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UNITED STATES EX REL. EARLY v. MORRIS

March 17, 1975

UNITED STATES OF AMERICA EX REL. FRANK EARLY, PETITIONER,
v.
ERNEST MORRIS, SUPERINTENDENT OF THE JOLIET CORRECTIONAL COMPLEX, RESPONDENT.



The opinion of the court was delivered by: Marshall, District Judge.

MEMORANDUM DECISION

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 guilty.

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
  Correction Hospital.
  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 testified:

  THE WITNESS: . . . My wife and I came to court
  and I took my syringe and needle along with me to
  court and a bag of heroin and a bag of cocaine,
  in the event that I became ill.

  So I did become slightly ill and went into the
  washroom outside of the courtroom and took my
  shot there, and I left the needle and the syringe
  in the washroom outside of the courtroom.

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 ...


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