People v. Van Gilder
| Decision Date | 25 February 1975 |
| Docket Number | No. 74--241,74--241 |
| Citation | 26 Ill.App.3d 152,324 N.E.2d 715 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gary Wayne VAN GILDER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Paul Bradley, First Deputy, First Judicial District, Chicago, James R. Streicker, Asst. Appellate Defender, Chicago, for defendant-appellant.
Nicholas G. Byron, State's Atty., Madison County, Edwardsville, Bruce D. Irish, Principal Atty., Myra J. Brown, Staff Atty., Statewide Appellate Assistance Service, Illinois State's Attys. Ass'n, Mt. Vernon, of counsel, for plaintiff-appellee.
Defendant appeals his conviction of burglary (Ill.Rev.Stat., ch. 38, sec. 19--1), entered upon his negotiated plea of guilty. He was sentenced to a term of imprisonment of not less than two nor more than six years.
Two issues are raised on the appeal, whether the trial court committed reversible error in failing to determine defendant's plea of guilty was voluntary and not the product of force, threats or coercion, and whether the two to six year sentence is excessive.
The record made at the time of entry of defendant's plea of guilty shows that the trial court fully complied with all requirements for entry of pleas of guilty provided by Supreme Court Rule 402 (Ill.Rev.Stat., ch. 110A, sec. 402) except for a specific determination that the plea was voluntary and not produced by any force, threats or promises apart from the plea agreement, as required by Supreme Court Rule 402(b). Defendant properly places reliance on our decisions in People v. Schoate, 21 Ill.App.3d 3, 312 N.E.2d 763; People v. Barker, 15 Ill.App.3d 104, 303 N.E.2d 512; People v. Hendrickson, 11 Ill.App.3d 219, 296 N.E.2d 751; and People v. Kehoe, 10 Ill.App.3d 955, 295 N.E.2d 292. The thrust of our decisions in those cases is that there must be strict compliance with the provisions of Supreme Court Rule 402(b) and any failure therein will result in a reversal and remandment for the taking of another plea.
But the People have called our attention to the recent (November 1974) decision of our Supreme Court in People v. Ellis, 59 Ill.2d 255, 320 N.E.2d 15. There, the transcript of proceedings at the plea of guilty hearing showed that the circuit court did not inquire of the defendant, in specific terms, whether the plea was induced by any force, threats or promises other than those contained in the plea agreement. Defendant argued that the failure to do so was reversible error. The Supreme Court rejected the defendant's position, stating:
Our review of the entire record here leads to the conclusion that the plea of guilty was in fact voluntary, in accordance with the agreed terms, and not the product of force or threats. While not identical on its facts touching the plea, it is apparent that it is within the compass of the Ellis rule. Defendant was represented by counsel throughout the proceeding, he consulted with counsel by telephone prior to the hearing two or three times, and defendant and his counsel withdrew for further consultation during a recess for the purpose at the plea proceeding. The court's admonitions were thorough in every respect (other than that as to voluntariness) and the defendant stated that he knew and understood the charges. In response to a question by the court as to what sentence he would get defendant stated two to three years, that no one told him that, it was just what he thought.
Not only does the record give every appearance that the plea of guilty was voluntary, defendant neither in the trial court nor here has alleged or suggested that force or threats were used or that the terms of the plea agreement were not followed. His only contention is that the litany of Rule 402(b) was not followed, and it was not. But in view of the holding in the Ellis case and our review of the entire record, we conclude that the error was harmless.
Our departure here from our previous practice of reversing any case where the record disclosed there was a failure to strictly comply with the requirements of Rule 402 is not grounded on the Ellis case alone. In another recent (September 1974) Supreme Court case, People v. Dudley, 58 Ill.2d 57, 316 N.E.2d 773, the notion that a strict, literal compliance with every facet of Rule 402 is mandatory was rejected. There, the defendant argued that his conviction on a plea of guilty should be reversed because, contrary to the provisions of Rule 402(b), the terms of the plea agreement were not stated in open court. The Supreme Court agreed with defendant that there was no compliance whatever with the Rule's requirement that the plea agreement shall be stated in open court. They disagreed, however, that reversal was required, stating:
'It does not follow, however, that the failure to comply with these provisions of Rule 402(b) must result in a reversal of the judgment of conviction. There is no claim that the plea of the defendant, who was represented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant. When questioned by the judge the defendant expressed himself as being satisfied with the plea agreement which had been negotiated for him by his attorney, and even now there is no expression of dissatisfaction with the plea agreement's terms. And finally, there is no contention by the defendant that the...
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People v. Robinson
...real justice has been denied * * *." To the same effect are People v. Ellis (1974), 59 Ill.2d 255, 320 N.E.2d 15, and People v. Van Gilder (1975), Ill.App., 324 N.E.2d 715. Similarly, even were we to hold that error had been committed in the instant case in that there was no substantial com......
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... ... The sentences as modified are within the statutory limits and we find no abuse of discretion by the trial court in imposing severe sentences for such a brutal and senseless slaying. See People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673 (1965); People v. Van Gilder, 26 Ill.App.3d 152, 324 N.E.2d 715 (5th Dist. 1975). We note that the trial court would have been fully justified in invoking [38 Ill.App.3d 447] Ill.Rev.Stat.1973, ch. 38, par. 1005--8--2, to impose double the maximum penalty available because of the ample evidence of the use of firearms ... ...
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People v. Deboise
...Under these circumstances we cannot say that the trial court abused its discretion in the sentence it imposed. See, People v. Van Gilder, 26 Ill.App.3d 152, 324 N.E.2d 715. For all of the foregoing reasons the judgment of the circuit court of St. Clair County and the sentence imposed thereu......
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People v. Williams
... ... He was on probation at the ... time of this offense and had failed to report to the probation officer for some time. We have recently held that a two to six year sentence was proper in a less aggravated case than the one before us. People v. Van Gilder, Ill.App., 324 N.E.2d 715 (1975). The trial court had a better opportunity to view the defendant, his record, and the evidence presented on his behalf and we will not disturb its findings ... The judgment of the Circuit Court of Jefferson County is ... ...