
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Ray Charles, Defendant-Appellant.
    (No. 71-11;
    Second District
    — December 8, 1971.
    
      E. Roger Horsky, of Defender Project, of Elgin, (Frederick F. Cohn, of Defender Project, of Chicago, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant was charged with a co-defendant, Calvin T. Madison, in a three count indictment with the offenses of murder, felony-murder and armed robbery arising out of an incident that occurred on January 22, 1970. A severance was granted on May 21, 1970, and Madison was tried separately in a five day jury trial that culminated in a verdict of guilty on all three counts. The defendant subsequently entered a plea of guilty to the charge of felony-murder and was sentenced to a term of twenty-five to fifty years in the penitentiary.

On appeal the defendant contends (1) that his plea of guilty was invalid since he had not been advised as to his constitutional right to a bench trial; (2) that he was denied the opportunity to present evidence in mitigation; and (3) that the minimum sentence should be reduced.

On September 2, 1970, after Madison had been found guilty, the defendant, through his court-appointed attorney, in open court requested that plea negotiations be conducted with the state. On September 3, after a plea discussion conference with the court, the defendant withdrew his plea of not guilty and entered a plea of guilty and was sentenced in accordance with the plea agreement. Before accepting his plea, the trial court questioned the defendant at length as to his understanding and agreement to the provisions of the plea negotiations. The court then asked the defendant as follows:

“The court. Now, do you understand that if you enter a plea of guilty you are giving up certain rights that you have, and I want to be certain that you fully understand what those rights are.
First, you waive your right to trial by jury; you understand that?
The defendant: Yes.”

The court proceeded to explain the function of a jury and the defendant’s rights to remain silent, to cross-examine witnesses and to offer evidence on his own behalf. The defendant indicated that he understood those rights and understood that the state would have the burden to prove his guilt beyond a reasonable doubt in the event of a trial. However, the court did not in so many words advise the defendant that he had a right to be tried by the court if he waived a jury, and the defendant now contends that the failure invalidated his plea of guilty.

A similar argument was advanced in the recent case of People v. Wallace, 48 Ill.2d 252, 269 N.E.2d 482, where the accused was admonished as to his right to a trial by jury before the trial court accepted his plea of guilty. The admonition did not include any reference to a trial by the court and Wallace contended that his plea was thus invalid. The Supreme Court rejected that contention and said “We judge that an appropriate admonition and understanding of a right to trial by jury comprehends advice and understanding of a right to trial without jury.”

The defendant here, however, maintains that the ruling in the Wallace case is superseded by Supreme Court Rule 402 (Ill. Rev. Stat. 1969, ch. 110A, par. 402) effective September 1, 1970. Paragraph (a) (4) of the new rule provides that a plea of guilty shall not be accepted unless the court informs the defendant, and determines that he understands, “that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” The committee comments indicate one of the reasons for the new rule was to conform the practice in Illinois to the guidelines set by the Supreme Court of the United States in regard to pleas of guilty in the case of Boykin v. Alabama (395 U.S. 238.) In the Boykin case it was held that it is a violation of due process of law to accept a guilty plea without an affirmative showing, placed in the record, that the defendant voluntarily and understanding!/ entered his plea.

Although the guilty plea in the Wallace case was entered before Boykin was decided, our Supreme Court considered that case in its decision and stated “. . . we do not consider that Boykin is authority for the defendant’s claim.” We conclude, therefore, that Rule 402 does not require that a defendant be specifically admonished as to his right to a trial by the court if he has been properly admonished as to his right to trial by jury and his other rights as enumerated in the rule.

The defendant next contends that he was denied his right to a hearing in mitigation and aggravation as provided by section 1 — 7(g) of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g).) The record shows that the trial judge, in open court with the defendant and his attorney present, asked if they wished to introduce evidence in mitigation before sentence was imposed. The following colloquy then took place.

“Mr. Smith (defense counsel): No, your Honor, I think the conference and the results of the conference negotiations arrived at a settlement that I discussed with my client, that is fair, and I think there are things I could say on his behalf but they would add nothing at this point.

There is no reason why we would insist upon this at this time and would waive our right to the hearing.

The Court: May the record show you waive your right to the hearing

in mitigation?

Mr. Smith: Yes.

Mr. Reinhard (the state’s attorney): We have no request to put in any evidence in aggravation for the same reason; therefore, I would not ask for a hearing in aggravation and would waive the same.

The Court: Well, we have as far as I am concerned (arrived) at that point where, if the defendant is ready, I would impose sentence upon the defendant.

Mr. Smith: Yes, your Honor.

The Court: Are you ready?

The Defendant: Yes.

The Court: Do you have anything further you wish to say?

