{ "id": 3600521, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBAN F. SAUNDERS, Defendant-Appellant", "name_abbreviation": "People v. Saunders", "decision_date": "1985-07-03", "docket_number": "No. 83\u20141040", "first_page": "594", "last_page": "608", "citations": [ { "type": "official", "cite": "135 Ill. App. 3d 594" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "weight": 2, "pin_cites": [ { "page": "498-99" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "402 N.E.2d 810", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225092 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0639-01" ] }, { "cite": "396 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. 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Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "439 U.S. 824", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11347300, 11347877, 11347530, 11347211, 11347757, 11347634, 11348020, 11348148, 11347414, 11348311 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/439/0824-02", "/us/439/0824-07", "/us/439/0824-04", "/us/439/0824-01", "/us/439/0824-06", "/us/439/0824-05", "/us/439/0824-08", "/us/439/0824-09", "/us/439/0824-03", "/us/439/0824-10" ] }, { "cite": "571 F.2d 708", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 922530 ], "weight": 7, "year": 1978, "pin_cites": [ { "page": "730-32" }, { "page": "730-32" }, { "page": "731" }, { "page": "731" }, { "page": "732-33" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/f2d/571/0708-01" ] }, { "cite": "419 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3126593 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0719-01" ] }, { "cite": "401 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "78 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073237 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0465-01" ] }, { "cite": "403 N.E.2d 229", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "79 Ill. 2d 341", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070433 ], "weight": 4, "pin_cites": [ { "page": "351" }, { "page": "351" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0341-01" ] }, { "cite": "454 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5516199 ], "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0228-01" ] }, { "cite": "239 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "40 Ill. 2d 308", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856663 ], "weight": 2, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0308-01" ] }, { "cite": "413 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1968, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158841 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "419" }, { "page": "421-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0416-01" ] }, { "cite": "470 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146600 ], "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0218-01" ] }, { "cite": "106 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138191 ], "weight": 2, "pin_cites": [ { "page": "448-49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0441-01" ] }, { "cite": "458 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592858 ], "pin_cites": [ { "page": "627-29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0625-01" ] }, { "cite": "471 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490629 ], "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0001-01" ] }, { "cite": "364 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813107 ], "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0055-01" ] }, { "cite": "435 N.E.2d 1327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 673", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031274 ], "weight": 2, "pin_cites": [ { "page": "686" }, { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0673-01" ] } ], "analysis": { "cardinality": 1189, "char_count": 33744, "ocr_confidence": 0.762, "pagerank": { "raw": 2.056830491549189e-07, "percentile": 0.756012030044995 }, "sha256": "a7393f2e6ce7756b0bf97276f6e741644019cb3ebd8dbcd47d00e5d8d55cb94d", "simhash": "1:e92421d470c74ccc", "word_count": 5587 }, "last_updated": "2023-07-14T21:44:15.524885+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBAN F. SAUNDERS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPF\ndelivered the opinion of the court:\nDefendant appeals from his conviction of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(a)(1)) following a jury trial in the circuit court of Lee County. He was sentenced to a term of 40 years\u2019 imprisonment. On appeal, defendant contends that: (1) the trial court erred in denying his motion for substitution of judges; (2) defendant\u2019s substantial compliance with the terms of a previous plea agreement precluded his prosecution for murder; (3) defendant was denied the effective assistance of counsel at the time the agreement was reached; (4) the use at trial of defendant\u2019s prior testimony in the trial of his co-conspirator and certain of defendant\u2019s statements to the prosecutor were violative of Supreme Court Rule 402(f) and principles of due process and voluntariness; (5) defendant is entitled to a reduction in his sentence based on his performance of the prior plea agreement; and, (6) the court improperly considered the manner in which the victim\u2019s body was disposed of as an aggravating factor.