Petition — Lane v. Williams

No.

IN THE

Supreme Court of tye Bnited States

OcTOBER TERM, 1980

MICHAEL P, LANE,

Petitioner,

v.

LAWRENCE WILLIAMS and OSCAR SOUTHALL,

Respondenis.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, Jr.,

MICHAEL B. WEINSTEIN,

Assistant Attorneys General,

188 W. Randolph St.,

Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Petitioner.

Printed by the Authority of the State of Ilinois— 1-81-40.

i

QUESTIONS PRESENTED FOR REVIEW

Whether the decision of the United States Court of Ap-

peals for the Seventh Circuit directly conflicts with this Court’s

recent decision in United States v. Timmreck.

Whether the Court of Appeals acted incorrectly in retro-

actively applying its prior decision in United States ex rel.

Baker v. Finkbeiner to the instant case.

+.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. ..........

FD IE CIOS BENET EOP sichitccantnenvcecsscvnvenesesoscensennte

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI .............::ccse0eseees

STATES v. TIMMRECK ...........00ce0e0000e |

Il. THE COURT OF APPEALS’ DECI-

SION IN UNITED STATES EX REL.

BAKER v. FINKBEINER SHOULD

NOT BE - APPLIED’ RETRO-

FU BE TES crcecnnincesinenesesvsesiinctsmmanpeantinns

eI TT ittcositscbstestnlacniwinssossovstsintctiviievisevneoben

APPENDIX

THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT DIRECTLY

CONFLICTS WITH THIS COURT'S

RECENT DECISION IN UNITED

United States ex rel. Williams v. Morris, 633

Be ee FO FUN Gaels CUED srererssvniccnincnisabaesinienes

TABLE OF AUTHORITIES

CASES:

Bachner v. United States, 517 F. 2d 589 (7th Cir.

Bailey v. Holley, 530 F. 2d 169 (7th Cir. 1976) .......

Boykin v. Alabama, 395 U.S. 238 (1969) 0.0...

Halliday v. United States, 394 U.S. 831 (1969)......

McCarthy v. United States, 394 U.S. 459 (1969) ...

People v. Irons, 54 Ill. App. 34 50, 369 N. EF. 2d

es CIID aitececterielinteemstatendcorscdatstiesinnnnes

People v. Krantz, 58 Ill. 2d 187, 317 N. E. 2d 559

iat NI ses catch cacnneeinldnbtinsiinniinciasaeesaccmndeliacin

People v. Wills, 61 Ill. 2d 105, 330 N. E. 2d 505

Robinson v. Neil, 409 U.S. 505 (1971 )..........cceccceeee

Stovall v. Denno, 388 U.S. 293 (1967) .........:ccccceeee

Timmreck v. United States, 577 F. 2d 372 ( 6th Cir.

Timmreck v. United States, 423 F. Supp. 537 (E.

Bk BNA OT ddidosditninhasnincudtnbantcishgnimsoniigiaentitiieniinee

United States ex rel. Baker v. Finkbeiner, 551 F.

Ee Pe He TED viectastctsinnninnidetonndhadebosunanens

United States ex rel. Flowers v. Illinois Parole and

Pardon Board, No. 78 C 1000 (N. D. Ill. )...........

United States ex rel. Hughes v. Rundle, 419 F. 2d

De Es EE ins setetenencssincseccececudninonsenseenin

United States ex rel. Williams v. Morris, 633 F. 2d

Pe eS I ieiitilic tactile icnsecepnstianiumsepnsescanidenene

United States ex rel. Williams v. Morris, 594 F. 2d

Be I I bce aiatsheciiseniéoomntouventnsnstsaannionnniis

PAGE

9, 10, 15

13

12, 14, 15

14, 16

16

15, 16

15

11, 12, 13,

15, 16

13

14

9

9

10, 11, 13,

14, 15,

16, 17

16

15

| | PAGE

United States ex rel. Williams v. Morris, 483 F.

Supp. 775 (N. D. Ill. 1980) ( Williams 11) .......... 1,2

United States ex rel. Williams v. Morris, 447 F.

Supp. 95 (N.D. Ill. 1978) ( Williams 1) ..........004.. 2, %

17

United States v. Timmreck, 441 U.S. 780 (1979)... 8, 9, 10,

11

Williams v. United States, 401 U.S. 646 (1971)... 13

STATUTES:

eee ID EI Paccsssccncsanseasoncencensssenasionte 8

Ee i a A I TDi thasccctcenscecndenacasscossocianonssteccbbess 2

IN ii NICD F cr landaenaleeisccnivacnasesesscnncossotonsbien 2

a cece slins cachsaindinnnivenanccnipiannhisceaencnntiaiiogs 7,10

Be ee Tate csstcehevdasmreiadabiattemiientsscssntsincatscsoniooend 8, 10

Jil. Rev. Stat. 19TS, ch. 3B, § WG) ....cerccccscsssccscsesssore 4, 6

Til. Rev. Stat., 1975, ch. 38, § 1005-8-1(b)(3)........ 4, 6

Ill. Rev. Stat., 1975, ch. 38, § 1005-8-1(c)(3)......... 4,6

Ill. Rev. Stat., 1973, ch. 38, § 1005-8-1(e) .............. 3,12

Ill. Rev. Stat., 1975, ch. 38, § 1005-8-1(e)(2) ........ 4,6

Ill. Rev. Stat., 1975, ch. LIOA, § 402 ...........ceeeeeeee 12, 15

Jil. Rev. Stat., 1977, ch. 38, § 1005-8-1 000s... 5

MISCELLANEOUS:

Fed. Rules Crim. Proc. Rule 11 ...............:cssccseeeeeeees 8,9

Ill. Ann. Stat. ch. LIOA, § 402 (Smith-Hurd)

CIOS TIRED Do cccccccceccccccscceseseseccessscccess 12

Supreme Court Rule 17( 1)(a)........cscccscssssssessessseees 17

Supreme Court Rule 17(1)(C) .......:cscsscssssssessessseees 11

Supreme Court Rule 21.1( B) .......ccccsssssscesscscssessees |

Supreme Court of the United States

OcToBErR TERM, 1980

GAYLE FRANZEN,

Petitioner,

v.

