also dissenting:
I concur in Justice Moran’s dissent. I would like further to note, based on my perusal of the record, the specific respects in which I believe the trial judge failed to admonish the defendant as the law requires. In addition, I dissent from the majority’s holding that a death sentence may be validly imposed by an associate judge, and I also believe that the trial judge in imposing the sentence in this case improperly considered certain evidence relating to the defendant’s earlier brushes with the law.
I. THE ADMONITIONS
When the case was called for trial, the charges against the defendant were contained in an 18-count information which included six murder charges, two charges of attempted murder, four armed-robbery charges, four aggravated-battery charges, and two armed-violence charges. On the day the trial was scheduled to commence the State voluntarily moved to nol-pros five counts of the information, as set forth in the majority opinion (101 Ill. 2d at 481). The defendant then waived a jury trial. During the colloquy concerning the jury waiver, the trial judge asked the defendant if he understood the severity of the charges against him but did not explain the nature of any of the charges.
The jury waiver was followed by a short recess requested by defendant’s attorneys. When the court reconvened, defense counsel informed the trial judge that the defendant wished to change his plea to guilty. The judge then admonished the defendant that the State might seek the death penalty, that the State would have to prove that the defendant was at least 18 years of age and “that there were certain aggravating factors that qualified” the defendant “for the imposition of the death penalty.” The judge followed this up by telling the defendant that the decisión he would be called upon to make was probably the most important decision of his life and informed the defendant that he had the choice of having the death sentence hearing conducted before a jury or waiving the jury and having the hearing conducted by the court. Immediately after a luncheon recess the court asked the defendant whether he persisted in the guilty plea or wished to change it, and upon being advised that the defendant still wished to plead guilty the court asked whether he wished him to hear the case, to which the defendant responded in the affirmative. Upon the conclusion of the prosecutor’s recital of the factual basis for the guilty plea and the entry of the court’s findings of guilt on 11 counts, the State requested a death penalty hearing, at which point the trial judge again informed the defendant he could elect to have a jury decide on the death sentence. All of these proceedings were completed in one day.
Nowhere in the transcript is there any statement by the trial judge which informed the defendant of the nature of the charges which remained after the elimination of five of the 18 counts. The judge’s failure in this respect was especially serious in view of the confusion which might have been caused by the prosecutor’s reference to the charges which were being eliminated.
The only time the indictment was read to the defendant was at the arraignment, more than five months before entry of the guilty plea. At that time he received no judicial admonition to pay heed to the charging instrument and no inquiry was made regarding his understanding of it, as he was then not voluntarily or knowingly attempting to waive any constitutional rights.
The defendant in this case, through his attorney, entered a “general plea of guilty,” in the words of the attorney, to “whatever [was] still left” in the information. But the trial judge neither told the defendant what counts were “still left” nor informed him of the nature of the charges to which his general plea was entered. Not only did the judge fail to explain the nature of the remaining charges, he did not even refer to them by name. The record in this case is lacking in any affirmative showing that at the time the defendant entered his plea he was either informed of or understood the nature of the murder, attempted-murder, armed-robbery and aggravated-battery charges to which his plea was directed. There might even have been some confusion on the part of the prosecutor, evidenced by the fact that upon completing his recital of the factual basis for the plea he asked that two of the aggravated-battery counts merge into an attempted-murder charge.
As both the majority (101 Ill. 2d at 484) and Justice Moran’s dissent (101 Ill. 2d at 497) observe, Rule 402 was adopted in response to the requirement of Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, that a guilty plea not be accepted in the absence of an affirmative showing in the record that the plea was intelligent and voluntary. (See 73 Ill. 2d R. 402, Committee Comments.) It is a rule that was not made to be disregarded (People v. Walker (1981), 84 Ill. 2d 512, 525-26), as the foregoing suggests occurred. Moreover, the record in this case affirmatively reveals that any discussion between the defendant and his counsel concerning the possibility of a guilty plea could not have taken place over an extended period of time. It reflects that these discussions commenced only after the State nol-prossed five of the charges. Following that, there was a short recess during which the defendant spoke to counsel and to his mother and sister over the telephone, and then he returned to court to plead guilty.
The trial judge did fully admonish the defendant regarding the possibility that he might receive a death sentence, as the majority opinion points out (101 Ill. 2d at 486). The trial judge also admonished the defendant that he had the right to have the charges against him heard by a jury and that by pleading guilty he was waiving that right, and he informed the defendant in addition that he had the right to have his sentence considered by a jury. At no place, however, do I see in the record any statement by the trial judge concerning the minimum and maximum terms of imprisonment the law prescribed, so as to give the defendant some idea of what kinds of punishment short of death he might receive and what he might be in a position to bargain with the State’s Attorney for should he withhold his plea of guilty and attempt to renegotiate his plea. In that respect also the requirements of Rule 402(aX2) were not satisfied.
