People v. Fearing

• Decision Date: 30 November 1982
• Docket Number: No. 17291,17291
• Citation: 66 Ill.Dec. 378,110 Ill.App.3d 643,442 N.E.2d 939
• Parties: , 66 Ill.Dec. 378 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bruce FEARING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 939

442 N.E.2d 939

110 Ill.App.3d 643, 66 Ill.Dec. 378

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bruce FEARING, Defendant-Appellant.

No. 17291.

Appellate Court of Illinois,

Fourth District.

Nov. 30, 1982.

Daniel D. Yuhas, Deputy Appellate Defender, Springfield, Lawrence Bapst, Asst. State Appellate Defender, for defendant-appellant.

Edmond H. Rees, State's Atty., Carlinville, Robert J. Biderman, Deputy Director, Garry W. Bryan, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

LONDRIGAN, Justice:

This case presents the question whether the defendant's appeal should be dismissed because it violated a promise that he made as part of a plea agreement. The defendant went to trial and was found guilty by a jury of burglary and felony theft; judgment was entered on the verdicts. The defendant then entered into a plea agreement, which the trial judge accepted, involving the two convictions and six pending charges that arose from the defendant's escape from custody while awaiting trial; the agreement included the defendant's promise not to appeal the burglary and theft convictions. The defendant filed an appeal, however. The State moved for its dismissal, and the motion was taken with the case. We now grant the motion and dismiss the appeal.

In accordance with the plea agreement the defendant waived a presentence investigation report and a sentencing hearing and was sentenced to concurrent terms of 3 and 2 years' imprisonment for the burglary and theft. With respect to the six pending charges, 81-CF-38, the defendant pleaded guilty to one, escape, and was sentenced to 6 years' imprisonment, to be served consecutively to the first two sentences. The defendant was also ordered to pay costs in both cases. The State dismissed the five remaining charges in 81-CF-38. Finally, the defendant waived his right to appeal the convictions for burglary and theft.

The defendant first argues that no authority justifies dismissing his appeal and that the State is in effect seeking equitable relief, specific performance, but has not alleged the lack of an adequate legal remedy. Although the defendant does not argue that his waiver of appeal per se violates constitutional or other rights, some remarks on that question are in order. Article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 6), grants the right to appeal a criminal conviction--there is no federal constitutional right to state review of a state conviction (Estelle v. Dorrough (1975), 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (per curiam); McKane v. Durston (1894), 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867). Like other constitutional and statutory rights, however, the right to appeal may be waived, whether by neglect or by conscious choice. In this case the waiver results from the defendant's promise made as part of a plea agreement. Although uncommon, such a promise does not by itself violate constitutional rights (Staton v. Warden (1978), 175 Conn. 328, 398 A.2d 1176; State v. Gibson (1975), 68 N.J. 499, 348 A.2d 769, 89 A.L.R.3d 840; contra, People v. Stevenson (1975), 60 Mich.App. 614, 231 N.W.2d 476). We are not faced with the question of enforcing a defendant's promise to forego a challenge to the guilty plea, as by a motion to withdraw it.

A plea agreement binds the defendant as well as the State. (People v. White (1972), 5 Ill.App.3d 205, 282 N.E.2d 467; see In re F.D. (1980), 89 Ill.App.3d 223, 44 Ill.Dec. 834, 411 N.E.2d 1200 (delinquent minor).) The State's failure to fulfill its promise made to induce the defendant's acceptance of a plea agreement renders the plea involuntary (Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; People v. Pier (1972), 51 Ill.2d 96, 281 N.E.2d 289; People v. Robinson (1978), 66 Ill.App.3d 601, 23 Ill.Dec. 626, 384 N.E.2d 420). Also, charges that have been settled or dismissed may not be reinstated if the defendant has performed his obligations under the terms of the settlement (People v. Johnson (1939), 372 Ill. 18, 22 N.E.2d 683), and a defendant who testifies in exchange for a grant of immunity on a charge may not later be convicted of the charge (People v. Bogolowski (1927), 326 Ill. 253, 157 N.E. 181). By the same token, when a guilty plea is vacated on review and the defendant allowed to plead anew, charges that were dismissed as part of the plea agreement may be reinstated (People v. McCutcheon (1977), 68 Ill.2d 101, 11 Ill.Dec. 278, 368 N.E.2d 886).

Plea bargaining is an important and widely used method of the criminal justice system for resolving prosecutions quickly and economically (Blackledge v. Allison (1977), 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136; McCutcheon ). Dismissing the appeal will keep the total agreement intact; by appealing, the defendant in effect unravels portions of it. Enforcing the defendant's promise will carry out the policies that underlie plea bargaining. (Cf. Metropolitan Sanitary District ex rel. O'Keeffe v. Ingram Corp. (1981), 85 Ill.2d 458, 55 Ill.Dec. 535, 426 N.E.2d 860 (agreement not to appeal award of attorney's fees in taxpayer's derivative action violated public policy because unincluded taxpayers were not adequately represented when fees were set).) Thus, unless the defendant can show that the agreement not to appeal was made involuntarily or unintelligently or suffers from...