The Defendant: No.

The Court: Thomas Charles, it is the sentence of the Court s # e.”

A hearing in mitigation and aggravation can be waived provided that the waiver is understanding!/ made. (People v. LaRocco, 123 Ill.App.2d 123, 128, 260 N.E.2d 52.) The defendant contends that there is nothing in the record to show that the apparent waiver of his right to such a hearing was made “understandingly” since it fails to include any admonition by the court in regard to the nature and purpose of the right or the consequence of his waiver. He would have us hold that it is necessary to show on the record that the defendant has been fully advised as to his right to a hearing in mitigation and the consequence of a waiver before it is accepted.

Supreme Court Rule 402 does, of course, just that in respect to the constitutional rights to a trial by jury or to confront one’s accusers. The right to a hearing in mitigation and aggravation as provided in section 1 — 7(g) does not, however, confer a constitutional right. (People v. Fuca, 43 Ill.2d 182, 185, 251 N.E.2d 239, 240.) Our Supreme Court has repeatedly held that the burden is on the defendant to present mitigating circumstances on the record and that the failure to do so will in itself constitute a waiver. People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385, 393; People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239, 241; People v. Nelson, 41 Ill.2d 364, 367, 243 N.E.2d 225, 227.

The record shows that the defendant was extensively advised by the court before his plea was accepted and that the guidelines set forth in the rules were scrupulously followed. His attorney expressly waived his right to a hearing in mitigation, in his presence, and he himself declined to offer anything further. There is nothing to show that the defendant did not understand the nature of such a hearing or that he was not completely aware of the result of the negotiation conducted at his request and the sentence to be imposed.

It is obvious, in any event, that a hearing in mitigation and aggravation would serve no useful purpose to the trial court in a case where the plea was a result of a negotiated agreement as to the penalty to be imposed. The defendant maintains, however, that such a hearing should be held to enable a court of review to properly evaluate a request for reduction of punishment brought pursuant to Supreme Court Rule 615(b) (4). (Ill. Rev. Stat. 1969, ch. 110A, par. 615(b) (4).) Again, the burden of presenting such circumstances as will justify a reduction of sentence on review falls on the defendant. People v. Nelson, 41 Ill.2d 364, 243 N.E. 2d 225, 227; People v. Ledferd, 94 Ill.App.2d 74; 236 N.E.2d 1923.

We have considered the recent case of the People v. Bradford, 1 Ill. App.3rd 38; 272 N.E.2d 259 cited by the defendant to the contrary. In that case, the Appellate Court, Fourth District, vacated a sentence of 30 to 60 years imposed after a plea of guilty had been accepted on a murder charge. Although the defendant had expressly waived his right to a hearing in mitigation, the cause was remanded to the trial court for an appropriate hearing so that they could consider a request to reduce the sentence. Aside from the fact that the Bradford case appears to conflict with the Supreme Court’s position in the Nelson and Ledferd cases, it can be distinguished from our case in that the plea was not made in exchange for an agreed sentence.

The authority to reduce sentences is one that must be exercised with “considerable caution and circumspection.” (People v. Taylor, 33 Ill.2d 417, 424, 211 N.E.2d 673; People v. Nordstrom, 73 Ill.App.2d 168, 183.) Generally, a sentence will not be disturbed on review as excessive if it is within the limits prescribed by the legislature unless it departs from the fundamental law and its spirit and purpose, or is manifestly in excess of constitutional limitations. People v. Smith, 14 Ill.2d 95, 97; People v. Buell, 120 Ill.App.2d 367, 372, 256 N.E.2d 845, 847.

The Criminal Code provides that a person convicted of murder (including felony-murder) “shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years.” Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(b).

The stipulated facts presented to the trial court (including a written statement of the defendant) showed that Calvin Madison and the defendant robbed a service station in Rockford. During the course of the robbery a 19 year old attendant at the station was shot four times in the back of the head and killed although there was no indication that he had resisted the robbery. The proceeds of the robbery were shared by Madison and Charles and bullets from the murder weapon secreted in an apartment below that occupied by the defendant. Although the defendant’s statement was to the effect that Madison actually killed the attendant, there is no question as to his active participation in the crime.

In view of these facts, together with the circumstance that the sentence was a result of a plea agreement negotiated at the request of and with the full knowledge of the defendant, we do not feel that the sentence was excessive. Although we do not mean to say that our authority to reduce sentences in appropriate cases as provided by Rule 615(b) (4) is abrogated in the case of an agreed sentence, certainly such a circumstance must be considered in any determination of a request for a reduction.

For the reasons stated, we conclude that the judgment of the trial court was in all respects proper and should be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.  