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People v. Hoffman

DECEMBER 17, 1974.

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

v.

ALLISON HOFFMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered in a proceeding under the Post-Conviction Hearing Act. On State and Federal constitutional grounds, appellant Allison Hoffman, acting as his own counsel, filed a petition in which he sought to set aside an armed robbery conviction and a sentence of 15 to 30 years. Appellee State of Illinois moved to dismiss. The trial court sustained the motion and without an evidentiary hearing, denied post-conviction relief. In seeking reversal of the order, appellant has been represented in this court by the Illinois State Appellate Defender who has filed a brief presenting two issues for our review. (1.) Whether the pro se post-conviction petition alleged facts which show that in the trial leading to his conviction and incarceration, appellant was denied due process of law and penalized for exercising his right to a trial by jury. (2.) Whether appellant was denied effective assistance of counsel in his post-conviction proceeding. In addition, appellant requested, and we allowed him leave to file a typewritten pro se brief in order that he may present four additional issues which he insists should be resolved by this court. These issues, which we will state as we resolve them, arise from the following facts.

On April 28, 1969, two indictments were returned against appellant and Arnold Vitek who, a short time before, was appellant's employer. One indictment charged them with murder and the other with armed robbery. On July 1, 1969, Vitek, with counsel of his choice, appeared before Judge L. Sheldon Brown and pled guilty to the armed robbery indictment. After hearing evidence in aggravation and mitigation and considering a recommendation of the State that Vitek be sentenced to a term of not less than 4 nor more than 7 years, the court sentenced him to serve 3 to 6 years. The murder indictment was nolle prossed by the State. Thus, the charges against Vitek were disposed of.

Those against appellant, however, were not. In fact, it was on October 4, 1969, a little more than 3 months after Vitek was sentenced, that appellant was arrested in Indianapolis, Indiana. He waived extradition and was brought to Cook County, Illinois, where, on October 14, 1969, he was arraigned on the two charges. At his request, counsel was appointed for him, and on July 27, 1970, before Judge Edward E. Plusdrak and a jury, he was tried on the indictment that charged armed robbery. The jury found him guilty, and after hearing and overruling post-trial motions, the court conducted a hearing in aggravation and mitigation. No one told Judge Plusdrak about Vitek or the sentence he had received. At the conclusion of the hearing, appellant was sentenced to serve not less than 15 nor more than 30 years. He was advised of his right to appeal, and, after exercising that right, the public defender of Cook County was appointed to represent him in this court.

While his appeal was pending, appellant filed a pro se petition under the provisions of the Post-Conviction Hearing Act. *fn1 In his petition, appellant alleged that he was tried and found guilty of armed robbery by a jury; that before his trial, prosecutors indicated to him that if he would plead guilty to armed robbery and murder, they would recommend to the court a sentence of 14 years to 14 years and 1 day, but if he did not so plead, they would recommend 25 to 50 years on the armed robbery charge; that the prosecutors had initially indicated to appellant and his counsel that they would proceed against him first on the murder indictment so as to maneuver him into pleading guilty to both murder and armed robbery, but later, they decided to proceed with the lesser charge; that appellant elected to stand trial; that the armed robbery for which he was tried involved a concert of action between him and Arnold Vitek; that Vitek had pled guilty to the armed robbery charge and received a sentence of 3 to 6 years; that Vitek did not aid in appellant's prosecution; that Vitek and appellant participated equally in the commission of the armed robbery; that no violence was involved in the robbery; that Vitek was appellant's employer prior to the offenses in question; that he and Vitek had similar criminal records; *fn2 that at the hearing in aggravation and mitigation following appellant's jury trial, his attorney, a court appointed counsel, did not bring to the sentencing judge's attention the fact that Vitek had earlier pled guilty and had been sentenced for the same offense for which appellant was convicted; that appellant was sentenced to a term of 15 to 30 years for the same offense for which Vitek received 3 to 6 years; that, therefore, the harsher sentence imposed on appellant was a penalty for his having exercised his constitutional right to a jury trial; and that imposition of a harsher sentence on those who exercise the constitutional right to trial by jury, under the circumstances of this case, will discourage others from exercising that right.

