In re C.K.G.
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0854
Case Date: 10/08/1997
NO. 4-96-0854
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Interest of C.K.G., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) McLean County
v. ) No. 96JD61
C.K.G., a Minor, )
Respondent-Appellant. ) Honorable
) Luther H. Dearborn,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In May 1996, the State filed a petition for adjudica-
tion of wardship, alleging that respondent, C.K.G., who was then
15 years old, was a delinquent minor because he committed the
offenses of unlawful possession of a firearm, unlawful use of
weapons, and aggravated discharge of a firearm (720 ILCS 5/24-
3.1(a)(1), 24-1(a)(10), 24-1.2(a)(2) (West 1994)). In June 1996,
respondent, pursuant to an agreement with the State, admitted and
stipulated to the charge in the delinquency petition of aggravat-
ed discharge of a firearm. The trial court accepted respondent's
admission and subsequently committed him to the Illinois Depart-
ment of Corrections, Juvenile Division (DOC). Respondent ap-
peals, arguing only that his admission to the charge of aggravat-
ed discharge of a firearm was not intelligently made because the
prosecutor's misrepresentations led him to erroneously believe
that a sufficient factual basis existed for the admission. We
affirm.
I. BACKGROUND
At the June 1996 hearing, the trial court admonished
respondent substantially in accordance with Supreme Court Rule
402 (134 Ill. 2d R. 402) before accepting respondent's offer to
admit to the charge of aggravated discharge of a firearm. That
charge alleged that in May 1996, respondent "knowingly discharged
a firearm in the direction of another person, specifically being
Anwar Mitchell and Ty Johnson." The court read the charge to
respondent to make sure he understood it, and respondent stated
he did. The court also explained the possible consequences of
his admitting to this charge. The court then asked the prose-
cutor to state a factual basis for the offer.
Because the factual basis as recited by the prosecutor
--and respondent's remarks after the prosecutor completed his
recitation--constitute the gist of this appeal, we quote at
length from both, as follows:
"[Prosecutor]: Your Honor, May 21st of
1996 at about three fifty in the evening or
afternoon, Bloomington police [went to a
certain intersection] in Bloomington in re-
sponse to a dispatch of shots fired. Upon
their arrival, police initially talked to
witnesses that described a verbal argument
between two young males and two other males.
[The officers were told] two of the
males then chased the other two males. Re-
spondent minor was later identified as one of
the two being chased. Respondent minor was
then described as going into a residence,
returning to that area, and witnesses de-
scribed the [respondent as] having *** an
automatic pistol and then indicated that the
minor pointed the pistol in the direction of
the other two[,] who were later identified as
Anwar Mitchell and Ty Johnson[,] who later
when interviewed confirmed that they were the
two that had been fired upon from across the
street by the respondent minor.
After firing the shot, witnesses indi-
cated the minor turned and ran down an alley
in the area. Bloomington officers later
found a spent shell casing in the area
[where] a witness had indicated the minor had
been standing when he fired that shot, iden-
tified as a brass twenty-two caliber shell
casing that was spent and had been fired.
Witnesses also led Bloomington officers to a
residence, an apartment where the [respon-
dent] had gone, and he was located and ar-
rested without incident at that time. They
were unable to locate or find the gun in the
area or on or about the [respondent's] person.
The [respondent] gave a statement to the
Bloomington detective *** where he described
a verbal altercation with Anwar Mitchell and
Ty Johnson. When asked why they were fight-
ing the [respondent] told the detective that
they didn't like each other and the other two
individuals were members of the Gangster
Disciples and he was a member of the rival
Mickey Cobra gang.
As far as after the argument, the [re-
spondent] stated that he ran to his house,
grabbed a gun from his bunk bed, shot once
just to scare them, and also indicated to the
detective that *** he'd thrown that gun as he
ran down the alley and told the detective
that the gun was a black twenty-two automatic
that he found in a field about a month be-
fore.
THE COURT: [Respondent], you've heard
and understood I take it what the State's
Attorney says about what happened here?
RESPONDENT: Yes, sir.
THE COURT: Any question about what he
said?
RESPONDENT: No, sir.
THE COURT: Do you agree that what he
said is accurate and what happened?
