People v. Smithey

• Decision Date: 12 December 1983
• Docket Number: No. 82-216,82-216
• Citation: 458 N.E.2d 87,75 Ill.Dec. 919,120 Ill.App.3d 26
• Parties: , 75 Ill.Dec. 919 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ollie SMITHEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 87

458 N.E.2d 87

120 Ill.App.3d 26, 75 Ill.Dec. 919

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Ollie SMITHEY, Defendant-Appellant.

No. 82-216.

Appellate Court of Illinois Second District.

Dec. 12, 1983.

G. Joseph Weller, DeputyState Appellate Defender, Kyle Wesendorf, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Daniel D. Doyle, State's Atty., Rockford, Phyllis J. Perko, Cherri A. Novak, State's Attys.Appellate Service Commission, Elgin, for plaintiff-appellee.

UNVERZAGT, Justice:

The defendant, Ollie Smithey, entered a negotiated plea of guilty to the charge of armed robbery and was sentenced to the agreed term of imprisonment of 18 years.On appeal, the defendant contends that the trial court abused its discretion when it denied his petition to withdraw his guilty plea.

The State charged the defendant by information with the offenses of armed robbery and home invasion stemming from an incident in Winnebago County.After entering a plea of not guilty to both charges, the defendant entered into plea negotiations.

On the date scheduled for trial, the State's Attorney and defense counsel informed the court of the terms of the plea agreement.According to the State's Attorney, the defendant agreed to plead guilty to the count of armed robbery and receive a sentence of imprisonment of 18 years, with credit for time already served.In return, the State agreed to dismiss the home invasion count and unrelated charges in Winnebago County, which consisted of home invasion and armed robbery and a fugitive-from-justice complaint based on an armed robbery in the State of Louisiana.The 18-year sentence in this case was to be made concurrent with any sentence he later received in Ogle County, in Wisconsin, or in Federal court.The defendant was promised that he would be transferred to Ogle County where he would receive an 18-year sentence on another armed robbery charge, which sentence would run concurrently with the one he received in the present case.

The State's Attorney also remarked that because the sentence in this case would be the first one entered, it was the other jurisdictions that would have to be willing to make their sentences concurrent with the present one.He remarked further that he was aware that the court could not make the instant sentence concurrent with something that had not happened yet.The court below stressed that it had no control over other courts.

The court below cautioned the defendant that, since it was the first court in a multi-jurisdiction plea negotiation to consider the agreement, "if * * * [the defendant is] tried in some other court, that then there's no agreement that can be made at this time in this court that will forbid another court from giving him a consecutive sentence."The defendant responded that he understood.

Defense counsel stated that the defendant was aware of the possibilities of sentencing in other jurisdictions and that those had been worked out.Counsel remarked further that the defendant"understood that you can't bind any other jurisdiction, but those, to my knowledge have been worked out, also."He also articulated that there had been negotiations in this case with Wisconsin, Ogle County, and the Federal government.

The court again explained to the defendant that the present plea agreement in Winnebago County did not mean that the defendant would not have to address the question of the imposition of concurrent or consecutive sentences in other courts.The defendant acknowledged that he understood the court's warning.

The court then recited the terms of the plea agreement as it understood them.The court stated that, according to the negotiated plea, the defendant agreed to plead guilty to the armed robbery count of the present information and would be sentenced to an 18-year term of imprisonment for that offense, while the State agreed to dismiss all other charges now pending against the defendant in Winnebago County.The defendant concurred with the court's recitation and interpretation of the plea agreement.Later, the court stressed that any sentence imposed in the present case applied only to the armed robbery to which the defendant pleaded guilty and not to any other crimes the defendant may have committed.The defendant expressed his agreement with the court's statement.

After hearing the factual basis and conducting other matters not germane to the issue raised on appeal, the court stated that it would concur in the plea agreement and accept it.At that point the following colloquy ensued:

"THE COURT: Has your lawyer or anyone else promised you anything except the promises contained in this plea agreement?

THE DEFENDANT: No Sir.Just that they would run concurrent with the federal--the charges going to be brought on me and I'd be serving my time in the federal penitentiary.