\nOn June 6, 1983, defendant was charged by information with one count of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 1(a)(1)) and one count of conspiracy (murder) (Ill. Rev. Stat. 1981, ch. 38, par. 8 \u2014 2(a)). The charges arose from defendant\u2019s involvement in the strangulation death of Stuart Kelly Young on October 16, 1981. On June 24, 1983, defendant moved for a substitution of judges, which was denied.\nPrior to trial, defendant moved to suppress all oral and written statements, admissions, and testimony, either exculpatory or inculpatory, which were alleged to have been made prior to, at the time of, or subsequent to defendant\u2019s arrest on March 25, 1983. The motion alleged, specifically, that on November 9, 1981, and on subsequent dates thereto, defendant was interrogated by law enforcement officials from Lee and Ogle counties, that on that date defendant requested that an attorney confer with him, and that attorney David T. Fritts was contacted and discussed various matters concerning the death of Stuart Kelly Young. The motion also alleged that following these discussions attorney Fritts entered into negotiations with the State\u2019s Attorneys of Lee and Ogle counties, and that prior to any statements being made by defendant a negotiated agreement was entered into between defendant and the State\u2019s Attorneys. The motion further alleged that any statements, admissions, and testimony which followed the making of said agreement should be suppressed as being obtained as a result of promises of leniency and/or immunity to the defendant which were not fulfilled and were therefore involuntary. A motion to dismiss was also filed on the basis that defendant had received immunity from prosecution for the offense charged.\nAccording to the terms of the negotiated agreement, defendant \u201cagreed to give a full and complete statement as to his knowledge of the murder of Stuart Kelly Young\u201d to the authorities. State\u2019s Attorney Schumacher testified at a motion to dismiss hearing that he had stressed to Fritts that the agreement would no longer be valid if Saunders kept information from the police. Defendant also agreed to testify in conformance with his statement to the police against any defendant who was arrested as a result of his statement. Additionally, defendant agreed to undergo a polygraph examination, which he did and passed. In exchange for defendant\u2019s cooperation, the Lee and Ogle County State\u2019s Attorneys\u2019 offices agreed to charge defendant with the offense of concealing a homicide in a county of proper venue \u201cif [defendant] could not be charged as a principal in the murder\u201d based upon defendant\u2019s statement and the polygraph examination. Further, the State\u2019s Attorneys agreed to recommend that defendant be sentenced to probation \u201cif he did not physically contribute to the death of Stuart Kelly Young.\u201d However, if defendant did physically contribute to such death, \u201cbut said contribution did not rise to the level of a principal in the offense,\u201d it would be recommended that defendant be sentenced to two years in the Department of Corrections. Finally, the State\u2019s Attorneys agreed that defendant would \u201ceither be released on a recognizance bond on a charge of Concealing a Homicide or would be charged at a later date.\u201d\nDefendant\u2019s motion to dismiss alleged that pursuant to the advice of counsel, defendant \u201ccomplied in all respects with the agreement\u201d by giving \u201cseveral full and complete statements\u201d as to his knowledge of the murder, by giving police officials various leads which developed later evidence, by taking the polygraph, by testifying on February 12, 1983, against Charles Danek, defendant\u2019s co-conspirator in the murder, and by speaking with the investigators of both counties concerning additional clarification which they required. Finally, defendant alleged that because he complied in all respects with the foregoing agreement, he was immune from prosecution on the present charges of murder and conspiracy (murder). The State responded to defendant\u2019s motion to dismiss by admitting the existence of the agreement and the substance of its terms, but denying that defendant gave a full and complete statement prior to the trial of Danek. The State argued that defendant therefore did not comply in all respects with the agreement.