Opposition Brief — Johnson v. Illinois

j

NO. 87-102 |

IN THF a

SUPREME COURT OF THF UNITFD sTaTFsS

OCTOBER TFPM, 1987

nc, a

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GEORGE JOHNSON,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Resvnondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

TO TEE APPFLLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

NEIL F. HARTIGAN,

Attorney Generel

State of Illinois

TERENCE M,. MADSFN

Assistant Attorney Genera]

J8&8 West Randolph Street,

Suite 2200

Chicago, Tllinois 6060]

Counsel for Responcent,.

RICHARD M. DALFY

State's Attorney

County of Cook

5C0 Richard J. Daley Center

Chicago, Illinois €0602

THOMAS V. GAINFR, Un«»

KENNETH T. McCURPY,

NANCY BLACK,

Assistant State's Attorneys

Of Counsel

*Counsel of Record.

NO. @7-193

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

GEORGE JOHNSON,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

NEIL F. HARTIGAN,

Attorney General

State of Illinois

TERENCE M. MADSEN

Assistant Attorney General

188 West Randolph Street,

Suite 2200

Chicago, Illinois 60601

Counsel for Respondent.

RICHARD M. DALEY

State's Attorney

County of Cook

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JR.,*

KENNETH T. MCCURRY,

NANCY BLACK,

Assistant State's Attorneys

Of Counsel.

*Counsel of Record.

QUESTION PRESENTED FOR REVIEW

Whether Petitioner's due process

rights were violated where the trial court

specifically found his guilty pleas to be

freely and voluntarily made, he was sentenced

within the agreed upon range and the Illinois

Appellate Court affirmed the convictions and

reduced the sentences.

ii

TABLE OF CONTENTS

Page

Question Presented for Review.....eeeees i

Table OF CORCOREHs 006 ccc ac cnadendecwvan il

Table of Te Ce a phn ae eee ee iii

Opinion ON ee are arr rer eee ee ey l

JUPiMSiCCiOhscscccacntasnneseenandvueerux 2

Constitutional Provision Involved....... 3

Statement Of FaCtS.ccccscssteusaresessas 4

Reason for Denying the Writ.......seeee. 9

PETITIONER'S DUE PROCESS

RIGHTS WERE NOT VIOLATED WHERE

THE TRIAL COURT SPECIFICALLY

FOUND HIS GUILTY PLEAS TO BE

FREELY AND VOLUNTARILY MADE,

HE WAS SENTENCED WITHIN THE

AGREED UPON RANGE AND THE

ILLINOIS APPELLATE COURT

AFFIRMED THE CONVICTIONS AND

REDUCED THE SENTENCES... cccccccccce 9

CONCLUSION ss +06 00000605 6606008664664 008" 18

Appendix A - Illinois Supreme Court Rule 402

iii

TABLE OF AUTHORITIES

CASES Page

People v. McCoy, 74 Ill. 2d 398,

ee Fee), | Fe ee 10

People v. Turner, 111 Ill. App. 3d 358,

443 N.E.2d 1167 (Znd Dist. 1983)... 10

People v. Smithey, 120 Ill. App. 3d 26,

458 N.E.2d 87 (2nd Dist. 1983)..... 12

People v. Hale, 82 Ill. 2d 172,

OS > Bie mae. | ) errr rrr 12

People v. Dumas, 50 Ill. App. 3d 637,

365 N.E.2d 1320 (4th Dist. 1977)... 12

Hill v. Lockhart, 474 U.S. __,

88 L. Ed.2d 203, 3

106 S. Ct. (1985) ..cccccccccecs 13

Strickland v. Washington, 466 U.S. 668,

80 L. Ed.2d 674 (1984)...... eeenese 13

People v. Jones, 135 Ill. App. 3d 1023,

482 N.E.2d 1031 (lst Dist. 1985)... 15

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amend 6........ eeveee 9

U.8. Constitution, Amend Th.cccoscccoces 9

STATUTES

Ill. Rev. Stat. 1987, ch. 110A,

O06. GEsecsctacessece peneeeseéenesee 10

Ill. Rev. Stat. 1987, ch. 110A,

OGG. GLOtEP (EG) <ccccsenses eee re 16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

