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People v. Petrovic

OPINION FILED SEPTEMBER 10, 1986.

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

v.

DAVID PETROVIC, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, David Petrovic, pleaded guilty, pursuant to a plea agreement, to the offense of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(3)) and was sentenced to a term of 14 years' imprisonment. His motion to withdraw the guilty plea was denied, and defendant appeals, contending (1) the State breached the plea agreement; (2) the trial court failed to identify the evidence upon which it relied in imposing sentence; and (3) the sentence was excessive.

Defendant was charged by indictment with two counts of taking indecent liberties with a child under the age of 16 years (Ill. Rev. Stat. 1983, ch. 38, pars. 11-4(a)(1), (a)(3).) On October 11, 1983, he entered a plea of guilty to count II before Judge Jack Hoogasian and, as a part of defendant's agreement with the State, count I was dismissed. A sentencing hearing was held on November 23, 1983, in which evidence was received, and defendant was sentenced to an extended term of 26 years' imprisonment. Subsequently, defendant's motion to withdraw that guilty plea was granted by Judge Hoogasian as defendant had not been admonished of the possibility he might receive an extended-term sentence.

The case was reassigned to Judge Lawrence Inglis before whom, on March 12, 1984, defendant again entered a plea of guilty to count II of the indictment and count I was dismissed by the State. Defendant was fully admonished by the trial court pursuant to Supreme Court Rule 402 (87 Ill.2d R. 402), and does not now contend otherwise. Before the trial court accepted defendant's guilty plea, the judge was informed of the terms of a plea agreement entered between defendant and the State, as follows:

"MR. CHANCEY [assistant State's Attorney]: The sum and substance of the negotiation is that the defendant would plead guilty to Count 2 of the indictment which alleges the offense of indecent liberties with a child in that he performed an act of lewd fondling of a child under the age of 16 years. The State would nolle pros Count 1 of the indictment which alleges an act of sexual intercourse with the same victim. The sentence would be left up to the Court.

At the sentencing hearing, it's agreed by the parties that the transcript and the evidence which was presented at the first sentencing hearing before Judge Hoogasian would be provided to the Court so that instead of calling all the witnesses again, you could read those.

Also, I believe the defendant would be asking for a court appointed psychiatrist, and the State has no objection to that.

I believe those are all the terms of the negotiation.

MR. RAFFERTY [defense counsel]: That's correct."

The trial judge also explained to defendant the circumstances under which an extended-term sentence could be imposed and defendant acknowledged he understood. Defendant was also advised by the court that if any promises had been made to him by anyone they would not be binding on the court and are unenforceable, and defendant stated he understood. The trial court thereupon accepted defendant's plea of guilty, ordered an updated presentence report and granted defendant's request for the appointment of a psychiatrist for purposes of the sentencing hearing. The State and defendant agreed that rather than recalling the witnesses who had testified at the first sentencing hearing before the other judge, that the present judge should consider the transcripts and record of that hearing.

At the commencement of the sentencing hearing held April 27, 1984, the trial judge stated he had read the record and transcripts of the first sentencing hearing, as had been requested by both counsel for the State and for defendant, and advised them there was material which the court believed it should not consider. The judge did not specify what portions of that record he would or would not consider a determining sentence, saying only that he would not consider a substantial portion of it and that some of defendant's objections at the first hearing were well-taken. The assistant State's Attorney requested that the court advise counsel of such matters; however, the judge did not wish to go through the large transcript for that purpose or to criticize another judge. Both the assistant State's Attorney and defendant's counsel acknowledged that it was their agreement that all of the matters heard at the first sentencing hearing were to be considered at this time, and both counsel also agreed that matters of credibility of the testimony from that hearing were for the court to determine. The judge then agreed to take that record into account in imposing sentence, stating he would consider only those matters received in evidence at the first sentencing hearing which he deemed appropriate.

On that basis, after the judge had completed reading the evidence and exhibits from the earlier hearing, the assistant State's Attorney and defendant's counsel argued sentencing alternatives. In doing so, the assistant State's Attorney stated, without objection, "The correct alternative for the Court here would be to sentence defendant to the Department of Corrections for as long as possible, and the longest possible sentence here is 30 years." After reviewing statutory factors in mitigation and aggravation (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-5-3.1, 1005-5-3.2), the court stated it would not impose an extended term and sentenced defendant to 14 years' imprisonment.

Subsequently, then having new counsel, defendant filed a motion to withdraw his plea of guilty in which it was alleged that he had been told by his former attorney that if he pleaded guilty the State would not ask the court to impose an extended-term sentence and he would most likely get probation. The motion further alleged that the State did seek an extended-term sentence of 30 years' imprisonment at the sentencing hearing, and, that the 14-years' term imposed was excessive. After a hearing, at which defendant was the only witness called to testify, the trial court denied the motion to withdraw the plea of guilty, and defendant appeals.

Defendant contends first that the State breached the plea agreement and he is thus entitled to withdrawal of the guilty plea or, alternatively, a new sentencing hearing before a different judge. Defendant also suggests in this regard that, at minimum, the matter should be remanded to the trial court for an evidentiary hearing to permit defendant to prove the breach occurred. Defendant argues that as he testified at the hearing of the motion to withdraw the plea that his lawyer had told him the State would not request any particular sentence or an extended ...


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