{ "id": 2897077, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN A. BRANNON, Defendant-Appellant", "name_abbreviation": "People v. Brannon", "decision_date": "1976-12-09", "docket_number": "No. 75-5", "first_page": "616", "last_page": "621", "citations": [ { "type": "official", "cite": "45 Ill. App. 3d 616" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "344 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426186 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0017-01" ] }, { "cite": "270 N.E.2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 537", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2534860 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0537-01" ] }, { "cite": "232 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. 2d 611", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2862118 ], "weight": 2, "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0611-01" ] }, { "cite": "258 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 170", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896843 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0170-01" ] }, { "cite": "288 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 403", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394638 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0403-01" ] }, { "cite": "43 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2722240 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0079-01" ] } ], "analysis": { "cardinality": 664, "char_count": 13281, "ocr_confidence": 0.884, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.412169782871511 }, "sha256": "33d4b9d73c2c81d3d9f3db7104e7d1cc0051997849dc2e2988abd55a27ae00bf", "simhash": "1:af1b31bae9ff0ff2", "word_count": 2131 }, "last_updated": "2023-07-14T17:15:00.202505+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. KEVIN A. BRANNON, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE JONES\ndelivered the opinion of the court:\nDefendant entered a negotiated plea of guilty to a charge of unlawful possession of controlled substances (barbiturates, a Class 3 felony) and was sentenced to one to three years in the penitentiary. In this appeal defendant alleges that his plea of guilty was coerced in several particulars and sets forth allegations of error which we consider to have been waived by the plea of guilty. However, defendant alleges matters concerning the allegiance of his appointed counsel, asserting that they contributed to the involuntariness of the plea. Accordingly, we will consider the alleged errors. See People v. Bivens, 43 Ill. App. 3d 79.\nDefendant contends that the manner in which his defense counsel was selected and the circumstances under which his plea was negotiated reveal that the plea was, in essence, coerced. Evidence concerning these matters was adduced at a post-sentencing hearing on a motion to \u201cModify * * * the Judgment and Sentence\u201d at which the defendant, his mother, a family friend, and the attorney who represented defendant during the plea negotiations testified.\nIn March of 1974 there were four charges pending against the defendant: the instant charge to which he pleaded guilty, a petition to revoke probation on a misdemeanor marijuana case, possession of cannabis, and a traffic charge. The public defender had been appointed to represent the defendant on the instant charge. Defendant\u2019s mother, who was acquainted with the State\u2019s Attorney, went to the State\u2019s Attorney to explain that she was interested in the rehabilitation of her son. The State\u2019s Attorney told her: \u201cIf you can get someone I can work with everything will be OK, but if you get the Public Defender or someone that is going to try to get him out of it, I will do my best to lock him up.\u201d The State\u2019s Attorney then recommended a local lawyer by name. The defendant and his mother went directly to this attorney\u2019s office and employed him on all four cases.\nA hearing had been set for June 13, 1974, on the petition to revoke probation. Prior to that date there was one conference between the defendant and his retained counsel. On the day of the hearing on the petition to revoke probation, the defendant and his retained lawyer went to the office of the State\u2019s Attorney to negotiate on all the charges. The State\u2019s Attorney did most of the talking and the result was that if defendant would plead guilty to the charge of possession of a controlled substance the State\u2019s Attorney would recommend a sentence of one to three years and drop the other charges, including the petition to revoke probation. There was no private discussion of this offer between the defendant and his attorney but his attorney advised defendant that he thought the deal was the best for defendant, that the deal would be the most suitable and would probably be the best that defendant could get and that the decision was up to defendant. Defendant\u2019s attorney testified that he had had negotiations with the State\u2019s Attorney on two occasions prior to June 13. He also stated that when he and defendant had entered the State\u2019s Attorney\u2019s office on the 13th he had reiterated the negotiations and pointed out defendant\u2019s rights to have a jury trial and enter a plea of not guilty. Defendant asked for \u201ca couple of weeks\u201d to consider the matter but was told he must accept or reject the offer immediately. The State\u2019s Attorney also indicated that if the defendant rejected the deal that he would seek the maximum sentence on aU charges.