People v. Cosey
| Decision Date | 21 November 1978 |
| Docket Number | No. 77-857,77-857 |
| Citation | 66 Ill.App.3d 670,23 Ill.Dec. 459,384 N.E.2d 95 |
| Parties | , 23 Ill.Dec. 459 PEOPLE of the State of Illinois, Respondent-Appellee, v. Augusto COSEY, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender of Cook County by John Thomas Moran, Chief, Appeals Div., Asst. Public Defender, Chicago, for petitioner-appellant.
Bernard Carey, State's Atty., County of Cook, Chicago, for respondent-appellee; Lee T. Hettinger, James S. Veldman, Asst. State's Attys., Chicago, of counsel.
Petitioner, Augusto Cosey, appeals from the judgment of the circuit court of Cook County dismissing his amended petition for post-conviction relief. The petition sought to set aside a negotiated plea of guilty to armed robbery and unlawful use of weapons, entered on May 5, 1975, on the ground that the plea was not entered knowingly and voluntarily. The issue on appeal is whether the failure to inform the petitioner that specific intent was an element of each offense and that each conviction carried a mandatory parole term resulted in a substantial deprivation of his constitutional rights which would render his guilty pleas involuntary. The pertinent facts follow.
By three indictments, petitioner, Augusto Cosey, was charged with the commission of two armed robberies (Ill.Rev.Stat.1973, ch. 38, par. 18-2) and the offense of unlawful use of weapons within five years after conviction of a felony (Ill.Rev.Stat.1973, ch. 38, par. 24-1).
At the trial on May 9, 1975, counsel for the petitioner indicated to the court that petitioner, as a result of a conference, wished to withdraw his previously entered pleas of not guilty, and to enter guilty pleas as to all three charges. Counsel further stated that the understanding of the petitioner was that if he entered a plea of guilty to all charges, he would receive sentences of five to ten years on each of the armed robberies and one to ten years on the unlawful use of weapons charge, all sentences to run concurrently.
The court then informed the petitioner that he was charged with the commission of two armed robberies, and the offense of unlawful use of a weapon within five years after conviction of a felony. The court further informed the petitioner of the minimum and maximum possible sentences for each conviction and that each sentence could run consecutively or concurrently. The petitioner stated that he understood. The court further admonished petitioner that by pleading guilty he was giving up his right to trial by jury and the right to subpoena witnesses and compel those giving testimony against him to do so in open court and to subject themselves to cross-examination. The petitioner then acknowledged that no threats or promises had been made in order to obtain his guilty pleas.
Following this, the court discussed the proffered plea agreement with the petitioner. Petitioner agreed that his understanding of the plea bargain was the same as set forth by the court. The court then obtained the underlying factual basis of each charge from the Assistant State's Attorney. The facts were stipulated as accurate by the petitioner. No one advised the petitioner that a mandatory period of parole would be part of the sentence imposed and that he could be held subject to the jurisdiction of the Pardon and Parole Board pursuant to section 5-8-1(e) of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005-8-1(e) ).
After having determined that the petitioner understood the charges and sentencing provisions and that the plea had not been coerced, the court entered findings of guilty on all three charges and, in conformity with the plea negotiations, sentenced him to concurrent terms of imprisonment of five to ten years on each of the charges of armed robbery, and one to ten years for the offense of unlawful use of weapons. No appeal was taken.
On July 29, 1975, petitioner filed a pro se petition seeking relief under the Illinois Post-Conviction Hearing Act (Ill.Rev.Stat.1973, ch. 38, par. 122-1 et seq.). On April 1, 1976, the State filed a motion to dismiss the petition. On August 26, 1976, petitioner filed an amended petition alleging that his constitutional rights were violated at his hearing in that the court did not inform him that the Unified Code of Corrections required a mandatory parole term, nor did the court inform him that the offenses with which he was charged were crimes requiring specific intent.
On August 26, 1976, the court dismissed the petition on the ground that there was no constitutional violation and, therefore, no alleged ground upon which to base relief under the Post-Conviction Hearing Act. Petitioner filed a timely notice of appeal.
Petitioner contends that his pleas of guilty were not intelligently and voluntarily given because he was not informed that armed robbery and unlawful use of weapons were specific intent crimes and that a conviction on each charge carried a mandatory parole term. He further maintains that the allegations in his petition raise constitutional issues so that it was error for the trial court to dismiss the petition without a hearing, and further, that this court should vacate the pleas entered to allow the petitioner to go to trial. The State replies that there was no error of a constitutional dimension in the plea hearing and, therefore, the dismissal of the petition was proper.
Under the Post-Conviction Hearing Act, this court is limited to a consideration of only those issues which involve substantial deprivations of a constitutional right. (People v. Calhoun (3rd Dist. 1976), 39 Ill.App.3d 204, 349 N.E.2d 135.) Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, sets forth the constitutional requirements for accepting guilty pleas in State court proceedings. The Illinois Supreme Court in People v. Reeves (1971), 50 Ill.2d 28, 29, 276 N.E.2d 318, 319, stated that:
Unlawful use of weapons is a specific intent crime in that the accused must knowingly carry or possess the weapon. Ill.Rev.Stat.1973, ch. 38, par. 24-1(a) (10) and (b).
Armed robbery, at the time petitioner was convicted, was considered to be an offense which did not require proof of specific intent. (People v. Burks (2nd Dist. 1975), 29 Ill.App.3d 74, 79, 331 N.E.2d 581.) In 1977, the Illinois Supreme Court in People v. White (1977), 67 Ill.2d 107, 115, 8 Ill.Dec. 99, 103, 365 N.E.2d 337, 341, decided that "at the time of the enactment of the Criminal Code of 1961, intent was an element of the crimes of robbery and armed robbery." The opinion is not clear as to whether its effect is prospective only or retroactive.
Assuming arguendo that White is retroactive and that armed robbery was a specific intent crime at the time of petitioner's conviction, under Illinois law, a defendant need not be informed of every element of a charged offense before a guilty plea may be accepted and the failure to so inform the defendant is not a violation of his constitutional rights. Under Supreme Court Rule 402 (Ill.Rev.Stat.1973, ch. 110A, par. 402), which sets forth the guidelines to be followed by a trial court in accepting a guilty plea, only the nature of the charge is necessary and not each and every element.
In People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559, our supreme court stated that the remarks and advice of the court must be read in a practical and realistic manner. All that is necessary to meet the essentials of informing the accused of the nature of the charge is that an ordinary person in the circumstances of the accused would understand what the charges are. In that case defendant was informed only of the name of the charge forgery. In People v. Robinson (1976), 63 Ill.2d 141, 146, 345 N.E.2d 465, 467, the supreme court again held that, "when defendant is represented by counsel and enters a plea of guilty pursuant to a plea agreement, it is appropriate to inform him of the nature of the charge by naming the offense." (See also, People v. James (1st Dist. 1977), 51 Ill.App.3d 541, 9 Ill.Dec. 571, 366 N.E.2d 1082.) This court held in People v. Willis (1st Dist. 1977), 50 Ill.App.3d 498, 8 Ill.Dec. 359, 365 N.E.2d 597, that advising the defendant of the specific nature of the charges is not constitutionally mandated.
Petitioner erroneously cites Henderson v. Morgan (1976), 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, as authority for his position. The issue presented there was whether the defendant could enter a voluntary plea of guilty to a charge of second degree murder...
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