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November 15, 1996


Appeal from the Circuit Court of Du Page County. Nos. 80--CF--0639, 80--CF--1848. Honorable Ann Brackley Jorgensen, Judge, Presiding.

Rehearing Denied December 18, 1996. Released for Publication December 18, 1996.

The Honorable Justice Inglis delivered the opinion of the court. Doyle and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Defendant, Donald C. Reynolds, appeals from the denial of his petition for post-conviction relief. We reverse and remand with directions.

On June 4, 1991, defendant filed a sworn pro se petition for post-conviction relief, contending that his trial counsel, Robert Boyd, had rendered ineffective assistance. Defendant alleged that Boyd had a private, in-chambers, conversation with the sentencing judge, Charles Norgle, immediately preceding the sentencing hearing. (Since that time, Judge Norgle has been appointed to the federal bench.) In this conversation, Judge Norgle is purported to have said that he would impose the maximum extended term on the defendant unless Boyd talked him out of it. Defendant alleged that Boyd did not inform him of the conversation until after he had pleaded guilty. Defendant further alleged that he had asked Boyd to provide an affidavit to verify the content of the purported ex parte conversation and that Boyd never responded.

Defendant asked leave to take an evidence deposition, and on April 30, 1992, the court entered an order allowing defendant to take Judge Norgle's deposition. On October 15, 1993, the parties informed the court that Judge Norgle had refused to submit to the deposition. In a letter dated October 12, 1993, Judge Norgle stated that he was "not aware of any issues which would require the calling of the judge who presided in the case as a witness." Judge Norgle also questioned the good faith of any subpoena that might be issued to compel his testimony. The parties then agreed to the alternative of having Boyd testify regarding the allegations in the post-conviction petition.

On June 3, 1994, a hearing on the petition was held in which Boyd testified that he did not specifically recall any conversation with Judge Norgle regarding defendant's sentencing hearing. Moreover, Boyd specifically denied the allegations in defendant's petition, stating, "Judge Norgle would not have said those things to me." Defendant objected, and Boyd interjected, "He didn't say those things to me." In ruling on the objection, the court stated:

"I appreciate the objection but I'll state for the record that I don't think that that is speculation on the part of the witness [Boyd], a witness who had appeared before Judge Norgle on numerous occasions.

I'll also state for the record so there is some basis for my comment here, I have known this witness [Boyd] for many, many years. I have also known Charlie Norgle for many, many years. I think the witness' statement is not a conclusion; it is a [sic] rather a very accurate statement of fact.

But your objection is noted for the record."

Continuing his testimony, Boyd again denied having any discussion with defendant regarding an off-the-record communication with Judge Norgle in which Judge Norgle revealed his intention to sentence defendant to a 60-year term of imprisonment. After Boyd's testimony, defendant was given leave to submit interrogatories to Judge Norgle to determine if he recalled any conversation with Boyd and what the substance, if any, was.

On June 28, 1994, defendant filed the original interrogatories with the court. On August 8, 1994, defendant informed the court that Judge Norgle refused to respond. In a letter dated July 15, 1994, Judge Norgle stated, "While I do not believe that I have any information that would be of assistance to you, I am not sure that it is appropriate for me to respond to the interrogatories." Judge Norgle asserted that a response to the interrogatories could violate the Code of Judicial Conduct (codified at 155 Ill. 2d R. 61 et seq.) and that he had a privilege against testifying about his mental processes. Judge Norgle concluded by stating, "There does not appear--based upon the information available to me--to be sufficient reason to overcome the general rule against a judge testifying about a prior proceeding." Defendant then asked the court to issue a subpoena for Judge Norgle. The court refused but suggested that defendant ask Judge Norgle to submit an affidavit verifying that he had no personal knowledge of any matters regarding this case other than what occurred on the record.

On January 4, 1995, defendant informed the court that Judge Norgle had not responded to his request for an affidavit and renewed his request for a subpoena for the judge. The court then ruled on defendant's petition, first taking notice of Judge Norgle's letters, which the court construed as a denial that any conversation occurred between Judge Norgle and Boyd. The court also agreed with Judge Norgle's position that it would be improper for him to testify regarding the circumstances surrounding the performance of his duties. Finally, the court denied defendant's ...

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