
    The People of the State of Illinois, Plaintiff-Appellee, v. Sander Caravello, a/k/a Sam Sanders, or Sam Sander, Defendant-Appellant.
    (No. 53539;
    First District
    — October 21, 1971.
    
      Bellows, Bellows & Magidson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Roger S. Matelski, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered tire opinion of the court:

On May 11, 1965, defendant was indicted for the crime of theft of checks and money orders. On April 5, 1967, he pleaded guilty to that charge. On March 8, 1968, after denying defendant’s motion to withdraw the plea of guilty, the court placed defendant on probation for five years, ordering that the first year be spent in the County Jail and that defendant make restitution of $22,000. On appeal defendant argues that the court erred in not allowing him to withdraw his plea of guilty since it was involuntarily made. Because of the contention we consider it necessary to set forth the chronology of the proceedings in some detail.

After indictment, defendant was arraigned on May 14, 1965 and entered a plea of not guilty. Thereafter several continuances were had without objection from the prosecutor or the attorney representing the complaining witness. On November 30, 1965, defense counsel informed the court that he and the attorney for the complainant had agreed to a 60 day continuance, and added: “We are in the process of working this problem out, and I think we are at the tail end of it now, Judge.” The cause was continued to February 2, 1966, at which time defense counsel requested another continuance and advised the court that “we have got this thing practically all settled between ourselves.” The court then inquired of the State if it would have a recommendation for a disposition at the next hearing, and the prosecutor replied affirmatively. The cause was continued to April 25, 1966, and on that day a different judge presided. Defense counsel stated that the parties had agreed that $33,000 would be paid to complainant. He then requested that the matter be put over to June, and that he would be ready or pay the money. The court replied that payment of the money wouldn’t necessarily obviate the need of a trial. Defense counsel said that he understood, but that it was a civil matter between the parties, rather than criminal.

On the next date, June 1, 1966, the original trial judge again presided. Defense counsel made a long statement as to the progress of negotiations. He stated that he had conferred with the prosecutor and the complainant’s attorney, and that he needed a 45 day continuance to get the money. The prosecutor stated: “The State would agree to one last final continuance on the basis of the good faith shown by counsel for the defendant. We are not adverse to restitution in this matter, but this case has been pending for some period of time. Counsel has said the civil law and I don’t doubt — .” His statement was interrupted at that point. After August 1 was selected as the next date, the prosecutor stated: “One further statement before the Court, as long as we have such a long date there is no reason why there cannot be some communication as to your progress with the State.” Defense counsel replied that, as he had done in the past, he would keep in communication with the prosecutor and the attorney for the complaining witness as to settlement negotiations. On October 3,1966, after defense counsel again reviewed negotiations and certain proceedings in the civil courts, he requested a 45 day continuance. A substitute prosecutor agreed to the continuance, but pointed out that there was a crime charged and that restitution was secondary. Thereafter the cause was continued several times to April 5, 1967.

On April 5, 1967, defense counsel stated that, “for the purpose of the record” they were entering a plea of guilty and requesting that the matter be continued for 90 days and then another 90 days so that complete restitution could be made. Counsel also informed the court that he was presenting $5000 to the complaining witness. Counsel further stated:

“We have an understanding that if he does not pay it, that tire plea of guilty will then become final * * *”

After the court ascertained that the $5000 had been received, it admonished defendant as to the consequence of the guilty plea. When defendant persisted in the plea, the court accepted it and entered judgment. The court made no inquiry as to whether defendant was making the plea because of any promises or representations made to him. Defense counsel also inquired to whom the monthly payments of $1000 would be made, and it was decided that payments would be made to the attorney for the complaining witness. The cause was continued to July 10, again to October 17, and then to January 8, 1968.

On the following court date, March 8, 1968, after a total of $11,000 had been paid to the complaining witness, defense counsel informed the court that a $3000 check tendered to the complainant on January 8, 1968 had not cleared the bank because of insufficient funds. The court indicated that it was on the basis of the check that he had granted the continuance and said that eleven months after the plea of guilty, defendant still owed twenty or twenty-two thousand dollars. The court then said:

“I want to see money or I want this disposed today.”

The prosecutor objected to another continuance on the grounds that defendant had not paid restitution “as per agreement.” Defense counsel requested that defendant be allowed to withdraw his plea of guilty and to plead not guilty to the charge. The court denied tire motion and imposed sentence.

Thereafter there was a hearing on new defense counsel’s amended motion for a new trial and in arrest of judgment. At this hearing, defendant testified that he pleaded guilty upon the advice of his lawyer and upon the repeated assurances that if he made restitution the case would be thrown out or that he would get probation. There were conferences between his attorney and the complainant’s attorney, and he overheard the latter say “as long as we get our money, there is nothing to worry about.” This representation was also made at another conference. Defendant never conferred with the assistant State’s Attorney.

Defendant’s first counsel testified that he had handled very few criminal cases prior to the instant trial. He said that the complaining witness wanted only his money, and did not want defendant to go to jail. This representation was made more than five times. Counsel also testified that just before defendant changed his plea to guilty he advised defendant that if he made restitution that the case would be thrown out or he would get probation, even after the plea had been entered.

