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People v. Peterson, No. 1-98-2362

1st District, December 27, 1999

First Division

JUSTICE RAKOWSKI delivered the opinion of the court:

Defendant and the State enter into plea discussions, an agreement is reached, and defendant pleads guilty. During sentencing on the plea, defendant states he has been wrongly accused of the crimes. Does the trial court abuse its discretion when it revokes its acceptance of defendant's guilty plea based on his proclamation of innocence? Because acceptance of a guilty plea is within the sound discretion of the trial court and defendants possess no absolute right to have any guilty plea accepted, a trial court does not necessarily abuse its discretion in refusing to accept a guilty plea even where there is a factual basis for the plea. We additionally reject defendant's contentions that the trial court erred in failing to suppress the lineup identification and that trial counsel was ineffective for failing to request a substitution of judge. Accordingly, we affirm.

BACKGROUND

Defendant, Jimmie Peterson, was charged with vehicular hijacking, robbery, and unlawful restraint. Because defendant does not contest the sufficiency of the evidence, only a brief recitation of the facts surrounding the incident of October 19, 1995, will be given. Additional facts are incorporated into our analysis where necessary.

Bernadette Allen testified that as she walked to her car in the Metra parking lot at 119th and Vincennes in Blue Island, an individual, whom she later identified as defendant, approached her and asked for money. She refused and after defendant persisted for a few minutes, he grabbed her, forced her to get her car keys, forced her to unlock her car door, and shoved her into her car. As Allen was opening the car door, defendant grabbed her purse.

Defendant eventually pushed Allen out of the passenger side door and drove off with her car and purse. Allen provided the Blue Island police with a description of the assailant, stating he was a black male, approximately 35 years old, 5 feet 10 inches tall with numerous pink curlers in his hair.

Although Allen stated it was very dark at the time of the incident, the lighting in the area was very good. She testified defendant was from 3 to 17 feet from her as he persisted in asking for money and even closer when they were in the car. She was able to get a very good view of him and she focused upon his face and hands. According to Allen, she was in the car with defendant for approximately five minutes before being pushed out.

Defendant's motion to suppress the lineup identification was denied. Prior to trial, defendant participated in a guilty plea conference at which time he agreed to plead guilty to vehicular hijacking and robbery in exchange for a sentence of eight years. However, at the time of sentencing, based on defendant's statements that he was wrongfully accused of the crimes, the trial court withdrew its acceptance of his guilty plea and ordered defendant to proceed to trial. The case was tried to a jury at which time defendant presented no evidence. Defendant was convicted of vehicular highjacking and robbery. Defendant's motion for a new trial was denied. Based upon all the evidence, the trial court sentenced defendant as a Class X offender to 18 years' imprisonment to be served concurrent. Defendant's motion for reduction of sentence was denied.

ANALYSIS

I. Withdrawal of Acceptance of Guilty Plea

When defendant appeared in court in August of 1997, he sought a Rule 402 conference to pursue the option of a guilty plea. 177 Ill. 2d R. 402. After the conference, it was agreed that if defendant pled guilty to vehicular hijacking and robbery he would be sentenced to eight years and the unlawful restraint count would be nol-prossed. The court proceeded to admonish defendant pursuant to Rule 402. It read both charges after which defendant stated he understood them. Defendant was advised of the attendant sentences, including a potential 6 - to 30- year sentence based on Class X status. He stated he understood these admonishments and desired to plead guilty. Defendant was then advised of all the rights he was waiving, which he stated he understood. Defendant denied any threats, force, or promises and stated he was pleading guilty of his own free will.

The parties stipulated to the factual basis for the guilty plea after the State summarized the evidence it would present. The court concluded that defendant was understandingly, knowingly, and voluntarily making the plea. Further, there was a sufficient factual basis for it.

After accepting defendant's guilty plea, the trial judge allowed defendant to speak. The following ensued:

"THE DEFENDANT: Yeah, well, Your Honor, Honorable Judge Wasilewski, in this present time of the case, I would like to say that I was wrongly accused of this crime.

THE COURT: Well, that's up to you. I'm willing to give you a trial.

THE DEFENDANT: What I was wrongfully accused of this crime, the seriousness of my physical condition, which when I was on the street before I got arrested for this case, that I was trying for eleven days I was homeless, to get my medical together. And that the[] way I am now, I was not fit to make a crime of such force. But I'm pleading guilty on this case because I rather get myself situated, and if I do not survive this time, I would like to say to the Court that I was wrongfully accused. If I survive doing this time, I might pass away or anything. My mother -.

