author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN DALE HOFFSTETTER etal., Defendants-Appellees.
    Fifth District
    No. 5—83—0534
    Opinion filed November 2, 1984.

      Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Ralph J. Mendelsohn, of Alton, for appellee Veronica Gale Piper.
    Randy E. Blue and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee Steven Dale Hoffstetter.
   JUSTICE KARNS

delivered the opinion of the court:

Defendants, Steven Dale Hoffstetter and Veronica Gale Piper, were charged by information in the circuit court of Madison County with possession of more than 500 grams of cannabis, a felony. (Ill. Rev. Stat. 1983, ch. 56V2, par. 704(e).) Each defendant filed a motion to suppress evidence seized by Alton police pursuant to entry into the rear portion of a building leased by defendant Hoffstetter as a music store and also occupied by him in the rear portion as a residence. After a suppression hearing the trial court granted defendants’ motions, and the State has appealed pursuant to Supreme Court Rule 604(a)(1). On appeal, the State maintains that the trial court erred in suppressing the evidence because the police officers had probable cause to enter the building and thereafter had probable cause to arrest both defendants because a crime was being committed in their presence.

On October 18, 1982, Alton police officer Brakeville, while on routine patrol at about 6 a.m., observed the front door of Twin Rivers Music Store standing open. This, he testified, he found unusual because the business was not normally open at that hour. He looked in and with the aid of his flashlight saw a man lying on the floor. He entered to investigate and determined immediately from the strong odor of alcohol that the man had simply passed out in a drunken state. He testified that the front room had no lights on but that he noticed a light emanating from the rear. He went back outside to radio for assistance and then returned to investigate further. Proceeding to the rear he heard voices of “at least two people.” He testified that he also smelled what he considered to be a strong odor of burning marijuana. Brakeville also testified that he called out several times to announce his presence but that no one responded. He went back to the front door to wait for his backup because, he testified, “I was unaware of the complete situation back there. *** I didn’t know whether they were armed or what the situation was.”

Officer Cunningham arrived about three minutes later. Brakeville advised Cunningham of his previous observations. Both officers entered the store and the man on the floor was reexamined and found to be without need of assistance. Cunningham testified that he too smelled a strong odor of what he thought was marijuana smoke as they approached the rear portion of the building. Neither officer announced their presence at this time, nor were their guns drawn. Both officers testified that there were no closed doors opened by them. Brakeville testified that he sensed no immediate danger, and Cunningham testified that he had no reason to believe there was a burglar. Cunningham stated on cross-examination, “I just thought there was something unusual taking place because normally these doors are locked ***.” They proceeded through a doorway into the middle section of the building and then on through another doorway to the rear section of the building, where there was a separate partitioned area from where the voices emanated. Brakeville testified that the officers paused to listen to the voices. Upon finally reaching the doorway to this living area, Hoffstetter’s residence, the officers observed both defendants sitting there in the room.

Brakeville testified that he observed nothing burning but did observe in plain view a clear bag of “green leafy substance” sitting on the table between the couches upon which defendants were sitting and about 10 feet from where he was standing. From the doorway he also observed a waterpipe smoking device. Cunningham testified that he observed a burning “reefer,” a marijuana cigarette, being passed between defendants, although this was not mentioned in his official report nor was it included in the search inventory. Cunningham testified, and he too saw bags of “green leafy substance” in plain view which he considered to be marijuana. Hoffstetter noticed the officers at the doorway, whereupon they entered and placed both defendants under arrest. The officers then proceeded to conduct a thorough search of the living area. The officers seized 11 plastic bags, two paper sacks and one waterpipe smoking device, all of which contained “a green leafy substance,” later positively identified as cannabis. The officers learned that the intoxicated man was a friend of Hoffstetter’s.

Hoffstetter testified that the doors to the living area were closed, a “Keep Out” sign was posted outside the living area, the cannabis was contained in paper sacks under the table, and the waterpipe was hidden from view. He further testified that the door leading to the living area was shut. A light in the front room was on all night, he said. Piper testified that the door between the middle and rear rooms, where the sign was allegedly posted, was closed.

Warrantless searches and seizures are per se unreasonable under the fourth amendment unless they fall within a few specifically established and well-delineated exceptions: search by consent, search incident to arrest, and search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. (People v. Gardner (1984), 121 Ill. App. 3d 464, 459 N.E.2d 676, and cases therein cited.) The fourth amendment protection extends to' commercial premises in which there is a reasonable expectation of privacy against governmental intrusion (Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 311, 56 L. Ed. 2d 305, 310, 98 S. Ct. 1816, 1819; People v. Stamps (1982), 108 Ill. App. 3d 280, 285, 438 N.E.2d 1282, 1289), but a warrantless entry of a commercial establishment may be permissible under the fourth amendment when a law enforcement officer discovers that commercial premises are unlocked and unattended at an hour when it would not be expected to be open for business. (People v. Gardner (1984), 121 Ill. App. 3d 464, 459 N.E.2d 676.) A warrantless intrusion into a commercial establishment under these circumstances must be very limited in nature. “[I]n certain limited circumstances law enforcement officials may enter an unsecured or unlocked commercial establishment during a nighttime security check to secure the premises and may take necessary measures to ascertain the identity of the proprietor. However, the courts will be vigilant to ensure that the rationale of protecting private property is not employed as a subterfuge to seek out evidence of criminal conduct. See 2 W. La-Fave, Search & Seizure sec. 6.6(b), at 474-75 (1978).” (Emphasis added.) 121 Ill. App. 3d 464, 470, 459 N.E.2d 676, 680-81.

We agree with the trial court that Officer Brakeville’s initial entry was lawful when at about 6 a.m., a time admittedly not within usual operating hours, he observed from his patrol car the door of the commercial establishment standing open. Under the reasoning of Gardner, Officer Brakeville could, without a search warrant, enter the building for the limited purpose “to secure the premises and *** take necessary measures to ascertain the identity of the proprietor.” (People v. Gardner (1984), 121 Ill. App. 3d 464, 470, 459 N.E.2d 676, 680-81.) Upon entry into the premises in Gardner, the officer observed a vehicle which subsequent investigation determined was recently stolen, then obtained a search warrant and reentered the building. The discovery of the body in this case prompted, and we think justifiably so, a greater degree of suspicion and of immediate cause for prompt investigation than that present in either Gardner or the cases relied on therein. (See People v. Gardner (1984), 121 Ill. App. 3d 464, 459 N.E.2d 676; State v. Myers (Alaska 1979), 601 P.2d 239; People v. Parra (1973), 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849.) We do not believe it is significant in determining the lawfulness of the warrantless entry that Brakeville left the building to radio for backup help and then returned, for the same situation confronted him upon his re-entry as upon his initial entry. Upon re-entry, Brakeville testified, “I went inside, checked the person laying on the floor *** at which time I walked towards the rear to make a preliminary check of the business *** to see if anybody else was inside, if there was any signs of a burglary or something, at which time I heard a couple voices at the rear and I turned around and exited the business and waited for Officer Cunningham’s arrival.” It was at this time that he smelled what he thought was marijuana smoke. Brakeville further testified that he had never before been in that building and that he was not aware that the building contained a residence.

Our examination of this record leads us to conclude that, notwithstanding the lawful entry, this particular surreptitious intrusion into the living quarters was neither justified nor reasonable. Whatever exigency might have existed upon Brakeville’s initial entry which would have allowed his continued intrusion to the rear of the building under the Gardner rationale, it no longer was present when both officers proceeded to the rear portion of the premises. The officers did not call out their presence in an effort to identify the persons in the back room, although the identity of the owner was known to the police, nor did they have revolvers drawn, although Brakeville testified that he did both of these things on his prior entry. Cunningham testified that had he believed there was a burglary in progress he would have taken his shotgun with him. In fact, when asked on cross-examination whether he was confident that there were no burglars, Cunningham replied, “That’s right.” Further when asked, “But you had no idea *** that [they] had committed any type of offense,” he replied, “At that time, no, sir.” He added, “I had an idea in my mind that there was some people in there that didn’t belong there.” The officers paused to listen to the voices before their presence was known. There was nothing in the front room or outside to give them any indication of foul play or criminal activity, except for the open door. There was, for example, no sign of forced entry, no broken glass, no overturned furniture and no suggestion of injury to the person on the floor. After determining that the man on the floor was only intoxicated, and securing the premises, any further investigation was prompted by curiosity. The officers thought that the owner resided at a different address, but they also knew that the business of the store was the rental of musical instruments to bands, which were often returned at late hours. No attempt was ever made to contact the owner at the place where Officer Cunningham thought he resided, nor was any attempt made to identify one of the voices as that of the owner by asking for identification, although Officer Cunningham knew Hoffstetter and referred to him by his first name.

