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People v. Paul





APPEAL from the Circuit Court of Ogle County; the Hon. JOHN L. MOORE, Judge, presiding.


Rehearing denied March 16, 1981.

This is an appeal from a denial of a motion to withdraw a guilty plea. The defendant and a co-defendant were charged and subsequently indicted on November 14, 1978, with two counts of murder and one count of concealment of homicidal death. The defendant's motion for suppression of statements made by him on August 1, 1978, was denied. The defendant entered a negotiated plea of guilty to the offense of murder as an accessory on January 26, 1979. The record shows the plea was entered in exchange for dismissal of the concealment charge, imposition of a 20-year determinate sentence for the accessory to murder charge, and recommendation by the court and the State's Attorney that the defendant "be sent to the Diagnostic Center in Joliet, Illinois for 60 days prior to sentencing with a view toward recommending a minimum facility within the Department of Corrections." This type of presentence procedure is permitted under section 5-3-3 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-3). The defendant was then 19 years old and his prior criminal history consisted of several minor traffic offenses, and one incident of possession of 1.7 grams of marijuana. At the time of his arrest for the instant offense he was on deferred prosecution for the possession offense.

The essence of the factual basis for the plea was that on May 22, 1978, the defendant, co-defendant James Wilder, and the victim, Floyd Morrow, were at the Rochelle Conservation Club in Ogle County at which time Morrow was shot once by Wilder with a shotgun and died. The State's evidence would have shown the defendant did not pull the trigger but that the murder was premeditated by the defendant and Wilder. The record showed that a $500 tax refund check expected to be received by the victim was the possible motive for the murder. The record indicated defendant did not think Wilder was serious about killing Morrow, and that after Morrow had been shot, Wilder "turned" on the defendant and forced him to assist in Morrow's burial at the murder scene. The record reflects the defendant's statement that he and Wilder planned the murder when they were attending a rock concert in Wisconsin when they were high on drugs. The record also reflects the defendant stated he inscribed the name "Floyd" on a shotgun shell a week before the murder. The court accepted the guilty plea, noting that it and the State's Attorney would recommend a minimum security facility, unless the 60-day presentence evaluation at Joliet revealed need for another placement.

A presentence report was prepared by the Ogle County Probation Department and was filed on January 29, 1979, and the court entered its order sending the defendant to the Department of Corrections for 60 days. Three reports were received from the Adult Reception and Classification Services Unit at the Joliet Correctional Center and were filed on March 26, 1979. The first was prepared by psychiatrist C.T. Ciatteo; the second by casework supervisor David E. Steinberg; and the third by psychologist Robert A. Roe. Ciatteo's report reads in pertinent part:

"No formal mental illness found. He does not classify as a Sexually Dangerous Person. He is not mentally deficient. He is not mentally ill and not in need of mental treatment. He does not appear criminally-oriented. His personality reveals a fairly well-integrated, adjusted young man, with no significant psychiatric deficit. He says that at the time he felt the whole incident was a joke and that the outing at the club ended tragically. He does express remorse for the victim's death.

From a psychiatric standpoint, no recommendations are being offered. If incarcerated, he should get his GED and learn a trade. He has not been an institutional problem at this institution. Classification and placement will be performed when he is received at Joliet R & C. A protective type of institutional setting will be required for this young man and will so be recommended by the undersigned when received at R. & C."

Psychologist Roe's report reads in part:

"If he is placed in a correctional institution he will probably need to be separated to some extent from residents who are large and aggressive since he is young and relatively small physically. He tends to be rather personable but probably relates on a relatively superficial emotional level. He does not appear to be a basically criminally-oriented person."

Steinberg's report reads in pertinent part:

"Resident impresses as a non-aggressive, non-criminally-oriented individual whose values and attitudes appear near normative. He is still, however, somewhat impulsive and exercises poor judgment as demonstrated by involvement in the present offense. On an institutional level his adjustment should be adequate provided he is separated from larger and more aggressive residents. He should be given an opportunity to participate in a high school and GED program and eventually learn a vocational trade so he can support himself when released back into the free community. Counseling should focus on helping the process of socialization continue with this resident."

