dissenting:
An examination of the “total record” in this case indicates non compliance with Supreme Court Rule 401(b), and, as I see it, non comphance with the minimum constitutional requirements as set forth in Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, and a total failure of the trial court to adequately admonish the defendant and to ascertain that he understood “the nature of the charge against him”.
In consideration of this case it should be noted that the plea of guilty was accepted on January 20, 1970. At the time Supreme Court Rule 401(b) in pertinent part provided: “The court shall not permit a plea of guilty * * * by any person accused of a crime * * * unless the court finds from proceedings had in open court at the time # * 6 (of) the plea of guilty * * * that the accused understands 600 the nature of the charge against him * * *. The inquiries of the court, and the answers of the accused to determine whether he understands # # * and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. * * *” (Emphasis supplied)
It should be noted that this requirement places a duty on the court not to permit a plea of guilty except upon the terms and conditions set forth in the rule. The specific language of this rule is examined in People v. Miller, 123 Ill.App.2d 473, 260 N.E.2d 312. The court there also discusses the prior rules from which Rule 401 is derived. In People v. Washington, 5 Ill.2d 58, 124 N.E.2d 890, in discussing former Rule 27(a), a predecessor to the present Rule 401, the court noted: “Throughout the history of the administration of criminal justice in this jurisdiction, it has been a strict requirement of our law that in each conviction of a crime upon a plea of guilty, the record must show that before the entry of the plea the court fully explained its consequences to the defendant and that the explanation was understandingly received.” One of the requirements of Rule 27(a) was that the court determine that the accused understands or comprehends the nature of the crime with which he is charged.
Rule 401(b) at the time this plea was accepted required the court to determine that the defendant understood the nature of the charge against him and such understanding was to be based upon proceedings had in open court at the time the plea of guilty is entered. Thus, in our examination of this record, that which transpired at an earlier time with reference to the prior charge of murder is of no consequence and certainly of no significance in measuring the validity of the admonition at the time the plea was entered.
In People v. Nardi, 48 Ill.2d 111, 268 N.E.2d 389, the Illinois Supreme Court discussed the requirements of 401 indicating that the more stringent requirements now found in 402 were not retroactive and discussed Boykin and the cases following it and the constitutional requirement that the record must affirmatively show that the defendant has intelligently and knowingly pleaded guilty. One of the teachings of Nardi is that the requirement now found in Rule 402 that the court ascertain the existence of a factual basis for the defendant’s plea is not to be given retroactive application.
When we turn to the record in this case, we find that statements of the defendant Bell and his co-defendants Lynn, Love and Bradford had been filed. These were filed in response to a discovery motion. They had not been admitted into evidence, but they were in the file and presumably part of the “total record”. If we examine the total record upon an inquiry of a plea proceeding, then we examine it to overturn as well as to sustain the procedure. From those statements and from the subsequent statement of defense counsel, essentially concurred in by the State’s Attorney, the trial court was informed of a scheme by the four defendants to rob a Gulf service station in the City of Decatur. In pursuance of that scheme, the four proceeded in a car toward the station. Bell remained in the car. Lynn, Love and Bradford departed the car and proceeded toward the station. En route they encountered or saw a Mr. Hostetler, the murder victim. According to counsel’s statement, Bell was not present at the time and knew nothing of the robbery-murder of Hostetler, at least not until after the event.
Bradford’s statement conflicts with this in certain respects. That statement, in question and answer form, does contain:
“Q. Now, did the four while you were in the car plan to rob that Gulf station?
A. I really don’t know what they were up to. When they saw this man, they said let’s get him.”
In his statement, Bradford claims to have been drunk. However, his statement is to the effect that he, Lynn and Love got out of the car, “started approaching the service station and they saw the old man and they said let’s get him.” Bell, even by Bradford’s statement, stayed in the car. As I read tire Bradford statement, it clearly indicates that this offense originated and was consummated after Lynn, Love and Bradford left the car.
After Bradford entered a plea of guilty to the crime of murder, Bell, together with Lynn and Love, all then charged with murder, consented to the filing of an information charging the crime of voluntary manslaughter. The language of the information is essentially the same as the language of the earlier indictment. It is clear from each that Bell’s accountability for the overt criminal acts of Bradford would be under the accountability language of our Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2(c)). Criminal responsibility for the action of another is a difficult area of the law. While the information in this case speaks in terms of such vicarious responsibility only incidentally, the admonition of the court to inform the defendant of the nature of the charge speaks of it not at all. That admonition is as follows:
“The Court. We will let the record show that on arraignment each defendant enters a plea of guilty to the pending charges.
Before we accept that plea, before we enter judgment on it, there are certain things I want to be sure of and let the record be complete on. The first is, do you and each of you understand what you are accused of doing in this information? Do you understand that you’re charged with having committed voluntary manslaughter briefly in, I assume it’s quite lengthy, it involves the death of one Hobart Hostetler and purported robbery of the deceased. Do you understand what they accuse you of doing? And let’s take them separately again. Mr. Lynn do you understand what we call the nature of the charges? Is that right? Defendant Lynn: I do.
The Court: Mr. Love?
Defendant Love: Yes.
The Court: And Mr. Bell?
Defendant Bell: Yes.”
In People v. Basile (1934), 356 Ill. 171, 190 N.E. 307, the defendant and others intended to commit a robbery in a building. While the defendant waited in the car, one of the other potential robbers committed a killing which was not related in any way to the proposed robbery. The court indicated that the defendant would not be responsible for the killing since it was not committed “in furtherance of a common design”. In Basile, the court referred to an earlier case which used the test of “probable consequences” of the common design to determine criminal responsibility. If that which is set forth in this record is true, there is no criminal accountability upon the part of Bell for the action of Bradford and/or Lynn and Love. See People v. Tillman, 130 Ill.App.2d 743, 265 N.E.2d 904; Clark & Marshall, Law of Crime, 6th Ed., sec. 8.09, p. 474 (1958); 1 Warren, Homicide, sec. 62, p. 238; Wharton, Criminal Law deprocedure, sec. 110, p. 238, and cases there cited.
The acceptance of this plea of guilty and the imposition of sentence thereafter when everything in the “total record” clearly negated criminal responsibility was plain error of constitutional dimension. In Boykin, the U.S. Supreme Court expressed itself in this language: “It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” Thus, more recently, the Supreme Court discussed negotiated pleas and the underlying rationale concerning an acceptance of such pleas. In the course of the discussion, the court noted the necessity that plea bargaining must be attended by safeguards to insure the defendant that which is reasonably due in the circumstances. Santobello v. New York, (U.S.), 40 Law Week 4076.
The committee comments on the Standards Relating to Pleas of Guilty recently approved by the ABA contain much discussion of the pros and cons of plea bargaining. By Rule 401, and later 402, our Supreme Court has clearly indicated approval of plea agreements when attended by the safeguards specified. These standards clearly recognize the great danger involved in offering leniency for guilty pleas to the charged, but perhaps frightened and uninformed individual. Clearly there is no such thing as a “bargain” sentence for an innocent person, nor is there any such thing as a beneficial sentence for an innocent defendant. Recent statistics of the court administrator tell us that about 85% of all felony cases that result in conviction are the result of pleas of guilty. Whether plea bargaining is accepted as desirable or rationalized as acceptable and expedient, it clearly needs to be attended with safeguards. One needed safeguard of an adequate admonition is missing from this record.
I would reverse and remand.