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08/22/97 PEOPLE STATE ILLINOIS v. KATHLEEN BARNES

August 22, 1997

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KATHLEEN BARNES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit Rock Island County, Illinois. Nos. 95--CF--147, 95--CF--438. Honorable Donald O'Shea, Judge Presiding.

Released for Publication September 30, 1997.

Present - Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice, Honorable John F. Michela, Justice. Justice Homer delivered the opinion of the court. Michela and Slater, JJ., concur.

The opinion of the court was delivered by: Homer

The Honorable Justice HOMER delivered the opinion of the court:

The defendant, Kathleen Barnes, previously pled guilty to three counts of unlawful acquisition of a controlled substance (720 ILCS 570/406(b)(3)(West 1994)) and was sentenced to a period of probation. She subsequently admitted to violating the terms of her probation after being charged with three additional counts of unlawful acquisition of a controlled substance. Upon entering into a fully-negotiated plea agreement on all six counts, she was sentenced to an aggregate term of 8-years' imprisonment. The trial court summarily denied her pro se request for sentence modification and the defendant appeals. We reverse.

FACTS

The defendant was charged by information with three counts of unlawful acquisition of a controlled substance (720 ILCS 570/406(b)(3)(West 1994)), in circuit court case number 96--CF--147, to which she entered a plea of guilty and was sentenced to a term of probation. Thereafter, the State filed a petition to revoke her probation based upon the fact that the defendant had been charged with three additional counts of unlawful acquisition of a controlled substance in case number 96--CF--438.

The public defender was appointed to represent the defendant, and the two cases were consolidated for the purposes of a fully-negotiated guilty plea and sentencing hearing. The defendant pled guilty to the new charges and admitted that she had violated her probation. After admonishing the defendant of the rights she was relinquishing in both cases pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), the court accepted the negotiated plea. As per the agreement, the defendant was sentenced to three concurrent 4-year terms on each count in case number 96--CF--147, and to three concurrent 4-year terms on each count in case number 96--CF--438. The sentences on the two cases were ordered to run consecutively for a total aggregate sentence of 8 years' imprisonment. Thereafter, the court admonished the defendant, in accord with Supreme Court Rules 604(d) and 605(b) of her right to appeal in both cases. 145 Ill. 2d R. 604(d); 145 Ill. 2d R. 605(b).

By way of a handwritten letter addressed to the trial judge which was filed within 30 days of sentencing, the defendant requested a modification of her sentence specifically asking that the 4-year terms in each case be modified to run concurrently. Although her letter primarily discussed her sentence, the defendant also explained that when she agreed to the plea, "I was having bad withdrawals from the prescription drugs I had been calling in and I wasn't thinking very clearly at the time. I'm not trying to make any excuses, it's the truth." The trial court summarily denied the defendant's request without a hearing finding that: "the plea was fully negotiated and Motion for Modification will not lie."

The defendant was granted leave by this court to file a late notice of appeal. On appeal, the defendant argues that the trial judge erred in refusing to entertain her motion to reconsider sentence without first appointing counsel.

ANALYSIS

The defendant argues that the trial court erred in summarily denying her pro se post-plea motion to reconsider sentence. She contends Supreme Court Rules 604(d) and 605(b) authorize a defendant to seasonably move for reconsideration of a sentence resulting from a guilty plea, and that the same rules require the trial court to offer appointed counsel to an indigent defendant. 145 Ill. 2d R. 604(d); 145 Ill. 2d R. 605(b). She asserts that the trial judge erred in refusing to entertain her motion without a hearing and without appointing counsel to represent her despite his admonitions to her regarding those protections following the imposition of sentence.

In response, the State asserts that in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332 (1996), our supreme court held that Rule 604(d) is completely inapplicable to defendants who enter into fully-negotiated pleas. Consequently, the State argues that the trial judge could not have erred by failing to provide non-existent protections to this defendant. Rather, the State contends that the defendant is attempting to evade the clear holding of Evans and renege on the terms of her negotiated plea agreement.

A trial court's decision to deny a post-plea motion to modify sentence or withdraw a guilty plea will not be overturned absent a clear abuse of discretion. See People v. Davis, 145 Ill. 2d 240, 244, 582 N.E.2d 714, 716, 164 Ill. Dec. 151 (1991); People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353, 153 Ill. Dec. 245 (1991). In the instant case, we find that the trial court abused its discretion by summarily denying the defendant's pro se post-plea motion without affording ...


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