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People v. Cowherd

OPINION FILED MAY 17, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM T. COWHERD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Defendant, William T. Cowherd, appeals from the dismissal without an evidentiary hearing of his amended post-conviction petition filed pursuant to the Post-Conviction Hearing Act. Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.

The only issue defendant raises on appeal is whether the trial court erroneously dismissed his amended post-conviction petition because the court failed to consider the decision in People v. Hill (1980), 78 Ill.2d 465, 401 N.E.2d 517, decided subsequent to his direct appeal, as establishing a constitutional right to a fair trial as applied to the facts alleged in the amended petition.

The defendant was originally found guilty in a jury trial of an armed robbery which occurred on March 22, 1977, and was later sentenced to a term of imprisonment of not less than 20 nor more than 60 years. On direct appeal to this court, we affirmed the defendant's conviction in People v. Cowherd (1980), 80 Ill. App.3d 346, 399 N.E.2d 672, filed January 14, 1980. One of the issues raised in that appeal was whether prejudicial error was committed in violation of Supreme Court Rule 402(f) (87 Ill.2d R. 402(f)) when Detective Summerford testified to statements made by the defendant and referred to certain plea negotiations with defendant. We found that the conversation related by Detective Summerford did not come within the spirit and intent of Supreme Court Rule 402(f). We concluded that the rule contemplated actual plea discussions between the accused and the competent State authorities charged with the negotiations of guilty pleas and sentences.

Subsequent to our decision, our supreme court on February 22, 1980, filed its decision in People v. Hill (1980), 78 Ill.2d 465, 401 N.E.2d 517. In Hill, the court held that the admission of testimony of plea negotiations, which violates Rule 402(f), is of such devastating effect that the error is so prejudicial as to require reversal and cannot be harmless error. (78 Ill.2d 465, 474, 401 N.E.2d 517.) Additionally, the court held that the fact that the party to whom the statement was made did not have actual authority to enter negotiations is not, standing by itself, sufficient to render the statement admissible. (78 Ill.2d 465, 473, 401 N.E.2d 517.) Supreme Court Rule 402(f) provides:

"If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding." 87 Ill.2d R. 402(f).

On April 15, 1982, defendant filed his pro se petition for post-conviction relief alleging that Detective Summerford's testimony disclosed plea discussions in violation of Rule 402(f) which, under the decision in People v. Hill filed subsequent to his direct appeal, is reversible error. Counsel was appointed to represent defendant and an amended post-conviction petition was filed which stated the same basis for relief but further alleged that this was a substantial denial of his constitutional rights. Without conducting an evidentiary hearing, the trial court granted the State's motion to dismiss the amended petition finding there was no showing of a constitutional violation so as to require a hearing and that the same issue had been decided on defendant's direct appeal.

The relevant testimony, which defendant maintains violated Rule 402(f) and is of constitutional dimension, was given by Detective Summerford on direct examination at defendant's jury trial. Since the testimony of Detective Summerford set forth on pages 352-53 of our opinion in People v. Cowherd (1980), 80 Ill. App.3d 346, 399 N.E.2d 672, was Summerford's testimony at a motion to suppress, we set out his substantially similar testimony before the jury, pertinent to the issue raised:

"[Detective Summerford]: We discussed an armed robbery of Ashland Jewelers, we discussed some engotiations [sic] that had been made by our State's Attorney, and we discussed some possible negotiations being made with —

MR. STONE [Defendant's Attorney]: Objection, Your Honor.

MR. FOX [Prosecutor]: All right.

THE COURT: If he wishes to testify as to conversations, I think he should testify as to the entire conversation. What did you say to him and what did he say to you?

BY MR. FOX:

Q. What did you say to him at that time and what did he say to you with reference to ...


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