APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1978.
This appeal arises from the dismissal, by the Circuit Court of Cook County, of appellant's petition for post-conviction relief. The petition essentially alleged that there was a bona fide doubt as to petitioner's competency to withdraw a plea of not guilty and enter a guilty plea.
In November of 1971, petitioner was arrested in San Francisco, California, on charges of murder and robbery lodged against him in the District of Columbia. Later that month, an Illinois warrant was lodged against him for the murder and robbery of Charles Barlassina in Chicago, Illinois. In September of 1972, following his plea of guilty to reduced Federal charges of manslaughter and robbery, petitioner was sentenced to 5 to 15 years. He began serving his sentence in the District of Columbia jail, but was soon transferred to the Federal penitentiary at Terre Haute, Indiana. Subsequently, on November 28, 1972, he was transported to Chicago, where he entered a plea of not guilty to the Illinois charges pending against him.
On December 18, 1972, change of plea proceedings were commenced in the Circuit Court of Cook County, in which petitioner sought to withdraw his plea of not guilty and enter a plea of guilty to the murder and robbery charges. Petitioner was represented by the public defender.
At the outset of the change of plea proceedings, petitioner declared that he intended to withdraw his earlier plea in order to enter a plea of guilty. After being warned of his right to remain silent, petitioner was informed of the charges against him. He was then asked if he understood the charges and if he knew that his change of plea was equivalent to admitting the charges. He replied that he understood.
The State and petitioner, through the public defender, then entered into a series of stipulations. These stipulations were as follows:
(1) Sam Burke, security agent for the Sherman House Hotel, where the murder and robbery took place, would have testified that he saw petitioner in the lobby of the hotel on June 28, 1971.
(2) Michael Kress, assistant State's Attorney, would have testified that he saw investigators Buehler and Boucher taking an oral and written statement from petitioner and heard him describe how he met Charles Barlassina, went with him to a room in the Sherman House Hotel, tied him up, choked him, and robbed him of various personal property, including a bus ticket and an attache case. Mr. Kress would further have testified that he heard petitioner describe his subsequent flight to New Orleans, Dallas, and San Francisco.
(3) Maureen Case, document examiner, would have testified that she examined registration cards from a YMCA in New Orleans and a YMCA in Dallas and found the signatures thereon to be identical to petitioner's signature on his fingerprint card.
(4) Detective Owens and Sergeant Kennedy of the San Francisco Police Department would have testified that they arrested petitioner in San Francisco, and various officers of the Washington, D.C. Police Department would have testified that they took defendant from the custody of the San Francisco Police and that on his person at the time was an attache case containing money orders and portions of bus tickets with registration numbers indicating that they had been sold to Charles Barlassina.
(5) Dr. Jerry Kearns, Coroner's pathologist, would have testified that he examined the body of the deceased Charles Barlassina and found that death was due to asphyxiation resulting from external violence.
(6) Investigator Buehler would have testified that he viewed the body of the deceased Charles Barlassina in a room at the Sherman House Hotel, and that the body was tied to a bed with marks visible around the neck.
The court then asked petitioner if he understood that by pleading guilty he was admitting the facts essentially as he had just heard them, and that he would be admitting the charges that had been read to him. Petitioner replied that he understood.
The court then commenced to admonish petitioner, thoroughly and repeatedly, of the consequences of changing his plea to guilty. Petitioner indicated that he understood (1) that he had a right to a jury trial, and what that meant; (2) that by pleading guilty he waived his right to a jury trial; (3) that no trial of any kind would ensue; (4) that he waived his right to call witnesses on his behalf, to cross-examine adverse witnesses, and to take the stand himself; (5) that he need not withdraw his prior plea and could continue to plead not guilty; and (6) that the State and the public defender had agreed to recommend concurrent sentences of 25-40 years for murder and 5-10 years for robbery, to be served concurrently with the Federal sentence then being served by petitioner.
The court, in a protracted colloquy, continued to warn and advise petitioner of the consequences of his proferred guilty plea. Petitioner manifested that he was entering the plea voluntarily, as a matter of conscience, and that he did, in fact, perform those acts which resulted in the death of Charles Barlassina. The court then accepted petitioner's plea of guilty.
Prior to the imposition of sentence, in place of any presentence report (not then mandatory), the public defender offered a partial rendition of petitioner's psychiatric history to the court. Although he mentioned that petitioner, while in the army six or seven years before, had had problems regarding homosexual activities and had once been hospitalized for psychiatric reasons, the public defender referred chiefly to a report concerning psychiatric examinations which had occurred earlier that year (1972) at St. Elizabeth's Hospital in Washington, D.C. These examinations were apparently conducted at the request of the United States Department of Justice to determine petitioner's competency to stand trial for the prior Federal charges mentioned above.
According to the public defender (the report not having been made part of the record), the report from St. Elizabeth's revealed that petitioner had been diagnosed by the psychiatrists there as an emotionally insecure individual, with strong feelings of suspicion and fear. The public defender went on to say that the psychiatrists at St. Elizabeth's did not feel that petitioner was psychotic, and furthermore, that:
"Whatever disagreements these doctors had, and they had major disagreements as to the cause, as to the course of treatment, etcetera, the one thing that all of the doctors were in complete agreement on, throughout the entire examination which lasted a matter of months, was the defendant was competent to stand trial, understood the nature and charges pending against him."
Although the public defender made several passing references to the fact that petitioner was currently undergoing psychiatric therapy at the Federal penitentiary in Terre Haute, Indiana, the public defender did not apprise the court of the more recent medical opinions of the psychiatrists there. Thus, when the court remarked that it thought petitioner's competency was "quite obvious with my dialog with the defendant today," it did so without regard to the medical reports from Terre Haute, but with the knowledge that petitioner was receiving psychiatric treatment there.
After the public defender stated that petitioner was "finally getting the psychiatric treatment he needs" at Terre Haute, petitioner stated: "I regret what happened and everything that has happened. I am coming around through my treatment and I am most anxious to get back to that." The court then imposed sentence.
Subsequently, in 1976, petitioner filed a petition for relief under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.). Petitioner claimed:
(1) That had the court at the change of plea proceeding been made aware of the Terre Haute medical reports, the court would have been apprised of sufficient evidence to create a bona fide doubt of petitioner's fitness to stand trial or plead;
(2) That the court should have ordered a current psychiatric report;
(3) That petitioner's counsel should have requested a current psychiatric report;
(4) That petitioner's counsel failed to inform himself regarding petitioner's fitness ...