. Mrs. Marlin Nelson and Shirley Kilmer, who were also present, would testify to the same facts.\nThe State\u2019s Attorney further asserted that Jack Nolen, a detective for the Illinois Division of Investigation, would testify that after Miranda warnings were given, defendant made a voluntary statement. According to defendant\u2019s statement, on March 14, defendant\u2019s wife failed to pick him up at his place of employment in Kentucky as they had agreed. After several hours of se\u00e1rching, he found his wife at her aunt\u2019s home in Eldorado at about 3 p.m. the next day. She refused to go home with him, so he proceeded to the residence of Ed O\u2019Neal in Junction, Illinois, where he borrowed a .410-gauge shotgun and two shells. From there he drove to Eldorado, about 15 miles, and found his wife at the house of Shirley Kilmer. His wife then fled from the Kilmer house to the apartment of Marlin Nelson, to which he pursued her and shot her twice, with intent to kill her.\n1 Finally, the State\u2019s Attorney asserted that Dr. Warren Dammers, coroner\u2019s physician, would testify that the cause of Roseanna Bennett\u2019s death was gunshot wounds of the head and neck. Defense counsel stipulated as to the witnesses\u2019 testimony, and the defendant agreed that the factual basis was substantially correct.\nThe court then advised defendant of his right to a preliminary hearing, to a jury trial, to be prosecuted only on the information, to be confronted by witnesses against him, of his privilege against self-incrimination, and of his right to present evidence in his own behalf. Defendant waived his right of confrontation, and asserted that he understood the charges against him. He affirmed that his guilty plea was voluntary and a r\u00e9sult of his own decision, and that he \u201cvoluntarily, knowingly and understanding^\u201d waived his rights. The court then accepted his guilty plea.\nOn^June 21, 1978, defendant filed a motion to withdraw his guilty plea. At the hearing on the motion, defendant asserted that he pleaded guilty because he had been nervous, and he \u201cdidn\u2019t quite understand what was going on.\u201d His nervousness arose from the fact that he had never been in jail before. He claimed that, while his counsel had advised him of possible defenses or lesser offenses, he \u201cdidn\u2019t quite understand them.\u201d He also contended that members of his family had urged him to plead guilty, so he could \u201cget it over with.\u201d\nOn cross-examination, defendant admitted that he was just as nervous at the hearing to withdraw the guilty plea as he had been when he entered the plea. He admitted that the plea had not been coerced, and that his attorney had talked to him for 15 or 20 minutes about the consequences of his plea. Included in the discussion was counsel\u2019s recommendation that he not plead guilty, because \u201che said I would maybe get off with manslaughter or something like that.\u201d\nDefendant\u2019s motion to withdraw his plea was denied, and on June 29, 1978, defendant was sentenced to 30 years\u2019 imprisonment. The following day defendant renewed his motion to withdraw, it was again denied, and notice of appeal was filed.\nOn October 2,1978, defendant filed a pro se post-conviction petition, and counsel was appointed. At a hearing on December 13, 1978, defendant\u2019s petition was dismissed on the prosecutor\u2019s motion, from which dismissal defendant also appeals.\nOn direct appeal, defendant contends that his motion to withdraw should have been granted for the following reasons: (1) he was not properly admonished of the nature of the charge against him; (2) he was not advised of the possibility that he could be convicted of some lesser included offense; (3) he was not advised that he had the right to persist in the plea of not guilty, and (4) his guilty plea was not entered knowingly and voluntarily, but was the result of pressure from his family and his inability to understand the proceedings.\nNone of the defendant\u2019s contentions of inadequate admonishment by the trial court were raised in his motions to withdraw his guilty pleas; rather, the motions dealt entirely with allegations regarding his mental and emotional state at the time of the plea.\nSupreme Court Rule 604(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d)) provides, inter alia:\n\u201cUpon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.\u201d\nDefendant\u2019s claimed violations of Supreme Court Rule 402 (a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 402 (a)(1)) were therefore not properly perfected for appeal.\nFurthermore, when considered on the merits, it is clear that the trial court substantially complied with Rule 402. Defendant first claims that he was not advised of the nature of the charge against him. However, there need be only substantial, not literal, compliance with Rule 402(a)(1), and the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge. (People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559, 562.) Rule 402(a)(1) does not require the court to advise the defendant of the elements of the offense. Rather, there is compliance if an ordinary person in the circumstances of the defendant would understand what the charges are. (People v. Robinson (1976), 63 Ill. 2d 141, 145-46, 345 N.E.2d 465, 467.) Where, as here, the defendant is informed of the name of the charge and the prosecutor summarizes in court what the evidence would prove, the rule has been substantially complied with.(People v. Krantz (1974), 58 Ill. 2d 187, 193, 317 N.E.2d 559, 563.|Furthermore, a guilty plea is not rendered involuntary by the failure to inform the defendant expressly that the charged offense requires proof of specific intent. People v. Cosey (1978), 66 Ill. App. 3d 670, 672-75, 384 N.E.2d 95, 97-99.