Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Kane County,
the Hon. Richard Weiler, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1986.
Defendant, Kathleen Carol Boyt, was indicted by a Kane County grand jury for two counts of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 18-2.) Subsequently, in September 1983, defendant filed a motion to enforce a plea agreement allegedly entered into between herself and the State. Under the claimed agreement defendant was to testify against her co-defendant, Johnny Banks. In exchange for her testimony, defendant was to receive a reduction of the charges, six months in the county jail, treatment in a residential drug program, and probation. Before the agreement could be consummated, Banks pleaded guilty to two counts of robbery and was sentenced to seven years in prison. Thereafter the State was unwilling to abide by the agreement, contending that no agreement ever existed and, alternatively, that defendant was not entitled to specific enforcement. Defendant stated in the circuit court and on appeal that she is willing to enter a guilty plea in accordance with the plea agreement.
The circuit court determined that a valid agreement existed and ordered specific enforcement of the plea agreement. The State refused to comply with the circuit court's order, and as a result, on November 7, 1983, the circuit court dismissed the indictments against defendant. The appellate court concluded that the circuit court's factual finding as to the existence of the plea agreement was not against the manifest weight of the evidence. However, it held that dismissal of the indictments was "too expansive and not constitutionally mandated." (129 Ill. App.3d 1, 20.) Accordingly, it reversed the circuit court's order and remanded for further proceedings. Thereafter, we granted defendant leave to appeal (87 Ill.2d R. 315).
Three issues are raised on appeal: (1) Was the circuit court's order of dismissal appealable by the State pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1))? (2) Was the circuit court's finding that a valid plea agreement existed against the manifest weight of the evidence? and (3) Assuming a valid agreement existed, was defendant entitled, under the circumstances of this case, to specific enforcement of the plea agreement?
The evidence as to the existence of the agreement and its terms consists primarily of the narrative statements given by defendant's trial counsel and an assistant State's Attorney at the October 4, 1983, hearing on defendant's motion to enforce the plea agreement. An assistant public defender, Judith M. Brawka, related that sometime in June 1983, she was assigned by her superiors to represent defendant. She immediately began an investigation of the case and defendant's background. This investigation included an evaluation of defendant by Treatment Alternative to Street Crimes, Inc., which operates a drug-abuse rehabilitation program. According to Brawka, the evaluation revealed that defendant was a drug addict but ineligible for the program because she was charged with a violent crime, i.e., two counts of armed robbery. In addition to the drug evaluation, Brawka referred defendant to the Kane County Diagnostic Center for a diagnostic evaluation.
After the case was continued for discovery purposes and completion of the diagnostic evaluation, Brawka approached Assistant State's Attorney John Barsanti on August 3, 1983, and initiated plea negotiations on defendant's behalf. At that meeting, Brawka gave Barsanti a copy of defendant's diagnostic evaluation and explained that defendant was willing to testify against Banks. She proposed that defendant plead guilty to reduced charges, receive "some type of county jail time," and be placed in a drug-rehabilitation program in exchange for the testimony against Banks. She also told Barsanti that the Elgin police department, which had arrested defendant, did not oppose such a disposition. Barsanti, according to Brawka, responded that the proposal "sounded good to him." However, Barsanti told her that he was unwilling to agree to the proposed terms while the Banks' case was still pending. He explained to Brawka that defendant would have no incentive to testify against Banks if he agreed to the proposed disposition at that time. Brawka agreed that Barsanti's concern was reasonable. She told him that she was "going on vacation anyway," and stated that maybe he could "have something more definite or set a trial date and we will see what happens when I get back on August 22nd."
Upon returning to work on August 22, 1983, Brawka discovered that during her absence Banks had pleaded guilty to two counts of robbery and had been sentenced to seven years in prison. She contacted Barsanti and requested that defendant be allowed to plead guilty in accordance with the agreement made August 3. According to Brawka, Barsanti asked her, "Did we have a plea offer or a plea bargain?" Brawka responded that she thought that they had reached an agreement with regard to the disposition of defendant's case. She also told Barsanti that she had informed defendant by letter that an agreement had been made. Barsanti then asked Brawka to recite the terms of the agreement. Brawka stated that, according to her understanding of the plea agreement, defendant was to receive six months in the county jail, treatment at a residential drug program and probation on a "charge of robbery or two charges of robbery * * *." Barsanti stated that he would have to check with his superiors. The next day, on August 23, Barsanti told Brawka that his office was unwilling to agree to the terms outlined by Brawka, but would agree to a three-year prison sentence if defendant pleaded guilty to a charge of robbery. Brawka stated that she requested that Barsanti's superiors reconsider their decision, but they refused to agree to any other terms.
Brawka also related that sometime between August 3 and August 22, 1983, Barsanti engaged in plea negotiations with Banks' defense attorney. According to Brawka, Barsanti informed Banks' attorney "that if the case were to go to trial, that the State would use Kathleen Voight's [sic] testimony."
Barsanti stated that he had engaged in plea negotiations with Brawka concerning the disposition of defendant's case but disagreed with Brawka's conclusion that an agreement had been reached. He recalled that after Brawka presented him with a copy of defendant's diagnostic evaluation they engaged in an "informal discussion concerning the agreement." After listening to Brawka's proposal, he stated that "we probably could do something like that." He also stated that he never told Banks' attorney that he had made an agreement with defendant. He said he told Banks' attorney only that he "had her [defendant's] testimony, if needed."
Defendant testified at the October 4 hearing that she discussed the terms of the plea agreement with Brawka on more than one occasion. Defendant's understanding of the agreement was that she would be allowed to plead guilty to reduced charges, serve some "County time," and be placed in a drug-rehabilitation program, in exchange for her testimony against Banks. Defendant stated that she assented to the terms of the agreement as they were described to her by Brawka.
Initially we consider whether the trial court's order of dismissal was appealable under this court's Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)).
The record discloses that the circuit court granted defendant's motion to enforce the negotiated plea agreement on November 3, 1983. Immediately thereafter, the following colloquy took place between the court, Assistant State's Attorney Barsanti, and Assistant Public Defender Brawka:
"MR. BARSANTI: 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 of Appeal. * * *
THE COURT: What about contempt? Don't I have the contempt powers? I can put someone in jail, either you or whoever is ...