By agreement of the parties, the trial court viewed the premises. He found the physical layout of the building as described in defendant’s testimony and not as described by the police in their testimony. In short, he found the officers’ testimony, which was inconsistent in several important respects, as we have noted, lacking in credibility. We may not substitute our judgment for the trial court in weighing the testimony or determining which witnesses were more credible. (People v. Creed (1975), 34 Ill. App. 3d 282, 339 N.E.2d 305.) The trial court found that there was a reasonable expectation of privacy in the residential portion of the building, and it may have concluded that the officers knew or should have known that the rear portion of the premises was used as a residence. Warrantless intrusion into homes is permissible in only limited emergency circumstances. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) If in fact the officers detected the odor of burning cannabis, this fact alone would not justify a warrantless entry into a home or living quarters (People v. Creed (1975), 34 Ill. App. 3d 282, 339 N.E.2d 305), as it would not even justify an automobile search. (People v. Wombacher (1982), 104 Ill. App. 3d 812, 433 N.E.2d 374; People v. Argenian (1981), 97 Ill. App. 3d 592, 423 N.E.2d 289.) In any event, the odor of marijuana would only suggest to the officers the commission of a misdemeanor, which would not present the kind of exigent circumstances which would permit a warrantless intrusion into a person’s home or living quarters. (People v. Olson (1983), 112 Ill. App. 3d 20, 444 N.E.2d 1147.) In fact, the officers had satisfied themselves that no crime was being committed. Cf. People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140.

The trial court found that the police proceeded to the rear of the store “guided only by the smell of smoke.” The testimony of the officers was not only uncorroborated, considering the absence of physical evidence of burnt cannabis, but the officers, who were standing side-by-side at the doorway, testified to conflicting accounts regarding whether defendants were smoking marijuana.

A reviewing court will not disturb the trial court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 769.) Several material facts relevant to the existence of probable cause were in dispute. By agreement of the parties, the trial court viewed the premises. Its observations, when compared with the testimony of the police officers, undoubtedly affected the court’s determination of credibility. For all of the foregoing reasons we believe the findings of the circuit court of Madison County are entitled to great weight and are not manifestly erroneous. The judgment of the circuit court of Madison County is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re APPLICATION OF WILLIAMSON COUNTY COLLECTOR (G & H Investments, Petitioner-Appellant, v. Charles L. Brymer, et al., Respondents-Appellees).
    Fifth District
    No. 5—84—0198
    Opinion filed October 31, 1984.
    Rehearing denied December 5, 1984.
    Stanley W. Narusis, of Johnston City, for appellant.
    Mark J. Ballard, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellee King City Federal Savings Association.
    James B. Bleyer, of Marion, for other appellees.
   JUSTICE KARNS

delivered the opinion of the court:

Petitioner, G & H Investments, appeals from the judgment of the circuit court of Williamson County which denied its petition for a tax deed to real estate owned by respondents Charles L. Brymer and Freída Brymer and subject to a mortgage held by respondent Eing City Federal Savings Association. The issue for our concern is the propriety of the trial court’s ruling that the real estate had been validly redeemed following its sale to petitioner for failure of respondents to pay 1979 real estate taxes.

At the tax sale in October 1980, petitioner purchased three lots owned by the Brymers. On March 30, 1983, the instant petition was filed. The extended statutory period for redemption expired on July 15, 1983. After service of proper statutory notice, on July 11, 1983, Brymer delivered to the county clerk a personal check in the amount of $706.14 in order to redeem the lot on which his home is located.

The county clerk accepted the check as payment, and on that day delivered to Brymer a certificate of redemption. Brymer’s check was dishonored upon presentment for payment, and on August 4, 1983, it was returned for insufficient funds. The county clerk notified Brymer that he could have until the next day to make good the payment or the redemption would have to be voided. Brymer sent another check for the same amount postmarked August 4. On August 8 the county clerk advised Brymer that his payment could not be accepted because the time for redemption had expired.

On August 15 Brymer filed a motion for extension of the redemption period, and on August 19 King City Federal Savings Association as mortgagee filed an objection to the petition for issuance of tax deed and prayed for an extension of the period of redemption so that it might redeem. It was stipulated that the mortgagee, on inquiring before July 15, was advised by the county clerk that the subject lot had been redeemed and the mortgagee received a copy of the certificate of redemption from the county clerk.

The trial court found that the acceptance of the first check and the issuance of the certificate of redemption by the county clerk constituted a valid redemption. The court further found that the redemption had not been revoked by any official act. Accordingly, the petition was denied.

G & H Investments argues that section 253 of the Revenue Act (Ill. Rev. Stat. 1983, ch. 120, par. 734) does not authorize a taxpayer to redeem with a personal check. That section states that redemption shall be made “by payment in legal money of the United States, or by cashier’s check, certified check, post office money order or bank money order.” Payment by personal check alone, however, will not cause a failure of redemption. In John Allan Co. v. Sesser Concrete Products Co. (1969), 114 Ill. App. 2d 186, 252 N.E.2d 361, the court held that acceptance of a personal check by the county clerk and the issuance of a certificate of redemption will effect a valid redemption. In that case the checks were honored upon presentment for payment. The court relied on Weiner v. Chicago Title & Trust Co. (1960), 21 Ill. 2d 69, 171 N.E.2d 50, which held that where the municipal officer accepts a check and does not insist on legal tender, or a bank draft or cashier’s check, a proper payment is made for the purchase of special assessments where the check is honored for payment. Both cases left undecided what result would be reached if the check was returned dishonored.

The record is silent as to Brymer’s knowledge of the status of his account at the bank. While it is true that Brymer is not blameless, the county clerk is also at fault in accepting a personal check contrary to the statutory direction. The entire problem would have been avoided had the clerk required redemption by one of the methods of payment set out in the statute. The problem is further compounded by the presence of the mortgagee, who was told that proper redemption had been effected and was mailed a copy of the certificate of redemption by the county clerk. When the county clerk accepts the property owner’s personal check as payment, unconditionally, he relies on the credit of the owner. In the event of dishonor, the county clerk has a right of recourse against the property owner as drawer of the instrument under the Uniform Commercial Code. Ill. Rev. Stat. 1983, ch. 26, par. 3-507.

Under these unusual facts, which are unlikely to reoccur, we hold that a valid redemption was effected. Here, unlike the actions of the county clerk in Weiner v. Eder (1961), 22 Ill. 2d 408, 176 N.E.2d 777, the county clerk expressed no reservation, indicated no conditional nature of Brymer’s payment, nor made any objection or protest to the medium of payment when it was presented. The county clerk further issued unconditionally a certificate of redemption that very day, four days before the redemption period was to expire. There is no evidence in this record to suggest bad intent on Brymer’s part. Brymer has deposited with the county clerk a money order covering the amount needed to redeem, including costs, penalties and interest. While the tax purchaser will not receive the property, he will receive interest computed at 66% as of July 11, 1983, and costs, including sheriff’s fees and costs of publication.

For these reasons, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE KASSERMAN

text:
      In re ESTATE OF WILLIAM RALPH ROSER, Deceased (Carl A. Roser, Petitioner-Appellant, v. Gladys M. White et al., Respondents-Appellees).
    Fifth District
    No. 5—83—0658
    Opinion filed October 17, 1984.
    Rehearing denied November 15, 1984.
    A. Ben Mitchell and L. James Hanson, both of Musick & Mitchell, P.C., of Mt. Vernon, for appellant.
    Thomas J. Wolf, Jr., of Thomas J. Wolf, Jr., P.C., and Robert H. Rath, both of Harrisburg, for appellee Gladys M. White.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This appeal concerns construction of the last will and testament of William Ralph Roser, who died February 11, 1982, a resident of Orange County, Florida. The testator’s foreign will, dated November 4, 1966, was admitted to probate in the circuit court of White County, Illinois, on April 30, 1982. Carl A. Roser, one of the residuary beneficiaries under such will, subsequently petitioned that court to declare that the Federal estate and State inheritance taxes due from the estate should be equitably apportioned, per Florida statute, among the beneficiaries under the testator’s will and the beneficiaries of various inter vivos transactions of the testator. Respondents, Gladys M. White and Doyle E. Roser, the two co-legal representatives of the estate, were also residuary beneficiaries under the will along with petitioner, Carl A. Roser. The circuit court found that the will manifested the testator’s clear intent that said taxes not be subject to equitable apportionment, and petitioner appealed. We affirm.