THE COURT: Well, you know, Mr. Peterson, I don't have to accept your plea of guilty.

THE DEFENDANT: I understand.

THE COURT: And I don't know how you expect me to accept it when you say something like that.

THE DEFENDANT: I understand, Your Honor. I understand. I'm a very sick man.

THE COURT: No, I won't accept the plea of guilty. Vacating the proceeding.

THE DEFENDANT: Your Honor Wasilewski, I accepted the pleading guilty. I signed the papers and everything.

THE COURT: You told me you're not doing this voluntarily. I'm vacating.

THE DEFENDANT: I didn't say I was not doing it voluntarily, Your Honor. I am doing it voluntarily on my own accord.

***

THE DEFENDANT: I'm pleading guilty on my own accord.

***

THE COURT: We'll set this for a jury trial. We'll pass it.

THE DEFENDANT: Your Honor?

THE COURT: I'm not accepting it.

THE DEFENDANT: Why?

THE COURT: Because you told me it's not voluntary."

Defendant appeared in court three times within the next three months. Defendant appeared in court on September 12. At this time, the trial judge stated, so the record was clear, "I entered a judgment the last date that the judgment of 8/27/97 is vacated. I didn't accept the plea of guilty." On October 3, nothing was mentioned concerning a guilty plea. On November 14, defendant's attorney advised the court, "Mr. Peterson indicated to me this morning that he does not wish to plea, your Honor. He would like a jury trial."

The issue of proclamation of innocence as it relates to guilty pleas was addressed by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). There, defendant never wavered that he wished to enter a guilty plea. However, he stated he was innocent and desired to enter a guilty plea only to avoid the death penalty. The Court held that even though defendant maintained his innocence, the trial court could accept his guilty plea provided there was a sufficient factual basis for the plea. Nonetheless, the Court stated that this holding "[does] not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead." Alford, 400 U.S. at 38, n.11, 27 L. Ed. 2d at 172, n.11, 91 S. Ct. at 168, n.11. The Court observed that states may, by statute or otherwise, choose to confer such a right on defendants. However, states could conversely bar their courts from accepting guilty pleas from a defendant who maintains his or her innocence. Alford, 400 U.S. at 38, n.11, 27 L. Ed. 2d at 172, n.11, 91 S. Ct. at 168, n.11.

Defendant acknowledges the general rule that it is within the discretion of the trial court to accept or reject a guilty plea. He maintains, however, that when a defendant is properly admonished and a factual basis for the plea exists, the trial court must accept a guilty plea even if defendant proclaims his innocence. He relies upon a passage from People v. Ealey, 36 Ill. App. 3d 32 (1975). In Ealey, defendant pled guilty and on appeal sought to challenge the guilty plea on the basis it was involuntary since he proclaimed his innocence. The court denied his request, stating:

"If the trial judge explains the nature of the charge and makes certain that the defendant understands the nature of the charge, that he understands the consequences of his guilty plea, that the plea was voluntarily and understandingly made free of coercion, threats, or promises that cannot be fulfilled and then finds a further basis for connecting the defendant with a specific crime to which he has pled guilty, the guilty plea must be accepted. The fact that the defendant says he is innocent while pleading guilty does not invalidate a plea of guilty if the above conditions are met." (Emphasis added.) Ealey, 36 Ill. App. 3d at 35.

Defendant focuses upon three words in the entire opinion - must be accepted.

