People v. Wren

• Decision Date: 16 January 1992
• Docket Number: No. 5-90-0441,5-90-0441
• Citation: 585 N.E.2d 1216,223 Ill.App.3d 722,166 Ill.Dec. 194
• Parties: , 166 Ill.Dec. 194 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald R. WREN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1216

585 N.E.2d 1216

223 Ill.App.3d 722, 166 Ill.Dec. 194

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald R. WREN, Defendant-Appellant.

No. 5-90-0441.

Appellate Court of Illinois,

Fifth District.

Jan. 16, 1992.

Daniel M. Kirwan, Deputy Defender, Robert S. Burke, Asst. Defender, Office of State Appellate Defender, Mt. Vernon, for defendant-appellant.

William R. Haine, State's Atty., Madison County, Edwardsville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director (Philip B. Alfeld, of counsel, State's Attys. Appellate Prosecutor), Mt. Vernon, for plaintiff-appellee.

Justice HARRISON delivered the opinion of the court:

Defendant, Ronald R. Wren, was indicted in Madison County cause no. 90-CF-150 for two counts of armed robbery (Ill.Rev.Stat.1989, ch. 38, par. 18-2) and in cause no. 90-CF-203 for two counts of aggravated unlawful restraint (Ill.Rev.Stat.1989, ch. 38, par. 10-3.1). On April 9, 1990, defendant appeared with counsel, Madison County Assistant Public Defender William Mudge, and entered a negotiated plea of guilty to the two armed robbery counts. Pursuant to the terms of the plea negotiation, defendant was sentenced to two concurrent 15-year terms of imprisonment on the charges and cause no. 90-CF-203 was dismissed.

The record on appeal contains defendant's pro se motion to reduce sentence, dated April 25, 1990, defendant's pro se motion to withdraw guilty plea and vacate sentence, filed May 2, 1990, and his pro se petition for post-conviction relief and supporting affidavit, filed May 24, 1990. On May 3, 1990, Mudge, as counsel for defendant, filed a motion to withdraw plea of guilty and vacate judgment, asserting that "attorney for defendant is uncertain whether or not defendant wishes to pursue a motion to withdraw his guilty plea" and requesting that independent counsel be appointed "to represent defendant and ascertain defendant's position on this motion." On June 13, 1990, the circuit court entered an order appointing special defender Stephanie Robbins to represent defendant on "all pending matters" in a hearing set for July 11, 1990.

At the hearing, Madison County Assistant State's Attorney Robert Trone moved to dismiss defendant's post-conviction petition, asserting that defendant had not exhausted all other remedies. Robbins argued that defendant's petition was appropriate under section 122-1 of the Post-Conviction Hearing Act (Ill.Rev.Stat.1989, ch. 38, par. 122-1) and further stated:

"[Defendant] has instructed me to withdraw his two motions to vacate his plea. He doesn't want to withdraw his plea. That is, he doesn't want to withdraw his plea, but he seems to feel that some post-conviction relief is appropriate because there was something of a constitutional nature that caused him to enter his plea in the first place. Now I have told him that Mr. Trone might well waive this thing, in which case we would probably go back to square one."

The following colloquy then occurred:

"COURT: Wait a minute. He does not wish to withdraw his plea of guilty?

ROBBINS: That's what he told me.

* * * * * *

COURT: Hold it one minute. You do or do not want to withdraw your plea?

DEFENDANT: I do not wish to withdraw my plea. If I withdraw my plea, they can give me more time, and that is not the point I am trying to make. I am trying to get in comparison with four years, not receive more time.

* * * * * *

Your Honor, April the 5th Mr. Mudge came to the County Jail. He told me, if you and [co-defendant] Felita [Palmer] don't take this [negotiated plea bargain of] 15 years, they are ready to go to trial April the 9th. That's the date I received the 15 years, April 9th. He came back on Friday. [']What's your decision? ['] [I said, '] Alright, as long as Miss Palmer is getting 15, I will accept the 15. ['] Alright now, it has been brought to my attention by me [sic ] not speaking of on the 9th that I probably have waived some of these rights, but like I said, I didn't know she got four years until I was in the penitentiary.

* * * * * *

TRONE: Your Honor, * * * there was a big difference between the participation of these particular individuals in these events. There is not a disparity of sentencing taking into consideration this individual's prior criminal record; taking into consideration that he was a very active participant in the commission of this offense; that Felita Palmer was a person who never entered the particular premises. There was never a showing of any active participation on her part other than being outside the particular premises. So what I am saying is if this gentleman wants a new trial, I am ready and I will let him vacate his plea.

DEFENDANT: That is not what I am asking for. * * *."

