United States ex rel. Stewart v. Pate

• Citation: 443 F.2d 326
• Decision Date: 13 May 1971
• Docket Number: No. 18634.,18634.
• Parties: UNITED STATES of America ex rel. William STEWART, Petitioner-Appellant, v. Frank J. PATE, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

443 F.2d 326 (1971)

UNITED STATES of America ex rel. William STEWART, Petitioner-Appellant, v. Frank J. PATE, Warden, Respondent-Appellee.

No. 18634.

United States Court of Appeals, Seventh Circuit.

May 13, 1971.

Charlotte Ziporyn, Samuel D. Freifeld, Chicago, Ill., for appellant.

William J. Scott, Atty. Gen., Joel M. Flaum, First Asst. Atty. Gen., Jayne A. Carr, Warren K. Smoot, Morton E. Friedman, Asst. Attys. Gen., Chicago, Ill., for appellee.

Before KILEY, PELL and STEVENS, Circuit Judges.

KILEY, Circuit Judge.

Petitioner Stewart appeals from a district court judgment denying him habeas corpus relief after an evidentiary hearing. We affirm.

In April, 1948, while serving sentences imposed in 1942 — one for life for armed robbery, and one for one year to life for burglary — Stewart was indicted for and pled guilty to murder of a fellow inmate in Menard Penitentiary. He was given a 99 year sentence. In 1968 he was paroled from the 1942 sentences, and the Illinois Pardon and Parole Board then informed him that he was to commence the 1948 sentence of 99 years. In March of 1969 the Governor of Illinois commuted the 1948 sentence to 25 years. Stewart's main contention is that the common law record must, and does not, show that he was advised at the 1948 hearing that his sentence was required by Illinois law¹ to be consecutive because the alleged murder was committed in Menard Penitentiary and that his plea in ignorance of the mandatory sentence was not knowingly and intelligently made; and that it does not follow from the fact that the statute's mandate that such sentences be consecutive is read into the sentence, United States ex rel. Wells v. Pate, 310 F.2d 460 (7th Cir. 1962), that he was so advised.²

The district court's written opinion denying the claim is based upon its examination of the common law record of the 1948 hearing and upon extensive oral and documentary evidence taken at the habeas hearing.³

The common law record discloses that "on this 5th day of April comes the defendant William Stewart in person and by his counsel Walter J. Schuwerk and the People of the State of Illinois by David M. Conn, State's Attorney, and the Defendant together with his attorney asked leave to withdraw his plea of not guilty heretofore entered * * *" and "* * * before accepting such plea the Court fully advises the Defendant of his legal and constitutional rights and of the consequences of such plea of guilty * * * and of the sentence that could be imposed on such plea of guilty, yet the Defendant being so fully advised persists in such plea of guilty." And "the Court hearing evidence of witnesses duly sworn and examined and the recommendations of the State's Attorney hereby sentences the Defendant to the Illinois State Penitentiary for a term of 99 years and there to remain until discharged according to law." The record further states that April 5, 1948, "Defendant, together with his attorney present in open court, entered a plea of guilty to the crime of murder and was sentenced by the court to 99 years in the Illinois State Penitentiary," and that Walter J. Schuwerk had been previously appointed to represent Stewart.

Attorney Walter Schuwerk testified at the hearing, subject of the proceeding before us, that he had only a vague memory of representing Stewart, but that he did at the time represent "indigents." However, there is in the record an affidavit supporting his request for fees for representing Stewart which states that he had spent five days in preparation of the hearing and had interviewed Stewart in the penitentiary; and there is the order of State Trial Judge Maxwell finding that the services were rendered and allowing the fee. After referring to the affidavit with respect to his fees, Schuwerk testified that he would not have signed it if it did not speak the truth. And both Conn and Judge Maxwell in their official statement of the case — part of the common law record — stated that "Walter J. Schuwerk, a very capable attorney in Randolph County," was appointed to defend Stewart.

Schuwerk also testified that he was familiar in 1948 with the mandatory consecutive provision in the Illinois Penitentiaries Act at the time of the hearing. He testified, without objection, that he had discussed that section with State's Attorney David M. Conn of Randolph County, Illinois, in 1948.

Conn testified from memory, refreshed by his file in the Stewart case,⁴ that during his terms as state's attorney he prosecuted numerous persons for crimes committed in the penitentiary and was familiar with the pertinent section of the Penitentiaries Act, that his file of the case showed that Walter Schuwerk had told him that Stewart would plead guilty, that in 1942 — because of "countless" habeas corpus petitions being filed following an Illinois Supreme Court decision — he prepared guidelines for procedures with respect to admonishing prisoners upon their pleas, and that the guidelines were furnished to the courts in Randolph County and Judge Maxwell used the guidelines in every case. He also testified that his file reflects that on March 29 he advised attorney Schuwerk that he would recommend a consecutive 99 year sentence, and that Judge Maxwell advised Stewart of the consecutive nature of the...