dissenting:
I respectfully dissent from the result reached by my colleagues. I believe the judgment of the trial court should be affirmed.
I disagree with my colleagues on both of the issues discussed. First of all I believe the evidence is sufficient to support the trial court’s determination that an agreement existed including terms and conditions alleged by the defendant. The majority’s holding to the contrary represents a reweighing of the credibility of the testimony of the witnesses and then a substitution of its opinion on whether a contract was established for that of the trial judge. I think the pertinent evidence is set forth in the majority opinion and I think three observations can be made. First, it appears undisputed that an agreement of some kind was entered into. Second, the terms of the agreement as testified to by defense counsel was never directly contradicted in the testimony. Third, the testimony in behalf of the State, while tending to show the existence of an agreement, was vague as to what the terms of the agreement were. Based on these conclusions which can be drawn from the evidence, it seems to me the trial court’s conclusion finds ample support in the evidence and any conclusion it was against the manifest weight of the evidence substantially fails to give any weight to the evidence supporting the trial court’s judgment.
Turning to the issue relating to the majority’s holding that even if a contract existed it was unenforceable, I think a contrary result is required by the two principal Illinois cases cited, namely, People v. Boyt (1985), 109 Ill. 2d 403, and People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350.
Mabry v. Johnson (1984), 467 U.S. 504, 507, 81 L. Ed. 2d 437, 104 S. Ct. 2543 and Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 cited by the majority, are of some relevance in this subject area but as applied to the factual situation in the instant case they are only of general or peripheral interest. Santobello indicates that the course of conduct which the prosecution undertakes as the result of plea negotiations inducing the plea of guilty may not be disregarded, and the cause was remanded to determine the State’s policy of either enforcing the agreement or permitting the defendant to withdraw his plea. There can be little doubt that the rules in Santobello have been followed in Hlinois for a considerable period of time. Santobello was not reversed by the Mabry case but does discuss a different aspect of plea negotiations. The conclusion of Mabry is that so long as the agreement is executory on both sides an anticipatory breach or repudiation of the agreement by the prosecution is not constitutionally impermissible and such an agreement wholly executory is unenforceable. Where, as in Santobello, the only obligation of the negotiated plea agreement on the part of the defendant is to plead guilty, it is partially executory and wholly performed on his part at the time his guilty plea is entered. In Mabry, the prosecution’s agreement that a particular sentence would be served concurrently with other sentences was repudiated before the defendant pleaded guilty and hence was wholly ex-ecutory at the time of the repudiation, and the court held that the subsequent agreement which the defendant did accept was the operative agreement precluding any effort to enforce the earlier repudiated agreement.
Both Santobello and Mabry deal with cases where guilty pleas were entered and were cases where the only performance expected of the defendant was his guilty plea. In Mabry the court reasons that a right or interest based on an executory agreement does not give rise to a liberty interest entitled to constitutional protection. It does not purpose to hold that the obligation to plead guilty when performed is the only event giving rise to a constitutionally protected liberty interest. Nor does Mabry purport to deal specifically with plea agreements which are wholly performed by the defendant where such performance is other than a guilty plea.
As cited in the majority opinion, People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350, is a case where a negotiated agreement was deemed enforceable where the obligation of the defendant was to do something other than to plead guilty. The Starks case was discussed at some length in People v. Boyt (1985), 109 Ill. 2d 403, and, although approved by that court, was held inapplicable on the facts presented in Boyt. The Boyt case, which was called to our attention by the prosecution after the briefs were submitted, declined to enforce an agreement based on plea negotiations but did so because of the absence of facts which are present in the instant case. The majority in Boyt concluded the plaintiff’s agreement to testify against another party still remained executory where the other party pleaded guilty even though, as pointed out by the dissent, the prosecution obtained the benefit of the agreement by representing that the plaintiff’s testimony would be available to support the charges. According to the majority, the defendant in Boyt “did not provide the State with any new information, confess guilt, testify or otherwise incriminate herself in reliance on the State’s promise.”
In the instant case the plea agreement contemplated that the defendant would “provide the State with *** new information” and in fact the evidence shows the defendant did provide the new information in aid of making further arrests for drug violations. Such assistance may well have constituted a waiver of the defendant’s fifth amendment rights against self-incrimination. This is not a factual case as in Boyt where the prosecution repudiated its agreement when the defendant’s performance became impossible or unnecessary. Rather the defendant performed his obligations under the agreement, as the court so found, and enforcement of the agreement is required.
I also believe the evidence amply supports the trial court’s conclusion about the existence of a contract, its terms and conditions and its performance by the defendant. Although the State, in its brief, argued that such conclusions were against the manifest weight of the evidence, the majority, by way of dicta, has suggested that a contract was not proved because the trial court adopted a subjective standard rather than an objective standard in determining the existence of a contract. The remarks of the trial judge are quoted in the majority opinion, and I will not repeat them here. I think it is sufficient to say the judge based his decision on conflicting evidence including additional testimony, not described in the facts, including that of the defendant, his attorney, a former assistant State’s Attorney, and a narcotic agent. It is undisputed that an agreement was bargained for and reached between the prosecution and the defendant, that the details of the agreement as described by defense counsel were not directly denied by the prosecution and further the prosecution’s version of the agreement was both flexible and vague. In deciding what the terms of the agreement were, the judge, after reviewing the contradictory evidence, could and did remark on the reasonable inferences which the defendant could have drawn from the prosecution’s admitted statements and conduct without in any way applying an improper standard to the determination of the terms and conditions of the agreement. I would affirm the judgment of the trial court.