Appeal from the Circuit Court of Winnebago County. No. 96--CF--363 Honorable K. Craig Peterson, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The defendant, Gary D. Knowles, was indicted for possessing cocaine with the intent to deliver. Because the defendant had 500 grams of cocaine in his possession, he was indicted under section 401(a)(2)(C) of the Criminal Code of 1961 (Code) (720 ILCS 570/401(a)(2)(C) (West 1996)). Under this charge, the defendant faced between 12 and 50 years in prison.
The defendant entered into an agreement with the State whereby the defendant would plead guilty in exchange for the State charging him with possessing between 1 and 15 grams of cocaine with the intent to deliver the same under section 401(c)(2) of the Code (720 ILCS 570/401(c)(2) (West 1996)). Under this charge, the defendant faced a minimum of four years in prison and a maximum of fifteen years in prison.
The defendant accepted the agreement and pleaded guilty to the lesser offense. A sentencing hearing was conducted, and, in addition to fining the defendant, the court sentenced him to four years in prison. After the defendant was sentenced, the court told the defendant that he had 30 days either to file a motion to withdraw his guilty plea or file a motion asking the court to reconsider his sentence. The court told the defendant that he could file one or both motions, but if he filed a motion to withdraw his guilty plea, then the State could prosecute the defendant under the original indictment.
On February 18, 1998, the defendant filed a motion to reconsider his sentence. On April 3, 1998, the court lowered the street value fine assessed against the defendant but otherwise denied the defendant's motion to reconsider the sentence. The defendant subsequently filed his notice of appeal on May 1, 1998. The defendant argues that his sentence should be overturned because the trial court improperly considered certain factors during his sentencing hearing. We hold that this appeal must be dismissed because the defendant failed to file a motion to withdraw his guilty plea.
Our supreme court has considered the issue of whether or not a defendant in a negotiated plea agreement case must withdraw his plea of guilty before seeking review of his case. In People v. Evans, 174 Ill. 2d 320, 321 (1996), the State dismissed some of the charges facing the defendant and recommended a sentence. Based on these facts, the Illinois Supreme Court held that a defendant in a negotiated plea agreement case must file a motion to withdraw the guilty plea and vacate the judgment entered against him before appealing the decision rendered by the trial court. Evans, 174 Ill. 2d at 332. The court reasoned that a defendant in a negotiated plea agreement case must take this approach because allowing a defendant to challenge the decision while holding the State to its part of the negotiated plea agreement invalidates the plea agreement. Evans, 174 Ill. 2d at 332, 327.
This issue was again addressed in People v. Linder, No. 83415 (Ill. February 19, 1999). In Linder, the court held that a defendant in a negotiated plea agreement case who agrees to the cap placed on his sentence must file a motion to withdraw his guilty plea before seeking review of the lower court's decision. Linder, slip op. at 6. Again, as in Evans, the court reasoned that a defendant should not be allowed to appeal the decision without first moving to withdraw his guilty plea because to do otherwise forces the State to be bound by the terms of the agreement while permitting the defendant to unilaterally renege or modify the terms that were previously acceptable. Linder, slip op. at 4.
Here, the defendant's and the State's agreement provided that the defendant would be charged with a less harsh offense. Since the severity of the charge was reduced, the sentence that the defendant could expect to face was also reduced. Therefore, even though the agreement did not specifically provide a sentence or a cap on a sentence, the agreement did present sentencing possibilities to the defendant that were not available to the defendant under the original indictment. Allowing the defendant in the instant action to modify unilaterally the agreement while holding the State to the terms of the agreement would violate the policy advanced by the court in Linder and Evans.
The defendant argues that People v. Wilk, 124 Ill. 2d 93 (1988), and People v. Wallace, 143 Ill. 2d 59 (1991), control this case. In both of those cases, the defendants pleaded guilty to the charges imposed against them. There is no evidence that any of the defendants in those cases entered into negotiated pleas before entering a guilty plea. In fact, in Evans, our supreme court reviewed the pleas that were entered into by the defendants in those cases. Evans, 174 Ill. 2d at 332. In both cases, the defendants entered open guilty pleas to the charges imposed against them. Evans, 174 Ill. 2d at 332. Those defendants received no promises from the State in exchange for their guilty pleas. Evans, 174 Ill. 2d at 332. Since the defendants entered open guilty pleas, there was no need for them to withdraw their guilty pleas before seeking review of their sentences. Evans, 174 Ill. 2d at 332. The court reasoned that good public policy and common sense dictated that defendants in nonnegotiated plea agreement cases should not be required to withdraw their guilty pleas before appealing their cases. Evans, 174 Ill. 2d at 332. Additionally, the court in Evans stated that this reasoning does not apply to cases where defendants have entered into negotiated pleas. Evans, 174 Ill. 2d at 332.
Here, in contrast to both Wilk and Wallace, the defendant entered into a plea agreement with the State and benefitted from that agreement. Since an agreement was made, Evans and Linder control rather than Wilk and Wallace.
Since the defendant entered into a plea agreement and benefitted from this agreement by having the possible sentence facing him reduced, we hold, in line with Evans and Linder, that the defendant must file a motion to withdraw his guilty plea before he files his notice of appeal. Since the trial court advised defendant that he could file either a motion to withdraw his guilty plea or a motion to reconsider his sentence, fundamental fairness requires that we remand the cause with directions for the trial court to admonish defendant of his right to file a motion to withdraw his guilty plea and the consequences thereof, pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)).
We therefore dismiss the appeal and remand the cause with directions for the trial court to admonish defendant of his right to file a motion to withdraw his guilty plea and the consequences thereof.
This appeal is dismissed and the cause is remanded to the circuit court of Winnebago County to allow the defendant to file a ...