author: MR. JUSTICE RYAN MR. JUSTICE SIMON,

text:
    (No. 53399.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HERBERT LAWS, JR., Appellee.

      Opinion filed April 17, 1981.

      SIMON, J., dissenting.
    Tyrone Fahner and William J. Scott, Attorneys General, of Springfield, and Richard M. Daley and Bernard Carey, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., Mark L. Rotert, and Donald B. Mackay, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Michael J. Pelletier, Assistant Appellate Defender, of the Office of State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

F ollowing a denial of a motion to quash a search warrant and to suppress evidence, defendant, Herbert Laws, Jr., and the prosecution entered into a stipulation of facts from which the circuit court of Cook County, in a bench trial, found the defendant guilty of possession of a controlled substance. The defendant filed a notice of appeal. Several months after the defendant appealed his conviction, the United States Supreme Court rendered its decision in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. Franks holds that, under certain circumstances, a defendant may challenge the veracity of sworn statements made in support of a search warrant. The defendant contended in the appellate court that the holding in Franks is applicable to his case and requires a reversal. The appellate court, with one justice dissenting, finding that Franks had retroactive application, reversed the conviction and remanded the cause to the circuit court of Cook County for a hearing as to the veracity of the sworn complaint for a search warrant. (82 Ill. App. 3d 417.) We granted the State leave to appeal under our Rule 315. 73 Ill. 2d R. 315.

On August 21, 1976, Officer Glenn Rosiak applied to a judge of the circuit court of Cook County for a warrant to search Herbert Laws, Jr., a female named Mary, and the second-floor apartment at 5617 South Calumet Avenue in Chicago. The officer’s sworn complaint stated in substance the following: The officer had several conversations with a known informant of proved reliability. During these conversations, the informant told the officer that he had been purchasing heroin from “Herbie Jr.” two or three times weekly for approximately three months. The officer stated that after showing a photograph of Herbert Laws, Jr., to the informant, the informant identified the person in the photograph as Herbie Jr. The officer stated that he next established a surveillance of 5617 Calumet Avenue. During that time, which lasted just over an hour, he observed several known addicts enter and, shortly thereafter, leave the building. The judge found that probable cause existed to issue the search warrant.

A search was conducted pursuant to the warrant, producing heroin, cocaine, cannabis, and several firearms. The defendant was charged with possession of a controlled substance. (Ill. Rev. Stat. 1975, ch. 561/2, par. 1402.) Prior to trial, the defendant filed a written motion to quash the search warrant and suppress the evidence. He requested a hearing, alleging that the search warrant was issued upon false statements contained in the sworn complaint. The defendant alleged that the conversations related by the officer never transpired and that the surveillance, as well as the existence of the informant, were merely fabrications of the officer.

The motion was denied on December 15, 1977. Based on People v. Bak (1970), 45 Ill. 2d 140, the judge concluded that a defendant could not go beyond the four corners of the warrant in questioning its veracity. Thus, no hearing on the motion was held.

As noted above, the search warrant in our case was issued August 21, 1976. In June of 1978 the United States Supreme Court announced its decision in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. Under Franks, a defendant may have a hearing to challenge the veracity of a warrant if certain requirements are met:

“To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” (Franks v. Delaware (1978), 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.)

The appellate court, finding that Franks should be given retroactive application, reversed the defendant’s conviction and remanded this cause to the trial court for a hearing on the earlier motion.

Two issues are argued before this court. The first, is whether the Franks decision should be given retroactive application so that the defendant’s case would qualify for a hearing on the veracity of the officer’s sworn statements. The second, is whether the allegations of the defendant are sufficient to satisfy the requirements of Franks, if it is found to be retroactive.

It has been well established in this State that a defendant may not impeach the veracity of the sworn statements upon which a search warrant was issued. (People v. Bak (1970), 45 Ill. 2d 140; People v. Mitchell (1970), 45 Ill. 2d 148; People v. Berry (1970), 46 Ill. 2d 175; People v. Price (1970), 46 Ill. 2d 209; People v. Nakon (1970), 46 Ill. 2d 561; People v. Stansberry (1971), 47 Ill. 2d 541.) As noted above, the Supreme Court in Franks, although not announcing a broad rule concerning the right to challenge the truthfulness of such sworn statements, did hold that an absolute ban upon post-search impeachment of veracity is not justified. The court in Franks also noted the substantial division of authority which, at that time, existed on the question. The Supreme Court did not address the subject of the retroactivity of its holding in Franks, which was decided June 26, 1978. Inasmuch as the search warrant in our case was issued August 21, 1976, and the defendant’s motion to suppress was denied on December 15, 1977, Franks is relevant only if its holding has retroactive application.

At common law there was no authority to support the proposition that judicial decisions were to be applied prospectively only. Under what has come to be known as Blackstonian reasoning, the courts did not pronounce or make new law, but rather declared or discovered existing law. (See 3 W. LaFave, Search & Seizure sec. 11.5, at 681 (1978); Schaefer, The Control of Sunbursts: Techniques of Prospective Overruling, 42 N.Y.U. L. Rev. 631 (1967).) However, in Great Northern R.R. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 77 L. Ed. 360, 53 S. Ct. 145, it was held that a State court, in defining the limits of adherence to precedent, may make a choice for itself between prospective and retroactive application of its decision. There is no constitutional mandate requiring or prohibiting retroactive application of judicial pronouncements of new constitutional rules. Linkletter v. Walker (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731; Johnson v. New Jersey (1966), 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772; Desist v. United States (1969), 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030.

The choice between retroactive and nonretroactive application does not depend upon the value of the constitutional guarantee involved and is not automatically determined by the provisions of the constitution under consideration. (Johnson v. New Jersey (1966), 384 U.S. 719, 728-29, 16 L. Ed. 2d 882, 889-90, 86 S. Ct. 1772, 1778-79.) In Linkletter v. Walker the court stated:

“[W] e must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment’s prohibitions as to unreasonable searches and seizures.” (Linkletter v. Walker (1965), 381 U.S. 618, 629, 14 L. Ed. 2d 601, 608,85 S. Ct. 1731, 1738.)

While the question of retroactive application of a new constitutional rule will be resolved on the merits of each holding, certain factors have been the focal point of consideration. (See generally Annot., 22 L. Ed. 2d 821 (1970).) In Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, the court stated:

“The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967), 388 U.S. 293, 297,

18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967, 1970.) Although the extent of reliance on the former holdings and the effect of retroactive application on the administration of justice are acknowledged as worthy of consideration, foremost among the factors to be considered is the purpose to be served by the new standards. (Desist v. United States (1969), 394 U.S. 244, 249, 22 L. Ed. 2d 248, 255, 89 S. Ct. 1030, 1033-34.) In Desist the court noted the extent to which the other two factors will be considered by stating:

“It is to be noted also that we have relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.” Desist v. United States (1969), 394 U.S. 244, 251, 22 L. Ed. 2d 248, 256, 89 S. Ct. 1030, 1035.

In Desist the court considered whether the purpose of excluding evidence because of fourth amendment violations required retroactive application of the holding in Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507. The court, in holding that Katz would not be applied retroactively, noted that all of the cases requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. The court observed that the cases have held that the purpose would not be advanced by applying the rule retroactively. The misconduct of the police in the other cases had already occurred and would not be corrected by applying the new rule to those cases. The court also noted that, in contrast with decisions that have been accorded retroactive effect, there is no likelihood of unreliability or coercion in a search-and-seizure case; that the exclusionary rule is but a procedural weapon that has no bearing on guilt; and that the fairness of the trial is not in such cases under attack. (Desist v. United States (1969), 394 U.S. 244, 249, 22 L. Ed. 2d 248, 255, 89 S. Ct. 1030, 1033-34.) It has been stated that the reliance and effect-on-administration-of-justice factors are at least relatively minor considerations and that nonretroactivity in the fourth amendment area must primarily be justified, if at all, under the purpose factor. Since the purpose of the exclusionary rule as stated in Elkins v. United States (1960), 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437, is calculated to prevent, not to repair, “then the rule of nonretroactivity in Fourth Amendment cases makes a good deal of sense.” (3 W. LaFave, Search & Seizure sec. 11.5, at 687 (1978).) Professor LaFave states that the holdings of the Supreme Court in Linkletter, Desist, and Williams v. United States (1971), 401 U.S. 646, 28 L. Ed. 2d 388, 91 S. Ct. 1148, will result in any new fourth amendment doctrines favorable to defendant being applied in prospective fashion. 3 W. LaFave, Search & Seizure sec. 11.5, at 685 (1978).

The application of the exclusionary rule for fourth amendment violations must be contrasted with the application of new constitutional holdings whose purpose is to safeguard and insure the integrity of the truth-finding function of a trial: See also Johnson v. New Jersey, United States v. United States Coin & Currency (1971), 401 U.S. 715, 730, 28 L. Ed. 2d 434, 444, 91 S. Ct. 1041, 1049 (White, J., dissenting); Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.
It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials.” (Williams v. United States (1971), 401 U.S. 646, 653, 28 L. Ed. 2d 388, 395, 91 S. Ct. 1148, 1152-53.)

