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THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

								)	Circuit Court of 

		Plaintiff-Appellee,			)	Cook County.

								)

	v.							)	No. 99 C660853

								)

ROBERT VASQUEZ, 					)	Honorable

								)	George M. Morrissey,

		Defendant-Appellant.		)	Judge Presiding.

	JUSTICE REID delivered the opinion of the court:

	The defendant, Robert Vasquez, pled guilty to two counts of

aggravated criminal sexual abuse and was sentenced to serve two

concurrent extended nine-year terms of imprisonment based on a

prior conviction pursuant to section 5-5-3.2(b) of the Unified

Code of Corrections (the Code) (730 ILCS 5/5-5-3.2(b)(West 1998))

and section 5-8-2 of the Code (730 ILCS 5/5-8-2(West 1998)).  On

appeal, Vasquez maintains his guilty pleas should be vacated

because: (1) the trial court failed to properly admonish him as

to the nature of the charges or of the maximum and minimum

sentences prescribed by law as required by Supreme Court Rule

402(a)(177 Ill. 2d R. 402(a)), (2) a per se conflict of interest existed where his attorney argued her own ineffectiveness, and

(3) section 5-8-2 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).  For the reasons that follow, we reverse the decision of the trial

court.

THE FACTS

	On June 10, 1999, Vasquez was charged in two separate

informations with aggravated criminal sexual abuse pursuant to

section 12-16(b) and (c)(1)(i) of the Criminal Code of 1961( 720

ILCS 5/12-16(b), (c)(1)(i)(West 1998)).  Vasquez, who was over 17

years old, allegedly sexually abused two minor girls.

	On November 30, 1999, Vasquez entered guilty pleas as to

both charges.  When Vasquez entered his guilty pleas, the

following colloquy occurred:

			"THE COURT:  Furthermore, when you plead

guilty, you give up your right to have any

type of trial in either one of the two cases. 

The State won't be calling witnesses against

you.  Your attorney won't have a chance to

cross examine them.  Your attorney won't have

a chance to call witnesses on your behalf and

you won't have a chance to testify because

when you plead guilty on these two separate

cases there will be no trial.  Do you

understand that?

			Mr. VASQUEZ:	Yes.

			THE COURT:  What's the recommendation on

the cases?

			[Assistant State's Attorney]:  Nine

years.

			THE COURT:  Concurrent on both of them?

			[Public Defender]: Yes.

			THE COURT:  Mr. Vasquez, the State is

recommending and your attorney is

recommending a sentence of nine years in the

Illinois Department of Corrections,

concurrent on both of these cases.  Other

than that recommendation has anybody made you

[sic] any other threats or promises to make you plead guilty?

			MR. VASQUEZ:  No.

			THE COURT:  Are you pleading guilty

freely and voluntarily?

			MR. VASQUEZ:  Yes.

			THE COURT:  State the basis?

			[Assistant State's Attorney]:  Judge,

with respect to the case ending in 6853 the

evidence would establish on March 16th

1999,***, the defendant was present with the

victim at the defendant's father's house.  The victim at the time was 12 years old.  At

that location the defendant French kissed the

victim, rubbed her legs, unsnapped her bra

and fondled the victim's breast.  The

defendant placed the victim's hands on the

defendant's penis through his jeans.

* * *

			With respect to case ending in 6854, the

evidence would establish that on March 15th,

1999, *** the defendant was present with his

eleven year old half sister who is the

victim.  They were in the attic of the

victim's home storing Christmas decorations. 

The defendant told the victim to take off her

overalls which she did. * * * Defendant

removed his pants and asked the victim could

he pop the cherry and give up her virginity. 

The defendant then began rubbing the victim's

legs.  The defendant at that time rubbed his

erect penis on the victim's legs and told her

not to worry if she saw blood.  The defendant

told the victim not to tell anyone or

something would happen.

* * *

			THE COURT:  Mr. Vasquez, do you

understand on these two separate cases those

are the facts you're pleading guilty to?

			MR. VASQUEZ:  But that's not true facts. 

That's not what I signed at the police

station.

			THE COURT:  Are you pleading guilty

because you are in fact guilty?

			MR. VASQUEZ:  Not on all of it, no.

			THE COURT:  Are you pleading guilty

because those facts are true?

			MR. VASQUEZ:  No.

			THE COURT:  We will pass the case."