GEORGE JOHNSON,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

OPINION BELOW

The Petitioner pleaded guilty to

three counts of aggravated indecent liberties

with a child and one count of indecent

liberties with a child before Judge Nicholas

Zagone of the Circuit Court of Cook County,

Illinois. The Appellate Court of Illinois

affirmed the convictions but reduced the

sentences. (No. 85-2997, January 30, 1987,

corrected June 25, 1987). See Petitioner's

Appendix A. Petitioner's petition for leave

to appeal to the Supreme Court of Illinois

was denied on June 4, 1987. See Petitioner's

Appendix B.

JURISDICTION

Petitioner invokes this Court's

jurisdiction pursuant to 28 U.S.C. sec. 1257.

However, as treated more fully below,

respondent submits that no good reason exists

for this Court to grant the instant petition

for writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United

States Constitution provides, in pertinent

part:

"In all criminal prosecutions,

the accused shall enjoy the right

»+.» to have the Assistance of

Counsel for his defense."

The Fourteenth Amendment to

United States Constitution provides,

pertinent part:

"Section 1. ... No State shall

deprive any person of ...

liberty ..., without due process of

"

laws we.

the

in

STATEMENT OF FACTS

George Johnson, Petitioner, was

charged with five counts of aggravated

indecent liberties with a child and one count

of indecent liberties with a child in three

indictments and one information in- the

Circuit Court of Cook County, Illinois. The

charges arose out of sexual acts’7~ that

Petitioner Johnson performed on four young

girls while baby-sitting.

Prior to Petitioner's pleas. of

guilty in these cases extensive plea

negotiations took place. The People offered

Petitioner a fifteen year sentence in

exchange for his guilty pleas. This offer

was rejected. Thereafter, the trial court,

with Petitioner's concurrence, was asked to

participate in the negotiations.

The trial court indicated that the

People's fifteen year recommendation was not

a sufficient penalty. Instead, the trial

court stated he would give Petitioner a

twenty-five year sentence in exchange for his

guilty plea. When defense counsel rejected

this sentence, the court offered twenty

years. Again, defense counsel rejected the

proposal. Finally, the trial court made an

offer of eighteen years. No agreement was

reached.

Subsequently, an agreement was

reached whereby the trial court agreed to a

"cap" of eighteen years in exchange for

Petitioner's guilty pleas to three counts of

aggravated indecent liberties with a child

and one count of indecent liberties with a

child. Petitioner was thoroughly admonished

by the trial court as to his constitutional

rights prior to his guilty plea.

Specifically, Petitioner was told that each

of the Class X offenses carried a possible

penitentiary sentence of between six and

thirty years. Further, he was told that

pursuant to the negotiations he would not be

sentenced to the penitentiary for a period of

more than eighteen years.

A hearing in aggravation and

mitigation was held wherein defense counsel

presented testimony of Petitioner's

psychiatrist, Petitioner's son, Petitioner's

mother and Petitioner. Defense counsel asked

the court for six, seven or eight years and

stated that he was "willing to bargain all

the way up." The People, after acknowledging

the prior recommendation of fifteen years,

asked for a sentence "within the upper range

of that range the Court has indicated it's

considering." The trial court sentenced

Petitioner to eighteen years imprisonment.

Subsequently, Petitioner filed a

motion to withdraw his guilty pleas, alleging

that his pleas were "entered unintelligently

and involuntarily in that he was misled into

relying upon a false and illusory plea

agreement.” At the hearing on the motion

defense counsel stated that he understood

that there was a possibility that Petititoner

would receive an eighteen year sentence.

Defense counsel told Petitioner he could

receive an eighteen year sentence.

Additionally, Petitioner was not told that he

would definitely get less than eighteen

years. The trial court denied the motion.

