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01/24/97 PEOPLE STATE ILLINOIS v. BRIAN WILSON

January 24, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRIAN WILSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. Nos. 94--CF--2304, 94--CF--2764, 95--CF--355. Honorable John R. Goshgarian, Judge, Presiding.

Rehearing Denied February 11, 1997. Released for Publication February 11, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

On October 20, 1994, defendant, Brian Wilson, was charged with aggravated battery (720 ILCS 5/12--4(b)(8) (West 1994)). On January 10, 1995, defendant was charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1994)). Defendant posted bond for both offenses. On February 22, 1995, while on pretrial release, defendant was charged with forgery (720 ILCS 5/17--3(a)(2) (West 1994)) and aggravated battery of a peace officer (720 ILCS 5/12--4(b)(6) (West 1994)).

On July 28, 1995, defendant entered a negotiated plea of guilty to all charges. In exchange for the guilty plea, the State agreed to nol-pros the forgery charge and recommended a sentence cap of nine years' imprisonment for the three remaining counts. After describing the sentencing possibilities to defendant, admonishing him of his rights, and ensuring that he properly waived those rights, the trial court accepted the plea agreement and continued the case for sentencing.

On September 15, 1995, defendant filed a motion to withdraw his guilty plea. However, at the sentencing hearing on October 2, 1995, defendant withdrew the motion to withdraw his guilty plea. The trial court then imposed concurrent nine-year terms of imprisonment on each of the three remaining counts. Defendant's motion to reduce his sentence was denied by the trial court, and defendant thereafter filed this timely appeal.

Defendant has two contentions on appeal: (1) the trial court erred in imposing a concurrent, rather than a consecutive, sentence on the charge of aggravated battery of a peace officer; and (2) the trial court erred in imposing a nine-year sentence on the charge of unlawful possession.

The State initially contends that this case is controlled by our supreme court's recent opinion in People v. Evans, 174 Ill. 2d 320, 220 Ill. Dec. 332, 673 N.E.2d 244 (1996). The State argues that we do not have jurisdiction to hear defendant's appeal under Evans. We disagree with the State.

In Evans, two defendants entered into negotiated plea agreements with the State before separate trial courts. Under the general terms of the agreements, each defendant was to plead guilty to one set of charges in exchange for the dismissal of other charges and recommended specific sentences of imprisonment. In both cases, after carefully complying with Supreme Court Rule 402 (134 Ill. 2d R. 402), the trial courts concurred in the negotiated plea agreements and sentenced the defendants to the recommended terms of imprisonment. Thereafter, each defendant filed motions to reduce their sentences. In both cases, the trial courts denied the motions because the sentences imposed were the products of negotiated, rather than open, plea agreements. Both appellate courts reversed and remanded, instructing the trial courts to exercise their discretion in considering the motions to reduce sentences under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). Evans, 174 Ill. 2d at 322.

The supreme court agreed with the trial courts and held that Rule 604(d) does not apply to negotiated plea agreements. Evans, 174 Ill. 2d at 332. The court stated that the defendants were attempting "to hold the State to its part of the bargain while unilaterally modifying the sentences to which they had earlier agreed. Such a practice flies in the face of contract law principles. [Citation.] It is also inconsistent with constitutional concerns of fundamental fairness." Evans, 174 Ill. 2d at 327. In other words, under the defendants' argument, an accused

"could negotiate with the State to obtain the best deal possible in modifying or dismissing the most serious charges and obtain a lighter sentence than he would have received had he gone to trial or entered an open guilty plea, and then attempt to get that sentence reduced even further by reneging on the agreement." Evans, 174 Ill. 2d at 327-28.

As a result of negotiated plea bargaining, "the guilty plea and the sentence 'go hand in hand' as material elements of the plea agreement." Evans, 174 Ill. 2d at 325. Therefore, the 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.

However, the court also noted that, in situations where the trial court exercises its discretion in sentencing defendants, "both good public policy and common sense dictate that defendants *** be allowed to challenge only their sentences without being required to withdraw their guilty pleas." Evans, 174 Ill. 2d at 332, citing People v. Wilk, 124 Ill. 2d 93, 110, 124 Ill. Dec. 398, 529 ...


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