APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
506 N.E.2d 445, 153 Ill. App. 3d 910, 106 Ill. Dec. 738 1987.IL.409
Appeal from the Circuit Court of Du Page County; the Hon. Edward Kowal, Judge, presiding.
Justice Nash delivered the opinion of the court. Dunn, J., concurs. Justice Reinhard, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Defendant, William Munday, appeals from an order which dismissed his petition for post-conviction relief without an evidentiary hearing. He contends: (1) that a hearing was required to resolve issues raised by defendant's petition that he lacked effective assistance of counsel when he entered his guilty plea to armed robbery and was sentenced to 30 years' imprisonment, and (2) the matter should be remanded to the Judge before whom defendant entered the guilty plea and was sentenced, rather than to the Judge who heard defendant's post-conviction petition.
Defendant was charged by indictment with armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)) following the holdup of employees of Office Environment Company in Elmhurst on April 25, 1980. Defendant appeared before Judge Anthony Peccarelli on January 3, 1983, with his attorneys William Murphy and David Tucker. Assistant State's Attorney Robert Schillerstrom advised the court that a negotiated plea agreement had been made which provided that defendant would plead guilty to armed robbery, the remaining charges in the indictment would be dismissed, and two other unrelated charges would not be prosecuted. The assistant State's Attorney also advised the court that there was no agreement as to any sentence and that at the sentencing hearing both sides could present evidence and state what they believed would be an appropriate sentence. The State's Attorney suggested, too, that defendant be admonished again, including as to the extended-term provisions of the statute.
Defendant's counsel, William Murphy, then advised the trial court "that is my understanding of the agreement between the State and myself and I have relayed this to my client, Mr. Munday, in great detail, also, spent a great deal of time explaining his right to confront witnesses, his right to a jury and he knows the sanctions."
The trial Judge thereupon advised the defendant of the terms of the plea agreement, as stated by the State's Attorney and concurred in by defendant's attorney, that defendant was going to enter a plea of guilty to count I of the indictment which charged a Class X crime for which he could be sentenced to not less than six years or more than 30 years plus three-year mandatory supervised release. The Judge further advised defendant that there could be an enhanced penalty of not less than 30 years or more than 60 years and inquired whether defendant understood. Defendant replied that he did. The following colloquy between the court and defendant then took place:
"THE COURT: And the agreement, there is no agreement between the State and your attorney as expressed to me, with reference to the sentence. In other words, that is going to be determined after a presentence report and the hearing in mitigation and aggravation in which testimony can be adduced and that the sentence will be left to the court. Do you understand that, sir?, DEFENDANT MUNDAY: Yes, sir.
THE COURT: There is no agreement with reference to the sentence?, DEFENDANT MUNDAY: Yes, sir."
After the trial court further admonished defendant as to the consequences of a plea of guilty as required by Supreme Court Rule 402 (87 Ill. 2d R. 402) and considered the factual basis for the offense as stated by the State's Attorney (to which defendant's counsel stipulated), defendant withdrew his earlier plea of not guilty and entered a plea of guilty to count I of the indictment charging armed robbery. The trial court accepted defendant's plea and entered judgment thereon, ordered a presentence report, and set the matter for a sentencing hearing.
At the sentencing hearing held February 16, 1983, the State introduced in evidence certified copies of three burglary convictions of defendant in 1959 and an armed robbery conviction in 1981. Evidence was also received relating to defendant's participation in another armed robbery in 1980 for which he was not charged. In arguments for sentence, the State's Attorney referred to the presentence report noting that from 1954 to 1982 defendant had been imprisoned for a total of 15 years for serious offenses, including rape, for which he had been released from the penitentiary in 1972. The State's Attorney noted defendant was thus eligible for an extended-term sentence and recommended imprisonment for a term of 60 years for the present offense.
Defendant's counsel, William Murphy, then advised the court that it was his understanding that the State was not going to recommend any sentence of more than 20 years and that he had so advised defendant. Murphy stated that he had also advised defendant that there was no agreement as to sentence with the State and the court was not bound by any agreement, but that the State was going to ask for 20 years and counsel for less. The Judge and counsel reviewed the transcript of the plea hearing, the court noting that it was clear no mention of such an agreement was made at that time and, also, that the Judge had specifically asked defendant if any other promises had been made to him, to which he responded, "no." The State's Attorney stated it was a ...