OCTOBER 6, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
ARTHUR J. LARKIN, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant, Arthur J. Larkin, was charged with three counts of armed robbery. He was arraigned on October 9, 1969, and was represented by attorney Stuart Katz who entered a plea of not guilty. On January 23, 1970, the case came up for trial and after pre-trial negotiations, defendant pleaded guilty before Judge Mel R. Jiganti, who admonished defendant as to the consequences of his plea. The facts incident to this case were stipulated into evidence. Following a hearing in aggravation and mitigation, defendant was sentenced to two to seven years in the penitentiary.
On February 24, 1970, a hearing was held before Judge Jiganti on defendant's motion to withdraw a plea of guilty. Defendant attached an affidavit alleging that his plea had been coerced by threats and misrepresentations of the prosecution during pretrial negotiations. The trial court after considering the motion, affidavit and testimony, denied defendant's motion to withdraw the plea of guilty. Defendant appeals from said order. The issues on appeal are as follows:
(1) Defendant claims his plea of guilty was entered upon misapprehension by defendant of the applicable law and fact; and
(2) Defendant was coerced into said plea by threats of a more severe penalty if he exercised his constitutional right to a jury trial.
• 1 The law governing the withdrawal of guilty pleas in criminal prosecutions is well settled and has been succinctly summarized in People v. Worley (1966), 35 Ill.2d 574, 576, 221 N.E.2d 267, cert. denied, 386 U.S. 972, Rehearing Denied (1967), 386 U.S. 1042.
"The general rule is that it is within the sound discretion of the trial court whether a plea of guilty may be withdrawn (People v. Lang, 402 Ill. 170; People v. Throop, 359 Ill. 354.) This discretion will ordinarily not be disturbed unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is a doubt of guilt of the accused and the ends of justice would be better served by submitting the case to a trial. (People v. King, 1 Ill.2d 496; People v. Lang, 402 Ill. 170.)"
Defendant here contends that his guilty plea was coerced by representations made by the prosecutor to the effect that defendant would receive a much more severe sentence if he demanded a jury trial. However, the defendant seemed uncertain as to how he was threatened, variously characterizing the prosecutor as threatening 15 years, 30 years, 40 years, 50 and life imprisonment, if he failed to plead guilty.
Defendant cites three cases in support of his contention that the trial court erred in denying his motion to withdraw his guilty plea. However, defendant's reliance is misplaced. In both People v. McKirdie (1970), 45 Ill.2d 300, 259 N.E.2d 16 and People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233, the Illinois Supreme Court reversed denials of motions to withdraw guilty pleas. In each case, however, our Supreme Court reversed merely because the trial judge had failed to provide a fair hearing before deciding the motion. In the case at bar, a hearing was held and the trial judge carefully considered all the evidence before ruling. Defendant also relies upon People v. Morreale (1952), 412 Ill. 528, 107 N.E.2d 721.
In Morreale the Illinois Supreme Court reversed a denial of a defendant's motion to withdraw his guilty plea after he was denied probation, but only after finding that the prosecutor had already been the sole force in convincing the defendant to plead guilty promising him he would not "get hurt" and would get probation. In Morreale too, the defendant's attorneys corroborated the pressure exerted by the prosecutor upon the defendant. That is a far different situation from the one before us in the case at bar. For here there is no clear showing of coercion by the prosecutor. There are only the contradictory statements of the defendant which were denied by the prosecutor. The defendant here also admitted that his attorney was present when the alleged coercion took place, but unlike the defendant in Morreale, the defendant here failed to call his attorney to testify. In the instant case it was proper for the trial judge, who had the opportunity to listen to all the testimony and to examine the demeanor of the witnesses, to determine whether to believe the defendant or the prosecutor. The record reveals no evidence that the trial judge abused this discretion. On the contrary, the record reveals the trial judge was very careful in safeguarding the defendant's rights. The defendant admits that his counsel was present at the time this threat was allegedly made, but his counsel was never called to testify. The Assistant State's Attorney denied coercing the defendant's guilty plea.
• 2 At the hearing on defendant's motion to withdraw his guilty plea, the trial court heard all the testimony concerning the prosecutor's alleged coercion of defendant's plea. After listening to all the evidence the court stated:
"I have a very strong preference to having a person have a trial, any kind of trial he wishes, a bench or a jury trial. And I find as a philosophical matter, I find it difficult to deny any person the right to have a jury trial.
"However, I have considered the testimony of the witnesses in the case; I had an opportunity to see them testify, opportunity to consider their credibility * * * when the plea was taken * * *. And I find there is no reason to allow the defendant to withdraw his plea of guilty."
To accept defendant's contention that the trial court erred in refusing his motion to withdraw his guilty plea would require this court to assume the truth of defendant's testimony and the falsity of the prosecutor's. A similar situation arose in People v. Kwiek, (1959), 18 Ill.2d 121, 163 N.E.2d 474. There the defendant contended his guilty plea had been induced by the prosecutor's assurance that he would receive probation, but the prosecutor denied he ever made any such agreement. In affirming the denial of defendant's motion to withdraw his guilty plea, the court held at page 124:
"The defendant's claim that the trial judge abused his discretion assumes the truth of his own testimony and that of the attorney who then represented him. But the trial judge was not required to believe that testimony. He could have regarded it as at best improbable and at worst false. The record does not show that the judge abused his discretion. On the contrary, it shows that he was scrupulous to safeguard the defendant's rights."
Similarly, in the case at bar, the record reveals the trial court as being most careful in safeguarding defendant's rights. The court heard all the evidence concerning defendant's desire to withdraw his guilty plea. After considering the testimony and the credibility of the witnesses, the trial judge chose to believe the Assistant State's Attorney's evidence, rather than the defendant's evidence. The trial judge did not abuse his discretion.
The judgment of the Circuit Court of Cook County is hereby affirmed.
BURMAN and DIERINGER, JJ., concur.
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