APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
John D. Ferguson was convicted of murder following a bench trial and sentenced to a term of not less than 15 years nor more than 45 years in the penitentiary. His conviction was appealed on the grounds that he was denied a fair trial by reason of the alleged incompetency of his privately retained counsel and that he was not proven guilty beyond a reasonable doubt. The bases asserted for the former ground were that defense counsel was unprepared for trial and that he made an improper opening statement prejudicial to defendant. We affirmed that conviction in an abstract opinion ((1974), 25 Ill. App.3d 379, 323 N.E.2d 398). Defendant has been incarcerated for that offense since 1972.
Pursuant to the Illinois post-conviction hearing statute (Ill. Rev. Stat. 1975, ch. 38, par. 122-1 et seq.), defendant filed a pro se petition for post-conviction relief in July 1976. A motion to dismiss the petition was filed by the State; however, prior to a ruling on that motion the public defender of Cook County, now representing defendant, filed his supplemental petition in December 1978. The supplemental petition, supported by five affidavits, claimed that defendant was denied effective assistance of counsel and that he was deprived of his constitutional right to plead guilty. The State filed a motion to dismiss the supplemental petition as well and a hearing was held on both motions. The trial court, after considering the contents of the affidavits filed and oral argument presented by counsel, denied the post-conviction petitions.
With regard to the ground alleging incompetency of counsel, the trial court ruled that since this issue had been raised on the previous appeal and was decided adversely to defendant, it was res judicata. No appeal is taken from that part of the order of dismissal. The present appeal relates solely to the question of whether the trial court erred in allowing the motion to dismiss that part of the petition based upon the alleged violation of defendant's constitutional right to decide whether or not to plead guilty. The asserted deprivation occurred when defendant's privately retained counsel failed to communicate to him an offer by the State to plead guilty to a lesser included offense and to accept a reduced period of penitentiary time. For the reasons set forth below, we reverse and remand the cause for a new trial.
The principal disagreement between the defense and the State in this case is whether the communication between the assistant state's attorney and defense counsel rose to the dignity of an "offer," as claimed by defendant, or whether such indefiniteness permeated the State's communication as to reduce it to an "off-hand remark" which need not have been relayed to defendant, as claimed by the State. The affidavit sworn to by James Schreier, then assistant state's attorney, in pertinent part, reads as follows:
"6. That to the best of affiant's recollection he communicated before trial commenced, the following statement, in word or effect, to attorney Leonard Karlin: `Will your client take penitentiary time (the exact term of years I cannot now recall) on a plea of guilty to voluntary manslaughter?'
7. That sometime afterward, but before the trial started, affiant was approached by attorney Leonard Karlin with a negative response to the previous question concerning the defendant's change of plea." (Emphasis added.)
Defendant's counsel at that time, Leonard Karlin, submitted an affidavit in which he stated, with regard to this issue, in pertinent part:
"* * * The discovery material showed that the state's case was worthless and so full of holes, and dependent upon such incredible witnesses that he not only proceeded, but waived the jury.
The state's attorney did not offer any reduction in charges, and under the circumstances that the least term available was 14 years, * * * it was not worth sacrificing appellate rights by pleading to murder.
The state did not at anytime offer to reduce the charge of murder. Under the circumstances, counsel, who had expected an offer which never came, said to the relatives that we have no alternative but to fight the case to its conclusion * * *."
Two of defendant's relatives averred by affidavit that they heard Karlin acknowledge the transmittal of an offer in return for a plea but that he said they would not accept the "offer" because he thought defendant would "beat" the State's case against him. An affidavit by an assistant public defender relates to Karlin's recollection of events and modus operandi.
The trial court viewed the affidavits with some ambivalence. It first stated:
"I am more troubled by the issue concerning the question of the alleged failure of the attorney to convey to his client a recommended reduced offer reducing the charge to voluntary manslaughter for some time. No time specifically having been spoken of. My problem in that regards is simply this: had there been a request for a conference, and had the court indicated that he would accept the plea on the lesser included charge of voluntary manslaughter, and he would impose a sentence of `X' number of years, and that was not conveyed to the ...