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The People v. Shaw

OPINION FILED SEPTEMBER 30, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

HERBERT SHAW, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH A. POWER, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County which dismissed the defendant's amended petition for post-conviction relief on the motion of the People without an evidentiary hearing.

On May 1, 1969, the defendant was convicted of burglary on his guilty plea and sentenced to a term of not less than three years nor more than three years and one day in the Illinois State Penitentiary.

Three issues were raised by the amended petition for post-conviction relief and are urged in this court. (1) The sentence imposed (three years to three years and a day) is not an indeterminate sentence as required by section 1-7 of the Criminal Code of 1961. (Ill. Rev. Stat. 1969, ch. 38, par. 1-7(e).) (2) The defendant's guilty plea was not voluntary but was entered as a result of judicial intervention in the plea bargaining and was the result of an improper promise by the court as to the sentence to be imposed. (3) The defendant was not accorded his common-law right of allocution.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.) requires that the petition for post-conviction relief clearly set forth the respects in which the petitioner's constitutional rights have been violated. This court has held that unsupported conclusionary allegations in a petition are not sufficient to require a hearing. The petition and supporting documents must make a substantial showing of the violation of a constitutional right before a hearing is required. (People v. Pierce, 48 Ill.2d 48; People v. Morris, 43 Ill.2d 124; People v. Arbuckle, 42 Ill.2d 177; People v. Brown, 41 Ill.2d 503.) The function of a post-conviction proceeding is not to relitigate the defendant's guilt or innocence but to determine whether he was denied constitutional rights. People v. Somerville, 42 Ill.2d 1.

Defendant's first contention is based on the statutory requirement that all sentences to the penitentiary be for an indeterminate term. There is no constitutional requirement that sentences to the penitentiary be indeterminate. In fact, prior to the enactment of the Criminal Code of 1961 sentences for several felonies were for definite terms. (See S.H.A. ch. 38, par. 1-7, Committee Comments to subparagraph (e).) The right which defendant claims was violated is therefore statutory and not constitutional. The Post-Conviction Hearing Act is limited to those errors which are of constitutional magnitude. The failure of the petition to raise a constitutional issue is not remedied by the allegation of the conclusion that such an irregularity amounts to a deprivation of due process of law. People v. Orndoff, 39 Ill.2d 96; People v. Owens, 34 Ill.2d 149.

The defendant next contends that the plea of guilty was not voluntary because of the court's participation in the plea bargaining process. The amended petition simply alleges that the defendant's plea was not voluntary and was made "subsequent to judicial intervention in the plea bargain of an improper promise of the court regarding the term of the sentence to be imposed." The amended petition had attached to it a copy of the transcript of the proceedings at which the defendant entered his plea of guilty, which reveals the following:

"THE COURT: Mr. Shaw, you heard your counsel indicate that you desire to plead guilty to this charge I just read, is that right?

MR. SHAW: Yes.

THE COURT: You understand you would be entitled to have a jury trial and have a jury determine your innocence or guilt?

MR. SHAW: Yes.

THE COURT: By pleading guilty you waive your right to a jury trial and have a desire to waive your right to a jury trial?

MR. SHAW: Yes.

THE COURT: On a finding of guilty you could be sentenced from a minimum of one and a maximum of any number of years in the ...


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