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United States v. Pate

December 7, 1970


Hastings, Senior Circuit Judge, Pell, Circuit Judge, and Reynolds, District Judge.*fn*

Author: Hastings

HASTINGS, Senior Circuit Judge.

Petitioner Robert W. Phillips appeals from a judgment order of the federal district court*fn1 denying and dismissing his petition for a writ of habeas corpus. We affirm.

On March 24, 1956, petitioner was sentenced by the Circuit Court of McHenry County, Illinois, to serve a term of 199 years in the Illinois State Penitentiary, on his conviction of a charge of murder pursuant to his plea of guilty thereto. He is now incarcerated as a prisoner of the State of Illinois.

Broadly speaking, petitioner predicates his claim to relief on the ground that his state court conviction is invalid because (1) he was denied his right to appeal his conviction; (2) his plea of guilty was not voluntarily and intelligently made; and (3) the federal district court's adverse judgment was based on an inadequate state record.

Upon our examination of the record before us, including the numerous prior court proceedings concerning petitioner and his murder conviction, the following narrative is conclusively supported.

On December 22, 1955, petitioner was indicted by the grand jury of McHenry County, Illinois, for the murder of Lyle E. Larsen. This was Indictment No. 34579. Subsequently, on the same day, Indictment No. 34597 was returned by the same grand jury charging petitioner with the murder of Lyle Larson.

At this point we summarily dispose of petitioner's pro se contention at various times that he was somehow prejudiced by the return of dual indictments, claiming he was not informed as to which of the two indictments he was entering his plea of guilty. We agree with the district court that there is no merit to this assertion. It is quite clear that the second indictment was returned to supersede the first one because the name of the murder victim was misspelled in the first indictment. Further, throughout this entire proceeding there was never any question raised but that the second indictment, No. 34597, was the only indictment ever considered by the trial court, the petitioner and the prosecution. Whether the first indictment was ever nolle prossed of record has not been shown to have been prejudicial to petitioner or of constitutional significance. Hereinafter we shall have reference only to No. 34597.

On January 27, 1956, petitioner personally appeared in the McHenry County Circuit Court and was arraigned on Indictment No. 34597 and funished a copy thereof, together with a list of the grand and petit jurors. At that time the court appointed attorneys James H. Cooney and Charles S. Parker to represent petitioner and they undertook this assignment.

On February 10, 1956, petitioner appeared in open court with his attorneys and moved to quash the indictment, which motion was denied.

It was shown that from February 4, 1956 to March 16, 1956, petitioner's court-appointed attorneys spent approximately sixteen hours in conference with him prior to his plea and approximately fifty additional hours preparing for his trial. For their services and expenses they were subsequently allowed $444.75 by the trial court.

On March 16, 1956, petitioner appeared in open court with his attorneys. The State of Illinois was represented by the State's Attorney. Petitioner in person and by his counsel announced to the court he was ready to enter a plea of guilty. Thereupon the presiding judge personally advised petitioner of the nature of the charge against him (murder) and the terms of punishment which could follow a plea of guilty. To all of this the petitioner personally stated his understanding and with such understanding repeated his intention to plead guilty. The trial court, for the record, again repeated the steps taken and petitioner's responses, accepted the plea and caused the plea and judgment of conviction of the crime of murder as charged in the indictment to be entered upon the plea of guilty.

The trial court then explained in person to petitioner his mandatory right to present evidence in aggravation or mitigation of the offense before the assessment of punishment by the court. A week's delay in such hearing was granted petitioner to enable him to secure his witnesses for such hearing.

On March 23-24, 1956, with petitioner and his attorneys present in open court, a full hearing in aggravation and mitigation was held. At the conclusion of the testimony on March 24, 1956, petitioner's motion for arrest of judgment was denied. Thereupon, petitioner was personally arraigned for sentencing and was sentenced on his plea of ...

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