I am unable to determine from the record whether" the plea was entered voluntarily or intelligently. Except for the statements that the death penalty might be imposed, that the defendant had the right to be tried by a jury both with respect to guilt or innocence and with respect to the death sentence hearing, and that at a death sentence hearing the State would be required to prove the age of the defendant and aggravating factors that qualified the defendant for the imposition of the death penalty, there were virtually no admonishments. In addition, there is nothing in the record to indicate that any determination was made that no force, threats or promises had been made to obtain the guilty plea. A further aspect of the hearing on the plea of guilt which I feel is significant to note is that the trial judge did not even admonish the defendant as required by Rule 402(aX4) that on such a plea he gave up his right to trial and the right to face the persons that made accusations against him, and to hear them testify and to cross-examine them through his lawyer, until at the very end of the hearing the defendant’s attorney himself reminded the trial judge that it would be in order to offer those admonitions. When a guilty plea is entered, the question of its voluntariness is a part of the State’s case, not an affirmative defense as the majority appears to imply. (See Boykin v. Alabama (1969), 395 U.S. 238, 243-44, 23 L. Ed. 2d 274, 279, 89 S. Ct. 1709, 1712.) The record that the trial judge allowed to be made is not adequate to enable this court to accomplish the review the law directs when such a plea is entered.
The fact that the defendant was present when the prosecutor read into the record the factual basis for the plea does not persuade me that the defendant understood what he was pleading guilty to at the time he entered his plea. The factual basis was not recited until after the guilty plea had been accepted, and it therefore could not have assisted the defendant in understanding the nature of the charges at the time he entered his plea. In addition, at no time did the defendant concede the accuracy of the factual basis. In fact, no inquiry was ever made of the defendant as to the accuracy of the factual matter the prosecutor read into the record. The defendant’s silence at this stage of the proceedings can hardly be equated with an understanding of the nature of the charges.
II. ASSIGNMENT OF ASSOCIATE JUDGE
I do not believe that a death sentence imposed by an associate judge is valid under Supreme Court Rule 295. (87 Ill. 2d R. 295.) Prior to May 1975 the rule did not authorize associate judges to try criminal cases in which the defendant was charged with an offense punishable by imprisonment for more than one year. Because of the gravity of the matters that would be involved, this court repeatedly refused to alter this rule. Eventually, when the problem of the increased crowding of criminal dockets became so severe that this court believed some relief was imperative, Rule 295 was amended in 1975 to allow the chief judge to make temporary assignments of associate judges to try this additional class of cases. Ill. Ann. Stat., ch. 110A, par. 295, Supplement to Historical and Practice Notes at 249-50 (Smith-Hurd 1982 Supp.).
As we construe the present Rule 295, we must keep in mind the scope of the old rule, the purpose of the change, and the language of the rule as it now stands. Pressure on the trial docket was caused by the combination of the increasing number of new cases and the old rule’s prohibition against associate judges trying felonies punishable by imprisonment of more than one year, under any circumstances. In order to balance the important goals of speedy justice for defendants awaiting trial and adequate procedural safeguards for defendants charged with serious crimes and subject to severe punishment, this court changed the rule to allow associate judges temporarily to try some of the more serious cases. The class of felonies punishable by imprisonment of more than one year is a large one, and this change, as I construe it, goes far toward relieving the bottleneck which developed under the old rule. Associate judges are now free to try many more cases than they could try under the old Rule 295.
However, that is as far as Rule 295 goes. It is a temporary expedient. It does not authorize associate judges to try all criminal cases, or even all felony cases, on a permanent basis. The language of the rule refers to one class of felony cases only; the rule says nothing about the separate class of felonies punishable by death. These are not the same as felonies punishable by imprisonment of more than one year. It is the maximum penalty available, not the penalty actually imposed in a particular case, which governs. The fact that an individual defendant in a “death case” may ultimately be sentenced to imprisonment of more than one year no more brings death cases within the new Rule 295 than the fact that under the old rule a defendant charged with a crime for which he could be sentenced for more than one year actually received a sentence of less than one year would have made his case one which could be tried by an associate judge. There is no need to know in advance which defendants will ultimately be sentenced to death. The proper procedure under the current Rule 295 is to prohibit the assignment to an associate judge of any trial of an offense potentially punishable by death.
