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01/28/97 PEOPLE STATE ILLINOIS v. TRACY LEE

January 28, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TRACY LEE CUNNINGHAM, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 94CF202. Honorable Jerry L. Patton, Judge Presiding.

As Corrected January 30, 1997. As Corrected February 24, 1997.

Honorable Robert W. Cook, J., Honorable Rita B. Garman, J. - Concur, Honorable Frederick S. Green, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

In March 1994, defendant Tracy Lee Cunningham was charged with the offense of unlawful possession of controlled substance with a prior unlawful possession of controlled substance with intent to deliver conviction, in violation of section 402(c) of the Illinois Controlled Substances Act (720 ILCS 570/402(c) (West 1992)). Following the denial of his motion to suppress, defendant entered a negotiated plea. Under the terms of the plea, defendant was sentenced to 2 1/2 years in the Department of Corrections, to run consecutive to a prior sentence. Defendant filed a timely motion to withdraw his plea of guilty, alleging that the court had erroneously denied his motion to suppress and that defendant wished to appeal that denial.

At the hearing on defendant's motion to withdraw the guilty plea, the court asked defendant's attorney if he had any arguments or comments. Counsel responded:

"Judge, we don't wish to offer any comments or argument. The basic purpose of this is, and I told [the assistant State's Attorney] this before the plea, Your Honor, is strictly to test the question of the suppression of evidence; whether it was properly suppressed or not, Your Honor, and that is basically the reason for the appeal."

The assistant State's Attorney argued that the motion should be denied, noting that he understood "it's being done for the purpose of preserving the issue on appeal[,] the Motion to Suppress."

A defendant who wishes to appeal the denial of a motion to suppress makes a mistake in pleading guilty. A voluntary guilty plea waives all nonjurisdictional errors or defects. A stipulated bench trial, on the other hand, "allows the parties to proceed with the benefit and convenience of a guilty plea procedure, but avoids the waiver rule." People v. Scott, 277 Ill. App. 3d 579, 582, 660 N.E.2d 555, 558, 214 Ill. Dec. 110 (1996). The federal rules provide for a conditional guilty plea (see Fed. R. Crim. P. 11(a)(2)), and in some jurisdictions a defendant may enter a guilty plea but expressly reserve the right to appeal a specified pretrial ruling. W. LaFave & J. Israel, Criminal Procedure ยง 21.6(b), at 952 (2d ed. 1992). Allowing a defendant to simply reserve the right to appeal while pleading guilty is something like allowing him to have his cake and eat it too. Defendant gets the benefit of a negotiated plea, but the case is not over. In Illinois, the only way to preserve an issue on appeal without going through a trial is a stipulated bench trial. The court is not bound by an agreement between the prosecution and defense if there is a stipulated bench trial. 134 Ill. 2d R. 402(d)(3); compare People v. Sutton, 229 Ill. App. 3d 960, 964-65, 594 N.E.2d 752, 754-55, 171 Ill. Dec. 608 (1992) (State agreed to recommend 40 years' imprisonment in exchange for a stipulated bench trial).

This court has held that a defendant may waive his right to appeal as a part of a plea negotiation, although he may still be able to challenge the guilty plea by a motion to withdraw it. People v. Fearing, 110 Ill. App. 3d 643, 644-45, 442 N.E.2d 939, 940, 66 Ill. Dec. 378 (1982). The question may be asked why it is desirable for a defendant to waive his right to appeal, subject to his right to file a motion to withdraw plea, when a guilty plea waives all errors or defects anyway. The answer is that the defendant in Fearing did not plead guilty, in a technical sense, to the charges which he attempted to appeal: he pleaded guilty to a charge in a companion case after he had been convicted of two offenses in the first case, the agreed sentences on the three offenses were specified, and five remaining charges were dismissed. As the, Fearing court stated, by insulating the convictions from review, the agreement operated much like a guilty plea to those charges and was in fact part of one. It would be redundant for a defendant to waive his right to appeal charges to which he has pleaded guilty. See People v. Houle, 257 Ill. App. 3d 721, 629 N.E.2d 837, 196 Ill. Dec. 292 (1994); People v. Nichols, 143 Ill. App. 3d 673, 493 N.E.2d 677, 97 Ill. Dec. 870 (1986).

