People v. Cox

• Decision Date: 30 December 1976
• Docket Number: No. 63097,63097
• Citation: 358 N.E.2d 1313,3 Ill.Dec. 628,44 Ill.App.3d 945
• Parties: , 3 Ill.Dec. 628 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph COX, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1313

358 N.E.2d 1313

44 Ill.App.3d 945, 3 Ill.Dec. 628

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph COX, Defendant-Appellant.

No. 63097.

Appellate Court of Illinois, First District, First Division.

Dec. 30, 1976.

James J. Doherty, Public Defender of Cook County, Chicago (Jack L. Uretsky, Donald S. Honchell, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Laurence J. Bolon, Joan S. Cherry, Chicago, Salvatore R. Marzullo, Asst. State's Atty., of counsel), for plaintiff-appellee.

SIMON, Justice.

Pursuant to an agreement with the prosecution, petitioner Joseph Cox pled guilty to three counts of armed robbery. The petitioner agreed to accept a recommended sentence of concurrent terms of 6 to 18 years on each count in return for the People's recommendation to drop a pending murder charge against him. Prior to accepting the guilty plea and imposing the sentence agreed upon, the trial judge admonished the petitioner as to the consequences of his plea. He told the petitioner the court had the authority to impose a parole term which would require petitioner to be under the supervision of the Department of Pardon and Parole after he served whatever sentence the court chose to impose.

The petitioner appeals from the circuit court's dismissal of his petition for post-conviction relief under the Illinois Post Conviction Hearing Act (Ill.Rev.Stat.1975, ch. 38, par. 122--1, Et seq.). The basis for his petition is that the trial court incorrectly admonished him by informing him in effect that the imposition of a parole term was discretionary with the court whereas under the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, pars. 18--2 and 1005--8--1(e)) a parole term of 5 years was mandatory. Petitioner contends that he was misled by the trial court's failure to advise him that the parole term was mandatory. He argues, for that reason, that his plea was not voluntary, knowing or intelligent, and he was, therefore, deprived of his due process rights.

The issue raised by petitioner must be decided within the framework provided by (i) Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, which directs that a guilty plea must be entered voluntarily and knowingly, (ii) Illinois Supreme CourtRule 402, which was adopted to insure compliance with Boykin v. Alabama ¹ and sets forth guidelines to be followed by a trial court in accepting guilty pleas, and (iii) the following decisions of Illinois reviewing courts applying Rule 402 and in particular Rule 402(a)(2): People v. Wills (1975), 61 Ill.2d 105, 330 N.E.2d 505, Cert. den. 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374; People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559; People v. Miller (1976), 36 Ill.App.3d 943, 344 N.E.2d 760; People v. Bosse (1975), 32 Ill.App.3d 422, 336 N.E.2d 216; People ex rel. Jenkins v. Department of Corrections (1975), 32 Ill.App.3d 147, 336 N.E.2d 385; People v. Yepsen (1975), 30 Ill.App.3d 484, 333 N.E.2d 565; People v. May (1975), 25 Ill.App.3d 1, 322 N.E.2d 606. These cases dealt with the failure of a trial judge to advise a defendant entering a guilty plea of the requirement of a mandatory parole term.

In Krantz, the court noted that Rule 402 directed 'substantial compliance' rather than literal compliance with its provisions (see also People v. Robinson (1976), 63 Ill.2d 141, 145, 345 N.E.2d 465), and concluded that substantial compliance did not require informing a defendant that imposition of a parole term was mandatory. The Supreme Court's reasoning was that the provision of the Unified Code of Corrections imposing a mandatory parole term was enacted subsequent to the adoption of Rule 402. Bosse, People ex rel. Jenkins, Yepsen and May followed the holding in Krantz as have numerous other decisions of Illinois appellate courts. The court departed from Krantz when it decided in Wills that Rule 402(a)(2) required that a defendant be admonished of any mandatory period of parole the court was obligated to impose, but held that this procedural change would not apply retroactively. The court in Wills observed that with respect to guilty pleas entered prior to its opinion filed on May 19, 1975, failure to admonish a defendant concerning the mandatory parole period is only one factor to be considered in deciding whether a plea was voluntary and intelligent. It this case, the petitioner pled guilty on August 24, 1974. Miller decided after Wills, involved a guilty plea entered, as in this case, prior to the Wills' opinion. The appellate court held that because the guilty plea in question predated Wills, Rule 402(a)(2) did not require an admonition covering the mandatory parole term.

The issue raised by this appeal differs somewhat from that resolved by these decisions. They were concerned with whether Boykin v. Alabama and Rule 402(a) (2) were violated by the absence of an admonition covering a mandatory parole term. The issue here is whether Boykin v. Alabama and Rule 402(a)(2) are violated by an incomplete admonition concerning the parole term. This same issue was raised in People v. McLean (1975), 33 Ill.App.3d 965, 966, 338 N.E.2d 902, which affirmed a guilty plea made after an incomplete admonition similar to the one in this case.

To be entitled to post-conviction relief under Ill.Rev.Stat.1975, ch. 38, par. 122--1, a defendant must demonstrate he suffered a constitutional deprivation. The court observed in Wills (61 Ill.2d at p. 111, 330 N.E.2d 505) that it was announcing a procedural change which did not involve any constitutional issue or standard, and, thus, failure to admonish a defendant concerning a mandatory parole term is not a constitutional deprivation. See Yepsen, 30 Ill.App.3d at p. 487, 333 N.E.2d 565 and Bosse, 32 Ill.App.3d at p. 423, 336 N.E.2d 216. In the case of a plea entered prior to Wills, a defendant seeking post-conviction relief must rely on Boykin v. Alabama and show that his plea was not voluntary or intelligent.

There is no basis in the record before us for concluding that ...