Defendant relies heavily on United States v. Peltier (1975), 422 U.S. 531, 45 L. Ed. 2d 374, 95 S. Ct. 2313, wherein the court, in considering the retroactive application of the exclusionary rule, discussed not only the purpose of the rule but also the question of whether there was good-faith reliance on the part of law-enforcement officers with the then-prevailing constitutional holdings that were later overturned by the court. The defendant contends that the officer’s conduct in intentionally swearing to false statements made in support of a search warrant cannot be considered good-faith reliance. Thus, the defendant contends the “imperative of judicial integrity” requires that the holding of Franks be applied to his case.

Although Peltier discussed the “imperative of judicial integrity,” it did not depart from the holdings of earlier cases discussed above. In Peltier the court noted that while the “imperative of judicial integrity” played a role in the court’s decision in Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, which overruled Wolf v. Colorado (1949), 338 U.S. 25, 93 L. Ed. 1782, 69 S. Ct. 1359, the Mapp decision was denied retroactive application in Linkletter. (422 U.S. 531, 536, 45 L. Ed. 2d 374, 380-81, 95 S. Ct. 2313, 3317.) The court in Peltier also noted that in Lee v. Florida (1968), 392 U.S. 378, 20 L. Ed. 2d 1166, 88 S. Ct. 2096, which overruled Schwartz v. Texas (1952), 344 U.S. 199, 97 L. Ed. 231, 73 S. Ct. 232, the court, buttressing its holding by the “imperative of judicial integrity” principle, stated that under our constitution no court may serve as an accomplice in the wrongful transgression of the law. (422 U.S. 531, 536-37, 45 L. Ed. 2d 374, 381, 95 S. Ct. 2313, 2317.) Peltier pointed out, however, that when it came time to consider the retroactivity of Lee, the court held that it did not apply retroactively. (422 U.S. 531, 536-37, 45 L. Ed. 2d 374, 381, 95 S. Ct. 2313, 2317. See Fuller v. Alaska (1968), 393 U.S. 80, 21 L. Ed. 2d 212, 89 S. Ct. 61.) Peltier summarized the holdings of these cases thus:

“The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the “imperative of judicial integrity” is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.” (Peltier v. United States (1975), 422 U.S. 531, 537, 45 L. Ed. 2d 374, 381, 95 S. Ct. 2313, 2317.)

The court in Peltier then restated the purpose doctrine by quoting from Desist, “[W]e simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.” (422 U.S. 531, 538, 45 L. Ed. 2d 374, 382, 95 S. Ct. 2313, 2318.) Peltier plainly did not abandon the purpose doctrine of Desist in favor of the “imperative of judicial integrity” doctrine in determining whether the new pronouncement should be retroactively applied.

The purpose of the exclusionary rule has no bearing on guilt or innocence, and the question of the fairness of the trial is not involved. Thus exclusion retroactively applied does not serve to insure the integrity of the fact-finding process. The deterrent purpose of the exclusionary rule would not be furthered by applying the holding of Franks to searches and seizures that have long since been completed.

It may be argued that Franks did not announce a new rule, in that the Supreme Court had never before considered the right to impeach the veracity of the sworn statements upon which a search warrant issued. Therefore, it could be argued, the nonretroactive holdings of the cases above discussed do not apply. However, in Peltier there had been no prior approval of roving border-patrol searches by the Supreme Court. Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 L. Ed. 2d 596, 93 S. Ct. 2535, was the first border-patrol-search case decided by the Supreme Court, and it held such warrantless searches unconstitutional. However, Peltier declines to apply this ruling retroactively, since there had been prior administrative and judicial approval of such procedure. Peltier held that the parties could reasonably rely on legal pronouncements emanating from sources other than the Supreme Court. 422 U.S. 531, 541-42, 45 L. Ed. 2d 374, 383-84, 95 S. Ct. 2313, 2319-20.

The law had been well established in Illinois in the cases previously cited that the veracity of the sworn statements supporting search warrants could not be impeached. Those cases reasoned that a judicial officer had found that there was probable cause to issue the warrant, and that the credibility of the affiant had been determined by the judicial officer issuing the warrant and should not be later impeached. Under Illinois law prior to Franks, the defendant’s constitutional right had not been violated. The search and seizure had been conducted by officers in reliance upon a search warrant which, under the law of this State at that time, was valid and had been properly issued.

Thus, Franks was a departure from the prior law as it existed in this State. The officers conducting the search based on the warrant issued could rely on the prior legal pronouncements of this court just as Peltier held that the officers could rely on legal pronouncements emanating from sources other than the Supreme Court.

A closely analogous situation to that in Franks was presented to the court of appeals in United States ex rel. Pugh v. Pate (7th Cir. 1968), 401 F.2d 6, wherein it was held that a fictitious name on an affidavit to a search warrant rendered the warrant invalid. In United States ex rel. Smith v. Pate (N.D. Ill. 1969), 305 F. Supp. 225, and in United States ex rel. Mayfield v. Pate (N.D. Ill. 1969), 305 F. Supp. 41, the district court refused to give retroactive application to the holding in Pugh.

Aside from the reasons stated above, the nature of the holding in Franks would seem to require that it be applied prospectively only. Although Franks held that an absolute ban on post-search impeachment of the search warrant affidavit is not justified, it did not hold that a defendant may in all cases challenge the veracity of the sworn statements. The opinion in Franks provides for evidentiary hearings on challenges to the truthfulness of the statements only if certain specific conditions are met. The court thus did not permit indiscriminate challenges to the truthfulness of such statements. It instead fashioned a procedural remedy by which defendants can challenge the sworn allegations. We have set out this procedure earlier in this opinion. These procedural requirements had not existed before Franks, and being procedural in nature, it would appear that the remedy should be applied prospectively. The remedy did not exist previously. It would be difficult, if not impossible, to apply this remedy to searches authorized by warrants issued prior to the holding in Franks.

Since we have held that the holding in Franks cannot be applied retroactively to this case, we need not consider whether defendant’s allegations are such as to entitle him to a hearing under Franks.

For the above reasons the judgment of the appellate court is reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE SIMON,

dissenting:

I dissent, believing that the rule of constitutional law confirmed in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, should be applied retroactively.

The majority observes that, traditionally, judicial decisions are applied retroactively. It notes, however, that changes in constitutional doctrine call for a case-by-case determination about retroactive application. (Linkletter v. Walker (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731.) Where the nation’s highest court does an about face and overrules previous doctrine the decision should usually operate prospectively only, because police and defendants cannot be expected to have anticipated the new ruling. (See 3 W. LaFave, Search and Seizure sec. 11.5, at 694 (1978).) But Franks was not a departure from prior law, and there is no reason to abandon the traditional rule of retroactive application.

The United States Supreme Court first isolated the issue of whether a defendant may challenge an affidavit for a warrant, sufficient on its face to show probable cause, by producing evidence showing that the allegations in the affidavit are fabricated in Rugendorf v. United States (1964), 376 U.S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825. The court did not announce the constitutional rule in that case but assumed that the defendant could go beyond the four corners of the affidavit. (376 U.S. 528, 532, 11 L. Ed. 2d 887, 891, 84 S. Ct. 825, 828.) In the years following, litigants developed an impressive record of lower court decisions on the issue, and the consensus emerged that a defendant could challenge an affidavit that was facially sufficient by going beyond its four comers. See United States v. Lee (4th Cir. 1976), 540 F.2d 1205; United States v. Luna (6th Cir. 1975), 525 F.2d 4; United States v. Armocida (3d Cir. 1975), 515 F.2d 29; United States v. Belculfine (1st Cir. 1974), 508 F.2d 58; United States v. Damitz (9th Cir. 1974), 495 F.2d 50; United States v. Marihart (8th Cir. 1974), 492 F.2d 897; United States v. Carmichael (7th Cir. 1973), 489 F.2d 983; United States v. Thomas (5th Cir. 1973), 489 F.2d 664; United States v. Harwood (10th Cir. 1972), 470 F.2d 322; United States v. Dunnings (2d Cir. 1969), 425 F.2d 836; McConnell v. State (1972), 48 Ala. App. 523, 266 So. 2d 328; Davenport v. State (Alaska 1973), 515 P.2d 377; State v. Payne (1976), 25 Ariz. App. 454, 544 P.2d 671; Theodor v. Superior Court (1972), 8 Cal. 3d 77, 501 P.2d 234, 104 Cal. Rptr. 226; People v. Arnold (1974), 186 Colo. 372, 527 P.2d 806; State v. Boyd (Iowa 1974), 224 N.W.2d 609; State v. Melson (La. 1973), 284 So. 2d 873; Commonwealth v. Reynolds (1977), 374 Mass. 142, 370 N.E.2d 1375; State v. Luciow (1976), 308 Minn. 6, 240 N.W.2d 833; State v. Nanoff (1972), 160 Mont. 344, 502 P.2d 1138; State v. Baca (N.M. App. 1973), 84 N.M. 513, 505 P.2d 856; People v. Alfinito (1965), 16 N.Y.2d 181, 211 N.E.2d 644, 264 N.Y.S.2d 243; State v. Wright (1973), 266 Or. 163, 511 P.2d 1223; Commonwealth v. Hall (1973), 451 Pa. 201, 302 A.2d 342; State v. Sachs (1975) , 264 S.C. 541, 216 S.E.2d 501; State v. Bankhead (1973), 30 Utah 2d 135, 514 P.2d 800; State v. Dupaw (1976) , 134 Vt. 451, 365 A.2d 967; State v. Lehman (1973), 8 Wash. App. 408, 506 P.2d 1316.

