{
  "id": 2709686,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Joseph McNear, Defendant-Appellant",
  "name_abbreviation": "People v. McNear",
  "decision_date": "1975-08-21",
  "docket_number": "No. 12757",
  "first_page": "581",
  "last_page": "585",
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      "cite": "31 Ill. App. 3d 581"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "385 Ill. 392",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
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          "page": "394"
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  "last_updated": "2023-07-14T21:34:56.206419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Joseph McNear, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE SIMKINS\ndelivered, the opinion of the court:\nDefendant, Oscar Joseph McNear, appeals from his conviction of the offense of burglary and from a sentence imposed of 3 years and 9 months to 15 years\u2019 imprisonment. The sole issue is whether defendant\u2019s guilty plea was induced by the misrepresentations and unfulfilled promises of defense counsel, the State and the trial court.\nDefendant was indicted for armed robbery, robbery, burglary, and armed violence. The State subsequently dismissed the robbery and armed violence charges, and on March 11, 1974, the case proceeded to trial on the burglary and armed robbery charges. At the close of the State\u2019s case defendant\u2019s motion to dismiss the armed robbery charge was granted by the trial court. The defendant testified that he was vacationing in Missouri on the day of the burglary and presented tire testimony of several witnesses to substantiate this alibi defense. On March 16, 1974, defendant moved to withdraw his not guilty plea and to enter a plea of guilty to the offense of burglary. The trial court granted defendant\u2019s motion to withdraw his plea, and the jury was excused and dismissed.\nThe trial court then explained to defendant the nature of the offense of burglary. Defendant stated that he understood. The trial court admonished defendant that the minimum and maximum penalty prescribed by law for said offense was an indeterminate sentence of 1 to 20 years\u2019 imprisonment, a $10,000 fine and a 3-year parole term. Defendant indicated that he understood. The trial court explained to defendant the various constitutional rights he would be waiving by pleading guilty. The following colloquy then occurred:\n\u201cThe Court: Now, Mr. McNear, have any promises of any land or nature been made to you or any threats been made to you by the State\u2019s Attorney or your attorney or any person or persons to induce you to make your motion to withdraw your plea of not guilty and enter a plea of guilty?\nThe Defendant: No, sir.\nThe Court: Do you understand that if any promises have been made to you by anyone that they would not be in any way binding upon the Court?\nThe Defendant: Yes.\u201d\nThe State presented a factual basis for the plea. The defendant indicated that the State\u2019s presentation was substantially correct. The following then transpired:\n\u201cMr. Sheehan: Your Honor, it is true that there actually was a very limited negotiation in this case and the negotiations 'was to the effect that if Mr. McNear entered a plea of guilty to the burglary charge pending against him the People would move to dismiss a total of four cases currently pending in Sangamon County again him-\nThe Court: Now, are you advising the Court that there has been a partial plea agreement?\nMr. Sheehan: Yes.\n\u00bb # #\nThe Court: All right. Are there any other provisions or terms of the plea agreement other than what you have now indicated to dismissal of those four charges?\nMr. Sheehan: No, Your Honor.\n# # #\nThe Court: Now, what do you understand tire plea agreement to be up until this moment, Mr. McNear-?\nThe Defendant: Nothing.\nThe Court: Now, have you heard them outline here?\nThe Defendant: (Nodding head up and down.)\nThe Court: Are they acceptable to you?\nHre Defendant: Yes, Sir.\nThe Court: All right. And so, you have an understanding what the plea agreement is that these four charges will be dismissed that are pending and the State reserves the right to investigate that case and it may develop-\nThe Defendant: What about the four charges?\nThe Court: Haven\u2019t reached the indictment stage. That will all be dismissed, but there is one that there hasn\u2019t been a complaint and intention of the State to investigate and reserves the right to file a charge on that and prosecute if the situation warrants, you understand that?\nThe Defendant: Yes.\n* # a\nThe Court: And Mr. Costello and you\u2019re aware of that, Mr. McNear, and you\u2019re advising the Court that does not affect your plea here today, is that correct?\nThe Defendant: Yes.\nThe Court: You accept the. plea agreement, the limited plea agreement regarding the dismissing of four charges and reserving the one?