dissenting:
I cannot agree with the majority and I dissent for two reasons: the petition did not comply with the procedural requirements of the act, and the voluntariness of his plea as affirmed on appeal by this court is res judicata.
This was a negotiated plea agreement wherein the State agreed to dismiss a murder charge in exchange for the defendant’s plea of guilty to attempt (armed robbery). There was no agreement as to a recommendation of sentence, and after a sentencing hearing, Partin was sentenced to 2 — 14 years. As we said in affirming the conviction here (People v. Seymour (1972), 8 Ill. App. 3d 745, 291 N.E.2d 256), “The record shows full compliance by the trial court with Supreme Court Rule 402 and with the finding of the court that both the plea of guilty and the plea negotitation were knowingly, voluntarily and freely made.”
To now allow defendant another bite of the same apple — contesting the voluntariness of his plea — seems to me to do nothing more than further delay the judicial system from its mandated duty to administer substantial justice.
Procedurally, the Post-conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122 — 2) requires that “The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” In the case before us Partin had no supporting “affidavits, records, or other evidence” attached to his petition, nor did he explain “why the same are not attached.” His codefendant, Seymour, was present when their self-employed trial counsel voiced “technically guilty” in open court at the time of the plea, yet Seymour’s affidavit is not attached to the petition, nor does Partin explain why it isn’t. Partin had already had his first post-conviction petition dismissed, was granted leave to amend, and thereafter filed an amended and a second amended petition for post-conviction relief.
The majority’s position is grounded solely on Williams. A feeble foundation at best. It is simply not controlling in this ease and is easily distinguished. There, Williams apparently had no other source for an affidavit other than himself. But here, Partin had a codefendant (Seymour). There, Williams alleged that his counsel made misrepresentations as to what the sentence would be. Here, counsel stated to the court that his clients are “prepared to plea [sic] technically guilty.” Certainly, telling a defendant that he will receive a lighter sentence than he in fact receives is a far cry from telling him to plead “technically guilty” in order to render the plea incompetent. What does that mean? More importantly, what did the defendant understand it to mean? He does not say in his petition, nor does he allege how he was misled, or how his rights were prejudiced.
But most importantly, a full reading of the record of the negotiated plea leaves no doubt in this member’s mind that this matter was finalized when this case was affirmed on appeal. Here is the way the scenario reads:
“MR. FREY: I am prepared, your Honor, to state for the record that after a consultation with the State’s Attorney my clients are prepared to plea [sic] technically guilty.
MR. SEYMOUR: Hold it. I’m not pleading technically guilty to nothing. I’m not guilty of nothing, and I’m not pleading guilty of nothing.
« » «
[Mr. Seymour requests to go to the hospital and this point is discussed by Mr. Frey and the court.]
# # e
THE COURT: All right. Now, gentlemen, let’s just make sure that we’ve got everything squared for the record. Before I can accept the plea of guilty, which I gather what you’re talking about is Count IV which is the offense of attempt — .
MR. FREY: That’s right.
THE COURT: —the defendants have to be admonished concerning their rights, Mr. Frey, and indicate a willingness to enter a plea of guilty to Count IV.
MR. FREY: To Count IV.
THE COURT: All right. Now, is this what Mr. Seymour and Mr. Partin want to do?
MR. FREY: This is what Mr. Partin clearly wants to do. # # ”
THE COURT: Now, Mr. Partin, is that what you want to do? MR. PARTIN: Right.
THE COURT: Enter a plea of guilty to Count IV?
MR. PARTIN: Right.”
The trial judge then proceeded to thoroughly comply with Rule 402, during which this occurred:
“THE COURT: Have any promises of any kind or nature been made to you or any threats been made to you by the State’s Attorney, your attorney or by any other person or persons to induce you to make your motion to withdraw your plea of not guilty and to enter a plea of guilty?
MR. PARTIN: No, Your Honor.”
And all of this took place after Partin’s lawyer uttered the alleged tainting remark. If there ever existed any doubt in Partin’s mind because of the phrase “technically guilty”, it was certainly disspelled by this colloquy. Partin’s plea of guilty was unequivocal, with no reservation. This same record was before this court before — and the conviction was affirmed, the very issue of voluntariness inherently ruled upon. And I believe our prior affirmance is res judicata to the sole issue posed in this case, in full keeping with the Illinois Supreme Court’s holding in People v. James (1970), 46 Ill. 2d 71, 74, 263 N.E.2d 5, 7:
“We have heretofore consistently held that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court and all issues which could have been presented to that court and which were not are considered to have been waived.”
The defendant has had his day in court, plus two appeals. And all on a negotiated plea of guilty which involved the very question of voluntariness as raised here. This case should have ended upon the taking of the plea and, to my view, was finalized upon our earlier affirmance.
The trial court should be affirmed.