Some States clung to the rule that the defendant could not before trial challenge the veracity of the affidavits presented to the magistrate, even though it was highly unlikely that the defendant, or anyone, would be in a position to challenge the affidavits when they were presented to the magistrate. (See, e.g., Liberto v. State (1970), 248 Ark. 350, 451 S.W.2d 464; State v. Lamb (1972), 209 Kan. 453, 497 P.2d 275; Tucker v. State (1966), 244 Md. 488, 224 A.2d 111; Wood v. State (Miss. 1975), 322 So. 2d 462; State v. Harris (1975), 25 N.C. App. 404, 213 S.E.2d 414; Brown v. State (Okla. Crim. App. 1977), 565 P.2d 697; Owens v. State (1965), 217 Tenn. 544, 399 S.W.2d 507; Phenix v. State (Tex. Crim. App. 1972), 488 S.W.2d 759.) The Illinois Supreme Court adopted that rule in People v. Bak (1970), 45 Ill. 2d 140, and did not address the issue again except in People v. Stansberry (1971), 47 Ill. 2d 541, 544, a year after the Bak decision. This was prior to the large number of cases in other jurisdictions holding the other way. The Bak rule was, therefore, ripe for correction.

When Franks was decided, it was not an unexpected or radical shift in the preexisting law. Instead, as part of the normal, evolutionary process of constitutional law, the United States Supreme Court confirmed the rule the majority of jurisdictions had considered and adopted. Franks not only rejected the Illinois version of the rule, but vindicated the position taken by those who, like the defendant, had tried at trial and on appeal to convince Illinois to renounce the rule of Bak. To make Franks prospective only is to once again hold a defendant to the outmoded Bak rule in the face of overwhelming authority to the contrary. For these reasons, the traditional rule of retroactive application should apply.

But even under the majority’s analysis there should be retroactive application. I agree that in determining retro-activity, the following factors should be considered: the purpose of the constitutional rule, the extent of reliance on past standards, and the effect on the administration of justice. (Stovall v. Denno (1967), 388 U.S. 293, 297, 18 L. Ed. 2d 1199, 1203, 87 S. Ct. 1967, 1970.) The principal emphasis is placed on purpose. But the purpose of the fourth amendment’s exclusionary rule is twofold: to deter illegal police conduct and to prevent contamination of the judicial process with evidence seized in violation of the Bill of Rights. (Stone v. Powell (1976), 428 U.S. 465, 484, 49 L. Ed. 2d 1067, 1081-82, 96 S. Ct. 3037, 3047-48.) I believe that the majority confuses the second justification, often referred to as the “imperative of judicial integrity” (1 W. LaFave, Search and Seizure sec. 1.1, at 17 (1978)), with a concern over the integrity of the fact-finding process. The latter is never at issue in a fourth amendment case; the former always is whenever courts are asked to be “accomplices in the willful disobedience of a Constitution they are sworn to uphold” (Elkins v. United States (1960), 364 U.S. 206, 223, 4 L. Ed. 2d 1669, 1681, 80 S. Ct. 1437, 1447). When both of the underlying policies of the exclusionary rule are considered, it is clear that the overall purpose of the rule is frustrated by denial of retroactivity.

What makes this case different from prior exclusionary-rule retroactivity cases is that it is not a simple good-faith violation of the Constitution which is at issue here. (See United States v. Peltier (1975), 422 U.S. 531, 536, 45 L. Ed. 2d 374, 380, 95 S. Ct. 2313, 2317.) This is not some technical reclassification or reformulation of doctrine far removed from the often violent and unpredictable world of day-to-day law enforcement. Instead we are dealing with an allegation that police intentionally misrepresented the facts in presenting an affidavit to a magistrate for a warrant so as to avoid the constitutional mandate of demonstrable probable cause. In simpler terms, this case asks us what is to be done if police officers are not truthful with the courts. What untruths have been told cannot now be untold, but if evidence seized as a consequence of official fabrication is used to convict Herbert Laws, the reputation of the courts of this State will be harmed, and mendacity will be exalted above due process.

Nor can police reliance justify prospective application only of Franks. The State argues that, in light of Bak, the search warrant was properly issued and police officers could rely upon it. But as the appellate court noted in this case, “It is absurd to construe the Bak decision as an invitation to law enforcement agents to perjure themselves.” (People v. Laws (1980), 82 Ill. App. 3d 417, 423.) The fourth amendment declares that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” That prerequisite would be meaningless if the oath could be pequred. Falsifying the warrant application is a fourth amendment violation, and the officer must have known it. No court has ever suggested otherwise. He must also have known that perjury is against public policy, a felony under Illinois law (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 2). The Bak decision did not approve what the officer here allegedly did; it only established a procedural rule making it unlikely that the officer would be caught.

“I knew I was doing wrong, but I believed I would get away with it” is not the sort of reliance that courts need honor. To apply Franks only prospectively would lead police officers to believe that they can profitably violate the fourth amendment as long as they are imaginative enough to stay one jump ahead of the courts in the methods used. On the contrary, the exclusionary rule is a better deterrent when police expect that in the end the rule will catch up with clearly unconstitutional tactics whether or not they have yet been expressly condemned by the courts, and even if they have so far been quietly practiced successfully. The need for general deterrence of unconstitutional conduct, as opposed to deterrence merely of conduct already condemned by the courts, leads me to the view that we should apply Franks retroactively in this case.

As for the administration of justice, retroactive application of Franks will add little to the burdens of the trial courts. A well-established avenue already exists for raising all fourth amendment issues before trial in a motion to suppress, so no new procedures are necessary here. While Franks put conditions on challenges to affidavits, the defendant has no objection to being subjected to those conditions and asks merely for the opportunity to file a motion meeting the Franks standards, an opportunity I think he should be given. In some instances the authorities may need to produce informers or other evidence they did not anticipate having to produce when the warrant was obtained. But, since the defendant has the burden of establishing the knowing falsity of the affidavit, his burden is likely to be at least as great as that of the police. And, if the defendant is unable to satisfy his burden, the police will not have to do anything.

An anomaly created by the decision here is that Jerome Franks received the benefit of the rule which bears his name but Herbert Laws will not. Both were tried in State courts following searches only a few months apart, both were in States adhering to the obsolete “four-corners” rule, both were stymied at trial by that rule in efforts to challenge the affidavit for the search warrant. Because Franks moved through the appellate process quickly, he was fortunate enough to get to the United States Supreme Court first and so won relief; Laws was doomed to a slower pace and is now to be denied relief. It is largely a matter of chance that the police were held to the command of the fourth amendment in Franks rather than here. As the late Mr. Justice Douglas put it, “Equal justice does not permit a defendant’s fate to depend upon such a fortuity.” United States v. Peltier (1975), 422 U.S. 531, 543, 45 L. Ed. 2d 374, 385, 95 S. Ct. 2313, 2320 (Douglas, J., dissenting).

I would hold the Franks rule retroactive. The Constitution does not require that those whose appeals have been decided be given another chance to relitigate fourth amendment issues (Stone v. Powell (1976), 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037); so finality requires that we apply Franks only to those cases in which the issue was raised or still can be raised in the trial court and which are pending there or on appeal.


source: Caselaw Access Project

author:
MR. JUSTICE CLARK
      MR. JUSTICE RYAN, MR. JUSTICE MORAN,

license: Public Domain

text:
    (No. 51989.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EUGENE A. WALKER, JR., Appellant.

      Opinion filed April 17, 1981.

      RYAN, J., concurring in the decision.
    MORAN, UNDERWOOD and WARD, JJ., dissenting.
    John H. Reid, Deputy Defender, and Robert E. Davison and Randy E. Blue, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Orisha A. Kulick, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the decision of the court and the following opinion in which MR. CHIEF JUSTICE GOLDENHERSH and MR. JUSTICE SIMON join:

This capital case presents questions involving the permissible reach of prosecutorial discretion under the due process clause of the United States Constitution and the appropriateness of the penalty of death for this defendant under the eighth amendment of the Constitution and Illinois law. For the reasons which follow, we consider only the former issue. The defendant initially pleaded guilty in the circuit court of St. Clair County to indictment counts of murder, attempted murder, armed robbery, and armed violence, pursuant to a plea bargain under which, inter alia, the defendant would receive a sentence of 60 years in the penitentiary. A subsequent motion to vacate this plea was granted, but when the case proceeded to trial, defendant entered an unnegotiated plea of guilty. A sentencing hearing was held before the court, and defendant was sentenced to death. This appeal followed. See 73 Ill. 2d R. 603.

Defendant Walker and Paul Bainter were jointly indicted on June 18, 1978, for murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1)), armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2(a)), armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2), conspiracy to commit armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 2(a)), -and four counts of attempted murder (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a)). The defendant originaEy entered a not guEty plea, and the St. Clair public defender was appointed to represent him.

