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The People v. Hayes

OPINION FILED SEPTEMBER 30, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

LARRY CHARBERT HAYES, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

In 1963 the defendant, Larry Charbert Hayes, pleaded guilty to two charges of armed robbery and one charge of burglary in the circuit court of Cook County and was sentenced to the penitentiary for concurrent terms of five to ten years on each charge. In 1964 he filed a pro se petition under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1963, ch. 38, par. 122-1 et seq.) alleging denial of constitutional rights. The State's motion to dismiss the petition was sustained and the defendant appealed to this court. We reversed the order of dismissal and remanded the cause to the circuit court for further proceedings to show "what ruling, if any, was made on the defendant's motion for appointment of counsel." People v. Hayes, 38 Ill.2d 329, 331.

In 1968, on remand, defendant's amended petition filed by retained counsel charged that the trial judge did not inform him before his plea of guilty that he was waiving his right to trial by jury; that the defendant's guilty plea was not knowingly or voluntarily given; that no effort was made by defense counsel to suppress any statements or line-up identification; and that defendant was not given a sufficient hearing in aggravation and mitigation. After hearing evidence and considering the trial record the circuit court denied post-conviction relief and this appeal followed.

Defendant bases this appeal upon three issues. First, he maintains that he did not knowingly or voluntarily enter a plea of guilty at trial; second, he asserts that the trial judge erred in failing to recuse himself at petitioner's post-conviction hearing; and finally, defendant contends that his privately retained counsel did not adequately prepare his amended petition or properly present his constitutional claims at the hearing.

At his trial on January 31, 1963, defendant, appeared, represented by retained counsel, and the following colloquy ensued:

"THE COURT: * * * Addressing myself now to Larry C. Hayes. You heard what your attorney told me here in open court this morning:

DEFENDANT HAYES: Yes, sir.

THE COURT: Are you in harmony and do you agree with the statements made by your attorney?

DEFENDANT HAYES: Yes sir.

THE COURT: Are you satisfied with the representation that you have received by your attorney in this court?

DEFENDANT HAYES: Yes, sir.

THE COURT: I wish to advise you with respect to all three charges that you are entitled to have a jury trial, the law provides you may have one. I want you to recognize, if you plead guilty and the Court accepts your plea, as indicated by your lawyer here that you do that, that you will waive your right to a jury trial in each of these indictments. Are you aware of that:

DEFENDANT HAYES: Yes, sir.

THE COURT: It is also my duty to inform you that with respect to each of the three indictments, two of robbery and the burglary indictment, that if you do plead guilty and the Court accepts your plea of guilty, you can be punished by any imprisonment to any period of time not less than one ...


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