APPEAL from the Circuit Court of Kankakee County; the Hon.
VICTOR N. CARDOSI, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Aggravated battery in violation of section 12-4(b)(1) of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 12-4(b)(1)), a Class 3 felony.
On defendant's plea of guilty, the court imposed a sentence of 2 to 6 years.
Defendant's guilty plea was rendered involuntary by the unfair manner in which the State's attorney executed his promise to recommend a sentence of 1 to 3 years. It was done with such lack of advocacy as to have been a meaningless formal gesture not in compliance with good faith requirements that plea bargaining presupposes. The absence of fairness which vitiates the bargain is objectively demonstrated by the fact that while supposedly advocating imposition of a minimum sentence the State's attorney was demonstrating his true feelings as to the impropriety of that recommendation by "parading" a "procession" of five witnesses before the court for "aggravation purposes" at the sentencing hearing.
When the cause was called for trial, defendant, by counsel, represented to the court that pursuant to an agreement with the State's attorney wherein the latter promised to recommend a sentence of not less than 1 year nor more than 3 years, defendant wished to withdraw his "not guilty" plea and to enter a plea of "guilty." The assistant State's attorney confirmed these terms of the negotiated plea. Before accepting the change of plea, the court stated to defendant in seven different ways that it had not participated in the negotiations, was not bound by them or by any recommendations of the State's attorney, and did not have to follow them, and in imposing sentence would be guided "solely by the evidence" it would hear at the sentencing hearing and could impose a sentence of "three to five" or "two to six" or "three to nine," depending on the circumstances. On six occasions, defendant stated that he understood this, and then stated that he still wanted to plead guilty, and also that he was doing so voluntarily, and that he was 27 years of age. He also asserted that although he did not, by reason of his intoxication at the time, remember committing the offense, he was certain that the charge against him was correct and that the State would be able to prove it. The court thereupon accepted the plea. There having been no waiver by defendant, the cause was continued for a presentence investigation pursuant to section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. ch. 38, par. 1005-3-1).
Thereafter, a sentencing hearing was held on March 25, 1974. The State called the victim, 16-year-old Debra Jain, Ronald Davis, an employee of the tavern where defendant was arrested, and police detective Marshall Deschand, a witness to defendant's written statement. Defendant testified on his own behalf that because of his intoxication at the time he did not know what he was doing. He also called Merrill Ervin, for corroboration. At the conclusion of this testimony, the court stated:
"I will tell you one thing * * *. I am continuing this hearing and tomorrow morning at 9:30 I want to hear the [arresting] police officer[s] tell me what * * * [defendant's] condition was at that time. I am asked to buy the proposition * * * [defendant] * * * was intoxicated so intoxicated he didn't know what he was doing. That is what I am asked to buy and I haven't bought it. I don't know what these police officers have got to say about it and I want to know * * *."
On the following day the court heard the testimony of the arresting police officers, Floyd Reynolds, Steven Williams, and Thomas Born. After both sides rested the State's attorney stated that the circumstances indicated that a sentence of imprisonment should be imposed and as to the length of that term commented:
"I am aware that the record shows that * * * the plea of guilty * * * was upon an agreement [from my office] to recommend a term of one to three years, and therefore in conformity * * * [therewith] * * * I will make a ...