The public defender’s unopposed motion for a psychiatric examination of defendant to determine his competency to stand trial and his sanity at the time of the offense based upon his “long history of mental and psychiatric problems” was granted on June 27, 1978. The report and an addendum to the report filed by the court-appointed psychiatrist on July 18, 1978, and September 7,

1978, respectively, contained conclusions that defendant was competent to stand trial and was sane at the time of the crimes, but noted defendant’s past history of drug and alcohol abuse and defendant’s “dull normal intelligence.” Defendant obtained a new attorney on August 8, and the case was set for trial on October 2, 1978.

Defendant’s counsel and the State’s Attorney concluded a plea bargain in which the defendant pleaded guEty to each charge except the one charging conspiracy, which the State agreed to drop. The State also agreed to recommend a 60-year prison term for murder and other sentences for concurrent terms which are not relevant here.

On October 2, the court explained the terms of the indictment but inaccurately advised the defendant of the maximum penalties which could be imposed for his crimes. The court twice told defendant that “[t] he range of sentencing could be 40 to 80 years,” whereas the indictment’s terms, alleging murder and armed robbery, justified a death sentence hearing. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(6); People v. Brownell (1980), 79 Ill. 2d 508, 524-25.) The State’s Attorney took a leading role in these proceedings, advising the court of the sanction possibilities for several indictment counts, and did not challenge the court admonitions on the murder count. Thus these proceedings did not comply with our Rule 402. (73 Ill. 2d R. 402(a)(2).) (The importance of Rule 402 was evidenced at this hearing. When the trial court informed defendant that the offense of murder carried with it a possible $10,000 fine, defendant answered: “I’d like to state this is the first time I heard that.” This fact, however, did not result in defendant changing his decision to plead guilty.) The court proceeded to inform defendant of the constitutional rights he was waiving by pleading guilty and attempted to ascertain whether his plea was knowing, voluntary and intelligent.

Defendant’s counsel set forth the factual basis for the plea. Near the end of the proceeding defendant interjected his concept of what the plea represented:

“THE DEFENDANT: I’d like to say that even though the facts of all this points against me, it’s more or less finding me guilty that I have no knowledge that I actually committed these crimes, and even though I have pleaded guilty I cannot say that I am guilty.”

The defendant’s attorney then, with the court’s permission, questioned the defendant:

“Q. Eugene, I think what you are trying to say is that you don’t recall after you went up into the cafe, isn’t that right? You don’t recall anything that took place after that?
A. Yes.
Q. Correct?
A. That’s correct.
Q. You’re not saying you weren’t there?
A. No.
Q. You remember being there, don’t you?
A. I remember being there.
Q. And you remember having the gun and having the green Army fatigue jacket on, don’t you?
A. Yes.
Q. What you are saying to the Court is what I had stated earlier, are you not, that you simply don’t recall firing the gun or killing, specifically, at Mrs. Wallace or any of the other people?
A. Yes.
Q. Okay.
THE COURT: Mr. Walker, you understand that you are admitting here today though that you did all those things the State said you did?
THE DEFENDANT: Yes.
Q. Your Honor, I think its’s a problem in that this young man, I believe him, honestly does not recall firing the gun. And I think that’s the point he was trying to make to the Court.
THE COURT: Is that correct, Mr. Walker?
A. That is correct.”

The plea was then entered. The court agreed to accept the plea as negotiated but apparently did not formally enter the sentence, for the case was ordered continued pending the receipt of a presentence report. (See Ill. Rev. Stat. 1977, ch. 38, par. 1005-3-1.) Therefore, the admonitions in Rule 605(b) (73 Ill. 2d R. 605(b)) were never given.

Ten days after these proceedings were concluded (see 73 Ill. 2d R. 604(d)), defendant, in a handwritten, notarized letter, asked the trial judge to withdraw his plea of guilty, alleging that he was mentally incompetent, did not understand the full consequences of his original guilty plea and intended to plead not guilty on the basis of mental incompetency. On November 20, defendant appeared in court with his counsel. Counsel, without giving reasons, stated that defendant’s motion to vacate the plea was against his advice. Defendant stated that he nevertheless desired to present the motion and dismiss his attorney. The court appointed the public defender to assist defendant in petitioning for a plea withdrawal.

The motion filed alleged various errors in advising the defendant which tended to show that he did not plead guilty knowingly, voluntarily and intelligently. This motion was argued on December 7. Defendant testified that both of his attorneys only consulted him briefly and that he was not fully advised prior to the plea that he would have to serve 30 years in jail under the bargain’s terms. In addition, defendant said he was “very depressed” and “very nervous” and “very confused” during the negotiation process and at the time of the entry of the plea. The State’s Attorney cross-examined the defendant about his reasons for changing his mind, his original decisional process and about the bargain itself:

“Q. And you knew at the outset what the State was going to recommend in exchange for you withdrawing your not guilty plea and entering a guilty plea, didn’t you, the term of years, the time that you would have to spend in jail?
A. Yes.
Q. As part of that, we— you knew also that the death penalty was not going to be sought, didn’t you, you would be going to jail rather than looking at a potential death penalty; didn’t you?
A. Yes.”

Defense counsel, however, argued in pertinent part to the court that “[t]he court has seen Mr. Walker testify here in this proceeding and the court can judge his mental state, his ability to understand, the possibility that he could be confused. He was very easily confused here today by [the State’s Attorney]. The court has also examined the psychiatric report, which shows his borderline level of retardation.” Although counsel did not explain which answers, out of those which were asked, he deemed a product of defendant’s confusion, this argument was unrebutted. The court granted defendant’s motion.

The trial court was also informed that defendant had arranged for private counsel, who represented defendant for approximately one month before withdrawing, on January 8, 1979, “for professional reasons.” The court, being advised that defendant was impecunious, appointed a new attorney to represent him.

This attorney filed a petition for a psychiatric examination on January 31, 1979. This petition alleged that defendant’s mental capacity to assist in preparing a defense was suspect, that he was not cooperating in preparing a defense and “that the defendant failed to understand and comprehend that the nature of the charges against him may ultimately lead to a death sentence and refuses to discuss same with counsel.” This petition was unopposed and the motion was granted.

The psychiatric report was prepared by a new psychiatrist. It paralleled the earlier report.

On the date this case was set for trial, February 6, 1979, the defendant, before a new judge, entered an unnegotiated plea of guilty to each indictment count. The trial court admonished the defendant in full compliance with Rule 402, the factual basis for the plea was set forth by the State’s Attorney, the plea was entered, and in the sentencing hearing which followed, defendant was sentenced to death.

The evidence introduced at the sentencing hearing showed that the defendant and Paul Bainter, after a day in which they consumed a large quantity of alcohol, late at night drove to State Park Cafe. Bainter went into the cafe to get some food. After he came out, he and the defendant decided to rob the cafe. Although there is some discrepancy concerning whose idea it was to commit the robbery, it was not disputed that the defendant, clothed in Paul Bainter’s army jacket with the hood pulled tight around his face, and carrying a gun owned by Bainter, entered the cafe and announced a holdup. Bainter remained in the car and kept it running. The defendant demanded that the patrons place their money on the tables. As they were complying, he fired one shot each toward the floor and ceiling. He then ordered everyone into a back room. Everyone in the cafe rushed toward the back room except Elsie Wallace, who apparently stopped to pick up her purse. The defendant then fired a couple of shots into the walls before moving within three feet of Elsie Wallace, who was still standing by her table. Terry Wallace, Elsie Wallace’s daughter, testified that as she was going into the back room she looked around and saw the defendant shoot her mother twice, in rapid succession, from a distance of three feet. Elsie Wallace died as a result of these gunshot wounds. The remaining patrons of the cafe huddled together in the back room to avoid being struck by stray bullets. A silence led them to believe the intruder had left; however, he entered the room brandishing his gun and demanded more money. When told it was all out on the tables, he started shooting the victims in a methodical fashion. One victim was shot in the face, another in the elbow, another in the left knee and another was shot twice in the breast. The events in the back room took only a matter of seconds. The defendant then left the cafe leaving the money on the tables, and ran to the waiting car. The defendant and Bainter drove away but Bainter determined to return to the cafe to see what had actually happened inside. The police were just arriving at the cafe as Bainter and the defendant pulled into the parking lot. The defendant hid on the floor of the car while Bainter entered the cafe. Bainter was detained by the police but was permitted to leave after approximately an hour. He and the defendant drove to the defendant’s house and informed the defendant’s wife what had occurcurred at the cafe. The following day, Bainter and his brothers disposed of the murder weapon, and he, the defendant, and their wives departed on a prearranged trip to Houston, Texas, where the defendant was arrested.

Defendant argues that two due process of law violations of the fourteenth amendment (U.S. Const., amend. XIV) took place: that the prosecutor’s actions in seeking the death penalty after defendant’s successful motion to vacate his guilty plea evidences prosecutorial vindictiveness and that defendant was inadequately advised of the consequences of withdrawing his guilty plea.

