People v. Butchek
| Decision Date | 19 September 1974 |
| Docket Number | No. 12362,12362 |
| Citation | 22 Ill.App.3d 391,317 N.E.2d 148 |
| Parties | PEOPLE of the State of Illinois, Plaintiff, v. John BUTCHEK et al., Defendants. PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BUTCHEK, Impleaded, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
John F. McNichols, Deputy Defender, J. Daniel Stewart, Thomas Nelson, Asst. Defenders, Springfield, for defendant-appellant.
C. Joseph Cavanagh, State's Atty., Sangamon County, Springfield, for plaintiff-appellee; James W. Jerz, Principal Atty., Illinois State's Attys. Ass'n, Elgin, of counsel.
Defendant-appellant appeals from a judgment entered pursuant to a negotiated plea of guilty to the crime of armed robbery. Defendant was sentenced to an indeterminate term of 5 to 20 years. The issues presented are:
1) Whether the trial court substantially complied with Supreme Court Rule 402(a)(1) in informing the defendant of the nature of the charge.
2) Whether the trial court substantially complied with Supreme Court Rule 402(a)(2) in explaining to defendant the minimum sentence prescribed by law.
3) Whether defendant's minimum sentence is excessive.
On May 10, 1973, defendant, John Butchek, was indicted for the offense of armed robbery in violation of Ill.Rev.Stat.1971, ch. 38, sec. 18--2(a). On May 17, 1973, defendant and two co-defendants appeared without counsel for purposes of arraignment, and Judge Coutrakon entered not guilty pleas for the defendants to expedite the pretrial procedures. In the course of the arraignment the following colloquy occurred:
The Court: All right.
The three of you are charged in a one-count indictment with the charge of armed robbery in that you did, while armed with a dangerous weapon, a sawed off shotgun, knowingly take property from the person and presence of another, Scott Bell, by threatening the imminent use of force on the 2d of March, 1973, Sangamon County, Illinois.
That's the general nature of the charge that's pending against you.
Do you understand what the charge is?
Mr. Butchek: Yes.
The Court: I'm not going to read the indictment. It's real simple, unless you want me to, but I'll give you a copy of it.
Is that good enough for all of you?
Mr. Butchek: Yes.
Now, hold on to these orders and hold on to a copy of the indictments and give them to Mr. Kasten when he calls on you.
The Court: Enter a plea of not guilty for the defendants.
On June 5, 1973, one of the co-defendants decided to change his plea to guilty and informed the court that he intended to testify against Butchek. The court discharged Mr. Kasten as defendant's attorney and appointed other counsel.
On June 12, 1973, Butchek, accompanied by his new attorney, moved before Judge Ackerman to withdraw his plea of not guilty and enter a plea of guilty. Defendant then advised the court that he was thirty years of age and had fourteen and a half years of education including two and a half years of college. The court then stated:
I take it, then, you read, write and comprehend the English language?
Def. Butchek: Very much so.
The Court: The crime of armed robbery is defined as follows: 'A person commits armed robbery when he violates Section 18--1 while armed with a dangerous weapon.' And Section 18--1 provides: A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force and while armed with a dangerous weapon.'
Do you understand the nature of the charge against you?
Def. Butchek: Yes, I do, you honor.
The Court: The crime of armed robbery is a Class--
Mr. Roberts: Class 1 Felony.
The Court:--1 Felony under the Uniform Code of Corrections. The minimum and maximum sentence prescribed by law is as follows: Not less than four--
Mr. O'Keefe: That's correct.
The Court:--years, and without a maximum number of years, four years to any number of years, and that is an indeterminate number of years which means not a fixed number of years, but--well--five to twenty, for example, and the Uniform Code further provides for a fine not to exceed--is it ten thousand dollars?--let's see.
Mr. Roberts: I believe it is, you honor, yes.
The Court: All right, and a parole term of how many years on the end?
Mr. Roberts: Class 1 Felony--five years.
The Court: Five years . . .
The court then proceeded to explain to defendant his various rights. Defendant then waived his right to plead not guilty, to a trial by jury, and to a confrontation of witnesses against him and demonstrated a clear understanding of these rights. Defendant then waived his right to a pre-sentencing investigation and to a sentencing hearing. Defendant then stated that he understood that any plea bargain with the State would not be binding on the court. The State then presented a factual basis for the plea. The State then informed the court that under the plea bargain reached with defendant, the State would recommend a term of 5 to 20 in return for defendant's guilty plea. Butchek acknowledged that the bargain was accurate. The court found that defendant knowingly and understandingly waived his rights. The court then entered judgment on the plea and sentenced defendant to 5 to 20 years with credit for time served while awaiting trial. The docket entry for that date reads in pertinent part:
. . . Defendant John Butchek sentenced to a term of not less than 5 nor more than 20 years . . . Defendant Granville Smith sentenced to a term of not less than 4 nor more than 12 years . . . Sentence as to each defendant is a negotiated sentence, as per plea agreement . . . The reason for the disparity of sentence herein is due to the difference in criminal record of the two defendants.
