United States District Court, Central District of Illinois, Springfield Division
October 24, 1989
UNITED STATES OF AMERICA EX REL. RICHARD D. PRICE, JR., PETITIONER,
MICHAEL P. LANE, DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS; MARY PATTON, CIRCUIT CLERK OF PEORIA COUNTY, RESPONDENTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
Petitioner — an ex-lawyer — is currently appealing a state
court ruling denying his motion to withdraw his guilty
The state court denied Petitioner's request that he be released
on bond pending appeal and it is this ruling he now brings
I — Facts
Price is a former member of the bar of this Court and was
charged in Peoria County circuit court with forgery.
Ill.Rev.Stat. ch. 38, ¶ 17-1. Specifically, Attorney Price
signed clients' names to settlement checks and then deposited
those checks into his account. On January 3, 1989, he pled
guilty but mentally ill to four of the counts he was charged
Price was represented by Mr. Thomas Penn, the Peoria County
Public Defender, and a hearing was scheduled in state court on
November 12, 1987. Mr. Penn was unable to attend this hearing
and, as was his usual practice, asked an assistant public
defender to cover for him. The assistant, Mr. Kevin Lyons,
appeared at the hearing on behalf of Price. At this hearing,
Price was arraigned on additional charges, a misdemeanor charge
was dropped, and the judge allowed a motion by the state to
take handwriting exemplars from Price. This motion was not
contested by the defense.
On February 24, 1989, Price was sentenced to six years of
incarceration. He then moved to withdraw his guilty plea and
was released from custody for four days (April 6-10, 1989) to
secure evidence on his behalf. On May 26, 1989, Price's motion
to vacate his guilty plea was denied as was his oral motion for
bond pending appeal.
Price then filed an application for stay of sentence and appeal
bond with the Appellate Court of Illinois, Third District. Due
to a backlog of cases in the Third District, the Supreme Court
of Illinois transferred Price's appeal to the Appellate Court
for the Fourth District which promptly denied his application
for appeal bond. This denial was subsequently affirmed by the
state supreme court. Price has now turned to the federal courts
for a remedy.
II — Exhaustion of State Remedies
A state prisoner must exhaust all state remedies prior to
turning to the federal courts for relief. 28 U.S.C. § 2254(b).
In the case at bar, Petitioner appears to
have fulfilled this requirement. The circuit court denied his
motion for an appeal bond. This denial was affirmed by both the
appellate court and the Supreme Court of Illinois. Therefore,
we find that this case is properly before us and we can now
turn to the merits of the petition.
III — Habeas Corpus Relief
It is an open question whether an individual has a
constitutional right to bail. Illinois specifically provides
for the release of some defendants pending their appeals.
Ill.Rev.Stat. ch. 38, ¶ 110-7(d), ch. 110A, ¶ 609(b). Whatever
the merits of the arguments concerning a right to bail, it is
clear that when a state has provided for bail pending appeal,
an arbitrary denial of bail violates the due process clause of
the fourteenth amendment. United States ex rel. Walker v.
Twomey, 484 F.2d 874, 875 (7th Cir. 1973). One district court,
in considering the standard a federal court should apply in
reviewing a state court's denial of an appeal bond, has stated:
The grant or denial of bail pending appeal is a matter of
judicial discretion to be determined after consideration of
all of the pertinent circumstances, and accordingly, we are
prohibited from substituting our judgment for that of the
state court, unless it clearly appears that the state court's
action was wholly beyond the range within which judgment
could rationally differ regarding the particular facts in a
United States ex rel. Rainwater v. Morris, 411 F. Supp. 1252,
1255 (N.D.Ill. 1976). Any other rule "would authorize an
unwarranted and unconstitutional encroachment upon the
prerogatives of the states in the due administration of their
process of criminal justice." Simon v. Woodson, 454 F.2d 161,
165 (5th Cir. 1972).
The Seventh Circuit in Twomey identified three factors a
district court should consider in ruling on a request for an
appeal bond. Those factors are: (1) the risk of flight, (2) the
probability the convicted person will pose a danger to the
community; and (3) the lack of merit in the appeal.*fn2
Twomey, 484 F.2d at 875. Any one or a combination of these
factors may justify denial of release. Id. In addition, the
seriousness of the crime and severity of the sentence are also
factors which constitute a rational basis for denying an appeal
bond. United States ex rel. Sampson v. Brewer, 593 F.2d 798,
799 (7th Cir.), cert. denied, 444 U.S. 877, 100 S.Ct. 162, 62
L.Ed.2d 106 (1979). With these considerations in mind, we now
turn to the merits of the case at bar.