We, however, do not find Ealey persuasive. First, the statement is dicta. It was not necessary for resolution of the issues before the court. The issue in Ealey was not whether the court must accept a guilty plea, but whether the defendant's guilty plea should be vacated because of his protestations of innocence. We also note the aforementioned language from Ealey has never been followed and, in fact, has never been cited. Conversely, every other case to address the issue specifically holds or states that it is within the discretion of the trial court to accept or reject a guilty plea when innocence is proclaimed. See People v. Barker, 83 Ill. 2d 319, 333 (1980) (although defendant did not proclaim his innocence, court stated "a court is not precluded from accepting a plea of guilty, in spite of a defendant's claim of innocence, if the record reflects a factual basis from which a jury could find the defendant guilty of the offense to which the plea was entered" (emphasis added)); People v. Calva, 256 Ill. App. 3d 865, 872 (1993) (although defendant did not proclaim his innocence, the court stated "[t]he trial court can accept a guilty plea where a factual basis exists, even where the defendant maintains he is innocent" (emphasis added)); People v. Murphy, 248 Ill. App. 3d 42, 47 (1993) (although defendant did not proclaim his innocence, court stated that a court can accept a guilty plea even from a defendant who proclaims his innocence as long as factual basis is established); People v. Bleitner, 199 Ill. App. 3d 146, 150-51 (1990) (trial court may accept a guilty plea even though defendant proclaims his innocence where the record reflects a factual basis for the plea; in this case there was a detailed factual basis and the trial court did not err in accepting defendant's plea despite his claim of innocence); People v. Ottomanelli, 153 Ill. App. 3d 565, 569-70 (1987) (see discussion below); People v. Smith, 113 Ill. App. 3d 917, 924-25 (1983) (although not an issue, court stated that trial court may accept guilty plea even though defendant claims innocence as long as plea is voluntary); People v. Clearlee, 101 Ill. App. 3d 16, 19 (1981) (where defendant stated he was innocent during trial court's admonishments on guilty plea, "[t]he trial court's refusal to accept a guilty plea was *** proper"; "A guilty plea may be rejected in an exercise of judicial discretion." (emphasis added)); People v. Burgess, 34 Ill. App. 3d 966, 969 (1975) (although not an issue, court stated in passing that trial court can accept guilty plea even if defendant claims innocence); People v. Starks, 30 Ill. App. 3d 541, 543 (1975) (same as Burgess); People v. Lundeen, 30 Ill. App. 3d 21, 25 (1975) (sufficient factual basis in record to establish trial court's acceptance of the guilty plea did not deny defendant due process even though defendant proclaimed innocence); People v. Morgan, 14 Ill. App. 3d 232, 234 n.1 (1973) (court's outright refusal to accept guilty plea any time a defendant proclaimed his innocence was proper; "It is well established that a court is not obliged to accept a plea of guilty and may reject such a plea in the exercise of sound judicial discretion" (emphasis added)), aff'd, 59 Ill. 2d 276, 281 (1974).

Although the language from some of these cases is dicta and none of the cases involve the revocation of an acceptance of a guilty plea, we nonetheless find them instructive. Of particular significance is Ottomanelli. There, the trial court refused to accept defendant's tendered guilty plea, stating it would not allow anyone to plead guilty who says he is not guilty. No effort was ever made to establish a factual basis and, therefore, we found the trial court's refusal to accept the guilty plea proper. Ottomanelli, 153 Ill. App. 3d at 570. However, we also made the following statements:

"A criminal defendant who asserts his innocence does not have an absolute right that his guilty plea be accepted by the court, yet, where there is a strong factual basis showing a defendant's guilt, a court may accept such a plea without constitutional error." (Emphasis added.) Ottomanelli, 153 Ill. App. 3d at 569.

Additionally,

"It has *** been held that a court is not obliged to accept a plea of guilty from a defendant who professes innocence. [Citation.] There is no statutory right in Illinois to plead guilty in such circumstances, and Supreme Court Rule 402, which governs pleas of guilty, confers no authority upon a trial court to accept a plea of guilty absent a factual basis for it shown in the record." (Emphasis added.) Ottomanelli, 153 Ill. App. 3d at 570.

Even the dissent in Ottomanelli, although finding the trial court abused its discretion since it refused outright to consider the guilty plea without further investigation into a factual basis, confirmed that acceptance of such a plea is discretionary, not mandatory.

"If the defendant persists in the desire to plead guilty, but fails or refuses to admit that he committed the crime or professed his innocence, the plea may be accepted if a factual basis is otherwise demonstrated." (Emphasis added.) Ottomanelli, 153 Ill. App. 3d at 572 (Hopf, J., dissenting).

Thus, although the trial court may accept a plea from a defendant who maintains his innocence, it is not required to do so in all instances.

Case law is clear that it is within the sound discretion of the trial court whether to accept or reject a guilty plea. Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 498 (1971); People v. Fernetti, 117 Ill. App. 3d 44, 52 (1983), rev'd on other ground, 104 Ill. 2d 19 (1984); People v. Boyd, 66 Ill. App. 3d 582, 588 (1978); People v. Morgan, 14 Ill. App. 3d 232, 234 n.1 (1973). We review the trial court's decision for an abuse of discretion and will not substitute our judgment for that of the trial court. When no reasonable person would agree with the decision, an abuse of discretion exists. Chester v. People, No. 1-98-1018, slip. op. at 10 (November 24, 1999). When the decision is arbitrary, it amounts to an abuse of discretion. Chester, slip op. at 10. It has also been said that a decision is an abuse of discretion when it is not based on facts, logic, or reason but is arbitrary, unreasonable, or unconscionable. 5 Am. Jur. 2d Appellate Review