People v. Robinson

• Decision Date: 23 June 1987
• Docket Number: No. 85-0080,85-0080
• Citation: 510 N.E.2d 1050,157 Ill.App.3d 622,110 Ill.Dec. 19
• Parties: , 110 Ill.Dec. 19 PEOPLE of the State of Illinois, Respondent-Appellee, v. Kasper ROBINSON, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 1050

510 N.E.2d 1050

157 Ill.App.3d 622, 110 Ill.Dec. 19

PEOPLE of the State of Illinois, Respondent-Appellee, v. Kasper ROBINSON, Petitioner-Appellant.

No. 85-0080.

Appellate Court of Illinois First District, Second Division.

June 23, 1987.

Paul P. Biebel, Jr., Public Defender of Cook County (Jeffrey M. Howard, Asst. Public Defender, of counsel), for petitioner-appellant.

Kasper Robinson, pro se.

Richard M. Daley, State's Atty., Cook County (Thomas V. Gainer, Jr., Sharon L. Gaull, Steven J. Zick and Mari R. Hatzenbuehler, Asst. State's Attys., of counsel), for respondent-appellee.

Justice HARTMAN delivered the opinion of the court:

Petitioner appeals from the dismissal of his post-conviction petition contending that: (1) he was denied effective assistance of counsel at the time that he entered his plea of guilty and again after the imposition of the resultant sentences; (2) his criminal conduct amounted to unlawful restraint rather than home invasion; and (3) defects in the information charging him with home invasion rendered it fatally defective.

On June 1, 1983, at approximately 8 a.m., Karen Heritage heard the front door of her home being opened and went to investigate. She found petitioner standing in the living room. He grabbed her around the neck and began dragging her back toward the kitchen. The victim's ten-year old son came out of his bedroom at this time, saw petitioner, and ran back to wake his father, Charles Heritage.

Charles came out of the bedroom and confronted petitioner. Petitioner demanded money and threatened to kill Karen whom he was still holding by the neck. Charles went back to the bedroom and returned shortly with $126 in currency. He placed the money on the stereo where petitioner could reach it; as petitioner reached for the money, Karen informed her husband that petitioner was unarmed. Charles then lunged at petitioner, forced him to the floor and subdued him. Karen called the police who arrived shortly and arrested petitioner. The $126 in currency was recovered at that time.

Petitioner was charged with unlawful restraint, home invasion, robbery and residential burglary. (Ill.Rev.Stat.1983, ch. 38, pars. 10-3, 12-11, 18-1, 19-3.) Petitioner previously had been indicted on seven separate charges of rape, attempted robbery, and burglary in 1973 and 1974, for which he was sentenced to concurrent terms ranging from 3 to 30 years after pleading guilty. When he attacked the Heritages, he had been out of prison for two months.

On January 3, 1984, petitioner stated his intention to plead guilty to all four charges. The circuit court informed him of the meaning of each of the charges, his possible eligibility for extended term sentences, and the consequences of his pleas. He indicated that he understood. The court further admonished him as to the rights which he would be waiving by entering his guilty pleas and petitioner again indicated that he understood. The court then stated:

"[THE COURT]: Now, Mr. Robinson, do you understand what I have told you about your rights in this matter and the rights you give up when you plead guilty?

"MR. ROBINSON: Yes, I do, sir.

"THE COURT: Do you understand all the possible sentences I could impose?

"MR. ROBINSON: Yes, I do, sir.

"THE COURT: Understanding all that, do you still plead guilty?

"MR. ROBINSON: Yes, I do, sir.

"THE COURT: Do you understand [that] there has been no agreement as to what sentence is to be imposed? Is that the way you understand it?

"MR. ROBINSON. Yes, Sir.

"THE COURT: And it's going to be up to me. That there have been no agreements as to what you're going to get?

"MR. ROBINSON: Yes, sir.

"THE COURT: Let me ask you this. Did anybody threaten you or force you into pleading guilty?

"MR. ROBINSON: No, they didn't, sir.

"THE COURT: I am sure you were advised [that] the Court would impose a fair sentence, but apart from that, were any other promises or representations made to convince you to plead guilty?

"MR. ROBINSON: No, there wasn't [sic], sir." (Emphasis supplied.)

The court then entered petitioner's plea of guilty and continued the case until February 6, 1984, for sentencing.

Prior to sentencing, both petitioner and his parents wrote letters to the judge hearing the case. Neither of the letters is included in the appellate record although petitioner's letter apparently contained expressions of his remorse while his parents' letter apparently indicated their concern that petitioner had merely pleaded guilty out of fear of receiving a more severe sentence after trial.

