People v. Hrebenar
| Decision Date | 27 January 1971 |
| Docket Number | Gen. No. 70--119 |
| Citation | 266 N.E.2d 733,131 Ill.App.2d 877 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence M. HREBENAR, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
John Donald O'Shea, East Moline, for defendant-appellant.
James N. DeWulf, State's Atty., Rock Island, for plaintiff-appellee.
Defendant Lawrence M. Hrebenar was indicted for aggravated battery under terms of Ch. 38 of Illinois Revised Statutes, Section 12--4(a). Defendant pleaded guilty to the charge and then was sentenced to a term in the penitentiary of from three to five years. The issue before the Court arises from the circumstance that at the time of the plea of guilty, defendant was advised that the maximum penalty for the offense was five years when in fact the maximum penalty for the offense was specified in the Act as ten years.
The aggravated battery involved in the cause before us occurred while the defendant was in a cell in the Rock Island County Jail. It appears that defendant wrapped an ashtray in a towel and beat a prisoner in the next cell. Defendant at the time was under indictment for two other crimes and the record indicated that there were conversations between defendant's attorney and the Assistant State's Attorney in an effort to work out a plea of guilty to one of the charges in exchange for a recommended sentence by the State and no prosecution on the remaining charge. Defendant's attorney indicated that defendant said he would not resist a higher minimum on the aggravated battery charge.
While defendant and both attorneys were in open court, the trial court asked whether the defendant had been advised of his rights. Defendant's attorney explained that he did in fact advise defendant of his rights and also had advised defendant that he could be sentenced for as much as five years on the aggravated battery charge. The court then suggested that the statute be consulted so that the penalty for aggravated battery would be known accurately. The Assistant State's Attorney then advised that the penalty for aggravated battery is one to five years in the penitentiary. The court then advised the defendant of his rights; that he is presumed to be innocent and is entitled to a trial by jury; and that the attorneys in court have advised that the penalties which might be imposed by virtue of a plea of guilty could extend from one to five years in the penitentiary. Defendant answered that he understood that clearly. He then pleaded guilty and waived a probation hearing and a hearing in aggravation and mitigation and was sentenced, as indicated, to a term of not less than three nor more than five years. Section 12--4(a) of the Criminal Code actually provides for a minimum of one year and a maximum sentence of ten years for such offense.
On appeal in this Court it is contended that since defendant was wrongfully informed that the maximum sentence for the crime to which he pleaded guilty was five years instead of ten years, the guilty plea should be vacated. Under the terms of Chapter 38 of Illinois Revised Statutes, Section 113--4(c) it is specifically provided that if defendant pleads guilty, such plea shall not be accepted until the court shall have fully explained to the defendant the consequences of such plea, 'and the maximum penalty provided by law for the offense which may be imposed by the court.' The section thereafter provides that after such explanation, if defendant understandingly persists in his plea, it shall be accepted by the court and recorded. The question before the court is whether the advice that the maximum sentence for his crime was five years rather than ten years constitutes reversible error.
While there is no exact precedent, a number of cases including some cited by defendant have considered the particular section of the Criminal Code in this State. In People v. Mackey, 33 Ill.2d 436, 437--438, 211 N.E.2d 706, the defendant who pleaded guilty to rape and armed robbery was simply advised that in each of the cases the court could sentence defendant to a term in the penitentiary 'of more than one year'. The court felt that this was inadequate. In People v. Landis, 66 Ill.App.2d 458, 214 N.E.2d 343, a defendant was similarly admonished that a plea of guilty would involve a sentence 'to a term in (the) penitentiary in excess of one year'. The court in that case stated that the admonition was insufficient. Likewise, in People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383, the court admonished the defendant that 'punishment for burglary is (an) indeterminate sentence in (the) penitentiary' and involved not less than one year. The court also indicated that...
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People v. Smith
...withdraw his guilty plea." People v. Hoyer, 100 Ill.App.3d 418, 420, 55 Ill.Dec. 814, 426 N.E.2d 1139 (1981), citing People v. Hrebenar, 131 Ill.App.2d 877, 266 N.E.2d 733. Of course, when the defendant pleads guilty based upon an agreement that he will receive a specific sentence, simple f......
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...a defendant was incorrectly advised as to the minimum penalty. (People v. Trenter, 3 Ill.App.3d 889, 279 N.E.2d 130; People v. Hrebenar, Ill.App., 266 N.E.2d 733, 735; People v. Carter, 107 Ill.App.2d 474; 246 N.E.2d 320, 323.) The Committee Comments to Rule 402 state that the inclusion of ......
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People v. Adkisson
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