Defendant was not permitted to call the attorney for the complaining witness as an adverse witness. He was then called as a defense witness at the hearing and testified that he had been retained by the complaining witness to obtain the return of money. He never promised defendant or his counsel a dismissal or probation upon restitution. He did have a conversation with defense counsel one day, but did not remember the details.

On appeal defendant contends that the trial court erred in not allowing defendant to withdraw his plea of guilty as the plea was involuntary, having been induced by representations that the finding would be vacated or no sentence or incarceration would be imposed if restitution were made; and that therefore it was obtained in violation of defendant’s rights to due process of law.

Where an accused, with full understanding, enters a plea of guilty to a charge, it is discretionary with the court whether the plea will be permitted to be withdrawn and a plea of not guilty substituted. (People v. Grabowski, (1957) 12 Ill.2d 462, 147 N.E.2d 49.) Where the motion to withdraw a plea of guilty is based upon nothing more than the unfulfilled hope of receiving a lesser sentence than would be received by the defendant had he been found guilty at trial, the refusal of the trial judge to allow the withdrawal of the plea of guilty is not an abuse of his discretion. People v. Hancasky (1951), 410 Ill. 148, 101 N.E.2d 575; People v. Ensor (1925), 319 Ill. 255, 149 N.E. 737; People v. Kleist, (1924), 311 Ill. 179, 142 N.E. 486.

However, in People v. Morreale, (1952), 412 Ill. 528, 107 N.E.2d 721, our Supreme Court stated at pp. 531-32:

“Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.”

In Morreale, the court also said that judicial discretion “should always be exercised in favor of innocence and liberty and in the light of the preference that is shown by law for a trial upon the merits by a jury.” P. 531. The court further stated “that the least influence or surprise causing the defendant to plead guilty, when he has any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty.” P. 532.

In the instant case, we find that the trial court abused its discretion in refusing to permit the defendant to withdraw his plea of guilty and to plead not guilty to the charge. Defendant’s plea of guilty was obviously induced by promises and representations that if he pleaded guilty and made restitution either the finding would be vacated or at least he would not be sent to jail. Even if the trial court rejected the post-trial testimony of defendant and his attorney as to these representations, an examination of the record conclusively reveals that by their statements and conduct, the prosecutor, the attorney for the complaining witness and the trial judge himself all acted in making such a belief on the part of defendant inevitable.

In February 1966, after defense counsel advised the court that the parties had practically settled the matter between themselves, the prosecutor replied affirmatively when the judge asked if he would have a recommendation for disposition at the next hearing. In June 1966, while requesting a continuance, defense counsel again discussed settlement negotiations extensively. In agreeing to the continuance, the prosecutor commented on defense counsel’s good faith and apparently agreed with the defense that the dispute was civil rather than criminal. The prosecutor also requested that he be kept informed of the progress of negotiations. On the date defendant pleaded guilty, defense counsel first stated that he had conferred with the prosecutor and complainant’s attorney. He then announced that they were entering a plea of guilty for the purpose of the record [emphasis added]. He also stated that the plea of guilty would become final, if defendant did not pay the restitution. No one disputed these statements; nor did the court or prosecutor contradict the plain import of the remarks that, if restitution were made, the plea of guilty would be set aside. Moreover, before accepting the plea of guilty, the court made sure that defendant had in fact given $5000 to the complaining witness that morning. Thus we see that the court and prosecutor gave credence and substance to what defense counsel had told defendant. Only twice in the protracted 23 month period between arraignment and plea was defendant told that restitution would not necessarily conclude the proceedings. Once, a different judge stated it, and the other time, a substitute prosecutor made the statement. Even after the plea of guilty was entered, the emphasis remained on restitution. Indeed, on the date of sentencing, the court indicated that if more restitution were made that day, a sentence could be avoided. And the prosecutor opposed a further continuance only because defendant had failed to keep his "agreement.”

In People v. Zuckerman (1964), 46 Ill.App.2d 210, 197 N.E.2d 136, defendant claimed that the trial court abused its discretion in refusing to allow him to withdraw his plea of guilty and enter a plea of not guilty. His plea of guilty was made upon the representation of a prosecutor that the State would use him as a State witness in the trial of a co-defendant and then recommend probation. Defendant testified but the trial court directed a verdict in favor of the co-defendant. Defendant was granted probation, but upon learning of his long criminal record, the trial court revoked probation and sentenced him to prison. It was held that the trial court erred in not permitting defendant to withdraw his plea of guilty and enter a plea of not guilty.

We conclude that under the facts and circumstances of the instant case, the plea of guilty was obtained by improper representations, and that the court erred in not permitting the plea of guilty to be withdrawn. Accordingly, the judgment of the Circuit Court is reversed and the cause is remanded with instructions to permit defendant to enter a plea of not guilty, and for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

DEMPSEY and McGLOON, JJ., concur.  