People v. Dennis

• Decision Date: 25 April 1975
• Docket Number: No. 60704,60704
• Citation: 328 N.E.2d 135,28 Ill.App.3d 74
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles DENNIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 135

328 N.E.2d 135

28 Ill.App.3d 74

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles DENNIS, Defendant-Appellant.

No. 60704.

Appellate Court of Illinois, First District, Fifth Division.

April 25, 1975.

[28 Ill.App.3d 75] James J. Doherty, Public Defender, Cook County, Chicago (Robert P. Isaacson, Asst. Public Defender, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Cook County, Chicago (Laurence J. Bolon, Donald M. Devlin and Michael J. Goggin, Asst. State's Attys., of counsel), for plaintiff-appellee.

DRUCKER, Justice:

This is an appeal from the dismissal of petition for post-conviction relief following an evidentiary hearing. In 1968 petitioner, after a jury trial, was found guilty of armed robbery and sentenced by Judge Reginald Holzer to a term of from 40 to 80 years. His conviction was upheld on direct appeal by the Illinois Supreme Court. (People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385.) ^* In 1971 petitioner filed a pro se petition for post-conviction relief alleging that he was punished for exercising his constitutional right to a jury trial. In support of the petition he submitted the affidavit of his trial counsel stating that at a pre-trial conference with Judge Holzer and the Assistant State's Attorney, petitioner was offered a term of from two to four years if he would plead guilty. Judge Holzer, who refused to recuse himself, dismissed the petition without holding an evidentiary hearing. On appeal to this court we held in People v. Dennis, 14 Ill.App.3d 493, 302 N.E.2d 651: (1) since the allegations made by petitioner could be proved only by facts outside the record, the issue could not have been raised on direct appeal, and therefore the rule of waiver did not apply; (2) the allegations contained in the petition combined with the inferences to be drawn therefrom and from the supporting affidavit sufficiently raised the issue of whether petitioner was denied a constitutional right; and (3) the cause should be remanded for a hearing to be conducted before a judge other than Judge Holzer who would likely be called as a witness. Pursuant to this holding an evidentiary hearing was held before Judge Joseph Power, at the conclusion of which the petition was dismissed.

Petitioner contends that the imposition of a sententce of 40 to 80 years after a jury trial when he had been offered a two to four, two to five or two to six year term in return for a guilty plea prior to trial was tantamount to punishment for the exercise of his rights under the United States and Illinois Constitutions, and therefore he was entitled to post-conviction relief.

At the evidentiary hearing petitioner testified on his own behalf that in February 1968 he was represented by Assistant Public Defender Stuart Skudder who advised him that during a plea bargaining conference a term of from two to four years was offered for a guilty plea to armed robbery charges pending against him. Skudder told him that the Assistant State's Attorney and Judge Holzer were parties to this conference. Petitioner told Skudder that he would only accept an offer of 'time considered served.' This was refused by Judge Holzer and the State. He chose to be tried by a jury, was found guilty and sentenced by Judge Holzer to a term of from 40 to 80 years.

David Selig testified on behalf of the State that he was the Assistant State's Attorney who participated in the plea negotiations On cross-examination Selig reiterated that at the plea conference he informed Judge Holzer of the 'provables,' i.e., the substance of the State's case against petitioner and petitioner's prior felony convictions. This was in accord with Judge Holzer's customary procedure before committing himself to a pre-trial offer. Selig admitted that the disparity between the sentence offered before trial and the one ultimately imposed was 'great.'

regarding the armed robbery charges pending against petitioner. He had a vivid recollection of the case. Other participants in the plea negotiations were Stuart Skudder, petitioner's attorney, William Wise, the senior Assistant State's Attorney assigned to Judge Holzer's courtroom, and Judge Holzer. Due to the backlog of cases with which the State was at that time confronted, and at the insistence of Wise, he recommended a sentence of two to six years. A plea conference was held before Judge Holzer at which Selig related the State's offer and informed the court of petitioner's prior convictions. Judge Holzer said he would accept the State's recommendation if petitioner pleaded guilty. Petitioner did not accept this offer but rather forwarded a counter-proposal that he be sentenced only to the time he had already spent in jail. This was rejected by the State. The case proceeded to a jury trial.

Judge Holzer testified for the State that although he had some independent recollection of petitioner's case, he could not recall it in great detail. There was probably a plea conference during the course of the proceedings since 'we tried to dispose of most every case without a jury trial if possible, to save time and to get that constant backlog down.' During a plea bargaining conference he would make it very clear to the defense attorney what the sentence would be in return for a guilty plea. He would not commit himself to any sentence without knowing the criminal record of the defendant. He recalled that in petitioner's case, following a jury verdict of guilty, he followed the State's recommendation of 40 to 80 years.

During final argument on the petition the court made several comments to the effect that it was troubled by petitioner's 'arrogance.' It further stated that it believed that the adjustment of petitioner's sentence lay within the province of the appellate court. Consequently, despite its specific finding that during plea negotiations petitioner had been offered a sentence of two to four, two to five or two to six years if he pleaded guilty, the court dismissed the petition.

OPINION

Petitioner contends that he proved his allegation that he suffered a...