People v. Taylor

• Decision Date: 10 December 1982
• Docket Number: No. 80-3261,80-3261
• Citation: People v. Taylor, 443 N.E.2d 699, 110 Ill.App.3d 1140, 66 Ill.Dec. 773 (Ill. App. 1982)
• Parties: , 66 Ill.Dec. 773 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Reginald TAYLOR, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 699

443 N.E.2d 699

110 Ill.App.3d 1140, 66 Ill.Dec. 773

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Reginald TAYLOR, Defendant-Appellant.

No. 80-3261.

Appellate Court of Illinois First District, Fifth Division.

Dec. 10, 1982.

Steven Clark, Deputy State Appellate Defender, Scott Graham, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of County of Cook, Chicago, for plaintiff-appellee; Michael E. Shabat, Joel A. Stein, Daniel E. Jordan Asst. State's Attys., Chicago, of counsel.

LORENZ, Justice:

Following his entry of a guilty plea, defendant was found guilty of two counts of armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2) and was sentenced to a term of eight years in the Illinois Department of Corrections.

He appeals contending that (1) he was denied effective assistance of counsel where the public defender representing him failed to advise him that a plea of guilty waived the right to appeal the trial court's denial of a motion to suppress; (2) he was denied his right to representation by counsel free from conflicting interests where the same attorney represented him on his motion to vacate his guilty plea; (3) he did not enter a knowing and voluntary plea of guilty; and (4) the trial court erred in denying his motion to vacate his plea of guilty where counsel failed to file a certificate pursuant to Supreme Court Rule 604(d). Ill.Rev.Stat.1977, ch. 110A, par. 604.

Material to our disposition are the following facts.

Defendant was charged by information with two counts of armed robbery. Ill.Rev.Stat.1977, ch. 38, par. 18-2.

An assistant public defender was appointed to represent defendant. Defendant filed a motion to suppress the identification testimony, alleging that the pre-trial identification procedures employed by the police were unduly suggestive.

On August 14, 1980, a hearing was held on defendant's motion to suppress. The following pertinent evidence was adduced at the hearing on the motion.

Rev. and Mrs. Lawrence Harris were the victims of an armed robbery on February 12, 1980. Officer Patrick Foley testified that both he and his partner, Officer James Capesius, went to their home on February 16 for the purpose of interviewing them and showing them photos in regard to the robbery.

After showing the Harrises approximately 50 photos without any identification resulting, the police officers contacted Robert Johnson, a witness to the robbery. Johnson had seen defendant in the area over a period of years and from time to time would "say hello to him." The police officers showed Johnson a stack of 30 or 40 photos which differed from those originally viewed by the Harrises, and he made a positive identification of defendant. Returning to the Harris home later that afternoon, the officers showed them nine photos which included the defendant's.

Officer Foley further testified that the Harrises were separated when viewing the photos, but were in the same room and could hear the conversation of each other. He stated that when Mrs. Harris came to defendant's picture she said, "That's the man."

Octavia Harris testified that she was the victim of an armed robbery on February 12, 1980 at Ridgeway and Chicago Avenues in Chicago, Illinois. She stated that the police officers did not tell her that they thought the suspect might be in the second group of photos; however, they did inform her that Johnson had picked out one of the men in the photos they were showing her.

She further testified that she later viewed a lineup of five suspects while alone in a room at the police station with one of the police officers with her. She identified defendant after two or three minutes without the investigators directing her to identify him. Prior to the lineup, she had neither seen nor confronted the defendant in the police station.

Lawrence Harris testified that on February 16, 1980, the police officers arrived at his home with nine or ten photos which did not contain defendant's photograph. They returned 2 1/2 hours later with a "nice stack" of photos from which he made an identification of defendant. He identified a photograph of defendant from this group and did not know at the time which photograph had been previously identified by his wife. He further stated that the police did not tell them that a suspect might be in the group of photos.

The police gave the Harrises a ride to the police station and told him they thought the suspect would be in the lineup. He was not with his wife when he made an identification of defendant after three or four minutes; the policeman with him did not say anything to him during that time.

Robert Johnson testified that he identified defendant's photo in a stack of photos supplied by the police on February 16, 1980. He told the police that he recognized the defendant from seeing him over a period of years on the street and in the same area.

