United States District Court, N.D. Illinois
James R. Todd, Petitioner,
Kess Roberson, Respondent.
FREDERICK J. KAPALA, District Judge.
Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254  is denied. Certificate of appealability will not issue. This case is closed.
Petitioner, James R. Todd, is currently in the custody of the Illinois Department of Corrections, housed at the Lincoln Correctional Center, where respondent, Kess Roberson, is the warden. Before the court is Todd's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his confinement. For the reasons that follow, the petition is denied.
The State charged petitioner in two separate cases (Whiteside County, Illinois Case Nos. 07 CF 140 & 188) with two unlawful deliveries of controlled substances in violation of 720 ILCS 570/401(a)(2)(A). In a June 21, 2007 letter from the Whiteside County State's Attorney, Gary L. Spencer, to petitioner's counsel, Daniel E. Radakovich, the State offered petitioner an 18-year sentence. Radakovich responded by requesting that Spencer consider a sentence of 10 years in Case No. 07 CF 188 and the dismissal of Case No. 07 CF 140. Spencer wrote Radakovich again and offered to dismiss Case No. 07 CF 140 if petitioner agreed to plead guilty in Case No. 07 CF 188 with either a negotiated 15-year sentence or an open plea. Spencer reiterated his offer in a fax to Radakovich and further indicated that "[w]hile a judge may well give [petitioner] less than 15 years at a sentencing, given that [petitioner] has 5 priors and given that it was $1, 000 worth of drugs, I would not be doing my job (as I see it) to offer less than 15 years."
On February 22, 2008, Radakovich faxed Spencer a letter indicating that attorney Thomas Murray would appear in his stead for the plea hearing on February 25 because Radakovich had to attend two emergency depositions in Chicago on that date. Radakovich also requested that sentencing be deferred to a future date. Radakovich indicated that it was his understanding that the State would dismiss the charges in Case No. 07 CF 140 and would recommend that petitioner be admitted to bond in Case No. 07 CF 188. On the same date, Spencer faxed a letter back to Radakovich providing that it was Spencer's understanding that on February 25, 2008, petitioner would enter an open plea in Case No. 07 CF 188, the State would dismiss the charge in Case No. 07 CF 140, and would agree to a reduction in petitioner's bond with various conditions including that petitioner make daily contact with a law enforcement agent.
On February 25, 2008, petitioner appeared with Murray before the Honorable Stanley B. Steines. Spencer appeared on behalf of the State. The Court stated, "[t]he parties have indicated to the Court off the record that they have a limited plea agreement for the Court's consideration. Mr. Spencer, if you'd state the terms of that agreement please." Spencer responded:
Your honor, it's my understanding that [petitioner] will enter an Open Plea of Guilty to the one count charged in 07 CF 188. That case charges the Class X Delivery of a Controlled Substance.... Pursuant to his plea in 07 CF 188, the People would be moving to dismiss 07 CF 140.
In addition, your honor, the parties would be recommending to the Court that bond in 07 CF 188 be reduced from the amount now set to the amount of $20, 000.
Murray confirmed that Spencer's summary met with his understanding of the plea agreement. During the Illinois Supreme Court Rule 402 admonishments, the Court informed petitioner that the possible penalties included a term of imprisonment of 6 to 60 years and petitioner indicated that he understood. Petitioner also acknowledged that no one promised him anything other than the terms of the plea agreement, that is the dismissal of 07 CF 140 and the reduction of the bond in 07 CF 188. The Court found that petitioner's plea of guilty was knowing and voluntary, found him guilty, and scheduled the case for a sentencing hearing.
The sentencing hearing was continued multiple times over the ensuing months. On July 6, 2009, Radakovich wrote to Spencer inquiring whether the State would "be interested in a sentence lower than the ten (10) year sentence that has been negotiated in consideration for a higher fine in this matter?" Spencer responded, "10 years? Defendant plead guilty open to an extendable class X, six to sixty." Radakovich replied, "[w]hat is your position re: Sentencing, fine etc?" Spencer answered, "given the fact that he has a previous class X conviction (if memory serves) means that my recommendation will be for a significant number of years." Radakovich emailed Spencer on November 17, 2009, and again asked whether the State would be interested in negotiating an agreed sentence and fine. Spencer responded, "I remain convinced that he is a major problem for our community and is continuing to deal drugs prolifically. My original offer was 18 and I still think that is about right."
On February 24, 2010, Radakovich moved to withdraw as petitioner's counsel because he anticipated that he would be required to testify as to an issue that "has now apparently arisen as to whether an expressed-or implied- agreement or understanding was arrived at by and between State's Attorney Spencer and Attorney Radakovich" relating to "a cap' (i.e. maximum) of ten years in the Illinois Department of Corrections." Radakovich was permitted to withdraw. New counsel entered his appearance and filed a motion to enforce plea agreement maintaining that prior to his February 25, 2008 plea he was informed by Radakovich that the State's Attorney had agreed that petitioner's cooperation would result in a sentence of no more than 10 years.
A hearing on petitioner's motion to enforce plea agreement was held before the Honorable John L. Hauptman. Radakovich testified that during a telephone conversation with Spencer on February 21, 2008, "[i]t was [his] recollection that [he Radakovich] proposed that... [petitioner's] sentence would be, although not firmly decided or agreed upon, that it would be capped at ten years." Radakovich explained that he understood that depending on the level of satisfaction derived from the information petitioner would continue to give to law enforcement, petitioner could get less than 10 years but no more. Radakovich testified that it was his understanding that Spencer was in agreement with the 10-year cap. Radakovich said that Spencer also agreed to reduce petitioner's bond and he made arrangements for Murray to cover the February 25, 2008 plea hearing because Radakovich was not available on that date. Radakovich also testified that when he explained the plea agreement to petitioner, he outlined the agreement as he understood it including the 10-year sentencing cap. Radakovich acknowledged that the letters that he and Spencer exchanged on February 22, 2008 did not mention the 10-year cap. Radakovich explained that he was deliberately vague about the agreement to preserve the safety of his client and everyone involved in the investigations and because ...