On February 6, 1984, at the sentencing hearing, petitioner's attorney first addressed the concerns of petitioner's parents over whether he had been pressured into pleading guilty. He stated that they had assured him that their concerns for petitioner stemmed from their own impressions and not from anything that petitioner had said.

Thereafter, petitioner's attorney began arguing for imposition of a light sentence, stating, in part:

"This is genuinely a case where a Defendant is throwing himself on the mercy of the Court. I know, Kasper knows, his family knows that the punishment he is going to receive, perhaps, is going to be severe. He understands that.

* * *

* * *

"He understands this Court has an obligation to society and * * * the community * * * and the complaining witnesses.

"He understands that, I understand that, his family understands that, but I think that there is still potential for good in this young man and I am hopeful this Court * * *, although we expect that the sentence is going to be somewhat lengthy, * * * [will] at least give him an opportunity to see a light at the end of the tunnel.

"He obviously knows that if there is any problem, he is never coming out again, he understands that."

The State then argued for extended term and consecutive sentences totalling 90 years, premised upon petitioner's criminal record and the short time that he had been out of prison prior to committing these offenses.

Petitioner then made a statement stressing his remorse and his rehabilitative potential:

"I personally am very remorseful, I am sorry for standing in front of your Court room today. I am sorry for my family who have to witness this, I am sorry for the [victims] * * *, I know that * * * I am entering this plea of guilty on my own will and I know that you, * * * have a job to do and * * * that you [will] do it righteously.

"All I would like you to do is show me some type of compassion, some type of understanding and some type of mercy.

* * *

* * *

"[A]ll I can say, your Honor, is that I know that you have a job to do and I would hope that you would do your job and make the best judgment that you deem possible for me * * *." (Emphasis supplied.)

The court then analyzed all of the cogent considerations and imposed a 28 year sentence for home invasion, a concurrent 7 year sentence for robbery, and ruled that the convictions for residential burglary and unlawful restraint had merged.

Neither petitioner nor his attorney ever filed a motion to withdraw his plea and vacate the judgment. On April 26, 1984, however, petitioner filed a pro se petition for post-conviction relief alleging that his constitutional rights had been substantially denied when:

"[His] Attorney of Record * * * informed * * * [petitioner] and his family * * * that * * * [he] would not be facing a term of 28 years. He stated that if [petitioner] would enter a Blind-Plea that the presiding Judge would be fair and just. And that [he] would be sentence[d] in the middle "teens" or upper. * * * When it came time for trial [the attorney] used 'Fear' tactics & persuasive conversation to deter [petitioner's] decision to go to 'Trial.' [Petitioner] was not armed nor was * * * anyone hurt [during the crime]. [Petitioner] wrote [to the] Judge explaining his actions in the case, making him aware that he was entering the Plea upon fear that he would receive a harsh penalty if he [went] to Trial. [Petitioner's] family also wrote [the] same. Upon receiving 28 years for a crime that was not violent * * * [petitioner] informed his lawyer that he wanted to withdraw his 'Plea.' [The attorney] never pursued this matter and [petitioner] was turned over to the Department of Corrections. [The attorney] * * * stated that he would get the charge of Home-Invasion dropped because the law states the [petitioner has] to be armed with a weapon. [The] Attorney asked the Judge * * * to drop [the] charge, but did not argue the Law with him. It[']s all in the Record."

On June 7, 1984, finding petitioner indigent, the circuit court directed that he be furnished with a copy of his trial transcript and appointed the public defender as counsel. On June 28, 1984, the State moved to dismiss the petition predicated primarily upon the fact that the plea and sentencing transcripts clearly refuted petitioner's assertions. The State attached an affidavit by petitioner's trial counsel stating that he fully informed petitioner and his family of the merits and consequences of both a trial and a guilty plea and that the plea resulted from "the combined decision of [petitioner] and his family to forego a trial." The affidavit did not address the attorney's alleged failure to move to withdraw petitioner's plea and vacate the judgment.

After hearing argument on December 13, 1984, the circuit court ruled that an evidentiary hearing was unnecessary and granted the State's motion to dismiss.

I.

Petitioner initially contends that he was denied effective assistance of counsel when his attorney used "fear tactics and persuasive conversation" to induce him to plead guilty and when that same attorney failed to move to withdraw the guilty plea after petitioner "informed his lawyer that he wanted to withdraw his plea."

To prevail on an assertion of ineffective assistance of trial counsel, petitioner must first demonstrate that counsel's performance was deficient in that it fell below an...