{ "id": 3581898, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID S. PIRT, Defendant-Appellant", "name_abbreviation": "People v. Pirt", "decision_date": "1987-12-30", "docket_number": "No. 2\u201486\u20141141", "first_page": "379", "last_page": "384", "citations": [ { "type": "official", "cite": "164 Ill. App. 3d 379" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "47 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903265 ], "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0114-01" ] }, { "cite": "127 Ill. App. 3d 179", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563317 ], "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0179-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 697-98" }, { "page": "2064, 2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "135 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599952 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "721" }, { "page": "720-21" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0718-01" ] }, { "cite": "79 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070111 ], "weight": 2, "pin_cites": [ { "page": "120-21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0103-01" ] }, { "cite": "99 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164491 ], "year": 1980, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0163-01" ] }, { "cite": "54 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933860 ], "weight": 2, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0384-01" ] } ], "analysis": { "cardinality": 553, "char_count": 10575, "ocr_confidence": 0.773, "pagerank": { "raw": 1.120768337337462e-07, "percentile": 0.5733888346386218 }, "sha256": "7b68a6f9fdf570fcffdf3e4aabd9778edf434d065b63beb131e8a32a6be3856d", "simhash": "1:3fe079397510756f", "word_count": 1771 }, "last_updated": "2023-07-14T21:35:25.181183+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. DAVID S. PIRT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nThis case involves two offenses for which defendant was charged. In the first case, No. 83 CF 1945 \u2014 03, defendant was indicted for unlawful delivery of a controlled substance in violation of section 401(a)(2) of the Controlled Substances Act (Ill. Rev. Stat. 1981, ch. BG1^, par. 1401(a)(2)). In the second case,' No. 86 CF 1247 \u2014 01, defendant was charged by .information with unlawful possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56V2, par. 1402(b)). Defendant pleaded guilty to both counts. Thereafter, new defense counsel filed a motion to withdraw defendant\u2019s plea of guilty. After a hearing, the motion to withdraw the plea of guilty was denied. Defendant was sentenced to six years\u2019 imprisonment and fined $4,200 plus costs on the unlawful delivery charge. Additionally, he was sentenced to three years\u2019 imprisonment on the unlawful possession charge, said term to run consecutively to the six-year term previously imposed as the second charge occurred while the defendant was on pretrial release. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8\u20144(h).) Defendant timely appealed. We affirm.\nOn August 13, 1986, case No. 83 CF 1945 \u2014 03 for unlawful deliv-. ery of a controlled substance was set for trial. Also on that day, case No. 86 CF 1247 \u2014 01 was motioned up and the State filed a one-count information alleging the unlawful possession of a controlled substance.\nDefendant waived preliminary hearing on case No. 86 CF 1247\u2014 01 and additionally waived a formal reading of the information. Defendant then pleaded guilty on both counts. The record reveals that at the time defendant pleaded guilty he was aware that he could receive from 6 to 30 years on case No. 83 CF 1945 \u2014 03 and that he could be sentenced from one to three years on case No. 86 CF 1247\u2014 01. Furthermore, the record reflects that the following exchange took place with regard to consecutive sentencing.\n\u201cMR. KING: Your Honor, before we begin the facts, I think the defendant also needs to be cautioned as to the consecutive sentencing \u2014 if a person charged with a felony commits a separate felony while on pretrial release, any sentence imposed upon the conviction shall be consecutive to the original charge for which he was on bond, and that is \u00e1 new statute only effective September 25th of 1985.\nTHE COURT: All right, sir. Do you understand that you are exposed to what is called consecutive sentencing; that is, you could be sentenced not just to 30 years, but you could be sentenced to 30 years plus three years, in other words, a total of 33 years followed by the mandatory supervised release that I have indicated?\nDEFENDANT PIRT: Yes, Your Honor.\n* * *\nTHE COURT: Does that in any way change the pleas you have just entered?\nDEFENDANT PIRT: No, sir, Your Honor.\u201d\nAt the hearing on defendant\u2019s motion to withdraw his guilty pleas defendant testified that there was a conversation between him and his attorneys prior to the time that he entered the pleas as to whether cocaine was in fact found in his sock in connection with the second charge. Defendant also stated that he never saw the police reports. Defendant testified that he had never sat down and discussed with Mr. Abrahams and Mr. Lynch, his attorneys, the second set of charges that were brought against him until the day of his plea.\nJeremiah Lynch, one of defendant\u2019s previous attorneys, testified that when he originally found out about the second case, he discussed with defendant the possibilities of its effect on the first case. Lynch further testified that the information that he was given was that the arrest of defendant occurred within a motel complex where any leasing of a particular room had expired or arguably had expired and therefore defendant had no standing with regard to a search of the room, and that information pursuant to such a search would probably have given probable cause to detain defendant and probable cause for a search of defendant. In Lynch\u2019s estimation, \u201c[i]t seemed rather tenuous a case at best.\u201d Lynch stated that at the time the conversation took place he did not have the police reports. Lynch testified that he did not recall seeing any police reports or discoverable information before the plea on the subsequent charge. Lynch further testified that he did not have an opportunity to review the information prior to the entry of the plea on the second offense. And, Lynch stated that the decision as to the plea was made in the hall before defendant even came into the courtroom.