LAWRENCE WILLIAMS and OSCAR SOUTHALL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

This Petition seeks review of the decision of the United

States Court of Appeals for the Seventh Circuit as it pertains to

respondents Lawrence Williams and Oscar Southall. United

States ex rel. Williams v. Morris, 633 F. 2d 71 (7th Cir. 1980).

The Court of Appeals’ decision affirmed in part and reversed in

part the decision and judgment of the United States District

Court, Northern District of Illinois, Eastern Division, which

granted respondents’ applications for Writs of Habeas Corpus.'

United States ex. rel. Williams v. Morris, 483 F. Supp. 775

(N. D. Ill. 1980).

1Since the Court of Appeals ruled in favor of Petitioner with

regard to a third individual (i.e., Emanuel Williams), review is not

sought as the decision pertains to him. See Supreme Court Rule

21.1(b).

2

As noted in the Court of Appeals’ decision, the Petitions

for Writs of Habeas Corpus had been consolidated in the

District Court, which originally ruled in favor of the respond-

ents in 1978. The District Court’s ruling was based upon a

finding that respondents’ fourteenth amendment due process

rights were violated by the failure to inform them of a three

year mandatory parole term which would automatically attach

to the penitentiary sentences respondents received as part of

negotiated plea agreements. United States ex rel. Williams v.

Morris, 447 F. Supp. 95 (N. D. Ill. 1978) (hereinafter referred

to as “Williams I’). Subsequently, however, the Court of

Appeals reversed that decision, holding that respondents had

failed to exhaust an available state court remedy. United States

ex rel. Williams v. Morris, 594 F. 2d 614 (7th Cir. 1979).

Upon remand to the District Court, respondents renewed

their requests for expungement of their mandatory parole

terms, contending that an intervening Illinois Supreme Court

decision conclusively demonstrated that resort to the state

courts was futile. The District Court agreed and, for the

reasons set forth in Williams I, granted the relief sought.

United States ex rel. Williams v. Morris 483 F. Supp. 776

(N. D. Ill. 1980) (hereinafter referred to as “Williams I1’’). It

is from the Court of Appeals’ decision in Williams I] that the

petitioner now seeks a Writ of Certiorari.

JURISDICTION

The Court of Appeals’ decision was rendered on October

22, 1980. No Petition for Rehearing was filed in that Court.

This Petition is being filed within 90 days of the date of the

Court of Appeals’ decision as per 28 U.S. C. §2101(c). This

Court’s jurisdiction is invoked under 28 U. S. C. § 1254(1).

3

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The fourteenth amendment to the Constitution of the

United States provides, in pertinent part, that:

No State shall... deprive any person of life, liberty, or

property, without due process of law;....

Ill. Rev. Stat., 1973, ch. 38, § 1005-8-1(¢) provides that:

Every indeterminate sentence shall include as though

written therein a parole term in addition to the term of

imprisonment. Subject to earlier termination under Sec-

tion 3-3-8, the parole term shall be as follows:

(1) for murder or a Class | felony, 5 years;

(2) for a Class 2 felony, or a Class 3 felony, 3

years;

(3) for a Class 4 feiony, 2 years.

4

STATEMENT OF THE CASE

The factual situations in each of the two cases are set forth

below according to the names of each of the respondents

involved.

LAWRENCE WILLIAMS

On March 11, 1975, respondent Lawrence Williams pled

guilty in the Circuit Court of Cook County, Illinois (No. 74-

3339) to a single charge of burglary. At that time, burglary

carried a penalty of one to twenty years imprisonment followed

by three years mandatory parole. J/l. Rev. Stat., 1975, ch. 38,

§§ 19-1, 1005-8-1(b)(3), 1005-8-1(c)(3), 1005-8-1(e)(2).

Under the terms of a plea agreement between Williams’ public

defender and the prosecutor, Williams was to receive an

indeterminate sentence of f-om one to two years in prison. The

trial judge was a party to the conference at which the plea

agreement was finally struck. (L. Williams, R. 6, Ex. A, pp. 2

and 3).2

Before accepting the plea, the trial judge admonished the

defendant of the consequences of his plea. (L. Williams, R. 6,

Ex. A, pp. 3-14). He had the prosecutor repeat the terms of the

plea bargain in open court and elicited Williams’ understanding

and acceptance of its terms. (L. Williams, R. 6, Ex. A, p. 4).

The trial judge also indicated that, pursuant to the plea

agreement, the court had agreed to accept the sentencing

recommendation of the State, conditioned upon the truth of the

2 The various documents constituting the records on appeal in the

Seventh Circuit have been marked in each case by the District Court

clerk. Unless the Appendix used in the Court of Appeals is being

referred to, the designation (Name, R. Ex. p. )

will be used throughout this brief to designate the case, document

number, and page of the document referred to. References to the

Appendix will be in the following manner. (A. —__).

5

factual information supplied to the court concerning the de-

fendant. (L. Williams, R. 6, Exhibit A, p. 5). The transcript

contains no statement by the court, the prosecutor or the public

defender that the recommended sentence included a mandatory

parole term.

The judge then received Williams’ acknowledgment that

he understood the nature of the charges and understood his

constitutional rights to remain silent, to be tried before a jury, to

be proven guilty beyond a reasonable doubt, and to confront

and cross-examine witnesses. (L. Williams, R. 6, Ex. A, pp. 5-

10). A factual basis for the plea was established and Williams

indicated that he understood that by pleading guilty he admit-

ted those facts. (L. Williams, R. 6, Ex. A, pp. 10-11). The trial

judge then described the potential statutory penalty for the

charged offense, omitting any mention of a mandatory parole

term. (L. Williams, R. 6, Exhibit A, pp. 12-13). After hearing

evidence in aggravation and mitigation, the trial court sen-

tenced Williams to not less than one nor more than two years in

prison.

Lawrence Williams was imprisoned until May 20, 1976,

when he was released on parole having served approximately

seventeen months in prison. Williams stated in his Petition for

Writ of Habeas Corpus that he was unaware that a mandatory

parole term attached to his sentence until approximately two

months prior to his discharge. (L. Williams, R. 1, p. 4). While

serving his three year mandatory parole term, respondent was

arrested and subsequently found to be a parole violator.

