APPEAL from the Circuit Court of Alexander County; the Hon.
GEORGE OROS, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The defendant brought this action under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1) to secure relief from the alleged violations of his constitutional rights which resulted in his conviction of the offense of murder and to a sentence of not less than 14 years and not more than 25 years. After a hearing on the post-conviction petition the trial court dismissed the petition, denying the relief requested.
We agree with the decision of the trial court in dismissing the post-conviction petition.
The petitioner-appellant presents three issues for review:
1. Whether the defendant was deprived of his constitutional rights by the failure of the trial judge to advise him of the full range of penalties to which the defendant was subject before accepting his guilty plea.
2. Whether the defendant was deprived of his constitutional rights by being coerced into pleading guilty by the prosecution and the defense counsel.
3. Whether the representation afforded to the defendant by his court-appointed counsel amounted to deprivation of his constitutional right to effective assistance of counsel.
A review of the record shows that on June 7, 1971, a criminal complaint was issued against Spurgent Mason, the appellant, Deloyd Dennis and Floyd Wiggins for the June 1 murder and robbery of a cab driver, Emriel Johnson. On June 8, appellant, after the Miranda warnings, made a statement admitting presence at the scene and participation in the robbery. Defendants were indicted on June 21 and an attorney was appointed to represent the appellant on June 28, the day of arraignment, after two appointed attorneys withdrew. On arraignment, after meeting with his attorney, appellant pled not guilty. Later in the day, accompanied by his attorney, appellant was interviewed by prosecution and police officials. Appellant again waived his right to remain silent and made practically the same statement as he had made on June 8. Between June 28 and September 2, 1971, various motions and answers were filed in the case; appellant submitted to a polygraph test; he was also examined by a psychiatrist and the report was filed with the court on August 28.
On September 2, 1971, the defendant with his attorney appeared in court, and the attorney announced that there had been plea negotiations. The defense counsel told the court that appellant would plead guilty to murder with the recommendation from the State that he be sentenced to a term of 14 to 25 years. All other charges would be dropped. The record shows that the appellant approved of this agreement. The court asked the appellant what his plea was, and he answered that he was guilty. The State gave a factual basis for the plea and appellant's attorney stipulated to these facts. The court informed the appellant that he had a right to remain silent, to have counsel, to have a jury trial, to confront and cross-examine witnesses and to plead not guilty. The appellant replied that he understood each of these rights, and his plea was voluntary. The court further informed the defendant of the nature of the charge. After determining that no promises, threats, force or duress were used to obtain the plea, the court informed the appellant of the penalty for murder which was that the appellant could be sentenced to a term of not less than 14 years, and the maximum could be any number of years beyond 14. He was further told that if he was found guilty by a jury, a sentence of death may be imposed if the jury so recommends. The guilty plea was then accepted by the court, and it determined that the defendant understood his rights and made his plea voluntarily.
At the hearing in aggravation and mitigation which immediately followed the acceptance of the guilty plea, defense counsel introduced the psychiatric report which had been filed, and informed the court that a 14-year minimum term would be reasonable for his client. No evidence was presented in aggravation, and the appellant declined the offer to speak on his own behalf. The court sentenced the appellant to imprisonment for not less than 14 nor more than 25 years, and informed him of his right to appeal, within the 30-day time limit.
The appellant did not appeal the conviction and sentence. On November 3, 1972, the appellant filed an amended post-conviction petition, after counsel had been appointed. An evidentiary hearing was conducted on January 24, 1974, and the petitioner was the only witness at the hearing. The appellant's testimony at the evidentiary hearing described how he first met his court-appointed attorney. The meeting was in the courtroom on the day of arraignment and it lasted about 15 minutes, with appellant pleading not guilty. Later that day, appellant gave a statement in an interview with an investigator for the prosecution. Several days later, a polygraph examination was given to appellant. Defense counsel told him that he didn't have to take the polygraph test, nor would he recommend that he take one. Appellant further stated in his testimony that his attorney never discussed prosecution witnesses or their involvement in the crime with him.
Appellant maintained that his attorney told him that if he didn't cooperate, he would get off the case. The assistant State's attorney told appellant he would recommend life imprisonment or the death penalty if he didn't plead guilty. The appellant then decided to plead guilty.
On cross-examination, the appellant said that the first time he admitted killing the cab driver was immediately before he took the polygraph test. He also testified that he was telling the truth at that time. The appellant remembered waiving his rights in court, including being admonished as to the fact that no duress, threats or promises were made to induce his plea. Following the evidentiary hearing, the trial court recessed for 1 day and then dismissed the amended post-conviction petition.
• 1 The question raised by the appellant in this appeal that the appellant was deprived of his constitutional rights by the failure of the trial judge to advise him of the full range of penalties to which the defendant was subject before accepting his guilty plea was not included in the amended post-conviction petition. This point was also not presented to the trial court in the ...