\nAt the hearing on defendant\u2019s motion to dismiss, defense attorney David Fritts testified that prior to any negotiations, he advised defendant of his Miranda rights. Following the completion of the negotiations, Fritts advised defendant to \u201c[t]ell them exactly what he told me, not to leave anything out, to be complete and honest and open ***.\u201d Counsel advised defendant that the most he would be getting was two years in prison; other than this, defendant did not know the specifics of the agreement.\nAt the hearing, Fritts also testified that at Danek\u2019s trial in February 1982, Fritts discovered that defendant had not disclosed all the information either to the authorities or to Fritts: namely, that defendant had placed a syringe of air into the victim\u2019s arm. After trial, Fritts discovered that defendant and Danek had been in a car accident together on the Peoria Avenue Bridge. Additionally, in January 1983 it was discovered that certain evidence had been thrown off the Grand Detour Bridge, and that other evidence had been discarded on the Rock Island blacktop. Dixon police officer Larry Hagen stated that a witness to the accident was discovered who might have provided corroborative testimony at Danek\u2019s trial. Danek was ultimately acquitted of the charges against him.\nAt the hearing on the motion to dismiss, the prosecutor argued that defendant\u2019s use of the syringe made him a principal in the crime. It was further argued that defendant violated the terms of the agreement by failing to disclose all information prior to Danek\u2019s trial. Defendant\u2019s motion to dismiss was denied.\nAt the hearing on the motion to suppress, the prosecutor originally agreed that defendant\u2019s statements made prior to July 12, 1982, were plea-related and therefore inadmissible under Rule 402(f) (87 Ill. 2d R. 402(f)). Defendant\u2019s motion to suppress was therefore granted. The stipulation covered Saunders\u2019 testimony at Danek\u2019s trial and a January 31, 1982, telephone conversation between defendant and State\u2019s Attorney Stockton. Later, the prosecutor was allowed to withdraw his stipulation that the testimony was inadmissible. Following a subsequent hearing on defendant\u2019s motion to suppress, the motion was denied as to both the telephone conversation and defendant\u2019s prior testimony at Danek\u2019s trial.\nThe cause then proceeded to trial. The underlying facts surrounding the offense at bar are not relevant to the issues raised by defendant on appeal, and will therefore be discussed only briefly here. According to Saunders\u2019 testimony at Danek\u2019s trial, defendant and Charles Danek conspired to murder Stuart Kelly Young, apparently because Young was blackmailing Danek. Around October 16, 1981, Danek and Saunders were on their way back to Saunders\u2019 apartment when they saw Young. The three men went to Saunders\u2019 apartment and began to play cards. Danek left the game to go to the bathroom and returned with an 8-inch long piece of rope, which he slipped around Young\u2019s neck. Saunders watched as Danek strangled Young. Then defendant got up to keep Young\u2019s chair from falling over and making noise. Saunders also \u201cbatted\u201d Young\u2019s hands away from the rope. After Young was dead, the defendant used a syringe to inject air into Young\u2019s arm.\nAfter hearing the evidence and arguments of counsel, the jury found defendant guilty of the offense of murder. Following the denial of defendant\u2019s motion for a new trial and the sentencing of defendant, a timely notice of appeal was filed.\nDefendant first contends that the lower court erred when it denied his motion for substitution of judges on the ground that it was not timely filed and that it named too many judges.\nInitially, we note that the instant argument was not included in defendant\u2019s post-trial motion for a new trial. An error not raised in the post-trial motion is waived, even when the issue was raised in the trial court and the defendant\u2019s objection was overruled. (People v. Winston (1982), 106 Ill. App. 3d 673, 686, 435 N.E.2d 1327.) When a claim of error has not been so preserved it may only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)). The doctrine of plain error may be invoked where the evidence is closely balanced or where the error was of such a magnitude that the accused was denied a fair trial. (106 Ill. App. 3d 673, 686, 435 N.E.2d 1327.) After reviewing the merits of defendant\u2019s argument we decline to invoke the plain error rule here.