APPEAL from the Circuit Court of Cook County; the Hon. JOHN
GUTKNECHT, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
In September of 1960 the defendant, James Washington, pleaded guilty to an indictment which charged him with murder. He was sentenced to imprisonment in the penitentiary for 25 years. On September 3, 1965, he filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1965, chap. 38, par. 122-1 et seq.), in which he alleged that he had been beaten by two named police officers until he told them that he had murdered the deceased during a robbery, but that he had refused to sign the written statement of his answers to the questions of the officers. He also alleged that his attorney (who was privately retained) advised him that in his opinion the jury would convict him of murder because of the confession, and that his attorney also informed him that he had discussed the case with the trial judge and the prosecutor and it had been agreed "between the three of them" that if the defendant pleaded guilty he would be sentenced to 14 years in prison. The petition alleged that he pleaded guilty, "relying on the promise of his attorney," and that after he had been sentenced to a term of 25 years his attorney stated that he would have the defendant called back to court and have the sentence reduced to 14 years. The petition stated that because of his incarceration and his indigence he was not able to obtain affidavits from his sister and his attorney, but that the allegations of the petition would be substantiated by the trial record, the testimony of the police officers who beat him, the testimony of defendant's attorney, and the testimony of defendant's sister who was present during his conversations with his attorney.
The post-conviction petition was dismissed on the State's motion without a hearing. None of the witnesses named by the defendant was called to testify. An assistant State's Attorney stated, however, that he had spoken to the defendant's attorney, who had agreed to execute an affidavit but had been too busy to do so. The assistant State's Attorney also reported that the defendant's attorney said that everything in the petition, "as far as promises, is untrue that he did not have any conference with any judge, that he would never operate that way, and so forth."
In this court the State argues that the post-conviction petition was insufficient because it lacked supporting affidavits. The statute provides that the petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." It also provides that counsel shall be appointed to represent an indigent petitioner upon request, and that the petition may be amended. Ill. Rev. Stat. 1965, chap. 38, par. 122-2, 122-4, 122-5.
The petition stated why affidavits were not attached. It identified every person involved by name, and the prisoner's charge that his plea of guilty was based upon a coerced confession and upon the information given to him by his attorney was verified by his own affidavit.
The motion to dismiss the post-conviction petition was the usual mimeographed form. It stated: "1. Petitioner's allegations fail to raise any constitutional questions within the purview of the Post Conviction Hearing Act.
"2. Those of petitioner's allegations which might in their broadest sense be construed as raising such constitutional questions are merely bare allegations which, on numerous occasions, have been held by the Supreme Court of Illinois to be not sufficient to require a hearing."
The first of these grounds is patently untenable. The second was not mentioned during the argument in the trial court upon the motion to dismiss. It is apparently for this reason that the assistant public defender who was appointed to represent the defendant in the post-conviction proceeding did not seek leave to amend or to supply affidavits. Under these circumstances we think that the State may not now argue that the petition was properly dismissed for want of supporting affidavits. If the State is now permitted to depart from the position it took in the trial court, it means only that the defendant's appointed lawyer did not competently represent him because no request was made for leave to amend the post-conviction petition or to supply additional affidavits. (See People v. Shockey, 25 Ill.2d 528; Shockey v. Illinois, 375 U.S. 22, 11 L.Ed.2d 43, 84 S.Ct. 83; People v. Shockey, 30 Ill.2d 147.) A new constitutional issue would thus be injected and those raised by the petition would remain unanswered, to be raised again in State or Federal courts. The time to dispose of those issues is now.
A prosecutor's unfulfilled promise of a reduced sentence, or a misrepresentation by the trial judge as to the sentence to be imposed, invalidates a plea of guilty. "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." Machibroda v. United States, (1962) 368 U.S. 487, 493, 7 L.Ed.2d 473, 478; see also, McKeag v. People, (1956) 7 Ill.2d 586, 588-89; People v. Ross, (1951) 409 Ill. 599, 604; People v. Jameson, (1944) 387 Ill. 367, 377; People v. Moore, (1931) 342 Ill. 316, 320; People v. Carzoli, (1930) 340 Ill. 587, 594. See Comment, 32 U. Chi. L. Rev. 167, 168-78 (1964).
This case differs from the many cases in which we have held that a guilty plea that is the result of improper influence must be vacated. There is here no allegation that either the prosecutor or the trial judge had made any representations to the defendant concerning the sentence that would be imposed upon him. There is, however, the defendant's sworn statement that his attorney, in the presence of the defendant's sister, stated that the judge and the prosecutor had agreed that if the defendant pleaded guilty he would be sentenced to imprisonment for a term of 14 years, and that "relying upon said promise of his attorney" he entered a plea of guilty. And there is the defendant's further sworn statement that after he had been sentenced his attorney stated that he would have him called back to court and have the sentence reduced to 14 years.
If in fact there was an agreement between the defendant's attorney, the prosecutor and the judge that the defendant would receive a sentence of 14 years, the judgment entered upon the plea of guilty can not stand.
The fact that the defendant, at the time he pleaded guilty, stated that he was pleading guilty because he was guilty, is significant but not conclusive. (United States ex rel. McGrath v. LaValle, (2d cir. 1963) 319 F.2d 308, 314; Trotter v. United States, (2d cir. 1966) 359 F.2d 419.) The defendant's sworn allegation may seem improbable in view of the evidence received upon the trial of his co-defendants, (see, People v. Brown, 26 Ill.2d 308; People v. Gunn, 28 Ill.2d 421), but the allegation remains undisputed, and a hearing should be had to determine its truth or falsity.
The judgment is therefore reversed and the cause remanded to the circuit court of Cook County for further proceedings. And since in this case "either the trial judge would be a material witness * * * or would have knowledge de hors the record of the truth or falsity" of the allegations of the petition, (People v. Wilson, ...