	The case was then passed.  During this time, Vasquez spoke

with his attorney.  After they spoke, the case was recalled, and

the following occurred:

			"THE COURT:  Mr. Vasquez, the [S]tate's

[A]ttorney had just read in the record the

statement of facts supporting the two

charges.  And you indicated that some of the

facts may have been not what you recall.  We

passed the case so you can talk to your

attorney.  And you recall the facts the

[S]tate's [A]ttorney read into the record?

			MR. VASQUEZ:  Yes.

			THE COURT:  Regarding both of these cases?

			MR. VASQUEZ:  Yes.

			THE COURT:  And do you understand that

those facts are the facts you're pleading

guilty to in each one of these two cases?

			MR. VASQUEZ:  Yes.

			THE COURT:  And are you pleading guilty

in each one of these two cases because those

facts are true?

			MR. VASQUEZ:  Yes.

			THE COURT:  And are you pleading guilty

in each one of these two separate cases

because in fact -– because that is what

happened?

			MR. VASQUEZ:  Yes.

			THE COURT:  There is sufficient basis

for the plea.  It will be a finding of

guilty."

	The trial court, pursuant to an agreement reached between

the State and Vasquez, sentenced Vasquez to two concurrent nine-

year terms of imprisonment.

	On December 20, 1999, Vasquez timely filed a pro se motion to withdraw his guilty pleas and vacate his sentences.  In the motion, Vasquez alleged that: (1) he received inadequate

representation by defense counsel and (2) his pleas were the

result of coercion by defense counsel.

	The trial court appointed the Cook County public defender's

office to represent Vasquez on his motion.  Vasquez was

represented by the same attorney who represented him when he made

his guilty pleas.  On March 3, 2000, Vasquez filed a pro se motion requesting the appointment of different counsel.

	On March 7, 2000, the assistant public defender filed a

supplement to Vasquez' motion to withdraw his guilty plea.  In

the motion, she alleged her own ineffectiveness for failing to

file a motion to quash arrest and suppress evidence, failing to

file a motion to suppress statements, and failing to perform

discovery and obtain letters which defendant believed would have

exonerated him.

	The trial court held a hearing on Vasquez' motion to vacate

his guilty plea.  The trial court initially denied Vasquez'

motion wherein he requested the appointment of different counsel. 

The trial court held that there was nothing in the record which

supported the allegations made in Vasquez' motion.

	The assistant public defender then orally argued the motion

to vacate Vasquez' guilty plea, including the supplemental motion

before the court.  The court denied the motions, and Vasquez

timely filed a notice of appeal.

ANALYSIS

	The general rule is that it is within the sound discretion

of the trial court to determine whether a guilty plea may be

withdrawn, and, on appeal, this decision will not be disturbed

unless the decision is an abuse of that discretion.  People v. Davis, 145 Ill. 2d 240, 244 (1991).

	The State contends that the trial court properly admonished

Vasquez before he entered his guilty pleas.  In particular, the

State asserts the trial court properly admonished defendant

because Vasquez understood the nature of the charges against him,

and the defendant knew that he would receive a sentence of nine

years' incarceration as a result of his negotiating a plea

agreement with the State. 

	Vasquez maintains his guilty pleas must be vacated and this

cause remanded because the trial court failed to properly

admonish him before accepting his guilty pleas as required by

Supreme Court Rule 402(a).  Specifically, Vasquez asserts that

the trial court failed to admonish him as to the nature of the

charges and failed to inform him of the maximum and minimum

sentences prescribed by law.  We agree.

	"Rule 402 was adopted to insure compliance with the

requirements of Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (due process requires that a plea of

guilty must be affirmatively shown to be voluntary and intelligent before it can be accepted)." People v. Kidd, 129 Ill. 2d 432, 443 (1989), citing People v. Hillenbrand, 121 Ill. 2d 537, 554 (1988).  "The record must disclose that the consequences

of a guilty plea have been fully explained to a defendant before the plea may be permitted to stand."  (Emphasis in original.)

People v. Day, 311 Ill. App. 3d 271, 274 (2000), citing Kidd, 129 Ill. 2d at 444.

     The relevant portions of Supreme Court Rule 402 provide:

		"In hearings on pleas of guilty, or in any case in

which the defense offers to stipulate that the evidence

is sufficient to convict, there must be substantial

compliance with the following:

		(a) Admonitions to Defendant. The court shall not

accept a plea of guilty or a stipulation that the

evidence is sufficient to convict 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, including, when

applicable, the penalty to which the

defendant may be subjected because of prior convictions or consecutive sentences[.]" 177

Ill. 2d R. 402(a).

