APPEAL from the Circuit Court of Kankakee County; the Hon.
HERMAN HAASE and the Hon. PATRICK BURNS, Judges, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This appeal was brought by the defendant-petitioner, Rodney Robinson, from an order entered in the Circuit Court of Kankakee County, denying his petition for post-conviction relief. The petitioner previously pleaded guilty to an allegation of burglary; and, pursuant to plea negotiations, the circuit court sentenced him to a term of 5 years of imprisonment to be served concurrently with a previously entered sentence of not less than 3 and not more than 9 years' imprisonment.
The only issue raised on appeal is whether comments made by the petitioner's defense counsel concerning the petitioner's parole eligibility constituted ineffective assistance of counsel. We affirm.
During the plea negotiations, the court had fully and properly advised the petitioner according to Supreme Court Rule 402 (84 Ill.2d R. 402). Nevertheless, approximately 11 weeks after entering his guilty plea, the petitioner filed a post-conviction petition. The petition alleged that his guilty plea was unintelligent and involuntary because of the ineffective assistance of his privately retained counsel. Specifically, he asserted his defense counsel induced the petitioner to believe that the 5-year (determinate) sentence would not delay his parole eligibility on his prior 3- to 9-year (indeterminate) sentence.
At the evidentiary hearing, the State produced the testimony of the petitioner's former defense counsel; and the petitioner testified in support of his petition. Each witness' version of a discussion, which preceded the taking of the guilty plea, was consistent up to the point where the issue of parole eligibility was raised. According to counsel, he advised the petitioner that he would be eligible for parole on the indeterminate sentence after a specified period of time which counsel could not recall at the hearing. In this regard, counsel admitted showing to the petitioner a Department of Corrections schedule indicating when he would be eligible for parole on the indeterminate sentence. Although unable to remember what he said in regard to whether the petitioner would have a parole hearing, counsel did remember advising the petitioner that if he did receive a parole hearing, it was counsel's opinion that the petitioner would not be paroled the first time. Counsel thought that due to the instant offense the parole board would continue the parole consideration until the petitioner served 2 1/2 years of the 5-year sentence, the minimum sentence required for that sentence. He also told the petitioner that if the parole board did parole him it would not be to the streets, but it would parole him to the balance of the 5-year sentence because it could not release the petitioner until he actually served the 2 1/2-year minimum. Counsel denied he led the petitioner to believe that he would be released when he was eligible for parole on the 3- to 9-year term regardless of how much time was left on his 5-year sentence. Counsel did tell the petitioner that accepting the 5-year term would be like not getting much time at all because the earliest that he could be paroled on the 3- to 9-year sentence was close to the 2 1/2-year minimum required on the 5-year term. If both sentences were looked at together, the petitioner would not in truth be getting much more time on the instant offense than he actually had to serve before possibly being considered for parole on the 3- to 9-year term. But counsel specifically denied telling the petitioner that it would be like serving no time at all. Counsel also denied advising the petitioner that, because of the subsequent conviction, the parole board could "max out" the petitioner, or deny parole on the indeterminate sentence until he served the maximum term.
According to the petitioner's testimony, counsel informed him that the petitioner would probably max out on the 3- to 9-year sentence because of the instant conviction. Insofar as the maximum on the former sentence was surely more than the minimum 2 1/2 years he would have to serve on the 5-year sentence, it would be like getting no time at all. According to the petitioner, he would be getting out at about the same time on both sentences under this sentencing scheme. The petitioner also specifically admitted that when he went before the parole board the first time he thought that it would not release him on parole. However, the petitioner did expect to be paroled on the 3- to 9-year sentence before he had completed the 5-year sentence because at the time he pleaded guilty in the case at bar, he had already served 13 months on the former sentence. It was not until March 15, 1980, when the petitioner checked with the penitentiary records office, that he discovered he was not even eligible for a parole hearing on the indeterminate sentence until he had completed the 5-year determinate sentence. Following closing arguments, the court found that the trial court had properly admonished the petitioner, that counsel had effectively assisted the petitioner, and that the petitioner's plea of guilty was entered knowingly and voluntarily.