\nDefendant\u2019s motion to substitute judges stated that it was being filed pursuant to section 114 \u2014 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 5(a)). That section provides:\nSec. 114 \u2014 5. Substitution of Judge, (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 5(a).)\nIt is apparent on its face that defendant\u2019s motion for a substitution of judges was not in proper form. The motion named three judges\u2014 Judge Bales, Judge Rapp, and Judge Knowlton \u2014 rather than two, which is the maximum permitted under the above-quoted statute. Defendant argued that the motion was one \u201cfor cause\u201d as to Judge Knowlton (see Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 5(c)), and thus that only two judges were actually named pursuant to section 114\u2014 5(a). However, even assuming this to be true, and assuming defendant could properly combine a motion to substitute \u201cnot for cause\u201d with a motion to substitute \u201cfor cause,\u201d no affidavit was ever filed in support of the \u201cfor cause\u201d portion of the motion, as required by section 114 \u2014 5(c) (Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 5(c)). While defense counsel indicated at the hearing that he intended to file an affidavit as to Judge Knowlton, no affidavit was forthcoming. Defense counsel at the hearing also stated that that portion of the motion relating to Judge Knowlton had been withdrawn, but this claim was disputed by the State\u2019s Attorney, and no evidence is contained in the record that it was in fact withdrawn. Thus, it is clear that the motion was not in proper form, and denial of the motion on this basis was proper. People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 63, 364 N.E.2d 50.\nAdditionally, it is clear that the motion was not timely filed. The record sheet indicates that the case was placed on Judge Bales\u2019 trial calendar on June 6, 1983. The motion was not filed until June 24, 1983, 18 days later. Section 114 \u2014 5(a) of the statute clearly states that any such motion must be filed within 10 days after the cause has been placed on a judge\u2019s trial call. (Ill. Rev. Stat. 1983, ch. 38, par. 114\u2014 5(a).) Although counsel on appeal argues that notice of the trial judge was not received until the arraignment on June 20, 1983, the record indicates to the contrary. At a hearing on June 6, 1983, defense counsel stated to the court, \u201c[The arraignment is] before Judge Bales, is that correct, Your Honor?\u201d The court responded, \u201cI believe.\u201d We think this comment is indicative of counsel\u2019s awareness on June 6 that the cause had been placed on Judge Bales\u2019 trial calendar.\nFinally, we reject defendant\u2019s claim that the motion was improperly heard by Judge Bales since he was a named judge in the motion. Defendant failed to object on this basis during the hearing and thus it is waived on appeal. Further, there is nothing in the language in section 114 \u2014 5(a) (Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 5(a)) which prevents a judge from determining in the first instance whether the motion for substitution is in proper form or is filed within the time limit set forth in the statute.\nDefendant next contends that his due process rights were violated when the State prosecuted him for murder following his substantial compliance with the terms of the prior plea agreement. Utilizing a contract law analysis, defendant argues that because his breach of the agreement was not \u201cmaterial,\u201d the State must, in essence, \u201cspecifically perform\u201d its promise to prosecute defendant only on the charge of concealing a homicidal death. (Ill. Rev. Stat. 1981, ch. 38, par. 9 \u2014 3.1(a).) The State argues that this issue has been waived. Alternatively, on the merits the State maintains that the due process clause was not violated because the defendant was not \u201cdeprived of [his] liberty in any fundamentally unfair way\u201d (see People v. Boyt (1984), 129 Ill. App. 3d 1, 21, 471 N.E.2d 897), and because the defendant\u2019s breach was material.\nInitially, we consider the State\u2019s contention that defendant has waived this issue for his failure to raise it in his post-trial motion. While the general rule is that such a failure constitutes waiver, we will consider the issue in light of the substantial question of constitutionality which is involved and the seriousness of the charge here. People v. McNeal (1983), 120 Ill. App. 3d 625, 627-29, 458 N.E.2d 630.