The sentencing hearing was held on August 16, 1979, at which time no evidence in aggravation or mitigation, save for the previously filed presentence report, was received. The judgment and sentence order entered the same day recites: "* * * The court hereby sentences said defendant to imprisonment in Joliet, Illinois Department of Correction [sic] and later to be at a minimum security and fixes the term of imprisonment at twenty years." According to a footnote in defendant's brief on appeal, the defendant is currently incarcerated in the Joliet Correctional Center, a maximum security facility.

• 1 Prior to judgment and sentence, however, on April 4, 1979, defendant's counsel was allowed to withdraw and new private counsel was substituted at the defendant's request. Counsel prepared and filed on May 15, 1979, a motion to withdraw defendant's guilty plea. The motion was unverified, not signed by the defendant nor supported by affidavit. The attorney's certificate required by Supreme Court Rule 604(d) to be filed in conjunction with such a motion was not signed by counsel until July 11, 1980, and was filed as supplement to the record in this court on July 22, 1980. We note that the filing of the Rule 604(d) certificate is a "condition precedent" to a ruling on the merits of a motion to vacate. (People v. Hummel (1977), 48 Ill. App.3d 1002.) However, when a Rule 604(d) certificate is filed in the reviewing court, the record on appeal is sufficient to permit review of the allegations of error, and where the purposes of the certificate have been fulfilled, the failure to file the certificate at the proper time is harmless error. (People v. Evans (1977), 46 Ill. App.3d 689.) The insufficient form of the motion itself is moot, since the court held a hearing on it on June 29, 1979.

The motion to withdraw contained the following four allegations:

"1. That the Defendant, prior to the acceptance of the guilty plea in open court, signed a statement prepared by his attorneys, JERROLD R. BEGER and WILLIAM E. SCHIRGER, of the law firm of SCHIRMER, SCHIRGER, GRAFF & BEGER, LTD., agreeing with the counts of the plea bargain and concurring with the principal points of advice given him that lead to said plea bargain.

2. That said statement, signed by Defendant, shows per se that Defendant was not receiving effective legal representation.

3. That the Defendant's signature on said statement prior to acceptance of guilty plea in open court, constitutes coercion.

4. That the Court, on the 26th day of January, 1979, was or should have been aware of the said agreement signed by Defendant, or the agreement should have been brought to the attention of the Court by JERROLD R. BEGER, attorney for Defendant."

The "statement" referred to in the motion was admitted as defendant's Exhibit 1 during the plea withdrawal hearing on June 29, 1979. The statement was signed by the defendant and both of his parents within the hour preceding the defendant's formal entry of his guilty plea on January 26, 1979. In essence, the statement recited the defendant's acknowledgement that he had been advised of the following facts by his principal attorneys, Jerrold R. Beger and William E. Schirger: That the trial is set for January 30, and the attorneys are prepared to go to trial; that statements made by him had been unsuccessfully attempted to be suppressed; that an unsuccessful search of the counsels' law office pursuant to a warrant to discover an allegedly illegal tape recording of a conversation between Attorney Beger and Ogle County Sheriff Brooks did not result in any disturbance to his file nor to any privileged documents relating to his trial; that he concurs with his counsel that a motion challenging the case based on the attorney-client privilege as a result of the search would be unavailing since there were no witnesses available to testify to any actual viewing of the file by the police; that the results of a polygraph exam which he took and during which he indicated there was a plan to murder Morrow, and indicated certain facts about a shotgun shell, a shovel and a burying episode — which facts he had not previously told his lawyers — were inadmissible during trial, but that the court may permit the polygraph examiner to testify to his conversation before, during and after the exam; that with knowledge of the aforegoing facts, it is his decision to proceed with the plea bargain agreement "under the condition that I would plead guilty to the offense of murder as an accessory having a determinate sentence of 20-years [sic] with the further understanding that I would be sent upon the State's Attorney's and courts> [sic] recommendation to a minimum security facility within the Department of Correction [sic]"; and that he further understood that the polygraph exam results would not be part of his permanent record, and no evidence or aggravated facts and circumstances would be entered into evidence at the time of his sentencing hearing.

During the hearing to withdraw the plea of June 29, 1979, the defendant testified as follows:

"Q [Mr. Roe, defense counsel]: Did you ask Mr. Beger any questions about the statement before signing it?

A [Defendant]: I asked if I would be — If they didn't send me to a minimum security penitentiary, if I would be able to change my plea, and he said yes I would.

Q: Now, what is your understanding of what a minimum security institution is, or ...

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