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UNITED STATES EX REL. JOHNSON v. DEROBERTIES

United States District Court, Northern District of Illinois, E. D


June 11, 1982

UNITED STATES OF AMERICA EX REL. RICHARD JOHNSON, PETITIONER,
v.
RICHARD DEROBERTIS, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Richard Johnson ("Johnson") filed a petition for a writ of habeas corpus on April 24, 1981, seeking review in this Court of the circumstances surrounding his plea of guilty to two counts of armed robbery in state court in 1977. Johnson alleges that the state tria judge's failure to inform him that his sentence would include a five-year mandatory parole term*fn1 in addition to a prison term vitiated the voluntariness of his guilty plea and denied him due process of law. Having exhausted all available state remedies on this claim,*fn2 Johnson has now moved for summary judgment in favor of his petition. Respondent, Richard DeRobertis, warden of Stateville Correctional Center, has moved for summary judgment denying the petition. For the reasons given below, petitioner's motion is granted and respondent's motion is denied.

Johnson was arrested and charged with armed robbery in two separate indictments on August 24, 1976. Although he originally pleaded not guilty to both indictments, Johnson changed his pleas to guilty on June 10, 1977, following a round of negotiations involving the trial judge, the assistant states attorney and defense counsel. After accepting Johnson's guilty pleas, the trial judge sentenced him to concurrent terms of eight years to eight years and one day in the Illinois prison system. Johnson did not learn until several months later that his sentence also included a mandatory parole term of five years as provided by Illinois law. Johnson has since testified that he would not have pleaded guilty had he known that his sentence would include a five-year parole term in addition to the eight-year prison term allegedly bargained for in the course of plea negotiations.

In United States ex rel. Baker v. Finkbeiner, 551 F.2d 180, 183 (7th Cir. 1977), the Seventh Circuit held that the trial court's failure to inform a state criminal defendant of a mandatory parole term accompanying his negotiated prison sentence violated the due process clause of the fourteenth amendment. The Court reasoned that "because a criminal defendant waives a number of important constitutional rights when he pleads guilty, courts must diligently labor to ensure that bargaining which accompanies a guilty plea satisfies the constraints of fundamental fairness." Baker, supra (citations omitted). A plea bargain is fundamentally unfair where a defendant agrees to plead guilty in exchange for the promise of a specific prison sentence, ratified by the trial judge, but (as in the instant cause) is not informed of the parole term accompanying the sentence. Id.

The parties do not dispute that prior to his guilty plea, Johnson's attorney engaged in pretrial plea negotiations with both the assistant states attorney assigned to the case and the trial judge. Griffith Affidavit, ¶ 4; Kadish Affidavit, ¶ 5. Respondent contends, however, that these negotiations yielded no agreement. Therefore, respondent argues, Johnson entered his plea of guilty without a justified expectation of a specific sentence and was not deprived of the benefit of any bargain by receiving a sentence which included a mandatory parole term. Cf. United States ex rel Williams v. Morris, 633 F.2d 71, 76 (7th Cir. 1980), vacated on other grounds, Lane v. Williams, ___ U.S. ___, 102 S.Ct. 1323, 71 L.Ed.2d 508 (1982); Bachner v. United States, 517 F.2d 589, 597 (7th Cir. 1975). On the other hand, petitioner argues that he pleaded guilty in reliance on an agreement between his attorney and the prosecutor, ratified by the trial judge, to sentence him to eight years to eight years and one day — without any mention of a parole term.

Resolution of this case depends, in large part, on whether there was any plea bargain agreement concerning petitioner's sentence to which the trial court was bound. Upon examination of the entire record in this case, the Court concludes as a matter of law that such an agreement did exist and the trial court's failure to advise the defendant that part of his bargain included a mandatory parole term violated the due process clause of the fourteenth amendment.

Gary Griffith, the assistant states attorney who participated in the plea negotiations with Johnson's trial counsel, has submitted an affidavit in support of respondent's motion for summary judgment stating that "no agreement was reached between defense counsel and myself as to any recommended sentence." Griffith Affidavit, ¶ 6. Griffith's affidavit also reveals, however, that the trial judge "did, in pre-trial conference, indicate that he would sentence the defendant to eight (8) years to eight (8) years and one (1) day." Griffith Affidavit, ¶ 8. This latter representation is consistent with the sworn statement of Marc Kadish, petitioner's trial counsel, Kadish Affidavit, ¶ 6, and the understanding of Johnson himself, who learned of the judge's position through Kadish.*fn3 Johnson Affidavit, ¶ 6. The judge's commitment to sentence Johnson to eight years to eight years and one day is also reflected in the colloquy between Marc Kadish and Judge Prentice H. Marshall of the Northern District of Illinois in a sentencing proceeding on federal counterfeiting charges against Johnson several hours before petitioner pleaded guilty on the two state indictments for bank robbery. Kadish told Judge Marshall that "[w]e have a plea bargain agreement on the state matters" and that "Judge Sulski has agreed to impose eight to eight and a day."*fn4 Transcript of Proceedings, 76 CR 1255, pp. 3, 4-5 (June 10, 1977).

The judge's expressed intention in plea negotiations to sentence Johnson to eight years to eight years and one day brings this case under the general principle of Baker, supra. Baker establishes that the trial court is bound to a plea bargain when it participates in the plea negotiation process and ratifies the resulting agreement. A defendant who pleads guilty in reliance on such an agreement cannot be sentenced to a term longer than he was promised. In the present case, the trial judge virtually sealed the plea agreement by disclosing the sentence he would impose once the petitioner pleaded guilty. This disclosure obviated the need for further negotiations between the states attorney and defense counsel. If a trial court is bound by an agreement it ratifies, it is surely bound by an agreement it authors.*fn5

Once the trial judge disclosed his intention, Johnson's reliance on that disclosure when deciding whether to plead guilty was entirely reasonable. The unfairness resulting from the court's failure to inform Johnson that his sentence would also include a parole term is not mitigated by the fact that the states attorney did not concur in the sentence. Only the trial court has the authority to make a promise the defendant can rely upon and enforce, if necessary. Bachner, supra. The prosecutor's unwillingness to agree to that promise does not alter its enforceable character.

Accordingly, petitioner's motion for summary judgment is granted and respondent's motion is denied. It is so ordered.


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