Williams had been reincarcerated at Stateville Correctional

Center, Joliet, Illinois, when the original Writ of Habeas Corpus

was issued. See Williams I, 447 F. Supp. 95. Before the denial

of a Motion to Reconsider in Williams I took effect, the

respondent was released on six months mandatory release on

February 1, 1978, pursuant to Jil. Rev. Stat., 1977, ch. 38,

§1005-8-1. This revised law also had the effect of reducing

Williams’ parole term from three to two years. Williams’

*

6

period of mandatory release expired on August 1, 1978, at

which time he was released from the custody of the Illinois

Department of Corrections. In sum, respondent served approx-

imately twenty-eight months in prison.

OSCAR SOUTHALL

On March 19, 1975, respondent Southall, like respondent

Williams, pled guilty in the Circuit Court of Cook County,

Illinois (No. 75-228) to one count of burglary. At that time,

burglary carried the same penalty of one to twenty years

imprisonment followed by three years mandatory parole. Jil.

Rev. Stat., 1975, ch. 38, §§ 19-1, 1005-8-1(b)(3), 1005-8-

1(c)(3), 1005-8-1(e)(2). Pursuant to a plea agreement

between Southall’s public defender and the prosecutor, Southall

was to receive an indeterminate sentence of from one to three

years. This agreement was reached at a conference in which

the trial judge was present and had indicated that he would

sentence the defendant to one to three years. (O. Southall, R.

6, Ex. A, pp. 2, 5, 6).

The transcript reveals that neither the trial judge nor the

attorneys disclosed the existence of the mandatory parole term

during their discussion of either the plea agreement or the

possible sentence which could be imposed.

The trial judge explained to Southall that by pleading

guilty he waived his constitutional rights to a trial by jury and to

confront and cross-examine witnesses. (O. Southall, R. 6, Ex.

A, p. 4). The judge received Southall’s acceptance and

acknowledgment of these consequences. (O. Southall, R. 6, Ex.

A, p. 4). Southall responded negatively to the question of

whether his guilty plea had been induced by force, duress,

threats or promised rewards. (O. Southall, R. 6, Ex. A, p. 4).

The judge next described his conversation with Judge Strzalka,

who had previously placed Southall on two years probation in

May, 1974, for an earlier offense. After being advised of the

7

pending charge and the plea negotiations, Judge Sirzalka

reportedly stated that if Southall pled guilty to the burglary

charge, he (Judge Strzalka) would either find a violation of

probation and impose a concurrent sentence for the same term,

or would order the probation revoked and terminated as

unsatisafctory. (O. Southall, R. 6, Ex. A, pp. 5, 6). (At the

probation hearing on June 10, 1976, Judge Strzalka took the

second option and terminated Southall’s probation as

unsatisfactory. )

At this time, the trial judge stated that as a result of a

pretrial conference, the court would impose the sentence which

had been discussed. (O. Southall, R. 6, Ex. A, p. 6). Finally,

after establishing a sufficient factual basis for the plea, the trial

court accepted the guilty plea and sentenced Southall to an

indeterminate term of one to three years in prison. (O.

Southall, R. 6, Ex. A, pp. 7-9).

Southall was imprisoned until September 22, 1975, when

he completed his prison sentence (less time off for good

behavior) and was released on parole having served approxi-

mately eleven months in prison. He was declared a parole

violator on October 8, 1976, and was reincarcerated pursuant to

the three year mandatory parole provisions implicit in his

Original sentence. Respondent Southall was subsequently re-

paroled and discharged from the custody of the Illinois Depart-

ment of Corrections as of October 24, 1979. He had served

approximately twenty-three months in prison.

As previously noted, both Williams and Southall subse-

quently filed Petitions for Writs of Habeas Corpus, pursuant to

28 U.S.C. § 2254, in the United States District Court, Northern

District of Illinois, Eastern Division.

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

THE DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT DIRECTLY

CONFLICTS WITH THIS COURT’S RECENT DECI-

SION IN UNITED STATES v. TIMMRECK.

This Court, in its recent decision in United States v.

Timmreck, 44} U.S. 780 (1979), ruled that a federal offender

may not receive collateral relief from a guilty plea based upon a

failure to advise him of the mandatory special parole term

required by 21 U. S. C. § 841(b)(1)(A). In Timmreck, the

defendant, acting on advice of counsel, pled guilty to a charge

of conspiracy to distribute various controlled substances. As

required by Fed. Rules Crim. Proc. Rule 11, the District Judge

formally addressed the defendant and determined that there

was a factual basis for the plea and that he was acting

voluntarily. The judge admonished the defendant that he could

receive a sentence of up to 15 years imprisonment and a

$25,000 fine; however, he failed to advise the defendant of the

mandatory special parole term of at least three years.

The District Judge accepted the guilty plea and, at a later

proceeding, sentenced the defendant to 10 years imprisonment,

plus a mandatory special parole term of 5 years, and a fine of

$15,000. Pursuant to a plea bargain with the prosecutor, other

charges against the defendant were dismissed. No objection to

the sentence was raised at that time and the defendant did not

take a direct appeal from his conviction.

Approximately two years later, the defendant moved to

vacate the sentence pursuant to 28 U. S. C. § 2255 on the

ground that the trial judge had violated Rule 11 by accepting

his plea without informing him of the mandatory special parole

term. Following an evidentiary hearing, the District Court

9

denied Timmreck’s motion. Timmreck v. United States, 423 F.

Supp. 537 (E. D. Mich. 1976). The District Court recognized

that a violation of Rule 11 had occurred but, relying heavily on

Judge (now Justice ) Stevens’ concurrence in Bachner v. United

States, 517 F. 2d 589 ( 7th Cir. 1975), concluded that collateral

relief was not justified since the defendant had received a

sentence within the maximum described to him at the time the

guilty plea was accepted and thus he had not suffered any

prejudice. 423 F. Supp. at 539-540.

The Sixth Circuit Court of Appeals reversed. Timmreck v.

United States, 577 F. 2d 372 (6th Cir. 1978). That court held

that a violation of Rule 11 will support a collateral attack on a

guilty plea even where there is neither constitutional error nor

any showing of prejudice to the defendant. Jd. at 375-377,

As previously noted, this Court reversed the Sixth Circuit's

decision in a unanimous opinion authored by Mr. Justice

Stevens. The gist of this Court's holding was that a violation of

Rule 11 is neither constitutional nor jurisdictional. Moreover,

the opinion went on to state that:

Nor can any claim reasonably be made that the error here

resulted in a “complete miscarriage of justice” or in a

proceeding “inconsistent with the rudimentary demands of

fair procedure.” [ Hill vy. United States, 368 U.S. 424, 428

(1962).] Respondent does not argue that he was actually

unaware of the special parole term or that, if he had been

properly advised by the trial judge, he would not have

pleaded guilty.

