Appeal from the Circuit Court of Jasper County. No. 98-CF-12 Honorable Sherri L. E. Tungate, Judge, presiding.
Justices: Honorable Clyde L. Kuehn, J. Honorable Philip J. Rarick, P.j., and Honorable Richard P. Goldenhersh, J., Concur
The opinion of the court was delivered by: Justice Kuehn
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
What remedy is available to a defendant when the circuit court misadvises him of the procedures to follow in attacking a "capped" sentence entered pursuant to a negotiated plea? Under such circumstances, we hold that the proper remedy is the vacatur of the order denying the postplea motion and a remand with directions that defendant be properly admonished of his appeal rights.
Defendant, William Wright, pleaded guilty to criminal sexual assault in return for the State's promise not to seek a sentence in excess of five years' imprisonment. On October 15, 1998, defendant was sentenced to five years' imprisonment. On November 10, 1998, he filed a motion to reconsider his sentence. The motion was denied on January 8, 1999, and notice of appeal was timely filed on January 29, 1999.
Supreme Court Rule 604(d) provides in pertinent part: "Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment." 145 Ill. 2d R. 604(d).
The rule makes no distinction between "open" pleas and "negotiated" pleas. However, in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996), our supreme court held that the motion-to-reconsider-sentence provisions of the rule do not apply to negotiated pleas. For a defendant to prevail on a challenge to a sentence pursuant to a negotiated plea, the defendant must move to withdraw his plea and vacate the judgment and show that the granting of the motion is necessary to correct a manifest inJustice. See Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. Further, our supreme court has recently held that the rule announced in Evans applies in cases where a defendant pleads guilty in exchange for a cap on his sentence. People v. Linder, 186 Ill. 2d 67, 708 N.E.2d 1169 (1999). By agreeing to plead guilty in exchange for a recommended sentencing cap, the defendant is, in effect, agreeing not to challenge any sentence imposed below that cap on the grounds that it is excessive. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172. Accordingly, if the sentence imposed is within the agreed-upon cap, the defendant may not move for a reconsideration of his sentence without seeking to withdraw his plea and vacate the judgment. If he does not file a motion to withdraw his plea and vacate the judgment, the appeal must be dismissed. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.
Here, defendant pleaded guilty in exchange for a prison sentence not to exceed five years. That was the sentence imposed. Instead of filing a motion to withdraw his plea and vacate the judgment, defendant filed only a motion to reconsider sentence. Accordingly, it appears this appeal should be dismissed under Evans and Linder.
Defendant argues, however, that he was not properly admonished under Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)) and he cannot be faulted for failing to follow the procedural requirements of Rule 604(d).
Supreme Court Rule 605(b) governs postplea admonishments and provides in pertinent part:
"(b) On Judgment and Sentence Entered on a Plea of Guilty. 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 the 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 ...