Petition — Thomas v. Illinois

St ee se

- Bupreme Court, Wed |

FILED

JAN

79-1126 18 1990 |]

No. ; MICHAEL RODAK, JR., CLERN |

In the 3

Supreme Court of the United States

Ocroser Term, 1979

ROBERT THOMAS,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ILLINOIS

ArTHUR BERMAN

120 West Madison Street

Suite 600

Chicago, Illinois 60602

312-782-3020

Attorney for Petitioner

Of Counsel

Aan Steven Nace.

CuHartes K. Pret

One North LaSalle Street

Suite #2100

Chicago, Illinois 60602

312-726-7402

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

GI ea eee ARC TCC Ra SMI Ha 1

BREE 1A oper GTN ore Oe CN 2

EE RL ITN ITT S A AE 2

Constitutional Provisions Involved ou... cesses 2

I Fn i sesnrnddetiniavbeyooonith 3

Reasons For Granting Writ ..............scssccsssssssesesessseees 9

ais ats tiicinichecnnlaibesocebibanibccedaiandess ine venoms 13

Appendix A

Opinion Of The Supreme Court Of Illinois Judg:

ment Of October 19, 1979 Affirmed The Trial

5, SAME Rar: SER Soca SRE RECS me ON REAR RIER la

Opinion Of The Appellate Court Of Dllinois, Fifth

Judicial District Order Of August 14, 1978 Re-

Wermed The Tritl Court occ... cciscscssccsosesivessseveosovsssese 15a

Order Of The Circuit Court Of The Twentieth

Judicial Circuit, St. Clair County, Illinois, En-

tered August 5, 1976, Sentencing Defendant .... 24a

Order Entered October 1, 1976, Denying Defen-

dant’s Motion To Vacate And Set Aside Plea .. 25a

Appendix B

Wade OL CABO oeseecrsccesecrssseresccnsesesoonenosecorpemarseneevey nhs 26a

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser Trrm, 1979

No.

= — - : ——! — <==

ROBERT THOMAS,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

Ss

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ILLINOIS

To THe Honorastze, THe Cuier Justice Anp ASSOCIATE

Justices Or Tue Supreme Court Or Tue Unitep Srares.

Robert Thomas, the Petitioner herein, prays that a writ

of certiorari issue to review the judgment of the Supreme

Court of Illinois entered on October 19, 1979.

OPINIONS BELOW

The opinion of the Supreme Court of Illinois, wherein

this cause was consolidated with two other matters un-

der the caption People v. Odie Cross, is unreported and

is printed in Appendix A hereto, infra, page la. The

opinion of the Appellate Court of Illinois, Fifth Judicial

District, is unreported and is also printed in Appendix

ee, SE

A hereto, infra, page 15a: The relevant Orders entered

by the Circuit Court of the Twentieth Judicial Circuit,

St. Clair County, Illinois, are unreported and are printed

in Appendix A hereto, infra, page 24a.

JURISDICTION

‘The judgment of the Supreme Court of Illinois (Ap-

pendix A, infra, page la) was entered on October 19,

1979. The jurisdiction of the Supreme Court is invoked

under Title 28, United States Code, Section 1257 (3).

QUESTIONS PRESENTED FOR REVIEW

Whether the action of the trial court coerced the defen-

dant into entering a plea of guilty to unlawful delivery

of a controlled substance in violation of his right to due

process as guaranteed by the 5th and 14th Amendments

to the United States Constitution; and whether the action

of the trial court and of defense counsel deprived the de-

fendant of his right to effective assistance of counsel as

guaranteed by the 6th and 14th Amendments to the United

States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment (V)

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a. Grand Jury, except in cases arising in the

land’ or naval forces, or in the Militia, when in actual

‘service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in any

- ‘¢riminal case to be a witness against himself, nor be de-

prived of life, liberty or property, without due process of

rr ae

law; nor shall private property be taken for public use,

without just compensation.

Amendment (VI)

In all criminal prosecutions the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

the cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defense.

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any per-

son of life, liberty or property, without due process of

law; nor deny tp any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF CASE

On October 13, 1974, Petitioner was arraigned and en-

tered a plea of not guilty to three charges of unlawful

delivery of a controlled substance in violation of the Mli-

nois Controlled Substance Act, Illinois Revised Statutes,

1973, Chapter 5614, Section 1401 et seq. Due to the pend-

ency of People v. Mayberry, 63 Ill. 2d 1, 345 N.E.2d 97

(1976), which challenged the constitutionality of the pen-

alty provisions of the Illinois Controlled Substances Act,

cay ae

supra, Petitioner’s case was not called to trial until May

12, 1976, following the disposition of Mayberry.

During the 19 months between the arraignment and the

trial date, Petitioner. remained free on bond and was

represented by private counsel. Also, during this period,

private counsel took no action on behalf of Petitioner.

At the commencement of the court’s proceedings at

9:00 a.m. on May 12, 1976, Defendant had not yet arrived

in Court, although he had been advised on the previous

day of the date and time at which he was to appear. De-

fense counsel advised the Court that he was having a dif-

ficult time communicating with the Defendant and filed a

Motion requesting an examination to determine Peti-

tioner’s fitness to stand trial. This was the first pleading

filed by defense counsel to date. (Tr. Hearing and Plea,

2-5).

As a result of Defendant’s absence, the trial court re-

voked Defendant’s bond pending resolution of the case.

(Tr. Hearing and Plea, 5). After a short recess, the pro-

ceedings resumed at 10:30 a.m. with the Defendant pres-

ent. The court called Defendant as a witness on the Mo-

tion for a fitness examination. Defendant told the court

that he had been present in another part of the court-

house at 9:00 a.m. but was unable to locate the courtroom,

and offered to bring in a witness to corroborate this.

(Tr. Hearing and Plea, 25) When asked whether he un-

derstood the charges against him, Defendant responded,

“Tm totally disturbed about the whole thing. I’m not sure

about what’s happening. . .” (Tr. Hearing and Plea, 8-9).

Defendant later indicated that he did understand the

charges but was having difficulty with his attorney. The

Court then asked Defendant whether he had discussed the

case with counsel and the following exchange took place:

~eetz

“A, I...AsI said before, I’m really confused about

this whole thing.

Q. Well, what’s your confusion?

_A.. I don’t understand the nature of what’s going on:

Q. Do you understand your cases are being called

to trial?

A. No, I didn’t know that until about two minutes

0. :

0. All right. Well, you know it now. You know that

your case, the first case is up for trial in this Court?

A. Yes, sir.

Q. All right. Now, do you have any witnesses that

you wish to have subpoenaed to testify in your be-

half?

A. I can’t think of any right now, but maybe later,

I’m not sure.

Q. You were here in this Courtroom yesterday, were

you not? w ;

A. I was here in the building, and I came in the

Courtroom for a short time.

Q. All right. What did you think you were doing

here yesterday?

A. I don’t know. :

Q. No one’s told you that your cases were coming to

trial?

A. That’s right. ;

Q. You knew these cases were pending against you,

didn’t you?

