*1 bе- defendant in the case denied to the case should be Montgomery issue raised the he precise of the fact that fore us view especially to his goes is one which and that the issue course of his trial during which would any evidence a trial which is free from ultimate tend to the minds prejudice jury. as testify did true us
It is that the defendant in the case before case, did the raised question defendant in the but Montgomery mo- conviction prior of evidence of 27 old admissibility year tion. would result in The such prosecution argues procedure reasoning unwarranted havoc in Such the criminal judicial process. follow, in a difficult for such be question may disposed well more manner orderly during of evidence than prior presentation the course of trial. may grant The trial in its discretion desire to motion, same, deny the its until evi- ruling withhold further dence is heard but the case motion before us we believe of the defendant should have been granted.
For the reasons set forth the defendants for the conviction crime attempt burglary reversed unlаwful conviction possession tools burglary is reversed and the cause for a is remanded trial. new Reversed in part, reversed and remanded in part.
STOUDER, ALLOY, P. J., and J., concur. v. Robert Plaintiff-Appellee, Illinois, State
Cheshier, Defendant. 70-186;
(No. Third 26,1972. January District STOUDER, dissenting. J., *2 Stratton, Ottawa,
Bruce for appellant. Haase, Herman the People. Assistant of Joliet, for Attorney, Mr. SCOTT of the court: delivered the opinion JUSTICE This is an from the appeal County. circuit court of Will Cheshier, Robert the offense defendant, was indicted for At the time he charge guilty. which robbery, pleadеd attempt and the prosecution was tendered guilty accepted plea negotiations. such resulted certain plea informed the that from a sentence stated that it had offered to recommend prosecution ask for would not 2 to in thе if the defendant years from 8 penitentiary but mitigation, and would in hearing waive probation if the 3 recommended that a sentence of from to 10 would be years in aggravation defendant asked requested hearing probation for and a was mitigation. The defеndant did request probation held, denied. at conclusion of which was The prosecution probation then recommended in the years a sentence of 3 to 7 penitentiary this was the sentence the court. imposed by he exer- it is the defendant’s cоntention that because appeal
On this in that he for he received penalized was apply cised his than a sentence of 3 to 7 in years penitentiary a sentence rather he have recommended had 2 would prosecution to 8 which asked for probation. find it clear that lengthy
In record we reviewing abundantly entered into between counsel for the defendant plea negotiations not look with disfavor upon The law does prosecution. and set forth guide in fact has their merit recognized but negotiations the conduct of the same. Court regulations regarding Supreme lines 110A, 402, Stat. 402(d), Rule ch. sec. Ill. Rev. discussions it is spe- the regulations pertaining examining
In advised as to the trial shall be tentative judge any that cifically provided the defense and and thеn the prosecution reached between agreement
525 concurrence, conditional court’s judge shall indicate to the parties concurrence, agreement. tentative or non-concurrence as to such judge the trial that
The rеcord in the before us to show case fails concurred conditionally in in or indicated that he concurred way any received in to be the sentence was agreement tentative is of any language the defendant. The record likewise barren or be misconstrued court that could mislead any way a motion as to what with or without defendant the sentence would be fact, read- for from probation. In conclusion reached just opposite made cer- ing record in that it that the trial clearly disсloses tain that the defendant recommendations of the State’s knew that the Attorney were not binding the court. upon
If
tentative,
entered
agreement,
it be
was in fact
into
though
between counsel for the
the most that
defendant and the prosecution,
prosecution
could
a certain sentence would be
promise
recommended to the
Our
court.
law
that a
is not bound
clear
by the
recommendations
v.
410
Attorney.
Hancasty,
People
148,
575;
Ill.
Ventura,
587,
710;
101 N.E.2d
v.
114 N.E.2d
Ill.
People v.
616,
Baldridge,
Ill.2d
The defendant
his argument
cites two cases
that he was
support
a heavier sentence because he
penalized by
applied
probation. They
*3
744;
are the cases of
v.
267 N.E.2d
People
Cherry,
and
(Ill.App.2d),
Curl,
v.
It is apparent the fact of its and that he was aware of consequences fuH understanding that the court was not bound a recommendation of the by prosecution. fuH understanding right The defendant with this exercised his to apply and when this was denied the court heard evidence request in and of The defendant tiren re sentencing. ceived the sentence of which he now He complains. argue does it is excessive but instead faith motives bad on attempts impute the of the part The record faüs to sustain such The prosecution. charges. of induce misrepresentation, misleading defendant was not victim on the or the court. It conduct of the improper part prosecution ment or that he received a say is his to now would have pure conjecture Certainly lesser sentence had he waived his right request probation. there is in record to such a claim. nothing support
The of the circuit court Will affirmed. judgment of County Judgment affirmed.
ALLOY, J., concurs.
