The opinion of the court was delivered by: Marshall, District Judge.
On November 10, 1969, petitioner withdrew his plea of not
guilty and entered a plea of guilty before Honorable Francis
T. Delaney, Circuit Judge, Cook County, Illinois, to four
indictments. Three indictments charged him with two counts of
armed robbery, one count of aggravated battery and one count
of unlawful use of weapons. On motion of the State the fourth
indictment charging petitioner with sale of narcotics was
reduced without objection to possession of narcotics. As to
each count of the indictments the court admonished petitioner
as to whether he knowingly and understandingly waived his
right to trial by jury or the bench. Each time petitioner
answered in the affirmative. The court further admonished
petitioner as to the minimum and maximum sentences that could
be imposed for each count,
and that each sentence could run consecutively. The parties
stipulated that a factual basis existed for each plea of
In aggravation, the State cited previous felony and
misdemeanor convictions. In mitigation, defense counsel asked
for leniency attributing petitioner's problems to his
addiction to drugs which petitioner hoped to cure. Judge
Delaney then sentenced petitioner to serve in the Illinois
State Penitentiary concurrent terms of not less than nine and
not more than ten years for each count of armed robbery, and
not less then eight and not more than ten years for aggravated
battery, unlawful use of weapons and possession of narcotics.
The court then advised petitioner of his right to appeal.
The following exchange formed the basis for the petitioner's
subsequent state court post-conviction petition and hearing,
and his present prayer for habeas corpus relief:
MR. FOWLKES: Your honor, I have a motion that the
mittimus be stayed here for about 10 days and the
defendant be permitted to be hospitalized in the
House of Correction.
THE COURT: Mr. State's Attorney.
MR. NEVILLE: We have spoken about that
previously. It has to do with Mr. Early's
narcotic problem and he wishes to be hospitalized
at the Bridewell for a period of 10 days in order
to try and cleanse his system. THE DEFENDANT:
Yes, I would like to go over there today. Right
now I am under the influence of narcotics and I
would like to go over there today to kick my
habit. See, I'll be sick some time around a
couple of hours.
MR. NEVILLE: We spoke about this previously and I
indicated to the court at that time and Mr.
Fowlkes we would have no objection to that. I
suggest the mittimus be stayed for 10 days for
that purpose, for him to be sent to the House of
THE COURT: All right, the mittimus is stayed for
10 days and Mr. Early is directed — the Sheriff of
Cook County is directed to confine Mr. Early in the
House of Correction for hospitalization for at
least 10 days in order that the drug addiction
problem he has may be neutralized in some respect
before the defendant would be sent to the State
Penitentiary. (R. 17-19)
On January 20, 1970, petitioner filed a post-conviction
petition in which he asserted that the trial court violated
his constitutional rights by accepting his pleas of guilty
while he was under the influence of narcotics.
On August 19, 1971, Honorable Joseph A. Power conducted a
post-conviction evidentiary hearing on the State's motion to
dismiss. Counsel was appointed to represent petitioner. The
following is a summary of the testimony of petitioner, his
wife, the assistant state's attorney, defense attorney and the
trial judge at the guilty plea hearing.
Petitioner testified on direct examination that at the time
of the guilty plea hearing he was a narcotic addict with a
$125 a day heroin and cocaine habit. (R. 10) When petitioner
was released on bond August 4, 1969, he resumed his habit with
injections of heroin and cocaine, two or three times every day
up to and including the date of his guilty pleas on November
10, 1969. (R. 11, 28) At 3:00 a. m. that date, petitioner
smoked an opium cigarette; at 10:00 a. m. petitioner took his
"daily shot of heroin along with cocaine" at his mother's
house and a shot at his wife's house. (R. 12, 48-49) The
guilty pleas were entered that afternoon. Petitioner
Q: Now, about what time was this, Mr. Early?
A: I don't know what time it was. It was
somewhere near about an hour before sentencing.
MR. ROBBINS: I didn't hear that. THE WITNESS: An
hour before prison sentencing.
MR. ROBBINS: I still didn't get it. THE WITNESS:
A one hour before prison sentencing. (R. 13)
Petitioner testified that several days before he pleaded
guilty he requested his attorney to arrange to have his bond
revoked and have petitioner placed ...