APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
On June 16, 1976, defendant was convicted in McLean County of forgery and attempted theft. Defendant was sentenced to concurrent terms of 3 years' probation. Among the conditions of probation was that he would not violate any criminal statutes.
On January 18, 1978, defendant, pursuant to a plea agreement, pleaded guilty to burglary in Vermilion County and was sentenced, on March 10, 1978, to probation with a 1-year periodic imprisonment as a condition of probation. Part of the plea agreement was that the burglary conviction could not be used to revoke defendant's probation in McLean County. The following exchange took place at the sentencing hearing:
"MR. RYAN [Assistant State's Attorney]: The defendant would be guaranteed probation for three years, all of the terms and conditions open and the State would agree not to violate any present probation based on this plea taken here today * * *. No additional charges based on any violations of the law which the State presently has knowledge of would be filed against defendant.
MR. SERVER [Defense Counsel]: So the record is clear there exists at the present time in the 11th Judicial Circuit for the State of Illinois in McLean County, two criminal matters pending against Mr. Wantland * * *. It is these two particular criminal matters that are included in the agreement here today that will not be violated. He is serving 5 [sic] years' probation on these two charges * * *.
MR. RYAN: I would ask if the Court is aware there is probation in another county.
On April 3, 1978, a petition to revoke defendant's probation was filed in McLean County. The ground for revocation was the Vermilion County burglary conviction. On May 16, 1978, defendant moved to dismiss the petition because, in return for a guilty plea, the State had agreed not to seek to revoke his probation as one of its obligations under the agreement. The motion to dismiss was denied. After a hearing, the trial court found that the State had proved that defendant had violated the conditions of probation and ordered that the probation be revoked. Defendant was sentenced to concurrent terms of 27 to 81 months' imprisonment.
On appeal, defendant argues that the trial court erred in revoking his probation. Defendant submits that because the Assistant State's Attorney in Vermilion County agreed, inter alia, that defendant's McLean County probation would not be revoked if he pleaded guilty to the burglary, this court should reverse the trial court and order specific performance of the plea agreement.
The State contends that the promise made by a Vermilion County State's Attorney was not binding on the McLean County State's Attorney. Furthermore, it is argued, even were the promise held to be binding, the remedy would be withdrawal of the guilty plea rather than specific performance.
It is undisputed that the plea agreement provided that his probation would not be the subject of a petition to revoke. The agreement was not fulfilled. It is also undisputed that the circuit court judge in Vermilion County who accepted the plea agreement was aware that the probation had been imposed in McLean County. The McLean County State's Attorney had not been informed of the agreement when it was made.
1 Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495, involved a plea agreement that was struck between a defendant and an Assistant District Attorney. The prosecutor agreed to make no sentence recommendation for the lesser offense to which defendant pleaded guilty. The court accepted the plea. At the sentencing hearing, another prosecutor from the same office recommended the maximum sentence, which the trial court imposed. The trial court stated that the District Attorney's promises are of no consequence.
In vacating the judgment, the Supreme Court observed:
"The plea must * * * be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. [Citations.] A court ...