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05/05/89 the People of the State of v. Robert Mcgrath

May 5, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT MCGRATH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

538 N.E.2d 855, 182 Ill. App. 3d 389, 131 Ill. Dec. 480 1989.IL.682

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Following a bench trial defendant, Robert McGrath, was found guilty of two offenses of delivery of less than 10 grams of cocaine and one offense of possession with intent to deliver more than 30 grams of a substance containing cocaine. Defendant was sentenced to three years' imprisonment in the Department of Corrections on each of the delivery offenses, six years' imprisonment for the possession offense, all to run concurrently, and he was also fined $12,000 and ordered to pay restitution in the amount of $800 to the Northeast Metropolitan Enforcement Group. On appeal, defendant contends that the trial court erred (1) in permitting the State to reinstate charges which had been dismissed pursuant to plea negotiations after defendant withdrew his earlier plea of guilty to lesser charges, when defendant had not been advised under Supreme Court Rule 605(b)(4) (107 Ill. 2d R. 605 (b)(4)) that such reinstatement was possible if he withdrew his guilty plea; (2) in ordering defendant to pay restitution to the Northeast Metropolitan Enforcement Group ; and (3) in finding defendant guilty beyond a reasonable doubt of possession of over 30 grams of cocaine with intent to deliver.

Defendant initially had entered into a plea agreement with the State under which he agreed to cooperate in the prosecution of the cases against his codefendants, and the State agreed to amend the Class X possession charge to a Class 1 offense and to nol-pros a Class X conspiracy charge. The agreement further provided that, upon his plea of guilty to the reduced offenses, the trial court would determine the sentences to be imposed. On September 18, 1986, defendant pleaded guilty to the two counts charging delivery of less than 10 grams of cocaine, Class 2 offenses, and to the amended count charging possession of cocaine with intent to deliver as a Class 1 offense, and the Class X conspiracy charge was dismissed. The trial court sentenced defendant to four years' imprisonment for the Class 1 possession offense and three years' imprisonment for each of the Class 2 delivery offenses, the terms to be served concurrently. The court also assessed a fine of $1,000 against defendant.

Defendant's motion to reconsider the sentences was denied by the trial court, and he then filed a timely motion to withdraw his pleas of guilty pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). After a hearing, the trial court found that in admonishing defendant prior to accepting his pleas of guilty, as is required by Supreme Court Rule 402 (107 Ill. 2d R. 402), the court had neglected to advise him that by pleading guilty he waived the right to trial by jury (see 107 Ill. 2d R. 402(a)(4)), and defendant was allowed to withdraw the guilty pleas. On motion by the State's Attorney, all charges which had been dismissed or amended pursuant to the plea agreement were then reinstated. Defendant subsequently moved to dismiss the reinstated charges on the ground he had not been admonished prior to withdrawing the guilty pleas that on doing so the State could reinstate and set for trial charges which had been reduced or dismissed under a plea agreement. (107 Ill. 2d R. 605(b)(4).) Defendant's motion was denied.

After a bench trial heard on stipulated evidence, the trial court found defendant guilty of the two Class 2 charges of delivery of less than 10 grams of cocaine and guilty of the reinstated Class X charge of possession with intent to deliver more than 30 grams of cocaine. Defendant was found not guilty of the reinstated conspiracy charge. The fines and sentences noted earlier were imposed, and defendant appeals.

We consider first whether the failure to advise defendant that, upon withdrawing his pleas of guilty, the charges which had been dismissed under his plea agreement with the State may be reinstated requires reversal of the present convictions and sentences.

Defendant contends that absent such advice, which is required under Supreme Court Rule 605(b)(4), he could not make a knowing and intelligent evaluation of the risks involved in withdrawing his guilty pleas. Defendant argues that the State should not have been allowed to reinstate the original charges, which were reduced or dismissed under the plea agreement, because the court did not advise defendant that could occur. The remedy urged by defendant is the reversal of his conviction and sentence for the Class X felony of possession with intent to deliver more than 30 grams of cocaine, and remand for resentencing for the convictions of the Class 2 felonies of delivery of less than 10 grams of cocaine. Alternatively, defendant suggests that the sentences be vacated and the cause remanded for resentencing pursuant to the plea agreement.

The State contends, without reference to relevant case authority, that although defendant was not advised that if he withdrew his negotiated guilty pleas the former charges could be reinstated, the law remains that such dismissed charges may be reinstated and set for trial. The State urges that defendant's convictions and sentences be affirmed.

Supreme Court Rule 605(b) states:

"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 ...


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