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01/30/87 the People of the State of v. George Johnson

January 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GEORGE JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 822, 152 Ill. App. 3d 559, 105 Ill. Dec. 537 1987.IL.92

Appeal from the Circuit Court of Cook County; the Hon. Nicholas Zagone, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant entered guilty pleas to a one-count information charging indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par 11-4(a)(3)) and to two one-count indictments and to one count of a three-count indictment charging aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(b)(1)). He was sentenced to concurrent 18-year terms for each offense. After defendant's motions to withdraw his pleas or reduce his sentences were denied, defendant has appealed. Defendant contends that the trial court violated Supreme Court Rule 402 (87 Ill. 2d R. 402) by initiating plea bargaining, that he pleaded guilty relying on a false or illusory plea agreement which denied him due process, and that the 18-year sentence was excessive.

In accepting defendant's guilty plea, the trial court advised defendant of his rights at a trial, which he was giving up, in substantial compliance with Supreme Court Rule 402 (87 Ill. 2d R. 402.) In addition, defense counsel stated that conferences had been held regarding the case and "that the only agreement that has come out of these conferences is that the sentence that he is liable for would carry a cap of eighteen years." The trial court, in addressing the defendant, reiterated to defendant that upon a plea of guilty there would be a "cap of eighteen years," which the trial court indicated meant that the defendant would "not be sentenced to the penitentiary for a period of more than eighteen years." Defendant indicated that he understood the situation. After entry of the guilty pleas, the case was continued for a hearing in aggravation and mitigation. After that extensive hearing, which will be detailed hereafter, defendant was sentenced to a term of 18 years in the penitentiary.

Thereafter defendant filed a motion to reduce his sentence, which was denied, and a motion to withdraw his guilty pleas, which was also denied. During the hearing to withdraw the guilty pleas, the State indicated that it did not dispute the matters contained in the defense affidavits concerning the conferences on the guilty pleas and therefore no evidentiary hearing was held on the matter. These documents basically indicate that the defense counsel and the prosecution entered into plea Discussions. The State offered a term of 15 years' incarceration in return for defendant's guilty pleas, but apparently defendant did not agree with the recommendation. On March 8, 1985, the parties agreed to present the matter to the trial court. On March 29, 1985, the trial court indicated that it believed that a sentence of 25 years' incarceration was appropriate, apparently based on defendant's conviction for a similar offense in which he had received a probationary sentence. The trial court, after further Discussion, then indicated that a 20-year term might be imposed. Both proposed Dispositions were rejected by defense counsel. Finally, the trial court indicated that it would impose an 18-year term upon a guilty plea on condition that defendant cooperate in publicizing the circumstances of his type of criminal behavior. The court indicated that this offer would be withdrawn in one week. On April 1, 1985, defendant rejected the 18-year offer by the trial court. One day later, defense counsel presented the proposal that upon defendant's plea of guilty to the offenses, a "cap" of 18 years be agreed to as the maximum sentence that might be imposed. In return, the defense counsel assured defendant that the trial court would consider a sentence below 18 years after a hearing in aggravation and mitigation and that the trial court would be open-minded in considering whether a lesser sentence was appropriate after evidence was presented at the sentencing hearing. Defendant agreed to this Disposition. I

Because the trial court imposed 18-year sentences upon defendant's pleas of guilty, defendant now contends that his guilty pleas were improper because the trial court initiated the guilty-plea negotiations in contravention of Supreme Court Rule 402(d)(1). (87 Ill. 2d R. 402(d)(1).) Defendant now maintains that, in this case, the trial court's respective "offers" of 25, 20, and 18 years were well outside the recommendations of the State and the defense. In addition, the trial court imposed a time limit for acceptance of the 18-year offer (April 4, 1985) which alerted the defendant to the practical wisdom of entering guilty pleas rather than pursuing trial. Defendant concedes that he and the prosecution sought out the March 1985 plea conference with the trial court, but relying on People v. Bennett (1974), 16 Ill. App. 3d 972, 307 N.E.2d 176, the defendant characterizes the trial court's conduct as an initiation of guilty-plea proceedings which, in this case, violated Rule 402 and induced his involuntary pleas of guilty.

In People v. Bennett, the defense and prosecution had agreed that if the defendant would plead guilty to aggravated assault and criminal damage to property, the State would recommend a fine on the former charge and not seek imposition of a penalty on the latter offense, which was described by the prosecution as relatively minor. The negotiated plea did not include any condition that defendant be placed on probation. The trial court, however, indicated that it would only accept defendant's guilty plea and the plea agreement if defendant would also apply for probation. Should the probation report prove favorable to defendant, he would then be fined and be placed on probation. After some Discussion, both defense counsel and the prosecution agreed with the trial Judge's Disposition. Defendant then pleaded guilty, but after a resulting probation hearing was held, probation was denied and defendant was sentenced to a seven-month term of incarceration. In setting aside the conviction and directing that defendant be allowed to reconsider his plea, the appellate court held that the trial Judge had substantially modified the plea agreement by interjecting a provision regarding probation which the trial court insisted be a part of the agreement even though both defense counsel and the prosecution indicated that they did not think probation was necessary. The appellate court concluded that such conduct was in violation of Rule 402(d)(1), which provides that the trial court "shall not initiate plea Discussions."

We do not believe that Bennett is controlling in this situation. In People v. Robinson (1974), 17 Ill. App. 3d 310, 308 N.E.2d 88, the appellate court considered the term "initiate" as used in Rule 402 and indicated that it was not the equivalent of a trial court's participation in guilty-plea proceedings. The appellate court expressed a view that not all judicial participation in guilty-plea Discussions is improper. The court stated:

"When a defendant learns that the trial Judge has sought on his own initiative to resolve his case without benefit of trial, a defendant may well deduce that the Judge has preJudged him to be guilty and that a plea of not guilty would be futile. When, on the other hand, both the State's Attorney and defense counsel seek to reach agreement but are unable to do so without the assistance of the Judge, any indication of the Judge's prejudice from the mere fact of his willingness to assist in [a negotiation] would be negligible." (17 Ill. App. 3d 310, 313-14, 308 N.E.2d 88.)

The court in Robinson further indicated that claims that the plea would be involuntary depending on the action of the Judge would have to be considered on a case-by-case basis.

In People v. Barringer (1974), 22 Ill. App. 3d 168, 317 N.E.2d 331, the appellate court explained its decision in Bennett by noting that in Bennett the trial court's actions had resulted in a considerable modification of the plea agreement which drastically altered the agreement and also ...


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