United States vy. Timmreck, 441 U.S. at 784.

Similarly, neither of the petitioners in the instant case has

alleged that had he been properly advised of the mandatory

parole term he would not have pled guilty. (L. Williams, R. 1,

p. 4; 0. Southall, R. 4, p. 4). Additionally, the combined prison

and parole terms given to each respondent are within the

maximum penalty which could have been assessed and the

record reflects the respondents’ awareness of this fact. See

10

Williams I, 447 F. Supp. at 100, 101. Indeed, even allowing for

the time served upon reincarceration, respondent Southall was

actually required to serve only twenty-three months of actual

imprisonment as opposed to the maximum three year sentence

which he was given by the trial court. (O. Southall, R. 6, Ex. A,

pp. 2, 10)

Petitioner is of course, aware of the fact that Timmreck

was decided pursuant to federal statutory law (i.e., 28 U.S.C.

§ 2255), while the decision in the instant case was grounded

upon constitutional law. However, if the federal courts are not

to grant collateral relief under § 2255, it stands to reason that

they should refrain from imposing constitutional standards

upon the states pursuant to 28 U.S.C. § 2254 where the issue in

question is identical.

As Mr. Justice Stevens has noted:

... the concern with finality served by the limitation on

collateral attack has special force with respect to con-

victions based on guilty pleas.

“*Every inroad on the concept of finality undermines

confidence in the integrity of our procedures; and, by

increasing the volume of judicial work, inevitably delays

and impairs the orderly administration of justice. The

impact is greatest when new grounds for setting aside

guilty pleas are approved because the vast majority of

criminal convictions result from such pleas. Moreover, the

concern that unfair procedures may have resulted in the

conviction of an innocent defendant is only rare!» rz‘sed by

a petition to set aside a guilty plea.’”

United States v. Timmreck, Id. (Citation omitted ).

3 Respondent Williams actually served approximately twenty-

eight months in prison or only four months more than the maximum

sentence which he was given. At least in Southall’s situation it may

well be that the Court of Appeals erred in applying the rule

enunciated in United States ex rel. Baker v. Finkbeiner, 551 F.2d 180

(7th Cir, 1977), rather than that contained in Bachner vy, United

States, 517 F.2d 589, $97 (7th Cir. 1975).

It is, therefore, submitted that certiorari should be granted

so that this Court can correct the Court of Appeals’ failure to

properly apply the holding of United States v. Timmreck, supra,

to the instant Petitions. See Supreme Court Rule 17(1)(c).

Moreover, it is submitted that using the 7Jimmreck guidelines,

neither of the respondents herein is entitled to federal habeas

corpus relief.

THE COURT OF APPEALS’ DECISION IN UNITED

STATES ex rel. BAKER V, FINKBEINER SHOULD NOT

BE APPLIED RETROACTIVELY.

In United States ex rel. Baker v. Finkbeiner, 551 F.2d 180

(7th Cir. 1977), the Court of Appeals held that where a felony

defendant is not informed of a mandatory parole term at the

time he enters a guilty plea, the plea is “unfairly induced in

violation of the Due Process Clause.” /d. at 184, The opinion in

that case went on to state that:

[t}he difference between the three or four years in

custody he [i.e., the petitioner] did receive and the one to

two years in custody he was told he would receive is

substantial enough to justify a finding that he was unfairly

compelled to accept the detrimental elements of his bar-

gain without realizing its benefits. Jd.

The Court of Appeals proceeded to release Baker from custody,

reasoning that he had performed his part of the plea bargain

(i.¢., imprisonment of up to two years) and the State, having

had custody of Baker for some thirty-two months, must there-

fore perform its side of the bargain, /d.

Petitioner herein submits that the decision in Baker should

be given prospective application only and should not have been

applied to the instant guilty pleas which were entered long

before Baker was decided or even the related Illinois Supreme

Court case of People v. Wills, 61 Ull.2d 105, 330 N.E.2d 505

(1975).

12

A.

Wills Set Forth A New Rule Of Procedure — Baker Raised It

To A Constitutiona! Level.

The State of Illinois adopted, in 1970, Supreme Court Rule

402 (Jil. Rev. Stat., 1975, ch. 110A, § 402) which governs the

procedure by which a plea of guilty is accepted in the state

courts. Rule 402 requires that before any defendant may plead

guilty to a charge he must be admonished of the constitutional

rights which he waives by such a plea. As the Committee

Comments to the rule make clear, this requirement was in-

stituted to assure compliance with the decision of Boykin v.

Alabama, 395 U.S. 238 (1968). Ill. Ann. Stat. ch. LIOA, § 402

(Smith-Hurd) (Committee Comments).

Rule 402 has served its purpose, providing clear, on the

record evidence of the knowing and voluntary nature of

thousands of guilty pleas. Then, on January 1, 1973, the Illinois

Mandatory Parole Act [J/l. Rev. Stat., 1973, ch. 38, § 1005-8-

1(e)] took effect, imposing terms of parole on all persons

convicted of a felony, whether they were convicted at trial or by

virtue of their own plea. Soon, several Illinois courts began

receiving challenges similar to those involved in the case at bar,

as the Illinois courts began to face the problem of whether Rule

402 admonitions were sufficient to assure the knowing and

voluntary nature of a guilty plea. These challenges were

squarely met and answered by the Illinois Supreme Court in its

opinion in People v. Wills, supra.

In Wills, the Illinois Supreme Court reversed a lower court

opinion holding the Mandatory Parole Act unconstitutional.

The Court recognized that the Act may, in certain circum-

stances, be susceptible of unconstitutional application, but ruled

that the law on its face was nevertheless valid. 330 N.E.2d at

507-8. In a supplemental opinion, the Court declined to rule

that the absence of admonitions about mandatory parole would

render a guilty plea invalid per se, and instead held that each

13

case should be judged on its own facts. However, to prevent

further confusion among the Illinois trial courts, the Supreme

Court ruled that from that date (i.e., May 19, 1975) forward,

admonitions must directly discuss mandatory parole. 330

N.E.2d at 508-9. This ruling was made in light of Petitions for

Rehearing filed by both the State and the defendant which

discussed the question of retroactivity. Wéills thus set forth a

new rule of criminal procedure designed to provide greater

protection for future defendants.