While this petition was pending, we affirmed appellant's conviction for armed robbery. (People v. Hoffman, 7 Ill. App.3d 146, 287 N.E.2d 219.) A short time after that affirmance, the State moved to dismiss the petition, asserting (1) its allegations failed to raise any constitutional questions; (2) the allegations that might raise constitutional questions were bare and insufficient to require a hearing; and (3) the doctrine of res judicata barred consideration of appellant's claims. *fn3 The motion to dismiss was heard. At the hearing, two assistant public defenders appeared with the request that they be relieved of the responsibility of representing appellant. They gave as their reason his refusal to cooperate with them. The request was denied, with the trial court instructing the lawyers to remain in the case as appellant's advisors. Appellee's motion to dismiss was then sustained, and the relief prayed for in the petition was denied. We now turn to the issues presented.

I.

• 1 A sentence imposed on a defendant as punishment because he exercised the right to a trial by jury is a constitutional deprivation. (People v. Dennis, 14 Ill. App.3d 493, 494, 302 N.E.2d 651.) And, as a principle of our criminal justice system, it is said that fundamental fairness and respect for our laws require that similarly situated defendants not receive grossly disparate sentences. (People v. Henne, 10 Ill. App.3d 179, 293 N.E.2d 172; People v. Haynes, 132 Ill. App.2d 130, 266 N.E.2d 172.) However, mere disparity between the sentences imposed on a defendant who stands trial and another who pleads guilty does not of itself require action by a reviewing court; it is the reason or the absence of any reason for the disparity that is controlling. People v. Martin, 47 Ill.2d 331, 339, 265 N.E.2d 685.

• 2 A petitioner for post-conviction relief who relies on a disparity between sentences to support his claim of constitutional deprivation must allege facts and point to a record which reflects that the sentence imposed on him was a punishment. In other words, the mere fact that a post-conviction petitioner received a greater sentence after a trial by jury than did a co-defendant who had pled guilty does not justify the conclusion that the greater sentence was imposed because of the election to stand trial. People v. Sanders, 129 Ill. App.2d 444, 263 N.E.2d 615; People v. King, 4 Ill. App.3d 942, 282 N.E.2d 252.

This is not an appeal from a final judgment in a criminal case. It is an appeal from an order entered in a collateral proceeding, a post-conviction petition. A petitioner who seeks relief from his conviction in such a proceeding must allege facts which, if proven, would show that his constitutional rights were violated; allegations under oath of mere conclusions to that effect will not suffice. (People v. Reeves, 412 Ill. 555, 107 N.E.2d 861; People v. Durham, 10 Ill. App.3d 911, 295 N.E.2d 298.) For example, a petition which alleged that the trial judge sent an appointed lawyer to offer the petitioner a certain sentence in consideration for his guilty plea was insufficient to require a hearing in the absence of allegations which state how the information was imparted to the petitioner and which charge that negotiation for the plea was initiated by the trial judge, or that the sentence was recommended by him rather than by defense counsel or the State's Attorney. (See People v. Pierce, 48 Ill.2d 48, 268 N.E.2d 373.) It has been uniformly held that a pro se post-conviction petition which alleges only legal conclusions is insufficient to require an evidentiary hearing. People v. Stoudt, 45 Ill.2d 118, 257 N.E.2d 110; People v. French, 46 Ill.2d 104, 262 N.E.2d 901; People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416.

In the case before us, appellant's pro se petition does not allege any fact which would show that the sentence imposed on him was a punishment because he elected to go to trial before a jury. It is admitted that he did not, nor did anyone for him, tell the trial judge about Vitek or the 3 to 6 years' sentence he had received. In fact, the record of the armed robbery trial shows that the sentence of 15 to 30 years was imposed because of appellant's crime and his long criminal record; seven convictions, one involving an attempt to kill a police officer. It also discloses that at the conclusion of the aggravation and mitigation hearing, appellant asked the trial judge to explain what he was trying to accomplish by the sentence he was going to impose. The judge replied:

"I will tell you what I hope to accomplish, to get you out of the way, out of circulation, so people who are innocent bystanders or customers in a store don't have to be frightened with some guy pointing a gun in their stomach and saying, `Keep your mouth shut.' That's the problem. You've got a streak in you where you like to play with guns, and that becomes extremely dangerous when they are loaded.

The sentence will be 15 to 30 years in the Illinois State Penitentiary. As you say, the parole board may let you out. You apparently know the answers. But that will be left to their discretion."

• 3 Therefore, the record of appellant's conviction shows the reasons for the sentence he received. It is clear that his pro se post-conviction petition did not and, indeed, could not allege facts which show that in the trial that led to his conviction and incarceration, he was denied ...


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