APPEAL from the Circuit Court of Cook County; the Hon. FRANK
WILSON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Petitioner appeals from an order dismissing his petition brought pursuant to the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) The issues presented in this appeal are (1) whether petitioner's plea of guilty was involuntarily made in violation of due process; and (2) whether Supreme Court Rule 402(d)(2) (Ill. Rev. Stat. 1977, ch. 110A, par. 402(d)(2)) required the trial judge to grant petitioner leave to withdraw his guilty plea.
It appears that petitioner was charged with attempt murder, attempt armed robbery, and two counts of aggravated battery. On May 19, 1975, he withdrew his original plea of not guilty and entered into plea negotiations with the State. In exchange for his guilty plea, the State agreed to recommend concurrent sentences of four to eight years for attempt murder and dual sentences of two to eight years for armed robbery and aggravated battery. Petitioner accordingly pleaded guilty, and the trial court after properly admonishing him determined that the plea was voluntarily entered, found a factual basis for the plea, and indicated its conditional concurrence in the plea agreement depending upon the results of the aggravation and mitigation hearing. The court also made the following statement to petitioner:
"And, you understand on that if you don't come back on the 19th of June [sentencing date], I can sentence you in absentia, which means that when you are not here I can still sentence you, and on that basis, for four to any number of years, if you don't come back."
To this statement petitioner replied, "I'll be here."
When petitioner failed to appear for sentencing on June 19 his bond was revoked, a warrant was issued for his arrest, and the matter was continued to June 29. On that date, he was again absent but the hearing in aggravation and mitigation was held, at which the prosecutor told the court:
"[I]t's the State's recommendation at this time, your Honor, seeing that Thomas Robinson didn't see fit to come back to court, on the charge of attempt murder, that he be sentenced to a period of not less than six nor more than eighteen years in the Illinois State Penitentiary; as to the charge of attempt armed robbery, for a period of not less than six nor more than eighteen years in the Illinois State Penitentiary, and as to the count for aggravated battery, a period of not less than three nor more than ten years in the Illinois State Penitentiary."
The trial judge then considered petitioner's presentence report along with the public defender's argument in mitigation, and sentenced petitioner to concurrent terms in accordance with the State's recommendation. After being apprehended and imprisoned, petitioner brought this petition for post-conviction relief which was dismissed on motion of the State.
1, 2 Petitioner first contends that his guilty plea was rendered involuntary by the fact that the prosecutor asked for a heavier sentence than that which he agreed to recommend in the plea agreement. The law in this regard is well settled. A plea of guilty made in reliance upon an unfulfilled promise of the prosecutor is not voluntary and thus violates defendant's due process rights. (Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495; People v. Pier (1972), 51 Ill.2d 96, 281 N.E.2d 289; People v. Mitchell (1970), 46 Ill.2d 133, 262 N.E.2d 915; People v. Washington (1967), 38 Ill.2d 446, 232 N.E.2d 738; People v. Price (1976), 36 Ill. App.3d 566, 344 N.E.2d 559.) In the case at bar, it is obvious that the State breached the plea agreement. The State had agreed to recommend concurrent sentences totaling four to eight years; but, in fact, recommended terms resulting in six to 18 years imprisonment. Thus, it would appear that the agreement was violated and petitioner's plea was therefore rendered involuntary and in violation of due process.
The State argues, however, that the plea was voluntary because petitioner was aware that his failure to appear in court could result in a more severe sentence. It is asserted that the trial court's warning of possible sentence increases in the event of his absence became part of the plea agreement and, therefore, in the context of the entire agreement, that no promises were breached. We recognize that petitioner was made aware of the possible consequences of his absence from court. However, this arose from the trial court's admonition and not from the agreement between petitioner and the State. Case law indicates that the question of the voluntariness of a guilty plea centers solely around the agreement between the State and defendant. For example, in Santobello v. New York, defendant pleaded guilty to a gambling offense and in exchange therefor the prosecutor agreed to make no recommendation as to sentencing. In court, however, a different prosecutor recommended the maximum one year sentence. When defense counsel objected, on the ground that this recommendation violated the plea agreement, the court stated the recommendations of prosecutors do not influence it and were irrelevant. The United States Supreme Court reversed, stating:
"We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts> * * *." (404 U.S. 257, 262-63, 30 L.Ed.2d 427, 433, 92 S.Ct. 495, 499.)
Thus, in Santobello, the trial court may well have sentenced defendant to the maximum one year term regardless of whether the State had made no recommendation, as agreed. Yet, even though the State's promise to recommend or not recommend a certain sentence may not have ultimately been considered by the trial court, the supreme court nonetheless attached constitutional significance to the agreement between the State and defendant.
In People v. Mitchell, the State breached its promise to recommend probation in exchange for a guilty plea. In a post-conviction petition, defendant alleged that the State's violation of the agreement rendered his plea involuntary and in violation of due process. The State argued that defendant could not have been induced to plead guilty by the State's promise to recommend probation, because he knew that such a recommendation would not be ...