• 1 On appeal, the petitioner contends that counsel's own testimony demonstrated he failed to properly advise the petitioner of the consequences of his guilty plea. He argues the only conclusion which can be made from counsel's comments to the petitioner was that he would be paroled prior to the completion of his determinate sentence and that the determinate sentence would not hinder his parole eligibility on the indeterminate sentence. In fact, as the petitioner correctly asserts, he must complete his determinate sentence before becoming eligible for parole on the other sentence. Assuming he receives good time credit while serving the 5-year sentence, he would complete the determinate sentence, and thus be eligible for parole on the former sentence, in November 1981. On the other hand, without the second conviction, the petitioner would have become eligible for parole on the indeterminate sentence in October 1980, according to Department of Corrections Regulations 813 and 866. Therefore, relying upon People v. Owsley (1978), 66 Ill. App.3d 234, 383 N.E.2d 271, the petitioner asserts that such misadvice constitutes ineffective assistance of counsel. We disagree.
In Owsley, the defendant alleged, in her motion to withdraw her guilty plea, that her guilty plea had been induced by her counsel's misrepresentations concerning several freedom-related opportunities: parole eligibility, prison furloughs, and work release. She further alleged that after she had learned of the misrepresentations, her counsel advised her not to bring the issue to the attention of the trial court. Her motion, which was supported by two affidavits, was dismissed without a hearing. On appeal, this court reversed and remanded the cause for evidentiary hearing, holding that the defendant's allegations, if proved, constituted ineffective assistance of counsel. The Owsley court declared that a defendant should not be misled by counsel on such an important consideration as parole eligibility and other freedom-related benefits. See also People v. Wills (1975), 61 Ill.2d 105, 330 N.E.2d 505, cert. denied (1975), 423 U.S. 999, 46 L.Ed.2d 374, 96 S.Ct. 430.
• 2 The petitioner's reliance upon Owsley is misplaced. At the outset, we emphasize that the factual setting upon which our review in Owsley was predicated is inapposite to the case at hand. In Owsley, the trial court dismissed without a hearing the defendant's allegations of ineffective assistance of counsel. To the contrary, in the present case, the trial court heard all relevant evidence and legal arguments offered on the issue of ineffective assistance of counsel and thereafter resolved issues of law and fact, ultimately ruling against the petitioner. In addition, evidence of the type of purposeful misrepresentation and concealment of counsel's actions, which prompted this court in Owsley to remand the cause for an evidentiary hearing, is lacking in the instant case. Furthermore, unlike the allegations of concrete and misleading declarations of the consequences of pleading guilty which were presented to this court in Owsley, the petitioner herein complains of what could be described as mere predictions which, if unfulfilled, do not give the petitioner a right to post-conviction relief. People v. Ring (1978), 59 Ill. App.3d 852, 376 N.E.2d 363; People v. Willis (1977), 50 Ill. App.3d 498, 365 N.E.2d 597.
Finally, we are not presented in the instant case with the inherent conflict situation, such as we were in Owsley, wherein counsel at the post-conviction proceeding was the same counsel who had allegedly afforded ineffective assistance at the defendant's hearing on the guilty plea. Accordingly, we find that the trial court did not commit error in denying petitioner's petition for post-conviction relief.
Petitioner also asked us to review separately the trial court's ruling denying his motion to withdraw his plea of guilty to the burglary charge. The appeal was consolidated with the appeal of the trial court's order denying petitioner post-conviction relief. The sole issue of both relates to whether petitioner's plea was knowingly and voluntarily given. Our opinion herein disposes of both appeals.
For the foregoing reasons, we affirm the judgment of the Circuit Court of Kankakee County.