\nThe Defendant: Yes.\n* * *\nThe Court: Now, the Court has been informed as to this * * * to limited plea agreement and you understand that?\nThe Defendant: Yes.\u201d\nThe court found defendant\u2019s plea to have been voluntarily entered and accepted the terms of the limited agreement stating:\n\u201cThe Court: And you\u2019re telling this Court that there has been no agreement entered into as to what the sentence will be for this particular crime, is that correct?\nThe Defendant: Right, sir.\nThe Court: But you Understand that the Court has explained the penalty, minimum of one and maximum of twenty, which was set out by the Comt?\nThe Defendant: Yes.\u201d\nThe court then entered judgment on the plea. On April 5, 1974, a hearing was held, and defendant was sentenced to 3 years and 9 months to 15 years\u2019 imprisonment. A direct appeal was taken to this court.\nDefendant contends that his plea was improperly induced by certain misrepresentations of defense counsel or, in the alternative, that the State and the trial court failed to fulfill certain plea agreement promises. We do not agree. It is alleged that defendant was promised that none of the witnesses who testified in his behalf at trial would be prosecuted for their perjured testimony and that defendant would receive a sentence of 2 te 6 years\u2019 imprisonment. There is, however, absolutely nothing in the record to support this assertion. The terms of the plea agreement were fully stated in open court. Defendant repeatedly stated that he understood that the only terms of the limited plea agreement were that four pending charges against him would be dismissed. Defendant indicated that he understood and that such an agreement was acceptable to him. Defendant also stated that no other promises had been made and specifically stated in response to the court\u2019s questioning that no agreement had been entered into as to a possible sentence. We therefor conclude from a reading of this record that all plea agreement promises were fulfilled.\nSince the filing of this appeal, defendant has filed with this court three motions. On January 30, 1975, defendant filed a \u201cMotion For Remand Of Trial Court [sic] For An Evidentiary Hearing To Determine The Validity Of Guilty Plea,\u201d and subsequently a \u201cMotion To Correct Error I [sic] Original Motion To Remand For Evidentiary Hearing.\u201d On February 6, 1975, defendant filed a \u201cMotion To Incorporate Affidavits Of Defendant-Appellant Into Record On Appeal.\u201d These affidavits consist of statements by defendant that he was promised that in return for his plea none of his witnesses would be prosecuted and that he would receive a 2- to 6-year sentence. They also consist of statements by several of defendant\u2019s witnesses at trial to the effect that they recanted their prior testimony in return for promises that no charges would be brought against them. All three motions have been ordered by this court to be taken with the case.\nDefendant\u2019s motion to include affidavits into the record is clearly improper. As was stated by the court in People v. Berkowski, 385 Ill. 392, 394, 52 N.E.2d 710, 711, \u201cThe record is our only available source of information of what actually happened in the court below. Upon appeal to this court it imports absolute verity and is the sole, conclusive, and unimpeachable evidence of proceedings in the lower court. [Citations.] It must be accepted as it was made and cannot be impeached or contradicted by affidavits. [Citations.]\u201d Defendant\u2019s motion to remand this cause for an evidentiary hearing on the merits of defendant\u2019s affidavits is also improper. Defendant has filed what is, in essence, a post-conviction petition in this court, and section 122 \u2014 1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, \u00a7 122 \u2014 1 et seq.) provides that such a petition must be filed in the trial court where the conviction took place. Defendant\u2019s motions are hereby denied.\nAccordingly, for the reasons stated above the judgment of the circuit, court of Sangamon County is affirmed.\nJudgment affirmed.\nCRAVEN and TRAPP, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE SIMKINS"
      }
    ],
    "attorneys": [
      "Tyce S. Smith, of Springfield, for appellant.",
      "C. Joseph Cavanagh, State\u2019s Attorney, of Springfield (G. Michael Prall and Kai A. Wallis, both of Illinois State\u2019s Attorneys Association, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Joseph McNear, Defendant-Appellant.\n(No. 12757;\nFourth District\nAugust 21, 1975.\nTyce S. Smith, of Springfield, for appellant.\nC. Joseph Cavanagh, State\u2019s Attorney, of Springfield (G. Michael Prall and Kai A. Wallis, both of Illinois State\u2019s Attorneys Association, of counsel), for the People."
  },
  "file_name": "0581-01",
  "first_page_order": 605,
  "last_page_order": 609
}