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02/08/96 PEOPLE STATE ILLINOIS v. ARNOLD E. BIEN

February 8, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ARNOLD E. BIEN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 93CF994. Honorable Frank W. Lincoln, Judge Presiding.

Released for Publication February 8, 1996. As Corrected August 9, 1996.

Honorable James A. Knecht, J., Honorable Frederick S. Green, J., Honorable Rita B. Garman, J., Concurring. Justice Knecht delivered the opinion of the court: Green and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Defendant Arnold Bien appeals the trial court's denial of his motion to withdraw guilty plea filed pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). We affirm in part, reverse in part, and remand.

I. BACKGROUND

In November 1993, defendant was charged with six counts of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse. Later defendant was charged with seven more counts of aggravated criminal sexual assault, five more counts of aggravated criminal sexual abuse and three counts of aggravated battery of a child. Defendant stood charged with a total of 24 counts of sex offenses against eight children in a day-care center: 13 counts of aggravated criminal sexual assault, a Class X felony with a nonextended sentencing range of 6 to 30 years (720 ILCS 5/12-14(b)(1), 730 ILCS 5/5-8-1(a)(3) (West 1992)); 8 counts of aggravated criminal sexual abuse, a Class 2 felony carrying a nonextended sentencing range of 3 to 7 years (720 ILCS 5/12-16(c)(1)(i), 730 ILCS 5/5-8-1(a)(5) (West 1992)); and 3 counts of aggravated battery of a child, a Class 1 felony with a nonextended sentencing range of 4 to 15 years in prison (720 ILCS 5/12-4.3(a), 730 ILCS 5/5-8-1(a)(4) (West 1992)).

In May 1994, defendant pleaded guilty to five counts of aggravated criminal sexual abuse and three counts of aggravated battery of a child. The plea was open as to sentence but the State dismissed all other charges and agreed not to recommend more than 20 years on the Class 1 felonies. Defendant indicated he understood the court was not bound by the State's agreement to recommend no more than 20 years on the Class 1 felonies.

The factual basis for the plea established defendant committed numerous acts of sexual abuse against children ages two to five years old in his ex-wife's day-care center between March 1989 and July 1993. The evidence would have consisted of the testimony of victims, parents, police officers, social workers, and medical experts, and would have shown defendant fondled the children, sometimes inserted his finger or penis into their vaginas or anuses, and in some cases concluded by ejaculating. Specifically, the counts covered by the agreement (V, IX, XIV, XX, XXI, XXII, XXIII, and XXIV) charged defendant with committing the following acts for his sexual arousal: touching the torso and leg of a boy, N.G., with defendant's penis (V); touching the buttocks of a boy, L.R. (then age two), with defendant's penis (IX); touching the penis of a boy, G.O., with defendant's hand (XIV); touching the vagina of a girl, A.M., with his hand (XX); touching the anus of a girl, L.L., with defendant's hand (XXI); placing his finger in the vagina of a girl, K.G., causing scarring and thickening of tissue (XXII); placing his penis in the anus of a boy, J.G., causing scarring and relaxed muscle tone (XXIII); and placing his penis and finger in the vagina of a girl, K.B., causing rounded edges to the hymenal ring and numerous bands of scarring (XXIV).

At the sentencing hearing, a clinical psychologist who specialized in evaluating child abuse victims testified all the victimized children had behavior disorders, emotional disturbances, or mental disorders caused by their sexual abuse. All the children required long-term therapy. The trial court sentenced defendant to 7 years' imprisonment on each count of aggravated criminal sexual abuse and 20 years' imprisonment on each count of aggravated battery of a child. The terms were consecutive, and totalled 95 years' imprisonment.

Defendant filed a motion to withdraw guilty plea and vacate the judgment, alleging (1) his plea of guilty was involuntary because his trial counsel, Gregory Barnes, provided ineffective assistance of counsel in that, e.g., he was not prepared to go to trial and wanted defendant to plead, causing defendant to feel he had no choice but to plead guilty, he misrepresented defendant could easily withdraw a guilty plea; and (2) the consecutive terms of imprisonment were excessive and statutorily improper.

At the hearing on the motion, defendant testified he retained Barnes in late 1993. Prior to Monday, May 16, 1994, when he entered his plea agreement, he had little contact with Barnes. On the Friday before his plea, which was only a week before his trial was scheduled to begin, Barnes had not yet contacted potential defense witnesses and the expert witness for whom defendant had given Barnes $3,000 had not yet arrived. Throughout the weekend of May 13 through 15, Barnes repeatedly told him, either on the telephone or in his office, including Sunday afternoon in the presence of a friend, Karin Poling, to either accept a plea agreement whereby he would receive probation or else lose the case at trial and die in prison. Defendant declined and wanted to go to trial. Defendant went to his ex-wife's uncle's house Sunday evening to discuss a possible plea. He called Barnes from his house and said he wanted to go to trial. Barnes told him to be in his office at 8 a.m. wearing a suit. When defendant arrived, Barnes told him the case was not winnable and he should accept the plea. Defendant again told Barnes he wanted to go to trial. Barnes told him to go to the fifth floor of the courthouse, wait for him, and think about the plea. Defendant did as instructed.

When Barnes arrived at the courthouse, he told defendant the case could not be won, he could not represent defendant, and if defendant did not accept the plea, he would die in prison. Defendant told Barnes "to do what he had to do." Defendant pleaded guilty because Barnes was neither ready nor able to go to trial. Also, Barnes repeatedly told defendant he could change his mind between 16 and 30 days after the plea and the change would be allowed. Barnes told him he would probably get no more than weekends in jail. Defendant admitted no one--including Barnes and the trial court--told him probation was guaranteed. He only partially understood the admonishments, but did not tell the trial court this because he was weighing probation versus life in prison.

Defendant admitted Barnes came to speak with him many times in the jail and sent him 19 letters and copies of correspondence from the State's Attorney and other documents or reports. In each letter, Barnes told defendant to let him know if he had any questions. Barnes sent him "stacks" of Department of Children and Family Services and police reports. Defendant made notes concerning the reports, and he gave the notes to Barnes' secretary.

Karin Poling, defendant's paramour, was with defendant in Barnes' office Sunday afternoon, May 15. When Barnes was asked why no defense witnesses were listed on the trial witness list, he replied he still had a couple weeks to do that. Barnes told defendant if he accepted the plea, he would receive only four to six years' imprisonment or probation. Defendant replied he wanted to fight the ...


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