A. Yes, sir. :

Q. How long have they been pending against you?

A. I guess six or eight months or so.

Q. And during that period of time, have you had an

opportunity to consult your lawyer? |

A. Not in any detail regarding the trial or any

reparation for it at all.

0. .7 you were given time, could you, is there any

problem with you assisting Mr. Storment in the trial

of your case? £

A. I ean’t seem to understand him sometimes.

(Tr. Hearing and Plea 16-17)

an FP

The trial judge then explained the charges to Defendant

and the consequences of conviction. Defendant indicated

he was unprepared for trial and again stated he was un-

clear as to the nature of the proceedings. The trial judge

advised the Defendant that he would give him a few days

to consult with his attorney, but that his bond would be

revoked and Defendant placed in custody to insure his

appearance in court. After a discussion over the revoca-

tion of Defendant’s bond, the court asked defense coun-

sel, Mr. Storment, if he was ready to proceed with trial

and he stated that although he was, he believed that De-

fendant was not.

The trial judge then stated:

“. . . I would give you an opportunity to consult

with your client at this time and you can make a

determination, the two of you together as to whether

he wants to begin trial now or if he would prefer to

begin tomorrow, Friday, or Monday. But it will be

no later than Monday. But I don’t feel I have any

choice at this time but to revoke his bond and see to

it that he is here when we are ready to try this case.

Pll give you fifteen minutes to consult with Mr.

Thomas, and then you can come back into my cham-

bers and advise me whether you want to go to trial

today, or tomorrow, Friday, or Monday. And, Dave,

Mr. Thomas will be in your custody, you can call a

uniformed deputy also to assist you on that.” (Tr.

Hearing and Plea 28).

The trial court again denied defense counsel leave to with-

draw his appearance and denied Defendant’s request for

new counsel, because the court did not know if he had

funds to pay for another attorney, even though the court

was told Defendant had posted cash bonds which had not

been assigned to his attorney. (Tr, Hearing and Plea

29). f

nies

Just prior to granting a recess, the trial court stated:

“These indictments date back, these activities date

back to 1973, and the indictments date back to 1974.

And here we are rapidly approaching three years

since the indictments. And this man has been free on

bond almost the entire time. And I think it’s time

now that we dispose of these cases. He’s been free

on bond since August 5, 1974 on the one charge, and

I’m not going to grant a continuance to hire a new

lawyer. Mr. Thomas may not like what you tell him,

and he may not like the prospect of going to trial or

facing conviction, but that’s neither the State’s nor »

the Court’s fault, nor yours. It’s just a fact of life.

These are Class 1 felonies and in the event he is con-

victed, he is going to the penitentiary. I have no dis-

cretion in the matter. So, we’ll take a fifteen minute

recess until 11:15. (Tr. Hearing and Plea 30-31).

Following the recess, Defendant’s motion for determi-

nation of fitness was withdrawn and Defendant entered a

plea of guilty to the charge. The court rescinded its bond

revocation order and continued the matter for sentencing.

(Tr. Hearing and Plea 32, 43-44). Prior to sentencing,

Defendant filed a new motion to determine fitness which

was denied following a hearing. Defendant was then

sentenced to serve a period of four to six years in the

Illinois Department of Corrections in accordance with

the State’s recommendations.

On September 3, 1976, Defendant filed a timely motion

to withdraw his guilty plea and vacate judgment, which

was argued and denied on October 1, 1976. (C. 30-33, Tr.

Motion to Vacate 1-22).

Defendant filed his Notice of Appeal on October 26,

1976, (C. 38). The Appellate Court of Illinois, Fifth Ju- 7

dicial District, in an unpublished Order, reversed the trial

8

court and remanded the cause for a new trial. (See Ap-

pendix A, infra, p. 15a).

The State of Illinois was subsequently granted leave

to appeal to the Supreme Court of Illinois. That court

consolidated this cause with two others under the cap-

tion People v. Odie Cross, and on October 19, 1979, re-

versed the Appellate Court and affirmed the trial court

as to the case of People v. Robert Thomas. (See Appen-

dix A, infra, p. 1a).

Your Petitioner respectfully requests this Honorable

Court to issue a Writ of Certiorari to review the ruling

of the Illinois Supreme Court.

eR ie

REASONS FOR GRANTING WRIT

Your Petitioner’s plea of guilty was induced by the

coercive measures taken by the trial court in conjune-

tion with the ineffective assistance rendered by defense

counsel.

The Defendant in a criminal case has a “constitutional

right to plead not guilty.” Brookhart v. Janis, 384 U.S.

2, 7 (1966). This right necessarily entails a right to per-

sist in his plea without undue influence being brought

upon him to alter his plea.

As this Court stated in Johnson v. Zerbst, 304 U.S.

1019, 1028 (1938):

“A waiver is ordinarily an intentional relinquishment

of a known right or privilege. The determination of

whether there has been an intelligent waiver...

must depend, in each case upon the particular facts

and circumstances surrounding that case. . .”

Thus, the waiver of your Petitioner’s right to persist in

his plea of not guilty must be viewed in light of all the

circumstances present herein.

A eoerced plea is repugnant to the due process clause

of the Fifth Amendment. Waley v. Johnston, 317 U.S. 964

(1942). In order to determine whether a gr‘lty plea satis-

fies the due process requirement of the Fifth Amendment,

it must be measured against the following:

“The standard was and remains whether the plea

represents a voluntary and intelligent choice among

the alternative courses of action open to the defen-

dant” North Carolia v. Alford, 400 U.S. 25, 30 (1970)

(citations omitted)

oni Sis

Moreover, the record must demonstrate that the plea

of not guilty was intelligently and understandingly re-

jected in order for the waiver to be constitutionally valid.

Boykm v. Alabama 395 U.S. 238, 242 (1969).

‘The totality of the circumstances from which volun-

tariness must be determined, Schneckloth v. Bustamonte,

412 U.S. 218, 227, (1973), reveals that in the instant case,

your Petitioner was precluded from making a “voluntary

and intelligent choice among the courses of action open

to him.” Boykin v. Alabama, supra at242.

The circumstances attendant to your Petitioner’s guilty

plea were as follows: The trial court unjustifiably revoked

his bond and ordered that he remain in custody until

disposition of his case. The trial court refused Petitioner’s

request for new counsel after he advised the court he could

not communicate with his attorney. The trial court re-

fused counsel’s request to withdraw after he stated that

he was unable to communicate with his client. After stat-

ing that your Petitioner would be allowed to retain new

_ counsel if monies were available, the trial court withdrew

this offer even though it was made aware of the existence

of $5000.00 in unassigned bonds. Consequently, following

a delay of 19 months your Petitioner was compelled to

proceed to trial without counsel of his choosing. See

~ Powell v. Alabama, 287 U.S. 45, 53 (1932).

Each of the foregoing acts severely and impermissibly

restricted the alternatives available to Petitioner. The

fact that, following 19 months of inaction by defense

counsel, your Petitioner was allowed only 15 minutes for

_ the purpose of making a decision, demonstrates that his

choice—to plead guilty—was not a voluntary choice among

all the alternatives to which due process entitled him.

me

Rather, it demonstrates that the coercive measures of

the trial court severely limited the choices available to

this criminal defendant in violation of the due process

clause of the Fifth Amendment.

