¶1dissenting:
¶2I do not agree with the majority of the court. The evidence presented by the defendant in support of his petition for post-conviction relief is sufficient to require that such relief be granted and consequently I believe the trial court’s conclusion to the contrary is erroneous.
¶3People v. Hawkins, 54 Ill.2d 247, 296 N.E.2d 725, the case principally relied upon by the majority, involves, as does this case, a post-sentencing statement accompanying the mittimus and is therefore a pertinent authority. However, because of significant differences between the procedure and facts in the Hawkins case and those in the instant case, I believe the reasoning and result in Haiokins are not appropriately extended to approve the trial court’s action in this case.
¶4The differences I refer to are twofold. The first is that in Hawkins an appeal was taken from the original judgment and sentence, it appearing that the statement somehow or other became a part of the record on appeal. This procedure caused the appellate court in its review of the conviction to express grave doubts and concern that the issue presented by the statement was even reviewable. (See People v. Hawkins, 3 Ill.App.3d 359, 277 N.E.2d 893.) Because of the procedure involved, the supreme court upon further review, although dealing principally with the issue of the statement, was compelled to do so from a peripheral point of view and the court concluded that the absence of any evidence concerning the purpose and effect of the statement rendered the defendant’s position speculative and without merit. This brings me to the second difference between the Hawkins case and this case which is a difference in procedure, i.e., the present case involves a post-conviction petition and the presentation of evidence relative to such petition tending to show the effect of such a statement on defendant’s future incarceration. In this respect I believe the evidence fairly demonstates that at least by force of accepted policy and custom, the statement of the State’s Attorney concurred in by the trial judge recommending “… this defendant serve the maximum time possible under the 10-40 year sentence imposed upon him” meant that any meaningful consideration of defendant’s application for parole would be delayed or postponed. In other words, defendant’s potential release on parole would be considered as if a greater minimum sentence had been imposed.
¶5The State in the court below and in this court sought to minimize the purpose and effect of the statement by suggesting that the statement is merely a recommendation and, consequently, whether the parole board attaches any significance to the recommendation is the parole board’s business and not that of the prosecution. Essentially this is the position which the court adopted in the Hawkins case where because of the absence of evidence it could not be determined how or to what extent such a statement would affect the defendant’s incarceration. Where, as in this case, the testimony of witnesses indicates the fact that such a recommendation will in effect extend the defendant’s minimum period of incarceration, the purpose, intent and effect of the statement are confirmed.
¶6It goes with out saying that a plea of guilty is the highest order of proof in a criminal case since it represents a confession in open court that the accused is guilty of the offense charged. Such expressions of guilt are not to be regarded lightly and courts should give convictions based on guilty pleas their full legal effect where the record indicates such pleas are understandably and voluntarily made.
¶7Whether pleas are voluntary has raised many questions in recent years and represents an area of our criminal justice system which is in a process of evolution. So far as the instant case is concerned I do not believe that any problem of adequate advice or admonishment is involved. Rather, I believe the issue to be resolved in this case depends on that aspect of voluntariness of a guilty plea related to inducement. It has only been a few years since courts officially recognized that plea bargaining existed, that it was a desirable feature of our justice system, and that disclosure of plea bargaining rather than concealment thereof better served the fairness of our procedures. It requires only a short memory to recall those days in which a defendant after arriving at a plea bargain with the prosecution was required to deny in open court that any bargain existed or that his plea was induced by any promises.
¶8Supreme Court Rule 402(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(d)) initially recognizes not only the existence and benefit of plea bargaining but does so with the requirement that the provision of the bargain be revealed in open court so that the Mai court may accept or reject the conditions thereof. Full disclosure of the terms of the plea bargain not only obviate possible misunderstanding or misrepresentation but also enable the court to proceed in accord with the terms of the bargain. If the trial judge believes the terms of the bargain are inappropriate the defendant is permitted by the rule to withdraw his proposed guilty plea, to plead not guilty and thereafter to avail himself of the further processes of the law.