\nIn People v. Starks (1985), 106 Ill. 2d 441, our supreme court had occasion to consider the question whether a defendant was entitled to enforcement of an agreement between the State and the defendant which required the State to dismiss its case against defendant if the defendant took and passed a polygraph. In that case, the defendant did take and pass a polygraph pursuant to the terms of the agreement, but the State subsequently reneged on its end of the bargain. The court discussed the bargaining relationship between the State and a defendant charged with a crime, as well as the importance of maintaining the integrity of the plea-bargaining process. The court utilized certain contract law principles, i.e., \u201clegal consideration,\u201d in determining that the defendant was entitled to enforcement of the agreement, stating that consideration was given by defendant when he submitted to the polygraph examination since by doing so defendant surrendered his fifth amendment privilege against self-incrimination. (106 Ill. 2d 441, 448-49.) Having thus reasoned that legal consideration was present, the court held that if the State in fact made an agreement with the defendant, it was bound by that agreement.\nWhile it is clear that the defendant here gave up his constitutionally protected right to remain silent in reliance upon the State\u2019s promise to prosecute him only on the charge of concealing a homicidal death, this was not the entire agreement between the parties. Pursuant to the agreement, defendant was also to provide \u201ca full and complete statement as to his knowledge of the murder\u201d of Stuart Kelly Young. According to State\u2019s Attorney Schumacher, the agreement\u2019s validity was dependent upon defendant\u2019s full and complete disclosure to the police. Attorney Fritts also indicated that this was his understanding of the agreement. It is also undisputed that defendant failed to tell everything he knew about the murder, and that after the trial of Danek the State learned additional facts through third parties which, upon investigation, might have prevented Danek\u2019s acquittal. The purpose of the agreement here was to obtain evidence which would lead to the murder conviction of Charles Danek. Without defendant\u2019s cooperation no case against Danek could be developed. Because this case deals with the defendant\u2019s omission of certain facts, which omission resulted in a failure of the authorities to investigate all the circumstances surrounding the murder, it is impossible to ascertain the precise degree of damage caused by defendant\u2019s failure to disclose everything he knew. Under these circumstances, we conclude that the deprivation of defendant\u2019s liberty interest was not due to the State\u2019s unwarranted repudiation of the negotiated agreement, but rather to the defendant\u2019s own failure to fulfill his end of the bargain. Having so concluded, we find no due process violation in the State\u2019s subsequent prosecution of defendant on the charge of murder. We believe that to hold otherwise would encourage less than full compliance by defendants with the terms of their negotiated agreements and would undermine the value in and purpose of the plea-bargaining process.\nDefendant next contends that his breach of the negotiated agreement was due to the ineffective assistance rendered by defense counsel. Specifically, defendant contends that counsel was ineffective for failing to fully disclose all the terms of the plea agreement. We disagree.\nIn order to establish ineffective assistance of counsel, defendant must demonstrate: (1) that his counsel\u2019s performance was deficient; and, (2) that the deficient performance prejudiced the defense. People v. Barnard (1984), 104 Ill. 2d 218, 237, 470 N.E.2d 1005.\nA defendant has a constitutional right to be advised by his counsel of the State\u2019s offer of a lesser degree of punishment in return for a plea of guilty to a reduced charge. (People v. Ferguson (1980), 90 Ill. App. 3d 416, 419, 413 N.E.2d 135; People v. Whitfield (1968), 40 Ill. 2d 308, 311, 239 N.E.2d 850.) Further, under the ABA Standards, The Defense Function, a lawyer has a duty \u201cto communicate fully to his client the substance of the discussions, since the accused, not the lawyer, has the right to pass on prosecution proposals.\u201d (ABA Standards, The Defense Function sec. 6.2, at 250 (1971).) If an \u201caccused\u2019s choice on the question of a guilty plea is to be an informed one, he must act with full awareness of his alternatives, including any that arise from proposals made by the prosecutor.\u201d ABA Standards, The Defense Function sec. 6.2, at 250 (1971); see also People v. Ferguson (1980), 90 Ill. App. 3d 416, 421-22, 413 N.E.2d 135.