Petitioner submits furthér that it is basic that a crim-

inal defendant’s rights a process under the Fifth

Amendment, and assistance of counsel under the Sixth

Amendment are binding on the States through the Four-

teenth Amendment, Gideon v. Wainwright, 372, U.S. 335

(1962). It is also recognized that the right to counsel is

the right to effective assistance of counsel McMann v.

Richardson, 397 U.S. 759 (1970).

In Powell v. Alabama, 287 U.S. 45 (1932) this Honor-

able Court stated:

“(D)uring perhaps the most critical period of the

proceedings against these defendants, that is to say,

from the time of arraignment until the beginning of

their trial, when consultation, thorough-going inves-

tigation and preparation were vitally important, the

defendants did not have the aid of counsel in any

real sense, although they were as much entitled to

such aid during that period as at the trial itself.

Powell v. Alabama, supra at 57 (citations omitted)

Here Petitioner was without the effective assistance

of counsel “in any real sense” during the crucial period

between arraigninent and trial which spanned 19 months.

No pleadings were filed, no discovery was sought and no

attempts were made by defense counsel to interview wit-

nesses. Furthermore, the attorney waited until the very

moment of trial before advising the trial court of his

inability to communicate with Petitioner and to secure his

cooperation in preparing his defense.

a a

Even if defense counsel were deemed to be competent,

the action of the trial court, after learning of counsel’s

inability to communicate with Petitioner, rendered coun-

sel’s assistance meaningless. The granting of a 15 minute

conference wherein counsel and Petitioner, who had dif-

ficulty communicating, were to prepare for trial made a

mockery of Petitioner’s constitutional right to effective

assistance of counsel.

The actions of the trial court denying Petitioner his

right to effective assistance of counsel, coupled with the

other coercive actions of the trial court directed against

Petitioner, were such as to deny him the opportunity to

make a knowing and voluntary choice among those alter-

natives to which he was constitutionally entitled under

the Due Process Clause.

a |

pr

CONCLUSION

WHEREFORE, Petitioner prays that a writ of cer-

tiorari be granted.

Respectfully submitted, |

ArtHur M. BERMAN

120 West Madison Street

“ Suite 600

Chicago, Illinois 60602

312/782-3020

Attorney for Petitioner

Of Counsel:

AuAN STEVEN NaGEL

CuHaries K. Pier

One North LaSalle Street

Suite #2100

Chicago, Illinois 60602

312-726-7402

— ) on

APPENDIX A

OPINIONS BELOW

Docket Nos. 51201, 51230, 51256 cons.—

Agenda 32—May 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, Appel-

lant, v. ODIE CROSS, JR., Appellee —THE PEOPLE

OF THE STATE OF ILLINOIS, Appellant, v. TOM

HAYWOOD, Appellee—THE PEOPLE OF THE

STATE OF ILLINOIS, Appellant, v. ROBERT

THOMAS, Appellee.

MR. JUSTICE KLUCZYNSKT delivered the opinion

of the court:

The primary issue raised in these three consolidated

cases is whether the appellate court properly held that

entrapment exists as a matter of law whenever a govern-

ment informer supplies a controlled substance to an in-

dividual who is later prosecuted for the sale of that

substance. Defendant Odie Cross, Jr., was convicted in

a jury trial of the unlawful delivery of less than 30

grams of a substance containing heroin (Ill. Rev. Stat.

1975, ch. 5614, par 1401(b)) and was sentenced to a

term of imprisonment of two to six years, defendant

Tom Haywood was convicted in a bench trial of the un-

lawful delivery of 30 grams or more of a substance con-

taining lysergic acid diethylamide (LSD) (Tl. Rev. Stat.

1975, ch. 5614, par. 1401(a)(8)) and was sentenced to a

term of imprisonment of four years to four years and one

day, and defendant Robert Thomas pleaded guilty to a

charge of unlawful delivery of 30 grams or more of LSD

(Ill. Rev. Stat. 1973, ch. 561%4, par. 1401(a)(8)) and

was sentenced to a term of imprisonment of four to six

years. All proceedings took place in the circuit court

of St. Clair County. The appellate court reversed the

convictions of defendants Cross (63 Ill. App. 3d 628),

vee

Haywood (63 Ill. App. 3d 352), and Thomas (61 Tl. App.

3d 1112 (Rule 23 order) ) because of its findings of entrap-

ment, and we allowed the State’s petition for leave to

appeal in each case.

‘Although the facts in these cases differ in most re-

spects, they each involve the prosecution of an individual

who claims to have been supplied with a controlled sub-

stance by a government informer and who, after selling

the substance, was arrested. Defendant Thomas failed

to raise this entrapment issue in his motion to withdraw

his guilty plea, however, referring only to a deprivation

“fof a crucial defense.’? The argument is waived. (58

Til. 2d R. 605(d).) Our discussion of entrapment is

therefore limited to defendants Cross and Haywood.

They raised the defense of entrapment in the circuit court,

and it therefore became incumbent upon the State to

prove beyond a reasonable doubt that entrapment did

not occur (People v. Dollen (1972), 53 Tl. 2d 280, 284).

In attempting to meet this requirement, the State offered

pion of the defendants’ predisposition to commit the

offense.

In reversing the judgments of conviction, the appellate

court interpreted this court’s decisions in Dollen and

People v. Strong (1961), 21 Ill. 2d 320, as establishing a

per se rule of entrapment whenever a government in-

former supplies a controlled substance to an individual

who is later prosecuted for the unlawful delivery thereof.

Although this application of the Dollen and Strong

opimions may well be justified in light of language con-

tained therein, we do not believe that the court in Strong

intended to create a per se rule, and the language in

Dollen so interpreting Strong is in error.

In Strong, the court approved of the entrapment

defense in & prosecution for unlawful possession and sale

of heroin where the defendant’s ‘‘only sale was of nar-

cotics supplied to him by an informer in the employ of

the government.’’ (People v. Strong (1961), 21 Il. 2d

320, 326.) Implicit in this holding was a finding that the

cnliien

defendant was not predisposed to commit the offense. It

there appeared from the evidence that the drug sale in

question was the defendant’s sole experience with the

unlawful distribution of heroin:

“The defendant testified that the informer, Rey-

nolds, brought a package to his room and left it there

without explaining what it contained, saying that he

would return in about 45 minutes, Reynolds did re-

turn in that time accompanied by [Federal agent]

Johnson, Reynolds asked the defendant to give the

package to Johnson, which he did, whereupon John-

son gave the defendant $50. The defendant said that

the money should go to Reynolds but Reynolds asked

the defendant to keep the money and bring it to him

that evening. He testified that he took the money to

Reynolds later that day. The defendant testified that

he did not knowingly sell agent Johnson any nar-

cotics because he was not in the business, did not

have any narcotics, did not know where to obtain any

and had nothing to do with narcotics.” (21 Til, 2d 320,

323.)