\nDefendant also contends that the court erroneously failed to advise him of lesser included offenses. Specifically, he complains that he was not advised of the possibility that he could be convicted of a lesser degree of homicide. However, a trial court is not required to inform the defendant of possible lesser included offenses or to inquire into the mental state of a defendant charged with murder where the factual basis for the plea removes any question as to mental state. People v. Johnson (1978), 66 Ill. App. 3d 84, 92, 383 N.E.2d 648, 654-55.\nIn this case, there can be no doubt that defendant understood the nature of the murder charge, and that he had the requisite mental state for murder. The trial court substantially complied with Rule 402(a)(1). The defendant himself admitted that his counsel discussed the possibility of manslaughter with him at some length. Furthermore, the factual basis for the plea revealed several witnesses who heard defendant express his intent to kill his wife at the time he shot her. Defendant agreed that the factual basis was substantially correct, and his own statement reaffirmed that he had the requisite intent to kill. Therefore, no reversal can be predicated on the basis of the nature of the charge, or the possibility of lesser included offenses.\nDefendant also complains that he was not advised of his right to persist in the plea of not guilty. However, where the entire record shows that defendant knowingly waived the constitutional rights associated with trial, failure to admonish him expressly that he can persist in a plea of not guilty is not error. (People v. McCoy (1979), 74 Ill. 2d 398, 402-03, 385 N.E.2d 696, 698-99; People v. James (1977), 51 Ill. App. 3d 541, 544, 366 N.E.2d 1082, 1085.) In this case, there is no question that defendant knew he did not have to plead guilty. The plea hearing was held at defendant\u2019s request. Defense counsel repeatedly told the defendant that the guilty plea was against his advice, and reasserted that fact in open court. Defendant voluntarily waived his trial rights. In such circumstances, failure to advise him specifically that he could persist in a not guilty plea was not error.\nFinally, defendant has presented insufficient evidence to establish that his guilty plea was rendered involuntary and unknowing by his limited mental capacity or emotionally disturbed state. He received a complete fitness examination and hearing, with the result that he was found able to understand the charges against him and to assist counsel in his defense. Moreover, emotional upset and family pressure did not render the plea involuntary, where he was thoroughly admonished and understood the rights he was waiving, yet persisted in his plea. Accordingly, no reversible error arose from defendant\u2019s direct appeal.\nWhile we affirm defendant\u2019s conviction in his direct appeal, we must remand the case for further post-conviction proceedings. The defendant\u2019s pro se post-conviction petition contended that his fourteenth amendment rights had been violated in that, when he pleaded guilty, he w\u00e1s disturbed emotionally, had been deprived of medication, and had been coerced into pleading guilty by the jail chaplain. No affidavits, records, or other evidence required by the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122 \u2014 2) were attached to the petition. In addition, defendant\u2019s counsel did not file an amended petition, nor a certificate regarding his representation, as required by Supreme Court Rule 651(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 651(c)).\nSupreme Court Rule 651(c) mandates that the record in a post-conviction proceeding contain a showing that the petitioner\u2019s attorney consulted with petitioner, examined the record of the trial proceedings, and made any amendments to the pro se petition necessary for adequate presentation of the petitioner\u2019s contentions. This requirement can be met by a certificate of compliance, or can be established from the record itself. People v. Drew (1976), 36 Ill. App. 3d 807, 809, 345 N.E.2d 45, 47.\nThe record in the case at bar reveals that defendant\u2019s post-conviction counsel had some familiarity with the case apart from the contentions of defendant\u2019s pro se petition. However, the attorney did not file an amended petition, and there is no other showing that he examined the record of the trial proceedings, nor that he' discussed defendant\u2019s contentions with him. We cannot presume those matters absent an affirmative showing by the record. (People v. Seidler (1974), 18 Ill. App. 3d 705, 708, 310 N.E.2d 421, 424), and accordingly, defendant was not adequately represented on his post-conviction petition.\nFor the foregoing reasons we reverse the order of the Circuit Court of Saline County dismissing the post-conviction petition, and the cause is remanded with directions that an attorney be appointed to represent the defendant in the post-conviction proceeding.\nAffirmed in part, reversed in part and remanded with directions.\nKASSERMAN and HARRISON, JJ., concur.", "type": "majority", "author": "Mme JUSTICE SPOMER" } ], "attorneys": [ "John H. Reid and Jeff M. Plesko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Walden E. Morris, State\u2019s Attorney, of Harrisburg (Martin N. Ashley and William S. Zale, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK ALLEN BENNETT, Defendant-Appellant.\nFifth District\nNo. 79-83\nOpinion filed March 27, 1980.\nJohn H. Reid and Jeff M. Plesko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nWalden E. Morris, State\u2019s Attorney, of Harrisburg (Martin N. Ashley and William S. Zale, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0596-01", "first_page_order": 618, "last_page_order": 623 }