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People v. Ellis

JANUARY 4, 1974.

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

v.

JEFFERY ELLIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is a companion case of People v. Tripplett (1973), 12 Ill. App.3d 834, 298 N.E.2d 756. In that case defendants Tripplett and Lee in a bench trial were sentenced to 3-10 years. We affirmed.

Tripplett, Lee, Ellis (the defendant herein), and one Charles Boles were jointly indicted for the armed robbery of the O'Donnell Grocery store in Rockford, Illinois. The defendants went to the grocery store with nylon stockings over their faces, and wearing blue tams which they had purchased for the robbery. They were armed, entered the store, and obtained several hundred dollars which they subsequently divided, the defendant Ellis receiving about $135. All four defendants signed written confessions. A motion was made to suppress the confessions and after a hearing before the court the motion to suppress was denied. The four cases were thereupon severed and on December 28, 1971, the defendant Ellis entered into a negotiated plea of guilty which resulted in a sentence of 5-15 years in the penitentiary.

Defendant appeals and raises two contentions, the first being that upon the acceptance of the negotiated plea the trial judge did not determine the voluntariness of the plea, and secondly, that the trial court erred when it allowed the State to terminate prosecution of other offenses without clearly identifying those offenses. We will discuss the second contention first.

At the time of the hearing on the negotiated plea, the State's Attorney made the following statement to the court:

"The agreement takes into account the fact that sentence as to the O'Donnell grocery store, armed robbery, that he is charged with here, the defendant was free on bond and committed another armed robbery of the Park-It Market on December 15, 1971.

And we have agreed if he pleads guilty to this Indictment here in court today, we will not prosecute on the Park-It Market case.

Also the defendant has admitted to officers, following his recent arrest on the Park-It Market armed robbery, participation in more than four burglaries in the Rockford area. And we have agreed that the defendant will not be prosecuted on any of these cases, provided he pleads guilty in this cause and receives this sentence."

With reference to the Park-It Market robbery, it is to be specifically noted that the State's Attorney advised the court that the defendant had orally confessed to that robbery and the trial judge asked the defendant the following question: "Is that correct, what the State's Attorney says?" The defendant replied "Yes." It is difficult to see how the defendant did not know "which Park-It Market armed robbery or the date thereof" when he advised the court that the statement of the State's Attorney as to the armed robbery committed by him while he was out on bail, was correct. The State's Attorney further advised the court in the presence of defendant and his counsel, that defendant had further admitted participation in four burglaries in the Rockford area.

• 1 As a part of the negotiated plea, the State agreed that it would not prosecute the defendant on the second armed robbery case or the four burglaries. Defendant now contends that the State should not have been allowed to "terminate prosecution"' on these offenses without clearly identifying the same, and has cited Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495, and People v. Hampton (4th Dist. 1972), 5 Ill. App.3d 220, 282 N.E.2d 469, in support of this contention. Neither of these cases are in point. In Santobello the prosecuting attorney agreed that he would make no recommendation as to the sentence that might be imposed upon a plea of guilty. Subsequently, a different prosecutor was present when the plea was accepted and he recommended the maximum term of imprisonment. The Supreme Court reversed on the misrepresentation of the prosecutor stating that the change in recommendation as to the sentence was "a lapse in orderly prosecutorial procedures." Hampton is likewise not controlling. In Hampton the State at the hearing in aggravation and mitigation, introduced evidence of other offenses committed by the accused.

As a matter of fact, defense counsel fails to mention that in Hampton the appellate court referred to its prior decision in People v. Schleyhahn (1972), 4 Ill. App.3d 591, stating: "The procedure here involved was not employed pursuant to a negotiated plea as exemplified in People v. Schleyhahn." The Schleyhahn case is far more closely akin to the instant case in which the offenses were mentioned by the court at the time of the acceptance of the negotiated plea, rather than introduced in aggravation and mitigation as in Schleyhahn. In Schleyhahn the court observed at pages 594-595 that by the introduction of other offenses of the defendant and by the State's agreement to forego the filing of formal charges and prosecution, "this clincher of double-riveted forebearance, * * * `would protect the defendant from double jeopardy problems.'"

We turn then to the more troublesome contention of the defendant that the court did not determine the voluntariness of the negotiated plea.

There is apparently some conflict between the different jurisdictions as to the requirements of determination of the voluntariness of a guilty plea under Illinois Supreme Court Rule 402(b) (Ill. Rev. Stat. 1971, ch. 110A, Rule 402). Several decisions of the Third District Appellate Court have discussed this issue. In People v. Garcia (1972), 8 Ill. App.3d 542, 289 N.E.2d 637, the defendant plead guilty pursuant to plea negotiations. There was no inquiry as to the voluntariness of the plea concerning force, threats, or other promises. The appellate court there, while observing that the decisions interpreting Rule 402 were not completely harmonious, and that the rule had not achieved its intended purpose, went on to affirm the conviction but to remand for determination as to whether the plea was in fact voluntary. Following that decision the same court in People v. Scott (1973), 9 Ill. App.3d 626, 292 N.E.2d 583, discussed a similar negotiated plea. Defendant contended the failure of the court to inquire as to the voluntariness of the plea, required reversal. That court, however, did not concur and stated at page 627:

"We do not believe there is any such absolute requirement and that in each case the court should determine whether there has been substantial compliance as was noted in the cases of People v. Burt, 5 Ill. App.3d 333, 282 N.E.2d 221; People v. Walsh, 3 Ill. App.3d 1042, 279 N.E.2d 739; People v. Hartman, 6 Ill. App.3d 543, 285 N.E.2d 600, and People v. Warship, 6 Ill. App.3d 461, 285 N.E.2d 224. It is also pointed out that there is no prejudice shown to defendant in this case and that there is no assertion by defendant on appeal that there was in fact any force, threats or other promises made to obtain his guilty plea. As stated in People v. Walsh, 3 Ill. App.3d 1042, 279 N.E.2d 739, while we do ...


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