RESPONDENT: No, sir.
THE COURT: What don't you agree with?
RESPONDENT: That I shot at them. I
didn't shoot at them.
THE COURT: [Defense counsel], do you
want an opportunity to talk to your client
here? That is an element of the offense
here.
[Defense counsel]: Your Honor, the
minor tells me that he shot into the ground
in the general direction of Ty and Anwar.
[The court and counsel then conferred
and agreed to amend the petition to refer to
section 24-1.2(a)(2) of the Criminal Code of
1961 (Code) (720 ILCS 5/24-1.2(a)(2) (West
1994)), instead of section 24-1.2(a)(1) of
the Code (720 ILCS 5/24-1.2(a)(1) (West
1994)).]
THE COURT: Subparagraph (2) of the
statute says that a person commits aggravated
discharge of a firearm when he knowingly or
intentionally discharges a firearm in the
direction of another person or in the direc-
tion of a vehicle he knows to be occupied.
[Mr. Prosecutor], are you satisfied with
the acknowledgement of the minor as far as
what occurred here as an amendment or differ-
entiation from the description you gave of
the factual situation here?
[Prosecutor]: Well, Your Honor, in fact
I did research on the issue of what 'in the
direction of' [means] and provided case law
to counsel[.] *** [B]asically *** [the]
legal interpretation is that *** 'pointed in
the direction' [is] an issue for the trier of
fact[,] as to whether or not pointing a gun
at somebody and firing is 'in the direction
of.' And I think case law supports that it
is.
THE COURT: That his description of it
would constitute that[,] you mean?
[Prosecutor]: Well[,] if it's believed,
I think it would still mean that he would be
technically guilty under the offense.
THE COURT: As [respondent] put it, he
shot into the ground in the general direction
of the two.
[Prosecutor]: Well[,] that is not con-
sistent with what the witnesses would say
***.
THE COURT: Well[,] we can't leave it as
an issue of fact[,] I guess[,] on a guilty
plea. Either this is sufficient to satisfy
the elements of the statute --
[Prosecutor]: Well no, I'm not going to
agree that he shot that round into the
ground. So --
THE COURT: Okay. You're satisfied as
far as it satisfying the elements of the
statute, how [respondent] has described the
incident?
[Prosecutor]: Yes, I would say that
that is fair to say." (Emphasis added.)
The trial court then appropriately admonished respon-
dent further, consistent with Rule 402. The court ultimately
accepted respondent's admission and committed him to DOC.
II. ANALYSIS
Respondent argues that the factual basis the prosecutor
stated in support of respondent's offer to admit was deficient
because it did not support an essential element of the offense of
aggravated discharge of a firearm, namely, that respondent aimed
the firearm in the direction of another person before discharging
it. He also argues that
"[t]he prosecutor misled [respondent] and the
court into believing that the minor's actions
constituted the offense of aggravated dis-
charge of a firearm. Thus, because
[respondent's] admission was not intelligent-
ly made, [respondent] was deprived of due
process of law."
Specifically, respondent contends that the prosecutor
affirmatively misled him and the court when the court asked the
prosecutor if he agreed that respondent's description of his
conduct--namely, that he "shot into the ground in the general
direction of" the other young men but not at them--satisfied the
elements of the statute and the prosecutor replied, "Yes, I would
say that that is fair to say."
We reject respondent's argument because it fundamental-
ly misconstrues the function and purpose of Rule 402's require-
ment that a factual basis be shown in support of either a guilty
plea or an admission to a juvenile delinquency petition.
Initially, we note that we will analyze respondent's
claims in the context of Rule 402. Although in In re Beasley, 66
Ill. 2d 385, 392, 362 N.E.2d 1024, 1027 (1977), the supreme court
held that a trial court need not admonish a respondent in accor-
dance with all of the provisions of Rule 402 before accepting his
admission to a criminal charge as set forth in a juvenile delin-
quency petition, most trial courts--to be on the safe side--
follow the commendable practice of tailoring their admonitions in
accordance with Rule 402. By doing so, those courts ensure that
a respondent so admonished cannot subsequently claim that the
admonitions he received when the court accepted his offer to
admit were so deficient as to deprive him of due process of law.
See Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 279,
89 S. Ct. 1709, 1711-12 (1969).
Considering respondent's claim in the context of Rule
402 will assist our analysis because (1) Rule 402 specifically
addresses the requirement that the trial court determine a
factual basis exists for a guilty plea; and (2) a substantial
body of case law exists explaining what that requirement means.
See 134 Ill. 2d R. 402(c). We conclude that the case law appli-
cable to determining whether a factual basis has been shown to be
in compliance with Rule 402(c) when an adult pleads guilty
applies fully to a determination of whether a factual basis has
been sufficiently shown when a respondent offers to admit to a
criminal charge set forth in a juvenile delinquency petition.
On appeal, respondent addresses the requirement that a
factual basis must exist for his admission as if the prosecutor
somehow had to prove his case through his representations to the
trial court. For instance, respondent argues that (1) "nothing
in the record adequately supported the prosecutor's contention
that [respondent] aimed and shot in the direction of Johnson and
Mitchell"; and (2) "the evidence was insufficient that [respon-
dent] arrived and shot in the direction of Johnson and Mitchell."
He also complains of deficiencies in the prosecutor's stated
factual basis, such as the following: (1) the bullet was never
found; (2) the witness whom the prosecutor referred to as seeing
the shooting "was never subject to cross-examination"; (3) the
investigating officer merely recounted the witnesses' observa-
tions, "which could not be corroborated by making inferences from
where the bullet was located"; (4) "importantly, there was no
evidence as to where Johnson and Mitchell were standing when
[respondent] shot"; and (5) "[i]f the [respondent's] shot was
aimed just short of Johnson and Mitchell and aimed into the
ground, a jury could rationally have acquitted him of the offense
of aggravated discharge of a firearm."
The problem with respondent's recitation of deficien-
cies in the State's case is twofold: (1) given that this pro-
ceeding was not a trial on the merits, the State's Attorney did
not need to present all--or even most--of the evidence he pos-
sessed in support of respondent's guilt of the charge to which he
was offering to admit; and (2) if respondent really believed the
State's case was so deficient, he could have requested a trial on
the merits. No one forced him to admit to the charge of aggra-
vated discharge of a firearm as alleged in the delinquency
petition. He did so because he liked the deal--at least, at the
time--that he made with the State to dismiss other charges and to
refrain from taking other actions--like seeking to prosecute
respondent as an adult in criminal court.
In People v. Barker, 83 Ill. 2d 319, 327-28, 415 N.E.2d
404, 408 (1980), the supreme court addressed the quantum of proof
necessary to establish a basis for a guilty plea and stated the
following:
"All that is required to appear on the record
is a basis from which the judge could reason-
ably 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."
See also People v. Royark, 215 Ill. App. 3d 255, 270, 574 N.E.2d
1211, 1220 (1991) (in armed robbery case, all court need hear is
basis from which it could reasonably conclude that defendant
actually committed armed robbery); People v. Smith, 113 Ill. App.
3d 917, 924-25, 446 N.E.2d 876, 881 (1983) (when determining
whether a factual basis exists, court need not "ferret out possi-
ble defenses for the defendant" and may accept a guilty plea even
when the defendant maintains complete innocence); People v.
Bleitner, 199 Ill. App. 3d 146, 151, 556 N.E.2d 819, 821 (1990)
(trial court may accept a defendant's guilty plea despite his
claim of innocence if the record otherwise reflects a factual ba-
sis); People v. Chernetti, 257 Ill. App. 3d 742, 745, 629 N.E.2d
229, 232 (1994) (factual basis may consist of a recital to the
court of evidence that supports the allegations of the charge);
People v. James, 233 Ill. App. 3d 963, 971, 599 N.E.2d 960, 966
(1992) ("requirement that the court determine the factual basis
for the plea is satisfied if there is a basis anywhere in the
record from which the court could reasonably reach the conclusion
that the defendant actually committed the acts with the intent
required to constitute the offense to which the defendant is
pleading guilty" (emphasis added)).
Further, when, as here, a defendant on appeal challeng-
es the sufficiency of the factual basis the prosecutor presented
to the trial court to support the defendant's guilty plea, the
standard of review is whether the court abused its discretion by
determining that a factual basis existed for the plea. People v.
