People v. Zarka-Nevling

JUSTICE MYERSCOUGH

delivered the opinion of the court:

Defendant, Connie J. Zarka-Nevling, pleaded guilty to a Class 4 felony of driving under the influence of alcohol (DUI) (625 ILCS 5/11— 501(d)(1)(A) (West Supp. 1997)) in return for the State’s promise to dismiss one count of felony driving while license revoked (DWR) (625 ILCS 5/6 — 303(d) (West Supp. 1997)) and was sentenced to 2V2 years in prison. Defendant timely filed a motion to reconsider sentence, but the court denied it.

Defendant appeals, arguing that (1) the trial court’s post-guilty-plea admonitions were deficient; (2) defense counsel provided ineffective assistance of counsel because he failed to file the proper post-guilty-plea motion; and (3) the court abused its discretion by imposing an excessive prison sentence of 21lz years. We disagree and affirm the trial court.

I. BACKGROUND

Both parties presented evidence in support of their respective recommendations at defendant’s sentencing hearing. The State explained that defendant had four prior convictions for DUI from three separate jurisdictions, a conviction for aggravated battery, and prior terms of court supervision and probation that had been revoked. Testimony also revealed that defendant resisted the arresting officer’s attempts to help at the scene of her accident. Based on defendant’s criminal history, the presentence report, and an alcohol and drug report summary, the State recommended a three-year prison term.

Defense counsel argued, however, that defendant suffered from serious mental health problems that went unaddressed by the court system until recently. Defendant also presented testimony of friends and family members who asserted that defendant had been attending counseling and had not consumed any alcohol since the accident. These witnesses further testified that a jail sentence would be inappropriate and potentially harmful, based on defendant’s mental condition. The evidence in mitigation concluded with defendant’s assertions that she could not actually recall the incident, due to a possible blackout, but that she was remorseful for her actions.

Based on the evidence presented, the trial court sentenced defendant to 2V2 years in prison and, in accordance with Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), admonished defendant of her right to appeal.

In September 1998, defendant timely filed a motion to reconsider sentence, in which she contended that her sentence was excessive and inappropriate. In October 1998, the trial court denied that motion. Defendant never moved to withdraw her guilty plea. This appeal followed.

II. ANALYSIS

The parties’ briefs present two issues on appeal: (1) whether the trial court violated defendant’s right to procedural due process by failing to admonish defendant that she must file a motion to withdraw her guilty plea to challenge her sentence, and (2) whether the trial court abused its discretion by sentencing defendant to 21k years in prison.

A. Defendant Need Not Withdraw Guilty Plea To Contest Only Her Sentence on Appeal When Pleading Guilty Solely in Exchange for the State’s Dismissal of Additional Charges

1. Supreme Court Rules 604(d), 605(b), and Evans

Supreme Court Rule 604(d) reads, in pertinent part, as follows: Prior to the 1992 amendments to Rule 604(d), a defendant could not appeal from a guilty plea unless he first moved in the trial court to withdraw the guilty plea and vacate the judgment, even if he wished to challenge only his sentence. People v. Stacey, 68 Ill. 2d 261, 265, 369 N.E.2d 1254, 1256 (1977); People v. Evans, 174 Ill. 2d 320, 329-30, 673 N.E.2d 244, 249 (1996). The 1992 amendment to Rule 604(d) permitted a defendant who wished to challenge only his sentence without withdrawing his guilty plea to file a motion to that effect.

“(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** The motion shall be heard promptly, and if allowed, the trial court shall modify the sentence or vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (Emphasis added.) 145 Ill. 2d R. 604(d) (emphasized language added April 1, 1992, eff. August 1, 1992).

The supreme court similarly amended Rule 605(b)(2) at the same time it amended Rule 604(d) to change the trial court’s post-guilty-plea admonition to a defendant by explaining that he needed to file within 30 days a written motion asking either to reconsider the sentence or to have the judgment vacated and the guilty plea withdrawn. Supreme Court Rule 605(b) now reads, in pertinent part, as follows:

“(b) On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:

(1) that he has a right to appeal;

(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;

(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence!,] and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;

* * *

(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to reconsider the sentence or to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” (Emphasis added.) 145 Ill. 2d R. 605(b) (emphasized language added April 1, 1992, eff. August 1, 1992).

