APPEAL from the Circuit Court of Madison County; the Hon.
JOSEPH J. BARR, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Kurt Deming, entered a negotiated plea of guilty in the Circuit Court of Madison County to the offense of murder and was sentenced to a term of imprisonment of not less than 14 nor more than 25 years. In attempting to vacate his plea, defendant petitioned for relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) Defendant's original petition was dismissed on motion of the State, and he filed an amended petition. The State's motion to dismiss the amended petition was denied, whereupon the trial court immediately conducted an evidentiary hearing on the amended petition.
Defendant's amended petition was denied by the trial court, and he appeals raising the following issues: whether defendant was denied effective assistance of counsel at all times relevant to entering his plea; and whether defendant's decision to plead guilty was procured by a material misrepresentation on the part of the State concerning early parole. As a preface to these issues, defendant asserts that the State has judicially admitted the allegations contained in the amended petition due to its failure to file an answer to the amended petition.
Defendant and Roger Spain were jointly indicted for the January 16, 1971, murder of William Slepawick, who was fatally wounded by a shotgun blast to the head. At defendant's trial the State sought the death penalty, but after two days of jury selection, defendant entered a negotiated plea of guilty. The murder charge against Spain was subsequently dismissed.
In his amended petition for post-conviction relief, defendant alleges that in July [sic] 1971, he pleaded guilty to the murder of William Slepawick; that said plea was predicated upon defendant's knowledge of the existence of a confession which was coerced and made before defendant was adequately informed of his Miranda rights; that at the time of said plea the State's Attorney knew, or should have known, that defendant had six alibi witnesses, which the State's Attorney should have made known to the court before defendant's plea was accepted, since it tended to establish the innocence of the defendant and would have put the court on inquiry as to the voluntariness of the plea of guilty or the truth of same; that the combination of the coerced confession and disregard of defendant's defense so overcame the volition of defendant that he pleaded guilty to a crime he did not commit, all in violation of his constitutional right to remain silent, to be confronted by his accusers, to due process and to a fair and impartial trial by a jury of his peers; and that defendant was sentenced to 14 to 25 years and is presently serving that sentence in Menard Penitentiary, Chester, Illinois. Defendant's amended petition further alleges that "the Court file in this cause shows that an appearance was filed on behalf of Roger Spain, Co-Defendant, by attorneys, Charles M. Shaw, Robert L. Officer and Ralph L. Markus of 225 South Meramec, Clayton, Missouri. However, when the purported plea of guilty was entered by Defendant, Kurt Deming, on June 29, 1971 the file reflects that he was represented by attorneys, Joseph Hill and Terry Flannigan"; that "the parents of Kurt Deming hired attorneys, Shaw, Officer and Markus, to represent the Petitioner. That they neither withdrew nor advised the Petitioner, nor his parents, that they were representing Spain who was to be a witness against Kurt Deming"; that neither defendant nor anyone in his behalf retained Joseph Hill or Terry Flannigan, who pleaded defendant guilty; and that "while he was in custody and without representation of the lawyers hired by his parents to induce him to plead guilty, assistant State's Attorney Robert Trone promised Kurt Deming that if he pleaded guilty on June 29, 1971 and had no marks against him in the penitentiary which would affect his record of good behavior that he would be released on parole the first time he came up for consideration. In reliance thereon and in the absence of his duly paid attorneys, Kurt Deming thereupon pleaded guilty. That he came up for parole on February 7, 1978 and even though he had a record of good behavior, he was not released as promised."
In his prayer for relief, defendant requested that his guilty plea be vacated and that he receive a new trial.
The State moved to dismiss the amended petition. A hearing on the motion to dismiss was held on March 28, 1979, and after denying the motion from the bench, the trial court conducted an evidentiary hearing on the merits of the amended petition.
Defendant's mother, Mary Jane Deming, testified that she and her husband retained Charles M. Shaw of the law firm of Shaw, Officer and Markus to represent defendant on the murder charge and that Shaw was paid a retainer of $3,000. Mrs. Deming stated that subsequent to defendant's guilty plea she was informed by her husband, now deceased, and a daughter, Pamela Marlene Ridenhour, that Shaw's firm also represented Roger Spain in the same matter. Mrs. Ridenhour related that a conversation involving defendant, his father, and Robert Trone, an assistant State's Attorney, took place in her presence and precipitated the guilty plea. In this conversation Trone informed defendant of the possible consequences of a negotiated plea of guilty. She stated that, in exchange for a plea of guilty to murder, Trone offered to recommend that defendant be sentenced to a term of imprisonment of not less than 14 nor more than 25 years and that, in addition, Trone promised defendant that he would be eligible for parole within seven or eight years. She recalled that Trone assessed defendant's chances of making early parole by stating that due to his young age, and provided that he serve his prison time without incident, he would be paroled the first year he was eligible. According to Mrs. Ridenhour, defendant decided to plead guilty immediately after this conversation.
Defendant testified that his decision to plead guilty was a direct result of Trone's promise that he would be paroled the first year he was eligible. He also stated that he did not retain Joseph Hill to represent him. He initially met with Hill on the day he pleaded, but he indicated that Hill may have been present in the courtroom during the two days of jury selection. On cross-examination he conceded that at the time he entered his plea he did not make it known to the court that he was dissatisfied in any way with his trial counsel.
Trone testified that he conducted plea negotiations with "Joe Hill," although he could not "place his face," and that there "was somebody else with him from a law firm in St. Louis." When asked whether he promised defendant early parole in exchange for a guilty plea, he responded:
"I could not have made him that promise and did not make him that promise because it would be beyond my power. Which his attorneys were present and were well aware — ."
Joseph Hill testified that he was asked to represent defendant in the capacity of local counsel because the attorney who was representing defendant at the trial was not licensed to practice law in Illinois. Hill's recollection of the plea negotiation was sketchy; and although he was unable to recall the name of the attorney he was assisting, the record indicates that it was Terry J. Flannigan. Thus, the record reflects that Flannigan was not licensed to practice law in Illinois.
After taking the matter under advisement, the trial court entered an order denying the amended petition, and defendant perfected this appeal.
Defendant contends that the State's failure to file an answer to the amended petition constituted a judicial admission of the factual allegations presented in such petition. This contention is based on the premise that petitions for post-conviction relief are civil in nature and, as such, are subject to the provisions of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.). Defendant argues that section 1 of the Civil Practice Act states that all civil proceedings, except those specifically exempted, are subject to the provisions of the Act. Since ...