¶1dissenting:
¶2The court has set aside the judgment of conviction and ordered a new trial on a basis which I find neither legally nor logically justifiable. It does so because the trial judge did not personally explain to the defendant, at the time his plea of guilty was entered, the minimum and maximum terms of the punishment provided by statute.
¶3The trial judge, did, however, as the court acknowledges, question defendant extensively as to the voluntariness of his plea. In the course of that questioning, and in defendant’s presence, the following inquiry was directed by the court to the public defender then representing defendant :
“The Court: And you have explained to him the question of the penalty involved, have you ?
[Public Defender] : I have, Your Honor.”
¶4I agree that this admonition is not in compliance with the statutory requirements, and that a trial judge ought not to rely on the presumed accuracy and adequacy of an attorney’s out-of-court explanation to his client of the penalty for the offense to which the client is pleading guilty. I do not agree that the technical inadequacy of that admonition necessitates a new trial in the circumstances of this case.
¶5The plea of guilty was entered on June 3, 1966, and defendant was subsequently admitted to probation. Five months later a petition to revoke probation was filed as a result of which a 60-day sentence was imposed as a condition of continued probation. Three months thereafter a second petition to revoke was filed, probation was revoked and defendant sentenced to the penitentiary.
¶6It was not until more than two years later (nearly three years after his plea) that defendant for the first time makes any allegation which could possibly be construed as indicating any lack of understanding. That is the allegation in his post-conviction petition that he had incompetent counsel “which took measures which he was unconscious of there [aíc] meaning by using lies and also using trickishs way to get petitioner and defendant to plea \_sic~\ guilty.” That petition was dismissed without an evidentiary hearing.
¶7My colleagues apparently feel compelled to order a new trial because of the inadequacy of the original admonition by the trial judge, although this point was never directly mentioned in the post-conviction petition nor in the trial court argument on the motion to dismiss that petition. But it seems to me the basic question is not whether the trial judge followed a prescribed ritualistic formula; the question is whether defendant understood the penalties provided by law. The trial judge asked defendant’s counsel in defendant’s presence whether counsel had explained the possible penalties to defendant. Counsel said he had and the trial judge chose to rely on that explanation. Concededly, the trial judge should not have done so. But it does not seem to me that this necessitates vacation of the plea and judgment unless defendant was in fact misled. Up to this point there is not even a claim, let alone proof, by defendant that he did not know the penalty, and was misled by the absence of an admonition by the judge.
¶8It is difficult for me to believe that defendant would wait for more than two years to complain of imprisonment if there were actually “lies” and “tricks” employed by his attorney to induce him to plead guilty. It is even more difficult for me to believe that an attorney would deliberately misrepresent to a judge his explanation to defendant. But certainly there is no justification, in my mind, for ordering a new trial with no proof whatsoever that something of this nature occurred.
¶9The point which my colleagues seize upon as a basis for reversal was never brought to the attention of the trial court in the post-conviction proceedings, and no real argument on it is made here. The only allegation in the post-conviction petition which could possibly be thought to bear upon this is the statement that petitioner’s counsel used “lies” and “triclcish ways” to induce petitioner’s plea. Such a petition is, in my judgment, totally insufficient to enable a court to make an intelligent determination as to whether an evidentiary hearing is necessary. (People v. Ashley, 34 Ill.2d 402.) As we pointed out in People v. Slaughter, 39 Ill.2d 278, it was the duty of counsel here to confer with petitioner and then amend the pro se petition to adequately inform the court of the specific bases upon which petitioner sought relief. And those bases should be factual allegations sufficiently specific to sustain a prosecution for perjury if it is proven that they were false and made with knowledge of their falsity.
¶10What this court has actually done is to reverse this conviction and require a trial four years after the plea of guilty and at a time when a trial is quite likely a practical impossibility because of the absence of witnesses or their inability to recall the facts. The court accomplishes this without even a suggestion from petitioner that he did not understand the penalty. This result is apparently deemed necessary solely because the trial judge failed to personally admonish the defendant as to the penalty prescribed by statute, and without inquiry into the only real question: Was defendant misled? This action, in my judgment, is totally unwarranted and is precisely the type of ritualistic formalism which is bogging down our trial courts and overburdening our own docket, I would affirm, or at most, remand to require what should have been done by defense counsel in the trial court originally — amend the petition to state, in understandably factual form, the basis upon which petitioner seeks relief.