People v. Price

• Decision Date: 15 March 1976
• Docket Number: No. 75--70,75--70
• Citation: 344 N.E.2d 559,36 Ill.App.3d 566
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leland PRICE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 559

344 N.E.2d 559

36 Ill.App.3d 566

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Leland PRICE, Defendant-Appellant.

No. 75--70.

Appellate Court of Illinois, Fifth District.

March 15, 1976.

Stephen P. Hurley, DeputyState Appellate Defender, Michael J. Rosborough, Asst. State Appellate Defender, Fifth Judicial Dist., Mount Vernon, Ken Hartmann, Junior Law Student, Research Asst., for defendant-appellant.

Nicholas G. Byron, State's Atty., Edwardsville (Bruce D. Irish, Principal Atty., Myra J. Brown, Staff Atty., Illinois State's Attorneys Association, Statewide Appellate Assistance Service, Mount Vernon, of counsel), for plaintiff-appellee.

GEORGE J. MORAN, Justice.

Defendant-appellant, 19 year old Leland Price, entered a plea of guilty to the charge of robbery pursuant to an agreement negotiated with the state.The trial court sentenced the defendant to a term of four to 12 years for the robbery.Defendant contends on appeal that the state breached the plea agreement and that the trial court's sentence on the plea of guilty was excessive.

Before accepting defendant's guilty plea and imposing sentence the trial court inquired into the circumstances surrounding the crime to which defendant pled guilty and determined that there was a sufficient factual basis to support the plea.The factual basis was established by a statement of the prosecution describing the probable testimony at the trial of the victim of the robbery and of the observing officer, and by defendant's account of the incident, which was entered into the record by stipulation.

In substance, defendant's account of the crime was that on June 25, 1974, after having a beer with the victim, Victor Huebener, the defendant and Charles Hammonds left the Tenth Street Tavern in Alton, Illinois with Huebener in Huebener's car.While driving on West 19th Street in Alton, Hammonds told Huebener to stop the car and get out.Hammonds then pulled a pistol from his pants and told Huebener that it was a stick-up.Defendant and Hammonds then removed several articles from Huebener's pockets and Hammonds ordered Huebener to lie on the ground.When Huebener refused, Hammonds began beating him about the head with the pistol and kicked him several times after he had fallen to the ground.Defendant stated he took no part in the beating.

Victor Huebener's version of this incident differed from the defendant's, both with respect to the manner in which the defendant and Hammonds gained entry into Huebener's car with respect to the defendant's participation in the beating of Huebener.He contends that the defendant and Hammonds entered his car forcibly and ordered him to drive to a remote spot in the city of Alton where they robbed him.He also stated in his complaint and in his testimony at the sentencing hearing that both Hammonds and the defendant had beaten him.

The account offered by Carl Logan, the officer who observed the crime, also differs somewhat from that of the defendant.Officer Logan stated in his report and in his testimony at the sentencing hearing that he had first observed two men, one of whom he recognized as Charles Hammonds, holding another man against the side of a parked car and beating him.After calling for assistance, he returned to the scene and saw both the defendant and Hammonds standing over Huebener, but could not tell who was beating Huebener.

Defendant agreed to submit to a polygraph examination in order to resolve the conflict between his account of the incident and the versions related by Logan and Huebener.The results showed that defendant was telling the truth when he said he did not participate in Huebener's beating, but that his account of how he met Huebener was not truthful.

Although in some conflict, each of these accounts indicates that defendant unlawfully took personal property from the possession of Victor Huebener, while Huebener was under threat of physical harm.Several articles belonging to Huebener were found in the defendant's possession at the time of the arrest.They were a small black coin purse containing $2.24, a screw, a key and a black leather billfold containing personal papers, a Central Hardware credit card and a driver's license.

On August 1, 1974, the Grand Jury of Madison County indicted the defendant for armed robbery.On October 23, 1974, the defendant pled guilty to robbery.The plea was entered as the result of a negotiated agreement pursuant to Supreme Court Rule 402(Ill.Rev.Stat.1973, ch. 110A, par. 402).The terms of the plea agreement, as reported by the prosecutor, were that the defendant would plead guilty if the state would reduce the charge to robbery.The defendant also would be given a polygraph examination, a psychological examination and a pre-sentence report, and the state would 'stand mute and make no recommendation as to sentencing,' although they would be allowed to introduce evidence in aggravation.

The trial court admonished the defendant pursuant to the requirements of Rule 402 and accepted the defendant's plea of guilty to the charge of robbery.The court then ordered a pre-sentence investigation and set a date for the sentencing hearing.

At the sentencing hearing five witnesses testified in mitigation on behalf of the defendant, including the probation officer assigned to complete the pre-sentence investigation.Based on the results of his investigation and the results of a psychological examination, the probation officer recommended that defendant be granted probation.Defendant also testified on his own behalf at the sentencing hearing.

The victim, Victor Huebener, and the observing officer, Carl Logan, testified in aggravation on behalf of the state.In response to a question of the court, the prosecution also made the following comments regarding sentencing:

'Your Honor, the state did not make any recommendation, but I don't think it is in violation of either the word or spirit of the understanding for me to comment at this time that I think that based upon Mr. Price's record, that a period of incarceration is necessary or that he is not a suitable candidate for probation.The defendant has been given two chances before, and this is the third armed robbery charge.He testified he wanted to take care of his wife, but he wasn't taking care of her before.He had a good job making good money, working fulltime.He was under counsel, but he still went out and committed another crime.He has testified on his own to a disregard for the law, and while the People personally and again in keeping with our prior agreement, don't have any specific recommendation, I reiterate that we do recommend incarceration to that extent'

Defendant's counsel then argued that the court should adopt the recommendations of the court psychologist and probation officer and place the defendant on probation, to which the prosecution replied:

'Your Honor, I most strongly disagree with the opinion of Mr. Riley that recommendations of the Department of Corrections . . . Department of Adult Probation and these people who compile these reports, are in the best interest of society.If the Court will read these reports, you will find there is nothing in there to consider society's interest.They are written solely to determine the best interest of the subject being examined, in this case, Leland Price, and that is all they are concerned with in those examinations.They never ever consider what's in the best interest of society, and since this is not a child custody case . . . he talks about what's in the best interest of Leland Price.That is not controlling here.We are concerned as lawyers and as a Judge with what's in the best interest of society, and the State's Attorney's Office and this particular assistant, is very much of the opinion that these recommendations from the Adult Probation Department don't take into consideration all the facts that they should.And for that reason I ask the Court to disregard the recommendations and to sentence this defendant to the Defendant of Corrections.'

Defense counsel did not object to these comments of the prosecution regarding the sentencing of the defendant.

The defendant argues on appeal that the state violated the agreement that induced defendant's plea of guilty by arguing that the defendant was not a suitable candidate for probation and that he should be imprisoned.Defendant contends that this recommendation against probation and in favor of incarceration was a breach of the state's promise to 'stand mute and make no recommendation as to sentencing.'

The state contends that defendant waived the opportunity to raise the issue of breach of the plea agreement by his failure to object to the assistant state's attorney's recommendation against probation.The state further contends that even if defendant had not waived the issue of breach by his failure to object, there was no breach of the plea agreement.The state bases this contention on the fact that the prosecution did not make any specific recommendation regarding length of sentence and on the theory that the prosecution's remarks were merely an extension of the reserved right of the state to put on witnesses and evidence in aggravation.

Failure to object to a timely and specific manner generally constitutes a waiver of the issue on appeal.However, plain error affecting substantial rights may be considered by an appellate court even though not raised at trial or on appeal.People v. Stickler, 31 Ill.App.3d...