APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:
Defendant, Lonnie Lee, appeals from an order sustaining the motion of the People to dismiss his petition for habeas corpus and for relief under the Post-Conviction Act and denying the prayer of his petition, as amended and supplemented, without an evidentiary hearing. Before stating or considering defendant's contentions, it is necessary to summarize the matters shown by the rather complicated record.
On February 5, 1965, after a bench trial, defendant was found guilty of the sale of purported narcotics. (See Ill. Rev. Stat. 1963, ch. 38, par. 22-40.) The trial court admitted defendant to probation for two years. On July 1, 1966, defendant was found guilty of armed robbery and was sentenced to the penitentiary for one to three years. (Ill. Rev. Stat. 1965, ch. 38, par. 18-2.) On July 28, 1966, his probation was revoked and he was sentenced to one to three years in the penitentiary on the original drug offense to run concurrently with his sentence for armed robbery. Ill. Rev. Stat. 1965, ch. 38, par. 117-3(d).
The next step took place some 18 days later on August 16, 1966. The judgment of guilty of armed robbery was vacated by writ of error coram nobis. On the same day, the order revoking defendant's probation and the ensuing sentence on the drug charge were both vacated. This left defendant on probation for sale of purported narcotics and subject to trial on the indictment charging armed robbery. On the same date, defendant pleaded guilty to petty theft, a misdemeanor included within the offense of armed robbery, and he was sentenced to six months in the County Jail.
On October 13, 1966, the State moved to revoke defendant's probation. This hearing was continued to February 3, 1967, which was two days before expiration of the period of probation. On February 3, 1967, another hearing was held on the proceedings to revoke probation and the term of probation was extended two years so that it would expire February 5, 1969. Ill. Rev. Stat. 1965, ch. 38, par. 117-1(b).
On October 30, 1968, defendant pleaded guilty to four informations each charging him with armed robbery and he was sentenced to the penitentiary for three years to three years and one day. On November 8, 1968, the court revoked his probation and sentenced him on the original charge of sale of purported narcotics to two to six years in the penitentiary to be served consecutively after the sentence for the armed robberies.
No appeal was taken by defendant. On June 24, 1970, he filed his petition under the Post-Conviction Act. The gist of the petition was that defendant's right to due process of law was denied "* * * in that the public defender and prosecutor, failed to fulfill a promise of a reduced sentence; this promise had induced petitioner to plead guilty to the crime charged against him." Present counsel for the petitioner were appointed by the Circuit Court on August 28, 1970. On November 5, 1970, these attorneys filed a lengthy amended petition praying relief under the Post-Conviction Statute (Ill. Rev. Stat. 1969, ch. 38, par. 122 et seq.), under the Habeas Corpus Act, (Ill. Rev. Stat. 1969, ch. 65), and also "* * * through any remedy recognized by Illinois law which permits him to benefit from the doctrine that a judgment entered by a court which lacked jurisdiction may be attacked at any time."
The amended petition alleged that the plea of guilty "* * * to a reduced charge of petty theft should be considered void because it was predicated upon a promise made to petitioner by Petitioner's attorney, which promise was later broken." The amended petition was verified by defendant. A supporting affidavit by defendant himself was simultaneously filed stating that, "* * * the public defender, told him that he would `talk to the probation officer,' Mr. Jack Clarke. The public defender also told him that he had already been assured by the judge that the petty theft offense would not constitute a violation of probation." The affidavit stated that these assurances induced defendant to plead guilty to petty theft.
On March 2, 1971, defendant filed a supplemental petition in which he alleged that he was sentenced in violation of his right to due process of law because the trial judge who sentenced him on November 8, 1968, did not know the underlying circumstances or the specific facts of the crime and was ignorant of certain statements made by the original trial judge who had admitted defendant to probation in the narcotics case.
In this court, defendant contends: (1) that the sentence entered upon the original offense for sale of purported narcotics is predicated upon an invalid plea of guilty to the charge of petty theft; (2) that the trial court denied defendant due process of law by sentencing him upon the original charge of sale of purported narcotics "upon misinformation about the nature of the charge and without inquiring into the circumstances of the offense"; (3) that continuation of the hearing on violation of probation as granted by the court to February 3, 1967, was actually an incarceration of defendant which deprived any court of jurisdiction to sentence him for his original offense; and (4) that the indictment against defendant in the original offense was fatally defective for failure to allege an offense. We will consider these contentions in order.
As to the first point, defendant argues that the plea of guilty to petty theft should be considered invalid because it was given in reliance upon a promise made to defendant by his attorney, which was later broken. The reasoning is that if the plea is void the sentence cannot stand. The State counters with an exposition of the theory that post-conviction proceedings are limited by the express terms of the statute to the proceedings which resulted in the conviction. In other words, the conviction and sentence of defendant rest upon the original finding of guilty of sale of purported narcotics. The scope of the post-conviction petition is limited to these proceedings and cannot reach subsequent events. We find the position of the State well supported by legal authority. (People v. Calhoun, 46 Ill.2d 60, 63-64, 263 N.E.2d 69; People v. Ferree, 40 Ill.2d 483, 484-485, 240 N.E.2d 673; People v. Franciere, 47 Ill. App.2d 436, 440, 198 N.E.2d 170. See also People v. Buford, 4 Ill. App.3d 533, 281 N.E.2d 345.) The only allegation of violation of the constitutional rights of this defendant pertains to alleged breach of a promise made to him by his own lawyer in connection with his subsequent plea of guilty to petty theft. This plea of guilty was entered in an entirely different proceeding from the one before this court. The only matters which may be considered in this post-conviction petition are those pertaining to the original finding and judgment of guilty in the first case involving sale of purported narcotics. This conclusion is further supported by the precise language of the Post-Conviction Act which speaks of substantial denial of constitutional rights "* * * in the proceedings which resulted * * *" in conviction. Ill. Rev. Stat. 1969, ch. 38, par. 122-1.
• 1-3 We will observe parenthetically that full consideration of this contention exposes its invalidity. It rests primarily upon a misapprehension of the nature of probation. Probation itself is not a sentence. It is rather the extension of clemency and abstention from the imposition of sentence upon certain conditions. When these conditions are violated, the court, in its discretion, may impose sentence or extend the probationary period. (Ill. Rev. Stat. 1969, ch. 38, pars. 117-2, 117-3.) Regardless of the plea of guilty and its merits, the court, acting in its discretion, could have revoked defendant's probation for commission of the offense in connection with which the plea was entered. Proof of commission of this offense could have been made by a preponderance of the evidence. These matters are fully set out in our decision in People v. Henderson, 2 Ill. App.3d 401, 276 N.E.2d 372. The record here shows amply the commission of criminal acts by defendant upon which he predicated his plea of guilty which fully justified the court in extending his probation. The record also shows that defendant's probation as extended was revoked because of his involvement in four separate armed robberies during 1968, in addition to and quite apart from the plea of guilty to petty theft.
• 4 In addition, the amended petition is verified and a separate affidavit by petitioner himself is presented. This is insufficient to require an evidentiary hearing. These allegations should be supported by some evidence in the record and bare assertions by defendant himself are not sufficient. Ill. Rev. Stat. 1969, ch. 38, par. 122-2. People v. Pierce, 48 Ill.2d 48, 50, 268 ...