At the time of his death, the testator was domiciled in Florida and owned substantial real and personal property in Florida and Illinois. The testator’s will provides in pertinent part:

“FIRST: I direct that all my just debts, the expenses of my last illness, funeral expenses, cost of burial plot and cost of reasonable monument (if I die without already purchasing same), spouse’s award, expenses of administration, all inheritance and estate taxes which may be due, shall be paid out of my estate by my executor, hereafter named, as soon after my death as may be practicable.

* * *

THIRD: If my mother or father do not survive me, I give all of my property, real and personal wherever situated, in equal shares to my brothers and sister Carl Roser, Doyle Roser, and Gladys White per stirpes.

* *

No other provision in the will relates to the payment of taxes.

Petitioner’s petition to require equitable apportionment alleges, in essence, that the respondents, and to a much lesser extent other named persons, had received insurance proceeds, joint tenancy assets, gifts prior to death, and nonprobate trust assets which, although they did not pass under the testator’s will, contributed to the estate’s tax burden. According to the petition, the amount of Federal estate tax liability for the entire estate exceeds $600,000, and the amount of Federal estate tax liability in question with respect to the equitable apportionment issue exceeds $200,000. Petitioner urges on appeal that the circuit court erred in finding that equitable apportionment should not apply with respect to testator’s estate.

A preliminary question arises concerning which State’s laws are to be applied; however, the parties do not dispute that Florida law should govern. We agree. See Doetsch v. Doetsch (7th Cir. 1963), 312 F.2d 323, 327-28.

Florida has a statute providing, for equitable apportionment of taxes between testate and intestate property. This statute provides that “except as otherwise directed by the [decedent’s] will,” after certain specified tax payments not applicable to the case at bar are made, the balance of the tax (if any) shall be equitably apportioned among recipients of gifts in contemplation of death, recipients of property passing by the will or by intestacy, recipients of insurance proceeds, and surviving joint tenants, such apportionment to be in the proportion that the value of the property or interest of each bears to the total value of all the properties and interests included in the measure of the tax. Fla. Stat. sec. 733.817(l)(e)(1981).

Thus the sole issue presented by the instant appeal is whether the testator’s will “otherwise directed” a method of payment of inheritance and estate taxes other than by apportionment as provided by the Florida statute. In this regard, the testator’s intent is the polestar of all will interpretation. (In re Estate of Collin (Fla. App. 1979), 368 So. 2d 1350, 1352.) The testator’s intention should be determined from the will itself, if possible, and parol evidence may not be resorted to except in the case of an ambiguity. In re Estate of Lesher (Fla. App. 1979), 365 So. 2d 815, 817.

Petitioner argues that testator’s will neither expressly nor implicitly indicates that equitable apportionment should not apply. On the other hand, respondent White argues that the Florida case of In re Estate of Collin deals with facts so similar that it requires affirmance of the instant judgment. We agree.

In In re Estate of Collin, the second clause of the will in question stated: “I do hereby direct that all my just debts, estate taxes, and expenses of my last illness and funeral expenses be paid out of my estate.” (368 So. 2d 1350, 1353.) The residual clause of that will set forth multiple bequests as percentages of the entire residue. The court in In re Estate of Collin concluded that where the taxes are grouped with debts, expenses and costs of administration and are coupled with a clause directing that the residue be divided into portions set forth as percentages of the entire residue, then such direction indicates that the testator intended that the percentages set forth reflect the after-tax proportions to be received under the will, i.e., that nonapportionment had thereby been directed. The court noted with approval the reasoning in University of Louisville v. Liberty National Bank & Trust Co. (Ky. 1973), 499 S.W.2d 288, that the clause directing payment of expenses, debts, and costs of administration indicates that those items are to be paid “off the top,” and that since taxes are grouped with those items, taxes are intended to be paid “off the top” as well. (See also In re Estate of Barret (Fla. App. 1962), 137 So. 2d 587, 592.) Furthermore, it is noteworthy that the In re Estate of Collin court reached this conclusion despite that court’s express recognition that (1) the will draftsman testified that the tax issue had not been considered when the will was drafted; (2) the Florida statute stated the requirement that the will have “otherwise directed,” as opposed to requiring evidence of contrary intent, and (3) within reasonable limits, a decedent is presumed to know the law.

It is conceded that Florida law controls the issue presented by the instant appeal, and in our opinion, In re Estate of Collin controls construction of the instant will. Decedent’s will groups inheritance and estate taxes with debts, expenses of burial and last illness, spouse’s award, and expense of administration, and all are directed to be paid out of decedent’s estate. The residue of the estate is to be divided into equal portions. (See In re Estate of Barret (Fla. App. 1962), 137 So. 2d 587, 592, in which “my entire estate” was construed as referring to all the property passing under decedent’s will and did not include corporate stocks transferred by the testatrix to joint ownership with right of survivorship.) We further note in so concluding that while petitioner musters ample authority for a contrary result under Illinois law, in light of In re Estate of Collin we have no occasion to consider it.

Further, while we agree with petitioner that In re Estate of Collin is not indistinguishable on its facts from the instant case, the parties have found no better indication of the Florida courts’ construction of that State’s equitable apportionment statute in these circumstances, and our research has disclosed none. The decedent in the case at bar specified in his will that “all inheritance and estate taxes,” together with expenses attending his last illness and burial, the administration of his estate and his surviving spouse’s award “shall be paid out of” his estate. We conclude that this provision evinces an intention on the part of the decedent that his estate shall bear the burden of the inheritance and estate taxes and that such taxes were not to be proportionately borne by the beneficiaries of the inter vivos gifts of decedent.

For the foregoing reasons, the judgment of the circuit court of White County is affirmed.

Affirmed.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL W. SUTHERLAND, Defendant-Appellant.
    Fourth District
    No. 4—84—0120
    Opinion filed November 1, 1984.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Randall Sutherland pleaded guilty to the charge of driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501(a)) in Morgan County case No. 83 — TR—2592 and was sentenced to 30 days’ imprisonment and ordered to pay court costs. His motion to withdraw his plea of guilty and vacate the judgment was denied. Defendant appeals from the judgment of the circuit court of Morgan County, urging that the trial court erred in (1) denying his motion to withdraw the plea of guilty and vacate the judgment on a record showing that he was not adequately admonished pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402), and (2) imposing a sentence of imprisonment without finding that he posed a threat to the public or that imposition of probation would deprecate the seriousness of the offense (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(a)).

Defendant was charged with this offense on October 17, 1983. On the following day the court called for hearing various traffic tickets, including this charge and Morgan County cases Nos. 83 — TR—2593 (no valid operator’s license), 83 — TR—2594 (illegal transportation of liquor) and 83 — TR—2595 (improper lane usage), and a misdemeanor, Morgan County case No. 83 — CM—195 (deceptive practice). The defendant stated that he understood the charges and wished to represent himself. He entered pleas of not guilty to all charges and requested jury trial.

On November 9, 1983, represented by counsel, the defendant, through counsel, withdrew his plea of not guilty on this charge pursuant to plea negotiations with the State’s Attorney. Defense counsel stated that under the agreement the defendant would make restitution on the deceptive practice charge, and all charges except driving under the influence would be dismissed. The State had indicated it would not seek a jail term, and the plea agreement was otherwise open. Defense counsel requested the court to refer the cause to the probation department for presentencing investigation so he could argue for supervision. The State agreed to referral. The report of proceedings at the time the plea was taken includes this questioning of the defendant by the court:

“THE COURT: Have you, [defense counsel], explained to [defendant] that driving while under the influence of intoxicating liquor is a Class A misdemeanor and that he could, if the maximum penalty were imposed, be subjected to a fine which would not exceed a thousand dollars in amount and a sentence to the local jail or to the Department of Corrections for a period of not to exceed one year, or both?

[DEFENSE COUNSEL]: I have so advised him, Your Honor.

THE COURT: You fully aware of that, [defendant]?

THE DEFENDANT: Yes.

THE COURT: [Defense counsel], have you fully advised him with regard to his right to trial?

[DEFENSE COUNSEL]: I have and he is waiving that right, Your Honor.

THE COURT: You got any question in that respect, [defendant]?

THE DEFENDANT: No.

THE COURT: You satisfied with the manner in which you’ve been represented by counsel?

THE DEFENDANT: Yeah.

THE COURT: All right.

Your motion for leave to withdraw the plea of not guilty heretofore entered to the charge in 83 — TR—2592, *** is withdrawn.

Are you ready now that I ask you once again how you plead to the charge of driving while under the influence of intoxicating liquor?

THE .DEFENDANT: Guilty, Your Honor.

THE COURT: Has there been used any force or threats against you or, other than the result of negotiations made, any promises to you by which your plea of guilty has been induced?

THE DEFENDANT: No.

THE COURT: Your plea of guilty is voluntary on your part?

THE DEFENDANT: Yeah.”