In North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, the court forbade the trial court’s imposition of a more severe sentence after a defendant secured a new trial on appeal in the absence of new and objective information justifying the sanction increase. In Blackledge v. Perry (1974), 417 U.S. 21, 27, 40 L. Ed. 2d 628, 634, 94 S. Ct. 2098, 2102, the court held that defendants were entitled to pursue their statutory right to appeal free from the fear that upon a grant of a new trial a prosecutor would substitute a more serious charge for the original one when the more serious charge was based on the same conduct. The reasoning of these cases has been applied, correctly in our view, whenever a defendant has chosen to exercise any procedural right. United States v. Thurnhuber (9th Cir. 1977), 572 F.2d 1307.

The State’s argument that any vindictiveness here was cured by the defendant’s subsequent voluntary, knowing, intelligent, unnegotiated plea of guilty is clearly merit-less. The vindictiveness cases involve defendants who faced more severe sanctions upon convictions entered after the alleged vengeance, pursuant to trials in which guilt on the more serious charge was established. This case involves a defendant who faced a more severe sanction also entered upon a conviction obtained subsequent to the alleged vengeance. The only difference is that this defendant finally recognized the inevitability of his conviction and entered a guilty plea. We cannot recognize a distinction between these two situations since it would serve only to encourage useless trials in order to preserve a vindictiveness claim. It is not the fact of guilt which is important; nor is it a question of whether that guilt was ultimately acknowledged. It is rather a question of why a prosecutor has sought an increased sanction and whether prophylactic protection is needed against the possibility of prosecutorial vindictiveness.

In Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, however, the court held, in a 5-to-4 decision, that a prosecutor’s threat to seek an additional indictment if the defendant did not plead guilty to altering a forged instrument in the amount of $88.30, in return for a recommended sentence of 5 years in prison, did not result in a denial of due process:

“Defendants advised by competent counsel and protected by other procedural safeguards' are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. [Citation.] Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. [Citations.]
While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ [Citation.] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty.” (Bordenkircher v. Hayes (1978), 434 U.S. 357, 363-64, 54 L. Ed. 2d 604, 611, 98 S. Ct. 663, 668.)

The court, however, also noted that “[t]his is not a situation *** where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty.” (434 U.S. 357, 360, 54 L. Ed. 2d 604, 609, 98 S. Ct. 663, 666.) It requires no spectacular leap of logic to conclude that under our unique murder statute and given the qualitative difference between death and other penalties, the possibility of a death sentence, if not revealed to a defendant, should be treated for the purposes at hand as an “additional and more serious charge.”

Bordenkircher teaches that defendants who make knowing, voluntary, and intelligent choices to risk an increased sanction rather than plead guilty pursuant to a plea bargain will be held to that choice. Although death is the most severe penalty, logically the possibility of death does not change this fact. (Cf. Brady v. United States (1970), 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463; North Carolina v. Alford (1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160.) The legitimacy of this principle, however, depends upon a defendant’s knowing, voluntary, and intelligent evaluation of the risks involved. (See generally Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) Thus, in People v. McCutcheon (1977), 68 Ill. 2d 101, which successfully foreshadowed Bordenkircher, defendant was on notice of the position he was in prior to the vacation of the plea agreement.

We conclude that the prosecutor here has, without notice, requested the death penalty after defendant’s successful invocation of a right afforded by law. It would certainly be contrary to the assumptions underlying Rules 402 and 605 (73 Ill. 2d Rules 402, 605) to assume that the admonition of the trial judge, the dominant courtroom figure, repeated twice at the initial plea proceeding, that the maximum sentence for defendant’s crimes was 80 years in prison, had no impact. At this proceeding the State’s Attorney took an active role — advising the court several times about the maximum sentences which could be imposed under the different indictment counts. By acquiescing in the trial court’s admonition that 80 years was the maximum penalty, the State’s Attorney unmistakably adopted that position and notified defendant that death was not a possible penalty for his crimes.

Defendant’s answer to a leading question, propounded at the plea-withdrawal proceeding, does not alter our opinion. Defendant’s intelligence was indisputably low. His confusion during the cross-examination was noted by defense counsel, a conclusion which was unchallenged by the State’s Attorney and apparently concurred in by the trial court, which granted defendant’s motion. And it is significant that after this proceeding defendant’s fifth attorney requested a psychiatric examination, in significant part because defendant did not understand that he faced a possible death sentence, and that the State’s Attorney never opposed this motion.

Since defendant clearly had a right to challenge a guilty plea which was not entered knowingly, voluntarily, and intelligently, we face the issue deliberately left open in Bordenkircher and believe that the vindictiveness principles are triggered when a prosecutor without notice increases the possible sanction severity for no valid reason after the defendant has exercised a procedural right. (See United States v. Andrews (6th Cir. 1980), 633 F.2d 449 (en banc); United States v. Velsicol Chemical Corp. (D.D.C. Sept. 30, 1980), 498 F. Supp. 1255; United States v. Ruesga-Martinez (9th Cir. 1976), 534 F.2d 1367; United States v. Gerard (9th Cir. 1974), 491 F.2d 1300; United States ex rel. Williams v. McMann (2d Cir. 1970), 436 F.2d 103, cert. denied (1971), 402 U.S. 914, 28 L. Ed. 2d 656, 91 S. Ct. 1396.) The prosecutor clearly has a stake in discouraging defendants from challenging their guilty pleas. A prosecutor under our death penalty statute also has the means at hand to discourage such challenges by pursuing a death sentence hearing. We think therefore that there is a realistic likelihood of vindictiveness. (Compare North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, with Colten v. Kentucky (1972), 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953, and Chaffin v. Stynchcombe (1973), 412 U.S. 17, 36 L. Ed. 2d 714, 93 S. Ct. 1977.) There is also the appearance of vindictiveness, at the minimum to the individual defendant, when a prosecutor changes his mind in the absence of any alteration in the facts other than a defendant’s invocation of a right the law plainly affords. Under any test, then, the prosecutor here is required to point out objective facts which justify a change of mind, as well as to put the defendant on notice prior to withdrawal of his plea what he will face.

The State has not done this here. The prosecution’s reasons for seeking the death penalty were stated on two occasions : in closing argument at the sentencing hearing and again at the hearing on defendant’s motion to vacate the plea of guilty and the death sentence. In closing argument the prosecutor, quoting from Shakespeare, confessed that he had been “too kind and meek” with defendant in his earlier agreement and that he was wrong not to seek the death penalty before. At the post-sentencing proceeding the prosecutor contended that the defendant understood the risks he faced when he moved to vacate the plea, since the State was not bound by its plea negotiation, and that defendant understood what motivations the State “might have had” in saving taxpayer resources or that any reservations the State “might have had” about the quality of its evidence would be absent were the defendant to successfully vacate his guilty plea. Professions of mistake fall short of the objective facts necessary to allow a change of mind or put a defendant on notice. (United States v. Andrews (6th Cir. 1980), 633 F.2d 449 (en banc).) Likewise, the prosecutor’s statements regarding the conservation of tax dollars and the reservations he “might have had” before about the evidence are inadequate. (Cf. North Carolina v. Pearce (1969), 395 U.S. 711, 726, 23 L. Ed. 2d 656, 670, 89 S. Ct. 2072, 2081.) The State, in its brief, moreover, has not argued that new and objective information unavailable when the original plea was entered justified a new decision to seek a death penalty.

If it were shown on the record in this case that the prosecutor informed defendant from the start that the death penalty would be sought if defendant did not plead guilty, had defendant subsequently pleaded guilty, and then had defendant reneged on that bargain, we would not prevent prosecutors from again seeking to execute him. But the due process clause of the United States Constitution now requires rules which will prevent a vindictive prosecutor from punishing a defendant for doing something the law allows him to do. Undoubtedly prosecutors will be prevented by these rules from undertaking some actions motivated by a good-faith concern for the public weal. Thus we do not say that this prosecutor necessarily was vindictive.

We do say, however, that Rule 402 was not made to be disregarded. The record here shows that, prior to defendant’s challenge of his guilty plea, he was told by the State and the court that he could receive a maximum sentence of 80 years in the penitentiary. No evidence has been offered explaining how these affirmative misrepresentations, if that is truly what they were, were cured. After defendant invoked his right to challenge his plea, therefore, he was placed in the position he was told he occupied previously and is eligible to receive a maximum sentence of 80 years in jail.

By analogy to Rule 605(b)(4), defendants henceforth should also be advised whether the State will seek the death penalty upon the withdrawal of a negotiated guilty plea. When trial courts perform the functions mandated by Rules 402 and 605, they forestall “proceedings that seek to probe murky memories” (Boykin v. Alabama (1969), 395 U.S. 238, 244, 23 L. Ed. 2d 274, 280, 89 S. Ct. 1709, 1713) and proceedings like this one, where this court was asked to infer that a defendant of low intellect was correctly advised on the flimsy basis of a solitary monosyllabic affirmation during a cross-examination.

Lastly, the defendant pleaded guilty to both armed robbery and conspiracy to commit armed robbery. Under Illinois law, a defendant cannot be convicted of both the inchoate and the principal offense. (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 5.) The State agrees that the defendant’s conviction for conspiracy to commit armed robbery should be vacated.

The sentence and conspiracy conviction are vacated and the cause is remanded to the circuit court for the imposition of a sentence not greater than 80 years in the penitentiary.