In reaching its decision, however, the court said:

“While we are sympathetic to the problems of en-

forcement agencies in controlling the nareoties traffic,

and their use of informers to that end, we cannot

condone the action of one acting for the government

in supplying the very narcotics that gave rise to the

alleged offense. We know of no conviction for sale

of narcotics that has been sustained when the nar-

coties sold were supplied by an agent of the govern-

ment. This is more than mere inducement. In reality

the government is supplying the sine qua non of the

offense.” 21 Til. 2d 320, 325.

Dollen, too, is somewhat ambiguous because it inter-

prets Strong as espousing a per se rule of entrapment,

yet at the same time the court’s opinion inquires deeply

-—

i

into the question of whether the defendant was predis-

posed to commit the offense. The court says in one pas-

“In Strong, we held that a conviction for the un- '

lawful sale of narcotics cannot stand when the informer

supplies the drugs.” (53 Ill. 2d 280, 284.) Shortly there-

after, however, the court states:

“In the present case the testimony of defendant

and Elmer Davis clearly indicates that defendant

» (a taxi dispatcher] innocently gained possession of

the narcotics during a routine inspection of the ve-

hicle driven by [informer] Wright. Defendant ap-

parently had no prior history of narcotics involve-

ment until this time. Wright, who immediately af-

ter the discovery suggested that he could find a

buyer, also possessed an unparalleled opportunity

to place the package in his vehicle. Moreover, the

testimony of agent Norton and defendant confirms

that Wright actively negotiated the price of the nar-

cotics. It was also definitely established that at the

approximate time of the discovery of the drugs

Wright harbored resentment against the defendant.”

58 Tl. 2d 280, 284.)

_Evident from the latter passage is the court’s concern

that an innocent man had been convicted, thus casting

doubt on its discussion of Strong.

The problem of interpreting Strong and Dollen has also

caused the appellate court some difficulty, resulting in

a split of authority on the question of whether a per se

rule governs. (Compare People v. Cross (1978), 63 Tl.

App. 3d 628, 632, People v. Haywood (1978), 63 Ill. App.

3d 352, 353, People v. Thomas (1978), 61 Tl. App. 3d 1112

(Rule 23 order), and People v. Spahr (1978), 56 Tl. App.

38d 434, 489, with People v. Arbogast (1976), 41 Ill, App.

8d 187, 190, People v. Hesler (1976), 39 Ill. App. 3d 848,

851, and People v. Hatch (1964), 49 Ill, App. 2d 177, 184.)

This confusion has led us to consider the subject anew.

In our reconsideration of the subject and in light of

the ever-growing drug problem, we are not so sure that

a an

the court should be so critical, as it was in Strong, of

governmental action in infiltrating drug rings, and we do

not believe that the courts should foreclose the possibility

that a conviction of a predisposed individual could be

sustained even though the government did furnish the

controlled substance. The offense in question here is the

unlawful delivery of a controlled substance and, although

the government may have supplied the substance, the crit-

ical inquiry is whether the “criminal purpose” of selling

these substances originated with the defendants (Ill. Rev.

Stat. 1975, ch. 38, par. 7-12). By supplying an individual

with controlled substances, the government is merely

facilitating or providing the opportunity for the individu-

al to make an unlawful delivery. This is not entrapment

under our entrapment statute (Ill. Rev, Stat. 1975, ch.

38, par. 7-12). Any contrary statement in Strong, decided

before enactment of the statute, should no longer be fol-

lowed,

The entrapment statute, based in large part on the

leading case of Sorrells v. United States (1932), 287 U.S.

435, 77 L. Ed. 418, 53 S. Ct. 210 (see Tl. Ann. Stat., ch.

88, par. 7-12, Committee Comments, at 439 (Smith-Hurd

1972)), provides:

“A person is not guilty of an offense if his conduct

is incited or induced by a public officer or employee,

or agent of either, for the purpose of obtaining evi-

dence for the prosecution of such person. However,

this Section is inapplicable if a public officer or em-

ployee, or agent of either, merely affords to such per-

son the opportunity or facility for committing an of-

fense in furtherance of a criminal purpose which

such person has originated,” (Ill, Rev. Stat. 1975, ch.

88, par. 7-12.)

It thus contemplates consideration of whether the idea for

the crime originated with the defendant; predisposition as

well as governmental involvement must therefore be con-

sidered, (See Hampton v. United States (1976), 425 U.S.

484, 48 L. Ed. 2d 1138, 96 S. Ct. 1646; United States v.

— Sn

Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S.

Ct. 1637; People v. Hatch (1964), 49 Til. App. 2d 177,

183-85.) The language in Dollen, which interprets Strong

as eliminating the need to consider predisposition, likewise

should no longer be followed. Consideration of an indi-

vidual’s predisposition is required, and, for that purpose,

a complete review of the facts of Cross’ and Haywood’s

cases is necessary. Because we believe that the State

proved beyond a reasonable doubt that Cross and Hay-

wood were predisposed to commit the offense of unlawful

delivery of a controlled substance, we reverse the judg-

ments of the appellate court in their cases.

On October 7, 1976, defendant Cross was alone in the

East St. Louis home of Henry Pickett, a friend and gov-

ernment informer, Cross testified that he had gone there

with Pickett to help him with some work. Pickett and his

wife had left temporarily, and Pickett had asked Cross

to hold a plastic vial containing five capsules until he

returned. Cross testified that he knew that the capsules

contained heroin. He further testified that he had seen

Pickett every day in the preceding year and had been in

his home to perform home repair and decoration services.

While in Pickett’s home, Cross responded to the knock

of a special agent of the Drug Enforcement Administra-

tion, Archie Luss, who was looking for Pickett to assist in

finding an individual. According to Luss, Cross said that

Pickett was not home and Cross asked if he could take

care of any business for Luss. Luss testified that “busi-

ness,” in his mind, meant a heroin sale. Luss also testi-

fied that he had not told Pickett that he was coming and

a he did not know Cross and did not expect to meet

him.

Luss returned to his car, where agent James McDowell

was waiting, and the two then and there conceived of a

plan whereby they would record the serial number of two

of McDowell’s $10 bills and offer them to Cross in ex-

change for heroin, Luss and McDowell did not anticipate

= 7g —

a sale and did not have official funds to use. Luss, in fact,

testified that no sale would have occurred if they had not

gone looking for Pickett and if they had not had some

money of their own. ;

Luss returned to Pickett’s home and, according to

Cross, said, “I want to cop two buttons.” Cross testified

that he knew that “buttons” meant heroin. Cross then

produced two pink capsules from a vial in his right pants

leg, which he then exchanged for the $20. According to

Cross’ testimony, $10 per capsule was charged because

that was Pickett’s usual rate. Following the sale, the

agents performed a field test on the pills and detected

opium alkaloids.

After conducting the test, Luss again returned to ask

Cross for five more buttons. Although Cross later testi-

fied that he would have sold five if he had had that many,

he responded that he only had three. Upon handing them

to Luss, he was arrested. Luss testified that, following the

arrest, Cross said that he was selling buttons for Pickett.