\nAfter defendant indicated he would accept the offer, the State\u2019s Attorney, the defendant and his lawyer went directly to the courtroom. There, the record shows, the defendant\u2019s plea was accepted by the court foUowing a thorough admonishment to the defendant concerning his rights and an equaUy thorough inquiry of defendant as to his intention to waive those rights by pleading guilty. The factual basis for the plea was established by the State\u2019s Attorney as foUows:\n\u201cOn the date in question, Mr. Brannon was involved in a disturbance at the Ace Laundromat and the police were notified, when they arrived Mr. Brannon had left the laundry. The police later come upon Mr. Brannon at the old Builders Supply building. between 9th and 10th and stopped to place him under arrest. Mr. Brannon throwed a smaU plastic bag upon the roof of the building. The Officers retrieved the bag containing an amount of substance, believed to be a controUed substance. Officers Griffey and Chochran of the Metropolis Police Department being the officers. The officers forwarded the substance to the Crime Lab at DeSoto, Illinois where a Mr. Dan Lequocq analyzed the substance, and returned a lab report showing the substance to be 29.3 grams of a substance containing a derivative of barbituric acid, if the officers and Mr. Lequocq were present and under Oath they would so testify.\u201d\nAfter this recital, both defendant and his attorney acknowledged that it was substantially correct. The defendant waived a presentence report and sentencing hearing and the court imposed sentence immediately.\nOn July 15,1974, the attorney retained by defendant was appointed an Assistant State\u2019s Attorney. On July 16,1974, the \u201cOrder of Judgment\u201d was filed along with a judgment, sentence and mittimus order and the official statement of the State\u2019s Attorney and the trial judge. On the same date of July 16, defendant\u2019s newly retained attorney filed a motion for appointment of special prosecutor alleging that the State\u2019s Attorney had resigned.\nDefendant contends that these circumstances, when considered in their entirety, establish that his plea was not voluntary but was instead the result of pressure and coercion applied by the State\u2019s Attorney and acquiesced in by his own attorney. Defendant is not, apparently, contending that his lawyer\u2019s subsequent appointment as State\u2019s Attorney, per se, establishes a conflict of interest requiring reversal. Instead, he argues that the appointment, along with the recommendation by the State\u2019s Attorney of this lawyer by name to the defendant and his mother, is evidence of complicity in pressuring the defendant to plead guilty. Defendant asserts that it was \u201ccommon knowledge\u201d that the State\u2019s Attorney was going to resign and that the defendant\u2019s lawyer was \u201cthe leading candidate for the job.\u201d Defendant is apparently asserting that his counsel, hoping for a favorable recommendation from the State\u2019s Attorney to serve as his replacement, provided less than vigorous representation for his client in order to obtain such a recommendation, to defendant\u2019s prejudice.\nWe cannot agree with defendant\u2019s contention. The recommendation, even when followed by the appointment, without more, cannot serve to establish either coercion or a conflict of interest. It is a legal principle so well established as to make citation of authority superfluous that matters not shown by the record, no matter to what degree of \u201ccommon knowledge\u201d to others, cannot be relied upon by an appellate court. There is simply no evidence in the record as to any \u201cnegotiations,\u201d as alleged by the defendant, between the State\u2019s Attorney and the defendant\u2019s lawyer concerning any appointment, especially in conjunction with defendant\u2019s plea of guilty and the representation defendant received from his lawyer. To infer from the bare facts of the recommendation and the subsequent appointment of defendant\u2019s lawyer as State\u2019s Attorney that such negotiations took place and further, that they influenced the actions of defendant\u2019s counsel in this case, is unwarranted by the record before us. A dual allegiance is not shown to have existed.\nIn further support of his allegations the defendant points out that he had only one conference with his attorney before the plea bargaining session, that counsel never questioned him concerning the circumstances of the alleged offenses in order to determine if any defenses existed, that he was not informed of the State\u2019s Attorney\u2019s offer before the session, and that he was not given an opportunity to discuss the plea bargain privately with his attorney. Defendant also argues, alternatively, that this conduct establishes incompetency of counsel.