A factual basis was provided by the prosecutor, with which the defense counsel and the defendant agreed. The court found a factual basis for the charge and guilty plea, and found the plea knowingly, understandingly, and voluntarily entered. The plea was accepted, defendant was found guilty as charged, and the matter was referred to the probation department for investigation.

Defendant was sentenced after hearing on December 2, 1983, to 30 days’ imprisonment. Mittimus was stayed pending appeal. On December 8, 1983, defendant moved to withdraw the plea of guilty and vacate the judgment and sentence thereon. The trial judge denied the motion.

We first consider defendant’s argument that the trial court erred in denying his motion to withdraw the plea of guilty and vacate the judgment because he was not adequately admonished pursuant to Supreme Court Rule 402. The State argues the defendant has waived his right to appeal this issue as his motion made no mention of the trial court’s alleged failure to admonish him of the right to trial or the right to confront witnesses (87 Ill. 2d R. 402(a)(4)). (People v. Adkisson (1980), 83 Ill. 2d 1, 413 N.E.2d 1238.) This argument is without merit.

Examination of defendant’s motion reflects that he alleged the trial court had failed to admonish him pursuant to Supreme Court Rule 402(a), stating further particularization of the issue required a transcript of the proceedings at which he had pleaded guilty. The court ruled on the motion by letter opinion filed February 3, 1984, after reading the transcripts in this cause, without further hearing, and did not address whether its admonitions had been in substantial compliance with Supreme Court Rule 402(a). Further, People v. Evans (1967), 37 Ill. 2d 27, 31-32, 224 N.E.2d 778, 781, held that if admonishment of the consequences of a plea of guilty by the trial court was improper, the law of waiver would be inapplicable, since the defendant could not have knowingly and intelligently waived his constitutional rights. (People v. Weakley (1970), 45 Ill. 2d 549, 552, 259 N.E.2d 802, 804; see also Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) We deem application of the waiver doctrine inappropriate in this case.

Defendant first maintains that the trial court did not personally inquire of him and admonish him that (1) he had the right to plead not guilty and to persist in that plea (87 Ill. 2d R. 402(a)(3)), and (2) if he pleaded guilty, there would not be a trial of any kind and that he would be waiving his right to a jury trial and the right to confront witnesses against him (87 Ill. 2d R. 402(a)(4)). Defendant’s second claim is that at no time prior to accepting his guilty plea did the trial court inform him it was not bound by the terms of the agreement and could impose any sentence legally available for the offense as required under Supreme Court Rule 402(d) (87 Ill. 2d R. 402(d)). Defendant alleges that as a direct result of the court’s failure to make these admonishments as required by Rule 402, his guilty plea was not knowingly, understandingly, and voluntarily entered.

Supreme Court Rule 402 states in pertinent part:

“The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law

* * *. )

(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and

(4) 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.

* * *

(d) Plea Discussions and Agreements. When there is a plea discussion or plea agreement, the following provisions *** shall apply:

***

(2) If a tentative plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement and the reasons therefor in advance of the tender of the plea. *** The judge may then indicate to the parties whether he will concur in the proposed disposition; ***. If he had indicated his concurrence or conditional concurrence, he shall so state in open court at the time the agreement is stated as required by paragraph (b) of this rule. If the defendant thereupon pleads guilty, but the trial judge later withdraws his concurrence or conditional concurrence, he shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea of guilty. ***

(3) If the parties have not sought or the trial judge has declined to give his concurrence or conditional concurrence to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the plea agreement, and that if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.” (87 Ill. 2d R. 402.)

We note initially that the rule requires substantial, not literal, compliance with its provisions.

In considering defendant’s claim under Rule 402(a) in reviewing admonishments under that subsection, the entire record may be considered in determining whether or not there was an understanding by the accused of admonishments. (See People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559; 87 Ill. 2d R. 402(a)(1) (nature of the charge).) In People v. Flathers (1953), 414 Ill. 486, 111 N.E.2d 530, the Illinois Supreme Court held that all the requirements of Rule 27A (City of Chicago v. Terminiello (1948), 400 Ill. 22), predecessor to Rule 402, must be carefully complied with, but the remarks and advice of the court must be read in a practical and realistic manner. If an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule, the essentials have been complied with. Accord, People v. Washington (1955), 5 Ill. 2d 58, 124 N.E.2d 890; People v. Domico (1959), 15 Ill. 2d 590, 594-95, 155 N.E.2d 591, 594, cert. denied (1959), 360 U.S. 904, 3 L. Ed. 2d 1256, 79 S. Ct. 1288; People v. Doyle (1960), 20 Ill. 2d 163, 167, 169 N.E.2d 250, 252; People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559.

Seminal comment on the substantial compliance standard as to rights under Rule 402(a) was made in People v. Mendoza (1971), 48 Ill. 2d 371, 373-74, 270 N.E.2d 30, 32. There, the defendant maintained that since the trial court failed to admonish him at the change-of-plea hearing that he was waiving (1) the privilege against self-incrimination, and (2) the right to confront his accusers (see Rule 402(a)(4)), his waiver of these rights was not voluntary and intelligent. The court found the record admonitions showed substantial compliance with Rule 402 (43 Ill. 2d R. 402) as well as with Rule 401(b) (43 Ill. 2d R. 401(b)), in effect at the time in question. (People v. Mendoza (1971), 48 Ill. 2d 371, 373, 270 N.E.2d 30, 32. Compare, 43 Ill. 2d R. 402, eff. Sept. 1,1970, to 43 Ill. 2d R. 401(b).) The court went on to say:

“The free and voluntary character of defendant’s plea, as disclosed in this record, is uncontradicted by factual allegations in the petition or by accompanying affidavit. The fact that defendant was not specifically admonished by the court, on the record, as to each and every consequence of his plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences. At the time defendant entered his plea he was represented by privately retained counsel and it is not alleged that his counsel failed to adequately advise him of the consequences of a guilty plea. Evidence that at least some explanation of these consequences was made by his counsel is shown by the following excerpt from the record of the change-of-plea proceedings:
‘MR. SPURLARK: The defendant is here before the bench. I have talked with him and I have explained to him the opportunity that is his in the matter of his Constitutional right to trial by jury or a bench trial. I have also explained to him the Fourth Term Act.’
In view of the absence of evidence in the record or by affidavit supporting defendant’s claim that he did not understand the consequences of his plea, and the failure to explain such absence, we find the petition insufficient to require a hearing and its dismissal justified.” (People v. Mendoza (1971), 48 Ill. 2d 371, 374, 270 N.E.2d 30, 32.)

Similarly, in People v. Dudley (1974), 58 Ill. 2d 57, 316 N.E.2d 773, although the court rejected the State’s argument that there was substantial compliance with Rule 402(b), and found instead no compliance, it declined to reverse a judgment of conviction in a guilty plea challenge for failure to admonish under Rule 402(b) (failure to state plea agreement in open court and question defendant to confirm its terms). (87 Ill. 2d R. 402(b).) In Dudley, there was no claim that the plea of the defendant, who was represented by counsel, was not voluntary and no other claim of harm or prejudice to the defendant.

Although numerous cases have considered the matter of substantial compliance with Rule 402, the decisions provide no clear guide as to which admonishments may be omitted without requiring reversal of the judgment. We deem review of these decisions pertinent to resolution of the issue raised by defendant. We do not, however, attempt to provide a substantive definition as to what suffices to meet the substantial compliance standard of the rule, nor a rationale by which to harmonize the decisions, as neither is evident from our examination of the cases.