The State did not call Pickett to rebut Cross’ claim

that Pickett had given him the heroin, and, under Strong,

this gives rise to an inference against the State (21 Ill. 2d

320, 325). Under the circumstances, however, little signi-

ficance should attach to this fact because the sale here in

question is not at all similar to the “set up” which was

involved in Strong and which led the court to announce

that an inference would arise against the State for its

failure to call the informer. The evidence clearly indicated

Cross’ predisposition to commit the offense, and the gov-

ernment’s involvement in the sale was prompted only

by Cross’ offer to do business. The jury’s verdict and the

circuit court’s judgment of conviction entered thereon are

amply supported by the evidence.

Cross contends, however, that his conviction should

nonetheless be reversed because the circuit court refused

to instruct the jury on entrapment. The circuit court

specifically held that defendant had not met the qualifica-

tions for the defense of entrapment, and it therefore re-

Cel on

fused the tendered instruction. We find no error in the

ruling. The State’s evidence established beyond a rea-

sonable doubt that Cross was predisposed to commit the

offense and that the idea for the sale originated with him.

People v. Cash (1963), 26 Ill. 2d 595, 597-98; People v.

Guagliata (1936), 362 Ill. 427, 433.

The evidence against defendant Tom Haywood is, we

believe, also sufficient to sustain the circuit court’s finding

of guilt. Haywood was charged by indictment with the

unlawful delivery of 50 grams of LSD on October 9, 1973,

and the State’s evidence supported the allegation that the

sale occurred on the date specified. On that day, according

to the testimony of Illinois Bureau of Investigation (IBI)

agent Lonnie Inlow, Haywood sold Inlow 1,000 tablets of

LSD for $725. Inlow arranged the sale with the assistance

of an,informer, Dor Zierenberg.

Defendant’s wife, l’amela, and a friend, Frank Herron,

testified that Zierenberg supplied the LSD in question.

Herron further testified that Zierenberg asked defendant

to act as a source in making the sale. Mrs. Haywood tes-

tified, however, that the sale to which they were referring

occurred in May of 1973, and Herron testified that it took

place in the early summer of 1973.

In rebuttal for the State, agent Inlow testified that he

made only one purchase from defendant prior to October

9, 1973, that being on March 15, 1973. This was corrobo-

rated by IBI expenditure records identified by IBI as-

sistant administrator Russell Ford.

As to defendant’s claim that Zierenberg supplied the

LSD, Inlow testified that he did not know if this was so,

but he also testified that Zierenberg once had admitted

selling drugs. Zierenberg was not called to testify.

Once the entrapment defense was raised, the State

introduced evidence of defendant’s predisposition to com-

mit the offense. Agent Inlow in particular spoke of de-

fendant’s familiarity with drugs. He testified that, in the

course of the March 15, 1973, sale, defendant indicated.

=

that the LSD was Berkeley (California) brown acid. At

the October 9, 1973, sale, defendant is said to have repre-

sented that the LSD then sold was “as good in quality as

good purple haze and it wasn’t cut with strychnine which

makes it a lot better.” Inlow also testified that defendant

expressed a desire to get good dope into the Belleville

area and that defendant offered a price break for regular,

large quantity sales. Defendant’s wife also testified that

defendant used LSD and marijuana, although she also

said that he had not been using these substances recently

and did not sell them.

Notwithstanding discrepancies in the testimony of State

and defense witnesses as to whether the sale occurred

in May or October of 1973, defendant contends that the

defense of entrapment was raised and that the State failed

to prove beyond a reasonable doubt that entrapment did

not exist. While we agree that the defense was raised, we

do not agree that the State failed to meet its burden of

proof. The circuit court, sitting without a jury, weighed

the evidence and drew inferences therefrom; it considered

the credibility of the witnesses and found against defen-

dant. The circuit court’s judgment is well supported by

the evidence, and we will not disturb that judgment since

no reasonable doubt clearly manifests itself. People v.

Fleming (1971), 50 Ill. 2d 141, 145-46; People v. Guido

(1962), 25 Ill. 2d 204, 208.

Defendant Haywood, however, correctly argues that he

is entitled to be resentenced. He points out, with sup-

port in the record, that the circuit court was under the

misapprehension that it was prohibited from imposing a

term of periodic imprisonment and that it felt compelled

to impose a 4-year minimum sentence. The circuit court

apparently acted in reliance on the 1975 version of the

sentencing provisions of the Unified Code of Corrections

(Ill. Rev. Stat. 1975, ch. 38, par. 1005-5-3(d)(1), which

had been recently amended to exclude periodic imprison-

ment as an available form of punishment for the offense

committed by Haywood, a violation of section 401(a) of

a eee

the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975,

ch. 56%, par. 1401(a)). The sentencing law in effect on

the date on which Haywood committed the offense, Oc-

tober 9, 1973, did provide for the option of periodic im-

prisonment (Ill. Rev. Stat. 1973, ch. 38, pars. 1005-5-3(d)

(1), (d)(2)), and Haywood is entitled to the application

of that law. (Ill. Rev. Stat. 1975, ch. 131, par. 4).

Although we have ruled that defendant Thomas has

not preserved his entrapment argument for review, other

issues concerning the validity of his guilty plea are raised

in his appeal which do require consideration. The offense

to which defendant Thomas pleaded guilty was the unlaw-

ful delivery of 40.1 grams of LSD on April 24, 1973, one

of three charges for which he was indicted.

Following arraignment on October 13, 1974, the circuit

court stayed proceedings pending a decision in People v.

Mayberry (1976), 63 Ill. 2d 1, involving a challenge to the

sentencing provisions applicable to defendant Thomas.

The case eventually was set for trial on May 12, 1976, at

9 a.m. Defendant was late and at 10:30 the court again

called the case with defendant then present.

At the outset of the proceedings, defendant said that

he was not sure of the nature of the charges, but ques-

tioning by the court revealed that he was cognizant of the

indictments and their contents. Defendant also stated

that he did not consult his attorney in detail about the

upcoming trial and that he had trouble understanding the

attorney. He did later state, however, that he had met

with the attorney on the previous day for an hour or an

hour and a half, discussing the\charges and possible pleas.

Defendant then indicated that he was ready for trial,

but not that day. Defense counsel also expressed his

readiness for trial, but expressed his belief that defendant

was not. The court therefore granted defendant ‘‘a few

days’’ to confer with counsel and to prepare for trial, but

specified that trial would in no event be postponed more

than five days. The court also ordered bond revoked

pending trial, citing defendant’s failure to timely appear.

— lla —

The court then ordered a 15-minute recess, during which

time defendant was to decide which day trial would

commence.

At this point defendant asked the court if he could

have time to obtain different representation. His attornev

admitted that he was experiencing difficulty counseling

defendant, but the court denied any further continuance

for the purpose of substituting attorneys.

During the recess which followed, defendant decided

to enter a guilty plea, and an agreement was negotiated

whereby defendant would plead guilty to one of the three

charges, and the State would dismiss remaining charges

and recommend a four- to six-year term of imprisonment.

When the case was again called, the court ordered bond

reinstated, and it began questioning defendant about his

decision to plead guilty.

