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People v. Wyatt

May 13, 1999


Appeal from the Circuit Court of Winnebago County. Nos. 96--CF--2134 96--CF--3166 Honorable Rosemary Collins, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN


Defendant appeals from his consecutive 15-year sentences for burglary (720 ILCS 5/19--1(a) (West 1996)) and escape (720 ILCS 5/31--6(a) (West 1996)) and the court's denial of his motion to reconsider his sentence. We affirm in part and remand in part.

Defendant was arrested on charges of burglary and theft (720 ILCS 5/16--1(a)(4)(A) (West 1996)). He and two others escaped from the Winnebago County jail but were reapprehended shortly thereafter in Minnesota and were charged with escape. Following plea negotiations, defendant pleaded guilty to the burglary and escape charges, while the State agreed to nol-pros the theft charge and to forego prosecution of further charges against defendant and his mother. The states of Minnesota and Iowa also agreed not to pursue charges against him. Defendant was sentenced to consecutive 15-year terms of imprisonment on the charges. His subsequent motion to reconsider the sentences was denied. This appeal followed.

We must first address the State's contentions that this appeal must be dismissed. The State first argues that this court lacks jurisdiction because defendant's motion to reconsider sentence was not timely filed. Defendant was sentenced on June 11, 1997. On July 2, the trial court granted defendant until July 31 to file his motion to reconsider, on which date the motion was eventually filed.

A motion to reduce sentence is to be filed within 30 days of the imposition of sentence. 730 ILCS 5/5--8--1(c) (West 1996). However, a court may grant a continuance upon written motion or upon its own motion if the interests of Justice require. 725 ILCS 5/114--4(d) (West 1996). Here, defense counsel needed additional time to communicate with defendant, who had been sent to the Department of Corrections. We find that the court properly exercised its discretion in granting the continuance for filing the motion to reconsider and find no error.

The State also argues that this appeal should be dismissed because defendant entered into a partially negotiated guilty plea but did not file a motion to withdraw his plea before appealing. The State contends that any concession on its part in a plea negotiation makes a guilty plea "negotiated" under People v. Evans, 174 Ill. 2d 320 (1996), and thus requires a defendant to move to withdraw his guilty plea before challenging his sentence on appeal. However, not all negotiated pleas are the same. People v. Linder, No. 83415, slip op. at 8 (Ill. February 19, 1999) (Freeman, C.J., specially Concurring). The negotiated plea in Evans involved a plea of guilty in exchange for dismissal of certain charges and an agreed-upon sentence. See Evans, 174 Ill. 2d at 322-23. In that situation, the court determined that to allow the defendant to seek reconsideration of his sentence would be to hold the State to its part of the bargain while allowing the defendant to unilaterally modify his sentence, in violation of contract law principles. See Evans, 174 Ill. 2d at 327. Not all negotiated pleas involve agreed-upon sentences; a plea agreement may involve only the dismissal of charges without an agreement as to a specific sentence or may include an agreement to a cap on sentencing. Our supreme court has held that where a plea agreement involves a recommendation of a specific sentence or a cap on sentencing, a defendant must move to vacate the judgment and withdraw his guilty plea before attacking his sentence on appeal. See Linder, slip op. at 4-6. However, the court has not required that defendants withdraw their guilty pleas in the absence of some agreement as to sentence, even where other agreements, such as the reduction or dismissal of charges, exist. This court has consistently held that partially negotiated pleas that do not involve a sentencing agreement do not require withdrawal of the guilty plea. See People v. Johnson, 286 Ill. App. 3d 597 (1997), overruled on other grounds, People v. Latona, 184 Ill. 2d 260 (1998); People v. Wendt, 283 Ill. App. 3d 947, 951-52 (1996). Here, the plea agreement involved dropping one charge against defendant and foregoing prosecution of other charges but included no agreement as to sentence. As the sentence to be imposed was left entirely to the court's discretion, we conclude that defendant properly challenged his sentence and was not required to move to withdraw his guilty plea. Therefore, we will not dismiss this appeal.

Defendant first contends that this case must be remanded to the trial court because the court failed to admonish him properly in accordance with Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)). We disagree.

Supreme Court Rule 605(b) provides:

"In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:"

"(1) that he has a right to appeal;"

"(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;"

"(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;"

"(4) that upon the request of the State any charges that may have been dismissed as a party of a plea agreement will be ...

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