THE COURT: All right.Now that agreement is something that you and they must have going with the rest of them.

THE DEFENDANT: Yes Sir."

The court then emphasized that its actions could not bind other jurisdictions; that after the plea agreement was carried out and after the defendant was sentenced to 18 years in the penitentiary, he would have to take his chances with the rest of the jurisdictions; and that if the defendant had any other agreement beyond the terms of the current plea agreement regarding action to be taken after he was sentenced in this case, the court had no control over that agreement or another court.The defendant stated that he understood the court's remarks.In addition, the court stated that while it had no control over another court's decision whether to impose a sentence concurrent with the one in this case, the court expressed its agreement with such a procedure and commented that it was the defendant's "expectation in those other courts that the sentence would be concurrent."

The defendant entered a plea of guilty to the armed robbery charge; the court accepted the guilty plea, entered a judgment of conviction, and sentenced the defendant to 18 years in the Illinois Department of Corrections.The court also advised the defendant of his rights to file a motion to vacate his guilty plea and to appeal if such a motion were denied.

Subsequently, on April 13, 1981, the defendant filed a pro se petition to withdraw his guilty plea pursuant to Supreme Court Rule 604(d)(87 Ill.2d R. 604(d)).The petition alleged, among other things, that the defendant's attorney in Ogle County, Donald Manzullo, had coordinated multi-jurisdiction plea negotiations involving charges in Ogle and Winnebago Counties in Illinois plus pending charges in Alabama, Wisconsin, and Louisiana.He stated further that when he pleaded guilty in the present case, he was under the impression that all the jurisdictions mentioned above had agreed to go along with the plea bargain emanating from Ogle County.After he pleaded guilty, he learned that the State of Louisiana had refused to concur with the plea bargain offered by the Ogle County State's Attorney, Dennis Schumacher.He would not have agreed to plead guilty in the case at bar had he known that other jurisdictions would continue to prosecute him.In addition, the petition alleged (1) that an FBI agent had informed the defendant that, in the event Federal charges were brought against him, he"would see what could be done" about the defendant serving time in a Federal penitentiary concurrent with the State time being served, and (2) that the defendant was under the impression that the agent had the authority to bind the Federal government, "as opposed to merely making a suggestion that any federal time would be served concurrent with state time and any time to be spent would be spent in a federal penitentiary."He would not have pleaded guilty to the charge in question if he had realized that the agent did not have the power to bind the Federal government.

Attached to the defendant's petition was a copy of a letter Mr. Schumacher sent to Attorney Manzullo in which the terms of a plea agreement were set forth.The letter, which was dated March 3, 1981, stated in part that the defendant would be sentenced to 18 years in the penitentiary, with the Winnebago County sentence to be served concurrently with the Ogle County sentence.The last paragraph of the letter related that "[a]ll other jurisdictions will dismiss their cases against the defendant."Those jurisdictions (which were unnamed) were to forward letters acknowledging that they would not conduct criminal proceedings against the defendant concerning their cases.

On October 13, 1981, the trial court held a hearing relative to the defendant's motion to withdraw his guilty plea.The defendant was not present at the hearing, and neither defense counsel nor the State presented any witnesses.The defendant's attorney produced a letter from his client which was dated July 27, 1981; the attorney summarized the defendant's letter as stating that Smithey pleaded guilty in the present case with the belief that the other jurisdictions would go along with the 18-year sentence imposed in Winnebago County and run their subsequent sentences concurrent with the instant one.

After arguments of the parties, and after reviewing the entire transcript of the earlier plea agreement proceedings in this case, the court below denied the defendant's motion to withdraw his guilty plea.Defendant appealed.

In this court, the defendant contends that the trial court abused its discretion when it denied the petition to withdraw his guilty plea that the defendant filed under Supreme Court Rule 604(d)(87 Ill.2d R. 604(d)).He advances a two-fold argument in support of his assertion that he should have been allowed to withdraw his plea of guilty to the charge of armed robbery.He asserts first that the plea was induced by the State's promise, which has not been fulfilled, that all other jurisdictions currently contemplating prosecuting the...