Subsequently, however, in United States ex rel. Baker v.

Finkbeiner, supra, decided on March 17, 1977, the Court of

Appeals for the Seventh Circuit held that a failure to admonish

a defendant concerning the mandatory parole term had the

effect of rendering a guilty plea involuntary—in violation of the

due process clause of the fourteenth amendment. In so holding,

Baker reaffirmed the new rule of procedure announced in Wills

but, in addition, raised it to constitutional status.

Only Procedures Which Affect The Integrity Of The Fact-

Finding Process Should Automatically Be Applied Retro-

actively.

Where a new rule of procedure has been established, this

Court has provided full retroactivity, as a threshold matter, in

situations where: 1) the new rule remedies a significant or a

substantial defect in the fact-finding process at trial, a defect

which raises serious questions about the accuracy of guilty

verdicts in past trials, Williams v. United States, 401 U.S. 646,

653 (1971); Bailey v. Holley, 530 F.2d 169, 172 (7th Cir.

1976); and 2) where the new rule accords constitutional

immunity to conduct which had previously been penalized.

Robinson v. Neil, 409 U.S. 505, 509 (1971). Only the first

situation is potentially applicable here.

14

Petitioner submits that the procedure by which a manda-

tory parole admonishment is, or is supposed to be, given, bears

no relationship to the integrity of the fact-finding process of a

criminal trial. As the rule announced in Baker concerns only

the procedure in the guilty plea proceedings, it need not receive

automatic retroactive application under the above-mentioned

standard.

Cc.

Baker Should Not Be Applied Retroactively Under The

Criteria Guiding Such An Application.

Assuming Baker is not entitled to automatic retroactive

application, the next step which this Court must take to

determine whether the decision should be applied retroactively

involves a balancing process. This Court, in an opinion which,

coincidently, held that new rules governing guilty pleas in

federal courts should only be applied prospectively, described

the criteria guiding resolution of the retroactivity question as

involving: 1) the purpose of the new rule; 2) the extent of

reliance upon the old rule; and 3) the effect retroactive

application would have upon the administration of justice.

Halliday v. United States, 394 U.S. 831, 832 (1968); See Stoval

v. Denno, 388 U.S. 293, 297 (1967).

With respect to the first of these three criteria, it is clear

that the main purpose of Baker is designed to assure that judges

give on-the-record admonitions to defendants who plead guilty

pursuant to a plea bargain, emphasizing the effect that the

mandatory parole term has on their sentence. In holding that

the lack of such an admonishment constituted a violation of due

process, the District Court cited the case of Boykin v. Alabama,

395 U.S. 238 (1969).4 Boykin provided that it was reversible

4The Court of Appeals, agreeing with both the reasoning and

conclusion of the District Court on this issue, adopted that Court's

opinion as its own. United States ex rel. Williams v. Morris, 633 F.2d

at 77.

15

error for a trial court to accept a guilty plea without an

affirmative showing, on-the-record, that the plea was made

intelligently and voluntarily. Boykin has not been applied

retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d

116 (3rd Cir. 1969). Neither should Baker.

As for the second factor, Illinois trial courts quite properly

relied upon Illinois Supreme Court Rule 402 as the complete

standard which had to be met in accepting guilty pleas. These

courts had been accepting guilty pleas with the justifiable belief

that the Constitution was satisfied once a defendant was told of

the constitutional rights he waived by pleading guilty. Compare

Boykin v. Alabama with Ill. Rev. Stat. 1975, ch. 110A, § 402.

No case law existed which would have foretold the result in

Baker. No Illinois Supreme Court case prior to Wills dealt with

the specific due process implications of mandatory parole. The

first time the Illinois trial courts would have become aware of

the requirement that defendants must be admonished con-

cerning the mandatory parole term would have been on May

19, 1975, when the Illinois Supreme Court handed down its

opinion in Wilis.5 There, the Court made clear its command

that from that date forward full admonitions must be given, but

specifically recognized, as this Court must as well, that there

was a great deal of justified reliance upon Supreme Court Rule

402 throughout the Circuit Courts of Illinois and that the extent

of this reliance weighed heavily against any attempt to fashion

a retroactive rule governing past proceedings. 330 N.E.2d at

508-509; See also People v. Irons, 54 Ill. App. 3d 50, 369

5 In particular, it must be noted that the Illinois Supreme Court,

prior to Wills, had indicated that an admonishment as to the

mandatory parole term need not be given to a defendant who wished

to plead guilty. People v. Krantz, 58 lll. 2d 187, 195, 317 N.E.2d 559

(1974). Illinois trial courts certainly were entitled to rely upon Krantz

since it appeared to be “on all fours” regarding the question of

admonishment as to the mandatory parole term.

Among the federal courts, no Seventh Circuit cases intimated

that the rule in Baker was coming; indeed, if anything, the case law

would have given the impression that the Baker case would be

decided the other way. Cf. Bachner v. United States, supra.

16

N.E.2d 558, 560 (Sth Dist. 1977). The interests of justice

require that similar considerations should govern the effect to

be given the Baker decision.

Finally, the effect a retroactive application would have on

the administration of justice would be devastating since every

felony plea accepted since the enactment of the mandatory

parole term until March 17, 1977, could be questioned. See

Halliday v. United States, 394 U.S. 831 (1968) [giving

McCarthy v. United States, 394 U.S. 459 (1969), prospective

application only].

The mandatory parole concept discussed in Baker took

effect across the State of Illinois on January 1, 1973. On May

19, 1975, the Illinois Supreme Court’s Wills opinion first set

forth the requirement that admonitions must be given regarding

the parole term. Therefore, if Baker were only to be given

retroactive effect to those cases arising prior to the Wills

decision, it could potentially apply to a// negotiated felony

guilty pleas entered throughout Illinois during 1973, 1974 and

the first 20 weeks of 1975. Illinois Courts’ Administrative

Office Statistics for one of these years, 1974, shows that 13,571

persons were convicted of felonies in Illinois. Of that number,

over 90%, or 12,370 convictions, were obtained following a plea

of guilty. This would mean that within that period, all prisoners

whose pleas did not comport with Baker’s guidelines could

collaterally attack their convictions, unless the State moves

quickly to void their mandatory parole terms—an act which is

hardly conducive to promoting the legitimate public policy ends

that the statute protects.