Affirmed in part and vacated in part; cause remanded, with directions.

MR. JUSTICE RYAN,

concurring in the decision:

Although I concur in the result reached in the court’s opinion, I cannot agree with the reasoning supporting that result. I specifically do not agree that our Rule 402(a)(2) was violated prior to the defendant’s first plea of guilty. That rule requires only substantial compliance. Since the plea was a negotiated plea and the State had not requested the death penalty, the defendant was properly admonished as to the maximum penalty that could be imposed (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(1)). I also do not believe that due process required that the defendant be admonished that the State would seek the death penalty if the defendant withdrew his negotiated guilty plea. If the original admonishment under Rule 402 was defective, the defects were not relevant to this case because the defendant was fully and accurately admonished before he entered his nonnegotiated plea of guilty. I do feel that, for the reasons stated below, the defendant’s due process right was violated, as well as his rights under the eighth amendment of the Federal Constitution.

The defendant, citing North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, argues that the potential for vindictiveness which accompanied the State’s Attorney’s decision to ask for the death penalty following the withdrawal of the defendant’s original guilty pleas violated the due process clause. However, the State points out that in North Carolina v. Pearce and Blackledge v. Perry, the defendants had not withdrawn from negotiated pleas of guilty but the increased penalty was requested following the defendants having availed themselves of the lawful methods provided for challenging their convictions. The State cites Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, in which case the Supreme Court noted that distinction and stated:

“In those cases [Pearce and Perry] the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ Parker v. North Carolina, 397 U.S. 790, 809 (opinion of Brennan, J.). ***
*** [I] n the ‘give-and-take’of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” (Bordenkircher v. Hayes (1978), 434 U.S. 357, 362-63, 54 L. Ed. 2d 604, 610-11, 98 S. Ct. 663, 667-68.)

The court held in Bordenkircher that due process was not violated when the prosecutor threatened during plea negotiations to have, and subsequently did have, the accused indicted on a more serious charge for not pleading guilty to the offense which was originally charged.

These cases which I have discussed did not involve the death penalty, and for this reason are not helpful in deciding the case now before this court. The death penalty is such a different penalty that the logic and reasoning of the court in applying other penalties are of little help in justifying the imposition of the ultimate penalty. We would not be on sound footing in following the rationale of these cases in determining the due process issue as it relates to the imposition of the death penalty. In considering any case involving the penalty of death, one must look to the rationale of the Supreme Court in deciding the validity of death penalty statutes both on their face and as applied. These cases have generally analyzed and determined the issues presented on the basis of the proscription of the eighth amendment to the Federal constitution; however, I perceive that a statute, valid on its face, as this court has heretofore determined our death penalty statute to be (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531), could be applied in such a manner as to constitute a due process violation, as well as cruel and unusual punishment proscribed by the eighth amendment. Following the rationale of the Supreme Court in the death penalty cases hereafter discussed, I conclude that the imposition of the death penalty on the defendant, under the facts of this case, constitutes a violation of the due process clause of both the State and Federal constitutions, as well as cruel and unusual punishment proscribed by the eighth amendment of the Federal Constitution. The imposition of the death penalty in this case would constitute an arbitrary application of the statute, unguided by any standards except the whim of the prosecutor.

When the Illinois legislature enacted the current death penalty law for the offense of murder (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a) through (j)), it specified that the death penalty is a possible sentence only if at least one of seven aggravating factors is found to exist by a judge or jury at a separate sentencing hearing following the defendant’s conviction of murder. (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(g), (h).) However, the separate sentencing hearing to determine if the death penalty should be imposed can only be held “ [w] here requested by the State.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d).) Since the request of the State’s Attorney is a condition precedent to the imposition of the death sentence, if not requested, the death sentence can never be applied.

Under the facts of this case, when the State’s Attorney negotiated a guilty pleas from the defendant in exchange for a 60-year sentence on the murder charge, death was not a possible penalty since it could not be imposed without the State’s Attorney’s request for a penalty hearing. The prosecutor, having exercised the discretion vested in him by statute, informed the court, the defendant and the public that death was not an appropriate penalty in this case and the court, by concurring in the negotiated plea, confirmed this conclusion. However, within three months the prosecutor decided that death was an appropriate penalty and requested the penalty hearing, which activated the statutory machinery ultimately enabling the court to sentence the defendant to death. The defendant was the same; the offense was the same; no new evidence had surfaced; and the conviction was obtained in the same way, by a plea of guilty. Now, just three months later, the appropriate penalty, the price tag, for this offense was no longer 60 years, but death. The prosecutor explained to the court: “[A] nd prosecutors, your Honor, make decisions. Somebody has to. And we make mistakes. Mine was in not seeking the death penalty earlier. I was wrong then. I am right now.”

If such drastic variances in penalties recommended by the same State’s Attorney for the same offense to be imposed on the same defendant can be attributed to a mistake in judgment or evaluation, it is, of course, possible that the latter judgment was the mistaken one, which another evaluation by the State’s Attorney would make evident. From the record, it appears that the prosecutor may have changed his mind more than once as to the penalty to be sought. At the sentencing hearing the defendant’s counsel, in argument to the court, stated that on June 23, several months prior to the negotiated plea, the State’s Attorney told the News Democrat he was “going to seek the death penalty” for defendant Walker but probably not for defendant Bainter. The State’s Attorney, in responding to the argument of defense counsel, did not deny that he had made such a statement to the newspaper. Later, of course, he recommended a sentence of 60 years, and finally he again sought the penalty of death. In view of this vacillation and the admission of the State’s Attorney that mistakes are made, we naturally wonder if the recommendation of a sentence of 60 years was the result of the prosecutor’s conclusion that his prior opinion in June that death was an appropriate penalty was also a mistake. In Furman v. Georgia (1972), 408 U.S. 238, 309, 33 L. Ed. 2d 346, 390, 92 S. Ct. 2726, 2762, Mr. Justice Stewart, in a concurring opinion, stated:

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Borrowing the analogy of Mr. Justice Stewart, I view the imposition or the withholding of the death penalty, depending upon whether or not the prosecutor thinks he made a mistake, as cruel and unusual in the same manner that being struck by lightning is cruel and unusual. It has no rational basis and is founded upon no standards or guidelines. It is purely an arbitrary, capricious and freakish imposition of the penalty, in violation of the eighth amendment to the Federal Constitution and the due process clause of the fourteenth amendment of that constitution and of the Constitution of this State.

Furman v. Georgia rendered invalid most State death penalty statutes, following which many States reenacted statutes authorizing the imposition of the death penalty. In 1976 the Supreme Court considered five of those statutes in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960, Jurek v. Texas (1976), 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950, Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, and Roberts v. Louisana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001. A majority of the court found the statutes to be valid in the first three cases while in the last two cases the maj ority of the court found the statutes did not comply with the eighth amendment requirement. In Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954, the opinion of the chief justice summarized the holdings of the many opinions filed in the five post -Furman cases. The Lockett opinion concluded that the court had held in those cases that there is a qualitative difference in the death penalty and punishment in noncapital cases. Although legislatures remain free to decide how much discretion should be reposed in a judge or jury in non-capital cases, this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The Lockett opinion also distilled from the five post -Furman cases that all sentencing discretion need not be eliminated but it must be directed and limited so that the death penalty would be imposed in a more consistent and rational manner so that there would be a meaningful basis for distinguishing the cases in which it is imposed from those in which it is not. In Gardner v. Florida (1977), 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197, the court held that it is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion. I might add to this statement, or mistake.

The mandate of these cases was clearly not followed in this case. Death is a drastic penalty. Its finality demands certainty in that the prosecutor’s decision to request a penalty hearing must have a rational basis. His explanation that his previous recommendation of a 60-year sentence was a mistake does not satisfy what the Supreme Court in the above cases has deemed essential. If death was the appropriate penalty in this case, the State’s Attorney should not have vacillated but should have sought it following the first guilty plea. Thus, it does not appear that there is a meaningful basis for distinguishing between the imposition of the death penalty on the second guilty plea and the foreclosing of it on the first, when nothing in the case had changed except that the prosecutor stated he made a mistake.

The reasoning of this case does not necessarily apply to lesser penalties. The Supreme Court of the United States has recognized on several occasions that the guilty plea and the plea bargain are essential components of the country’s criminal justice system. (Santabello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663.) However, due to the qualitative difference in the death penalty there is a corresponding difference in the need for reliability in determining whether death is the appropriate punishment in a specific case.

It is a denial of due process to subject the defendant facing death to the vacillation of the prosecutor’s office as was done in this case. When the prosecutor forgoes his right to seek the death penalty, enters into plea negotiations, and reaches an agreement that is acceptable to him and the court, notions of basic fairness and due process prevent him from seeking the death penalty at a later date absent a change in circumstances beyond a mere recognition that he made a mistake. For these reasons I would hold that the defendant’s eighth amendment rights as well as his due process rights were violated in the procedure leading up to the imposition of the death penalty in this case.

MR. JUSTICE MORAN,

dissenting:

The opinion of Mr. Justice Clark expressly states:

“If it were shown on the record in this case that the prosecutor informed defendant from the start that the death penalty would be sought if defendant did not plead guilty, had defendant subsequently pleaded guilty, and then had defendant reneged on that bargain, we would not prevent prosecutors from again seeking to execute him.” (84 Ill. 2d at 525.)

