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09/28/88 the People of the State of v. Richard A. Jones

September 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICHARD A. JONES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

529 N.E.2d 66, 174 Ill. App. 3d 794, 124 Ill. Dec. 349 1988.IL.1469

Appeal from the Circuit Court of Macoupin County; the Hon. Joseph P. Koval, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Defendant Richard A. Jones was charged by a nine-count information with attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12-11), burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)), armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and theft of property having a value in excess of $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16-1(e)(1)). After a jury trial, defendant was found guilty of all the offenses alleged in the information.

He was then sentenced to 50-year terms for attempt (murder), home invasion, armed robbery, and armed violence. He was also sentenced to 10 years' imprisonment for aggravated battery, 12 years' imprisonment for burglary, and 8 years' imprisonment for theft. All terms were to be concurrent.

On appeal, after vacating the judgments of conviction of and sentences imposed for aggravated battery, armed violence, burglary, and theft over $150, this court affirmed the remaining convictions and sentences. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011.) On November 7, 1986, defendant filed a pro se petition for post-conviction relief in the circuit court of Macoupin County. Counsel was appointed to represent defendant and, subsequently, a hearing was held on February 5, 1988.

At the hearing, defendant stated the first time he realized he could be sentenced to a 50-year term of imprisonment was on the day of sentencing. Prior to that, he believed the maximum sentence he could receive was 30 years. At his arraignment, the trial court advised defendant he could receive a maximum sentence of 30 years and did not advise defendant of the possibility of an extended term. According to defendant, his appointed counsel did not advise defendant of the possibility of an extended term. During plea negotiations, the State offered defendant a recommendation to the court of 30 years' imprisonment in return for a guilty plea, which defendant rejected because he believed the State was offering the maximum term. After considering the evidence and arguments of counsel, the defendant's petition for post-conviction relief was denied.

Defendant has now appealed the denial of his post-conviction petition. In this appeal, he raises the sole issue of whether the trial court's failure to admonish defendant and defense counsel's failure to advise defendant about the possibility of an extended term of imprisonment was such a violation of defendant's constitutional rights as would require this court to reduce defendant's sentence from 50 years' imprisonment to 30 years' imprisonment.

The purpose of the post-conviction petition proceeding is to review a conviction which may have resulted from a substantial denial of a defendant's rights under the constitutions of the United States or of the State of Illinois. (Ill. Rev. Stat. 1987, ch. 38, par. 122-1.) However, one of the reasons the trial court denied defendant's petition is that in the present case, defendant could have raised this very issue in his direct appeal, but did not, and therefore the trial court decided defendant is barred from raising this issue in his post-conviction petition.

Although an affirmance of a conviction on appeal has a res judicata effect on all post-conviction proceedings as to all issues which were or could have been raised in the direct appeal, particularly where the relevant facts appear of record, this rule does not bar the review of an issue by post-conviction petition if the interests of Justice require the issue be reviewed to ensure fundamental fairness at trial. People v. Montgomery (1986), 141 Ill. App. 3d 428, 490 N.E.2d 206, cert. denied (1986), 479 U.S. 866, 93 L. Ed. 2d 151, 107 S. Ct. 224.

In the case at bar, the report of proceedings for the probable cause hearing and the arraignment demonstrate the maximum sentence referred to by the trial Judge was an indeterminate term of 30 years plus a 3-year term of mandatory supervised release and a fine of up to $10,000. Nothing in these reports of proceedings reflects defendant's knowledge at the time of rejecting the plea offer or his attorney's alleged failure to inform defendant of the possibility of an extended term even though the facts presented by the case clearly indicated such a possibility existed because of the exceptionally brutal and heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(2).) Therefore, the issue could not have been considered on direct appeal and should be considered now.

A guilty plea, being itself a conviction, involves the waiver of several constitutional rights and, as a result, due process requires the record affirmatively reflect that the plea was intelligent and voluntary. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) Where the plea rests on a "bargain" negotiated between defense and prosecution, that inducement or consideration must be disclosed. (Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495.) In addition, a guilty plea cannot be accepted unless the court fully explains to the defendant both the consequences of the plea and the maximum penalty the law provides. (Ill. Rev. Stat. 1987, ch. 38, par. 113-4(c).) However, the case at bar does not involve the entry of a guilty plea and, thereby, the waiver of defendant's constitutional right against ...


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