¶9Having now fully approved the concept of plea bargaining it seems to me that the elements of full disclosure and good faith compliance with the terms of the bargain become essential ingredients in determining whether the plea is voluntary. Where, as in this case, a particular minimum sentence is recommended by the State’s Attorney, is agreed upon by the parties, and, where a greater minimum sentence could have been imposed in accord with the statute, the defendant may justify assume that his parole eligibility and hence his incarceration will be governed by the applicable statutory provisions concerning eligibilty for parole. In the instant case the State initially proposed that in return for a guilty plea a sentence of from 20 to 60 years would be recommended. The defendant unequivocally refused to accept such proposed recommendation. The effect of the post-sentencing statement is to modify or amend without the knowledge of the defendant the legal effect of the minimum sentence imposed, thereby constituting a failure of the court to accept and impose sentence in accord with the provisions of the plea bargain. If on the one hand the court may impose a minimum sentence less than could have otherwise been meaningfully imposed and at the same time by action undisclosed to defendant materially modify the minimum sentence, it seems to me that such action is contrary to our concept of fairness. The relationship between the court’s recommendation and the action of the Parole and Pardon Board is neither defined by statute nor judicial precedent, thus permitting covert informal arrangements to exist without formal sanction. Under such circumstances a defendant may be induced to plead guilty by a proposed recommendation which the prosecution is willing or anxious to make, well-knowing that without the knowledge of the defendant the sentence can be modified to the defendant’s disadvantage. If the court in accepting such a recommendation believes that the terms of the arrangement are satisfactory and acceptable it goes without saying that if the court then takes action which is in effect contrary to its previous holding concerning the appropriateness of a minimum sentence we have a situation likely to promote misunderstanding and confusion.
¶10Granted that in People v. Hawkins, 54 Ill.2d 247, 296 N.E.2d 725 the court held that Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495, was inapposite because the State’s Attorney in the Hawkins case made no recommendation concerning the post-sentence statement as a part of the plea bargain. But the court was able to do so because in the absence of any evidence of the effect of the recommendation it could not be said that the defendant’s sentence was adversely affected by the prosecution’s action. Whether or not the prosecution included as a specific term of the plea bargain any reference to a post-sentencing statement would seem to be immaterial when the effect of such action is, as in the present case, established by evidence. The conclusion that the defendant has been misled to his disadvantage seems to me inescapable. It also should be noted that in a plea bargaining situation the prosecution and the defense are not adversaries when it comes to seeming approval and performance of a plea bargain. The parties have a unity of interest, for whatever their individual reasons might be, in having a plea bargain accepted, approved and performed by the court. This places an added burden on the prosecution to see that the provisions of the bargain are earned out and, conversely, creates a duty that the prosecution take no action contrary to the terms of the agreement or which might defeat its terms.
¶11Doubtless, a post-sentencing statement is both a necessary and desirable procedure in acquainting the Department of Corrections with the details of the offense and tile factors which influenced the court in imposing the sentence which it did. However, I have substantial doubt that it is either necessary or desirable to include in such a statement any recommendation concerning the defendant’s future eligibility for parole. Such recommendations are usually sought at the time parole is considered and, accordingly, it would seem proper that any recommendations be made at that time. This is particularly true where the recommendation is inconsistent with what the court has already held to be an appropriate sentence. Where the prosecution intends to make such a recommendation it seems to me that due to the effect thereof, fundamental fairness requires that such intention be disclosed to the defendant.
¶12Historically courts justified disregard of the existence of plea bargaining by rationalizing that only guilty persons pleaded guilty and those accused of criminal offenses had no right to any particular sentence. Since such reasoning has now been rejected it seems inconsistent to me to now declare that parole is a matter of grace available to persons who have pleaded guilty only because they are guilty. The rules, regulations and standards which are applicable to parole under a system administered by a professional staff are designed to avoid the concept of parole as a matter of grace. While parole is not a matter of right, a criminal offender in custody does have the right to have his release on parole considered according to the rules and regulations free from arbitrary or capricious action.