Our omnipresent concerns about the fairness of the judicial process are intensified in cases in which death is a potential penalty. As I have indicated in a similar situation (People v. Ruiz (1982), 94 Ill. 2d 245, 273 (Simon, J., dissenting)), faithful adherence to the letter of the law must be the rule followed in every instance where a final and irreversible punishment is involved. There can be no slippage, no “play in the joints,” where a presumably innocent human being’s life is at stake. Capital cases are not ordinary cases. We cannot imply procedural shortcuts absent clear and explicit language that these procedures apply to capital cases. There is no indication anywhere in the language of Rule 295, the committee comments, or the supplemental notes, that the special situation of capital cases was considered and included within the rule. There is also no indication that the term “offense punishable by imprisonment of more than one year” is to be given any broader meaning than its plain wording would ordinarily warrant. In short, there is no indication that a narrow grant of authority enacted solely to address pragmatic concerns and even then conditioned “upon a showing of need” (87 Ill. 2d R. 295) should be so dramatically expanded to include the most grave of all sanctions, the judicially authorized taking of life.
In capital cases, where the stakes to the defendant are so high, we must be concerned that not even the slightest possibility of any unauthorized procedure will be allowed. A clear expression from the supreme court that associate judges are eligible to impose death sentences is what is required and that is missing here.
III. EVIDENCE OF EARLIER MISCONDUCT
Finally, I believe a serious error occurred at the sentencing stage which requires a remand for a new sentencing hearing. The trial judge improperly relied on two of the defendant’s earlier contacts with the law in concluding that the death penalty should be imposed. First, he stated for the record that in 1969, at the age of 14, the defendant “was adjudged a juvenile delinquent for robbery.” This is a mischaracterization of the incident. The juvenile court’s disposition of the petition relating to defendant’s conduct at that time was to place the defendant on juvenile supervision without entry of any findings, a disposition which does not constitute an adjudication of delinquency. (In re A.M. (1981), 94 Ill. App. 3d 86; see Ill. Rev. Stat. 1979, ch. 37, par. 704 — 7.) Inasmuch as the defendant was not adjudicated a delinquent on this occasion, this incident could not properly be considered at a later sentencing hearing. Ill. Rev. Stat. 1979, ch. 37, par. 702 — 9.
Also, the trial judge, in commenting on the defendant’s proclivity for crime after he “graduated from the juvenile court,” as the judge put it, referred to his conviction for theft in 1973. Here again the trial judge mischaracterized the episode, for that charge too was disposed of by supervision, and this disposition did not constitute a conviction. People v. Breen (1976), 62 Ill. 2d 323.
The trial judge referred to these two incidents and others as part of a pattern which revealed, in the judge’s words, “proclivity for crime” by the defendant. Inasmuch as neither incident involved an adjudication of delinquency or a conviction, reliance upon them in determining the appropriate sentence was error. This error cannot properly be regarded as harmless, as the State urges, in a case such as this where the sentencing judge’s reliance on the two incidents appears so prominently in the record. In Townsend v. Burke (1948), 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252, where erroneous information regarding a defendant’s criminal record was considered in sentencing, the court observed that it was not at liberty to assume that the sen-tenting court was not influenced by that information. See also People v. Brownell (1980), 79 Ill. 2d 508, 535-36.
The majority opinion does not discuss this issue, for it views it as having been waived by the defendant’s failure to object to the introduction of this evidence before the trial judge. (101 Ill. 2d at 494-95.) I do not believe that it is appropriate to give such short shrift to a serious objection which a defendant seeks to raise in an attempt to escape execution, a penalty which is irreversible should it later appear that a mistake was made. As I pointed out in my dissent in People v. Free (1983), 94 Ill. 2d 378, 435 (Simon, J., dissenting), “few propositions have a longer pedigree in the common law of this State than that any irregularity not expressly waived in the trial of a capital case must be heard on review. (Nomaque v. People (1825), 1 Ill. (1 Breese) 145, 149; see People v. Fisher (1930), 340 Ill. 216, 259.)” Moreover, I believe that the error alleged here was so substantial and cut so deeply into the fairness of the proceeding as to call for its treatment as plain error. (87 Ill. 2d R 615(a); see People v. Whitlow (1982), 89 Ill. 2d 322, 342; People v. Roberts (1979), 75 Ill. 2d 1, 14; People v. Sullivan (1978), 72 Ill. 2d 36, 42; People v. Burson (1957), 11 Ill. 2d 360, 370-71; compare People v. Baynes (1981), 88 Ill. 2d 225, 233-34, 244 (admission of polygraph evidence ruled plain error even though defendant had stipulated to it at trial).) The trial court’s misreading of the character of defendant’s earlier antisocial conduct derives no support from the evidence, and its use for the purpose of establishing his tendency to commit serious crimes notwithstanding that fact deprived him of the substantial means of receiving a fair sentencing hearing.
For the foregoing reasons I dissent.