The Illinois courts have found substantial compliance with Rule 402 where the records indicate that the defendant understanding^ and voluntarily entered his plea, when the trial court had failed to admonish the defendant in various respects, viz., (1) his right to confront the witnesses against him (Rule 402(a)(4)) (People v. Caughlin (1972), 7 Ill. App. 3d 389, 391, 287 N.E.2d 499, 500-01 (jury trial had begun and court had admonished defendant he was giving up right to jury trial, where nothing in record indicated he did not understand he was also giving up right to confront witnesses who could appear if trial continued); People v. Williams (1973), 16 Ill. App. 3d 199, 200-03, 305 N.E.2d 544, 546-48; and People v. Unger (1974), 23 Ill. App. 3d 525, 529, 318 N.E.2d 651, 655 (defendant did not state or allege failure of trial court to admonish him in detail in fact resulted in substantial injustice to him)); (2) his right to plead not guilty (Rule 402(a)(3)) (People v. Abel (1973), 10 Ill. App. 3d 210, 213, 291 N.E.2d 841, 844 (object and purpose of requirement, to ascertain that defendant be aware of alternatives available to him, met)); (3fhis right to plead not guilty or 4o persist in that plea (Rule 402(a)(3)) (People v. Lumley (1979), 76 Ill. App. 3d 221, 223-24, 394 N.E.2d 1079, 1081 (when considered with all other admonitions, not reversible error)); (4) his rights to persist in plea of not guilty (Rule 402(a)(3)), and to confront witnesses against him (Rule 402(a)(4)) (People v. Anderson (1973), 10 Ill. App. 3d 558, 563-64, 294 N.E.2d 763, 767-68 (fact that defendant was not specifically admonished by court as to each and every consequence of plea does not sufficiently demonstrate he was unaware of these consequences where nothing in record or brief contradicts voluntary character of plea)); (5) that if he pleaded guilty there would not be a trial of any kind and his right to confront witnesses against him (Rule 402(a)(4)), and where court failed to inquire whether force or threats were used to obtain the plea (Rule 402(b)) (People v. Shepard (1973), 10 Ill. App. 3d 739, 741, 295 N.E.2d 310, 312 (record in no way indicated, nor did defendant, previously convicted of felonies and no stranger to criminal justice system, even contend guilty plea was not understanding^ and voluntarily made), and People v. Krassel (1973), 12 Ill. App. 3d 64, 66-67, 298 N.E.2d 384, 386); (6) his right to plead not guilty or to persist in that plea (Rule 402(a)(3)), that if he pleaded guilty there would not be a trial of any kind and he would be waiving his rights to a jury trial and to confront witnesses against him (Rule 402(a)(4)) and the failure of the court to determine the plea was voluntary (Rule 402(b)) (People v. Paproth (1974), 18 Ill. App. 3d 385, 387-89, 309 N.E.2d 706, 708-09 (relying on above-quoted language of Mendoza)); and (7) his right to persist in his plea of not guilty (Rule 402(a)(3)), and failure to inquire of defendant whether any force or threats were used to obtain the plea (Rule 402(b)) (People v. Pritchett (1974), 23 Ill. App. 3d 1084, 1086-87, 320 N.E.2d 44, 46 (although court failed to comply with rule in these respects, “substantial compliance” is sufficient compliance as to allow reviewing court to find from record that defendant voluntarily and understandingly entered plea of guilty; nothing in record indicated plea was other than free and voluntary nor did defendant so contend in appeal)). See also People v. Hudson (1972), 7 Ill. App. 3d 800, 804, 288 N.E.2d 533, 536 (in challenge under 87 Ill. 2d R. 402(c), purely technical error which does not prejudice defendant will not be deemed less than substantial compliance and cause to reverse conviction).

However, in other cases, the Illinois courts have considered the substantial compliance standard of Rule 402 not to have been met when the trial court failed to admonish the defendant in various respects, viz., (1) his rights to trial by jury and to confront the witnesses against him (Rule 402(a)(4)) (People v. Bolden (1972), 7 Ill. App. 3d 730, 732, 288 N.E.2d 541, 542-43 (distinguishing Mendoza on issue herein of failure to admonish of right to jury trial, as words “jury trial” were omitted here, whereas in Mendoza they were used in the court’s questioning of defendant; explanation of right of confrontation adds to assurance of defendant’s understanding of his right to trial)); (2) the nature of the charge against him (Rule 402(a)(1)), his right to persist in his plea of not guilty (Rule 402(a)(3)), or that by pleading guilty he waived his right to a jury trial (Rule 402(a)(4)) (People v. Spencer (1974), 16 Ill. App. 3d 899, 307 N.E.2d 212 (although defendant was warned “he was giving up his right to trial”)); (3) Ms rights to plead not guilty (Rule 402(a)(3)) and to a jury trial (Rule 402(a)(4)), and that by pleading guilty he waives these rights (People v. Avery (1974), 16 Ill. App. 3d 986, 988-89, 307 N.E.2d 213, 215-16 (not in compliance with rule where judge failed to inquire how defendant wished to plead, assumed he had pleaded guilty and conditioned withdrawal of assumed plea on court’s refusal to accept it; not substantial compliance where court made no specific explanation of right to jury trial, instead presenting written form waiving jury and pleading guilty, and merely asking defendant on its return if it contained his signature); see also People v. Carle (1972), 8 Ill. App. 3d 56, 288 N.E.2d 876 (insufficient that defendant signed waiver of jury and plea of guilty form and judge questioned him on authenticity and voluntariness of signature)); (4) the nature of the charge (Rule 402(a)(1)), his right to confront witnesses (Rule 402(a)(4)), nor did the judge determine the factual basis for the plea (Rule 402(c)) (People v. Cummings (1972), 7 Ill. App. 3d 306, 287 N.E.2d 291 (transcript revealed trial judge did not give admonitions by addressing defendant in open court; 13-paragraph printed “plea of guilty” form serving as express waiver of rights cannot substitute for this duty of trial court)); (5) his right to plead not guilty (Rule 402(a)(3)) and that if he did plead guilty he waived the right to confront witnesses against him (Rule 402(a)(4)), and where court did not question defendant personally in open court to determine whether any force, threats, or promises were used to obtain the plea (Rule 402(b)) (People v. Thompson (1973), 10 Ill. App. 3d 455, 294 N.E.2d 104); (6) his right to plead not guilty (Rule 402(a)(3)), and that if he did plead guilty he waived his right to jury trial and to confront witnesses against him (Rule 402(a)(4)), and court did not question defendant to determine whether any force, threats or promises apart from plea agreement were used to obtain plea (Rule 402(b)) (People v. Kehoe (1973), 10 Ill. App. 3d 955, 295 N.E.2d 292); and (7) his rights to persist in his plea of not guilty (Rule 402(a)(3)), and to be confronted by witnesses against him (Rule 402(a)(4)), no determination was made on whether any force, threats, or promises were made to obtain the plea (Rule 402(b)), and there was not a sufficient factual basis for the plea (Rule 402(c)) (People v. Meredith (1974), 21 Ill. App. 3d 305, 307-08, 314 N.E.2d 612, 614 (defendant’s post-conviction petition alleged court had not properly admonished him on consequences of plea and he had not knowingly pleaded guilty)).

It is noted that cases focusing on challenges to guilty pleas under Rule 402(b), determining voluntariness of the plea, are likewise divergent as to what suffices to meet the substantial compliance standard of the rule. Compare People v. Hendrickson (1973), 11 Ill. App. 3d 219, 296 N.E.2d 751 (plain error where trial court failed to question defendant personally in open court to determine whether any force, threats or promises had been made to obtain plea), People v. Hintze (1973), 14 Ill. App. 3d 1077, 303 N.E.2d 22 (compliance with rule required without regard to whether defendant would be prejudiced by noncompliance), People v. Garcia (1972), 8 Ill. App. 3d 542, 289 N.E.2d 637 (both rule and its avowed purpose, to preclude or reduce likelihood of collateral attack on judgments, are operative in areas where prejudice would be difficult to prove and fairness may not depend on absence of prejudice as a general rule), and People v. Scott (1973), 9 Ill. App. 3d 626, 292 N.E.2d 583 (no prejudice shown to defendant and no assertion that force, threats or promises had been made to obtain plea; remanded for limited purpose of making such inquiries of defendant in open court); to People v. Compton (1973), 16 Ill. App. 3d 196, 305 N.E.2d 582 (abstract of opinion) (language used in inquiry of voluntariness not determinative if record affirmatively discloses defendant entered plea understanding^ and voluntarily; affirming, noting as of some significance fact that defendant did not claim plea was coerced or point to record facts which could lead to that conclusion), and to People v. Ellis (1974), 16 Ill. App. 3d 282, 284-87, 306 N.E.2d 53, 55-57 (defendant sufficiently admonished so plea was understanding^ and voluntarily made; affirming, noting defendant did not contend plea was coerced or that threats, coercion or promises were made to obtain plea; court stated its disagreement with Hendrickson, Hintze, Garcia and Scott), aff’d (1974), 59 Ill. 2d 255, 320 N.E.2d 15 (concluding after review of record that except for those included in plea agreement, defendant was made no promises and plea was not result of any force or threats; without comment on other cases).

The decisions of this court in People v. Newbern (1974), 16 Ill. App. 3d 1037, 307 N.E.2d 439, and People v. Porter (1978), 61 Ill. App. 3d 941, 944-45, 378 N.E.2d 788, 790-91, are pertinent to consideration of defendant’s claims under Rule 402(a).