6 Since the Court of Appeals chose to make Baker fully retro-

active, all felony guilty pleas entered between January |, 1973 and

March 17, 1977 (the day Baker was decided), are now open to

collateral attack. Indeed, a class has already been certified in the

pending case of United States ex rel. Flowers v. Illinois Pardon &

Parole Board, No. 78 C 1000 (N.D. Ill.)

17

The other alternative, suggested by the District Court, is

for the State to procure the transcript of the guilty plea in a

given case, determine the terms of that plea, and adhere to

those terms accordingly. Williams 1, 447 F. Supp. at 107-108.

The District Court, in so suggesting, assumes that there is a

readily available state court transcript, from which the exact

terms of the plea can be discerned.

There are two problems with this. A defendant who

pleads guilty is not likely to have appealed his conviction; for

example, neither of the respondents in the instant case has done

so. Thus, in order to obtain the transcript in each case, the state

must go to the clerk of each court in which the plea was

accepted and order the plea proceedings to be transcribed. (It

is not the custom to automatically transcribe such proceedings

at the time guilty pleas occur, unless an appeal is sought.)

Furthermore, once the transcript is found, the reviewing court

must strictly scrutinize the nature of each admonishment given

in every plea of guilty, to determine the sufficiency of the

admonishment.

While respondents do not argue that the federal courts

should not act on constitutional issues, this Court is urged to

give recognition to the fact that the highest court in Illinois was

squarely faced with the retroactivity issue in May of 1975, and

that it found, using the same criteria that this Court must use,

that the extent of reliance by the Illinois trial courts, and the

burden which would face the judicial system, was too great to

afford retroactive application of the rule requiring that defend-

ants be warned of the mandatory parole term.

Given the foregoing considerations, it is respectfully sub-

mitted that certiorari be granted so as to allow this Court to

review the Court of Appeals’ erroneous and unjustified decision

to apply its prior decision in United States ex rel. Baker v.

Finkbeiner, supra, retroactively to the case at bar. See Supreme

Court Rule I 17(1)(a).

18

CONCLUSION

For the foregoing reasons, petitioner prays that this Court

grant the instant Petition for Writ of Certiorari and, upon

review, reverse that portion of the Court of Appeals’ decision

which granted habeas corpus relief to the respondents.

Respectfully submitted,

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, JrR.,

MICHAEL B. WEINSTEIN,

Assistant Attorneys General,

188 W. Randolph St.,

Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Petitioner.

APPENDIX

la

an the

United States Court of Appeals

Bor the Seventh Cirentt

No. 80-1296

UNITED STATES OF AMERICA ex rel. LAWRENCE

WILLIAMS, OSCAR SOUTHALL and EMANUEL WILLIAMS,

Petitioners-A ppellees,

v

ERNEST Morris, Warden, Stateville Correctional

Center; THADDEUS E. PINKNEY. Warden, Pontiac Cor-

rectional Center; and PEOPLE OF THE STATE OF IL-

LINOIS,

Respondents-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 77 C 2402, 77 C 2184 and 77 C 1937—Prentice H. Marshall, Judge.

ARGUED SEPTEMBER 16, 1980—DECIDED OCTOBER 22, 1980

Before CUMMINGS, SPRECHER and BAUER, Circuit

Judges.

CUMMINGS, Circuit Judge. Petitioners, who pleaded

guilty in their state court criminal prosecutions, sought

writs of habeas corpus claiming that state judges

violated petitioners’ Fourteenth Amendment rights by

failing to inform them that a mandatory three-year

parole term would automatically attach to the sentences

they were promised under plea eements. The

titions were consolidated below, and District Judge

rentice Marshall, finding United States ex rel. Baker v.

2a

No. 80-1296

Finkbeiner, 551 F.2d 180 (7th Cir. 1977), controlling,

held that petitioners were entitled to relief. 447 F. Supp.

95 (N.D. Ill. 1978) (Williams J).

On appeal, this Court reversed, holding that

petitioners had failed to exhaust an available state court

remedy. 594 F.2d 614 (7th Cir. 1979).' Petitioners

thereafter renewed their requests for expungement of

their mandatory parole terms, contending that a subse-

quent Illinois Supreme Court decision showed con-

clusively that no state court remedy was available.

Judge Marshall agreed and for the reasons set forth in

Williams I granted the relief sought. 483 F. Supp. 776

(N.D. Ill. 1980) (Williams ID). The State appeals on the

merits.2 We affirm in part and reverse in part.

I

Lawrence Williams

Petitioner Lawrence Williams pleaded guilty in the

Circuit Court of Cook County on March 11, 1975, to a

single charge of burglary, which at the time carried a

penalty of one to twenty years imprisonment plus a

mandatory three-year parole term. Ill. Rev. Stat. Ch. 38,

§§ 119-1, 1105-8-1(bX3), 1005-8-1(eX3), 1005-8-1(eX2). Un-

der the terms of a plea agreement reached by Williams’

public defender and the prosecutor, Williams was to

' We also held that the petitions were not moot by reason of

the fact that two of the a had completed their entire

sentence periods including the added parole term and _ the

other had been discharged in compliance with the order of the

district court because there remained collateral consequences

which might have lingering effects since all three petitioners

were found puilty of parole violations. 594 F.2d at 615. See

Carafas v. Velle, 391 U.S. 234, 238-240; Sibron v. New

York, 292 U.S. 40, 50-58.

* The State does not agree with Judge Marshall's conclusion

on the exhaustion question but does not raise it on appeal

because “none of the petitioners are presently in the custody of

the Illinois Department of Corrections * * * [and] are,

therefore, precluded, by Illinois law, from filing a post-

conviction petition” (Br. 12).

3a

No. 80-1296

receive an indeterminate sentence of one to two years in

prison.

Before acces the guilty plea, the trial judge ad-

monished illiams of its consequences, elicited

Williams’ ee and acceptance of the terms of

the plea agreement, and indicated that the court would

accept the recommended sentence. The judge then

received Williams’ anne «sna that he understood

the nature of the charges and his constitutional rights. A

factual basis for the plea was established, and Williams

indicated that he understood that by pleading guilty he

admitted those facts. After advising Williams of the

statutory penalty of one to 20 years imprisonment and

hearing evidence in aggravation and mitigation of the

offense, the trial judge sentenced Williams to not less

than one nor more than two years in prison. The

transcript contains no statement by the court, the

prosecutor or the public defender that the recommended

and actual sentence included a mandatory three-year

parole term. Nor does the mandatory parole term

appear on the sentencing order.