\nIn the instant case, defendant was in fact advised that an offer had been made by the State. (Cf. People v. Ferguson (1980), 90 Ill. App. 3d 416, 413 N.E.2d 135; People v. Whitfield (1968), 40 Ill. 2d 308, 239 N.E.2d 850.) Further, attorney Fritts testified that he did in fact advise defendant \u201cof the parameters of the agreement,\u201d including the fact that he was to tell the authorities \u201cexactly what he told me, not to leave anything out, to be complete and honest and open.\u201d Defense counsel also advised that the most defendant would be getting \u201cif he told the truth\u201d would be two years in prison. Because defendant was advised of this most critical portion of the agreement, he cannot now complain that his failure to tell everything he knew was due to his counsel\u2019s lack of communication on this point.\nFurther, defense counsel\u2019s reason for not telling defendant the other aspects of the plea agreement was his concern that defendant might tailor his statement to fit the agreement rather than merely telling the truth. Thus, counsel\u2019s silence on the remaining portions of the agreement was the tactic used to ensure that the plea agreement would not be violated by defendant\u2019s manufactured statement. Additionally, defense counsel was not aware of defendant\u2019s use of the syringe at the time of the negotiations, and the agreement was reached based upon the disclosures that were made to Fritts by defendant. Had Fritts known of this circumstance, he likely could have negotiated with the State on this point as well. Thus, we conclude that the failure to communicate every aspect of the agreement to defendant was neither incompetency of counsel, nor resulted in prejudice to defendant.\nDefendant next argues that his previous trial testimony and his telephoned statements made to the prosecutor should have been suppressed as violative of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)) and principles of due process and voluntariness. He also argues that the trial court erred in permitting the prosecutor to withdraw his previous stipulation that these statements were inadmissible under Supreme Court Rule 402(f).\nInitially, we find no error in the trial court\u2019s allowing the prosecutor to withdraw his previous stipulation. The stipulation was essentially that the State would not seek the admission of these statements because it agreed with the defendant that they were \u201cinadmissible pursuant to Supreme Court Rule 402(f).\u201d (87 Ill. 2d R. 402(f).) However, while a stipulation between parties as to the facts is conclusive so long as it stands, parties cannot bind a court by stipulating to a question of law or the legal effect of facts. (Domagalski v. Industrial Com. (1983), 97 Ill. 2d 228, 235, 454 N.E.2d 295.) The State\u2019s stipulation in the present case that these statements were inadmissible under Rule 402(f) was a stipulation of law which could not bind the court. Thus, a subsequent withdrawal of the stipulation and a hearing on the merits of the question was not error.\nConsidering the merits of defendant\u2019s appellate contention, the defendant first claims that the testimony and statement were plea-related under Rule 402(f), which provides:\n\u201cIf a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.\u201d (87 Ill. 2d R. 402(f).)\nImplicit in the promulgation of this rule was the Supreme Court\u2019s recognition of the significance of the negotiation process to the administration of justice. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) The purpose of the rule is \u201cto encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussion at his peril.\u201d (79 Ill. 2d 341, 351, 403 N.E.2d 229.) Illinois case law discussing what constitutes a \u201cplea-related\u201d discussion pursuant to Supreme Court Rule 402(f) has focused upon discussions occurring prior to the reaching of an agreement between the parties. (See, e.g., People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517; People v. Victory (1981), 94 Ill. App. 3d 719, 419 N.E.2d 73.) While neither the parties nor this court could discover any Illinois cases dealing with statements made after a negotiated agreement has been reached, we will consider several Federal court cases which have dealt with this issue. See United States v. Stirling (2d Cir. 1978), 571 F.2d 708, 730-32, cert. denied (1978), 439 U.S. 824, 58 L. Ed. 2d 116, 99 S. Ct. 93; United States v. Grant (8th Cir. 1980), 622 F.2d 308; United States v. Davis (D.C. Cir. 1979), 617 F.2d 677.