In Newbern, the defendant urged that the trial court’s admonition on the right to trial by jury prior to acceptance of the plea of guilty did not comply with Rule 402(a)(4). The court had admonished defendant as to the offense charged and the penalty which might be imposed. The defendant pleaded guilty and the court continued its admonishments of the penalty and inquired whether the plea was voluntary. The trial court then asked whether, “knowing of all these matters and knowing of your right to be tried by a jury on this charge,” the defendant persisted in his plea of guilty. The defendant responded affirmatively, stipulations were entered on the factual basis of the plea, and a written waiver of jury trial was signed. On appeal, the State argued that the waiver of jury trial had been explained to the defendant at the time of a waiver of jury upon another charge then pending against him. This court rejected that argument on the following reasoning:

“We find, however, that such explanation was in the context of the waiver of jury trial preliminary to proceeding upon a bench trial. At such time of the prior waiver, there had been no occasion to admonish within the context of the Supreme Court Rule that upon a plea of guilty there would be no trial at all, and that such plea served as a waiver of defendant’s right to be confronted by the witnesses against him. In so far as defendant had observed at the bench trial, witnesses had been examined and cross-examined in his behalf. We must conclude that the record does not affirmatively show that the court gave the admonitions concerning jury waiver within the total context of the Supreme Court Rule.” (Emphasis added.) (People v. Newbern (1974), 16 Ill. App. 3d 1037, 1038, 307 N.E.2d 439, 440.)

Judgment was therefore reversed and the cause remanded to permit defendant to plead anew.

At the change-of-plea hearing in Porter, the offense with which the defendant was charged, theft, was never referred to by name but only by number (Rule 402(a)(1)): The court failed to admonish defendant as to the minimum and maximum sentence or of his right to trial (Rules 402(aX2), (aX4)). The record showed no inquiry concerning the plea of guilty. Nor did it clearly reflect a factual basis for the plea (Rule 402(c)). The State argued that a review of the entire record on the charge, including the arraignment in conjunction with careful admonitions given by the court on other charges not involved in the appeal, showed substantial compliance with Rule 402. This court disagreed and stated:

“To hold that admonitions given at earlier proceedings in a particular case or in other concurrent cases carry over to a subsequent hearing on a plea of guilty violates the spirit and purpose of Rule 402. The decision to enter a plea of guilty is a crucial one for a defendant and the record must clearly and affirmatively show that the plea was intelligently and understandingly made within the requirement of Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709. While we note that Rule 402 requires only substantial, not literal compliance with its provisions (People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559), the fact that certain admonitions may have been given to the defendant at earlier proceedings cannot be relied upon to remedy the lack of any admonitions at the plea hearing in the instant case. Accordingly, we conclude that the trial court failed to comply with the requirements of Rule 402.” (People v. Porter (1978), 61 Ill. App. 3d 941, 945, 378 N.E.2d 788, 791.)

The order of the trial court was reversed insofar as it denied defendant’s motion to vacate judgment and withdraw his plea of guilty in the theft case, and the cause was remanded so that the defendant might be permitted to plead anew; an additional order revoking defendant’s probation predicated upon his former plea of guilty in the theft case was also reversed and remanded for further proceedings.

In view of these authorities, we turn to the Rule 402(a) claims presented by the defendant.

Defendant claims the trial court did not admonish him that he had the right to plead not guilty and to persist in that plea. A review of the proceedings at which the plea of guilty was taken shows that defendant was not so admonished. Hence, there was no compliance with Rule 402(a)(3).

Defendant next claims that the trial court did not admonish him that if he pleaded guilty there would not be a trial of any kind and that he would be waiving his right to jury trial and his right to confront witnesses against him. A review of the record of the guilty plea proceedings shows that the court did not so admonish the defendant personally in open court, but simply inquired of defense counsel whether he had fully advised defendant of his right to trial. Counsel said he had and that defendant was waiving the right. The response of counsel does not, however, disclose the scope of the admonition to defendant within the context of the rule. Asked by the court whether he had any question in that respect, defendant answered in the negative.

We find that this exchange does not amount to compliance with the requirements of Rule 402(a)(4). Language in People v. Domico (1959), 15 Ill. 2d 590, 595, 155 N.E.2d 591, 594, cert. denied (1959), 360 U.S. 904, 3 L. Ed. 2d 1256, 79 S. Ct. 1288; People v. Weakley (1970), 45 Ill. 2d 549, 553-54, 259 N.E.2d 802, 805; and People v. Larrabee (1972), 7 Ill. App. 3d 726, 729, 288 N.E.2d 538, 540, support this view. The fact that the terms “right to trial by jury” and “right to trial by the court sitting alone, without a jury” were used by the trial court in addressing defendant at an earlier proceeding in this cause does not change our view. People v. Porter (1978), 61 Ill. App. 3d 941, 378 N.E.2d 788.

Domico stated that in People v. Washington (1955), 5 Ill. 2d 58, 124 N.E.2d 890, the court found that it could not indulge in the presumption that defendant’s counsel had explained the consequences of the guilty plea, but the requirements must be reasonably spelled out.

In Weakley, the court held the defendant entitled to withdraw the plea of guilty, including waiver of jury, and have a trial under the charges of the indictment, as the record did not show that the court had advised him as to the maximum penalty provided by law which could be imposed on acceptance of the plea of guilty. This, although the court had asked defense counsel in the presence of the defendant whether he had explained to the defendant the question of the penalty involved, and defense counsel answered that he had.

In Larrabee, the court remarked that it is the duty of the trial court to admonish the defendant pursuant to Rule 402(a) concerning the effect and results of entering a guilty plea, and it should not be delegated or allowed to go by default to either the prosecutor or the defense attorney. The Larrabee court distinguished Weakley, stating that therein the trial court did not know but only presumed that defense counsel’s out-of-court explanation (of penalty possibilities), which it did not audit, was accurate and adequate. By contrast, in Larrabee, the prosecutor questioned the defendant on the record as to Rule 402 matters, eliciting responses indicative of his understanding. The court found these record inquiries sufficient to affirm the judgment. Accord, People v. Compton (1973), 16 Ill. App. 3d 196, 305 N.E.2d 582 (abstract of opinion) (court’s failure to personally admonish defendant on possible penalty at hearing at which guilty plea was accepted not reversible error; penalty was reaffirmed in presence of defendant and his counsel before close of hearing and his counsel acknowledged defendant had been so advised).

It is the defendant’s understanding which the rule seeks to ensure. In People v. Robinson (1976), 63 Ill. 2d 141, 145, 345 N.E.2d 465, 467, the court stated:

“It must be remembered that the requirements of Rule 402(a)(1) are two-pronged. The court by addressing the defendant in open court, (1) must inform him of the nature of the charge, and (2) must determine that he understands the nature of the charge. There has been a tendency to focus only on the admonitions required to accomplish the first of these, whereas it is just as important that the court determine that the defend ant understands the nature of the charge to which he is pleading guilty.” (Emphasis added.)

This language is equally applicable to matters set forth in other subsections of Rule 402(a). As the court stated in People v. Billops (1974), 16 Ill. App. 3d 892, 894, 307 N.E.2d 206, 208:

“The purpose of these [Rule 402(a)] admonitions is to assure that the defendant fully understands what he is pleading to, what rights he is waiving by so pleading, and what the results of his action might be. It is defendant’s understanding that is the crux of this section.”

Likewise, in the supplemental opinion in People v. Rondeau (1972), 8 Ill. App. 3d 286, 289, 291 N.E.2d 666, 668, the court stated:

“A trial court has a duty to see that defendant’s waiver of the right to trial by jury ‘is not only expressly but also understandingly made,’ (People v. Fisher, 340 Ill. 250, 265 (1930). See also, People v. Surgeon, 15 Ill. 2d 236, 238 (1958); People v. Sailor, 43 Ill. 2d 256, 260 (1969); County of McLean v. Kickapoo Creek, Inc., 51 Ill. 2d 353, 355-56 (1972).)”

The inquiry here of defense counsel not only fails to inform the defendant of his rights under Rule 402(a)(4), but does nothing whatsoever to determine that the defendant does, in fact, understand these rights.

In addition to these deficiencies in Rule 402(a) admonishments, neither did the court follow the requirements of subsection (d) of the rule, concerning plea discussions and plea agreements reached by the prosecution and defense. At the opening of the change-of-plea hearing, the trial court remarked that defense counsel had suggested each of the charges were to be the subject of a plea pursuant to negotiations between the defense and the State’s Attorney. Defense counsel stated the agreement to the court, as previously set forth, and the prosecutor agreed it was correctly stated. The court then made inquiries, as quoted above, heard the factual basis to which the defendant and his counsel agreed, and accepted the plea of guilty. At the inception of the sentencing hearing, the following exchange took place:

“[The Court]: *** Gentlemen, if the files correctly inform me, [defendant] entered here, for practical purposes as regards this morning’s sentencing, an open plea to driving while under the influence of intoxicating liquor.

Am I correct?