Petitioner appealed his convictions

to the Appellate Court of Illinois, First

Judicial District. Petitioner alleged that

the trial court violated Illinois Supreme

Court Rule 402 (governing plea negotiations),

that his due process rights were violated

when his motion to withdraw his guilty plea

was denied and that his sentence was

excessive.

The Illinois Appellate Court

rejected Petitioner's claim that his due

process rights had been violated. The Court

affirmed the convictions but reduced the

sentences from eighteen to fifteen years.

The Supreme Court of Illinois denied

Petitioner's Petition for Leave to Appeal.

Petitioner now petitions this Honorable Court

for a Writ of Certiorari.

REASON FOR DENYING THE WRIT

PETITIONER'S DUE PROCESS

RIGHTS WERE NOT VIOLATED WHERE

THE TRIAL COURT SPECIFICALLY

FOUND HIS GUILTY PLEAS TO BE

FREELY AND VOLUNTARILY MADE,

HE WAS SENTENCED WITHIN THE

AGREED UPON RANGE AND_ THE

ILLINOIS APPELLATE COURT

AFFIRMED THE CONVICTIONS AND

REDUCED THE SENTENCES.

Petitioner George Johnson petitions

this Honorable Court for a Writ of Certiorari

to the Appellate Court of Illinois’ and

alleges that his Fourteenth Amendment right

to due process and his Sixth Amendment right

of assistance of counsel were violated

relative to his guilty pleas. The People

maintain that the petition should be denied

based on the fact that the grounds raised by

petitioner do no form a sufficient basis upon

which to grant a Writ of Certiorari.

It is well established that for a

guilty plea to be constitutionally valid, the

record must affirmatively show that the plea

was intelligent and voluntary. People v.

McCoy, 74 Ill. 2d 398, 385 N.E.2d 696 (1979).

Further, to implement this constitutional

requirement, the Illinois trial courts must

substantially comply with Illinois Supreme

Court rule 402. Id., 385 N.E.2d at 698.

(See Appendix A) Additionally, the courts of

review in Illinois have held that generally,

substantial compliance with Supreme Court

Rule 402 indicates that the plea _ was

intelligent and voluntary. People v. Turner,

111 111. App. 3d 358, 443 N.E.2d 1167 (2nd

Dist. 1983).

In the present case the trial court

specifically found that Petitioner's pleas

were entered freely and voluntarily.

Additionally, the Illinois Appellate Court

10

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——

specifically rejected Petitioner's argument

that his plea was not’ intelligent or

voluntarily given. Petitioner was

specifically admonished by the trial court

that he would not be sentenced to more than

eighteen years imprisonment. Petitioner, in

fact, received an eighteen year _ sentence.

The People maintain that Petitioner’ was

properly sentenced within the agreed upon

range. The record clearly reflects that the

only agreement reached was that Petitioner's

sentence would not exceed eighteen years.

Clearly, no promises were made that could be

viewed an indicating a guarantee of a lesser

sentence.

Petitioner attempted to withdraw

his guilty plea. The People maintain that

the trial court properly denied this motion.

The principles of Illinois law governing the

withdrawal of a guilty plea are well settled.

aa

A defendant has no absolute right to withdraw

his plea of guilty, rather, he bears the

burden of demonstrating to the trial court

the necessity of withdrawing his guilty plea.

People v. Smithey, 120 Ill. App. 3d 26, 458

N.E.2d 87 (2nd Dist. 1983). Further, the

Illinois Supreme Court has_~ specifically

stated that allowing the withdrawal of a

guilty plea is a matter for the trial court's

discretion. People v. Hale, 82 Ill. 2d 172,

396 N.E.2d 317 (1980). Further, the trial

court's discretion will not be disturbed on

review unless such discretion. is7~ abused.

