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July 19, 1991

HOWARD PETERS, III, Warden, Pontiac Correctional Center, Defendant

The opinion of the court was delivered by: NORGLE


 Before the court is the petition of Walter Stewart ("Stewart") for a writ of habeas corpus. For the following reasons, the petition is granted.


 Stewart is currently under a death sentence for two murders, an attempted murder, and other offenses committed during a February 10, 1980 armed robbery of the Empire Jewelry Store in Berwyn, Illinois. *fn1" On July 31, 1980, Stewart pleaded guilty to eleven charges arising from the robbery (six counts of murder, one attempted murder count, and four armed robbery counts), while seven other charges for which he was indicted were either dropped by the State or merged into other charges. *fn2" Stewart was sentenced to death for the two murders on August 8, 1980 by the Cook County associate judge before whom he had pleaded guilty. The petitioner received additional 30-year concurrent prison terms for the attempted murder and armed robbery convictions.

 The Illinois Supreme Court, to which Stewart had appealed directly, upheld his convictions and death sentence on February 22, 1984. People v. Stewart, 101 Ill. 2d 470, 463 N.E.2d 677, 79 Ill. Dec. 123 (1984). Stewart's subsequent petition for a writ of certiorari was denied by the United States Supreme Court. Stewart v. Illinois, 469 U.S. 920, 83 L. Ed. 2d 237, 105 S. Ct. 303 (1984). In March 1985, Stewart filed a post-conviction petition under Ill. Rev. Stat. ch. 38, para. 122-1 et seq. (1985) in Cook County Circuit Court, which was dismissed. The Illinois Supreme Court later affirmed the dismissal. People v. Stewart, 123 Ill. 2d 368, 528 N.E.2d 631, 123 Ill. Dec. 927 (1988). Stewart then sought federal habeas corpus relief under 28 U.S.C. § 2254, filing on November 19, 1990 the amended petition now before this court.

 The petitioner asserts that his guilty plea was entered in violation of the due process clause of the fourteenth amendment because the judge who accepted the plea failed to admonish the petitioner adequately regarding the nature of the charges involved and the maximum and minimum sentences petitioner would be facing, and failed to question the petitioner to ensure that the guilty plea was voluntary and intelligent.

 Stewart pleaded guilty on the day his case was called for trial. First, the State moved to drop five of the 18 counts in the information against Stewart: an attempted murder charge, two aggravated battery charges, and two armed violence charges (R. 2-3). *fn3" A discussion between the court and counsel followed regarding the amendment of three other counts. *fn4" Stewart then waived his right to a jury trial and was questioned by the judge concerning that waiver (R. 5-6). A five minute recess followed, after which, Stanley Sacks, an assistant Cook County public defender representing Stewart, informed the court that Stewart intended to plead guilty (R. 7-8). Sacks told the court that during the recess Stewart had spoken over the phone with his mother and sister regarding a guilty plea. Sacks also explained that he and his co-counsel had advised Stewart during the break that, in view of the state's actions that morning in dropping the five counts to which Stewart had a defense, "no useful purpose would be served" by proceeding to trial on the remaining counts. The attorney also said Stewart was advised that a guilty plea would not prevent the State from seeking the death penalty (R. 8).

 The court then asked Stewart whether his attorney's account was correct. Stewart replied "yes, sir" (R. 8). Sacks then asked three questions: whether Stewart had spoken with his mother and sister, "with the sheriff's permission," whether Stewart had heard Sacks's account to the judge, and whether "in fact is that your decision of what you wish to do?" (R. 8-9). All of these questions elicited answers of either "yes, sir" or "yes" from Stewart.

 The court then decided to take the guilty plea after the lunch break. Before breaking, the judge advised Stewart "of certain possibilities" and that by pleading guilty he would give up his right to a jury trial, as well as his right to any trial. The judge said he would merely receive a statement of facts from the prosecutors and, if Stewart and his lawyers agreed, a finding of guilty would be entered (R. 9-10). *fn5" Asked whether he understood, Stewart said "yes" (R. 10). The court then told Stewart:

I must also advise you that on a plea of guilty to the charges in this case the State could and in all likelihood might well seek the death penalty. And the fact that you plead guilty would not necessarily obviate the imposition of such a penalty.
Now, I've told you sometime ago when you waived a jury it was one of the most important decisions in your life. And now you are coming to probably the most important decision in your life.

 (R. 10). The court proceeded to advise Stewart that if the State sought the death penalty, it would have to prove that Stewart was 18 years old or older, and that "certain aggravating factors" existed that qualified Stewart for a death sentence. Stewart was also told by the court that he would have a right to a jury trial on these elements. The judge added that "there is a good likelihood" that the State would seek the death penalty, and if so, Stewart would need to thoroughly discuss with his lawyer whether he wanted a jury for the death penalty proceeding (R. 11). *fn6" Stewart said "yes, sir" when asked if he understood (R. 11).

 Finally, just before the lunch break, Stewart's attorney, Sacks, asked Stewart on the record whether Sacks had advised him that a guilty plea would not preclude a death sentence, and whether they previously discussed whether to waive a jury for the death penalty proceeding. Stewart ...

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