People v. Williams

701 N.E.2d 1186, 299 Ill. App. 3d 791, 233 Ill. Dec. 912, 1998 Ill. App. LEXIS 723
Appellate Court of Illinois·Decided October 20, 1998·No. 4-97-0901·Published·Cited by 15 cases

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1997, defendant, Robert Williams, pleaded guilty to public indecency (720 ILCS 5/11 — 9(a)(2) (West 1996)), pursuant to a plea agreement, and the trial court later sentenced him to 364 days in jail. The court also directed defendant to pay for the services of his court-appointed counsel. Defendant appeals, arguing that the trial court erred by (1) accepting his guilty plea without a showing of the factual basis therefor, except for defense counsel’s stipulation; and (2) requiring defendant to pay for the services of his court-appointed counsel without first conducting the statutorily required hearing. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

The public indecency charge to which defendant pleaded guilty accused him of knowingly exposing his sex organ in a lewd manner with the intent to arouse his sexual desires. The charge further alleged that he did so in a public place, namely, the Urbana library. As part of the plea agreement, a second count of public indecency was dismissed. That count charged defendant with the same conduct in the same place, only five days earlier. The parties also agreed that no petition to revoke probation would-be filed in an unrelated misdemeanor case.

Before accepting defendant’s guilty plea, the trial court appropriately admonished him pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402). After doing so, the court turned to defense counsel and asked: “Is there a factual basis, Mr. [defense counsel]?” Counsel responded, “Your Honor, I’d stipulate there is a factual basis— (inaudible).” No one stated anything further about a factual basis for the guilty plea.

The trial court accepted defendant’s guilty plea, directed the court services department to conduct an investigation and make a report to the court, and set the matter for sentencing hearing the following month. At the August 1997 sentencing hearing, defendant failed to appear. The court conducted the hearing anyway, noted defendant’s previous public indecency conviction, and sentenced him to 364 days in jail.

Approximately one hour after the sentencing hearing concluded, the defendant appeared in court, and the court informed him that he had been sentenced to 364 days in jail. The court appropriately advised him that he had the right to move to withdraw his guilty plea, in accordance with Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)). The court advised defendant that if he filed a motion to withdraw his guilty plea, “that motion has to be in writing and has to state all of the errors that occurred in the taking of your plea. Any error left out of that motion, you give up forever and cannot rely on it later.” 145 Ill. 2d R. 605(b)(6).

The trial court also ordered defendant to pay $150 a month as a contribution toward the services of court-appointed counsel, reaffirming its temporary order to the same effect from May 1997, when counsel was first appointed for defendant.

Shortly thereafter, defendant filed a motion to withdraw his guilty plea, in which he asserted that he did not fully comprehend (1) the consequences of his plea, or (2) the court’s guilty plea admonitions. In September 1997, the trial court conducted a hearing on that motion and denied it. This appeal followed.

II. ANALYSIS

A. The Stipulated Factual Basis

Supreme Court Rule 402(c), entitled “Determining Factual Basis for Plea,” states the following: “The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” (177 Ill. 2d R. 402). In People v. Barker, 83 Ill. 2d 319, 327-28, 415 N.E.2d 404, 408 (1980), the supreme court addressed the requirement that a factual basis be shown when a defendant offers to plead guilty and wrote the following:

“All that is required to appear on the record is a basis from which the judge could reasonably reach the conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty.”

The supreme court promulgated Rule 402 almost 30 years ago, and soon thereafter, the appellate court began explaining how the requirement for showing a factual basis could be complied with. In one such case, People v. Trinka, 10 Ill. App. 3d 183, 186, 293 N.E.2d 179, 182 (1973), the court wrote that the necessary “factual basis can be shown either by admission of defendant or by a summary of evidence in presence of defendant showing that defendant committed the crime, or by having facts stated by witnesses, or by an examination of a pre-sentence report by the court.”

Significantly missing — in our judgment — from Rule 402 case law providing how a factual basis may be shown is any statement suggesting that a stipulation between the attorneys may suffice. To make explicit what has been only implicit until this point, we hold that a factual basis may not be based, upon a stipulation between the attorneys. Accordingly, the trial court in this case committed error by accepting a stipulation as the only showing for the factual basis for defendant’s guilty plea.

Having so held, we reaffirm what this court stated in In re C.K.G., 292 Ill. App. 3d 370, 378, 685 N.E.2d 1032, 1037 (1997): all the trial court need do to comply with the factual basis requirement of Rule 402(c) is to ask the prosecutor to briefly describe the evidence the State would be prepared to present if the case went to trial. After hearing that recitation, the court should then turn to defense counsel— not the defendant personally — and ask the following: “Ms. Defense Counsel, do you agree that the prosecutor has witnesses who if called would testify substantially as indicated?” Assuming that defense counsel answers “yes,” the court has fully complied with Rule 402(c).

This suggested procedure should not prove burdensome. In most cases, it would only require a few seconds — not even minutes — for the prosecutor to set forth the factual basis and for defense counsel to indicate her agreement. For instance, in the case now before us, all the prosecutor needed to do was to state something along the following lines: “On the date in question, a person at the Urbana Library saw the defendant in the bookstacks exposing himself.”

B. Forfeiture under Rule 604(d)

Although we have concluded that the trial court erred by permitting a stipulation to serve as the factual basis for defendant’s guilty plea, that does not end our inquiry. The State claims that defendant forfeited this issue on appeal by failing to present it to the trial court, and we agree.

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People v. Williams, 701 N.E.2d 1186, 299 Ill. App. 3d 791, 233 Ill. Dec. 912, 1998 Ill. App. LEXIS 723 (Ill. Ct. App. 1998).

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