Williams completed his sentence on May 20, 1976, and

was at that time released on parole. Williams claimed to

have been unaware of the mandatory ag term until

two months tod to his discharge. While serving the

parole term, Williams was arrested on March 16, 1977,

charged as a parole violator. He was reincarcerated at

Stateville Correctional Center in Joliet, Illinois, on this

charge when the Writ of Habeas Corpus was issued in

Williams I. Before the denial of the State’s Motion to

Reconsider in Williams I took effect, Williams was

released on a six months “mandatory supervisory release

term” on February 1, 1978, pursuant to Ill. Rev. Stat. Ch.

38, § 1005-8-1. This revised law also had the effect of

reducing Williams’ parole term from three to two years.

The period of mandatory release expired on August 1,

1978, at which time Williams was released from the

custody of the Illinois Department of Corrections. He

had been in the custody of the state for three years and

four and one-half months, including 28 months in prison.

4a

No, 80-1296

Oxear Southall

Petitioner Oscar Southall Des a uilty in the Circuit

Court of Cook County on March 19, 1975, to a single

charge of burglary carrying the same penalty of one to

20 years followed by three years of mandatory parole.

Pursuant to the plea agreement reached by his public

defender and the prosecutor and ratified by the court,

Southall was to receive an indeterminate sentence of one

to two years in prison, The proceeding at which the trial

judge accepted Southall's plea and sentenced him to one

to two years in prison does not differ significantly from

the above-described proceeding involving Lawrence

Williams, Again, the transcript contains no statement by

the prosecutor, the public defender or the trial judge

that the recommended and actual sentences included a

mandatory three year parole term, Again, the sentencing

order contains no reference to a mandatory parole term,

Southall completed his sentence and was released on

parole on September 22, 1975, He vas declared a parole

violator on October 8, 1976, and reincarcerated, He was

subsequently re-paroled and eventually discharged from

the custody of the Illinois Department of Corrections on

October 24, 1979, Southall had been in the custody of the

state for approximately four years and seven months, in-

cluding 23 months in prison,

Emanuel Williama

Petitioner Emanuel Williams’ case involves two guilty

pleas, The first was entered on July 31, 1974, in the Cir-

cuit Court of Cook County to a charge of burglary carry-

ing a penalty of one to 2 avers imprisonment plus three

years mandatory parole, Williams was sentenced in ac-

cordance with the prosecution's recommendation to one

to three years in prison.’ There is no indication in the

Tt is not clear from the transcript whether the recommend:

ed and actual sente were made pursuant to a plea agree

ment oF not. Judge Marshall initially foun that the adequacy

the first guilty plea was not ripe for summary judgment,

(Footnote continued on following page)

Sa

No, 80-1296

transcript of the proceedings at which the plea was

entered and Williams was sentenced that he was in-

formed by his attorney, the prosecutor or the court that

he would be subject to a mandatory parole term, There

is no reference to a mandatory parole term in the

sentencing order,

Two days later, on August 2, 1974, Williams entered a

ilty plea in the same court to a charge of theft which,

cause it involved more than $150, carried a penalty of

one to ten years imprisonment and a mandatory three.

year parole term, The guilty plea was entered pursuant

to an agreement between Williams’ attorney and the

prosoeuer ogling for a recommended sentence of one to

hree years in prison, The trial judge, who was not the

same judge as in the July 31 proceeding, accepted the

proseryeten 3 recommendation in sentencing Williams,

ut did not participate in or ratify the pee agreement

erin to accepting Williams’ plea, The judge also warned

illiama that a mandatory parole term was included in

the maximum sentence for the charge to which Williams

sought to plead guilty, He was not told that a mandatory

press term attached to the prison term negotiated by

is attorney and the prosecution,

As a result of the two guilty pleas, Williams was im-

prisoned to serve concurrent sentences of one to three

ears, He was released on parole on August 23, 1976,

ut was returned to prison on December 10, 1976, for a

arole violation, Williams was released again (on a $5,

) recognizance bond) following the decision in

Williama |, His sentence, including the statutory parole

term, expired on September 17, 1978, Williams had

been in the custody of the state for approximately four

years and four and one-half months, including 27

months in prison,

" continued

447 F, Supp. at 105, Subsequently, he must have determined

that the plea was made pursuant to a plea bargain because

his order granted the relie sought wit pect to this plea

( tate’s Br, At A 7). In any event, the State does not ¢ alleng

order with respect to this plea on the basis of the factua

record,

6a

No, 80-1296

In United States ex rel, Baker v, Finkbeiner, aupra,

this Court held that the failure to inform a state

criminal defendant of a mandatory parole term accom:

anying his negotiated prison sentence violated the Due

’rocess Clause of the Fourteenth Amendment, Baker

had pleaded guilty to two criminal charges pursuant to

a plea agreement ratified by the trial court under which

he was told he would receive a sentence of one to two

years in prison, He was never informed by his attorney,

the prosecutor or the court that in actuality his sentence

would include a mandatory two-year parole term, After

his release from prison, Baker was arrested as a parole

violator and reincarcerated, The district court denied

his petition for collateral relief, This Court reversed,

holding that the mandatory parole term constituted a

substantial addition to the one to two years imprison:

ment Baker was promised and that therefore he had

been deprived of the benefit of nia pion bargain in viola

tion of the Due Process Clause, We ordered the parole

term expunged and Baker released from custody,

reasoning that since Baker had performed his part of

the bargain, the state should be held to its promise,

court judge properly advised

prison term and fine but failed to inform him of the

mandatory parole term, The judge accepted Timmreck's

guilty plea and in a later proceeding sentenced him to

ten years in pron pus a parole term of five years and a

fine of $5,000, Timmreck neither objected to the

sentence at the time it was pronounced nor appealed his

conviction, but later moved to vacate the sentence on the

ground that the trial judge had violated Rule 11 by

Ta

No. 80-1296

accepting the plea without admonishing him of the man-

datory parole term. The Supreme Court, reversing the

Sixth Circuit, held that a technical violation of Rule 11

resulting in no prejudice to the defendant and which

could have been raised on direct appeal will not support

collateral relief. In so doing, the Court expressly declin-

ed to decide whether collateral relief “would be

available if a violation of Rule 11 occurred in the context

of other aggravating circumstances.” 47 L.W. at 4579.