The court first asked if defendant had discussed the

ease with his attorney, and he indicated that he had. The

court then asked him if he wanted more time to consider

his decision, and he indicated that he did not. When asked

if he was satisfied with his attorney, he responded af-

firmatively.

The court then questioned defendant about his aware-

ness of the nature of the charges, potential sentences,

and parole. The court also enumerated the rights waived

by pleading guilty and asked, ‘‘[A]re you willing to give

up each and every one of those rights to enter this plea?’’

After consulting with his attorney, defendant replied,

**Yes.’’ The court finally assured itself that the plea was

not the product of threats or promises, excepting those

promises contained in the plea agreement.

Po prosecutor then read a statement of the exact

arges into the record for the purpose of supplying a

factual basis for the plea: m

“Your Honor, on April 23rd, 1973, Agent Inlow

approached the mobile home of Mr. Thomas, entered

—12a—

the mobile home of Mr. Thomas, [and] at that time

Agent Inlow inquired of Mr. Thomas if he had any

LSD for sale. Mr. Thomas responded in the affirma-

tive. Mr. Thomas walked into the kitchen area, reach-

ed into the top of a refrigerator, removed a quantity

of light, yellow powder, indicated to the Agent that

this was lemon [mesc] for sale, received $70.00 and

then delivered to Agent Inlow the powder. The Agent

then took the powder, had it analyzed, and the analysis

indicated that it was 40.1 grams of Lyserie Acid

Diethylamide, commonly referred to as LSD.”’

The judge asked defendant if he sold the LSD as alleged,

and defendant answered ‘‘I did, and I was given it by the

person who was there with [IBI agent] Inlow * * *.’’ The

court then accepted the plea.

Defendant’s first challenge to the validity of the plea

is that a factual basis was lacking. (See 58 Ill. 2d R.

402(b).) He contends that the defense of entrapment was

raised by telling the judge that someone with the under-

cover agent had supplied the LSD. As a consequence, he

argues, a factual basis was lacking or, at least, the circuit

court should have inquired further into the possibility

that entrapment had occurred. We disagree on both

points.

Our initial problem in accepting the position of defen-

dant is that his statement at the plea proceedings was

made in passing, added only after he admitted committing

the offense as charged. Whether the circuit court recog-

nized this statement as a claim of entrapment we do not

know, and we could not find fault with the court if it did

not.

Even assuming that the court was properly apprised of

the possibility of entrapment, the record before the court

clearly indicated that defendant was predisposed to com-

mit the offense, therefore making any further inquiry into

entrapment unnecessary. In addition to the statement of

facts supplied by the prosecutor, the court also had before

— 13a —

it the IBI reports pertaining to the offense, as well as the

other two indictments for the unlawful delivery of 195.4

and 503.3 grams of LSD. The IBI reports were especially

indicative of predisposition, showing defendant’s famil-

iarity with drug terminology and paraphernalia and his

expressed desire to do business in the future with IBI

agent Inlow.

The circuit court’s duty was to assure itself that a

factual basis for the plea existed, not whether defendant

was proved guilty beyond a reasonable doubt, and we do

not believe that the possibility of the defense of entrap-

ment rendered the guilty plea defective. Defendant was

represented by counsel, and the plea was fully explained.

(See People v. Covington (1970), 45 Tl. 2d 105, 110; see

also People v. Garrett (1977), 46 Ill. App. 3d 592, 596-97:

People v. Terry (1975), 30 Ill. App. 3d 713, 714-16;

People v. Williams (1975), 26 Ill. App. 3d 41, 43; People v.

Arnold (1974), 18 Ill. App. 3d 95, 98.) We do not agree

that the circuit court was required to do more.

Defendant Thomas’ final contention, which the appel-

late court found unnecessary to address, is that his plea

was improperly induced by the circuit court’s decisions to

revoke bond and to deny substitution of attorneys.

Because we believe that the court’s ruling were within its

discretion, we find no merit to defendant’s argument. As

to the circuit court’s bond revocation order, defendant’s

tardy appearance on May 12, 1976, justified the action. As

to the court’s refusal to allow substitution of attorneys,

the court reasonably could and, in fact, did find that

defendant was engaging in dilatory tacties. Significant in

this respect is the fact that defendant had ample time,

more than three years, between the alleged sale and the

date set for trial, May 12, 1976, in which to prepare. Also

important is that’ defendant had met with counsel the

previous day, and, when entering his plea, expressed

satisfaction with the attorney. We find no ground for

reversal in this argument. Cf. People v. Bratu (1970), 46

Til. 2d 143, 146 (reversal not required despite the defen-

is BAB ie

dant’s claim that counsel coerced his guilty plea where

evidence showed only that the attorney properly advised

the defendant of the likelihood of conviction and the

gravity of potential sentences); People v. Pratt (1970),

46 Ill. 2d 99, 103-04 (reversal not required despite the

defendant’s claim of inadequate representation where a

guilty plea represented an intelligent choice among alter-

natives and no prejudice was shown).

The appellate court’s judgments are reversed and the

circuit court’s judgments are affirmed, except that the

sentence of defendant Haywood is vacated and that cause

is remanded to the circuit court for reconsideration of the

sentence.

51201 — Appellate court reversed;

circuit court affirmed.

51230 — Appellate court reversed;

circuit court affirmed

an part and vacated in

part; cause remanded.

51256 — Appellate court reversed;

circuit court affirmed.

— 15a —

No. 76-475

In THE

APPELLATE COURT OF ILLINOIS

Fifth District

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

ROBERT THOMAS,

Defendant-Appellant.

Appeal from the Circuit Court of St. Clair County.

Honorable Roserr L. Gacen, Judge Presiding.

G.J. MORAN, J.

ORDER

Filed Aug. 14, 1978

Defendant Robert Thomas pleaded guilty to an indict-

ment of unlawful delivery of a controlled substance and

was sentenced to a term of 4 to 6 years. He appeals from

the trial court’s denial of his motion to vacate his plea

of guilty.

On October 13, 1974 defendant was arraigned and

pleaded not guilty to three charges of unlawful delivery

of a controlled substance. (Ill. Rev. Stat. 1973, ch. 56-1/2,

par. 1401, et seq.) Defendant’s case was not brought to

trial until May 12, 1976 because of the pendency of People

v. Mayberry, 63 Tll.2d 1, 345 N.E.2d 97, a case in which

the Supreme Court reversed a decision of the cireuit court

of St. Clair County holding that the graduated penalty

provisions of the Controlled Substance Act were uncon-

stitutiona]. Defendant was free on bond during the nearly

two-year period between his arraignment and the pro-

ceeding on May 12, 1976. Although defendant was repre-

sented by private counsel during this period, no actions

— 16a —

were taken by counsel on defendant’s behalf until the

May 12 proceeding.

