The PEOPLE v. Worley
256 N.E.2d 751
Ill.
1970
Check Treatment
.Mr. Justice Crebs

delivered the opinion of the court:

A jury in the circuit court of Lee County found defendant Bobby Herman Worley guilty of burglary and hp was sentenced to the penitentiary for a term of 5 to 10 years. This court rеversed that conviction and remanded the cause for a new trial. (Peоple v. Worley, 37 Ill.2d 439.) Defendant then entered a plea of guilty and he was sentenced -for a term of 4 to 8 years imprisonment. He. thereafter filed .a pеtition for a post-conviction hearing, an attorney was appointed to represent ‍​​‌‌​‌​​​‌‌​​​‌‌‌‌​​‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‌​‌​‌‌‌​‍him, an amended petition was filed and the.amended petition was dismissed on motion of the People. Appeal from the order dismissing the amended petition is directed to this court pursuant to Rule 651.

It is first argued .that defеndant .was denied, his right to. a speedy trial in violation of section g of articlе II of our constitution and section 103 — 5 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1967, ch. 38, par. 103 — 5.) The amended petition recites that defendant has been incarcerated since March 30, 1967, that the opinion reversing the initial conviction was filed on June 22, 1967, that defendant was not presented for a new trial until Novеmber 1, 1967, and that therefore more than 120 days had .elapsed, from the time the triаl court acquired jurisdiction.

This argument must be rejected for two reasons. First, the сonstitutional right to a speedy trial ‍​​‌‌​‌​​​‌‌​​​‌‌‌‌​​‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‌​‌​‌‌‌​‍is waived when the question of undue delay is not рresented to the trial court. (People v. Armes, 37 Ill.2d 457, People v. Taylor, 32 Ill.2d 165; People v. Morris, 3 Ill.2d 437.) Second, 120 days did not elapse between the time the trial court obtained jurisdiction for the new trial and the time defendant was presented to the court for the new trial. The trial cоurt did not acquire.jurisdiction for the new trial on June 22, 1967, the date the opinion of this сourt was filed. It acquired jurisdiction on July 17, 1967, the date the mandate of this court was filеd in the trial court. People v. Adams, 36 Ill.2d 492.

It is finally argued that the State’s Attorney coerced defendant’s guilty plea. Attached to his original petition is a letter from C. M. Glosser, his former attorney, which reads in part: "I am in receipt of your letter which I understand that you are asking that I stop acting as your attorney. * * * Howevеr, I would report the following to you. Mr. Dixon, the State’s Attorney, has said that he would bе willing to compromise your case, and if you plead guilty recommend a four to eight year sentence, with said sentence running concurrent with the one you are now serving. This would have no affect on your ‍​​‌‌​‌​​​‌‌​​​‌‌‌‌​​‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‌​‌​‌‌‌​‍total time in Statesville. This is the best so far that I have been able tó get out of Mr. Dixon in return for a guilty plea.” In an affidavit attached to his amended petition he alleges "* * * your affiant was infоrmed by his court appointed counsel, Edwin Merrick, that said Henry S. Dixon would arrangе for a sentence of not less than four (4) years and not more than eight (8) years if your affiant would plead guilty to said charge, and that if your affiant did not pleаd guilty, the said Henry S. Dixon would arrange for a sentence of not less than fourteеn (14) years nor more than fifteen (15) years.”

The judgment imposing the 4-to-8-year sentence provides that defendant be “* * * given credit for the period of time which he has already served in confinement in this cause, and that the sentence hеrein is concurrent with the sentence received by the defendant in the County оf Ogle and presently being served by him at the Illinois State Penitentiary.”

The gist of defendant’s argument is that the representation from the State’s Attorney that he would reсommend a longer sentence if the defendant stood trial ‍​​‌‌​‌​​​‌‌​​​‌‌‌‌​​‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‌​‌​‌‌‌​‍and was convicted than he would recommend if the defendant pleaded guilty was coerсive to the point that it violated due process. In People v. Darrah, 33 Ill.2d 175, and People v. Bowman, 40 Ill.2d 116, wе discussed various considerations which might touch on the issue of whether a “negоtiated” plea was a voluntary plea. For purposes of this case, it is sufficient to state that the allegations of the amended petition and defendant’s affidavit, even if true, do not establish- that the guilty plea was not voluntary. People v. Cornell, 43 Ill.2d 305; People v. Stephenson, 42 Ill.2d 185; People v. Brown, 41 Ill.2d 503.

The judgment of the circuit court ‍​​‌‌​‌​​​‌‌​​​‌‌‌‌​​‌‌‌​​​‌‌​​​​‌‌​‌‌​​‌‌​‌​‌‌‌​‍of Lee County is affirmed.

Judgment affirmed.