Uncertainty still existed, however, regarding how Rule 604(d) applied to negotiated guilty pleas, as opposed to open guilty pleas. The supreme court attempted to resolve this uncertainty in Evans, 174 Ill. 2d at 324-32, 673 N.E.2d 246-50.

In Evans, two defendants entered into negotiated plea agreements in which each pleaded guilty to certain charges in exchange for the State’s agreement to dismiss other charges and recommend a specific sentence. Evans, 174 Ill. 2d at 321-24, 673 N.E.2d at 245-46. The supreme court held that “following the entry of judgment on a negotiated guilty plea, even if a defendant wants to challenge only his sentence, he must move to withdraw the guilty plea and vacate the judgment so that, in the event the motion is granted, the parties are returned to the status quo.” Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. Therefore, “for a defendant to prevail in a challenge to a sentence entered pursuant to a negotiated plea agreement, a defendant must (1) move to withdraw the guilty plea and vacate the judgment, and (2) show that the granting of the motion is necessary to correct a manifest injustice.” Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250.

The reasoning behind Evans, however, is of particular interest to the case at hand. Relying on contract principles, the court reasoned that defendants should not be able to unilaterally seek to reduce their agreed-upon sentences, yet still hold the State to its part of the bargain. Evans, 174 Ill. 2d at 327, 673 N.E.2d at 247-48. In addition, the Evans court agreed with the State’s argument that “Rule 604(d)’s motion-for-sentence-reconsideration provisions were intended to apply only to open guilty pleas.” Evans, 174 Ill. 2d at 331, 673 N.E.2d at 250. The court reasoned that, “[f] olio wing a defendant’s open guilty plea, the trial court exercises its discretion and determines the sentence to be imposed.” (Emphasis added.) Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250.

The supreme court defined an “open” plea, however, as a plea of “guilty without receiving any promises from the State in return.” Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. This definition unfortunately failed to acknowledge that the trial court also exercises full discretion in determining the sentence to be imposed when a defendant pleads guilty solely in exchange for the State’s promise to dismiss additional charges. The question remained unanswered as to whether a defendant who pleads guilty solely in exchange for the State’s promise to dismiss additional charges, who does not want to withdraw his guilty plea but only wants to challenge his sentence, still needs to file a motion to vacate his guilty plea (as opposed to filing only a motion to reconsider sentence) to preserve the sentencing issue for appeal.

2. Case Law Since Evans

Since Evans, this court has moved toward the proposition that Evans has created a bright-line rule that distinguishes between open pleas and all variations of negotiated pleas. For example, in People v. Catron, 285 Ill. App. 3d 36, 37, 674 N.E.2d 141, 142 (1996), defendant pleaded guilty to six counts of residential burglary in return for the State’s agreement to recommend between 4 and 15 years’ imprisonment and to file no additional charges. Using the contract principles relied upon in Evans, this court held that when a defendant agrees to a potential range of sentences in either a partially or fully negotiated plea agreement, he implicitly concedes any sentence imposed within the range cannot be excessive. Catron, 285 Ill. App. 3d at 37, 674 N.E.2d at 142; but see People v. Sanders, 286 Ill. App. 3d 1042, 1044, 678 N.E.2d 86, 88 (1997) (Holdridge, J., specially concurring) (“I believe Catron impermissibly expands the holding in the recent Illinois Supreme Court case People v. Evans”).