That is exactly what transpired in this case. Therefore, I would affirm the judgment of the trial court.

My colleagues engage in a prolonged discussion of prosecutorial vindictiveness, focusing primarily upon Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663, yet ultimately conclude that the prosecutor in the instant case was not necessarily vindictive. (84 Ill. 2d at 525.) Nevertheless, they find a denial of defendant’s due process rights because the improper initial admonition led to defendant’s unawareness that the State could seek the death penalty following withdrawal of the first guilty plea.

In Bordenkircher, the State prosecutor carried out his threat made during plea-bargaining negotiations to seek an additional indictment if the defendant did not enter a guilty plea to the forgery offense with which he was originally charged. The Supreme Court first determined that North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (cited by my colleagues in this case), were inapplicable because those cases involved “the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ [Citation.]” (Bordenkircher v. Hayes (1978), 434 U.S. 357, 362, 54 L. Ed. 2d 604, 610, 98 S. Ct. 663, 667.) The court then analyzed the plea-bargaining process noting that “[d] efendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation.” (434 U.S. 357, 363, 54 L. Ed. 2d 604, 611, 98 S. Ct. 663, 668.) The court’s holding was narrow:

“We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.” 434 U.S. 357, 365, 54 L. Ed. 2d 604, 612, 98 S. Ct. 663, 669.

As my colleagues point out, the court excluded from its consideration the situation where the State brings an additional and more serious charge without prior notice after a defendant insists on pleading not guilty following plea negotiations pertaining only to the original indictment. This exclusion, taken in conjunction with the narrow holding, means only that the opinion, as it relates to prosecutorial vindictiveness, does not pertain to a situation where the State brings a more serious charge that it did not confront defendant with during the course of plea negotiations.

Even if the inference is correct that this latter situation would result in a finding of prosecutorial vindictiveness (see footnote 5 of the Bordenkircher opinion, where the court specifically passes no judgment on this situation (434 U.S. 357, 360 n.5, 54 L. Ed. 2d 604, 609 n.5, 98 S. Ct. 663, 666 n.5)), the circumstances in the instant case are distinguishable from those encompassed by the exception. The record nowhere indicates that the State sought a penalty that was not brought to defendant’s attention during the course of plea negotiations. Moreover, the holding in Bordenkircher, as well as the exclusion language, confines itself to the State’s seeking an additional and more serious charge. Although my colleagues find “[i]t requires no spectacular leap of logic” (84 Ill. 2d at 522) to analogize seeking a different and more serious charge to seeking a more serious sentence, I find Bordenkircher does not provide an adequate foundation from which to launch the leap they do make, nor is any additional authority cited. Finally, Bordenkircher focuses on prosecutorial conduct prior to the entry of a plea — it does not address the issue of withdrawal of a guilty plea.

Further, I disagree with the conclusion that, as a result of the trial judge’s improper admonishment, defendant was unaware the death penalty was a possible consequence at the time he withdrew his first guilty plea. At that time, on December 7, the following exchange took place between the State’s Attorney and defendant:

“Q. As part of that [the negotiated guilty plea], we— you knew also that the death penalty was not going to be sought, didn’t you, you would be going to jail rather than looking at a potential death penalty; didn’t you?
A. Yes.”

My colleagues state that defendant’s low intelligence and confusion preclude giving credence to the preceding dialogue, in light of the original improper admonition. Yet, at the hearing to withdraw the original plea of guilty on December 7, defendant’s attorney in no way indicated that any confusion experienced by the defendant pertained to that specific exchange or that any confusion was attributable to the improper admonition. I also disagree with the statement of my colleagues that by “acquiescing” in the trial court’s admonition that 80 years was the maximum penalty, the State’s Attorney “notified defendant that death was not a possible penalty for his crimes.” (84 Ill. 2d at 523.) My colleagues prefer to reach this strained conclusion rather than rely on plaintiff’s response when the above specific question was posed to him.

Additionally, when defendant asked the trial judge to withdraw his first guilty plea, defendant was represented by counsel, who appeared in court on November 20 and stated that defendant’s motion to vacate the guilty plea was against his advice. It is not unreasonable to assume that, as part of this advice, counsel notified defendant he could receive the death penalty. At that time, defendant dismissed his counsel and the court appointed the public defender to assist defendant in a motion to withdraw his guilty plea. My colleagues give no indication that the motion to withdraw was made because the maximum penalty that could be imposed was an 80-year prison term. Incidentally, during the course of the proceedings, defendant was represented by and received the advice of five different attorneys.

Collectively, these factors do not indicate to me that, at the time defendant withdrew his guilty plea, he was unaware that death was a possible consequence. This court has stated that “ ‘*** [T] he petitioner must bear the burden of showing that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.’ ” (People v. Hale (1980), 82 Ill. 2d 172, 176, quoting United States ex rel. Curtis v. Zelker (2d Cir. 1972), 466 F.2d 1092, 1098.) In the present case, the defendant has not met the burden to justify any misconception.

In this case, the judge gave an improper admonition at the time of the first guilty plea. The judge, however, allowed defendant to withdraw that plea, thereby nullifying any improper admonition previously given. The granting of the motion to withdraw placed defendant in the same position as if the original negoitated plea had not occurred. Subsequently, the defendant realized, in the words of my colleagues, “the inevitability of his conviction” and on February 6, before another judge, entered an unnegotiated plea of guilty to each indictment count. The trial judge’s extremely thorough admonishment was in full compliance with Rule 402. (73 Ill. 2d R. 402(a)(2).) The latter admonition reveals that the plea was not entered under the misconception that the terms of the plea agreement were still in effect. Indeed, the defendant repeatedly demonstrated his awareness that the death penalty was a possible consequence of the second guilty plea. Nevertheless, defendant persisted in pleading guilty.

Under the circumstances surrounding this case, I do not believe defendant’s due process rights were violated.

UNDERWOOD and WARD, JJ., join in this dissent.


text:
    (No. 53525.
    VALLEY MOULD & IRON COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jose A. Munoz, Appellee).

      Opinion filed April 17, 1981.

      SIMON, J., concurring in part and dissenting in part.
    Keith C. Hult, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Perry M. Laks, of Chicago (Goldstein, Goldberg & Fishman, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This workmen’s compensation claim was filed by Jose A. Munoz (claimant) against the Valley Mould & Iron Company (employer) for injuries allegedly arising out of and in the course of his employment while working on the casting floor of a large metal-mold fabricating plant. On April 15, 1976, claimant suffered a stroke while performing his duties at work that resulted in partial loss of control over the right side of his face, right arm and leg, as well as a mild aphasia. The arbitrator entered an award of permanent total disability, which was affirmed on review by the Industrial Commission. On certiorari the circuit court of Cook County confirmed the award. The employer appeals to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)), claiming that the Commission’s finding as to causation was contrary to the manifest weight of the evidence, and that the claimant failed to meet his burden of proof with respect to permanent total disability.

While we find the Commission’s holding on the issue of causation supported by the manifest weight of the evidence, we agree with the employer that the record in this case discloses that the award for permanent total disability is contrary to the manifest weight of the evidence.

The employer is in the business of casting iron for various uses by pouring the molten metal into molds. The scale of the operation is quite large, as evidenced by the fact that the molds in question, once they are assembled and ready to be filled, range from 6 to 10 feet in height and weigh anywhere from 5 to 30 tons. Each of two shifts on the casting floor produces between 28 and 32 castings per day.

Claimant was originally employed on September 22, 1972. Between that time and the date of the accident, he worked at various tasks in the casting department, all of them requiring heavy physical labor but none of them requiring any particular skill. At the time of the accident, claimant was working as a “skimmer.” His job was to remove impurities from the molten iron by “skimming” them off of the molds after they had been poured. This task is performed by repeatedly stroking the L-shaped end of a three-fourths-inch-diameter steel rod approximately six to seven feet long across each mold, thereby removing the impurities that have floated to the top. During all phases of the actual casting process, including “skimming off,” everyone on the casting floor is required to wear asbestos trousers, asbestos jackets, hard hats with face shields, and asbestos gloves. These items of protective clothing are worn on top of and in addition to the employee’s regular work clothes.

On April 15, 1976, claimant began work at noon, which was the usual starting time for his shift. After working for approximately three hours to prepare the molds for that day, the pouring operation began, at which time claimant took up his position as a “skimmer.!’ The outside temperature at this time was approximately 80 degrees Fahrenheit. The temperature in the building was much higher. After 4:30 p.m. claimant became ill. He continued to work for a time but was compelled to leave his work station and collapsed in the locker room. He was then taken to the intensive care unit of South Chicago Hospital in a semiconscious state, where he came under the care of Dr. A. Gutierrez.

Dr. Gutierrez transferred the patient out of intensive care on April 18, 1976. For the next several days claimant underwent a series of tests, including a brain scan and electroencephalogram. Dr. Gutierrez diagnosed the claimant’s condition as resulting from a “tumor of the brain, left temporal lobe.” The patient was discharged on April 24, 1976, and transferred to Michael Reese Hospital and to the care of Dr. Irving Sherman. Further testing at Michael Reese showed abnormal results indicating an infarct on the left side of the brain. The presence of an aneurysm of the internal carotid artery was also noted. Claimant was released from Michael Reese on May 5, 1976, and has received no further treatment for his condition.