People v. Dames, SU Iii. App. 34 637, 365

N.E.2d 1320 (4th Dist. 1977). Finally, "the

burden is on defendant to establish the fact

of misunderstanding or the fact of

misrepresentation to him by counsel or others

Fs

or that the ends of Justice require

withdrawal of the plea.” Id., 365 N.E.2d at

keees

Petitioner currently argues that he

was denied effective assistance of counsel

based on trial counsel's’~ representation

relative to his guilty pleas. The People

respectfully maintain that neither the facts

nor the law warrant this Court's attention to

this allegation. As Petitioner correctly

asserts, this Court in Hill v. Lockhart, 474

U.S. ,» 88 Le. £6.46 202, 109 8s CEs

(1985), did hold that the two-pronged

standard for evaluating claims of ineffective

assistance of counsel, as set out in

Strickland v Washington, 466 U.S. 668, 80 L.

Ed.2d 674 (1984), does apply to guilty pleas.

Hill, 88 L. Ed.2@ at 210. A defendant must

show that counsel's representation fell below

an objective standard of reasonableness and

that but for counsel's unprofessional errors,

there is a reasonable probability that the

result would have been different. Id., 88 L.

13

Ed.2d at 209. This Court also stated that

where "a defendant is represented by counsel

during the plea process and enters his plea

upon the advice of counsel, the voluntariness

of the plea depends on whether counsel's

advice ‘was within the range of competence

demanded of attorneys in criminal cases.'"

Id., 80 L. Ed.2d at 208.

The facts in this case clearly fail

to establish that trial counsel's advice fell

below that required by Strickland. At the

motion to withdraw the plea counsel stated

that he understood that there was a

possibility that defendant would receive an

eighteen year sentence. Additionally,

defense counsel stated that he did not

guarantee defendant that he would definitely

get less than eighteen years if he pleaded

guilty. The law in Illinois clearly states

that the requirement that a plea of guilty be

14

understandably and voluntarily made does not

require that the defendant know in advance

what sentence will be imposed. People v.

Jones, 135 Ill. App. 3d 1023, 482 N.E.2d 1031

(lst Dit. 1985). Further, "a guilty plea

made in reliance upon advice of counsel

estimating a sentence to be expected is a

voluntary plea." Id., 482 N.E.2d at 1038.

Additionally, "the mere belief or hope of a

defendant that he will get a shorter sentence

by pleading guilty does not permit him to

withdraw his plea when that expectation is

disappointed." Id., 482 N.E.2d at 1038.

Petitioner further contends”7 that

this Court should grant his Writ in order to

"Clarify the issue of remedies in the

ineffective-counsel-at-plea situation." He

contends that the Appellate Court erred in

reducing his sentences from eighteen to

fifteen years. The People maintain that,

15

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although there was no need to do so, the

Appellate Court reduced Petitioner's sentence

pursuant to Illinois Supreme Rule 615(b)(4)

which states:

(b) Powers of the Reviewing Court.

On appeal the reviewing court

(4) reduce the punishment

imposed by the trial court;

However, in the light of the fact that there

was no ineffective assistance of counsel in

this case, this Court need not review the

reduction of Petitioner's sentence. For,

although the People maintain that

Petitioner's sentence did not require

reduction, the People did not petition the

Illinois Supreme Court for leave to appeal

this ruling.

16

As Petitioner has failed to raise

any important constitutional issue or present

any grounds which would justify the

consumption of this Court's valuable time,

the instant Petition for Writ of Certiorari

should be denied.

af

CONCLUSION

For all the foregoing reasons,

Respondent respectfully prays that this

Honorable Court deny the instant Petition for

Writ @f Certiorari.

Respectfully submitted,

NEIL F. HARTIGAN,

Attorney General

State of Illinois

TERENCE M. MADSEN

Assistant Attorney General

188 West Randolph Street,

Suite 2200

Chicago, Illinois 60601

Counsel for Respondent.

RICHARD M. DALEY

State's Attorney

County of Cook

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JUR.,~

KENNETH T. MCCURRY,

NANCY BLACK,

Assistant State's Attorneys

Of Counsel.

