Appeal from the Circuit Court of Kane County; the Hon. Richard
Weiler, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1984.
This is an interlocutory appeal by the State from the judgment of the circuit court of Kane County dismissing two armed robbery indictments against the defendant, Kathleen Carol Boyt. (Ill. Rev. Stat. 1983, ch. 38, par. 18-2.) We have taken with the case the defendant's motion to dismiss the appeal, the State's objections thereto, and the defendant's motion for leave to respond to the State's objections.
The judgment dismissing the indictments was entered on defendant's motion to enforce the terms of a plea agreement in which the defendant offered to testify against her co-defendant, Johnny Banks, in exchange for a reduction of the charges against her to permit county jail time, placement in a residential drug treatment program, and probation. Banks pleaded out, however, to two robbery convictions after the fact of defendant's offer to testify against him at trial was communicated to him, and after identification motions in connection with "a series of armed robberies" were denied, and identifications of Banks by eyewitnesses of the robberies were allowed. Banks received a seven-year sentence for his convictions.
Thereafter, the State would not agree to proceed according to the above-noted terms of the plea agreement with the defendant but, rather, offered her a three-year sentence instead. The State's position was that it actually had not agreed to the terms of the defendant's offer and, further, since Banks had pleaded out, there was no need for her testimony against him.
On November 3, 1983, the circuit court of Kane County found that a plea agreement had been reached, and ordered the State to specifically perform on the terms of the agreement. In pertinent part, the following colloquy occurred:
"MS. BRAWKA [Defense Counsel]: Judge, my client will stand ready to enter the plea pursuant to the terms of the negotiated disposition at any time the Court is available to do so.
MR. BARSANTI [Assistant State's Attorney]: Your Honor, I have talked this over with our appellate prosecutors. What we want to do, Judge, is we're going to refuse to enter into the agreement and I think the remedy as laid out in the other cases is for the Court to dismiss the charge and — because we're going to file a Notice to Appeal.
I think we have to file it within ten days from today.
THE COURT: What about contempt? Don't I have the contempt powers? I can put someone in jail, either you or whoever [sic] is telling you not to abide by my ruling.
MS. BRAWKA: Respectfully, I don't think that's the appropriate remedy.
MS. BRAWKA: I talked to the State Appellate Defender's Office and they indicated under the current case law the Court does not have the power to reduce charges to accept reduced pleas. And if the State refuses to comply with the order, then under the inherent power of the Court to dismiss because of due process violations the Court is authorized to dismiss the charges and then the State can take an appeal from that order.
THE COURT: Are you saying Mr. Barsanti, that you're refusing to proceed?
THE COURT: Then in that case the charges against Kathleen Boyt in General Number 83 CF 480 and 83 CF 481 will be dismissed."
Immediately thereafter, however, the assistant State's Attorney asked the court to allow the State several days' time in which to decide whether it would comply with the agreement or not; the court vacated its dismissal order, and entered an order granting the defendant's motion to enforce the plea agreement. On November 7, the first assistant State's Attorney, Thomas Sullivan, appeared and, in pertinent part, the following colloquy occurred:
"MR. SULLIVAN: * * * The Court made a ruling that essentially that the plea agreement that the — that the Court essentially was ordering the enforcement of a plea agreement which the Court found to have — having taken place between the State of Illinois and the Defendant in this case.
The State, given its position, declined to enter into the plea agreement and pursuant to I believe Chapter 38, Section 114 of the Criminal Code, the Court has dismissed the indictment based upon its inherent authority as it perceives it under that Chapter and Section.
MS. BRAWKA: I think that what had happened the way we left it Friday is that Mr. Barsanti said the State was going to make the decision on whether or not they would go into specific performance.
THE COURT: I dismissed them on Thursday and they said they'd like more time to think about it, so I vacated essentially the order dismissing the two cases.
The State has declined to go through with the plea agreement and, therefore, I'm going to dismiss 83 CF 480 and 83 CF 481.
MS. BRAWKA: Judge, also to correct it, I think last week I presented to the Court the case of People Vs. Lawson, which was an Illinois Supreme Court case found at 67 Ill.2d 449 from 1977 which states that the Court has inherent powers under due process to dismiss cases.
And since part of the Court's ruling had been on a due process basis in terms of the specific performance order, I would ask the Court to make the ruling of dismissal under that since that isn't under a specific statutory section in the statute.
MR. SULLIVAN: So then it would be the Court's ruling based upon due process and the Court's inherent authority that the charges would be dismissed?
THE COURT: That's correct.
THE COURT: And the unfairness of the State's position."