Defendant was not present at the beginning of the May

12 proceeding although defense counsel informed the court

he had told defendant about the 9:00 a.m. hearing on the

preceding day. Counsel also stated that he and defendant

were having a difficult time communicating and filed a

motion for an examination to determine defendant’s fit-

ness to stand trial. As a result of defendant’s absence

the trial court revoked bond pending resolution of the

case. The court then took a short recess and resumed at

10:30 a.m. with defendant in attendance. Defendant was

called as a witness by the court on the motion to deter-

mine his fitness to stand trial. Defendant explained that

he had been in the court house at 9:00 a.m. but was unable

to locate the specific court room. When asked whether he

understood he was charged with delivery of a controlled

substance, defendant responded, ‘‘I’m totally disturbed

about the whole thing, I’m not sure about what’s hap-

pening * * * .’’ Defendant later indicated that he did in

fact understand the charge but was having some difficulty

with his attorney. The court then asked defendant whether

he had discussed the charges with his attorney and the

following exchange took place:

“‘A. I... As I said before, I’m really confused

about this whole thing.

Q. Well, what’s your confusion?

A. I don’t understand the nature of what’s going

on.

Q. Do you understand your cases are being called

to trial? |

A. No, I didn’t know that until about two minutes

0.

Q. All right. Well, you know it now. You know

that your case, the first case is up for trial in this

Court?

A. Yes sir.

ee

Oy Oe

—17a—

Q. All right. Now, do you have any witnesses

that you wish to have subpoenaed to testify in your

behalf.

A. I can’t think of any right now, but maybe later,

I’m not sure.

Q. You were here in this Courtroom yesterday,

were you not?

A. I was here in the building, and I came in the

Courtroom for a short time.

Q. All right. What did you think you were doing

here yesterday?

A. I don’t know.

Q. No one’s told you that your cases were coming

to trial?

A. That’s right.

Q. You knew these cases were pending against

you, didn’t you? ;

A. Yes, sir.

Q. How long have they been pending against you?

A. I guess six or eight months or so.

Q. And during that period of time, have you had

an opportunity to consult your lawyer?

A. Not in any detail regarding the trial or any

preparation for it at all.

Q. If you were given time, could you, is there any

problem with you assisting Mr. Storment in the trial

of your case?

A. I can’t seem to understand him sometimes.”

The trial judge then explained the charges to defen-

dant and the consequences of conviction. Defendant in-

dicated he was unprepared for trial and again stated

he was unclear as to the nature of the proceedings.

The trial judge advised defendant that he would give

him a few days to consult with his attorney but that his

bond would be revoked and defendant placed in custody

to insure his appearance in court. After a discussion over

the revocation of defendant’s bond, the court asked de-

fense counsel, Mr. Storment, if he was ready to proceed

with trial and the following exchange occurred.

Oy ee ee eT TN Le CE eT ne

— 18a ..

“Mr, Storment: I’m ready for trial, but I don’t

think my client is ready for trial.

The Court: I think the main part of the con-

fusion that has arisen here, I’m sure this man is

concerned about going to the penitentiary, I would be

too, ..wnyone would be. If that’s what’s going to be.

I think maybe the fact that he may have been told

four years on each charge may concern him to the

point where he thinks he might be doing twelve

years instead of four years, I don’t know. But in

the first instance, under the statute, I am entitled

to make preliminary inquiry and there has been

nothing stated here that’s raised a bona fide doubt

in my mind about this man’s fitness to stand trial.

I think Mr. Thomas does understand what he’s

charged with. I think he is not only capable of

cooperating with you, I think he’s willing to cooperate

with you in forming a defense in this case. I think

his problem is, at least from what I understand him

to have said, is his concern about being called to the

courthouse and told his case is ready, and then

being advised that he’s facing penitentiary time. Now,

I’m not trying to put words into his mouth, but that’s

what I read from the situation. But I am concerned

about his appearing in this Court, now that he does

know, it’s very obvious that this man did not know

until yesterday or perhaps even this morning that

he faces mandatory jail time in the event he’s con-

victed of one or all three of these charges. I am

concerned now about his availability for trial. I will

start his case right now if that’s what you and he

want. However, if he wants to have a few days to

confer with you or the rest of today to confer with

you, that’s fine, but his bond is going to be revoked

and he’s going to be held with out bond until this

matter is disposed of. Now, I would not continue this

case any later than Monday. I would force the issue

on Monday where we would have a trial. But I am

perfectly willing and available to have a trial on

— 19a —

this case beginning immediately. And I would give

you an opportunity to consult with your client at

this time and you can make a determination, the two

of you together as to whether he wants to begin

trial now or if he would prefer to begin tomorrow,

Friday, or Monday. But it will be no later than Mon-

day. But I don’t feel I have any choice at this time

but to revoke his bond and see to it that he is here

when we are ready to try this case. I'll give you

fifteen minutes to consult with Mr. Thomas, and then

you can come back into my Chambers and advise

me whether you want to go to trial today, or tomor-

row, Friday, or Monday. And, Dave, Mr. Thomas

will be in your custody, you can call a uniformed

deputy also to assist you on that.

The Defendant: Your Honor, may I speak?

The Court: Yes, sir.

The Defendant: In view of what you just said,

I would ...TI need some time to consult another

attorney so I can understand exactly what I am

doing. I’m not sure that I’m ready to do whatever

we need to do, I’m lost, I really am, and T need to

talk to someone else to advise me.

The Court: The question, Mr. Thomas, is whether

or not you understand what you are charged with,

and you can cooperate with your counsel, and you

can assist your counsel in your case.

Mr. Storment: Your Honor, may I ask him a

question. Do you feel at this time that I can’t ade-

quately represent you, do you feel that, would you

rather have. ...

Mrs. Gossage: Objection, Your Honor. This is

purely dilatory.

Mr. Storment: Well, I’m having a real problem

representing him.

The Court: Well, I’m not going to let you with-

draw. As I understand, there are bond assignments

in this case.

Mr. Storment: That is no bond assignment in this

case,

ie

The Court: In any of these three cases, have you

been paid?

Mr. Storment: I have received some money.

The Court: Well, then I can’t permit you to with-

draw. I can’t even in good conscience appoint a Public

Defender to represent a man that’s already paid a

lawyer.

Mr. Storment: But how can I represent him if

he doesn’t want me to represent him? If he wants

to consult another attorney, what am I going to do

about that?

The Court: Well, if he gives me proof that he

has the funds to hire another lawyer, fine. If not,

you’re going to represent him.

Mr. Storment: I have no bond assignment.

The Court: Unless there’s proof that he has funds

to hire another lawyer, you're it, as far as these

cases are concerned. And I would suggest that you

take the fifteen minutes that I have given you to go

over again with your client the details of what he’s

charged with, what he’s facing, and make a determina-

tion as to whether you want to go to trial today or

Monday, or any days in between. But it’s going to be

between now and Monday, we’re going to dispose of

these cases. These indictments date back, these ac-

tivities date back to 1973, and the indictments date

back to 1974. And here we are rapidly approaching

three years since the indictments. And this man

has been free on bond almost the entire time. And

I think it’s time now that we dispose of these cases.

He’s been free on bond since August 5th, 1974, on

the one charge, and I’m not going to grant a con-

tinuance to hire a new lawyer. Mr. Thomas may not

like what vou tell him. and he may not like the

prospect of going to trial or facing conviction. but

that’s neither the State’s nor the Court’s fault. nor

vours. It’s just a fact of life. These are Class 1

felonies and in the event he is convicted, he is going

to the penitentiary. I have no discretion in the matter.

