specially concurring:
The issue raised in this case of ineffective assistance of counsel is at best peripheral. It is really a mere patina on the controversy. The real issue is whether defendant should be allowed to withdraw his guilty plea because of an alleged misapprehension concerning his release date from prison.
Allegedly, trial counsel failed to correctly inform defendant of his prison release date, or led him to believe his negotiated five-year sentence would not require further incarceration other than that which he was serving for a previous burglary conviction. Accordingly, defendant says he was not fully apprised of all the consequences of his guilty plea. He, therefore, concludes that his plea of guilty was involuntary and should be vacated.
Supreme Court Rule 402 (84 Ill. 2d R. 402) governs the acceptance of a plea, of guilty by a trial court. Certain admonitions must be given to a defendant before accepting his plea of guilty. These include: the nature of the charge; the maximum and minimum penalties prescribed by law as to the charged offenses, as well as possible sentencing enhancement in light of prior convictions; that if he pleads guilty he will not receive a trial of any type; that he has a right to plead not guilty; that his plea is voluntary; and, that factual basis exists for the plea. The Rule not only implements the Federal constitutional requirement but also exceeds it in the scope of its application. Ill. Ann. Stat., ch. 110A, par. 402 (Smith-Hurd Supp. 1981-1982).
Other than admonishing defendant of his mandatory parole period, nowhere in Rule 402 or in the comments on the Rule (Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments, at 530 (Smith-Hurd Supp. 1981-1982) is it stated, or even suggested, that informing a defendant of parole eligibility, good-time credits, prison furloughs, or prison work-release programs are part of the required admonitions before accepting a defendant’s plea of guilty.
The transcript of proceedings in this cause clearly reflects that when defendant entered his guilty plea he was thoroughly admonished by the trial judge in accordance with Rule 402. Such warnings extend over 10 pages of the record and manifest an admirable and considered undertaking in view of their breadth and completeness.
In People v. McCoy (1979), 74 Ill. 2d 398, the defendant filed a post-conviction petition claiming his plea of guilty was not voluntary since the trial judge failed to warn him, in addition to the possible penitentiary sentence imposed, that he would also be required to serve three years on mandatory parole following his release from prison. The controlling factor in determining whether the plea was voluntary was not * * literal, compliance with the provisions of Rule 402 * * *” but what the defendant knew he was to receive in terms of punishment in exchange for his agreement to plead guilty. (People v. McCoy (1979), 74 Ill. 2d 398, 402.) In other words, there must be a meeting of the minds concerning the specific recommendation as to the sentence and compliance with that recommendation. The Illinois Supreme Court concluded the sentence imposed (one to three years) was substantially less than the maximum sentence of 20 years, and therefore found no violation of a constitutional right. Just as the admonition in McCoy was sufficient, so it was in the case at bar. Accord, Norman v. Elrod (1979), 76 Ill. 2d 426 (per curiam).
People v. Wills (1975), 61 Ill. 2d 105, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430, lends little support to the proposition the majority says it does. In Wills a guilty plea was held voluntary even though trial judge failed to admonish a defendant convicted of a felony that his sentence besides incarceration included a mandatory additional period of parole. The mandatory additional parole provision was held to be a statutory requirement. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005—8—1; Ill. Ann. Stat., ch. 110A, par. 402, Historical and Practice Notes, at 532 (SmithHurd Supp. 1981-1982).) Notwithstanding, a trial judge’s failure to admonish a defendant concerning such mandatory additional parole period, such is only a factor, not a single operative fact, in determining the voluntariness of a plea of guilty. People v. Wills (1975), 61 Ill. 2d 105, 111 (supplemental opinion on rehearing).
Nor does the second Owsley appeal which is cited (People v. Owsley (1978) , 66 Ill. App. 3d 234) support the majority’s reasoning, even if Owsley had been correctly decided. And it was not. As the trial judge in that case, I am quite familiar with it.