After additional discussion and argument, the following occurred:

"COURT: In the * * * Post-Conviction Petition, paragraph 9 states the Petitioner was coerced into pleading guilty * * *. Wherefore, Petitioner prays * * * that this honorable Court vacate the judgment and grant other further relief as deemed appropriate and just according to law. I am not sure if you're asking to withdraw your plea or what you're asking for.

* * * * * *

ROBBINS: I think he's really asking for a cut on the sentence.

COURT: Are you asking to reduce your sentence?

DEFENDANT: Yes.

COURT: Because this other person did not receive the same sentence?

DEFENDANT: Yes, that's what I'm asking.

* * * * * *

ROBBINS: I think [defendant's] position is that when normally the Court is confronted by this situation, it has to determine whether or not to vacate the plea. That's all the Court is ever asked to determine normally in these situations. [Defendant] doesn't appear to be saying he wants this Court to vacate his plea. He is saying he wants the Court to consider these factors as they pertain to the sentence he received and, therefore, to reduce his sentence in light of these various factors that he's brought out, including disparity of sentence and including his own criminal record, having only a conviction when he was prior to seventeen.

DEFENDANT: Right.

ROBBINS: I think that's his position. Am I understanding you correctly?

DEFENDANT: Yes. * * *.

COURT: Why is Mr. Mudge's testimony needed in this?

* * * * * *

ROBBINS: Well, [defendant] tells me he doesn't think it's needed in light of what he's asking for here. * * * And what we are asking is that the Court exercise its discretion in this matter by considering these factors that he's brought out in his petition to reduce the sentence here, not to vacate the plea or not to permit him to withdraw his plea.

TRONE: The State would object to any reduction of sentence in view of the prior record and in view of the severity of the particular offense.

* * * * * *

COURT: Alright, the motion to reduce sentence or any of the matters prayed for in the papers filed by the Defendant is denied."

On appeal, defendant contends that it was error for the circuit court to dismiss his post-conviction petition without an evidentiary hearing where the petition stated sufficient allegations to establish a substantial showing of a constitutional violation. Defendant additionally contends that he did not receive effective assistance of post-conviction counsel where the record does not show compliance with Supreme Court Rule 651(c) (134 Ill.2d R.651(c)) and where counsel failed to raise the issue of whether defendant had been denied credit for the original day he spent in custody on this matter.

Before considering the merits of defendant's appeal, it is necessary to address the State's contention that defendant's post-conviction petition is not properly before this court. Under the Post-Conviction Hearing Act (the Act) (Ill.Rev.Stat.1989, ch. 38, par. 122-1 et seq.), the only requirements to institute a proceeding are imprisonment in the penitentiary and filing within 10 years "after rendition of final judgment." (Ill.Rev.Stat.1989, ch. 38, par. 122-1; see also People v. Thomas (1970), 45 Ill.2d 68, 72-73, 256 N.E.2d 794, 797.) In the case at bar, defendant entered a negotiated plea of guilty and was sentenced on April 9, 1990, and filed his petition for post-conviction relief on May 24, 1990. Thus, where the final judgment in a criminal case is the sentence (see People v. Allen (1978), 71 Ill.2d 378, 381, 16 Ill.Dec. 941, 942, 375 N.E.2d 1283, 1284), defendant filed his petition after the rendition of final judgment in his case.

The State argues that the pendency of defendant's motion to reduce sentence and motions to withdraw guilty plea and vacate judgment rendered the sentencing order nonfinal and thus deprived the trial court of jurisdiction to hear defendant's post-conviction petition. However, the Act provides a separate remedy, the availability of which is not contingent upon exhaustion of any other remedy. (People v. Howard (1981), 94 Ill.App.3d 797, 799, 50 Ill.Dec. 594, 596, 419 N.E.2d 702, 704, quoting People v. Rose (1969), 43 Ill.2d 273, 279, 253 N.E.2d 456, 460.) Therefore, regardless of the status of defendant's other motions, this court had the authority to entertain defendant's post-conviction petition. We may thus properly proceed to address defendant's contentions on appeal from the circuit court's dismissal of his petition.

Defendant's post-conviction petition alleged that he had been denied the effective assistance of trial counsel because said counsel: had a conflict of interest due to the representation of codefendant Felita Palmer by the public defender's office; had failed to investigate the criminal history of Palmer; had represented to defendant that he and Palmer would both receive 15-year sentences, when, in fact, Palmer received only a four-year sentence; had represented to defendant that the sanctions of the Habitual Criminal Act could be used against defendant when, in fact, defendant was not eligible for those enhanced sanctions; and had represented that defendant's only options were to accept...