People v. Raymond, 2-89-0901

• Decision Date: 05 September 1990
• Docket Number: No. 2-89-0901,2-89-0901
• Citation: People v. Raymond, 560 N.E.2d 26, 202 Ill.App.3d 704, 147 Ill.Dec. 878 (Ill. App. 1990)
• Parties: , 147 Ill.Dec. 878 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lee R. RAYMOND, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 26

560 N.E.2d 26

202 Ill.App.3d 704, 147 Ill.Dec. 878

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Lee R. RAYMOND, Defendant-Appellee.

No. 2-89-0901.

Appellate Court of Illinois Second District.

Sept. 5, 1990.

Paul A. Logli, Winnebago County State's Atty., John S. Lowry, Brassfield, Cowan & Howard, Rockford, William L. Browers, Deputy Director, Martin P. Moltz, State's Attys. Appellate Prosecutor, Elgin, for the People.

Daniel J. Cain, Peter B. Nolte, Sreenan, Cain & Sullivan, P.C., Rockford, for Lee R. Raymond.

Justice WOODWARD delivered the opinion of the court:

The State appeals the order dismissing the indictment against defendant, Lee D. Raymond, who was charged with reckless homicide (Ill.Rev.Stat.1987, ch. 38, par. 9-3). The State contends the trial court erred in granting defendant's motion to enforce a promise that defendant would not be charged with that offense.

Defendant was originally charged in a separate proceeding with a misdemeanor offense of driving under the influence of alcohol (DUI) on December 1, 1988 (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501). DUI is a Class A misdemeanor (Ill.Rev.Stat.1987, ch. 95 1/2, par. 11-501(c)), which may carry any sentence of less than a year's imprisonment (Ill.Rev.Stat.1987, ch. 38, par. 1005-8-3(a)(1)). Defendant was charged in this proceeding with reckless homicide, which is a Class 3 felony (Ill.Rev.Stat.1987, ch. 38, par. 9-3(d)(2)), which may carry a term of imprisonment of not less than two years and not more than five years, absent certain aggravating factors (Ill.Rev.Stat.1987, ch. 38, par. 1005-8-1(a)(6)).

Defendant's DUI proceeding was assigned to assistant city attorney Barton Henbest of Rockford. In prosecuting offenses under the Illinois Vehicle Code, Henbest was also a special assistant State's Attorney and often prosecuted misdemeanor DUI cases. Daniel Cain entered his appearance on behalf of defendant and discussed possible dispositions with Henbest. Henbest informed Cain that Henbest could not agree to any disposition of the case because Assistant State's Attorney John Lowry told him not to, as Lowry and he were still discussing whether to file felony charges. Later, Henbest informed Cain that Lowry told him the State would not file felony charges against defendant but would request the Secretary of State to revoke defendant's driver's license. Henbest did, in fact, send the requisite materials to the Secretary of State to effectuate a revocation.

The Secretary of State revoked the license, and Cain appealed the revocation and requested a hearing for March 10, 1989. Henbest brought several witnesses to the hearing. Cain examined defendant, and the attorney for the Secretary of State cross-examined him. Henbest was present for the hearing, which lasted five hours, with defendant's testimony alone taking one hour. The subject of defendant's testimony pertained to the charges pending in Winnebago County, including whether he had consumed alcoholic beverages and whether he had driven a car.

On April 5, 1989, defendant was indicted for reckless homicide, and Cain filed a motion to dismiss that charge or, in the alternative, to enforce an agreement with the prosecution. Defendant was present but did not testify. Henbest testified that there was no question that he told Cain there would be no felony charge brought. Assistant State's Attorney Lowry stipulated that Cain, if called to testify, would state that he relied on the representations of Henbest and advised defendant to testify in the license revocation proceedings and, had he not received the representation, would not have advised his client to testify. The State also stipulated that Cain had always found statements made by the State's Attorney's office to be reliable. Cain stipulated that Lowry had no personal knowledge that defendant testified at the license revocation hearing.

The trial court found that, although there was no plea agreement, there was a material representation made to defendant by the State's Attorney's office, that defendant relied upon the representation to his detriment and that such reliance was reasonable. The court found defendant's fifth amendment rights of due process of law were violated, rendering the proceedings unconstitutional. The court also found the State received a benefit because defendant's testimony could be used against him for impeachment or rebuttal and because additional investigation may have occurred based on his testimony at the license revocation hearing. The court granted defendant's motion and ordered that there be no felony charges filed against defendant.

The State appeals and contends the trial court erred in dismissing the charges because there was no plea agreement. The State first contends that defendant's failure to testify is fatal to his motion. This argument is waived because the State did not raise it in the trial court. (Kirby v. Jarrett (1989), 190 Ill.App.3d 8, 15, 137 Ill.Dec. 204, 545 N.E.2d 965.) Defendant was present in the courtroom and could have testified had the State objected to the stipulations relied upon by the trial court. The State never argued any infirmities of the proofs presented to the trial court and never objected to the sufficiency of the evidence, and, hence, this argument is waived.

The State also argues that, because there was no bargained-for exchange between the parties which ultimately led to a guilty plea, the trial court could not grant the motion. Plea agreements are enforceable where a defendant enters a guilty plea in reliance on a promise of a prosecutor. (Santobello v. New York (1971), 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433.) However, an agreement is not enforceable until a defendant actually prejudices himself. (Mabry v. Johnson (1984), 467 U.S. 504, 510, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437, 444.) A promise by a prosecutor will not be enforced unless a defendant shows he has surrendered a constitutionally protected interest in reliance on the promise. People v. Boyt (1985), 109 Ill.2d 403, 415, 94 Ill.Dec. 438, 488 N.E.2d 264.

Although prejudice usually occurs when a defendant pleads guilty (People v. Umfleet (1989), 190 Ill.App.3d 804, 810, 137 Ill.Dec. 900, 546 N.E.2d 1013), prejudice does not occur until a defendant in fact pleads guilty because a defendant has not prejudiced himself before the State actually revokes its promise. (People v. Navarroli (1988), 121 Ill.2d 516, 523, 118 Ill.Dec. 414, 521 N.E.2d 891.) However, entering a plea of guilty is not the only...