People v. Spicer
| Decision Date | 18 November 1970 |
| Docket Number | No. 43331,43331 |
| Citation | 47 Ill.2d 114,264 N.E.2d 181 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Ron SPICER, Appellant. |
| Court | Illinois Supreme Court |
Marvin L. Schrager, East Moline, appointed by the court, for appellant.
William J. Scott, Atty, Gen., Springfield, and James N. DeWulf, State's Atty., Rock Island (Thomas J. Immel, Asst. Atty. Gen., and Robert C. Shearer, Asst. State's Atty., of counsel), for the People.
Defendant, Ron Spicer, pleaded guilty to the crime of burglary in the circuit court of Rock Island County and was sentenced to a term of not less than two years nor more than ten years in the penitentiary. He now appeals, alleging that the trial court erred in refusing to allow him to withdraw his guilty plea and in imposing an excessive sentence. In addition, though the record is confusing, there appears to be a companion appeal in a post-conviction proceeding wherein defendant contends he was denied due process of law on the grounds that the trial court refused to allow him an evidentiary hearing on the question of whether his plea was induced by an unfulfilled promise of probation.
At his arraignment in December, 1967, defendant pleaded not guilty. In February, 1968, while represented by retained counsel, he changed his plea, waived a jury trial, pleaded guilty, and filed a petition for probation. On May 9, 1968, the probation officer's report was filed recommending a denial of probation. On August 16, 1968, after several continuances, additional counsel was retained by defendant and a motion was filed requesting that defendant be allowed to withdraw his guilty plea on the grounds that it was entered improvidently without full realization of its consequences, and alleging that there was a meritorious defense to the charge. This motion was denied. On August 27, 1968, after a full hearing, defendant's petition for probation was denied, and, following testimony given in mitigation and aggravation, sentence was imposed as above mentioned.
Thereafter, defendant filed a Pro se notice of appeal and in compliance with his request counsel was appointed to represent him, and an appeal was taken to the Appellate Court for the Third Judicial Circuit. On August 19, 1969, a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1967, ch. 38, par. 122--1 et seq.) was filed and on September 30 it was dismissed by the trial court without a hearing. The record contains no notice of an appeal in this proceeding but the record and transcript were sent to the appellate court as part of the existing appeal of defendant's conviction. In view of the constitutional question posed in the post-conviction proceeding the entire matter was transferred to this court, and since both the State and defendant have proceeded on the theory that all issues are involved in the one appeal we shall do likewise and consider them together.
It must be remembered that defendant's motion to withdraw his plea of guilty was filed approximately one year prior to his petition for a hearing under the Post-Conviction Hearing Act. This motion makes no mention of an unfulfilled promise relative to sentence, but rather merely alleges that defendant had changed his plea without a full realization of the consequences and further makes the bare and unsupported assertion that he had a meritorious defense. The general rule is that it is within the sound discretion of the trial court whether a plea of guilty may be withdrawn; and that this discretion will not be disturbed unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is doubt of guilt of the accused and the ends of justice would better be served by submitting the case to a trial. (People v. Worley, 35 Ill.2d 574, 221 N.E.2d 267.) A careful review of the record here reveals that defendant was thoroughly admonished concerning the nature of the charge, his constitutional rights to trial by jury and the consequences of his plea of guilty. There is nothing whatsoever in the record indicating any defense to the charge of burglary. In fact, defendant does not strongly argue this phase of his appeal other than to state that it is significant that the motion for withdrawal of his plea was heard by a judge other than the judge who accepted his original plea of guilty. However, he does not state what the significance is, or how he was prejudiced, and, in our opinion, there is no significance and there was no prejudice. We find that the trial court did not abuse its discretion in denying defendant's motion to withdraw his plea of guilty.
Defendant's argument that he was entitled to an evidentiary hearing on his petition under the Post-Conviction Hearing Act presents a more complex question. The petition was filed and signed by appointed counsel and was accompanied by an unverified statement of defendant and a verified handwritten statement of defendant's mother. The statement of defendant is dated July 27, 1969, exactly eleven months after probation was denied and sentence imposed on him. It is in the form of a letter to his attorney handling his appeal and recites that a deal was made with the State's Attorney by his original counsel whereby it was agreed that if he pleaded guilty he would get six months in Vandalia and serve four years on probation. His mother's handwritten statement, dated August 18, 1969,...
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