	In Kidd, the defendant pled guilty to nine counts of murder, one count of armed robbery, one count of aggravated arson, and

four counts of concealment of a homicidal death.  The defendant

received the death penalty.  On appeal, the defendant challenged

the adequacy of the admonitions given to him by the trial court

before it accepted his guilty pleas and its subsequent refusal to

permit him to withdraw his guilty pleas. 

	The Kidd court held that the trial court failed to give the defendant the proper admonitions, finding that it failed to 

properly admonish the defendant of the minimum sentence

prescribed by law as required by Rule 402.  Kidd, 129 Ill. 2d at 443. 

	The State argued that under People v. Walker, 109 Ill. 2d 484 (1985), Rule 402 need only be substantially complied with in

order to meet the requirements of Boykin that a guilty plea be made intelligently and voluntarily.  The Kidd court rejected the State's argument and distinguished Walker.  Instead, the court likened its case to that of People v. Ballheimer, 37 Ill. 2d 24 (1967).

	In Ballheimer, during two distinct admonishments to the defendant, the trial court stated that defendant would be

sentenced "'"in accordance with the statute,"'" and that he "'"would be sentenced according to the law."'" Kidd, 129 Ill. 2d at 445-46, quoting Ballheimer, 37 Ill. 2d at 25.  The Ballheimer court held that these statements serving as an admonition were

inadequate.  

	The Kidd court concluded:

		"Ballheimer and Rule 402 mandate that a defendant be advised of both the minimum and maximum sentence

prescribed by law before he can make a knowing and

intelligent decision to plead guilty to a criminal

charge.  By simply telling defendant that whether or

not he would get a life sentence is something

controlled by the statute over which the trial court

has no control, the trial court failed to spell out to

him the minimum sentence prescribed by law.  This

failure clearly means that the admonition in this

instance was not in substantial compliance with Rule

402."  Kidd, 129 Ill. 2d at 446.

	In Day, the defendant moved pro se to withdraw his guilty plea to aggravated battery with a firearm.  The trial court

denied the defendant's motion.  On appeal, the defendant argued

that the trial court failed to admonish him properly under

Supreme Court Rule 402.  The Day court found that the trial court failed to inform the defendant of the nature of the charge, of

the minimum and maximum sentences prescribed by law, or of the three-year mandatory supervised release that would attach to the

defendant's 15-year sentence.  Subsequently, the Day court held that the trial court failed to properly admonish the defendant

before he pled guilty and reversed its decision.  Day, 311 Ill. App. 3d at 274.  

	Section 5-8-2(b) of the Code (730 ILCS 5/5-8-2(b) (West

1998)) Extended Term provides:

			"(b) If the conviction was by plea, it

shall appear on the record that the plea was

entered with the defendant's knowledge that a

sentence under this Section was a

possibility.  If it does not so appear on the

record, the defendant shall not be subject to

such a sentence unless he is first given an

opportunity to withdraw his plea without

prejudice."  730 ILCS 5/5-8-2(b) (West 1998).

	"[T]he statutory provision for extended terms requires that

if a defendant pleads guilty, the record must show that he knew

an extended term was a possibility.  If the record does not so

indicate, he shall only receive an extended term if he is first

given an opportunity to withdraw his plea without prejudice. 

Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-2(b)."  People v. Shuman, 226 Ill. App. 3d 1065, 1067-68 (1992). Cf. People v. Cavins, 288 Ill. App. 3d 173 (1997) (under section 5-8-2(b), it is defendant's burden to withdraw his plea if he so chooses).

	Our review of the record reveals that the trial court

failed to inform Vasquez: (1) of the minimum and maximum

sentences that he was eligible to receive, (2) that he could

receive an extended-term sentence, and (3) that he would be

required to submit to a 10-year period of supervision following

his incarceration.  This was improper.  The trial court's

responsibility under Rule 402 was not negated by the fact that

Vasquez had negotiated a plea agreement with the State.  Rule 402

requires the trial court to "spell out" to the defendant the

maximum and minimum sentences prescribed by law.  Kidd, 129 Ill. 2d at 446.  Here, that was not done, and consequently, Vasquez'

guilty pleas must be vacated and this matter remanded to the

trial court.  

	In view of our decision to reverse, we need not reach the

merits of the remaining issues raised. 

CONCLUSION

	For the foregoing reasons, the decision of the trial court

is reversed.  The trial court is ordered to allow Vasquez to

withdraw his guilty pleas, vacate his conviction and sentence,

and permit Vasquez to plead anew.

	Reversed and remanded.