\nDefendant\u2019s initial contention is that he had ineffective assistance of counsel prior to entering his guilty plea in that defense counsel advised defendant to plead guilty without first investigating any possible defenses; defense counsel did not require or examine discoverable information; and defense counsel did not discuss with defendant any possible defenses. Defendant further argues that due to this ineffective assistance of counsel, his motion to withdraw his guilty plea should have been granted. We disagree.\nWe begin our analysis by noting that defendant has argued his case based on an incorrect standard for showing incompetency of counsel. Defendant has directed this court to our supreme court\u2019s de-cisi\u00f3n in People v. Torres (1973), 54 Ill. 2d 384. In Torres, the court stated that where representation is by chosen counsel the decision will not be reversed \u201cunless the representation is of such a low Caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham.\u201d (54 Ill. 2d at 391.) This is no longer the proper standard. In People v. Royse (1983), 99 Ill. 2d 163, 170, our supreme court, for chosen counsel, adopted the standard found in People v. Greer (1980), 79 Ill. 2d 103, which previously had only been applied to court-appointed counsel. In Greer, the court stated:\n\u201cThe inadequacy of a defendant\u2019s trial counsel entitles him to a new trial if his appointed counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to defendant without which the result of the trial would probably have been different.\u201d (79 Ill. 2d at 120-21.)\nThus, for defendant to show incompetency of counsel sufficient to withdraw his guilty plea he was required to show that (1) his counsel was actually incompetent; (2) this incompetence produced substantial prejudice; and (3) the result of the trial would probably have been different if it had not been for counsel\u2019s inadequate representation. See People v. Otis (1985), 135 Ill. App. 3d 718, 721. See also Strickland v. Washington (1984), 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 697-98, 104 S. Ct. 2052, 2064, 2068.\nIn Otis, this court held that a defendant was given ineffective assistance of counsel and entitled to withdraw his guilty plea where his attorney misrepresented, the law. In that case the defendant\u2019s attorney had advised the defendant to plead guilty in order to receive treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.1 et seq.). The court found that a defendant need not plead guilty in order to elect treatment under the Dangerous Drug Abuse Act and, therefore, found that the attorney\u2019s representation was erroneous. (135 Ill. App. 3d at 720-21.) The court further found that had the defendant in that case not been misadvised, he might not have pleaded guilty. 135 Ill. App. 3d at 722.'\nIn the present case, there is evidence in the record that shows that trial counsel did not review the police records relating to case No. 86 CF 1247 \u2014 01. However, defendant has failed to demonstrate how counsel\u2019s failure to review the police reports would have in any way changed defendant\u2019s plea. For example, defendant does not direct this court to anything in the police report which would have been the basis for a defense, a challenge to evidence, or a motion to quash the arrest. Consequently, we find that defendant has not met his burden under Royse.\nDefendant next contends that his guilty plea was not voluntarily and intelligently made and that therefore his motion to withdraw the plea should have been granted. Defendant argues that his attorneys told him that they thought a consecutive sentence could be avoided on case No. 86 CF 1247 \u2014 01. Defendant further argues that the plea was not voluntarily and intelligently entered into because his attorneys did not discuss any possible defenses with defendant. We disagree.\nThe decision of whether to allow a defendant to withdraw a guilty plea is within the sound discretion of the trial court. (People v. Bachman (1984), 127 Ill. App. 3d 179, 182.) The decision of the trial court will not be disturbed unless \u201cit appears that the guilty plea was entered through a misapprehension of the facts or [the] law, that defendant has a defense worthy of consideration, or where there is doubt of guilt of the accused and the ends of justice would better be served by submitting the case to a trial.\u201d People v. Spicer (1970), 47 Ill. 2d 114, 116.\nThe record discloses that at the time he pleaded guilty, defendant was 31 years old and had completed two years of college. The record further discloses that defendant was aware of the minimum and maximum sentences applicable to both charges, and that he was also aware that he could be subjected to a consecutive term for the second charge. We do not believe that defendant\u2019s belief that the consecutive sentencing was optional as opposed to mandatory is sufficient reason for overturning the decision of the trial court since even \u2022under defendant\u2019s belief, defendant realized that consecutive sentencing was at least a possibility. Finally, we find that the record discloses sufficient evidence on which the trial court could have found that defendant discussed both charges with his attorneys. We therefore conclude that the trial court did not err in denying defendant\u2019s motion to withdraw his guilty plea.\nFor the foregoing reasons, we affirm the judgment of the trial court.\nAffirmed.\nLINDBERG, P.J., and WOODWARD, J., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "John P. Carbon, Jr., of Addison, for appellant.", "James E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Dale M. Wood, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID S. PIRT, Defendant-Appellant.\nSecond District\nNo. 2\u201486\u20141141\nOpinion filed December 30, 1987.\nJohn P. Carbon, Jr., of Addison, for appellant.\nJames E. Ryan, State\u2019s Attorney, of Wheaton (William L. Browers and Dale M. Wood, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0379-01", "first_page_order": 401, "last_page_order": 406 }