APPEAL from the Circuit Court of Rock Island County; the Hon.
JOHN L. POOLE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Richard Nitz, from an order of the circuit court of Rock Island County which denied his petition for post-conviction relief.
The scenario of events which resulted in this appeal is as follows. On June 9, 1975, a criminal complaint was filed in the circuit court of Rock Island County which charged the defendant with having committed the offense of burglary.
On July 7, 1975, the defendant appeared in court and submitted a written jury waiver and tendered a plea of guilty. Counsel was at this time appointed to represent the defendant. The court admonished the defendant as to his rights and the State presented a factual basis for the offense of burglary allegedly committed by the defendant. The defendant acknowledged two written waiver forms executed by him which specifically stated that his plea of guilty was voluntary and without coercion. The trial court did not specifically inquire as to whether the defendant's plea of guilty was motivated by promises or whether there was a plea agreement between the parties, however, there was apparently an off the record discussion of the plea agreement with the trial judge. Following the defendant's waiver of a presentence report he was sentenced to a term of not less than one nor more than three years in the penitentiary.
On March 23, 1976, the defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.). The petition alleged that his conviction on the burglary charge was secured in violation of his constitutional rights, in that more specifically his guilty plea was involuntary in that it was based upon an unfulfilled prosecutorial promise. The defendant's petition also alleged his indigency and requested the appointment of counsel.
Counsel for the defendant was appointed on July 6, 1976, and on July 12, 1976, the State filed a motion to dismiss the defendant's petition for post-conviction relief. On July 14, 1976, after a hearing on the State's motion, the defendant's petition was dismissed. The defendant appealed from this order of dismissal and this court on July 14, 1977, remanded the cause to the trial court for an evidentiary hearing on the defendant's petition for post-conviction relief.
On September 27, 1977, the evidentiary hearing was conducted. During the hearing the defendant testified that on July 3, 1975, he was sentenced to concurrent terms of one year on three misdemeanor charges which he immediately began to serve in the county jail. The defendant further testified that on July 7, 1975, he was called to the office of Assistant State's Attorney John Malvick in regard to a burglary charge pending against him. It was the defendant's testimony that Mr. Malvick told him that in return for his guilty plea to the burglary charge he would receive a one- to three-year term of imprisonment for the misdemeanor offense, that another pending felony charge against him would be dismissed and that he would be paroled upon his first appearance before the parole board. It should be noted that the defendant could not recall the exact words of the prosecutor, but he stated that he construed the statement regarding parole as a guarantee or assurance of early parole. As we have previously set forth, the defendant did plead guilty to the burglary charge on July 7, 1975, and was sentenced to a term of not less than one nor more than three years in the penitentiary. The defendant after being sentenced was released until noon of the following day pursuant to an agreement with and recommendation of the prosecutor. The defendant began serving his sentence and on March 3, 1976, appeared before the parole board but was denied parole. As we have noted, it was shortly thereafter, to-wit, March 23, 1976, that the defendant commenced his proceedings for post-conviction relief.
The sole issue presented by this appeal is whether the trial court's finding that the prosecutor had not promised or guaranteed the defendant's early parole was manifestly erroneous and hence cannot support a denial of the relief sought in the post-conviction petition.
The defendant claims that he construed the prosecutor's statements as a guarantee or assurance of early parole. We, however, are not concerned as to how the defendant construed the statements of the prosecutor, but instead are concerned with the narrow question as to whether or not the prosecutor did in fact promise the defendant an early parole.
We note from the record that the prosecutor Malvick during the evidentiary hearing emphatically stated that he only discussed eligibility for parole. It was Malvick's testimony that:
"* * * And I never, in any conversation told him that he would be paroled at any certain time, or that I had any authority to see to his release or anything like that. I never created that impression."
The defendant describes his conversation with the prosecutor concerning parole as being "unusual" and because it was unusual the testimony of the prosecutor at the evidentiary hearing should be considered incredible. In order to bolster his contention that the testimony of the prosecutor which related his conversation and actions with the defendant was of an unusual nature, he further calls attention to the fact that the defendant was granted a 24-hour stay of mittimus by the trial court at the recommendation of the prosecutor. The defendant classifies such a recommendation as being most unusual. We fail to follow the defendant's reasoning in regard to the stay of mittimus. Such stays are granted for a variety of purposes, i.e., to enable one to get his business affairs in order or to make arrangements for the care of one's family. While not granted frequently, they occur often enough that they cannot be considered unusual.
The defendant strongly urges two points to support his assertion that the prosecutor's testimony at the evidentiary hearing was false. The first point is that the prosecutor admitted that he promised the defendant that his sentence on the burglary charge would run concurrently with his sentences on the misdemeanor charges. It is the defendant's contention that such a promise is meaningless in that the sentences would run concurrently regardless of any action or promise by the prosecutor since the same was mandated by statute. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-4(d).) The defendant's argument is that a meaningless promise calls into question the credibility of the prosecutor who made such a promise. In addressing ourselves to the point raised by the defendant we deem it necessary to set forth a portion of the prosecutor's testimony at the evidentiary hearing which is as follows:
"* * * I proposed that we could dispose of all the charges against him, there was at least one other theft charge against him pending at that time, that we could dispose of all the charges against him by way of a plea agreement where he would be sentenced on the burglary to a term in the Department of Corrections of from 1 to 3 years to run concurrent with his ...