Petitioner argues that the state court has expressly recognized
that he is not a risk of flight nor a danger to the community.
In support of this argument, he cites the order of the circuit
court which released him for four days prior to the hearing on
his motion to withdraw his guilty plea. Petitioner opines that
this indicates the state court was not concerned he would flee
or endanger the community.
In his response to Petitioner's habeas corpus petition, the
Attorney General does not dispute this reasoning. In fact, the
Attorney General's response only addresses the merit of
Petitioner's appeal and is almost wholly devoid of legal
authority. Therefore, we must agree with Petitioner. We believe
that if he were released on an appeal bond he would not flee
nor would he pose a danger to the community.
Petitioner's problems begin when we turn to the merits of his
appeal. Petitioner has raised three grounds which he contends
constitute error by the state court. First, he asserts that
during his guilty plea the trial court incorrectly stated the
penalties for the crimes he was pleading guilty to. Second,
he argues that the trial court did not inform him of the
possibility of consecutive sentences. Third, Petitioner
argues that his conviction should be reversed because Kevin
Lyons, who appeared at a hearing on behalf of Petitioner, was
elected State's Attorney of Peoria County and had taken office
at the time Petitioner entered his guilty plea.
Petitioner's first two assignments of error implicate Illinois
Supreme Court Rule 402 which provides in pertinent part:
In hearings on pleas of guilty, there must be substantial
compliance with the following: (a) Admonitions to Defendant.
The Court shall not accept a plea of guilty without first, by
addressing the defendant personally in open court, informing
him of and determining that he understands the following: . . .
(2) the minimum and maximum sentence prescribed by law,
including, when applicable, the penalty to which the defendant
may be subjected because of prior convictions or consecutive
sentences; . . . .
We begin by recognizing that literal compliance with this rule
is not required. The test for determining whether the trial
judge's admonitions were sufficient is whether an ordinary
person in the circumstances of the accused would have
understood them as conveying the required information. If so,
the essentials of this rule have been complied with. People v.
Caldwell, 55 Ill.2d 152, 304 N.E.2d 292 (1973); People v.
Davis, 24 Ill. App.3d 758, 321 N.E.2d 382 (1st Dist. 1974).
In the case at bar, the judge clearly stated that the possible
sentence was 3-5 years' imprisonment. The state concedes this
and the record is irrefutable. The actual penalty for a class 3
felony is 2-5 years. Ill.Rev.Stat. ch. 38, ¶ 1005-8-1. While it
is clear the trial judge erred, the question we must face is
whether this error constitutes a meritorious issue for appeal.
If a trial judge were to tell a defendant that the minimum is
less than it actually is, a guilty plea could not be
intelligently and understandingly entered. See People v.
Fred, 17 Ill. App.3d 730, 308 N.E.2d 219 (4th Dist. 1974). For
example a defendant may plead guilty when the minimum was one
year; however, he might prefer to go to trial if he believed
that the minimum sentence was two years. When the reverse
situation occurs and the judge informs the defendant that the
minimum is greater than it actually is, prejudice can result
only if the Court imposes a sentence which it erroneously
believes to be the minimum term. People v. Latham,
73 Ill. App.3d 995, 29 Ill.Dec. 486, 392 N.E.2d 43 (5th Dist.
1979). This appears to be what Petitioner is arguing in the
case at bar. However, that is not the situation that we are
faced with in this case.
In the transcript of the hearing on the motion to withdraw the
guilty plea, Judge Bumgarner states "I really don't think I
said three year minimum. If you look at my grid sheet there, I
don't know why I would have misread it." Thus, it is clear that
Judge Bumgarner misspoke at the guilty plea; however, he knew
what the actual minimum sentence was and Petitioner was not
prejudiced by this error.