* 9 -

Counsel of Record.

©)

APPENDIX

APPENDIX A

Illinois Supreme Court Rule 402:

402. (Supreme Court Rule 402).

Pleas of Guilty

In hearings on pleas of

guilty, there must be substantial

compliance with the following:

(a) Admonitions to Defendant.

The court shall not accept a plea

of guilty without Lirst, by

addressing the defendant personally

in open court, informing him of and

determining that he understands the

following:

(1) the nature of the charge;

(2) the minimum and maximum

sentence prescribed by law,

including, when applicable,

the penalty to which~ the

defendant may be- subjected

because of prior convictions

or consecutive sentences;

(3) that the defendant has the

right to plead not guilty, or

to persist in that plea if it

has already been made, or to

plead guilty; and

(4) that if he pleads guilty

there will not be a trial of

any kind, so that by pleading

guilty he waives the right to

a trial by jury and the right

to be confronted with’ the

witnesses against him.

(b) Determining Whether’ the

Plea is Voluntary. The court shall

not accept a plea of guilty without

first determining that the plea is

voluntary. If the tendered plea is

the result of a plea agreement, the

agreement shall be stated in open

court. The court, by questioning

the defendant personally in open

court, shall confirm the terms of

the plea agreement, or that there

is no agreement, and shall

determine whether’ any force or

threats or any promises, apart from

a plea aggreement, were used to

obtain the plea.

(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.

(d) Plea Discussions and

Agreements. When there is a plea

discussion or plea agreement, the

following provisions, in addition

to the preceding paragraphs of this

shall apply:

(1) The trial judge shall not

initiate plea discussions.

(2) If a tentative plea

agreement has been reached by

the parties which contemplates

entry of a plea of guilty in

the expectation that a

specified sentence will be

imposed or that other charges

before the court will be

dismissed, the trial judge may

permit, upon request of the

parties, the disclosure to him

of the tentative agreement and

the reasons therefor in

advance of the tender of the

plea. At the same time he may

also receive, with the consent

of the defendant, evidence in

aggravation or mitigation.

The judge may then indicate to

the parties whether he will

concur in the proposed

disposition; and if he has not

yet received evidence in

aggravation or mitigation, he

may indicate that his

concurrence is conditional on

that evidence being consistent

with the representations made

to him. If he has indicated

his concurrence or conditional

concurrence, he shall so state

in open court at the time the

agreement is stated as

required by paragraph (b) of

this rule. If the defendant

thereupon pleads guilty, but

the trial judge later

withdraws his concurrence or

conditional concurrence, he

shall so advise the parties

and then call upon the

defendant either to affirm or

to withdraw his plea of

guilty. If the defendant

thereupon withdraws his plea,

the trial judge shall recuse

himself.

(3) If the parties have not

sought or the trial judge has

declined to give his

concurrence or conditional

concurrence to a plea

agreement, he shall inform the

defendant in open court at the

time the agreement is stated

as required by paragraph (b)

of this rule that the court is

not bound by the plea

agreement, and that if the

defendant persists in his plea

the disposition may be

different from that

contemplated by the plea

agreement.

(e) Transcript. In cases in

which the defendant is charged with

a crime punishable by imprisonment

in the penitentiary, . the

proceedings required by this rule

to be in open court what be taken

verbatim, and upon order of the

trial court transcribed, filed and

made a part of the common law

record.

(f) Plea Discussions, Plea

Agreements, Pleas of Guilty

Inadmissible Under Certain

Circumstances. If a plea

discussion does not result in a

plea of guilty, or if a plea of

guilty is not accepted or is

withdrawn, or if judgment on a plea

of guilty is not accepted or is

withdrawn, or if judgment on a plea

of guilty is reversed on direct or

collateral review, neither the plea

discussion nor any resulting

agreement, plea, or judgment shall

be admissible against the defendant

in any criminal proceeding.

Amended eff. Feb. 1, 1981.