United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
On September 21, 2009, Harry Powell pled guilty in the Circuit Court of Cook County to three counts of burglary and one count of residential burglary. The state court judge sentenced Powell to a ten-year prison term on one of the counts of burglary and concurrent twenty-year prison terms on each of the remaining counts, with the ten and twenty-year terms to run consecutively.
Powell has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that he was coerced to plead guilty by the trial judge, was given only three days to prepare for trial, and received ineffective assistance of trial and appellate counsel. For the reasons discussed below, the Court denies Powell's petition.
A. Trial court proceedings
Illinois Supreme Court Rule 402(d), as it existed at the time of Powell's guilty plea, provided as follows:
(1) The trial judge shall not initiate plea discussions.
(2) If a tentative plea agreement has been reached by the parties which contemplates entry of a plea of guilty in the expectation that a specified sentence will be imposed or that other charges before the court will be dismissed, the trial judge may permit, upon request of the parties, the disclosure to him of the tentative agreement and the reasons therefor in advance of the tender of the plea. At the same time he may also receive, with the consent of the defendant, evidence in aggravation or mitigation. The judge may then indicate to the parties whether he will concur in the proposed disposition; and if he has not yet received evidence in aggravation or mitigation, he may indicate that his concurrence is conditional on that evidence being consistent with the representations made to him. If he has indicated his concurrence or conditional concurrence, he shall so state in open court at the time the agreement is stated as required by paragraph (b) of this rule. If the defendant thereupon pleads guilty, but the trial judge later withdraws his concurrence or conditional concurrence, he shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea of guilty. If the defendant thereupon withdraws his plea, the trial judge shall recuse himself.
(3) If the parties have not sought or the trial judge has declined to give his concurrence or conditional concurrence to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the plea agreement, and that if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.
Ill. S.Ct. R. 402 (2009 version). In short, under Illinois law as it existed at the time of Powell's guilty plea, a trial judge could not "initiate plea discussions" but could participate in plea discussions when the defendant requested it and the prosecution agreed to it. In practice, the Rule 402 plea conference typically involves the judge, the prosecutor, and the defense attorney; the defendant is not present.
The plea conference in Powell's case was held before Judge Lawrence Terrell on August 6, 2009. Prior to the conference, Judge Terrell admonished Powell that he (the judge) would be participating in a conference in which he would learn information about Powell that he otherwise would not learn prior to trial; that Powell would not be present; and that after the conference, "I next will offer you a penalty in exchange for a plea of guilty...." Powell said he understood. Resp.'s Ex. G at A3.
There is no record of the Rule 402 plea conference itself because, per the usual practice, it took place off the record, likely in the judge's chambers. After the conference, Powell's lawyer stated for the record that "based on the conference, I told Mr. Powell what the offer was, " without describing it on the record. Id. at A5. Counsel's comment, however, indicates that at the Rule 402 conference, Judge Terrell advised counsel what sentence he would be inclined to impose if Powell pled guilty. See generally People v. Meza, 376 Ill.App.3d 787, 790, 877 N.E.2d 1189, 1191 (2007). The case was reset to August 14, 2009 but was thereafter reset to September 14 for reasons that are not entirely clear from the record.
On September 14, 2009, defense counsel asked to continue the matter to September 24 [sic], saying, "[m]aybe we could work it out by then." Id. at C3. The prosecutor said, "That's a Friday. I don't know if you're saying you might plead Friday. That's one thing." Id. Defense counsel replied, "I will do my best." Id. The prosecutor then put the terms of the judge's sentencing offer on the record: "Judge, we had a 402 conference. You offered him 10 plus 20. One of the cases is an '06 case." Id. The judge then said, "All right. We'll see you this Friday. What's Friday's date." Id. That Friday would have been September 18, but defense counsel stated, "Friday the 25th." The judge then stated, "So I want to communicate with you. If you don't want to communicate with me, have a seat, and then we'll start over again. I'm ordering you back to court this Friday at 9:30." Id.
Although the transcript for September 14 states at the end that the case was continued to September 25, 2009, as just indicated it was actually reset to Friday, September 18, 2009, as the judge had stated at the end of the September 14 hearing. On September 18, the following colloquy occurred:
MR. BASTIANONI: Judge, Mr. Powell would like to address the Court, your Honor.
THE COURT: Sure. I will listen to anybody.
THE COURT: What's your name, sir?
THE DEFENDANT: Harry Powell, POWELL.
THE COURT: I met your lawyer. Go ahead.
MS. O'BRIEN: Judge, a couple of court dates ago we had a 402 conference, your Honor made an offer. The defendant has an '06 burglary, and then he has three '08 cases that are running consecutive to that.
We have elected on, I believe, 128288 and 89. We not only have filed a motion to use proof of evidence of other crimes, but we are seeking to join those two cases as well. The defendant is raising his hand though.
THE COURT: How many cases are there?
MS. O'BRIEN: Four. Four cases, Judge.
THE COURT: Okay. He is on probation in Case No. 1101?
MS. O'BRIEN: No, Judge, it is a live case.
THE COURT: From '06?
MS. O'BRIEN: Let me read it. (Brief pause.) Okay, I read it. Mr. Powell, you ...