Petitioner's second assignment of error is that he was not
advised of the possibility he could receive consecutive
sentences. In support of this, he cites People v. Akers,
137 Ill. App.3d 922, 92 Ill.Dec. 305, 484 N.E.2d 1160 (4th Dist.
1985), where the court held that the failure to so advise a
defendant was reversible error. See also People v. Nolte,
167 Ill. App.3d 915, 118 Ill.Dec. 828, 522 N.E.2d 283 (3d Dist.
The transcript of Petitioner's guilty plea indicates that the
following colloquy occurred between the Court, Assistant
State's Attorney Nancy Mermelstein, Public Defender Thomas
Penn, and Petitioner:
THE COURT: And the defendant would be eligible for extended
term, is that correct?
MS. MERMELSTEIN: No.
THE COURT: No extended term. So the maximum for each count
five years. Now, is he eligible for consecutive?
MS. MERMELSTEIN: People's position that would be eligible for
consecutive; that the maximum under all theories or all four
cases would be ten years.
MR. PENN: We agree with that assessment, Your Honor.
THE COURT: That would be twice the most serious.
MS. MERMELSTEIN: Yes.
THE COURT: However, what it says in the statute is twice the
extended term or the most serious, but I guess the extended
term is not available.
MS. MERMELSTEIN: No.
MR. PENN: That's correct, Your Honor.
THE COURT: All right. So the maximum would be ten years. Both
sides agree to that?
MR. PENN: Yes, sir.
THE COURT: Has anyone threatened you to get you to plead
THE DEFENDANT: No, sir.
It is readily apparent from the foregoing discussion that the
Petitioner was sufficiently advised of the possibility of
consecutive sentences as required by Rule 402(a)(2). Akers is
clearly distinguishable on the ground that the possibility of
consecutive sentences was never mentioned in that case.
Therefore, Petitioner's second assignment of error must fail.
We now turn to Petitioner's primary assignment of error, which
is as follows. Mr. Kevin Lyons was an Assistant Public Defender
and appeared on behalf of Petitioner at a hearing when
Petitioner's counsel, Mr. Penn, was out of town. Mr. Lyons was
subsequently elected State's Attorney of Peoria County and thus
became Petitioner's prosecutor at the time Petitioner pled
guilty and was sentenced. Such a situation, Petitioner
contends, creates a per se conflict of interest and thus it
is not necessary to prove that this conflict prejudiced
If this were actually the issue before us, Petitioner would be
correct. In the case at bar, however, all is not as it seems.
In fact, this issue was extensively argued at Petitioner's
hearing on his motion to withdraw his guilty plea.
Mr. Lyons did appear on behalf of Petitioner at a hearing. Both
Mr. Penn and Mr. Lyons testified that they never discussed the
merits of Petitioner's case and Mr. Lyons never saw
Petitioner's file. Mr. Penn further testified that he and
Petitioner did not object to the motions considered at the
November 12, 1987, hearing. The record supports Mr. Penn's
testimony. Additionally, Mr. Lyons testified that the only
discussion he had with Petitioner at the hearing occurred on
the record in the presence of the Court. After the hearing, Mr.
Lyons saw Petitioner in the hall, gave him a copy of the order
the Court had entered, and Petitioner introduced him to a third
party with whom the Petitioner was talking. Mr. Lyons concluded
that he had no conversations with the Petitioner concerning the
merits of his case, possible defenses, or constitutional
Petitioner's version of the facts is of course somewhat
different. He asserts that Mr. Lyons met him before the hearing
and discussed his case with him. Furthermore, Mr. Lyons was
carrying Petitioner's file and indicated that he was familiar
with it. Petitioner also stated that Mr. Lyons visited him in
jail at some time to discuss his case. The conflict in
testimony was fully explored by the state court at the time of
Petitioner's hearing on his motion to withdraw his guilty plea.
The state court observed the demeanor of the witnesses and
concluded that Mr. Lyons' version was simply more credible.
Cf. Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct.
1504, 1512, 84 L.Ed.2d 518 (1985) (when trial judge's finding
is based on his decision to credit the testimony of one of two
or more witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can
virtually never be clear error).
