dissenting:
The opinion of Mr. Justice Clark expressly states:
“If it were shown on the record in this case that the prosecutor informed defendant from the start that the death penalty would be sought if defendant did not plead guilty, had defendant subsequently pleaded guilty, and then had defendant reneged on that bargain, we would not prevent prosecutors from again seeking to execute him.” (84 Ill. 2d at 525.)
That is exactly what transpired in this case. Therefore, I would affirm the judgment of the trial court.
My colleagues engage in a prolonged discussion of prosecutorial vindictiveness, focusing primarily upon Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, yet ultimately conclude that the prosecutor in the instant case was not necessarily vindictive. (84 Ill. 2d at 525.) Nevertheless, they find a denial of defendant’s due process rights because the improper initial admonition led to defendant’s unawareness that the State could seek the death penalty following withdrawal of the first guilty plea.
In Bordenkircher, the State prosecutor carried out his threat made during plea-bargaining negotiations to seek an additional indictment if the defendant did not enter a guilty plea to the forgery offense with which he was originally charged. The Supreme Court first determined that North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (cited by my colleagues in this case), were inapplicable because those cases involved “the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ [Citation.]” (Bordenkircher v. Hayes (1978), 434 U.S. 357, 362, 54 L. Ed. 2d 604, 610, 98 S. Ct. 663, 667.) The court then analyzed the plea-bargaining process noting that “[d] efendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation.” (434 U.S. 357, 363, 54 L. Ed. 2d 604, 611, 98 S. Ct. 663, 668.) The court’s holding was narrow:
“We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.” 434 U.S. 357, 365, 54 L. Ed. 2d 604, 612, 98 S. Ct. 663, 669.
As my colleagues point out, the court excluded from its consideration the situation where the State brings an additional and more serious charge without prior notice after a defendant insists on pleading not guilty following plea negotiations pertaining only to the original indictment. This exclusion, taken in conjunction with the narrow holding, means only that the opinion, as it relates to prosecutorial vindictiveness, does not pertain to a situation where the State brings a more serious charge that it did not confront defendant with during the course of plea negotiations.
Even if the inference is correct that this latter situation would result in a finding of prosecutorial vindictiveness (see footnote 5 of the Bordenkircher opinion, where the court specifically passes no judgment on this situation (434 U.S. 357, 360 n.5, 54 L. Ed. 2d 604, 609 n.5, 98 S. Ct. 663, 666 n.5)), the circumstances in the instant case are distinguishable from those encompassed by the exception. The record nowhere indicates that the State sought a penalty that was not brought to defendant’s attention during the course of plea negotiations. Moreover, the holding in Bordenkircher, as well as the exclusion language, confines itself to the State’s seeking an additional and more serious charge. Although my colleagues find “[i]t requires no spectacular leap of logic” (84 Ill. 2d at 522) to analogize seeking a different and more serious charge to seeking a more serious sentence, I find Bordenkircher does not provide an adequate foundation from which to launch the leap they do make, nor is any additional authority cited. Finally, Bordenkircher focuses on prosecutorial conduct prior to the entry of a plea — it does not address the issue of withdrawal of a guilty plea.
Further, I disagree with the conclusion that, as a result of the trial judge’s improper admonishment, defendant was unaware the death penalty was a possible consequence at the time he withdrew his first guilty plea. At that time, on December 7, the following exchange took place between the State’s Attorney and defendant:
“Q. As part of that [the negotiated guilty plea], we— you knew also that the death penalty was not going to be sought, didn’t you, you would be going to jail rather than looking at a potential death penalty; didn’t you?
A. Yes.”
My colleagues state that defendant’s low intelligence and confusion preclude giving credence to the preceding dialogue, in light of the original improper admonition. Yet, at the hearing to withdraw the original plea of guilty on December 7, defendant’s attorney in no way indicated that any confusion experienced by the defendant pertained to that specific exchange or that any confusion was attributable to the improper admonition. I also disagree with the statement of my colleagues that by “acquiescing” in the trial court’s admonition that 80 years was the maximum penalty, the State’s Attorney “notified defendant that death was not a possible penalty for his crimes.” (84 Ill. 2d at 523.) My colleagues prefer to reach this strained conclusion rather than rely on plaintiff’s response when the above specific question was posed to him.
Additionally, when defendant asked the trial judge to withdraw his first guilty plea, defendant was represented by counsel, who appeared in court on November 20 and stated that defendant’s motion to vacate the guilty plea was against his advice. It is not unreasonable to assume that, as part of this advice, counsel notified defendant he could receive the death penalty. At that time, defendant dismissed his counsel and the court appointed the public defender to assist defendant in a motion to withdraw his guilty plea. My colleagues give no indication that the motion to withdraw was made because the maximum penalty that could be imposed was an 80-year prison term. Incidentally, during the course of the proceedings, defendant was represented by and received the advice of five different attorneys.
Collectively, these factors do not indicate to me that, at the time defendant withdrew his guilty plea, he was unaware that death was a possible consequence. This court has stated that “ ‘*** [T] he petitioner must bear the burden of showing that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.’ ” (People v. Hale (1980), 82 Ill. 2d 172, 176, quoting United States ex rel. Curtis v. Zelker (2d Cir. 1972), 466 F.2d 1092, 1098.) In the present case, the defendant has not met the burden to justify any misconception.
In this case, the judge gave an improper admonition at the time of the first guilty plea. The judge, however, allowed defendant to withdraw that plea, thereby nullifying any improper admonition previously given. The granting of the motion to withdraw placed defendant in the same position as if the original negoitated plea had not occurred. Subsequently, the defendant realized, in the words of my colleagues, “the inevitability of his conviction” and on February 6, before another judge, entered an unnegotiated plea of guilty to each indictment count. The trial judge’s extremely thorough admonishment was in full compliance with Rule 402. (73 Ill. 2d R. 402(a)(2).) The latter admonition reveals that the plea was not entered under the misconception that the terms of the plea agreement were still in effect. Indeed, the defendant repeatedly demonstrated his awareness that the death penalty was a possible consequence of the second guilty plea. Nevertheless, defendant persisted in pleading guilty.
Under the circumstances surrounding this case, I do not believe defendant’s due process rights were violated.
UNDERWOOD and WARD, JJ., join in this dissent.