Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 67 C 469 - Joel M. Flaum, Judge.
Before Fairchild, Chief Judge, and Cummings and Bauer, Circuit Judges.
In November 1972, petitioner pled guilty to rape and received a 10- to 40-year sentence in the Circuit Court of LaSalle County, Illinois. In January 1973, he filed a post-conviction petition which was denied by that court after an evidentiary hearing. The denial was affirmed (People v. Robinson, 20 Ill.App.3d 112, 312 N.E.2d 703 (3d Dist. 1974) (Justice Stouder dissenting), in June 1974, and the Illinois Supreme Court denied his petition for leave to appeal in September 1974. Consequently, he filed a petition for writ of habeas corpus in the court below in February 1976. The petition was denied on February 15, 1977.
As a result of plea negotiations, petitioner agreed to plead guilty to the charge of rape and the prosecutor agreed to recommend a sentence of from 10 to 40 years. The trial court accepted that recommendation. Four days after petitioner was sentenced, the trial court and prosecutor signed and sent an Official Statement or "pen letter" to the Illinois Parole Board. The "pen letter" was sent pursuant to Ill.Rev.Stat. (1971) ch. 108, § 203, now found at Ill.Rev.Stat. (1977), ch. 38, § 1005-4-1. The "pen letter" consisted of the prosecutor's statement of facts and circumstances surrounding petitioner's crime and concluded as follows:
"Recommendation to Parole Board:
It is recommended that this defendant serve the maximum time possible under the 10-40 year sentence imposed upon him."
In also signing the letter the judge who presided at petitioner's trial expressly concurred in the prosecutor's statements. Petitioner and his trial counsel did not know of the "pen letter"; petitioner came across it inadvertently in his prison file.
In denying the habeas corpus petition, the district judge filed an unreported supporting memorandum opinion concluding that there had been compliance with the plea bargain and that petitioner's guilty plea was not invalidated by the failure to advise him of the "pen letter" transmittal to the parole board recommending parole ineligibility. The opinion predated by about one month our decisions in United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7 Cir. 1977), and United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7 Cir. 1977), which cause us to reverse the decision below.
Baker was accorded habeas corpus relief where "the two year mandatory parole term (of which he was uninformed when he entered his guilty plea) constituted a substantial addition to the one to two year prison term that he was told he would receive." We therefore held his guilty plea was unfairly induced in violation of the Due Process clause of the Fourteenth Amendment. 551 F.2d at 183, 184.
In Ferris, before he pled guilty the petitioner was incorrectly advised by the state court judge that he would not have to serve a mandatory five-year parole term. We again held that his due process rights were violated, so that his habeas corpus petition would be granted to permit him to plead anew "unless within 120 days, the State of Illinois takes action to vacate that portion of the sentence which imposed the mandatory parole term of five years" (opinion as amended on August 25, 1977).
When Robinson pled guilty, he was not informed by the court that a "pen letter" was to be sent to the parole board recommending parole ineligibility. The Public Defender who represented Robinson was also uninformed of this plan. Robinson testified in the state court post-conviction hearing that he would not have pled guilty if he knew that the State's Attorney and presiding judge were going to recommend to the Illinois Parole Board that he serve the maximum of his 40-year sentence. His trial attorney reported that Robinson had rejected a state offer that involved a 20-year minimum term. The Executive Secretary and the former Chairman of the Illinois Parole and Pardon Board respectively testified or swore by affidavit that a "pen letter" so recommending would likely delay parole for several years and would be a critical factor in determining parole.*fn1 This meant that "any meaningful consideration of defendant's application would be delayed or postponed" (People v. Robinson, supra, 20 Ill.App.3d at 117, 312 N.E.2d at 706, dissenting opinion of Justice Stouder), thus extending Robinson's minimum period of incarceration.
Because at the time he pled guilty petitioner was uninformed about the "pen letter" procedure that could well lengthen his actual period of incarceration, petitioner's predicament is similar to that of Baker and Ferris. The state's response is that two principles distinguish this case from Baker and Ferris. First the state notes that the sentence received was not materially different from the sentence about which petitioner was informed because he was informed that he would receive 10 to 40 years and his sentence fell within that range. Put another way, the argument is that petitioner only need be told of the range of punishment and not his actual sentence. See Ruiz v. United States, 494 F.2d 1 (5th Cir. 1974), certiorari denied, 419 U.S. 899, 95 S. Ct. 181, 42 L. Ed. 2d 144; United States v. Smith, 440 F.2d 521, 533 (7th Cir. 1971) (Stevens, J., dissenting). As a practical matter, however, the state's argument ignores the fact that in Illinois the minimum sentence term was an accepted determinant of parole eligibility.*fn2 See People v. Scott, 117 Ill.App.2d 344, 350, 253 N.E.2d 553 (4th Dist. 1969). In fact, Illinois courts have made clear that the intent of an indeterminate sentence is to encourage rehabilitation by clearly identifying the opportunity for early release on parole. People v. Harper, 50 Ill.2d 296, 301, 278 N.E.2d 771 (1972). The petitioner here has established that he understood a 10-40 year sentence to mean that parole eligibility would begin after 10 years (less good time), and that understanding certainly was reasonable. In this context it is myopic to assume as the state does that a 10-40 year sentence means no more than that a defendant will be confined for some amount of time between 10 and 40 years; rather, as commonly understood the sentence carries with it a subsidiary standard for parole, which in practice has at least as much significance as a rarely served maximum limit. See generally Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).
Consistent with this recognition of the importance of parole, it has never been the position of this Circuit that a plea colloquy was proper merely because the judge correctly outlined the range of possible punishment.*fn3 Although then-Judge Stevens argued that position concurring in Bachner v. United States, 517 F.2d 589, 599 (7th Cir. 1975), Judge Tone's majority opinion in denying Bachner's contention that he should have been informed of his parole ineligibility relied on the fact that Bachner knew that parole eligibility was uncertain. 517 F.2d at 595. Bachner's implicit recognition, consistent with the holding of the majority in United States v. Smith, 440 F.2d 521 (7th Cir. 1971), that ignorance of parole eligibility at least can suffice to allow a federal petitioner to vacate a guilty plea on appeal derives considerable support from prior precedent.*fn4 Paige v. United States, 443 F.2d 781 (4th Cir. 1971); Moody v. United States, 469 F.2d 705 (8th Cir. 1972); Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); but see Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), certiorari denied, 389 U.S. 899, 88 S. Ct. 224, 19 L. Ed. 2d 221.
In considering whether this type of misunderstanding also is a sufficient basis for a due process collateral attack on a state conviction, Baker and Ferris provide the relevant standard. That standard is that "the plea must withstand collateral attack unless the sentence actually imposed upon Baker significantly differed from the sentence which the prosecutor and the trial court promised him." 551 F.2d at 183. Here as Justice Stouder noted in his dissent, "defendant's potential release on parole would be considered as if a greater minimum sentence had been imposed" (20 Ill.App.3d at 117, 312 N.E.2d at 706); therefore the Baker standard is satisfied. Moreover, as explained in Bell v. United States, 521 F.2d 713, 715 (4th Cir. 1975), the record in this case affirmatively demonstrates that petitioner was misled in fact about the meaning of the sentence he was to receive. See Bachner v. United States, 517 ...