Stipulated bench trials can be tricky. If a defendant stipulates not just to the sufficiency or existence of the evidence, but to the sufficiency of the evidence to convict, then the stipulation is tantamount to a guilty plea, Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) admonishments are required, and apparently there may be no consideration of the reserved issue on appeal. People v. Horton, 143 Ill. 2d 11, 22, 570 N.E.2d 320, 325, 155 Ill. Dec. 807 (1991). Even where the proper language is used, and the issue is reserved, a stipulated bench trial may be very much like a guilty plea. The trial court is not bound by any negotiated sentence (134 Ill. 2d R. 402(d)(3)), but defendant may give up his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. Many trial courts, out of a sense of caution, choose to give Rule 402(a) admonishments to defendants who are participants in a stipulated bench trial. The fact that those admonishments are given does not transform the stipulated bench trial into a guilty plea. People v. Manuel, 242 Ill. App. 3d 20, 24, 609 N.E.2d 995, 997, 182 Ill. Dec. 461 (1993).

It could be argued that Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) allows a suppression ruling to be appealed, after the denial of a motion to withdraw the plea of guilty and vacate the judgment. Rule 604(d) provides that "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." 145 Ill. 2d R. 604(d). Rule 604(d), however, does not contemplate the appeal of issues unrelated to the judgment and sentence. Whether a motion to suppress was denied has nothing to do with whether the judgment and sentence are proper; the judgment and sentence depend on the guilty plea, not upon any evidence. McMann v. Richardson, 397 U.S. 759, 773, 25 L. Ed. 2d 763, 775, 90 S. Ct. 1441, 1450 (1970) ("the defendant who pleads guilty is in a different posture").

It is true that misrepresentations by counsel, or a defendant's misapprehension of the facts or of the law, can be grounds for the withdrawal of a guilty plea. However, whether to permit a guilty plea to be withdrawn is within the sound discretion of the court. People v. Pugh, 157 Ill. 2d 1, 13, 623 N.E.2d 255, 261, 191 Ill. Dec. 10 (1993). Whether vacation of the plea is required depends on whether real justice has been denied or whether defendant has been prejudiced. People v. Davis, 145 Ill. 2d 240, 251, 582 N.E.2d 714, 719, 164 Ill. Dec. 151 (1991). Compare Davis, 145 Ill. 2d at 244, 582 N.E.2d at 716, quoting People v. Morreale, 412 Ill. 528, 531-32, 107 N.E.2d 721, 723 (1952) ("'or where the ends of justice will be better served'"), with People v. Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903, 118 Ill. Dec. 423 (1988) ("and the ends of justice would better be served"). A defendant may enter a guilty plea because of some erroneous advice by counsel, but that fact alone does not destroy the voluntary nature of the plea; it must be shown that defendant was denied the effective assistance of counsel under the Strickland test. Pugh, 157 Ill. 2d at 14, 623 N.E.2d at 261, citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). This is because a defendant may choose to enter into a negotiated plea of guilty even if he has a meritorious motion to suppress. A defendant should not be allowed to withdraw his plea when the real basis for his withdrawal is that he is dissatisfied with the length of his sentence. People v. Fern, 240 Ill. App. 3d 1031, 1042, 607 N.E.2d 951, 961, 180 Ill. Dec. 651 (1993).

In People v. Spurlock, 19 Ill. App. 3d 474, 475, 311 N.E.2d 739, 740 (1974), defense counsel advised the court the plea agreement included the following: "'the State would also agree to permit the reservation for purposes of appeal, as to each defendant, [of] all of the three motions to dismiss filed May 30, 1972, by the defense.'" The appellate court held that the rulings on the motions could not be considered, that a plea of guilty waived all errors which are not jurisdictional in nature. Spurlock, 19 Ill. App. 3d at 475, 311 N.E.2d at 740. The court, however, vacated the judgments and remanded with directions to allow each defendant to withdraw his plea of guilty and to plead anew, based on the rule that a plea of guilty induced by unfulfilled promises loses its voluntary nature and is considered void. Spurlock, 19 Ill. App. 3d at 475, 311 N.E.2d at 740; see also People v. Sims, 133 Ill. ...


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