Defendant contends that it does not affirmatively appear on the record that he understood the nature of the charge in violation of the provisions of Supreme Court Rule 402(a)(1) which requires that:
In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge.
During defendant's initial appearance before the court the factual allegations of the indictment were read to him and defendant indicated that he understood those allegations. At the time the plea was taken the trial judge read to the defendant the statutory provisions which defined the offense in question, at which time defendant again stated that he understood the nature of the charge. The defendant had attended college for 2 1/2 years, and the record demonstrates that he was an intelligent individual who had articulated an understanding of the legal process with rather remarkable clarity and comprehension. This record taken in its entirety clearly establishes that defendant understood that nature of the charge, and this satisfies the requirement of the Rule. People v. McCrady, 131 Ill.App.2d 836, 267 N.E.2d 515; People v. Carter, 107 Ill.App.2d 474, 246 N.E.2d 320; People v. Green, 12 Ill.App.3d 418, 299 N.E.2d 535. Defendant's contentions on this point are simply contrary to the record.
Defendant next contends that the trial judge did not comply with the provisions of Supreme Court Rule 402 which requires in pertinent part:
In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court informing him of and determining that he understands the following:
(2) the minimum and maximum sentence prescribed by law . . .
Specifically defendant urges that the trial judge erred in accepting his plea without explaining the minimum sentence prescribed by law. Defendant was told that the minimum sentence for armed robbery is four years, and the maximum any number of years. Defendant was also admonished that a fine of up to $10,000 could be imposed, and that there was a mandatory parole term of 5 years. Defendant maintains that the Minimum sentence prescribed by law is Not the minimum term of Imprisonment, since he could have been sentenced to periodic imprisonment for up to two years. Consequently, he urges, the trial judge violated Rule 402 in failing to so admonish the defendant, and his plea should be set aside and the case remanded with directions that he be permitted to plead anew.
Defendant structures his argument in this progression:
First: Rule 402 requires admonishment as to the minimum sentence prescribed by law.
Second: The Code of Corrections, Ill.Rev.Stat.1973, ch. 38, par. 1005--1--19 defines 'sentence' as '. . . the disposition imposed by the court on a convicted defendant.'
Third: The 'dispositions' available to a trial judge are contained in par. 1005--5--3 as follows:
(d) When a defendant is convicted of a felony or misdemeanor, The court may sentence such defendant to: (emphasis added)
(1) a period of probation or conditional discharge except in cases of murder, rape, armed robbery . . .
(2) a term of periodic imprisonment;
(3) a term of imprisonment;
(4) a fine . . .
Fourth: It therefor follows that since probation, periodic imprisonment, and conditional discharge are 'minimum sentences', a defendant, in entering his plea, must be admonished as to their availability. While probation and conditional discharge were not available in the instant case, periodic imprisonment could have been imposed, and is a lesser minimum than the 4 year minimum required by the provisions of par. 1005--8--1(b)(2) of the Code of Corrections and stated to him by the court.
We must first determine whether or not the failure of the...
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...Advance Sheet No. 26 (December 20, 2006), R. 316, eff. December 6, 2006)] and directed the same to issue." People v. Butchek, 22 Ill.App.3d 391, 403, 317 N.E.2d 148 (1974); see also Scott v. Industrial Comm'n, 184 Ill.2d 202, 215, 234 Ill.Dec. 469, 703 N.E.2d 81 (1998) (noting without objec......
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U.S.A v. Wright
...Ann. § 40-36-104). 5. In Illinois, conditional discharge is a discretionary alternative to imprisonment. See People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, 156 (1974). It is a conditional and revocable release without probationary supervision but under such conditions as may be impos......
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...are supported only by exploitation of certain language in People v. Harl, 11 Ill.App.3d 372, 297 N.E.2d 404. In People v. Butchek, Ill.App., 317 N.E.2d 148, it was pointed out that such language was dicta and that the functions of the admonitions required by the Rule was to establish a vali......
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People v. James, 12464
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