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12/30/87 the People of the State of v. David S. Pirt

December 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID S. PIRT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 1172, 164 Ill. App. 3d 379, 115 Ill. Dec. 486 1987.IL.1956

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and WOODARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This case involves two offenses for which defendant was charged. In the first case, No. 83 CF 1945-03, defendant was indicted for unlawful delivery of a controlled substance in violation of section 401(a)(2) of the Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401(a)(2)). In the second case, No. 86 CF 1247-01, defendant was charged by information with unlawful possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(b)). Defendant pleaded guilty to both counts. Thereafter, new defense counsel filed a motion to withdraw defendant's plea of guilty. After a hearing, the motion to withdraw the plea of guilty was denied. Defendant was sentenced to six years' imprisonment and fined $4,200 plus costs on the unlawful delivery charge. Additionally, he was sentenced to three years' imprisonment on the unlawful possession charge, said term to run consecutively to the six-year term previously imposed as the second charge occurred while the defendant was on pretrial release. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(h).) Defendant timely appealed. We affirm.

On August 13, 1986, case No. 83 CF 1945 -- 03 for unlawful delivery of a controlled substance was set for trial. Also on that day, case No. 86 CF 1247 -- 01 was motioned up and the State filed a one-count information alleging the unlawful possession of a controlled substance.

Defendant waived preliminary hearing on case No. 86 CF 1247 -- 01 and additionally waived a formal reading of the information. Defendant then pleaded guilty on both counts. The record reveals that at the time defendant pleaded guilty he was aware that he could receive from 6 to 30 years on case No. 83 CF 1945 -- 03 and that he could be sentenced from one to three years on case No. 86 CF 1247 -- 01. Furthermore, the record reflects that the following exchange took place with regard to consecutive sentencing.

"MR. KING: Your Honor, before we begin the facts, I think the defendant also needs to be cautioned as to the consecutive sentencing -- if a person charged with a felony commits a separate felony while on pretrial release, any sentence imposed upon the conviction shall be consecutive to the original charge for which he was on bond, and that is a new statute only effective September 25th of 1985.

THE COURT: All right, sir. Do you understand that you are exposed to what is called consecutive sentencing; that is, you could be sentenced not just to 30 years, but you could be sentenced to 30 years plus three years, in other words, a total of 33 years followed by the mandatory supervised release that I have indicated?, DEFENDANT PIRT: Yes, Your Honor.

THE COURT: Does that in any way change the pleas you have just entered?, DEFENDANT PIRT: No, sir, Your Honor."

At the hearing on defendant's motion to withdraw his guilty pleas defendant testified that there was a conversation between him and his attorneys prior to the time that he entered the pleas as to whether cocaine was in fact found in his sock in connection with the second charge. Defendant also stated that he never saw the police reports. Defendant testified that he had never sat down and discussed with Mr. Abrahams and Mr. Lynch, his attorneys, the second set of charges that were brought against him until the day of his plea.

Jeremiah Lynch, one of defendant's previous attorneys, testified that when he originally found out about the second case, he discussed with defendant the possibilities of its effect on the first case. Lynch further testified that the information that he was given was that the arrest of defendant occurred within a motel complex where any leasing of a particular room had expired or arguably had expired and therefore defendant had no standing with regard to a search of the room, and that information pursuant to such a search would probably have given probable cause to detain defendant and probable cause for a search of defendant. In Lynch's estimation, "[it] seemed rather tenuous a case at best." Lynch stated that at the time the conversation took place he did not have the police reports. Lynch testified that he did not recall seeing any police reports or discoverable information before the plea on the subsequent charge. Lynch further testified that he did not have an opportunity to review the information prior to the entry of the plea on the second offense. And, Lynch stated that the decision as to the plea was made in the hall before defendant even came into the courtroom.

Defendant's initial contention is that he had ineffective assistance of counsel prior to entering his guilty plea in that defense counsel advised defendant to plead guilty without first investigating any possible defenses; defense counsel did not require or examine discoverable information; and defense counsel did not discuss with defendant any possible defenses. Defendant further argues that due to this ...


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