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10/10/97 PEOPLE STATE ILLINOIS v. VINCENT D. FRANKS

October 10, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
VINCENT D. FRANKS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 96--CF--653. Honorable John D. O'Shea, Judge Presiding.

Released for Publication November 24, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court. Holdridge and McCUSKEY, J.j., concur.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

Defendant Vincent D. Franks entered a partially negotiated guilty plea to attempted armed robbery. 720 ILCS 5/8--4, 18--2 (West 1996). In exchange for the plea, the State agreed to a sentence cap of 10 years' imprisonment and dismissed a charge of aggravated battery. The trial court accepted the plea and imposed a seven-year prison term. On appeal, defendant argues that his sentence was an abuse of the trial court's discretion. We affirm.

FACTS AND PROCEDURAL CONTEXT

The factual basis presented at defendant's guilty plea hearing established that on August 7, 1996, defendant and three other young men executed a scheme to rob a motorist. They parked along the roadway pretending that their car's radiator was inoperative. Motorist Anna Jones stopped and agreed to get water for them. When she returned, defendant took the water, and one of the co-defendants struck her on the head with a hammer. She fell to the ground. The men demanded money, but Jones said she had none. The men then panicked, piled into defendant's car and defendant sped off. They were later apprehended, and defendant admitted his participation in the offense. Based on these facts, the court accepted defendant's plea of guilty to the charge of attempted armed robbery and set the cause for sentencing.

At the sentencing hearing, the court heard the parties' evidence and reviewed the circumstances of the offense, the presentence investigation report and a substance abuse evaluation. Defendant exercised his right of allocution to express his remorse. The State recommended a four-year prison sentence, and the defense argued for probation. The court found that probation would be inconsistent with the ends of justice and would not adequately protect the public. Accordingly, the court imposed a seven-year prison sentence.

Defendant subsequently filed a pro se motion to withdraw his plea. After counsel was appointed, defendant's motion was restyled as a request to either withdraw his plea or to reconsider sentence. The post-plea motion was heard and denied, and defendant appeals.

STATE'S WAIVER ARGUMENT

Before reaching the merits of defendant's argument, we address the State's argument that defendant has waived any error in his sentence by failing to persist in his motion to withdraw his plea. The State argues that a defendant should not be allowed to retain a benefit of his bargain with the prosecutor--i.e., the dismissal of the aggravated battery charge--while asking this court for relief from a sentence within the range he bargained for. Rather, the State contends, to obtain relief on review, the defendant must first establish the parties' status quo ante by showing that the trial court abused its discretion in denying the defendant's motion to withdraw his plea. See People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332 (1996); People v. Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d 86 (3rd Dist. 1997). The State's position derives from decisions applying contract principles to appeals from sentences entered upon negotiated guilty pleas. See Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332; see also Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d 86; People v. Catron, 285 Ill. App. 3d 36, 674 N.E.2d 141, 220 Ill. Dec. 870 (4th Dist. 1996).

However, other decisions distinguish Evans in partially negotiated guilty plea cases. See, e.g., People v. Wilson, 286 Ill. App. 3d 169, 675 N.E.2d 292, 221 Ill. Dec. 385 (2nd Dist. 1997); People v. Johnson, 286 Ill. App. 3d 597, 676 N.E.2d 1040, 222 Ill. Dec. 76 (2nd Dist. 1997); People v. Smith, 288 Ill. App. 3d 308, 680 N.E.2d 490, 223 Ill. Dec. 757 (Ill. App. 1997); see also Sanders, 286 Ill. App. 3d at 1044-45, 678 N.E.2d at 88-89 (Holdridge, J., specially concurring). Applying basic principles of due process, these decisions allow a defendant to appeal his sentence without withdrawing his plea whenever the trial court exercised discretion in setting the sentence. Our supreme court has not resolved whether a defendant whose guilty plea was partially negotiated may challenge only his sentence on review. Nevertheless, we find that the latter decisions present a compelling case for reviewing a defendant's excessive sentencing issue; therefore, we now retract from our earlier adherence to Evans and Catron (see Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d 86) and will consider defendant's argument on its merits.

SENTENCING

Defendant claims that the trial court failed to properly weigh and consider the State's recommendation of four years and numerous factors in mitigation. He argues that his sentence should be reduced because of his youth and rehabilitative potential; his remorse and willingness to testify against a ...


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