The defendant construes the dismissals below as having been entered on the State's "election" to dismiss; consequently, defendant asserts the ruling is not adverse to the State and it is not entitled to appeal. Defendant cites in support People v. Meek (1981), 92 Ill. App.3d 1129 and People v. Maher (1979), 77 Ill. App.3d 488.
In its objections to the defendant's motion to dismiss, the State points out the assistant State's Attorney expressed his willingness to be jailed as a contemnor rather than follow the court's order that the charge be reduced, and that defense counsel herself suggested to the court that it was powerless to reduce the charge itself and accept a plea to such reduced charges, but noted that the court could dismiss the charges on due process grounds and that the State could then appeal. It is manifest, argues the State, that the dismissal was not one voluntarily sought by it, and urges this court to deny defendant's motion to dismiss.
Defendant responds she did not term the State's motion to dismiss the charges "voluntary," rather, that the State "elected" to dismiss the charges rather than accept the guilty pleas under the negotiated agreement. Defendant argues the genesis of the lower court's dismissal was from the State, and that the issue is to whom the dismissal may validly be imputed.
In its reply brief on appeal, the State points out another reason to deny the defendant's motion to dismiss the appeal is because her position on this issue is directly contrary to that taken by her in the circuit court, where she expressed her belief that a jail sentence for contempt was not the appropriate remedy. The State feels this factor distinguishes the instant appeal from that in People v. Meek (1981), 92 Ill. App.3d 1129, in that the dismissal here was not entered on its motion, nor was the dismissal here essentially a nolle prosequi as was the case in People v. Maher (1979), 77 Ill. App.3d 488. Additionally, the only "election" which was to be made by it at the November 7 hearing was whether or not it would comply with the terms of the agreement. It elected not to comply with the terms, and the court once again — as it had previously on November 3 — dismissed the charges against the defendant. The State asserts the instant appeal is the only means available to it to test the validity of the court's order enforcing the terms of the agreement.
• 1 We agree with the State that the instant appeal is proper under Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)). That rule provides in pertinent part:
"(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence."
This rule has been interpreted to allow the State to appeal from any judgment which has the substantive effect of a dismissal even if the ground for such dismissal is not contained in section 114-1. (People v. Lawson (1977), 67 Ill.2d 449; People v. Verstat (1983), 112 Ill. App.3d 90; People v. Oswald (1982), 106 Ill. App.3d 645.) Where there has been an unequivocally clear denial of due process, the trial court has the inherent authority to dismiss. (67 Ill.2d 449, 456.) Additionally, it is well established that a court has the inherent power to enforce its orders by way of contempt. (In re G.B. (1981), 88 Ill.2d 36, cert. denied (1982), 456 U.S. 963, 72 L. Ed 2d 487, 102 S.Ct. 2041.) Because this power is inherent, the power to punish for contempt does not depend on constitutional or legislative grant (In re G.B. (1981), 88 Ill.2d 36, 40), and the court is not strictly bound by the provisions of the Civil Practice Act (now denominated the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 1-101 et seq.)), or the Code of Criminal Procedure of 1963, and may exercise discretion in fashioning appropriate remedies to a party's contumacious behavior. 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App.3d 229, 234.
We agree with the State that this case is inapposite to both People v. Meek (1981), 92 Ill. App.3d 1129, and People v. Maher (1979), 77 Ill. App.3d 488. In Meek, the court determined the State could not appeal the dismissal of the indictment with prejudice because the dismissal was granted on the State's own motion made in order to avoid proceeding to trial after the court denied its motion to dismiss without prejudice. In Maher, in determining the timeliness of an appeal by the State, the court observed that the first dismissal order entered by the court could not have been appealed by the State, since it was not an order adverse to it as contemplated by Supreme Court Rule 604 (87 Ill.2d R. 604) because it was in effect only a formalization of the State's entry of a nolle prosequi to the charge, and not a dismissal on the merits.
Although the assistant State's Attorney here was the first to suggest dismissal, it is clear the suggestion was offered only as an alternative sanction to imposition of a fine or imprisonment for its noncompliance with the court's order of enforcement of the plea agreement and, in fact, defense counsel herself noted that imprisonment for refusing to comply with the terms of the plea agreement was not "the appropriate remedy," but that the court could dismiss on due process grounds and the State could then appeal. Clearly, then, the dismissal was meant to be a sanction against the State for its refusal to proceed with the terms of the previously negotiated plea agreement as ordered by the court. As such, it was "adverse" to the State and is appealable. Accordingly, the defendant's motion to dismiss the State's appeal is denied.
On the merits, this appeal presents the question whether the court's judgment that there was a plea agreement between the defendant and the State was against the manifest weight of the evidence, and whether the State's ...