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People v. Robinson

JUNE 13, 1974.




APPEAL from the Circuit Court of La Salle County; the Hon. JOHN MASSIEON, Judge, presiding. MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered by the Circuit Court of La Salle County in a post-conviction proceeding initiated by defendant James Robinson. From the record it appears that, following plea negotiations, James Robinson entered a plea of guilty to the crime of forcible rape.

The record discloses that the victim was an 86-year-old resident of a retirement home and that defendant had infected the victim with gonorrhea. The record discloses also that defendant was fully admonished in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402). The defendant was thereafter sentenced to a term of not less than 10 nor more than 40 years, based upon plea negotiations and the recommendation of the State's Attorney. The court did not participate in the plea negotiations but accepted the recommendation of the prosecutor, and the sentence was consistent with such plea negotiations.

It appears that a few days following the proceeding in the trial court, the prosecutor prepared and signed, and the trial judge also joined in signing, an official statement or pen letter which included recitations of facts and circumstances relating to the defendant and the crime for which he was convicted. A recommendation was also included in the letter which specifically recited, "It is recommended that this defendant serve the maximum time possible under the 10-40 year sentence imposed upon him." It appears also from the record that defendant James Robinson found out about the recommendation as a result of the fact that a friend of his, a fellow prisoner who was working in the record office at the diagnostic depot, saw the recommendation and showed it to defendant James Robinson.

Defendant Robinson thereafter filed a post-conviction petition alleging that the recommendation contained in the so-called pen letter violated the plea bargain, because, it is asserted, it would have the effect of substantially increasing the minimum time which defendant Robinson would be required to serve before he would be considered for parole. It is recited in the petition that defendant Robinson was not advised, prior to entering the plea of guilty, that such pen letter or recommendation would be made, and defendant also asserts in such petition that if he had known such recommendation would be made he would not have agreed to plead guilty. At the hearing conducted in connection with the sentence, and following plea negotiations, defendant acknowledged that he was pleading guilty because he was in fact guilty.

At the hearing on the post-conviction proceeding, the executive secretary of the Pardon and Parole Board testified that in his opinion, the recommendation by the judge and the State's Attorney that the prisoner serve the absolute maximum on a sentence of from 10 to 40 years would be a factor which the board would consider in determining eligibility of defendant for parole. A former acting chairman of the Pardon and Parole Board, now acting as a special assistant to the State Appellate Defender, also testified that the recommendation would be a critical factor, but only one of many factors in determining parole eligibility. The testimony of the witnesses indicated that they did not know who the members of the Parole Board would be at the time defendant would first come up for parole, and, also, did not know whether the Parole Board at that time would be influenced in any way by the recommendation of the State's Attorney or the trial judge, and that they could not predict whether or not defendant would or would not receive parole at the earliest possible opportunity.

Defendant asks that the guilty plea be vacated on the premise that he was induced by false promises by the prosecutor and the trial judge and was not properly advised of the consequences of his plea before it was accepted, simply by reason of the fact that the pen letter was written to the Parole Board a few days after he was sentenced. There is nothing in the record to indicate that there was any thought or discussion of the question of a pen letter or any recommendation in any respect whatsoever as to parole for defendant, when defendant pleaded guilty in the trial court.

The issue before this court has been specifically considered by the Supreme Court of this State in the case of People v. Hawkins, 54 Ill.2d 247. In the Hawkins case a statement had been prepared by the prosecutor, in which the trial court concurred, and in which a recommendation was made to the Parole Board that defendant would be an unfit subject for early parole because of the probability of his initiating trouble of an interracial nature. In that case, also, defendant contended that his guilty plea must be set aside because he was not advised that such recommendation would be made, and that the trial court and prosecutor violated the plea agreement by such course of action. In the Hawkins case the court specifically found that the filing of the State's Attorney's statement, concurred in by the court in that case, a short time after sentencing, was not a fundamentally unfair procedure and was consistent with the obligations of the prosecutor and the court. It was pointed out in Hawkins that the State's Attorney and the sentencing judge were required to be notified prior to defendant's parole hearing in order to afford them an opportunity to express their views regarding the propriety of parole for defendant. It was also noted that, from a practical standpoint, the passage of time between sentencing and a defendant's initial parole hearing might result in a diminution of recall of pertinent observations which might aid the Parole Board in determining if parole should be granted. The court therefore found that the making of the recommendation shortly after defendant's sentencing is not improper.

• 1 As is true in this case, defendant in Hawkins relied on Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495. As indicated in the Hawkins opinion in the supreme court, however, Santobello is not applicable to present case. In the Santobello case the prosecution clearly violated its prior agreement not to recommend a sentence. Also, in Smith v. United States, 469 F.2d 705, cited by defendant, the court found that where narcotics cases are involved, defendant must be advised that parole eligibility is precluded if there is a guilty plea. That case, clearly, is not applicable to the present issue. The observations of the Illinois Supreme Court in People v. Hawkins, 54 Ill.2d 247, 252, however, are particularly pertinent to the issue now before this court. The supreme court stated there:

"Parole has been classified as a matter of grace and clemency (People ex rel. Kubala v. Kinney (1962), 25 Ill.2d 491, 493) to which one incarcerated for a criminal offense has no right even though he may be eligible, because he may not demand his discharge before the maximum term of his sentence has expired. (People ex rel. Jones v. Brantley (1970), 45 Ill.2d 335, 338.) In the present case defendant would become statutorily eligible for parole upon the completion of the minimum sentence imposed, and defendant's contention that said recommendation affected his possibility of parole is mere conjecture."

Certainly no admonition was required as to any possible pen letter or statement which might be made by the prosecutor and trial judge in connection with parole. As indicated in People v. Hawkins, 3 Ill. App.3d 359, at 361:

"In People v. Chaney (Ill. App.2d) it was held after careful consideration of the relevant authorities, that the trial court need not admonish the defendant that as a consequence of a plea of guilty the State's Attorney or some other person might oppose his parole. We reiterate this rule."

The court in People v. Chaney, 2 Ill. App.3d 675, pointed out that to require that a trial court embark on problems relating to parole and actions of the Parole Board which might result from a recommendation of the prosecuting attorney or the court would involve the court in a "quagmire of uncertainty and irrelevant detail, almost incomprehensible in scope."

• 2 It is clear from the precedents referred to, that the making of the recommendation following sentencing, is only what it purports to be — simply a recommendation. The Parole Board is entitled to a true reflection of the viewpoint of the prosecutor and the court as to parole for a prospective parolee. There was no bargain express or implied that the State's Attorney or the court would not disclose what they felt to be the proper treatment of defendant in any communication to the Parole Board. It is also clear that the authority to parole, vested in the Pardon and Parole Board, has been classified as a matter of grace and clemency to which defendant has no right even though he may be eligible, and that his conduct in prison as well as other factors are considered by the Pardon and Parole Board in determining when and if parole should be granted.

On a review of the precedents and for the reasons stated, we find no basis for reversal of the order of the trial court denying the relief of withdrawal of the guilty plea requested in the post-conviction petition. The order of the ...

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