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08/13/97 PEOPLE STATE ILLINOIS v. LEROY RICE

August 13, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LEROY RICE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. Nos. 95--CF--2014, 95--CF--2017, 95--CF--2020. Honorable Raymond J. McKoski, Judge, Presiding. Original Opinion of September 16, 1996,

Released for Publication September 12, 1997.

The Honorable Justice Rathje delivered the supplemental opinion on remand. Geiger, P.j., concurs. Justice Hutchinson, dissenting.

The opinion of the court was delivered by: Rathje

SUPPLEMENTAL OPINION ON REMAND

The Honorable Justice RATHJE delivered the supplemental opinion on remand:

On September 16, 1996, this court filed its opinion in the above-entitled case. Defendant's petition for rehearing was denied by this court on October 10, 1996. In said opinion, we initially noted that defendant agreed to a plea negotiation and that, in exchange for defendant's plea, the State agreed to a cap of six-year terms on the burglary counts to which he pleaded guilty, with the sentences to run concurrently. Defendant made three arguments why this cause should be remanded for a new hearing on his motion to reconsider his sentence. Defendant initially asserted that defense counsel's failure to review the sentencing transcript prior to the hearing on the motion to reconsider his sentence was a ground for remand. We rejected defendant's argument, citing this court's opinion in People v. Heinz, 259 Ill. App. 3d 709, 198 Ill. Dec. 279, 632 N.E.2d 338 (1994). Defendant next argued that the trial court's failure to provide him with a transcript of the sentencing hearing denied him the ability to communicate effectively with counsel regarding the nature of his claims and their factual bases. We disagreed with this argument, finding that the pertinent supreme court rules did not provide that a transcript of the sentencing hearing is required for a defendant's use at a hearing on a motion to reconsider the sentence.

Finally, defendant contended that, under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)), defense counsel must certify that he or she has made amendments to the postsentencing motion that are necessary to present defendant's claims adequately. Defendant argued that defense counsel's certificate omitted any reference to the "necessary amendment" portion of the rule. We noted that the evidence indicated that defense counsel thought it unnecessary to make any amendments to the motion to reconsider his sentence. We found that, in such a circumstance, defense counsel's failure to make any amendments to the motion to reconsider the sentence was of no consequence.

Accordingly, we affirmed the trial court's judgment.

Defendant petitioned our supreme court for leave to appeal. The supreme court denied defendant leave to appeal. However, it entered a supervisory order which stated:

"In the exercise of this Court's supervisory authority, this cause is remanded to the Appellate Court, Second District, for further consideration in light of People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332 (1996)."

In People v. Evans, 174 Ill. 2d 320, 220 Ill. Dec. 332, 673 N.E.2d 244 (1996), the supreme court addressed the issue of how Supreme Court Rule 604(d) applies to negotiated pleas. Both defendants in Evans asserted that the plain language of Rule 604(d) authorized them to file a motion for sentence reconsideration, despite their negotiated pleas. The State argued that the motion to reconsider sentence provisions of Rule 604(d) applied only to open guilty pleas, not to negotiated guilty pleas.

The Evans court reviewed the decision in People v. Wilk, 124 Ill. 2d 93, 124 Ill. Dec. 398, 529 N.E.2d 218 (1988), which had broken with previous cases by allowing a defendant to challenge only his sentence by filing a motion to reconsider. The Evans court subsequently wrote:

"We agree with the State's position. Our review of Wilk and [ People v. Wallace, 143 Ill. 2d 59, 155 Ill. Dec. 821, 570 N.E.2d 334 (1991)] reveals that the pleas involved in those cases were open guilty pleas. In other words, the defendants pled guilty without receiving any promises from the State in return. Following a defendant's open guilty plea, the trial court exercises its discretion and determines the sentence to be imposed. Both good public policy and common sense dictate that defendants who enter open guilty pleas be allowed to challenge only their sentences without being required to withdraw their guilty pleas. [Citations.] Wilk thus overruled Stacey [( People v. Stacey, 68 Ill. 2d 261, 12 Ill. Dec. 240, 369 N.E.2d 1254 (1977))] where open guilty pleas are concerned.

The reasoning utilized by this court in Wilk, however, does not apply to negotiated guilty plea agreements. We agree with the State that, under these circumstances, the guilty plea and the sentence 'go hand in hand' as material elements of the plea bargain. To permit a defendant to challenge his sentence without moving to withdraw the guilty plea in these instances would vitiate the negotiated plea agreement he entered into with the State. We therefore hold 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 ...


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