[Prosecutor]: Yes, Judge, but there was an agreement by the People that we would not recommend a jail sentence.

[Defense Counsel]: That’s correct.

THE COURT: Well, I’m sure it was explained at that time to [defendant] that recommendations or promises of any sort do not necessarily bind me, as Judge; is that correct, [defense counsel]?

[Defense Counsel]: I believe that’s correct, Your Honor.”

In arguing against supervision, the prosecutor noted that he was bound by his recommendation that defendant not be sentenced to jail.

In denying defendant’s motion to withdraw the guilty plea and vacate the judgment sentence, the court stated by letter opinion:

“There had been negotiations between the State’s Attorney and defense counsel the results of which were that four charges were dismissed and the defendant pled guilty to the fifth. The State agreed not to seek or recommend a jail term, but ‘otherwise the plea would be open, ’ and there was a request that the matter be referred for presentence investigation. That is not, in my opinion, a ‘negotiated plea’ to the charge of DUI to which defendant pleaded guilty.
* * *
Look at page 2 of the transcript of the sentencing hearing. [Defense counsel] acknowledge that [defendant] had been told that recommendations or promises did not bind the judge.”

Contrary to the court’s opinion, there was a negotiated plea. The dismissal of other charges, here four in number, reflects per se negotiations when agreed upon prior to the making of the plea. Black’s Law Dictionary defines “negotiated plea” as:

“The effect of plea bargaining in which the criminal defendant agrees to plead guilty to the charge or to a reduced charge in return for a recommendation from the prosecutor of a disposition less severe than possible under the particular statute.” (Emphasis added.) (Black’s Law Dictionary 934 (5th ed. 1979).)

The fact that defendant and the State do not concur as to a specific sentencing recommendation, but only to exclude one or more sentencing alternatives, such as imprisonment, does not detract from the existence of an agreement.

Defendant argues he was not advised by the court at the change-of-plea hearing, as required by Rule 402(d)(3) (87 Ill. 2d R. 402(d)(3)), that it was not bound by the terms of the plea agreement — to exclude imprisonment as a possible sentence — but could impose any sentence legally available for the offense. On review of the record, we find that the court did not state its concurrence or conditional concurrence in the terms of the agreement, so as to require the procedure of Rule 402(d)(2) (87 Ill. 2d R. 402(d)(2)). Yet there was no compliance with the requirement that, in the case of plea discussions and agreements, the court must inform the defendant in open court that it is not bound by the agreement and could impose any sentence legally available for the offense. From a thorough reading of the record it is clear that defense counsel’s assent in questioning by the court at the sentencing hearing, that he believed defendant had been so admonished, was unfounded. In fact, before accepting the plea the judge said absolutely nothing to defendant in regard to how he could handle the sentencing recommendation of the State pursuant to the plea agreement.

These were precisely the circumstances in People v. Willis (1976), 39 Ill. App. 3d 288, 349 N.E.2d 435, where the court reversed the judgment and remanded the cause so that the defendant could plead anew.

As the court stated in People v. Lambrechts (1977), 69 Ill. 2d 544, 556-57, 372 N.E.2d 641, 648, the purpose of this admonition is to eliminate the possibility that the defendant might infer from the judge’s awareness of the agreement that the judge has concurred therein.

In People v. Collins (1981), 100 Ill. App. 3d 611, 613-14, 426 N.E.2d 1274, 1276, this court stated:

“Rule 402(d)(3) governs the situation where, as here, the court has either declined to commit himself to follow the agreement or has not been consulted. Under these circumstances, when the plea agreement is presented, the court is required to inform the defendant that the court is not bound by the agreement and that ‘if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.’ (Emphasis added.) (73 Ill. 2d R. 402(d)(3).) The rule clearly requires the court to make both explanations and to expressly give the defendant an opportunity to persist in or withdraw the plea.
* * *
We deem the crucial due process aspect of the procedure under Rule 402(d) to be the requirement that the court must tender to a defendant the opportunity (1) to affirm or withdraw a guilty plea entered upon a court’s subsequently withdrawn concurrence or conditional concurrence in a plea agreement, or (2) to persist in or withdraw a guilty plea entered on a plea agreement after a court that has not concurred in the agreement has explained its right to disregard the agreement and the consequences of its doing so. We note that the rule requires these opportunities to be offered to the defendant before the court has indicated what its sentence will be. Thus, when the sentence is imposed, a dissatisfied defendant is in no position to complain.
We consider the necessity of properly following the procedure to be so important that the failure to follow it here was plain error.”

In Collins, the defendant was informed that the court was not bound by the plea agreement as to sentencing, but was not thereafter tendered the opportunity to persist in or withdraw the guilty plea entered on the plea agreement. In that respect, Collins was, of course, distinguishable from Lambrechts, wherein the trial court had both properly informed the defendant that it was not bound by the plea agreement as to sentencing, and given him the opportunity to persist in or withdraw the plea of guilty.

Neither does the record show that the court confirmed the terms of the plea agreement by questioning the defendant personally in open court as required under Rule 402(b).

After careful consideration of the Illinois decisions concerning Rule 402, we conclude that the deficiencies in admonitions in this case must be deemed less than substantial compliance with the rule. Although Hendrickson, Hintze, Garcia and Scott suggest it is unnecessary that a defendant allege or show prejudice or involuntariness in entering his guilty plea based upon deficiencies in the court’s Rule 402 admonitions in order to prevail, this case is distinct from such cases as Mendoza, Dudley, Unger, Shepard, and Pritchett, which referred to the absence of such an allegation or showing in finding substantial compliance with Rule 402 despite alleged deficiencies in admonishments thereunder. Such an allegation was made by the defendant in this case.

While we recognize the volume of cases with which our trial courts must deal, the admonishments and procedures provided in Rule 402 may not be regarded as superfluous. A fundamental function of the rule is to preserve a record which reflects an intelligent and voluntary plea as required by due process of law. (People v. Wise (1975), 26 Ill. App. 3d 158, 161, 331 N.E.2d 302, 305.) Compliance with its terms serves to preclude or reduce the likelihood of collateral attack upon the judgment for reasons which could have been obviated by adequate admonition and inquiry at the time the plea was accepted and sentence imposed. (People v. Garcia (1972), 8 Ill. App. 3d 542, 289 N.E.2d 637.) The fact that only substantial compliance is required by Rule 402 is no occasion to disregard its terms.

We have prepared this compendium of authority to call the attention of the trial courts once again to the fact that Rule 402 admits of no exceptions based upon the nature of the charge. It applies with equal force to all pleas of guilty, whether to felonies or misdemeanors. We are aware that this condition imposes a considerable burden on high-volume courts where the daily call may run upwards of a hundred cases or more in this district, and even more in larger communities elsewhere. Nonetheless, the rigor of the Rule must be satisfied.

We have confidence, however, based upon our prior observation of cases coming before this court, that the trial judges will be able, with a modicum of inventiveness and imagination, to overcome the time restraints which are the necessary result of substantial compliance with the Rule. Through the use of checklists on the bench, admonitions en masse where necessitated in high-volume courts (compare People v. Henderson (1982), 104 Ill. App. 3d 62, 432 N.E.2d 660; People v. Penermon (1982), 108 Ill. App. 3d 73, 438 N.E.2d 946), and other similar procedures, pleas of guilty to lesser offenses may be expeditiously handled. What is most needed is a standard procedure for admonition at the trial level; this will yield in turn a more accurate and perceptive standard on review.

In view of our resolution of this issue, we need not address the sentencing issue raised by the defendant. We are constrained to comment, however, that a defendant’s past use of hospital, mental health or alcohol detoxification facilities may not be equated with a record of conviction for the purpose of determining disposition.

The order denying defendant’s motion to withdraw his plea of guilty and vacate the judgment of guilt and sentence is reversed and the cause remanded with directions to vacate the judgment and to permit the defendant to plead anew.

Reversed and remanded with directions.

GREEN and WEBBER, JJ., concur.


author: JUSTICE KASSERMAN JUSTICE HARRISON,

text:
    WALTER C. GAMLIN, Plaintiff, v. PAUL BIEGLER, Defendant and Third-Party Plaintiff-Appellant (Clarence Wallace et al., Third-Party Defendants-Appellees).
    Fifth District
    No. 5—83—0654
    Opinion filed November 9, 1984.
    Rehearing denied December 3, 1984.
    HARRISON, J., dissenting.
    David A. Bloch, of Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, of Edwardsville, for appellant.
    John L. McMullin and Thomas J. Horn, both of Brown, James & Rabbitt, P.C., of St. Louis, Missouri, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant and third-party plaintiff, Dr. Paul Biegler, appeals from orders of the circuit court of St. Clair County dismissing his third-party complaint against Tilghman Tade, Clarence Wallace, and Stephen Tade. This cause previously has been appealed to this court, but it was then determined, in an unpublished opinion filed pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23), that the order appealed from was not a final disposition of the third-party action and, therefore, was not appealable. Gamblin v. Biegler [sic] (1983), 112 Ill. App. 3d 1174 (Rule 23 order).

