People v. Salerno, 76-161

• Citation: 12 Ill.Dec. 514,370 N.E.2d 137,54 Ill.App.3d 806
• Decision Date: 21 November 1977
• Docket Number: No. 76-161,76-161
• Parties: , 12 Ill.Dec. 514 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sam SALERNO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 137

370 N.E.2d 137 54 Ill.App.3d 806, 12 Ill.Dec. 514 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Sam SALERNO, Defendant-Appellant. No. 76-161. Appellate Court of Illinois, Second District. Nov. 21, 1977.

Page 138

[12 Ill.Dec. 515] Peter A. Staben, Waukegan, for defendant-appellant.

Jack Hoogasian, State's Atty., Waukegan, Phyllis J. Perko, Martin P. Moltz, Ill. State's Attys. Assn., Elgin, for plaintiff-appellee.

BOYLE, Justice:

[54 Ill.App.3d 807] The defendant-appellant, Sam Salerno, hereinafter referred to as the defendant, appeals from an order of the Lake County Circuit Court denying his petition for post-conviction relief. The defendant had entered a plea of guilty to a charge of murder. On appeal the defendant makes two contentions. First, he asserts that the trial court did not properly admonish him as to the possibility of the death penalty being imposed, thereby precluding him from knowingly and understandingly entering his plea of guilty. Secondly, the defendant asserts that the cumulative effect of this court-appointed attorney's interpretation of the relevant sentencing statute so frightened the defendant as to make his guilty plea coerced rather than voluntary. Upon reviewing the record and weighing the arguments presented, we are of the opinion that the decision of the circuit court of Lake County must be affirmed.

The defendant was charged with having shot and killed William Caverner during the course of an armed robbery. Under section 5-8-1A of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005-8-1A) (this statute was subsequently held to be unconstitutional in People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, 336 N.E.2d 1) the defendant was subject to the death penalty if convicted of the crime. However, pursuant to plea negotiations, the defendant entered a plea of guilty to the murder charge and agreed to testify against his accomplice if the need arose. In exchange, the defendant received a sentence of 25-100 years in prison.

Before the trial court accepted the defendant's guilty plea, it admonished him pursuant to Supreme Court Rule 402 (Ill.Rev.Stat.1973, ch. 110A, par. 402). As part of that admonishment, the trial court made the following statement:

"THE COURT: I am obligated to tell you that the penalty which is fixed by statute for the offense of murder is not less than 14 years in the Illinois State Penitentiary and no maximum has been set. It could be any maximum which the court could see fit to impose. And under the circumstances, the mandatory death penalty would be imposed upon conviction of this offense. Do you understand that?

THE DEFENDANT: Yes, sir."

Later in the course of the trial court's admonishments of the defendant, the following exchange took place between the defendant and his attorney:

"MR. ORI: First, I would like the record to reflect that I am Mr. Salerno's appointed counsel since approximately November 21st to the present time. Is that correct, Sam?

THE DEFENDANT: Yes.

[54 Ill.App.3d 808] MR. ORI: Judge McQueen appointed me to represent you, and Judge Duran appointed me to represent you here?

THE DEFENDANT: Yes, sir.

MR. ORI: You heard the judge indicate there is a possible death penalty in this case. Is that correct?

THE DEFENDANT: Yes.

MR. ORI: I have talked to you about that, have I not?

THE DEFENDANT: Yes, sir.

MR. ORI: I indicated to you that I don't know whether that is constitutional or not constitutional. Is that correct?

THE DEFENDANT: Yes, sir.

MR. ORI: I further indicated to you, even if you went to trial on that, the jury, would have to recommend the death...