People v. Fern

• Decision Date: 21 January 1993
• Docket Number: No. 2-91-0102,2-91-0102
• Citation: People v. Fern, 240 Ill.App.3d 1031, 607 N.E.2d 951, 180 Ill.Dec. 651 (Ill. App. 1993)
• Parties: , 180 Ill.Dec. 651 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jay FERN, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 951

607 N.E.2d 951

240 Ill.App.3d 1031, 180 Ill.Dec. 651

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jay FERN, Defendant-Appellant.

No. 2-91-0102.

Appellate Court of Illinois Second District.

Jan. 21, 1993.

Rehearing Denied Feb. 19, 1993.

G. Joseph Weller, Deputy Defender, Steven E. Wiltgen, Office of the State Appellate Defenders, Elgin, for Jay H. Fern.

Thomas F. Baker, McHenry County State's Atty., William L. Browers, Deputy Director, John X. Breslin, Deputy Dir., State's Attys. Appellate Prosecutors, Ottawa, Basil Greanias, Decatur, for the People.

Justice BOWMAN delivered the opinion of the court:

Defendant, Jay Fern, appeals from the circuit court's order dismissing his petition for post-conviction relief as patently without merit. We affirm.

In October 1988, defendant was charged by indictment with two counts of the unlawful delivery of a controlled substance (cocaine) (Ill.Rev.Stat.1987, ch. 56 1/2, pars. 1401(a)(2), 1401(b)(2)). On May 22, 1989, defendant entered a "blind" plea of guilty; the trial court ascertained that counsel had advised defendant of his rights and of the consequences of his plea. The court also admonished defendant of his rights and of the consequences of pleading guilty and informed defendant of the possible penalties including fines and a term of imprisonment of 9 to 40 years on count I, and 4 to 15 years on count II.

After hearing the factual basis for the plea and ascertaining that defendant persisted in entering his plea knowingly and voluntarily, the court accepted the guilty plea and entered judgment on both counts.

Following a hearing on July 19, 1989, the trial court sentenced defendant to a term of 25 years' imprisonment and imposed a fine of $50,000 as to count I, a Class X felony; the court also sentenced him to 10 years' imprisonment and imposed a fine of $25,000 as to count II, a Class 1 felony. The terms were to run concurrently. The court fully advised defendant of his right of appeal and the prerequisites to exercising that right, including the necessity of filing a written Rule 604(d) motion to vacate the judgment or reconsider the sentence. (134 Ill.2d 604(d).) Without filing such a post-judgment motion, defense counsel filed a direct appeal to this court, raising sentencing issues only. This court determined that the issues were waived for failure to file a Rule 604(d) motion and affirmed the judgment. People v. Fern (1990), 199 Ill.App.3d 983, 146 Ill.Dec. 68, 557 N.E.2d 1010.

On December 3, 1990, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1989, ch. 38, par 122-1 et seq.). In his petition, he alleged the ineffective assistance of trial counsel in entering his guilty plea and in failing later to present a motion to withdraw his plea; defendant also alleged that the trial court did not fully admonish him at the time of his plea and that appellate counsel (who was also trial counsel) was ineffective in failing to raise issues concerning the entry and withdrawal of his plea. Defendant prayed that he be allowed to withdraw his guilty plea and, alternatively, that he be resentenced according to terms allegedly agreed upon prior to the entry of his plea.

On January 2, 1991, within 30 days of the filing of defendant's petition, after considering the contents of the trial record including the transcripts of the proceedings, the trial court issued a detailed written order finding that the "blind" plea was intelligently, knowingly and voluntarily entered and that defendant was fully admonished of the consequences of his plea. The court further opined that, since the "blind" guilty plea was not the result of negotiations, there was no support for defendant's allegation that a motion to withdraw the plea was contemplated by defendant or his counsel. Accordingly, the trial court dismissed defendant's petition, and defendant filed this timely appeal pro se on January 22, 1991. This court appointed counsel to represent him on appeal.

