The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
Petitioner, Ernest A. Mota ("Mota") brought this petition for
habeas corpus relief, seeking a remand to the state court for a
new sentencing hearing. Presently before the court are the
parties' cross-motions for summary judgment. For the reasons set
forth below, Mota's motion is granted and, accordingly,
Respondent's motion is denied.
The facts are not in dispute. In August 1982, Mota committed an
armed robbery of a restaurant in Calumet City, Illinois. Holding
eleven people at bay, Mota robbed the store of $7,000 and then
took one of the restaurant employees as a hostage to aid him in
his escape. Counts I through XI of the resulting indictment
charged Mota with armed robbery, one count representing each
employee present in the restaurant during the incident. Count XII
charged Mota with burglary of the restaurant. Counts XIII through
XXIV each charged Mota with the offense of armed violence,
Ill.Rev.Stat. ch. 38, § 33A-2; i.e., the commission of eleven
acts of unlawful restraint on the eleven employees while armed
with a gun. Count XXIV specifically dealt with Mota's conduct
toward the employee whom Mota took hostage during his escape.
Counts XXV through XXXV charged Mota with unlawful restraint.
Finally, Count XXXVI charged Mota with aggravated kidnapping of
the employee taken hostage.
Mota pleaded guilty to all thirty-six counts; however, the
judge accepted his plea only as to Counts I through XI and Count
XXIV. The court viewed all other counts as being "merged" into
those accepted. Thus, Count XII, the burglary count, was merged
into the eleven counts of armed robbery, as were Counts XIII
through XXIII and Counts XXV through XXXV. Count XXXVI, the
aggravated kidnapping count, was merged into Count XXIV, the
armed violence count. The court sentenced Mota to thirteen years
on Counts I through XI and thirteen years on Count XXIV, the
sentences to run concurrently.
Mota's lawyer, a privately retained attorney, subsequently
filed a motion to reduce sentence or, in the alternative, for a
new trial. Counsel specifically told the court that the motion
was not one to vacate the guilty plea. Rather, the motion simply
expressed the view that the sentence was too harsh. Mota's lawyer
argued that the evidence did not support ten of the armed robbery
counts. He contended that the manager of the restaurant was the
only person who had actually been robbed; the other employees
were present, but had had nothing taken from them. Thus, counsel
was concerned that the judge had relied improperly on the guilty
findings as to eleven counts of armed robbery when, in his view,
the evidence substantiated only one count.
The court responded that it did not find Mota's actions to
constitute thirteen separate armed robberies. The judge
considered it to be only one armed robbery, "one taking of one
quantity of money." (Transcript at 104.) The court further stated
that "whether it is one or thirteen complainants all persons
present, that in no way affected the Defendant's sentence. . . .
I am in no way regarding this as any more than one armed
robbery." (Transcript at 104-105.) The court did note that it
found the armed violence directed toward the hostage to be a
separate act, even though the sentence for that offense was to
Finding the sentences to be otherwise fair and correct, the court
denied Mota's motion.
Mota then appealed to the Illinois Appellate Court.*fn* That
court held that Mota could properly be convicted and sentenced on
only one count of armed robbery, as only one sum of money had
been taken from the restaurant manager. Accordingly, the court
affirmed the conviction and sentence for the armed robbery of the
manager, and vacated the ten other armed robbery convictions. The
court also reversed the judgment for armed violence based on
unlawful restraint (Count XXIV), relying on precedent set by the
Illinois Supreme Court in People v. Wisslead, 94 Ill.2d 190, 68
Ill.Dec. 606, 446 N.E.2d 512 (1983) (affirming the finding of the
circuit court that allowing the crime of armed violence to be
predicated on the offense of unlawful restraint is
It is clear that the sentencing process, as well as the trial
itself, must satisfy the requirements of the Due Process Clause.
Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51
L.Ed.2d 393 (1977). In United States v. Tucker, 404 U.S. 443,
92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the respondent was found
guilty of armed bank robbery and, after an inquiry into his
background by the district judge which revealed three previous
felony convictions, sentenced to twenty-five years in prison. It
was subsequently determined that two of the respondent's previous
convictions were constitutionally invalid.
The respondent filed a motion, claiming that the introduction
of evidence of his prior invalid convictions had fatally tainted
the jury's guilty verdict. The district court found that error
had in fact occurred, but held it was harmless error in light of
the other overwhelming evidence of the respondent's guilt. On
appeal, the Ninth Circuit affirmed the guilty verdict, but
concluded that the defective prior convictions might have led the
trial court to impose a heavier sentence than it otherwise would
have, and, accordingly, remanded the case to the district court
for resentencing without consideration of any prior invalid
The Supreme Court affirmed, holding that the court of appeals
was correct in remanding the case for resentencing, "[f]or if the
trial judge in 1953 had been aware of the constitutional
infirmity of two of the previous convictions, the factual
circumstances of the respondent's background would have appeared
in a dramatically different light at the sentencing proceeding."
Id. at 448, 92 S.Ct. at 592. See also United States v. Cardi,
519 F.2d 309, 311-12 (7th Cir. 1975); Tyler v. Swenson,
527 F.2d 876, 877 (8th Cir.), cert. denied, 425 U.S. 979, 96 S.Ct.
2185, 48 L.Ed.2d 805 (1976); United States v. Walters,
526 F.2d 359, 361 (3d Cir. 1975); Garrett v. Swenson, 459 F.2d 464, 466
(8th Cir. 1972).
The Court in Tucker acknowledged the trial judge's wide
discretion in determining what sentence to impose, and also
acknowledged that a sentence imposed by a trial judge, if within
statutory limits, is generally not subject to review. The Court,
however, rejected the petitioner's arguments that these
considerations disposed of the respondent's request, concluding
that such general propositions could not decide the case because
the Court was dealing "not with a sentence imposed in the
informed discretion of a trial judge, but with a sentence founded
at least in part upon misinformation of constitutional
magnitude." 404 U.S. at 447, 92 S.Ct. at 591. In light of this
reasoning, we reject Respondent's similar arguments in this case.
The Supreme Court's analysis in Tucker was extended by Judge
Friendly in McGee v. United States, 462 F.2d 243 (2d Cir.
1972), to cases in which a conviction on one or more counts of a
multi-count indictment is subsequently found to be invalid. The
defendant in McGee was convicted on four counts which were
prosecuted in one trial and upon which identical concurrent
sentences were imposed. Later, however, it was determined that
the conviction under one of those counts was unlawful. Relying on
Tucker, the court noted that:
[t]he trial judge's original sentencing determination
with respect to counts 2 through 4 could have been
influenced by appellant's conviction under count 1 —
just as evidence of a prior conviction might
influence a sentencing judge on a subsequent one. If
such were in fact the case, appellant's ...