In People v. Economy, 291 Ill. App. 3d 212, 215, 683 N.E.2d 919, 922 (1997), defendant pleaded guilty in exchange for the State’s promise to drop some charges and not seek extended-term sentencing. Once again relying on the contract principles espoused in Evans, this court reaffirmed its holding in Catron and asserted that the plain language of Evans treats all negotiated pleas the same. Economy, 291 Ill. App. 3d at 218, 683 N.E.2d at 924. Notably, this court also went to great lengths to distinguish its approach and policy rationales from those of the Second District Appellate Court, asserting that the “primary concern of the Evans court was not the logical basis for reviewing the trial court, but a concern for preserving the bargain reached between the defendant and the State.” Economy, 291 Ill. App. 3d at 217, 683 N.E.2d at 923. This court ultimately concluded, however, that the bargain is the same whether a defendant pleads guilty in exchange for a specific term or pleads to a lesser charge: to reduce the possible punishment. Economy, 291 Ill. App. 3d at 219, 683 N.E.2d at 924; see also People v. Payne, 294 Ill. App. 3d 254, 258, 689 N.E.2d 631, 633 (1998) (holding that when a defendant agrees to a potential range of sentences, defendant implicitly concedes that a sentence imposed within the range cannot be excessive and that defendant is entitled to complain only if the agreement has been broken).

Finally, in People v. Gill, 293 Ill. App. 3d 326, 327, 687 N.E.2d 1186, 1186 (1997), a defendant pleaded guilty to one count of first degree murder and one count of aggravated battery, in exchange for the State’s dismissal of nine remaining charges of murder. This court held, without employing the contract analysis used in Evans, that “the rule announced in Evans applies to cases in which the guilty plea is negotiated, even though it is not entered in exchange for a recommendation by the State for a specific prison term, because by pleading guilty defendant concedes that a sentence imposed within the statutorily prescribed sentencing range is not excessive.” Gill, 293 Ill. App. 3d at 328, 687 N.E.2d at 1187. In short, Gill summarily concluded that Evans, Economy, and Catron applied to the facts at hand. Gill, 293 Ill. App. 3d at 328, 687 N.E.2d at 1187.

The supreme court itself revisited the Evans rule in People v. Clark, 183 Ill. 2d 261, 262, 700 N.E.2d 1039, 1040 (1998). In Clark, a defendant pleaded guilty in exchange for the State’s agreement to recommend a particular sentence, but the parties disagreed whether that sentence should be served consecutively to or concurrently with sentences imposed by another state. The parties agreed to have the trial court resolve the issue, and the trial court ordered the sentence imposed to be served consecutively. However, because defendant filed a motion to reconsider his sentence and did not file a motion to withdraw his guilty plea, the supreme court held that the plea agreement between the parties constituted “a negotiated plea agreement, as contemplated in Evans” (Clark, 183 Ill. 2d at 262, 700 N.E.2d at 1040), and dismissed the defendant’s appeal. Clark, 183 Ill. 2d at 262-65, 700 N.E.2d at 1040-42.

3. The Linder Decision

In People v. Linder, 186 Ill. 2d 67, 68-71, 708 N.E.2d 1169, 1170-71 (1999), the supreme court once again addressed an appellate court inconsistency regarding whether the Evans rule applied when a defendant pleads guilty in return for the State’s promise to recommend a sentencing cap, instead of a particular term of years. Citing this court’s decision in Catron favorably, the supreme court held that when a defendant pleads guilty in exchange for a cap on the length of sentence, the defendant cannot file a motion to reconsider sentence without first moving to withdraw his guilty plea. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73. The supreme court reasoned:

“Where the sentence imposed is within the agreed-upon cap, as the sentences here were, allowing the defendant to seek reconsideration of his sentence without also moving to withdraw his guilty plea unfairly binds the State to the terms of the plea agreement while giving the defendant the opportunity to avoid or modify those terms. That is precisely the situation the Evans rule was designed to prevent.” Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73.

However, as the specially concurring opinion of Chief Justice Freeman indicates, the supreme court’s decision in Linder did not conclusively address all of the circumstances in which a defendant and the State can negotiate for the defendant to enter a guilty plea. Linder, 186 Ill. 2d at 75-80, 708 N.E.2d at 1173-76 (Freeman, C.J., specially concurring). The Linder majority addressed a plea scenario that Chief Justice Freeman defined as “(c) [t]he ‘negotiated as to charge and/or sentence’ plea,” whereas this case presents another plea scenario, referred to by the Chief Justice as “(b) [t]he ‘negotiated as to charge’ plea.” Linder, 186 Ill. 2d at 77, 708 N.E.2d at 1174 (Freeman, C.J., specially concurring). Chief Justice Freeman noted that the majority missed the opportunity to definitively determine whether “negotiated as to charge” pleas fell under the Evans rule. Chief Justice Freeman further points out that, although the majority’s contract analysis focuses primarily on the defendant’s view of the bargain, it is the existence of a sentencing concession on behalf of the State that actually triggers the application of the holding in Evans. Linder, 186 Ill. 2d at 79-80, 708 N.E.2d at 1175 (Freeman, C.J., specially concurring). The Chief Justice concludes, therefore, that when a defendant pleads guilty solely in exchange for the State’s promise to dismiss additional charges, “defendant’s motion to reconsider sentence would not run afoul of his or her agreement [because] the parties never made the sentence a part of their bargain — and all contract principles are honored. None of the concerns of Evans arise in such cases, and its holding necessarily is inapplicable to them.” Linder, 186 Ill. 2d at 80, 708 N.E.2d at 1175 (Freeman, C.J., specially concurring).

We agree with Chief Justice Freeman’s analysis with respect to this undecided area of law. The negotiated plea rule in Evans focused on returning the parties to their status quo. Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. The Evans court found that it “flies in the face of contract law principles” (Evans, 174 Ill. 2d at 327, 673 N.E.2d at 248) to allow defendants to unilaterally modify their agreements, while holding the State to its end of the bargain. Evans, 174 Ill. 2d at 327, 673 N.E.2d at 247-48. However, when a defendant pleads guilty solely in return for the State’s promise to dismiss additional charges, the State and defendant receive exactly what they bargained for — a guilty plea in exchange for dismissing charges. There simply is no agreement as to sentence. The court alone decides the sentence. Therefore, a defendant should be able to file a motion for reconsideration of his sentence without also having to file a motion to withdraw his guilty plea.

In addition, we must acknowledge the fact that the State cannot always prove all of the charges that it files. Dismissing weaker charges is part of the traditional negotiation process used to secure a guilty plea, without incurring the additional work or expense of proving charges in a trial. It is inequitable to assume, therefore, that the State does not receive the benefit of its bargain when, in exchange for a guilty plea, the State dismisses a charge that was weak or possibly unprovable. To hold otherwise would encourage the State to overcharge because it would derive a benefit from doing so, thereby reviving the gamesmanship sought to be eliminated by Evans. See Evans, 174 Ill. 2d at 327-28, 673 N.E.2d at 248.

Although we acknowledge that the State has conceded the opportunity to prove that a defendant is guilty of the dismissed charge, albeit voluntarily, the true value of that opportunity is dependent upon (1) whether the defendant is actually guilty of the dismissed charge and/or (2) whether the State could successfully prove that the defendant was guilty of the dismissed charge. Therefore, one must assume a defendant’s guilt to argue that the State has actually conceded something of value.

