APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1969.
In 1964, Harold Newell pleaded guilty to the charge of murder in the circuit court of Cook County and was sentenced to the penitentiary for a term of 40 to 90 years. No direct appeal was taken but in 1966 he filed a pro se petition under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1965, chap. 38, par. 122-1 et seq.), alleging a substantial denial of his constitutional rights. His petition charged, in substance, that a pretrial confession made by him "was the result of intimidation by a named member of the Chicago Police Department and a named official of the State's Attorney's Office and that these officials convinced him that his choice was electrocution or confession." Implicit in this allegation was the assertion that his guilty plea was induced or coerced by the knowledge that this confession would be used against him at trial. The State filed a pleading, designated as a "Motion to Dismiss", challenging the sufficiency of the petition and detailing, by means of attached documents, including the transcript of the trial proceedings, the circumstances surrounding his guilty plea. On the basis of these pleadings and a further affidavit filed by petitioner's sister, the trial court, over argument by the assistant Public Defender representing petitioner, entered the order of dismissal from which this appeal is taken.
It is axiomatic that "A constitutional right, like any other right of an accused, may be waived [citations] and a voluntary plea of guilty waives errors or irregularities that are not jurisdictional." (People v. Dennis, 34 Ill.2d 219, 221.) Therefore the petitioner cannot complain of any denial of constitutional rights unless there is some substance to his claim, implied in the petition, that his guilty plea was involuntary. Towards this end, petitioner's counsel, in the brief filed in this court, further articulates the argument that the guilty plea was prompted by the threatened admission into evidence of petitioner's allegedly involuntary confession.
The transcript of the proceedings, however, rebuts this contention, as it tends to establish affirmatively that petitioner's constitutional rights were not violated. It reveals that pursuant to an investigation into the murder of Henry O'Connor, petitioner, a friend of the deceased, told the police that Percy Nelson had committed the crime. Subsequently, Nelson was indicted and petitioner was taken into custody as a material witness. On February 20, 1964, petitioner testified for the State in Nelson's trial to the effect that he saw Nelson and the deceased together just before the murder and that Nelson had a pistol with him at that time. The next morning he gave a hand-written confession to Assistant State's Attorney Samuel Banks, stating that he had shot O'Connor and that Nelson had paid him to do it. Later that day, he repeated this statement at Nelson's trial. (Details of his testimony may be found in People v. Nelson, 33 Ill.2d 48, 50.) Also, at some time on this day, February 21, Gerald Getty, the Public Defender of Cook County, was appointed to represent Newell who was indicted and entered a plea of not guilty upon his arraignment. On his trial date, March 11, 1964, before the same judge who heard the Nelson case, petitioner appeared, represented by his appointed counsel, and the following statements were made:
"MR. GETTY: This is Harold Newell who I have been appointed to represent on February 21st when he gave a certain statement that undoubtedly the State will put into evidence. He handed it to the State's Attorney during the course of the trial of Percy Nelson. I talked to him extensively on that date which he said that written statement was true, and I have talked to him on March 4, 1964, in which he said the statement was true. And, of course, I talked to him on today adjoining this courtroom in the presence of his sister, Mrs. Taylor. And I have advised him about all his constitutional rights. He still says he is guilty of this crime and that he wishes to enter a plea of guilty.
So I at this time I will is that true, you want to enter a plea of guilty.?
THE COURT: State your name, Harold.
THE DEFENDANT: Harold Newell.
THE COURT: Now, your lawyer advises me you wish to plead guilty, is that correct?
THE DEFENDANT: It is God's will.
THE COURT: Is that your ...