Mr. dissenting: PRESIDING STOUDER JUSTICE I do not the sentence agree with the of the court. I believe majority should be reduced to 2 the term which to 8 in tire penitentiary, States Attorney offered to recommend. initially
This case not heretofore con bargaining involves of aspect plea sidered by Illinois courts it to the usual although generally related problems associated with criminal system Our plea bargaining. justice has been slow to or the existence of openly recognize plеa bargaining give any legal effect thereto as a is one although practice fact life of long standing. Plea was because it tended to bargaining ignored tarnish or demean the abstract or ideal with justice. Bargaining model of such a preciоus as freedom seemed As more inappropriate. practi cal consideration plea tended to diminish the bargaining independence of the trial importance judge as a final arbiter in the sentencing process. Undoubtedly these considerations have considerable persuasive our in and our vitality evolving recognition bargaining effort to plea reconcile ideal with the pragmatic. accommodating difficulty v. views in this area is illustrated disparate by People Baldridge, 616,169 353, by Ill.2d N.E.2d cited majority general support proposition that the is not bound the recommendations of the by case, State’s In the a trial Attorney. Baldridge before had com jury menced but and then terminated as result of interrupted After bargaining. advised being defense Attornеy court, counsel bargain referred to terms judge, open i.e., of the bargain, the recommendations of the State’s Attorney, advised the specifically defendant that he was not bound to follow the recommendations of the State’s Before Attorney. accepting plea of his rights admonished defendant guilty concerning the usual threats had including as whether inquiry any promises been made to induce his received the guilty apparently usual response that no such had been made. Nevertheless the prоmises judge was well aware as was shown his observations previous this made and the court on review disposes prob had been promises carried out long Attorney lem with the observation that so *4 recommendations the defendant had no his his agreement by making In recommendations of the cause for the complaint. holding Baldridge correctly not the court in Attorney binding judge the rule but does not confront the perplexing problem the traditional applied recommendation should have significance of what State’s Attorney’s
527 ultimate to as it effect ought a or bargain either as a part sentence imposed by judge. removes 402 now Rule Court Supreme recent adoption the trial to recognize The rule continues
secrecy bargaining. from pleа and that the the final the sentence to be judge imposed as arbiter of parties Yet both binding. recommendation of not Attorney faith such good must be assumed each other in good to have dealt with Attorney’s recom- faith reasonable belief that the State’s including the can expectation mendation will be to the Such acceptable judge. be minimized or a risk on the being dismissed calculated merely of the a Attorney defendant. If sentence is recommended the State’s as a result the trial plea bargaining the determination by such recommendation is neither to ought nor appropriate acceptable have reasonable basis in the or It is facts evidence. inappropriate disregard such recommendation it is a beсause recommendation merely not binding on the court.
Both agree that parties to the prior acceptance guilty discussions took before place and in the presence of defendant which fully disclosed that had taken plea bargaining place terms the bargain as As proposed accepted. revealed to the judge if the defendant pleaded guilty, waived request and waived a hearing mitigation State would recommend a sentence of 2 from to years 8 in the If penitentiary. defendant sought probation or refused waive a hearing in aggravation then the State proposed recommend a sentence of from in the penitentiary. The terms of the bargain are undisputed and it is also undisputed that the trial judge advised defеndant that court was not bound to accept recommendations of the State’s At- torney.
It is this that I at believe the trial point court committed error. Not- its withstanding general disavowal of binding effect of the State’s Attorney’s recommendations the court in effect approved subscribed to the of the propriety contingencies included in the recom- proposed mendations. In effect at this juncture the court said if you seek proba- tion aggravation and mitigation I will consider recommendation of the State’s of the greater sentence other- Attorney wise I will consider the lesser sentence proposed. or not the
Whether recommendation and the court’s approval thereof for the exercise of a it represents рenalty is clear that introduces factors are procedure which irrelevant to the severity be sentence to I am aware of no imposed. authority even intimating that *5 mitigation aggravation requesting seeking probation State sentence. of a Indeed are material to the determination proper has that rather insists not even make such claim but does regard- the defendant right bargain against enforce duty materiality relevance or of the terms thereof. less Attorney’s the State’s cоlleagues suggested have because My trial could and more recommendations not binding an assertion as- did the recommendations. Such significantly disregard an independent that the sentence determina- imposed represented sumes imposition sentence and that of the more tion appropriate sentence related to the evidence. No claim was made severe the State and the facts or to the sentence are even relating evidence mentioned State in its brief. Indeed the State’s only argument the court had the the more severe sentence impose merely because of the contingency plea agreement. observa- Repeating my tions above neither an nor a hear- application rеquest for ing in having are facts any bearing propriety holding sentence the trial court’s I contrary believe error. al., et
Richard Allen v. Loren Young, Plaintiffs-Appellants, Super S. intendent of the Educational Service Whiteside Region, County, Defendant-Appellee. 71-119;
(No. 26, 1972. Third January District