APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
On May 11, 1965, defendant was indicted for the crime of theft of checks and money orders. On April 5, 1967, he pleaded guilty to that charge. On March 8, 1968, after denying defendant's motion to withdraw the plea of guilty, the court placed defendant on probation for five years, ordering that the first year be spent in the County Jail and that defendant make restitution of $22,000. On appeal defendant argues that the court erred in not allowing him to withdraw his plea of guilty since it was involuntarily made. Because of the contention we consider it necessary to set forth the chronology of the proceedings in some detail.
After indictment, defendant was arraigned on May 14, 1965 and entered a plea of not guilty. Thereafter several continuances were had without objection from the prosecutor or the attorney representing the complaining witness. On November 30, 1965, defense counsel informed the court that he and the attorney for the complainant had agreed to a 60 day continuance, and added: "We are in the process of working this problem out, and I think we are at the tail end of it now, Judge." The cause was continued to February 2, 1966, at which time defense counsel requested another continuance and advised the court that "we have got this thing practically all settled between ourselves." The court then inquired of the State if it would have a recommendation for a disposition at the next hearing, and the prosecutor replied affirmatively. The cause was continued to April 25, 1966, and on that day a different judge presided. Defense counsel stated that the parties had agreed that $33,000 would be paid to complainant. He then requested that the matter be put over to June, and that he would be ready or pay the money. The court replied that payment of the money wouldn't necessarily obviate the need of a trial. Defense counsel said that he understood, but that it was a civil matter between the parties, rather than criminal.
On the next date, June 1, 1966, the original trial judge again presided. Defense counsel made a long statement as to the progress of negotiations. He stated that he had conferred with the prosecutor and the complainant's attorney, and that he needed a 45 day continuance to get the money. The prosecutor stated: "The State would agree to one last final continuance on the basis of the good faith shown by counsel for the defendant. We are not adverse to restitution in this matter, but this case has been pending for some period of time. Counsel has said the civil law and I don't doubt ." His statement was interrupted at that point. After August 1 was selected as the next date, the prosecutor stated: "One further statement before the Court, as long as we have such a long date there is no reason why there cannot be some communication as to your progress with the State." Defense counsel replied that, as he had done in the past, he would keep in communication with the prosecutor and the attorney for the complaining witness as to settlement negotiations. On October 3, 1966, after defense counsel again reviewed negotiations and certain proceedings in the civil courts, he requested a 45 day continuance. A substitute prosecutor agreed to the continuance, but pointed out that there was a crime charged and that restitution was secondary. Thereafter the cause was continued several times to April 5, 1967.
On April 5, 1967, defense counsel stated that, "for the purpose of the record" they were entering a plea of guilty and requesting that the matter be continued for 90 days and then another 90 days so that complete restitution could be made. Counsel also informed the court that he was presenting $5000 to the complaining witness. Counsel further stated:
"We have an understanding that if he does not pay it, that the plea of guilty will then become final * * *"
After the court ascertained that the $5000 had been received, it admonished defendant as to the consequence of the guilty plea. When defendant persisted in the plea, the court accepted it and entered judgment. The court made no inquiry as to whether defendant was making the plea because of any promises or representations made to him. Defense counsel also inquired to whom the monthly payments of $1000 would be made, and it was decided that payments would be made to the attorney for the complaining witness. The cause was continued to July 10, again to October 17, and then to January 8, 1968.
On the following court date, March 8, 1968, after a total of $11,000 had been paid to the complaining witness, defense counsel informed the court that a $3000 check tendered to the complainant on January 8, 1968 had not cleared the bank because of insufficient funds. The court indicated that it was on the basis of the check that he had granted the continuance and said that eleven months after the plea of guilty, defendant still owed twenty or twenty-two thousand dollars. The court then said:
"I want to see money or I want this disposed today."
The prosecutor objected to another continuance on the grounds that defendant had not paid restitution "as per agreement." Defense counsel requested that defendant be allowed to withdraw his plea of guilty and to plead not guilty to the charge. The court denied the motion and imposed sentence.
Thereafter there was a hearing on new defense counsel's amended motion for a new trial and in arrest of judgment. At this hearing, defendant testified that he pleaded guilty upon the advice of his lawyer and upon the repeated assurances that if he made restitution the case would be thrown out or that he would get probation. There were conferences between his attorney and the complainant's attorney, and he overheard the latter say "as long as we get our money, there is nothing to worry about." This representation was also made at another conference. Defendant never conferred with the assistant State's Attorney.
Defendant's first counsel testified that he had handled very few criminal cases prior to the instant trial. He said that the complaining witness wanted only his money, and did not want defendant to go to jail. This representation was made more than five times. Counsel also testified that just before defendant changed his plea to guilty he advised defendant that if he made restitution that the case would be thrown out or he would get probation, even after the plea had been entered.
Defendant was not permitted to call the attorney for the complaining witness as an adverse witness. He was then called as a defense witness at the hearing and testified that he had been retained by the complaining witness to obtain the return of money. He never promised defendant or his counsel a dismissal or probation upon restitution. He did have a conversation with defense counsel one day, but did not remember the details.
On appeal defendant contends that the trial court erred in not allowing defendant to withdraw his plea of guilty as the plea was involuntary, having been induced by representations that the finding would be vacated or no sentence or incarceration would be imposed if restitution were made; and that ...