Cf. Hill v. United States, 368 U.S. 424.

We think it plain from the foregoing summaries that

the holding in Baker is in no way inconsistent with that

of Timmreck. Unlike Timmreck, Baker involved not

merely a technical violation of proper procedure but a

complete failure to inform the defendant at any time

that he would in fact be in the custody of the state for a

period of three to four years (including parole) rather

than the one to two years he had been promised.

Moreover, unlike Timmreck, whose combined prison and

— terms were within the maximum penalty he had

n warned he could receive and who had never been

romised less than the maximum, Baker was prejudiced

in that he received a sentence calling for two years of

custody (on parole) more than he had bargained for. In

short, the two cases are not only not “on all fours” as the

State acknowledges, but wholly different. We therefore

find no cause to reexamine the decision in Baker.

III

The State’s first alternative argument is that even if

Baker is still good law, it is not applicable on its facts to

the guilty plea of petitioner Southall or the second guilty

lea of petitioner Emanuel Williams.‘ With respect to

outhall, the State contends that since he had bargained

for as much as three years in prison and actually served

‘ The State concedes that Lawrence Williams’ case is factual-

ly indistinguishable from Baker (Br. at 22). As noted, supra

note 3, the State does not challenge the factual applicability of

Baker to Emanuel! Williams’ guilty plea of July 31, 1974.

Sa

No. 80-1296

only 23 months, his case falls outside Baker and within

Bachner v. United States, 517 F.2d 589 (7th Cir. 1975).

In Bachner, we held that the failure to inform a defen-

dant of a mandatory parole term was not an error of

constitutional mage where the sentence imposed

did not exceed the maximum sentence the defendant

was informed he would receive. What distinguishes

Bachner from Baker is, first, that there was no plea

agreement so that the defendant had no basis for expect-

ing anything less than the maximum statutory sentence

when he pleaded guilty and, second, that the sentence

imposed including the mandatory parole term was

within the maximum penalty defendant had been warn-

ed he could receive. Therefore, the defendant in Bachner

was not prejudiced or deprived of the benefit of his plea

bargain by the judge’s failure to advise him of the man-

datory parole term.

Southall’s case is like Baker, not Bachner, in that

Southall received a total sentence, including the three-

ear parole term, that exceeded the sentence he had

argained for and was promised. The State in effect

asks us to ignore the additional parole term because

Southall was actually incarcerated for less than the

maximum three years of his negotiated plea. But, as we

stated in Baker, “the conditions of parole place a

number of onerous burdens on the liberty of paroled in-

dividuals,” including the sapere of being returned to

rison for technical parole violations. 551 F.2d at 184.

hile it is true that the defendant in Baker ended up

spending 32 months in prison on a promised maximum

sentence of two years imprisonment, it was the parole

term itself with its concomitant burdens that we found

to be a substantial addition to the negotiated sentence

and not the additional time in prison resulting from the

arole violation. In other words, a defendant does not

ave to violate his mandatory parole term and be rein-

carcerated for a total period in excess of the maximum

negotiated sentence before he can object under Baker

that the sentence imposed differed substantially from

that which he was promised as an inducement to plead

guilty. See United States ex rel. Ferris v. Finkbeiner,

551 F.2d 187 (7th Cir. 1977).

9a

No. 80-1296

With respect to Emanuel Williams’ guilty plea of

August 2, 1974, the State argues that Bachner is con-

trolling because the trial court was not a party to any

plea agreement. We agree. toon the trial judge at

the time of sentencing accepted the prosecution's

recommendation for a sentence of one to three years im-

prisonment “as per agreement” (Pets. Br., App. B, at 8),

the agreement referred to was one between Williams’ at-

torney and the prosecutor only. Because the trial judge

neither Shag ote in nor ratified the — prior

to accepting Williams’ plea, it was not binding on the

court. Moreover, the judge explicitly so warned the

defendant:

THE CourT: Mr. Orange, also known as Mr.

Williams, although an agreement as to the penalty

has been reached between your attorney and the

State’s Attorney, the Court is not bound to accept

those terms: I could impose a lesser or a greater

penalty in this case. Do you understand this?

DEFENDANT: Yes, sir.

THE CourT: Knowing that, do you still wish to

plead guilty?

DEFENDANT: Yes. (Pets. Br., App. B, at 7-8).

Thus like the defendant in Bachner and unlike the

defendant in Baker, Emanuel Williams had no basis for

expecting anything less than the statutory maximum.

He was warned of this maximum, including the man-

datory parole term. Judge Marshall found this warning

insufficient for the purposes of inforn ing Williams that

a mandatory ; panes term would be part of the plea he

had negotiated with the prosecutor because it was made

in the context of the maximum sentence Williams could

get under the law. Whether this finding was correct or.

as the State contends, erroneous, we need not decide

because there was no plea agreement binding on the

court. Because the sentence imposed including the man-

datory parole term was far less than the maximum

period of imprisonment Williams was warned he could

receive, he would not have been prejudiced even if the

judge had failed to mention the parole term altogether.

10a

No. 80-1296

Indeed, that would be the Bachner case. Accordingly, we

reverse the order with respect to Emanuel Williams’

guilty plea of Angust 2, 1974.

IV

With — to petitioners Southall and Lawrence

Williams, the State’s alternative position is that Baker

established a new and unexpected rule of law entitled

only to prospective application and was therefore

erroneously applied here to guilty pleas entered prior to

March 17, 1977, the date Baker was decided. The State

raised this issue for the first time on a Motion to Recon-

sider in Williams I. Judge Marshall rejected the argu-

ment on the grounds that Baker did not create a new

and unexpected rule of law and that even if it had it

would be entitled to retroactive a gy omer under the

balancing test set forth in Stoval Denno, 388 U.S.

293. See 447 F. Supp. at 105-108. We agree with both

the reasoning and conclusion of Judge Marshall's

thorough opinion on this issue and therefore adopt it as

our own.

The judgment is reversed with respect to the August

2, 1974, guilty plea of petitioner Emanuel Williams and

in all other respects affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit