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People v. Didier

Illinois Appellate Court


May 14, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK A. DIDIER, DEFENDANT-APPELLANT

Appeal from the Circuit Court of Lake County. Nos. 96-CF-3399 96--CF--3451 96--CF--3452 96--CF--3584 96--CF--3586 96--CF--3588 96--CF--3590 96--CF--3592 96--CF--3593 96--CF--3595 Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendant, Mark A. Didier, was charged with 22 counts of burglary in 10 separate indictments. On February 3, 1997, defendant entered simultaneous guilty pleas to 15 counts. In exchange for his pleas, the State agreed to a sentence cap of 14 years and to nol-pros 7 counts.

On May 21, 1997, the court sentenced defendant to serve 10-year concurrent terms of imprisonment on all 10 cases. After defendant was sentenced, the court told 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.

On May 30, 1997, defendant filed a motion to reconsider his sentence. The court issued amended mittimuses sentencing defendant to 3- and 7-year consecutive sentences in two of the cases, and in the remaining eight cases ordered defendant to serve 10 years concurrently with the other two sentences of 3 and 7 years. Defendant timely appealed.

On appeal, defendant argues that (1) his 10-year sentences should be reduced to the maximum 7-year terms; (2) the 3- and 7-year sentences should be modified to run concurrently rather than consecutively; (3) defendant should be granted credit against both consecutive sentences for time spent in simultaneous custody if the consecutive sentences are upheld; and (4) the case should be remanded for compliance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). We hold that this appeal must be dismissed because defendant failed to file a motion to withdraw his guilty plea.

In People v. Linder, No. 83415 (Ill. February 19, 1999), 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 5-6. 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 unilaterally to renege or modify the terms that were previously acceptable. Linder, slip op. at 5-6.

In this case, the negotiated plea agreement between the State and defendant provided for a sentencing cap of 14 years, defendant's testimony against a co-defendant, and the dismissal of 11 other burglary charges. Defendant benefitted from that plea agreement. Allowing defendant to modify unilaterally the negotiated plea agreement would violate the policy advanced by the supreme court in Linder.

Since defendant entered into a negotiated plea agreement and benefitted from that agreement, in accordance with Linder we hold that 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.

Appeal dismissed; cause remanded with directions.

GALASSO, J., concurs.

JUSTICE McLAREN, specially Concurring:

I specially concur because I wish to emphasize a point or two. I concur in this Disposition because the facts in this case are virtually identical to those in the Linder case (People v. Linder, No. 83415 (Ill. February 19, 1999)). The reader should be aware of at least two recent conflicting opinions issued by this appellate district that concern plea agreements that did not involve an agreement as to sentence, sentence caps, or any other mention of sentence other than the admonishment given the defendant prior to his plea of guilty. In People v. Knowles, No. 2--98--0556, (May 3, 1999), the majority dismissed the appeal. In People v. Wyatt, No. 2--97--0807 (May 13, 1999), the majority considered the merits and affirmed the sentence without requiring the defendant to move to withdraw his plea. I therefore specially concur.

19990514


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