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People v. Cheshier

JANUARY 26, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT CHESHIER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Will County.

Robert Cheshier, the defendant, was indicted for the offense of attempt robbery, to which charge he pleaded guilty. At the time the defendant's plea of guilty was tendered and accepted the prosecution informed the court that such plea resulted from certain plea negotiations. The prosecution stated that it had offered to recommend a sentence of from 2 to 8 years in the penitentiary if the defendant would not ask for probation and would waive a hearing in aggravation and mitigation, but that a sentence of from 3 to 10 years would be recommended if the defendant requested probation or asked for a hearing in aggravation and mitigation. The defendant did request probation and a hearing was held, at the conclusion of which probation was denied. The prosecution then recommended a sentence of 3 to 7 years in the penitentiary and this was the sentence imposed by the court.

On this appeal it is the defendant's contention that because he exercised his right to apply for probation he was penalized in that he received a sentence of 3 to 7 years in the penitentiary rather than a sentence of 2 to 8 years which the prosecution would have recommended had he not asked for probation.

• 1 In reviewing the record we find it abundantly clear that lengthy plea negotiations were entered into between counsel for the defendant and the prosecution. The law does not look with disfavor upon such negotiations but in fact has recognized their merit and set forth guide lines and regulations regarding the conduct of the same. Supreme Court Rule 402, ch. 110A, sec. 402(d), Ill. Rev. Stat.

In examining the regulations pertaining to plea discussions it is specifically provided that the trial judge shall be advised as to any tentative agreement reached between the defense and prosecution and then the judge shall indicate to the parties the court's concurrence, conditional concurrence, or non-concurrence as to such tentative agreement.

The record in the case before us fails to show that the trial judge indicated in any way that he concurred in or conditionally concurred in the tentative agreement as to the sentence that was to be received by the defendant. The record is likewise barren of any language on the part of the court that could in any way mislead or be misconstrued by the defendant as to what the sentence would be with or without a motion for probation. In fact, just the opposite conclusion is reached from reading the record in that it clearly discloses that the trial judge made certain that the defendant knew that the recommendations of the State's Attorney were not binding upon the court.

• 2 If an agreement, though it be tentative, was in fact entered into between counsel for the defendant and the prosecution, the most that the prosecution could promise was that a certain sentence would be recommended to the court. Our law is clear that a judge is not bound by the recommendations of a State's Attorney. People v. Hancasty, 410 Ill. 148, 101 N.E.2d 575; People v. Ventura, 415 Ill. 587, 114 N.E.2d 710; People v. Baldridge, 19 Ill.2d 616, 169 N.E.2d 353.

The defendant cites two cases in support of his argument that he was penalized by a heavier sentence because he applied for probation. They are the cases of People v. Cherry, (Ill. App.2d), 267 N.E.2d 744; and People v. Curl, (Ill. App.2d), 269 N.E.2d 740. Neither of these cases involve the matter of probation or a factual situation which is of any aid in disposing of the question before us.

• 3 It is apparent that the defendant entered his plea of guilty with a full understanding of its consequences and that he was aware of the fact that the court was not bound by a recommendation of the prosecution. The defendant with this full understanding exercised his right to apply for probation and when this request was denied the court heard evidence in aggravation and mitigation of sentencing. The defendant then received the sentence of which he now complains. He does not argue that it is excessive but instead attempts to impute motives and bad faith on the part of the prosecution. The record fails to sustain such charges. The defendant was not the victim of misrepresentation, misleading inducement or improper conduct on the part of the prosecution or the court. It is pure conjecture on his part to now say that he would have received a lesser sentence had he waived his right to request probation. Certainly there is nothing in the record to support such a claim.

The judgment of the circuit court of Will County is affirmed.

Judgment affirmed.

ALLOY, J., concurs.

Mr. PRESIDING JUSTICE STOUDER ...


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