The record before us, which consists, inter alia, of the pleadings, depositions, and answers to interrogatories, reveals the following: The original complaint in this cause was filed by Walter C. Gamlin, plaintiff, for injuries he allegedly received on December 21, 1979, due to the negligence of Dr. Biegler, who “consumed excessive amounts of alcoholic beverages” and consequently fell on the plaintiff, knocking plaintiff to the ground and breaking the plaintiff’s wrist. It appears that Dr. Biegler, a dentist, was a guest at a Christmas party given by Tilghman Tade at Mr. Tade’s place of business, Tade Dental Laboratory. Dr. Biegler, who was a client of Tade Dental Laboratory, became intoxicated and “passed out” at the party. Tilghman Tade directed three of his employees, Walter C. Gamlin, plaintiff, and Clarence Wallace and Stephen Tade, to take Dr. Biegler home. The three men transported Dr. Biegler to his residence and propped him on the rear bumper of Dr. Biegler’s car. According to Gamlin, when Clarence Wallace and Stephen Tade left to open the door to Dr. Biegler’s house, Dr. Biegler stood up and fell on top of the plaintiff, causing the injury to plaintiff complained of in the original suit.

In his second amended third-party complaint, Dr. Biegler based his theory of recovery against Tilghman Tade on the fact that “as the employer of the plaintiff [Gamlin], [Mr. Tade] failed to provide plaintiff with a safe place to work, in that he failed to provide plaintiff with a sufficient number of competent co-workers to perform the work of transporting [Dr. Biegler] from the premises ***.” Dr. Biegler also alleged that Clarence Wallace and Stephen Tade acted negligently because “in the exercise of reasonable care [they] should have known, that [Dr. Biegler] was likely to act erratically and knock plaintiff to the ground, if plaintiff were left alone with [Dr. Biegler].”

Tilghman Tade, Clarence Wallace, and Stephen Tade all filed motions to dismiss Dr. Biegler’s third-party complaint. These motions were granted by the trial court and Dr. Biegler perfected this appeal.

This appeal presents the issue of whether Dr. Biegler’s third-party complaint states a cause of action against Tilghman Tade, Clarence Wallace, or Stephen Tade under the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.).

Dr. Biegler first contends that his third-party complaint alleged a sufficient duty of care owed by Tilghman Tade to the plaintiff to withstand a motion to dismiss. Dr. Biegler maintains that Tilghman Tade, as the plaintiff’s employer, owed the plaintiff a duty to furnish a safe place to work and that this duty included supplying a sufficient number of competent co-employees to carry an intoxicated customer home from a Christmas party.

The third-party defendants suggest that Dr. Biegler’s action is contrary to the decided cases. They argue, as they did in the trial court, that under Wienke v. Champaign County Grain Association (1983), 113 Ill. App. 3d 1005, 447 N.E.2d 1388, Dr. Biegler’s cause of action must be dismissed. However, Dr. Biegler contends, and we agree, that Wienke is distinguishable. Wienke concerns liability imposed on persons “who, knowing the driver to be intoxicated and likely to drive recklessly, either furnish the driver with intoxicants or aid him in getting to his automobile, or both.” (113 Ill. App. 3d 1005, 1006, 447 N.E.2d 1388, 1389.) This is not the situation we face in the instant case.

We reject Dr. Biegler’s contention that an employer’s duty to provide a safe place for his employees to work includes a requirement that the employer appoint an adequate number of employees to accompany an intoxicated client home from an office party. We find the cases relied upon by Dr. Biegler, such as Supple v. Agnew (1901), 191 Ill. 439, 61 N.E. 392, to be inapposite. The application of the rationale of such cases to the case at bar would be an unwarranted extension of an employer’s duty to employ a sufficient number of employees to perform the work for which the employees were hired.

In this regard, the question of whether a duty exists in a particular case and the scope or range of protection of such duty are questions of law. (Lemings v. Collinsville School District No. 10 (1983), 118 Ill. App. 3d 363, 368, 454 N.E.2d 1139, 1142 (Jones, J., concurring).) The determination of whether a duty exists depends not only on the foreseeability of harm but involves other policy considerations as well. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 354-55, 367 N.E.2d 1250, 1253-54; Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047, 462 N.E.2d 502, 506.) As stated by the court in Renslow, citing Prosser, Torts sec. 53, at 325-26 (4th ed. 1971), “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which leads the law to say that a particular plaintiff is entitled to protection. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 356, 367 N.E.2d 1250, 1254.) Among these policy considerations are the magnitude of the risk involved in the defendant’s conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant. Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 662-63, 465 N.E.2d 513, 519.

In the case at bar, we conclude that the duty of an employer to provide his employees a safe place to work does not require such employer to furnish sufficient personnel to accompany an intoxicated' client home from an office party in order to protect those employees from injuries resulting from the inebriation of such intoxicated client. Specifically, we find that the injury suffered by the plaintiff in the instant case falls beyond the scope of Tilghman Tade’s duty, as an employer, to furnish his employees a safe place to work.

In so holding, we note that to impose such a duty upon the employer in the case at bar would be to punish him for attempting to assist such intoxicated client or customer, with resulting benefit to the intoxicated client. We conclude that this would not amount to sound social policy. Furthermore, while the absence of a qualitative difference in the nature of the conduct of the guilty parties is not ordinarily fatal to a claim for contribution (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349, 459 N.E.2d 935, 938), we are mindful of the fact that it was Dr. Biegler’s voluntary intoxication which created the circumstances from which plaintiff’s injury arose.

Dr. Biegler also contends that he properly alleged a duty owed the plaintiff by his co-employees Clarence Wallace and Stephen Hade. We disagree. Again, we are not persuaded that any duty of due care owed to the plaintiff by his fellow employees extends to the circumstances before us. We conclude that the injury plaintiff incurred was beyond the scope of any duty owed to plaintiff by the plaintiff’s fellow employees to protect plaintiff from injury resulting from the fall of an intoxicated client or customer of their employer.

Moreover, were we to conclude that the plaintiff’s injury fell within the scope of a duty owed to plaintiff by plaintiff’s co-employees, we would, nevertheless, find that Dr. Biegler has failed to properly allege that the plaintiff’s co-employees were guilty of a breach of such duty. In an action founded upon a breach of duty, facts must be pleaded which establish such a breach. (Scroggins v. Allstate Insurance Co. (1979), 74 Ill. App. 3d 1027, 1031, 393 N.E.2d 718, 721.) In the instant case, we conclude that merely leaving the plaintiff alone with the intoxicated Dr. Biegler, as was alleged, would not amount to a breach of any duty of care owed to the plaintiff by his co-employees.

We find that the trial court properly granted the third-party defendants’ motions to dismiss, and we affirm its judgment.

Affirmed.

JONES, J., concurs.

JUSTICE HARRISON,

dissenting:

I cannot agree with the majority’s broad conclusion that, as a matter of law, an employer is not required to appoint an adequate number of employees to accompany an intoxicated person home from an office function. It has long been recognized in Illinois that among the duties owed by an employer to his employees “is that of employing a sufficient number to do the work so far as may be necessary to enable them to do it in safety.” (Supple v. Agnew (1901), 191 Ill. 439, 447, 61 N.E. 392.) While it might ultimately be established that that duty was not breached in this case, the only question before us at this time is whether the complaint was properly dismissed for failure to state a cause of action. It is well settled that, in construing a motion to dismiss for failure to state a cause of action, the complaint must be liberally construed, all facts well pleaded are admitted as true, and all reasonable inferences are drawn from them. (Agee v. First National Bank (1979), 68 Ill. App. 3d 794, 796, 386 N.E.2d 899.) A motion to dismiss should not be granted unless it is clearly evident that no set of facts under the pleading could exist which would entitle the plaintiff to relief. (Courtney v. Board of Education (1972), 6 Ill. App. 3d. 424, 425, 286 N.E.2d 25.) Given the recognized obligation of the employer to utilize enough employees to insure the safety of the workplace, and the clear allegation that that duty was breached here, the majority’s conclusion that the complaint does not state a cause of action is simply incorrect. Because the complaint must be liberally construed, the cause of action alleged against the co-employees was also sufficient to withstand a motion to dismiss, given the duty of care owed by one employee to another. Botthof v. Fenske (1935), 280 Ill. App. 362, 366.