The 16 pages transcribed in the record further reveal that at the proceeding wherein defendant entered his guilty plea the court personally and meticulously addressed defendant and explained the nature of the case and the consequences of entering a "blind" guilty plea. First, the trial court ascertained that counsel had advised defendant of his rights under the law and the consequences of entering a plea of guilty and that defendant would not be able to offer evidence in his defense. Defendant acknowledged this affirmatively. The court explained that if defendant persisted in his plea, the court would have no choice but to enter a conviction. The court advised defendant of his right to remain silent and of the penalties available to the court, including terms of 9 to 40 years on count I and 4 to 15 years on count II. The defendant acknowledged that he understood the nature of the charges against him and the sentences that could be imposed and that he could choose to plead guilty or not guilty. The court explained that if he pleaded guilty, he would be giving up his right to a jury or a bench trial. The court then received defendant's written waiver of a jury trial which defendant acknowledged he had read. The court further advised defendant that he would be giving up his right to confront witnesses or present evidence and would be admitting to the commission of the crimes and that he would be giving up his right to have the prosecution prove the case against him beyond a reasonable doubt. Defendant affirmatively stated that he understood his rights and was willing to give them up.

The court also inquired whether defendant was satisfied with his legal counsel. When asked if his attorneys had kept him informed throughout the proceedings and about any negotiations on his behalf, defendant stated, "They sure have." He further stated he was satisfied with what they had accomplished. Defendant denied that any promises of any kind or threats had been made to him or his family by the State's Attorney, by his counsel or any other persons in order to induce him to plead guilty. He denied that anyone had forced him to plead guilty and stated that he was pleading guilty voluntarily. The court then explained that any sentence to be imposed would be completely within the province of the court and that if anyone had forced him into pleading guilty or had made promises to him, these would not in any way be binding on the court and would be totally unenforceable. Defendant acknowledged that he understood this.

The factual basis of the plea was then presented. The prosecution stated that if the cause were to proceed to trial, as to count II, special agent Augustine, who was working in an undercover capacity with a confidential informer, would testify that he had discussions with defendant for the purchase of cocaine and marijuana. An exchange was to be made and, in order to seal the agreement, defendant gave a free sample of 1.54 grams of cocaine (as later determined by chemist Roger Fuelster) to the confidential informant named Spannuth. The exchange took place near the McDonald's restaurant in McHenry, Illinois. The confidential informer had been searched prior to receiving the delivery from defendant on August 10, 1988.

As to count I, the testimony of special agent Augustine and Spannuth was that there were further negotiations where defendant delivered what was later determined by the forensic chemist to be 250.8 grams of high quality, uncut cocaine along with $5,000 in "earnest" money as down payment for the later delivery of 100 pounds of marijuana from the special agent. Defendant delivered the cocaine in the driveway of 518 West Dowell, in McHenry; the agent's delivery was never completed. Other evidence would include electronic surveillance testimony. Defendant acknowledged that the statement of facts regarding each count was substantially correct.

Upon further inquiry by the court, defendant agreed to persist in his guilty plea as to the offenses charged in the indictment. The court found that his plea was knowing and voluntary; the court found that there was a factual basis for the plea, accepted the plea as to both charges, and entered judgment on both counts. A presentence investigation was ordered.

At the sentencing hearing, special agent Augustine of the United States Drug Enforcement Administration testified, without objection, regarding the contents of taped telephone conversations implicating defendant in the offenses; the tapes were heard by the court. The State also presented a certified copy of defendant's 1982 conviction of unlawful calculated criminal cannabis conspiracy. The State characterized defendant as a sophisticated drug kingpin in McHenry County who posed as a businessman. The State sought terms of imprisonment of 30 years and 10 years, respectively, for counts I and II in addition to a fine of $100,000 and forfeiture of $5,000.

Among other things, defense counsel pointed out that the State had at one point offered a sentence of 20 years in return for a guilty plea, but defendant had decided instead on a "blind" plea. Defense counsel pointed to defendant's limited prior record and lack of violence in mitigation.

Exercising his right of allocution, defendant thanked his wife and attorneys for their support and stated he would do his best to "withstand" whatever sentence the court thought was fair and just. After considering the factors in aggravation and mitigation and any agreement the parties might have had, the court determined that, given defendant's history and character, a sentence of imprisonment was necessary as a deterrent as well as for the protection of the public. The court sentenced defendant to 25 years on count I and 10 years on count II with the sentences to run concurrently along with substantial fines amounting to $75,000.

The court then specifically advised defendant of his...