Calva, 256 Ill. App. 3d 865, 871, 628 N.E.2d 856, 861 (1993);
Barker, 83 Ill. 2d at 333, 415 N.E.2d at 410. Judged by that
standard, this record contains no basis whatsoever for concluding
that the trial court abused its discretion when it determined
that a factual basis existed for respondent's admission. The
prosecutor had fully complied with Rule 402(c)'s requirement to
state a factual basis when he described the scene of the shooting
and spoke of a witness who said respondent had an automatic
pistol and pointed it in the direction of the other two people,
later identified as Mitchell and Johnson, who later confirmed
that respondent had fired toward them from across the street.
We acknowledge that the requirements of Rule 402
constitute a floor, not a ceiling, regarding the admonitions a
trial court must give to a defendant pleading guilty and the
personal inquiries of the defendant the court must make. We also
recognize that a trial court may ask additional questions before
choosing--in the exercise of its discretion--whether to accept
the defendant's guilty plea. Nevertheless, we suggest that trial
courts that go beyond the requirements of Rule 402 do so by the
use of an informed discretion--informed both by (1) an awareness
that they need not do so, (2) a thoughtful consideration of what
they hope to accomplish, and (3) an understanding of the diffi-
culties that may arise as a result of their doing so. An example
of the latter occurred in the present case, when the trial court
asked respondent if he agreed that the prosecutor's recitation of
the factual basis was "accurate in what happened." When respon-
dent answered "no," the problems began.
Supreme Court Rule 402(c), in its entirety, reads as
follows: "(c) Determining Factual Basis for Plea. The court
shall not enter final judgment on a plea of guilty without first
determining that there is a factual basis for the plea." 134
Ill. 2d R. 402(c). Paragraph (c) is but one part of a comprehen-
sive scheme--Rule 402--promulgated over 25 years ago by the
Supreme Court of Illinois to govern guilty pleas. The first part
of that rule, in paragraph (a), requires the trial court (1) to
explain four separate concepts to a defendant who is offering to
plead guilty, (2) to do so by "addressing the defendant personal-
ly in open court," and (3) to then determine that the defendant
understood what the court had just explained. (Emphasis added.)
134 Ill. 2d R. 402(a). Paragraph (b) of Rule 402 directs that
the court may not accept the defendant's guilty plea without
first determining that the plea is voluntary, and the court must
do so--again--"by questioning the defendant personally in open
court." (Emphasis added.) 134 Ill. 2d R. 402(b). However,
paragraph (c) of Rule 402, which directs the court to determine
that a factual basis exists for the guilty plea, does not require
the trial court to address the defendant personally in open court
about any of the prosecutor's representations that purportedly
constitute a factual basis.
This omission clearly was not an oversight by the
Supreme Court of Illinois; instead, it reflected that court's
considered judgment regarding the most appropriate, fair, and
expeditious way of handling guilty pleas--which, we note, contin-
ue to be the primary vehicle by which the overwhelming majority
of all criminal cases in this state are resolved. Thus, when
trial courts engage in practices--or ask questions--during guilty
plea proceedings that the supreme court chose not to include when
it promulgated Rule 402, such courts ought to ask themselves,
why?
For instance, in the case now before us, the trial
court did not need to ask respondent personally if he agreed with
the prosecutor's representations. To ensure that respondent--
through his counsel--was given an opportunity to address the
factual basis issue, all the court needed to do was address
defense counsel essentially as follows: "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). Respondent's disagreement with the prosecutor's repre-
sentations constituted mere surplusage because it was totally
beside the point--that is, respondent's stated disagreement did
not challenge the State's ability to present witnesses who might
testify as the prosecutor represented. Respondent's disagreement
indicated merely that he might testify differently regarding the
events than the State's potential witnesses.
Respondent's disagreement simply does not matter for
purposes of Rule 402(c). If it did, the long line of cases could
not exist which holds that a trial court may accept a defendant's
offer to plead guilty even when the defendant maintains his
innocence to the charge to which he is pleading guilty.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT and COOK, JJ., concur.
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