Appeal from the Circuit Court of Peoria County; the Hon. James
M. Bumgarner, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1986.
On September 21, 1982, the defendant, Enricho Navarroli, was charged with unlawful possession of cocaine with the intent to deliver (a Class X felony), and unlawful possession of cocaine (a Class 1 felony). The defendant subsequently filed a motion to enforce an alleged plea agreement. Under the claimed agreement, the defendant had acted as an informant in exchange for a reduction in charge and the imposition of probation. The trial court found that a valid agreement existed and ordered the State to comply with the alleged terms of the plea agreement. The State argues on appeal that the defendant failed to prove the existence of such an agreement whose terms were as the defendant alleged and that even if the agreement did exist, specific performance could not be used to enforce an unexecuted plea agreement. We reverse.
On March 15, 1984, the parties appeared before the court for the purpose of the defendant entering a blind plea to the Class X felony. In exchange, the State agreed that, although it would not stand mute, it would not seek a specific number of years for a sentence. Counsel for the defendant, however, requested a continuance because the defendant had been admitted to a hospital.
On August 27, 1984, the defendant filed a motion to compel the State to adhere to a proposed plea-bargain agreement. The defendant alleged that after his arrest in 1982, he had acted as an informant in various drug investigations in order to obtain a reduction of his Class X felony charge and a sentence of probation accompanied by a fine. According to the defendant, the plea agreement also provided that when Department of Law Enforcement Agent Joseph Hobbick reported to the State's Attorney that he was satisfied with the defendant's cooperation, the State would reduce the charge and agree to a period of probation and a fine. The defendant further alleged that after he assisted law-enforcement officials, the State's Attorney refused to reduce the charge. In response, the State denied that there was any agreement to reduce the Class X felony charge so that the defendant could receive the sentence of probation.
At the hearing on the defendant's motion, the evidence established that a meeting was held in the Peoria County State's Attorney's office in June 1983. In attendance at the meeting were State's Attorney John Barra, Assistant State's Attorney Robert Gaubas, Agents Joseph Hobbick and William Haley, defense attorney Mitchell Caplan and the defendant. The purpose of the meeting was to discuss the defendant's offer of assistance in regard to other drug investigations, in exchange for which defendant sought some form of consideration for his case.
The witnesses for the State were generally in agreement that the State's Attorney made no specific promise to reduce the charges against defendant in return for his assistance in other drug investigations but that the State's Attorney did agree to consider defendant's cooperation in determining the length of sentence to recommend. The State's witnesses testified specifically that there was no promise to reduce the Class X felony charge to a lesser offense if defendant cooperated. On the other hand, defendant and his attorney testified that the State's Attorney did promise to give defendant probation and a fine if Agent Hobbick would say that defendant had done enough for him in connection with the other investigations. Agent Hobbick later wrote a letter to the State's Attorney, indicating that the defendant's assistance resulted in the arrests of two persons and that Hobbick was satisfied with defendant's cooperation.
At the conclusion of the hearing on defendant's motion, the trial court found that there was an agreement between defendant and the prosecutors and that defendant had performed his part of the agreement. As to the terms of the State's promise to defendant, the court found that the evidence was conflicting "to the degree that a fact finder could decide either way without such finding being contrary to the manifest weight of the evidence." The court then stated that whether or not the prosecution made the specific promise of probation as claimed, the reasonable inference from the evidence was that defendant so believed and that this belief was not unreasonable under the circumstances. The court ruled that defendant was entitled to receive probation and a fine, leaving to the parties and the sentencing judge the matters of reducing the charge, the length and terms of probation, and the amount of the fine.
On appeal, the State contends that the findings of the trial court were contrary to the manifest weight of the evidence, that the court erred in using a subjective standard to establish the terms of the alleged agreement, and that, as aforesaid, even if a plea agreement had been negotiated as alleged, defendant was not entitled to specific performance.
• 1 The determinative issue, we believe, is the State's contention that defendant is not entitled to specific performance of a plea agreement where he has not been deprived of his liberty or any other constitutionally protected interest in reliance on the agreement. Although it is well established that due process entitles a defendant to remedial relief when a prosecutor breaches an executed plea agreement (Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495), this same due process analysis does not necessarily apply to executory plea agreements:
"A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution." Mabry v. Johnson (1984), 467 U.S. 504, 507, 81 L.Ed.2d 437, 442, 104 S.Ct. 2543, 2546.
The court in Mabry determined to be irrelevant the negligence or culpability of the prosecutor with regard to a proposed offer which was withdrawn after acceptance. Under Mabry, therefore, a defendant's acceptance of a proposed plea bargain does not create a constitutional right to have the bargain enforced.
Based on the Mabry analysis of executory plea agreements, specific performance of a proposed plea bargain was recently rejected by the Illinois Supreme Court in People v. Boyt (1985), 109 Ill.2d 403. There the defendant had allegedly agreed to testify against a co-defendant in exchange for a reduction of her Class X charges. Before the agreement could be consummated, the co-defendant pleaded guilty, and the State subsequently repudiated the agreement. The Boyt court held that even if the State initially accepted the defendant's plea proposal, its later repudiation of the agreement had no constitutional significance:
"The State's refusal to abide by the agreement did not deprive defendant `of liberty or any other constitutionally protected interest' [citation], since she did not plead guilty to any charge in reliance on the agreement. The defendant * * * was not prejudiced by the State's refusal ...