Mr. Lyons was subsequently elected State's Attorney of Peoria
County and took office prior to Petitioner's entry of his
guilty plea. Mr. Lyons testified that he played no role in the
prosecution of Petitioner. He did not assist in the preparation
of the case and had no input into any recommended sentence. The
record supports Mr. Lyons' testimony. While the covers of the
transcripts of Petitioner's guilty plea and sentencing indicate
Mr. Lyons was the State's Attorney, they also reveal that the
actual prosecutors who handled these matters were Assistant
State's Attorneys Nancy J. Mermelstein and Florence L. Bain.
The cases cited by Petitioner are all clearly distinguishable
from the facts of the case at bar. In People v. Gerold,
265 Ill. 448, 107 N.E. 165 (1914), an attorney represented the
defendant for several years and then took over as State's
Attorney and personally prosecuted his former client. The
attorney examined all of the state's witnesses and
cross-examined all of the defense witnesses. The Supreme Court
of Illinois reversed the conviction and stated "[w]hen [an
attorney] has once been retained and received the confidence of
a client he cannot enter the service of those whose interests
are adverse to that of his client or take employment in matters
so clearly related to those of his client or former client as
in effect to be a part thereof." Id. at 477, 107 N.E. at 185.
See also People ex rel. Livers v. Hanson, 290 Ill. 370,
125 N.E. 268 (1919) (state's attorney could not represent the
county in attempting to oust members of the board of education
from office because he had at one time been employed by the
school district to help the district obtain consolidation).
The Illinois appellate courts have also addressed this question
several times. In People v. Clucas, 160 Ill. App.3d 129, 111
Ill.Dec. 959, 513 N.E.2d 402 (5th Dist. 1987), an attorney was
appointed to represent both the defendant and a co-defendant on
a murder charge. The attorney withdrew as to the defendant
because of a potential conflict created by inconsistent
defenses. That attorney was subsequently elected state's
attorney and appeared for the state at a post-conviction
hearing. The appellate court held that the attorney had
actively represented the defendant to the extent that he could
conclude that a potential conflict of interest existed.
Therefore, there was a conflict of interest for the attorney to
appear on behalf of the state and the dismissal of the
defendant's post-conviction petition was reversed. See also
People v. Rhymer, 32 Ill. App.3d 431, 336 N.E.2d 203 (5th Dist.
1975) (conviction reversed because defendant revealed
contidences to assistant state's attorney whom defendant
attempted to retain for her defense prior to learning that
attorney was the prosecutor); People v. Curry, 1 Ill. App.3d 87,
272 N.E.2d 669 (4th Dist. 1971) (defendant's probation
revocation reversed because attorney who represented defendant
appeared as the assistant state's attorney during the
These cases are clearly distinguishable from the facts before
us. In each of these prior cases, an attorney actively
prosecuted an individual after having learned confidential
information while representing the accused. In the case before
us, Mr. Lyons did not learn any confidential information and
played no active role in Petitioner's prosecution.
The state has not cited any cases which are factually similar
to that before us and our research has failed to uncover any
Illinois cases directly on point. However, federal case law in
this area supports our reasoning. In United States v.
Caggiano, 660 F.2d 184 (6th Cir. 1981), cert. denied,
455 U.S. 945, 102 S.Ct. 1444, 71 L.Ed.2d 658 (1982), the district
court disqualified the entire United States Attorney's Office
from prosecuting the defendant because one of defendant's
attorneys accepted a position with the office as an Assistant
United States Attorney. The Sixth Circuit reversed and held
that the disqualification of an entire governmental office was
unnecessary so long as the former defense attorney was
separated from any participation on matters affecting his
former client. Id. at 191. The Sixth Circuit quoted at length
from an American
Bar Association formal opinion*fn3 and we find this
reasoning to be persuasive.
The Government has a strong interest in attracting well
qualified attorneys. As long as the former defense attorney is
shielded from any active involvement with his former client's
case, no problems arise. In the case at bar, Mr. Lyons played
no role in the prosecution of Petitioner. Therefore, even if
Petitioner's version of the facts were accepted as true, we
would decline to find that a conflict of interest existed.
Thus, Petitioner's final argument is without merit.
IV — Conclusion
In light of our conclusion that Petitioner's assignments of
error are without merit, we find that his appeal lacks merit.
Therefore, we cannot say that the state court abused its
discretion in denying an appeal bond nor was its decision
Ergo, for the foregoing reasons, Petitioner's petition for a
writ of habeas corpus is DENIED.