Following the hearing, the court denied defendant's motion to suppress identification and motion for discharge.

Defendant requested a conference on his change of plea and a hearing was held on November 13, 1980.

The trial court advised defendant of the possible consequences of the conference and defendant stated that he understood them. Following the conference, defendant informed his counsel and the court that he wanted to change his plea to guilty. The record reveals that the court admonished him pursuant to Supreme Court Rule 402(a) and defendant indicated that he understood each admonishment.

Defendant then stipulated that on February 12, 1980, while armed with a handgun, he committed the offense of armed robbery against Mr. and Mrs. Lawrence Harris at 711 North Ridgeway Avenue in Chicago, Illinois.

The trial court entered a finding of guilty on each count, and defendant was sentenced to two concurrent terms of eight years imprisonment pursuant to the plea negotiation conference. Defendant was thereupon notified of his right to appeal and the requirement for a motion to vacate the guilty plea prior to an appeal.

Subsequently, the assistant public defender prepared, filed and argued defendant's motion to withdraw the guilty plea. An examination of the record indicates that this motion does not contain any allegation of ineffective representation of counsel. The trial court denied defendant's motion to vacate his guilty plea and he appeals.

OPINION

We initially consider defendant's argument that he was denied his sixth and fourteenth amendment rights to effective assistance of counsel where his appointed counsel failed to inform him that by pleading guilty, he waived his right to appeal the trial court's denial of his motion to suppress identification. We do not agree.

At the outset, we note that failure to raise an issue in the motion to vacate a guilty plea waives its consideration on appeal (Ill.Rev.Stat.1977, ch. 110A, par. 604(d); People v. Jones (1979), 74 Ill.App.3d 243, 30 Ill.Dec. 208, 392 N.E.2d 973) and we find that defendant's failure to raise any allegation of ineffective assistance of counsel at the hearing on his motion to vacate the guilty plea operates as a waiver of the issue on appeal.

Nonetheless, in view of the several federal constitutional rights which are involved in the waiver that takes place when a plea of guilty is entered in a state criminal trial (Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) we will address the merits of defendant's case on appeal.

The majority rule, adopted in the federal courts and in almost every state including Illinois, ¹ is that a valid plea of guilty waives review of all errors not jurisdictional in nature. (People v. Dunn (1972), 52 Ill.2d 400, 288 N.E.2d 463; People v. Sullivan (1979), 72 Ill.App.3d 533, 29 Ill.Dec. 82, 391 N.E.2d 241.) It has often been stated that since a conviction after a guilty plea is not based on any evidence, but on the plea itself, no review of an essentially evidentiary ruling can affect the outcome of an appeal. Appellate Review of Pre-Trial Motions Following Conviction on a Plea of Guilty 69 Ill.Bar.J. 480 (1981).

Here, however, defendant has not attacked the evidentiary ruling but the validity of his plea of guilty itself, on the basis of inadequate representation by defense counsel. We acknowledge defendant's right to effective assistance of counsel in his trial pursuant to the guidelines set forth in Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, and we agree that a denial of that right would require that his conviction in this case be set aside. People v. Morris (1954), 3 Ill.2d 437, 445, 121 N.E.2d 810.

In People v. Husar (1974), 22 Ill.App.3d 758, 764, 318 N.E.2d 24, however, the appellate court held that a determination that a defendant was denied effective assistance of counsel can be made only if his court-appointed counsel was incompetent, and as a result, that defendant was substantially prejudiced, citing People v. Harper (1969), 43 Ill.2d 368, 253 N.E.2d 451.

Thus, in Illinois, the test for determining competence of both appointed and retained counsel was enunciated by the court in People v. Brimmer (1978), 60 Ill.App.3d 214, 17 Ill.Dec. 338, 376 N.E.2d 337, wherein the court stated: "To establish a denial of one's constitutional right to a fair trial because of incompetency of counsel, a defendant must clearly establish not only actual incompetence, but also that substantial prejudice resulted therefrom. (People v. Logue (1970), 45 Ill.2d 170, 258 N.E.2d 323.) Further, the resulting prejudice must have been sufficient to affect the outcome of the trial.* * * Moreover, the fact that defense counsel did not take action that he arguably might have, does not establish incompetency of counsel in the absence of a showing that such action would have produced evidence affecting the guilt or innocence of the accused. People v....