APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Petitioner, Larry C. Hayes, appeals from the denial, after an evidentiary hearing, of his amended petition filed pursuant to the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122 et seq.), and alternatively, pursuant to section 7 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) *fn1 The amended petition alleged that his armed robbery conviction, affirmed by the Illinois Supreme Court in People v. Hayes, 52 Ill.2d 170, 287 N.E.2d 465, was obtained through the concerted suppression, by both the prosecutor and the court, of exculpatory evidence.
Wilbur Wright, Lawrence Goodwin, and Larry Hayes, the petitioner in this appeal, were indicted for the September 1967 armed robbery of the Bargain Basket food store. On September 16, 1969, Goodwin and Hayes pleaded not guilty to the charge and were tried by a jury before the Honorable Francis T. Delaney. During the trial, Hayes was identified by two employees of the store that was robbed and his fingerprints were also recovered from a milk carton which was found in the front of the store's office. Goodwin and Hayes were found guilty of the offense of armed robbery and on October 15, 1969, Hayes was sentenced to not less than 20 nor more than 30 years in the penitentiary. Previously, on September 16, 1969, Wright pleaded guilty to the armed robbery, but sentencing was deferred until October 2, 1969. Wright was not a witness at the trial of Goodwin and Hayes, and on October 2, 1969, was sentenced to not less than 4 nor more than 6 years in the penitentiary.
On August 7, 1972, Hayes filed an amended post-conviction petition alleging that the assistant State's Attorney, Richard Neville, and the trial judge, the Honorable Francis T. Delaney, insisted and imposed upon Wilbur Wright as a condition of his plea-sentence agreement that he not testify for the prosecution or on behalf of his co-defendants; and in order to secure adherence to the condition, his sentencing was postponed until after the trial of Goodwin and Hayes. Hayes contended that these alleged activities served to conceal from him valuable exculpatory evidence, and thereby, denied him due process of law.
In support of the petition, the affidavit of Wilbur Wright was submitted. Affiant stated that on September 16, 1969, he was present at a conference attended by his attorney, Raymond Ewell, and Richard Neville, assistant State's Attorney. During this conference it was agreed that upon a plea of guilty, he would receive a sentence of 4 to 6 years. However, Wright informed Ewell and Neville that he would not be a witness for the prosecution, and furthermore, if he did testify, his testimony would tend to exculpate the remaining co-defendants. Because of his statements, it became an express condition of the agreed sentence that he would not testify for either the State or the defense; and to insure compliance therewith, his sentence would be delayed until after the trial of the co-defendants. Judge Delaney then accepted the agreement of the parties and informed Wright that he was not to testify for either side.
Wright further stated that he did participate in the robbery of the Bargain Basket food store but that Hayes was not a participant. Although he saw Hayes once before the latter's trial, Wright avoided talking to Hayes for fear that it would jeopardize his plea-sentencing agreement. Affiant concluded by stating that but for the admonition of Judge Delaney and his unwillingness to jeopardize his plea-sentencing agreement, he would have volunteered to have testified that Hayes was neither present nor involved in the armed robbery.
Through his affidavit, Raymond Ewell, Wright's attorney, stated that during the plea negotiations he informed Neville that Wright was not willing to cooperate in the prosecution of his co-defendants so that it was thereupon agreed that Wright would not testify for either side and that this condition would be fulfilled before the plea-sentencing agreement would become effective. Ewell also stated that he advised Wright that it was a condition precedent to the imposition of his sentence agreement that he not testify.
The petitioner, Larry Hayes, stated in his affidavit that at the time of trial he attempted to talk to Wright but that Wright was uncooperative. He stated that at no time during the trial did he know why Wright refused to talk to him concerning the pending charges. It was not until 1971 that he again met Wright at Stateville Penitentiary and learned of the circumstances surrounding Wright's failure to cooperate. At that time, he examined the transcript in Wright's plea and sentencing hearing before Judge Delaney. The pertinent portion of the plea hearing on September 16, 1969, is as follows:
"Mr. Neville: I would indicate one other thing. It is my understanding, your Honor, at this time that the defendant Wilbur Wright has intended to indicate to this Court at the time of his plea of guilty to this charge that he does not intend to testify either for the State or for the defense as to the remaining matter in this indictment.
The Court: Put that on record, please.
Mr. Ewell: Is that correct?
Defendant: That is correct.
The Court: You understand, Mr. Wright, that under your plea of guilty which you have entered and which you have been found guilty at this time you will not any further take part in any proceedings having to do with this case either as a ...