So we'll take a fifteen minute recess until 11:15.”

— 2la —

After a brief recess Mr. Storment withdrew the motion

for determination of fitness to stand trial and defendant

entered a plea of guilty. The trial court admonished the

defendant pursuant to Supreme Court Rule 402 (Ill. Rev.

Stat. 1975, ch. 110A, par. 402) and accepted defendant’s

plea and the State’s recommended sentence of 4 to 6

years. Sentencing was postponed and the court rescinded

its order revoking defendant’s bond in accordance with

the plea agreement. Prior to formal judgment and sen-

tencing a hearing on defendant’s fitness to stand trial

was held at defendant’s request. The trial court deter-

mined that defendant was fit to stand trial and sentenced

defendant to a term of 4 to 6 years.

Defendant retained new counsel and on September 3,

1976 a motion to withdraw the guilty plea and vacate

judgment was filed in defendant’s behalf, Defendant con-

tends his plea of guilty was not voluntary. It is generally

held that where a plea of guilty represents a voluntary

and intelligent choice among alternative courses of action

available to a criminal defendant, the plea is valid despite

the fact that defendant may have been deprived of im-

portant constitutional rights prior to entering the plea.

(People v. Brown, 41 Tll.2d 503, 244 N.F.2d 159; People

v. Phelps, 51 Tll.2d 35, 280 N.F.2d 203.) Thus, a guilty

plea will be upheld even though influenced by an im-

properly coerced confession, if the record indicates that

the plea was voluntary. (McMann v. Richardson, 397 US.

759, 25 L.Ed.2d 763, 90 S.Ct. 1441.) This general rule

does not apply, however, in cases in which a prior dep-

rivation of constitutional rights has an abiding impact on

the voluntariness of a plea of guilty. (McMann v.

Richardson, 397 U.S. 759, 767, 25 L.Ed.2d 763, 771.) The

defendant vigorously contends that the trial court’s re-

fusal of his request to obtain other counsel denied him

his right to be represented by counsel of his own choice

and that this denial of his constitutional rights coupled

with the trial court’s revocation of bond forced him to

proceed with counsel whom he did not want and therefore

e..

coerced him into pleading guilty. We need not consider

this contention bec-use another error in the record re-

quires reversal.

Defendant also contends that the trial court committed

reversible error by failing to determine that there was a

factual basis for his plea prior to entering final judgment

as required by Supreme Court Rule 402(c) (Ill. Rev.

Stat. 1975, ch. 110A, par. 402(c)), which provides:

(c) Determining Factual Basis for Plea. The

court shall not enter final judgment on a plea of

guilty without first determining that there is a factual

basis for the plea.”

After a factual basis for the plea was read into the

record by the Assistant State’s Attorney, the trial court

inquired of the defendant as follows:

“The Court: Mr. Thomas, on April 23, 1973 did

you deliver to a Lonnie Inlow, you may not have

known him by that name, but did you deliver 40.1

grams of a substance containing LSD?

The Defendant: I did, and I was given it by the

person who was there with Mr. Inlow, that’s true,

yes.”

The defendant was asserting that the government in-

formant, Daniel Hocking who had accompanied Agent

Inlow, had supplied him with the drugs which he subse-

quently delivered to Agent Inlow. Therefore, in his re-

sponse to the trial court’s question defendant set forth

the affirmative defense of entrapment.

In the recent case of People v. Cross, (No. 77-179, filed

July 28, 1978) this court held that a conviction for selling

a contraband substance cannot be sustained if the sub-

stance is supplied by the government. Appellee contends

that the failure to comply with Supreme Court Rule

402(c) regarding the factual basis of defendant’s plea

was waived because it was not included in defendant’s

motion to withdraw his guilty plea. Appellant answers

lt I a A tl ot me ee

—

— 23a —

that this claim of error was included in paragraph 6 of

his motion to withdraw his guilty plea. We would recog-

nize this error even if it was not raised in appellant’s

motion, because the failure to comply with Rule 402(c)

constituted a substantial defect in the guilty plea. See

People v. Porter (No. 14651, 4th Dist. 7/14/78); People

v. Lamparter, 56 Ill.App.3d 828, 371 N.E.2d 997.

Under the rationale of People v. Edmonds, 15 Ill.App.

3d 1073, 305 N.E.2d 346, we remand this case to the cir-

euit court of St. Clair County with directions to permit

the defendant to plead anew.

Finding that an opinion in this cause would have no

precedential value we reverse and remand this cause to

the circuit court of St. Clair County pursuant to our

authority under Supreme Court Rule 23 (Ill. Rev. Stat.

1977, ch. 110A, par. 23).

REVERSED AND REMANDED.

Jones, C.E. and Winexanp, E.H., J.J., concurs.

plete aa

In Tue Crecurr Court

TWENTIETH JupiciaL Circuit Or ILLuINo!s

- Sr. Cram County

No. 74-CF-552

Propte Or Tue Strate Or It1inols,

vs.

Rosert Tomas,

Defendant.

COMPETENCY HEARING AND SENTENCING

Aug. 5,

1976

(Filed AUG 5 1976)

Case called for hearing. People represented by

Roza Gossage, Assistant State’s Attorney, De-

fendant present in open court and represented

by Michael Pritzker, his attorney. Defense coun-

sel having filed a Petition to Hold Competency

Hearing, presents evidence in support of said

Motion. Evidence presented by the State. The

Court, having considered all the evidence in the

case, finds the defendant to be competent. As per

plea agreement entered in this case, the Court

hereby sentences the defendant to the Illinois

Department of Corrections for a period of not

less than four years nor more than six years

there to remain until discharged according to

law. Mittimus ordered to issue.

/s/ Hon. Robert L. Gagen

Circuit Judge

—s

—

In THe Crrcurr Court

TwentieTH JupiciaL Circuit Or ILurwors

Sr. Cuar County

No. 74-CF-552

Prope Or Tue State Or Ituinois,

RoBERT

vs.

THOMAS,

Defendant.

Charge: Unlawful Del. of Cont. Sub.

ORDER

(Filed Oct 1 1976)

Case called for hearing on Motion to Vacate and

Set Aside Plea. People represented by Roza

Gossage, Assistant State’s Attorney. Defendant

represented by Marvin Glass, his attorney. Motion

presented and argued. Motion denied.

/s/ Hon. Robert L. Gagen

Circuit Judge

_—

APPENDIX B

TABLE OF CASES

Boykin v. Alabama, 395 U.S. 238 (1969).

Brookhart v. Janis, 384 U.S. 2 (1966).

Gideon v. Wainwright, 372 U.S. 335 (1962).

Johnson v. Zerbst, 304 U.S. 1019 (1938).

McMann v. Richardson, 397 U.S. 759 (1970).

North Carolina v. Alford, 400 U.S. 25 (1970).

Powell v. Alabama, 287 U.S. 45 (1932).

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Waley v. Johnston, 317 U.S. 964 (1942).