# Petition — Thomas v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 929

## Text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1576%3A1. Public record. Not legal advice.