APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE COUTRAKON, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 3, 1974.
Defendant, Danny S. Scarponi, was indicted on two charges for the offense of forgery in violation of Ill. Rev. Stat. 1971, ch. 38, sec. 17-3. Defendant, represented by an assistant public defender, Michael Costello, entered a plea of guilty to both of the charges pursuant to plea negotiations with the State's Attorney. Defendant was then sentenced to imprisonment for a term of four to eight years. This is an appeal from a denial by the trial judge after an evidentiary hearing of defendant's post-conviction petition filed pursuant to the post-conviction provisions of the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 122-1 et seq.
In his petition defendant asserts that during plea negotiations he was deprived of his constitutional right to the effective assistance of counsel because the trial judge denied defendant's counsel's motion to withdraw. Defendant further contended that he agreed to the negotiated recommendation because had he gone to trial he would not have been effectively represented and would have been subjected to the possibility of greater penalties.
The basis for defendant's contention is founded in a pretrial hearing on October 19, 1970, at which time defendant's counsel moved to withdraw from defendant's case because of a substantial disagreement with defendant's wife. The hearing concluded in relevant part as follows:
"Mr. Costello: However, your honor, I cannot, and I state this for the record, the allegations that were made as to the methods in which I was handling this case I will not be able to deal effectively with the defendant or the defendant's wife in this case. I wish to I ask leave to be that my appearance as public defender be withdrawn, that one of the other public defenders be appointed.
Your honor, I suggest that, again, no malice was intended except I effectively I state this to the Court that I cannot deal now on an unemotional basis with either the defendant or the defendant's wife and it's going to seriously prejudice his rights to the effective use of counsel by continuing me on this case, your Honor. I have never asked this before. I ask to be ask that the Court allow me to withdraw from the defense of Mr. Scarponi.
The Court: All right. That motion will be denied.
Mrs. Scarponi: Well, your Honor, I have said things to my husband, but he never seems to talk to his attorney, or whatnot, and I know Mr. Costello I've seen how busy he is.
I'm not going to get into any debate. Do you understand, Mr. Scarponi, anything that your wife communicates to you that you feel would be helpful to your attorney and yourself in the preparation of your case, you tell him.
Mrs. Scarponi: I don't feel Mr. Costello my husband has any defense, your Honor after speaking with Mr. Costello
The Court: Just a minute.
Do you understand, Mr. Scarponi? Do you have ...