People v. Miller
| Decision Date | 12 March 1976 |
| Docket Number | No. 61964,61964 |
| Citation | 36 Ill.App.3d 943,344 N.E.2d 760 |
| Parties | PEOPLE of the State of Illinois, Respondent-Appellee, v. Lee MILLER, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender of Cook County, Chicago (Ira Churgin, Asst. Public Defender, Chicago, of counsel), for petitioner-appellant.
Bernard Carey, State's Atty., of Cook County, Chicago (Laurence J. Bolon, Kevin Sweeney and Robert Handelsman, Asst. State's Attys., Chicago, of counsel), for respondent-appellee.
Petitioner entered a plea of guilty on January 24, 1973, to the offense of armed robbery in violation of Section 18--2 of the Criminal Code (Ill.Rev.Stat.1971, ch. 38, par. 18--2) and was sentenced to a term of four years to four years and one day. Although not expressly imposed by the trial court, the sentence included the five-year term of parole mandated by Section 5--8--1(e) of the Unified Code of Corrections. (Ill.Rev.Stat.1973, ch. 38, pars. 18--2(b), 1005--8--1(e).) No appeal was taken from that conviction.
On July 29, 1974, petitioner filed a pro se petition for relief under the Illinois Post-Conviction Hearing Act () alleging that his plea of guilty was involuntary in that he was coerced into entering the plea whereas he was not guilty, and that he was identified by the complaining witness through suggestive pre-lineup procedures. A supplemental post-conviction petition was filed by appointed counsel alleging that petitioner was not admonished as to the mandatory parole term at the change of a plea in violation of Supreme Court Rule 402, and that the plea of guilty was involuntary in that the sentence imposed of four years to four years and one day plus five years parole was not the sentence of only four years to four years and one day promised him at the plea negotiations. The supplemental post-conviction petition was accompanied by a certificate of petitioner's counsel pursuant to Supreme Court Rule 651(c).
The State filed a motion to dismiss the pro se petition on January 9, 1975, which was renewed as to the supplemental petition on January 30, 1975. The motion to dismiss was allowed and petitioner appeals contending that his plea of guilty was involuntary because it was induced by an unfulfilled promise with regard to the length of sentence.
The motion to dismiss the pro se and the supplemental post-conviction petitions alleged that no constitutional issues were raised therein, but that if such issues were raised they were bare allegations which did not require a hearing. The motion was also accompanied by a copy of the transcript of proceedings taken at the change of plea hearing held on January 24, 1973. At that hearing defense counsel represented to the court that defendant (petitioner) desired to withdraw his plea of not guilty in return for a promised sentence of four years to four years and one day. The court admonished petitioner that he had the right to persist in his plea of not guilty and go to trial; that he had the right to a jury trial; that at a trial he would have the right to confront witnesses against him; and that by pleading guilty he waived these rights. The court confirmed that petitioner had been promised a term of four years to four years and one day in return for a plea of guilty to the charge of armed robbery; advised petitioner that he could be sentenced to a term of four years or more on the charge of armed robbery pursuant to the Unified Code of Corrections which took effect on January 1, 1973; and received a factual basis for the plea of guilty. The court determined that petitioner wished to accept the sentence of four years to four years and one day, a hearing was held in aggravation of the charge, and petitioner was sentenced as noted above.
Petitioner's counsel at the hearing on the State's motion to dismiss the post-conviction petitions argued both points raised in the supplemental petition, admitting, however, that a recent Supreme Court case (presumably People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505) held that Supreme Court Rule 402 did not require an admonishment as to the mandatory parole period prior to the date of that decision. Nevertheless he...
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People v. Lee
...v. Brown, 296 Ill.App.3d 1041, 1043, 231 Ill.Dec. 255, 695 N.E.2d 1374, 1376 (1998) (Fifth District))); People v. Miller, 36 Ill.App.3d 943, 945–46, 344 N.E.2d 760, 762 (1976) (First District observing parole "is not a matter of negotiation upon plea bargaining"); People v. Reese, 66 Ill.Ap......
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United States ex rel. Williams v. Morris
...to warrant relief under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, §§ 122-1 et seq. People v. Miller, 36 Ill.App.3d 943, 344 N.E.2d 760 (1st Dist. 1976) (no admonition); People v. Cox, 44 Ill.App.3d 945, 3 Ill.Dec. 628, 358 N.E.2d 1313 (1st Dist. 1976) (incomplete admon......
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People v. Cosey
... ... The court further held that this requirement applied prospectively to guilty pleas taken subsequent to May 19, 1975. Thus, the holding is not applicable to petitioner who pleaded guilty on May 9, 1975. (See People v. Tate (2nd Dist. 1976), 37 Ill.App.3d 358, 346 N.E.2d 79; People v. Miller" (1st Dist. 1976), 36 Ill.App.3d 943, 344 N.E.2d 760; People v. Barringer (5th Dist. 1976), 35 Ill.App.3d 295, 341 N.E.2d 386.) The supreme court, in its supplemental opinion in Wills, stated that the procedural change involved in that case involved no constitutional issue or standard ... \xC2" ... ...
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United States ex rel. Williams v. Morris
...refused to grant relief under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, § 122-1 et seq. See People v. Miller, 36 Ill.App.3d 943, 344 N.E.2d 760 (1976); People v. Cox, 44 Ill. App.3d 945, 3 Ill.Dec. 628, 358 N.E.2d 1313 (1976). We further noted that failure to admonish ......