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January 17, 1997

ODIE WASHINGTON, et al., Respondents. UNITED STATES OF AMERICA ex rel. PAUL CENTANNI, Petitioner, v. ODIE WASHINGTON, et al., Respondents.

The opinion of the court was delivered by: SHADUR

 Each of Raymond and Paul Centanni (individually "Raymond" and "Paul," and collectively "Petitioners") has filed a 28 U.S.C. § 2254 ("Section 2254") petition, later supplanted by an amended petition (for convenience each amended petition will be referred to as "Petition"), seeking the issuance of a writ of habeas corpus. *fn1" Both Petitioners challenge the April 28, 1986 Judgment of Conviction and Sentence entered by the Circuit Court of Lake County, which imposed a 30-year term of imprisonment on each of them after he had pleaded guilty to one count of home invasion. For the reasons stated in this memorandum opinion and order, both Petitions are denied and these actions are dismissed.


 In any federal habeas proceeding, Section 2254(e)(1) *fn2" makes the state court's findings of fact presumptively correct. In this instance the factual background as stated in the Illinois Appellate Court's opinion on direct review of Petitioners' sentences ( People v. Centanni, 164 Ill. App. 3d 480, 483-86, 517 N.E.2d 1207, 1209-11, 115 Ill. Dec. 521 (2d Dist. 1987)) fairly reflects the record. This opinion therefore adopts and repeats that version verbatim:

On October 7, 1985, the defendants, Raymond and Paul Centanni, were charged in Lake County with commission of home invasion, residential burglary, theft, and unlawful restraint. On March 19, 1986, the defendants pleaded guilty to home invasion pursuant to a plea agreement, and the State dismissed the remaining three counts. In addition, the defendants offered to testify before the Lake County grand jury about another individual's participation in the home invasion. Both the State and the defendants agreed that each side would present evidence in aggravation and mitigation at the sentencing hearing. They also agreed that the State would not request an extended sentence.
Prior to sentencing, the defendants filed a motion in limine which sought to preclude the State from offering evidence in aggravation which related to their participation in an alleged home invasion in Northbrook. In support of their motion, the defendants called Northbrook detective John Flynn, who testified that he assisted Cook County State's Attorney Babbit when Babbit took a statement from Raymond Centanni with regard to the defendants' involvement in a Northbrook home invasion. *fn3" Flynn testified that Raymond's statement included his acknowledgement of an agreement whereby the defendant was assured that by cooperating any sentence in the Northbrook case would run concurrently with the sentence imposed in a separate case pending against him in Chicago. The defendants argued that if the court allowed the State to use evidence of these statements in aggravation, the voluntariness of the defendant's [sic] statements would be negated and, furthermore, the defendants would be subject to enhanced penalties based on the evidence. The trial court denied the defendants' motion. Specifically, the court noted that: (1) the strict rules of evidence do not apply at sentencing hearings; (2) the State's Attorney is not precluded from presenting testimony by witnesses as to what happened during the alleged Northbrook home invasion; and (3) the court would entertain anything showing the extent of the defendants' criminality.
Thereafter, at the sentencing hearing, Deerfield police officer Ennis testified that he responded to a burglary on October 13, 1984, at the home of Mr. and Mrs. Simon. He acknowledged that he remained at the scene for four hours and that neither Mr. nor Mrs. Simon, who were present during the burglary, required hospitalization.
Howard Simon testified that on October 13, 1984, the men entered his house, bound him, and blindfolded him. He indicated that the defendant Raymond threatened him with a gun and ordered him to divulge the location of the safe. On cross-examination, Simon indicated that both he and his wife were able to free themselves from their bonds. He also stated that a third defendant, Floyd Reed, threatened to cut off Mrs. Simon's ear.
Deerfield police investigator Thomas Sheahan testified that in addition to the defendants, Floyd Reed, Tim Pilskowski, and Thomas Barret were also implicated in the incident. He also testified that Reed had pleaded guilty and received six years' incarceration. He indicated that as a result of both the Centannis' cooperation, the police were able to arrest and charge Barret. The Centannis also described other criminal activities of which they were aware. Finally, Sheahan acknowledged that the defendants never fired any weapons in the subject transaction.
Lorraine Keyser, a victim of a home invasion which occurred at her home on September 5, 1983, testified that she was subdued by men in masks and her hands and legs bound. She testified that the men threatened her with bodily harm if she did not tell them where her money and other possessions were hidden. She indicated that she was able to free herself from the bond 10 to 15 minutes after the defendants had exited her home.
John Green testified that he had become acquainted with the defendants in August 1983. He indicated that it was his responsibility to turn off the alarm at the Keyser residence. He stated that a storm triggered the alarm at the home and that he and the defendants left the area. Green testified that he did not return. Finally he indicated that he received two years' probation in return for his cooperation in this matter.
John Flynn testified that, in February 1985, the defendant Raymond gave him a statement with regard to his involvement in the Keyser home invasion. Flynn reiterated that the defendants had been cooperating with him with regard to other individuals involved.
Five witnesses were called on behalf of the defendants. Broadview police officer Donald Roff testified that he had known the defendants for approximately 15 years and indicated that although normal teenagers, they had changed as a result of their drug usage. In his opinion, the defendants had "straightened out" since they stopped using drugs. Pastor Raymond Skriba testified that he met the defendants in November 1985 at the Lake County jail, where he provided counseling to them. In Skriba's opinion, the defendants attempted to improve their present situation as evidenced by their work in the jail's administration. He also indicated that Paul Centanni saved the life of another inmate. He further believed that the defendants exhibited excellent rehabilitative potential. Rosemarie Centanni, the defendants' mother, testified that she knew of her sons' drug problems. In her opinion, both defendants showed remorse for their actions. Raymond Centanni, Sr., the defendants' father, testified that he had seen a positive change in defendants' attitude since their arrest and that, upon their release from prison, they could reside with him. He also indicated that Raymond was a union electrician and Paul would have a construction job upon release from prison. Leonard Williams, a Lake County jail employee, testified that the defendants regularly go to drug counseling, the law library and Sunday worship. He also recounted the incident in which Paul saved another inmate from a life-threatening asthma attack.
At the close of argument the trial court sentenced the defendants to 30 years' incarceration. In determining the sentence, the court stated that defendants had committed a "very violent, very horrible crime," had threatened bodily harm, and had threatened to kill Mr. Simon. The court noted that people who take drugs, as the defendants in this case, are responsible for their conduct. The court also commented that the defendants committed a similar crime against Mrs. Keyser in Northbrook. Finally, the judge noted that in this case the prior plea negotiations precluded the court from considering sentencing defendants to an extended term and limited the penalty to no more than 30 years. On May 23, 1986, the court refused to allow defendants' motion to reconsider sentence.

 Procedural History

 In a consolidated appeal to the Illinois Appellate Court, each Petitioner challenged the 30-year sentence imposed on him by the Circuit Court. As stated in the Appellate Court's opinion (164 Ill. App. 3d at 483, 517 N.E.2d at 1209), Petitioners argued that the Circuit Court:

(1) failed to use proper standards when it sentenced them in that it noted that their conduct carried extended-term sentencing potential, and, further, the court failed to recite which aggravating factors, if any, justified imposition of the maximum term; (2) erred when it denied the defendants' motion in limine and allowed evidence to be elicited concerning the facts of a separate offense; and (3) denied the defendants due process in view of the six-year sentence which the court gave a codefendant.

 That appeal was unsuccessful, and each Petitioner's sentence was affirmed ( id. at 494, 517 N.E.2d at 1216). Neither Paul nor Raymond filed a timely appeal on direct review to the Illinois Supreme Court.

 Next Petitioners jointly petitioned pro se for collateral post-conviction relief in the Lake County Circuit Court pursuant to the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 to 5/122-8). Separate counsel were appointed for Paul and Raymond, and each then filed a separate supplemental petition. On March 4, 1992 the State's motion to dismiss each petition was granted without an evidentiary hearing or a trial.

 Petitioners then brought separate appeals from the Circuit Court's dismissal of their post-conviction petitions to the Illinois Appellate Court. As stated in that Court's unpublished written opinion ( People v. Centanni, 248 Ill. App. 3d 1104, 660 N.E.2d 288, 214 Ill. Dec. 97 (2d Dist. 1993)), Paul raised several issues as to the effectiveness of both his trial and appellate counsel:

[Paul] asserts that the trial court erroneously dismissed where the record adequately establishes that in light of the brothers' varying degrees of respective culpability and their attorney's failure to advise them of their conflict of interest, he did not receive effective assistance of counsel. He also asserts that the record shows that he did not otherwise receive effective assistance of counsel, basing that latter claim upon the following grounds: (1) that he was never advised that he had a right and a reason to be represented separately from his brother; (2) that his plea was induced upon an understanding that other crimes would not be used against the brothers; and (3) that counsel failed to move to vacate the plea and sentence; (4) that counsel failed to perfect the record on appeal through a motion to supplement the record on the issue of disparity; and (5) that counsel failed to advise the defendant of the option of supreme court review.

 As for Raymond, the Appellate Court described the issues presented by his appeal in these terms:

On his appeal, Raymond argues that the court erroneously dismissed his amended petition on the following grounds: (1) counsel failed to file a motion to withdraw the guilty plea, where the plea resulted from improper legal advice and where he was represented at the plea by an unprepared attorney appointed only minutes before; and (2) counsel on the direct appeal incompetently failed to timely supplement the record to enable this court's full review of the matter of sentence disparity with co-defendant Floyd Reed.

 In its unpublished opinion that consolidated Petitioners' separate appeals for disposition, the Appellate Court rejected each of Petitioners' arguments and affirmed the dismissal by the Circuit Court.

 Next Petitioners (still acting separately) sought leave to appeal the dismissal of their post-conviction petitions to the Illinois Supreme Court. Paul's petition was untimely, and his belated motion for leave to file instanter was denied. Raymond's timely petition made these arguments: *fn4"

I. The failure of the petitioner's attorney to file a motion to withdraw his guilty plea constituted a denial of effective assistance, cognizable in a post-conviction proceeding under People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218, 124 Ill. Dec. 398 (1988), where the plea resulted from improper legal advice and where he was represented at his plea by an attorney appointed only minutes before the entry of the plea.
II. Where, the failure of counsel in the petitioner's previous appeal to properly supplement the record on appeal with a codefendant's presentence report, judgement order or reports of proceedings from the latter's plea and sentencing hearings prevented the Appellate Court from reaching the merits of the petitioner's disparate sentencing argument in that appeal, counsel plainly failed to provide the petitioner effective assistance, meriting review under the Post-Conviction Hearing Act.

 Leave to appeal was denied to Raymond by the Illinois Supreme Court ( People v. Centanni, 154 Ill. 2d 563, 631 N.E.2d 712, 197 Ill. Dec. 490 (1994)).

 On December 18, 1995 Petitioners filed these actions seeking federal habeas relief from their sentences, and they superseded their original filings with the Petitions on February 1, 1996. Each now advances six identical ...

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