Pursuant to plea negotiations Deanna Owsley entered a guilty plea to the offense of murder. She was sentenced to the agreed 14 to 20 years in prison. Later she moved to withdraw her guilty plea. The motion was denied, an appeal was perfected, and the trial court’s ruling was sustained on appeal. This was the first appeal. (People v. Owsley (1977), 51 Ill. App. 3d 16.) Next, Mrs. Owsley filed a post-conviction petition arguing that her trial lawyer misinformed her about when she would be eligible for parole, work release, and weekend furloughs, thus rendering her plea of guilty involuntary. The People moved to dismiss the petition, indicating waiver of the issue of her trial lawyer’s incompetence, or, alternatively, the matter had already been decided and therefore was res judicata. This court reversed the trial judge’s dismissal of the post-conviction petition. (People v. Owsley (1978), 66 Ill. App. 3d 234, 239.) Again, the cloak of ineffective assistance of counsel allegedly had raised a constitutional question.
A post-conviction proceeding is a new proceeding for the purpose of evaluating constitutional issues of an original conviction not already adjudicated. If such issues were previously raised on a direct appeal of a conviction and decided, they cannot be decided anew in a post-conviction proceeding. Res judicata is a bar. Moreover, if the petitioner fails to assert an issue in the previous direct appeal which could have been raised, he waives the issue even if of constitutional magnitude. People v. Cross (1979), 77 Ill. 2d 396, 401.
In Owsley the record clearly shows that Deanna Owsley was aware of the alleged misinformation she received from her lawyer prior to filing a motion to vacate her plea of guilty. But she did not include either the alleged misinformation or this alleged incompetence of her trial counsel in her motion to withdraw that plea. And, when the motion to withdraw the guilty plea was disallowed and the ruling appealed with new appellate counsel appointed to represent her on appeal, she neglected to raise the issue on appeal. While she later argued that trial counsel could not be expected to argue his own incompetency, this argument would not apply to her separate and new appellate counsel. Thus, the issue was waived. When the post-conviction petition was filed after the appeal had been decided, the trial court was correct in dismissing it without a hearing on the basis of waiver alone. The trial court was further correct in dismissing the post-conviction petition on the basis that defendant was correctly admonished pursuant to Supreme Court Rule 402. If a trial judge is not held accountable to enquire into defendant’s understanding of her parole eligibility, how can misunderstanding of parole eligibility by a defendant be deemed to render her guilty plea involuntary? In short, it should not. Regrettably, this court ruled differendy in the second Owsley appeal. And in the instant case, the majority opinion is contrary to that Owsley opinion. Its attempt to distinguish Owsley is a failure. Since I disagree with the Owsley opinion, I concur with the result reached in the instant case. But I do not concur with the rationale which attempts the impossible, the distinguishing of Owsley. The crux of the matter is that the alleged misinformation concerned a subject upon which neither the trial court nor defense counsel had either a statutory or a constitutional duty to admonish a defendant. If a trial court must enquire of a defendant about the date defendant understands he will be released from prison, need it also enquire as to defendant’s understanding about the qualities of prison fare? Or about the amount of living space per prisoner in Stateville as opposed to Menard? Or about any other aspect of prison life? And is the court required to enquire into everything that was told to defendant by his or her counsel? Rule 402 does not require such inquiry. What the second Owsley appeal accomplished, in effect, was to modify, supplement and amend Supreme Court Rule 402. It is anathema to suggest that the appellate court has the power to amend the rules of our supreme court.
Rule 402 mandates clearly and precisely the obligation of the trial judge. Beyond that, further inquiry is not necessary unless a Rule 402 inquiry would naturally lead into further questioning based on the defendant’s responses to the questions stated by the court.
In order for a defendant to be entitled to post-conviction relief, he must show a “* * ° substantial denial of his rights under the constitution of the United States or of the State of Illinois * * (Ill. Rev. Stat. 1979, ch. 38, par. 122—1.) Here, as in Owsley, the trial judge, in no way, deviated from the mandates of Rule 402. The plea was intelligently and voluntarily made.
Thus, for the reasons given, I concur with the result reached by the majority but not with their rationale.