\nWe disagree. The matters put forth by defendant as justifying a conclusion of either outright \u201cconspiracy,\u201d lack of vigorous representation, or incompetency of counsel are not so glaring as to support such a conclusion. Defendant does not suggest that he requested to speak privately with his lawyer concerning the plea bargain offer and was denied the opportunity. Failure to inform the defendant of the plea negotiations before his first meeting with the State\u2019s Attorney does not rise to the level of establishing incompetent representation or an intent to \u201crailroad\u201d one\u2019s client. By his negotiated plea defendant received the minimum term of imprisonment for the charge for which he was convicted, and three other charges were dismissed, including a charge for violation of the probation defendant was serving when the instant offense was committed. We consider that the penalty imposed seems commensurate with adequate representation by counsel.\nNeither actual incompetency of counsel in carrying out his duties nor prejudice to the defendant as a result of that incompetency have been shown in the instant case. (People v. Goerger, 52 Ill. 2d 403, 288 N.E.2d 416; People v. Logue, 45 Ill. 2d 170, 258 N.E.2d 323.) Defendant alleges neither his innocence nor the existence of a valid defense which should have been presented to the trial court and by which failure to present he was prejudiced. To the contrary, the factual basis for the plea, the correctness of which defendant conceded, shows defendant\u2019s clear guilt.\nDefendant argues, in the alternative, that the State\u2019s Attorney\u2019s recommendation of an attorney deprived him of counsel of his choice. We disagree. Even though the recommendation by the State\u2019s Attorney of a specific lawyer to a defendant is a questionable practice, which we condemn, such a recommendation, even one phrased as was this one, does not deny a defendant freedom of choice in selection of counsel. Defendant was not forced to choose this attorney. The decision was his. It was defendant\u2019s mother, an acquaintance of the State\u2019s Attorney, who sought and received the State\u2019s Attorney\u2019s recommendation \u2014 the suggestion of counsel was not gratuitous on the part of the State\u2019s Attorney. Even though the State\u2019s Attorney\u2019s statement could be taken to mean, and perhaps did mean, that he would attempt to use extraordinary means to obtain a conviction, the defendant\u2019s protection from any possibility of overreaching by the State\u2019s Attorney lay in the orderly processes of the law, not in acquiescence to an implied threat. A State\u2019s Attorney is not the sole judicial officer charged with the responsibility for seeing that a defendant is treated fairly and evenhandedly.\nDefendant next contends that the trial court did not adequately admonish him as to his waiver of indictment and as to his right to a sentencing hearing.\nThe record discloses that during the plea proceeding, while present with counsel, the defendant was advised of the nature of the charge against him, the minimum and maximum sentence prescribed, and that he could be prosecuted only after indictment by a grand jury, unless he waived the indictment. In response to questions by the court, defendant several times stated that he wished to waive indictment.\nThe factual setting of defendant\u2019s waiver of indictment brings this case well within the rule of People v. Page, 38 Ill. 2d 611, 232 N.E.2d 689, where, in answer to a contention similar to that advanced by defendant here, the court stated:\n\u201cThe proceedings reveal evidence from which the judge could justifiably conclude that the accused understood his rights and there is no evidence indicating the contrary. While the court did not dwell upon the legal distinctions between an indictment and information, we believe the explanation sufficient, particularly since the defendant was given an ample opportunity to ask any questions he entertained regarding the waiver procedure, and his protestations of ignorance now asserted in this appeal fly in the face of his written waiver of indictment and his accompanying oral statement that he understood the judicial explanation which preceded the waiver.\u201d 38 Ill. 2d 611, 614.\nAlso see People v. Wilson, 132 Ill. App. 2d 537, 270 N.E.2d 88.\nDefendant\u2019s argument regarding his inadequate admonishment regarding his right to a sentencing hearing is governed, adversely to defendant, by the recent case of People v. Barto, 63 Ill. 2d 17,344 N.E.2d 433.\nThe defendant\u2019s final argument alleging the existence of an unfulfilled plea agreement is without foundation in the record and does not merit consideration.\nAffirmed.\nEBERSPACHER and KARNS, JJ, concur.", "type": "majority", "author": "Mr. JUSTICE JONES" } ], "attorneys": [ "Louis P. Johnson, of Metropolis, for appellant.", "Stephen Spomer, State\u2019s Attorney, of Metropolis (Keith P. Vanden Dooren, of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN A. BRANNON, Defendant-Appellant.\nFifth District\nNo. 75-5\nOpinion filed December 9, 1976.\n\u2014 Rehearing denied March 2, 1977.\nLouis P. Johnson, of Metropolis, for appellant.\nStephen Spomer, State\u2019s Attorney, of Metropolis (Keith P. Vanden Dooren, of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0616-01", "first_page_order": 646, "last_page_order": 651 }