\nIn United States v. Stirling (2d Cir. 1978), 571 F.2d 708, 730-32, cert. denied (1978), 439 U.S. 824, 58 L. Ed. 2d 116, 99 S. Ct. 93, the court considered the question whether a defendant\u2019s testimony to a grand jury, given pursuant to the terms of a plea agreement, was inadmissible under Fed. R. Crim. P. 11(e)(6). That rule barred the use in civil or criminal proceedings of any statements made \u201cin connection with, and relevant to\u201d any offer or plea. (See United States v. Stirling (2d Cir. 1978), 571 F.2d 708, 730 n.17, for substance of rule.) The court discussed the policy behind the rule, saying that \u201cfor plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him.\u201d (571 F.2d 708, 731.) However, the court stated that \u201c \u2018the primary concern of the draftsman *** was with fairly formal plea bargaining between the United States Attorney and counsel for defendant after charges had been, or were about to be made.\u2019 \u201d (571 F.2d 708, 731, quoting 2 Weinstein\u2019s Evidence par. 410[07], at 410-40.) Defendant in Stirling, after testifying before the grand jury, failed to plead guilty thereby violating the terms of the agreement. Under these circumstances the court held that the grand jury testimony was admissible against defendant at a subsequent trial, stating:\n\u201cIt simply cannot be said that Schulz was engaged in a \u2018discussion\u2019 with the Grand Jury in an attempt to obtain concessions from the government in exchange for his plea *** The plea agreement had already been reached by the time Schulz went before the Grand Jury. The negotiations were over. All Schulz had to do was live up to his end of the bargain. His failure to do so justly exposed him to prosecutorial use of his Grand Jury testimony.\u201d (571 F.2d 708, 732-33.)\nThe court further stated:\n\u201cIt may be true that Schulz would not have testified before the Grand Jury had it not been for the plea agreement, but this is not in itself sufficient for suppression of that testimony under Rule 11(e)(6). Schulz voluntarily negotiated his plea agreement, voluntarily appeared before the Grand Jury, and voluntarily decided to violate his plea agreement. He could have relied on the agreement to protect himself.\n* * *\nHis breach of the agreement removed that protection. Such a result can hardly be said to undercut the confidence and candor needed for successful and fair plea negotiations. It simply means that once the agreement is finalized its terms will be enforced.\u201d (571 F.2d 708, 732.)\nSee also United States v. Grant (8th Cir. 1980), 622 F.2d 308; United States v. Davis (D.C. Cir. 1979), 617 F.2d 677.\nIn Davis, the court considered the same issue and reached the same conclusion, stating:\n\u201cRule 11(e)(6) seeks to promote negotiated dispositions of criminal cases by giving the defendant protection from involuntary self-incrimination at two ends of the plea-bargaining spectrum: while he is negotiating over the disposition of his case and while he is offering or entering a plea that is rejected or later withdrawn.\n* * *\nExcluding testimony made after-and pursuant to-the agreement would not serve the purpose of encouraging compromise. Indeed, such a rule would permit a defendant to breach his bargain with impunity: he could renounce the agreement and return to the status quo ante whenever he chose, even though the Government has no parallel power to rescind the compromise unilaterally. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). The drafters of rule 11(e)(6) could not have contemplated such a result.\u201d 617 F.2d 677, 683, 685.\nWe adopt the rationale of these authorities, and conclude that defendant\u2019s prior testimony and statement to the prosecutor in the instant case did not fall within the ambit of Supreme Court Rule 402(f). (87 Ill. 2d R. 402(f).) This is not a situation where the agreement has been withdrawn or unaccepted by the court, but is rather a situation where the defendant himself was in breach of the agreement. Being in this position, the defendant cannot complain about the State\u2019s failure to live up to its end of the bargain. Further, the defendant\u2019s testimony, although made after and pursuant to the agreement, was not made while he was negotiating over the disposition of his case. Thus, the purpose of the rule, i.e., to \u201cencourage the negotiated disposition of criminal cases,\u201d would not be served by rendering the statements inadmissible. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) In fact, as pointed out by the court in Davis, such a holding would permit the defendant to \u201cbreach his bargain with impunity.\u201d United States v. Davis (D.C. Cir. 1979), 617 F.2d 677, 685.