At arbitration, Dr. Nathaniel Greenberg testified on claimant’s behalf. Based upon the medical records of both hospitals, as well as his examination of the patient, Dr. Greenberg was of the opinion that the patient had suffered a ruptured aneurysm of the left internal carotid artery, brought about by a marked rise in blood pressure due to the environmental conditions, as well as the strenuous nature of the patient’s work. Dr. William Buckingham testified at arbitration for the employer. While he did not dispute that there had been an infarct to the left side of the claimant’s brain, he stated that based upon the same medical records and his examination of the patient, claimant’s condition was caused by the natural degenerative process of arteriosclerosis rather than a trauma-induced rupture of an aneurysm.

In addition to the medical experts, several witnesses, including claimant’s foreman, testified. Their testimony established the working conditions at Valley Mould noted previously, as well as the fact that, despite his medical release to work in January of 1977, claimant has not been returned to work. The record is conflicting as to whether this was a result of a general economic slowdown that would have resulted in the claimant’s layoff even if he had not been injured, or whether his “light duty” restriction rendered him unemployable in any capacity at Valley Mould. There was absolutely no testimony by any witness regarding the claimant’s education, skills, or past employment. Claimant did testify, however, that he had not applied to any other place of employment for any type of work. Upon this evidence the arbitrator entered an award of permanent total disability under section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)).

On review, the Commission heard the additional testimony of Dr. Nicholas Wetzel, who testified for the employer. Dr. Wetzel, a neurological surgeon, examined the claimant, reviewed the medical records, and upon that basis concluded that the claimant’s condition was not caused by his work activities. Dr. Greenberg testified for the claimant and essentially restated his previous opinions, which were confirmed by an additional examination of claimant subsequent to the hearing at arbitration. The claimant also testified as to his present condition of ill health. He stated that he has not worked or applied for work anywhere since the hearing at arbitration. Once again, no evidence was produced concerning the claimant’s education, skills, or prior employment. Based upon the record of the hearing at arbitration and the additional evidence on review, the Industrial Commission affirmed the arbitrator’s award of permanent total disability.

We note at the outset the controlling principle of all factual questions in workmen’s compensation cases: the findings of the Industrial Commission will not be disturbed unless they are contrary to the manifest weight of the evidence. (Morgan v. Industrial Com. (1980), 82 Ill. 2d 524, 527; Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271, 275.) Conjunctively, we consider that it is primarily within the province of the Industrial Commission to resolve conflicting medical testimony. (National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, 54; Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293, 300.) In the case at bar the causal connection between the claimant’s condition and his work was not apparent from the fact of its occurrence. Claimant chose to show the relationship by introducing medical testimony. The employer produced contrary medical evidence that created a conflict in the record regarding causation. Since credible evidence was introduced which could support either of two opposing propositions, the issue of causation became a factual question based upon conflicting medical testimony to be resolved by the Commission. Although the Commission chose to adopt the inference that claimant suffered a ruptured aneurysm of the left internal carotid artery due to the heat and stress of his job, that inference is a permissible one since it has support in both the opinion evidence and objective findings of the treating doctors contained in the record. Permissible inferences will not be disregarded or set aside merely because other inferences might be drawn from the same evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236,240.

In County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, this court reversed the Commission’s finding that a stroke victim’s work activities were causally related to her injury. In County of Cook, a 50-year-old woman with a history of hypertension and high blood pressure suffered a ruptured cerebral aneurysm when she rose from her chair at work in an office. We held there that, to be compensable, the injury must result from a risk to which, by reason of the employment, the injured employee is exposed to a greater degree than if he had not been so employed. (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 32.) In that case this court found that the work-connected activity subjected the employee to no greater risk than did many normal daily activities. The description of the working environment for an employee on the casting floor of Valley Mould and Iron set out earlier in this opinion clearly distinguishes this case from County of Cook. Having accepted the proposition that claimant suffered a ruptured aneurysm of the left internal carotid artery, and that a marked increase in blood pressure brought on by the heat and stress of the employment could cause such a rupture, the Commission’s conclusion regarding causation in this case was reasonable, if not compelled. The heat caused by working with molten iron, the need to wear heavy protective clothing, and the physical demands of the job itself exposed claimant to a much greater risk that a preexisting aneurysm would rupture as a result of his employment at Valley Mould than if he had not been so employed. Consequently, the Commission’s finding of a causal relationship between claimant’s work and his injury was not contrary to the manifest weight of the evidence.

In A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, this court considered the question of permanent and total disability within the meaning of section 8(f) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)). In E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 361-62, this court had stated:

“[A] person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. [Citation.] Conversely, if an employee is qualfied for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not totally and permanently disabled.”

In determining whether an employee may perform any useful services, his age, training, education, and experience must be taken into account. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 362.) The effect of A.M. T. C. was not to change the definition of permanent disability, as discussed in E. R. Moore Co., or the factors to be considered in arriving at such a determination, but merely to allocate the burden of proof as between the employer and the injured employee. Under A.M.T.C., if the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the “odd-lot” category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10-164.97 (1980)).

In the case at bar, none of the medical experts testifying were of the opinion that claimant was permanently and totally disabled. They all agreed that he could return to some form of light physical work. The objective findings in the record indicate that he had a full range of motion in his right arm and leg despite the injury, although he had lost “some control and strength” in those limbs. Under these circumstances, the claimant could not be considered obviously unemployable. Since he had not made out a prima facie case that he fell in the odd-lot category, the burden remained upon him to show his inability to return to gainful employment. It was incumbent upon him to show that, considering his present condition, in light of his age, experience, training, and education, he is permanently and totally disabled within the definition stated in Moore set out above. This burden may be met by a showing of diligent but unsuccessful attempts to find work (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 490), or by proof that because of the above-mentioned qualities he is unfit to perform any but the most menial tasks for which no stable market exists (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273, 278; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259). Here, neither showing was made. The only evidence in this regard is that claimant is 45 years old, has worked at Valley Mould since 1972, and converses in Spanish rather than English. The record is devoid of any facts concerning his education or skills. Further, as noted earlier, he admitted that he did not apply for work anywhere other than at Valley Mould following the accident. This proof is not sufficient to sustain an award of permanent total disability.

Since the claimant in this case has failed to sustain his burden of proof, the judgment of the circuit court of Cook County must be reversed. We note, however, that during the proceedings before the Industrial Commission, claimant’s attorney attempted to examine claimant regarding his education. Upon objection to counsel’s question, the matter was dropped and not pursued any further. Consequently, the cause is remanded to the Industrial Commission for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE SIMON,

concurring in part and dissenting in part:

I agree that claimant’s injury was work related. I do not understand, however, why we cannot decide now whether the Industrial Commission properly determined that his injury leaves him permanently and totally disabled instead of remanding this case to the Industrial Commission for additional inquiry with attendant delay and more expense. The majority directs the Commission to take further evidence to determine either that claimant could with diligent effort find work within the range of his limited capacity or that no stable employment market exists for the kind of job claimant is now capable of holding. I think this is an unrealistic, useless and unnecessary exercise to which neither the claimant nor the Commission should be put.

We are dealing here with a 45-year-old disabled laborer, who converses in Spanish rather than English. He is partially paralyzed and suffers from residual aphasia, an organic brain defect impairing his ability to express thoughts and ideas. His only work for at least the past 9 years has been extremely strenuous laboring jobs. He can no longer do that type of work. His own employer, Valley Mould, apparently has no other job suitable for him.

Claimant is handicapped in seeking another job by his language shortcomings, specialized work experience and physical problems. With the State of Illinois and the Chicago metropolitan area suffering, as they have for the past few years, from the greatest unemployment experienced in almost half a century, I would consider any success claimant, plagued by those handicaps, had, with even the most diligent of efforts, in finding a job a complete fluke.

The Industrial Commission implicitly found that there was no stable market for Munoz’s skills when it found him to be totally and permanently disabled. In handling its day-to-day business the Commission is often forced to inquire into the employment market, and I believe that the Commission has some expertise in determining whether no stable market exists for claimant’s skills. The evidence already in the record is enough to support the Commission’s conclusion that the claimant is obviously unemployable at least in the labor market which currently exists and is likely to continue for the forseeable future. As I view it, directing the Industrial Commission to conduct further proceedings to determine whether there is a job somewhere for claimant would be a waste of time, effort and money.

If the majority were remanding the case to the Industrial Commission to ascertain a fact, I might view the majority’s conclusion differently. But, what the majority is remanding this case for is in reality an opinion of the Industrial Commission, a prediction about the likelihood that claimant can find a job he can physically perform. Who really knows?

Moreover, if the record is incomplete it is not the claimant’s fault. When his counsel attempted to establish for the record what education he had, an objection interfered with this effort. If Valley Mould feels the record is incomplete without this information, it should not have interfered with the introduction of this evidence.

For these reasons I dissent from the portion of the decision which remands this cause to the Industrial Commission.