People v. Cohn
Decision Date | 22 December 1980 |
Docket Number | No. 80-386,80-386 |
Citation | 91 Ill.App.3d 209,414 N.E.2d 543,46 Ill.Dec. 659 |
Parties | , 46 Ill.Dec. 659 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ruth M. COHN, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Katz, Hirsch, Wise & Colky, William H. Wise and Scott C. Colky, Chicago, for defendant-appellant.
Dennis P. Ryan, State's Atty., Dennis S. O'Brien, Asst. State's Atty., Waukegan, Phyllis J. Perko, Cynthia N. Schneider, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.
Defendant Ruth M. Cohn entered a plea of guilty to the offense of conspiracy to commit murder and was sentenced to a term of six years imprisonment. She appeals from the denial by the trial court of her motion to withdraw that plea, contending (1) that she was not admonished of her right to trial by jury; (2) that she was insufficiently advised of the nature of the charges against her; (3) that she pleaded guilty in reliance on a promise by the trial judge or a misrepresentation by her attorney that she would not receive a sentence of imprisonment; and (4) that the above deficiencies, in combination with the further failure of the trial court to determine defendant's fitness to plead, rendered the plea involuntary.
A two-count indictment charged defendant with solicitation to commit murder and conspiracy to commit murder. On May 14, 1980, defendant and her counsel appeared before the trial court and tendered a plea of guilty to the conspiracy count. The assistant State's Attorney stated to the court that in exchange for the guilty plea the State would nolle prosse the charge of solicitation to commit murder and would defer to the court (not make any recommendation) as to the sentence to be imposed on defendant. The court questioned defendant as follows:
Thereafter the trial judge continued to generally admonish defendant as is required by Supreme Court Rule 402 (Ill.Rev.Stat. 1977, ch. 110A, par. 402), and with regard to defendant's right to a trial stated:
After determining the factual basis for the plea, which defense counsel stipulated would be the evidence adduced in a trial, the court accepted defendant's plea of guilty.
Immediately thereafter, a sentencing hearing was conducted. The court had previously ordered a pre-sentence investigation report, at the request of defense counsel, which it considered. Dr. Erwin Patlak, a physician and practicing psychiatrist, who had treated defendant, testified in mitigation on her behalf and stated that she was suffering from a major depressive order which could worsen upon confinement in prison or a mental institution. The doctor also testified that defendant's depression would not occur in the future if therapy was provided to her. When asked to elaborate on defendant's claims that she could not recollect things in the past relating to this case, the witness related that when confronted with the details she has a memory block and that such a disassociative state is one in which people can do things of which they are not aware. The psychiatrist noted, however, that during the time he had been seeing defendant, following the time of the offense in question, he had not seen her in a disassociative state.
Defendant testified on her own behalf at the sentencing hearing and again stated her inability to recollect doing the acts for which she had pleaded guilty. The trial court then sentenced defendant to six years imprisonment and advised her of the right to appeal and the procedures therefor, to which defendant and her counsel responded:
"DEFENDANT: One of the reasons, Judge, that I did not ask for a jury trial was I didn't want the children exploited anymore or what it what goes on in the newspaper. What's the word?
MR. WISE (defendant's attorney): Publicity.
DEFENDANT: * * * I think it would do irreparable harm to both my children and me for this to take place and the reason I didn't ask for a trial is that I wanted no more publicity * * *."
Five days later, on May 19, 1980, defendant filed a motion to withdraw her plea, and it was heard by the trial court on May 23, 1980. In addition to their arguments relating to the court's admonishments, both defense counsel and the assistant State's Attorney testified concerning an April 23, 1980 discussion had in chambers in which both attorneys, Dr. Patlak, and the trial judge participated and of which no record was made. Attorney Wise stated that he had asked the trial judge to give him an inclination as to defendant's possible sentence, but the judge had stated that "he had no inclination, he was not leaning towards any inclination of penitentiary for this woman at this time and would keep an open mind." However, the assistant State's Attorney's version, in which the judge concurred, was that the judge had responded that he was not leaning towards any disposition at that time and was keeping an open mind. At the hearing of defendant's motion to withdraw her plea, the trial court inquired of defense counsel whether Dr. Patlak had expressed an opinion during the conference in chambers as to defendant's competence to stand trial. Attorney Wise responded he could not recall and the court remarked, "I just want to know whether you heard it." Defendant's motion to vacate her plea was denied, and she appeals.
We will consider first defendant's contention that she was not apprised of her right to trial by jury prior to entry of her plea. Defendant correctly notes that the trial court did not specifically mention the word "jury" in its admonishment, and she argues that this flaw requires a determination that the court failed to meet the requirements of Rule 402(a)(4). It is apparent that the trial judge did not expressly advise defendant in open court of her right to be tried by a jury but referred in his admonishment only to her right to a trial.
When a trial court's admonishment refers to "trial" rather than "trial by jury", this may in certain circumstances mislead a defendant into believing he does not have a right to be tried by jury. (See People v. Locke (1973 abst.), 13 Ill.App.3d 1087, 302 N.E.2d 118.) A waiver of the jury trial right may not be presumed from a completely silent record, and convictions based upon a plea of guilty entered following an admonishment similar to that given in this case have been reversed on review for failure to substantially comply with Rule 402. People v. Losacano (1975), 29 Ill.App.3d 103, 329 N.E.2d 835; People v. Bolden (1972), 7 Ill.App.3d 730, 288 N.E.2d 541; People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846; People v. Garner (1971), 130 Ill.App.2d 932, 267 N.E.2d 38.
However, the failure to meet the substantial compliance requirement of Rule 402 does not automatically require vacation of defendant's conviction. (People v. Dudley (1974), 58 Ill.2d 57, 60, 316 N.E.2d 773, 774; People v. Mize (1976), 34 Ill.App.3d 781, 783, 340 N.E.2d 306, 308; People v. White (1975), 28 Ill.App.3d 555, 556, 328 N.E.2d 568, 569.) While the trial court's admonishments must be reviewed as they were given to a defendant, prior to the acceptance of his plea (People v. Lundeen (1977), 55 Ill.App.3d 799, 802, 13 Ill.Dec. 612, 614, 371 N.E.2d 329, 331), whether reversal is required depends on whether real justice has been denied or a defendant has been prejudiced by the inadequate admonishment. (Dudley, 58 Ill.2d at 60-61, 316 N.E.2d at 774-75.) The entire record before us may be considered in this inquiry (People v. Krantz (1974), 58 Ill.2d 187, 192, 317 N.E.2d 559, 562), and, in this case, it is clear that defendant understood she had a right to a jury trial but did not choose to exercise that right. She informed the trial judge during the sentencing hearing which followed that one of her reasons for declining to request a jury trial was to avoid publicity. Defendant was forty years old at this time and had been self employed as...
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