In re C.K.G.

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 adjudica­tion 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 aggravat­ed discharge of a firearm.  The trial court accept­ed respondent's admis­sion and subse­quently committed him to the Illinois Depart­ment of Correc­tions, Juvenile Division (DOC).  Respon­dent ap­peals, arguing only that his admission to the charge of aggravat­ed 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 prose­cutor 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 re­sponse 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.  Re­spondent 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 de­scribed 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 indi­cated 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, iden­tified 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 [respon­dent] had gone, and he was located and ar­rested 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 fight­ing 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 [re­spondent] 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 be­fore.

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 direc­tion 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 differ­entiation 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 con­sis­tent 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 respon­dent 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 dis­charge of a firearm.  Thus, because [respondent's] admis­sion was not in­tel­li­gent­ly 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 fundamental­ly misconstrues the function and purpose of Rule 402's require­ment 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 accor­dance with all of the provi­sions of Rule 402 before accept­ing his admis­sion to a criminal charge as set forth in a juvenile delin­quency 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 appli­ca­ble 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 [re­spon­dent] 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' observa­tions, "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 defi­cien­cies in the State's case is twofold:  (1) given that this pro­ceeding was not a trial on the merits, the State's Attor­ney did not need to present all--or even most--of the evidence he pos­sessed 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 aggra­vated 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 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."  

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 possi­ble 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 ba­sis); 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 chal­leng­es 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 diffi­culties 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 respon­dent 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 comprehen­sive 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 personal­ly 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, contin­ue 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 repre­sen­ta­tions 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.