In conclusion, we note that both parties in this appeal assumed that defendant was required to withdraw her guilty plea to challenge only her sentence on appeal. As our colleague’s dissent explains, a sound basis exists in law for this presumption. However, a number of appellate decisions on this issue since Linder demonstrate the apparent inequities in such a position and suggest that further guidance from the supreme court is necessary. See People v. Knowles, 304 Ill. App. 3d 472, 475, 710 N.E.2d 1238, 1240 (1999) (holding that, although defendant was required to withdraw his guilty plea because he pleaded guilty in return for the State’s promise to reduce the original charge, fundamental fairness required that the case be remanded so that defendant could be more adequately admonished regarding post-plea relief), appeal denied, 189 Ill. 2d 670 (2000); People v. Wyatt, 305 Ill. App. 3d 291, 293-94, 712 N.E.2d 343, 345-46 (1999) (holding that defendant who pleaded guilty to burglary and escape charges in return for State’s promise to dismiss a theft charge and to forego prosecution of further charges was not required to withdraw his guilty plea because the plea agreement included no agreement as to the sentence), appeal denied, 189 Ill. 2d 680 (2000); People v. Didier, 306 Ill. App. 3d 803, 805-09, 715 N.E.2d 321, 323-25 (1999) (holding inapplicable the rule that defendant was required to withdraw his guilty plea because, he pleaded guilty in return for the State’s promise to recommend a sentencing cap and dismiss additional charges, where defendant argued trial court imposed sentences that violated statutory terms, but also remanding because fundamental fairness required that defendant be more adequately admonished regarding postplea relief), appeal denied, 189 Ill. 2d 575 (1999); People v. Mast, 305 Ill. App. 3d 727, 732-33, 713 N.E.2d 242, 245-46 (1999) (holding that a defendant who pleads guilty to one count of reckless homicide in exchange for the State’s promise to dismiss the remaining indictments can challenge his sentence on appeal without also having to file a motion to withdraw his guilty plea), appeal denied, 189 Ill. 2d 671 (2000); People v. Doguet, 307 Ill. App. 3d 1, 6-7, 716 N.E.2d 818, 822 (1999) (holding that defendant’s failure to move to withdraw plea, in connection with which State had agreed not to seek an extended-term sentence, resulted in waiver of right to challenge sentence of 20 years or less as excessive, but remanded to allow defendant to be properly admonished regarding withdrawal of guilty plea), appeal denied, 191 Ill. 2d 541 (2000).

•5 The Supreme Court of Illinois has stated that “ ‘plea bargaining, when properly administered, is to be encouraged.’ ” Evans, 174 Ill. 2d at 325, 673 N.E.2d at 247, quoting People v. Boyt, 109 Ill. 2d 403, 416, 488 N.E.2d 264, 271 (1985). Therefore, we should avoid a bright-line rule that places meaningless procedural obstacles in the path of an appeal. Accordingly, we hold that (1) the trial court’s post-guilty-plea admonitions were sufficient because defendant was not required to withdraw her guilty plea to contest only her sentence on appeal, and (2) defense counsel was not ineffective because he filed the proper post-guilty-plea motion. To the extent that Gill contradicts this opinion, it is expressly overruled. We reaffirm our decisions in Catron, Economy, and Payne, however, because those cases specifically involved sentencing concessions on the part of the State, i.e., all were “negotiated as to charge and/or sentence” pleas.

B. The Trial Court Did Not Abuse Its Discretion

A trial court’s sentencing decisions are entitled to great deference and weight and will not be overturned on appeal absent an abuse of discretion. People v. Streit, 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351, 1353 (1991). Defendant asserts that the trial court abused its discretion by giving too much weight to aggravating factors and too little weight to mitigating factors, and by failing to sentence defendant with the constitutional objective of restoring the offender to useful citizenship. We disagree.

Sentencing involves dual considerations, and a defendant’s rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People v. Coleman, 166 Ill. 2d 247, 261, 652 N.E.2d 322, 329 (1995). In addition, when mitigating factors are presented to the court, we presume that the trial court considered them, absent some contrary evidence. Payne, 294 Ill. App. 3d at 260, 689 N.E.2d at 635. We presume, therefore, that the trial court adequately weighed defendant’s history of mental illness and family support.

A reviewing court’s function is not to reweigh the factors involved in sentencing. Coleman, 166 Ill. 2d at 262, 652 N.E.2d at 329. Aggravated DUI for a third or subsequent offense is a Class 4 felony and punishable by a term of imprisonment from one to three years. Defendant’s sentence was within that range. Accordingly, we hold that the trial court did not abuse its discretion by sentencing defendant to 2V2 years in prison.

III. CONCLUSION

For the reasons stated, we affirm the trial court.

Affirmed.

COOK, J., concurs.