\nWe also reject defendant\u2019s contention that the testimony and statement were involuntarily given because they were made pursuant to the agreement. A promise of leniency is only one factor to be considered in determining whether a statement was voluntarily given. (People v. Noe (1980), 86 Ill. App. 3d 762, 765, 408 N.E.2d 483.) The ultimate question is whether, considering the totality of the attendant circumstances, defendant\u2019s will was overborne at the time he confessed. 86 Ill. App. 3d 762, 765, 408 N.E.2d 483.\nThe circumstances in the instant case make it clear that defendant\u2019s will was not overborne at the time he made the statement to the prosecutor, or when he gave his previous trial testimony. In fact, the record indicates that it was defendant who wished to enter into a negotiated agreement, that defense counsel went to the authorities specifically to see \u201cwhat might be arranged,\u201d and that defendant was fully advised of his Miranda rights. Further, it is clear that defendant initiated the telephone conversation with the prosecutor, who later advised defendant to go through his attorney. There is nothing in the record to indicate that defendant\u2019s testimony at Danek\u2019s trial was the product of an overborne will. His counsel apparently was available for consultation throughout the trial, and defendant himself stated that he gave his testimony because the circumstances were \u201cbothering his conscience.\u201d Under these circumstances, we conclude that neither the testimony nor the telephoned statement were involuntarily given. Thus, the admission of this evidence at defendant\u2019s trial was not error.\nRelying upon contract principles, defendant next argues that he should be entitled to a reduction in his sentence because of his \u201cgood faith\u201d partial performance under the negotiated agreement. This argument is without merit. Plea agreements are generally governed by principles of contract law and where broken will entitle the defendant to withdraw his plea. (Cf. Government of the Virgin Islands v. Scotland (3d Cir. 1980), 614 F.2d 360.) Here, however, there was no plea to withdraw, and the case was tried. In the absence of a valid plea agreement, the sentencing function is totally within the power of the judiciary to perform. (Cf. People v. Weeks (1976), 37 Ill. App. 3d 41, 44, 344 N.E.2d 791, where it was held that an agreement in plea negotiations is at most a recommendation and the sentence is up to the court and the court alone.) Defendant does not argue that his sentence was otherwise excessive or that the statutory factors were not considered by the court in sentencing. The sentence received was within the statutory limits prescribed for the crime of murder (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20141(a)), and therefore the sentence is presumed to be valid. People v. Rich (1979), 77 Ill. App. 3d 902, 904, 396 N.E.2d 824.\nDefendant\u2019s .final contention is that the court improperly considered the manner in which the victim\u2019s body was disposed of as an aggravating factor for sentencing purposes. This argument, too, is without merit. Relying upon People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810, defendant contends that some decomposition is inherent when the body is concealed. However, defendant here was not prosecuted for concealing a homicide, as in Sehlemm, but was prosecuted for and convicted of the offense of murder. Concealment of a body and exposure of that body to the elements is not inherent in every murder. In People v. LaPointe (1981), 88 Ill. 2d 482, 498-99, 431 N.E.2d 344, the court held that a trial court may properly consider as an aggravating factor proof of other criminal conduct for which no prosecution and conviction ensued. Here, defendant admitted the fact of concealment and thus the trustworthiness of this evidence was not in question. (88 Ill. 2d 482, 498, 431 N.E.2d 344.) We therefore conclude that the trial court\u2019s consideration of this factor in sentencing was not error.\nFor the reasons expressed above, the judgment of the circuit court of Lee County is affirmed.\nAffirmed.\nREINHARD and SCHNAKE, JJ., concur.", "type": "majority", "author": "JUSTICE HOPF" } ], "attorneys": [ "G. Joseph Weller, Paul J. Glaser, and Michael F. Braun, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Eugene L. Stockton, State\u2019s Attorney, of Dixon (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBAN F. SAUNDERS, Defendant-Appellant.\nSecond District\nNo. 83\u20141040\nOpinion filed July 3, 1985.\nRehearing denied September 12, 1985.\nG. Joseph Weller, Paul J. Glaser, and Michael F. Braun, all of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nEugene L. Stockton, State\u2019s Attorney, of Dixon (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0594-01", "first_page_order": 616, "last_page_order": 630 }