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People v. Norris

OPINION FILED MARCH 8, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MICHAEL NORRIS, A/K/A DAVID GRILL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This is an appeal from the denial of a motion by defendant, Michael Norris, to withdraw his plea of guilty and to vacate the judgment entered on the plea. Pursuant to a plea agreement, defendant pleaded guilty to the offense of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and was sentenced to a term of four to 10 years, plus five years parole. The sentence was in accordance with the State's recommendation, which included concurrent sentences on other pending indictments. Defendant subsequently filed a pro se motion to withdraw the plea, vacate judgment, and request appointment of different counsel. He appeals from the denial of his motion without an evidentiary hearing, raising the following issues for our review: (1) whether the trial court abused its discretion in denying the motion without holding an evidentiary hearing; and (2) whether defendant was denied his right to effective assistance of counsel at the hearing which was conducted.

Before accepting defendant's guilty plea, the trial court informed him that by pleading guilty he was waiving his right to a jury trial or bench trial, his right to confront witnesses, and his right against self-incrimination. Defendant responded that he understood. The trial court also explained the possible sentence and asked defendant if any force or coercion was used to induce the plea, besides the plea agreement. Defendant answered, "No." After the parties stipulated that the court had heard a sufficient factual basis, the trial court accepted the plea, found defendant guilty of armed robbery, and sentenced him. Following the sentencing, the trial court informed defendant of his right to appeal and of the requirement for a written motion requesting vacation of the judgment and withdrawal of the plea within 30 days. The court also told defendant that any claim of error, not included in the motion, would be waived.

Within 30 days defendant filed a pro se motion, setting forth the following allegations: that he is innocent and has an alibi defense; that he did not understand the term "jury waiver" or his right to a jury trial; that he did not understand the term "coercion"; that he was unfairly persuaded to plead guilty because defense counsel failed to develop and explore the possibilities of an alibi defense; that he did not willingly, knowingly, and understandingly plead guilty or waive any rights; and that he did not have a good relationship with his lawyer and the court refused to permit counsel to withdraw and appoint a new attorney. Defendant also filed an "Affidavit in Forma Pauperis and Request for Appeal Counsel" requesting representation by the State Appellate Defender.

Defendant was represented at the post-trial hearing by one of the assistant public defenders who had represented him at the time of the plea. After defense counsel stated that he had read the transcript of the plea proceedings, he said that they would stand on the pro se motion as presented. When the court asked the attorney if he had any argument on the motion, counsel responded:

"I believe the basis of the argument on the motion would be that Mr. Norris did not * * * at the time of the taking of the plea fully understand the rights he had and the rights he was waiving. That he did encounter some difficulty communicating and having a good relationship with his attorneys.

I was one attorney that represented him, Mr. Mikula was the other. I think Mr. Mikula was with him at the time of the plea.

His allegations are that our office or other attorneys did not explain everything clearly enough to him, Judge. I obviously am not going to be a witness against Mr. Norris on his behalf."

Thereupon, the trial court stated that it had read the transcript and would deny the motion to withdraw the plea and vacate judgment. The public defender was appointed again to represent defendant on this appeal. Counsel asked that the State Appellate Defender be appointed because the adequacy of representation offered by the public defender might be advanced as a basis for appeal. The State Appellate Defender was then appointed and now prosecutes the appeal on defendant's behalf.

I.

• 1 We note at the outset that the trial court acted properly in accepting defendant's plea of guilty. Following the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402), the court informed defendant of his rights and made a determination of the plea's voluntariness and its factual basis. The court's conduct of the proceedings fulfilled the purpose of the rule; that is, to safeguard a defendant's rights by assuring that a guilty plea is intelligently, understandingly, and voluntarily made. (People v. Ginder (5th Dist. 1975), 26 Ill. App.3d 295, 298, 324 N.E.2d 703; People v. Thurston (1st Dist. 1975), 25 Ill. App.3d 900, 902, 324 N.E.2d 1.) After determining that defendant's decision to plead guilty was an informed decision, the court accepted the plea and told defendant of his right to appeal under Supreme Court Rule 604(d). (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d).) Thus, defendant was informed that if he desired to appeal from the judgment entered upon his plea, he was required to file a written motion stating the grounds within 30 days of the date on which the sentence was imposed. Defendant's timely pro se motion met this requirement. The trial court promptly held a hearing on defendant's motion but denied the motion without hearing evidence.

• 2, 3 On appeal defendant contends that the court's refusal to hold an evidentiary hearing was an abuse of discretion; the State contends there was no abuse because evidentiary hearings are not authorized by Rule 604(d). Although we do not agree with defendant's belief that any allegation of error going to the propriety of the plea proceedings automatically mandates an evidentiary hearing, such a hearing may be required in some situations. The rule states that, "When the motion is based on facts that do not appear of record it shall be supported by affidavit." Since the motion may be based on facts outside the record, an evidentiary hearing must necessarily be contemplated where a defendant, by his supporting affidavits, has alleged sufficient facts to challenge the correctness of the plea proceedings. We believe that the evidentiary hearing envisioned by Rule 604(d) is similar in some respects to that conducted pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.). That act, however, relates only to constitutional questions not previously raised on direct appeal; and even the post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. Farley (1st Dist. 1976), 37 Ill. App.3d 178, 182, 345 N.E.2d 724; People v. Meeks (1st Dist. 1975), 31 Ill. App.3d 396, 400, 334 N.E.2d 253.) Similarly, a defendant seeking to withdraw his guilty plea must plead factual allegations demonstrating the need for an evidentiary hearing. There is no automatic right to withdraw a guilty plea.

• 4 Defendant also maintains that an evidentiary hearing was required because his attorney at the hearing failed to file the certificate set forth in Rule 604(d):

"The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments ...


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