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 cases. On February 3, 1997, defendant entered simultaneous guilty pleas to 15 counts of burglary. In exchange for his pleas, the State agreed to a sentence cap of 14 years' imprisonment and to nol-pros seven counts.
On May 21, 1997, the trial court sentenced defendant to serve 10-year concurrent terms of imprisonment on all 10 cases. After defendant was sentenced, the trial court told defendant that he had 30 days either to file a motion to withdraw his guilty plea or a motion asking the court to reconsider his sentence.
On May 30, 1997, defendant filed a motion to reconsider his sentence. The trial court amended defendant's sentence, imposing 3- and 7-year consecutive terms in two of the cases, and ordering 10-year concurrent terms in the remaining eight cases. Defendant timely appealed.
On appeal, defendant argues that (1) his 10-year sentences should be reduced to the statutory maximum 7-year terms; (2) the consecutive 3-and 7-year terms should be modified to run concurrently; (3) he should be granted credit against both consecutive terms for time spent in simultaneous custody; and (4) the case should be remanded to allow him to file a new motion to reconsider because his counsel failed to file a certificate under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). We affirm in part, reverse in part, and remand the cause with directions.
I. WHETHER THE TRIAL COURT ERRED IN IMPOSING CONCURRENT 10-YEAR SENTENCES IN EIGHT BURGLARY CONVICTIONS.
Defendant argues that the trial court erred in imposing 10-year concurrent terms in eight of his burglary convictions. Defendant contends that these terms exceeded the statutory maximum. The State argues that defendant has waived this issue by failing to file a motion to withdraw his plea.
The issue of waiver turns on whether defendant must move to withdraw his guilty plea and vacate the judgment prior to challenging the trial court's statutory authority to impose a particular sentence. In People v. Evans (174 Ill. 2d 320 (1996)), the supreme court held that when a defendant pleads guilty in exchange for a specific sentence, he must move to withdraw his guilty plea and vacate the judgment prior to challenging his sentence. Evans, 174 Ill. 2d at 332. In People v. Williams (179 Ill. 2d 331 (1997)), the supreme court held that Evans is inapplicable when a defendant claims that his sentence was void because it does not conform with the statute. Williams, 179 Ill. 2d at 333, citing People v. Arna, 168 Ill. 2d 107, 113 (1995) (holding that a sentence that is not authorized by statute is void and the appellate court has authority to correct it at any time). In People v. Wilson (181 Ill. 2d 409 (1998)), the supreme court found that under Williams a challenge to a trial court's statutory authority to impose a particular sentence is not waived when a defendant fails to withdraw his guilty plea and vacate the judgment. Wilson, 181 Ill. 2d at 413. Subsequently, in People v. Clark (183 Ill. 2d 261 (1998)), the supreme court held that a plea agreement that leaves open only the applicability of a mandatory sentencing statute constitutes a negotiated plea agreement and that even though a defendant seeks to challenge only the consecutive aspect of his sentence, he is required to withdraw the guilty plea, because his plea of guilty was given in exchange for a specific sentence, regardless of whether the statute mandated a consecutive sentence. Clark, 183 Ill. 2d at 267-68.
The supreme court recently followed Evans and Clark in People v. Linder (186 Ill. 2d 67 (1999)), in which it held that, when a defendant agrees to plead guilty in exchange for the State's dismissal of certain charges and recommendation of a sentence cap, he may not seek reconsideration of the sentence unless he also moves to withdraw his guilty plea. Linder, 186 Ill. 2d at 74. The court stated that where a defendant fails to withdraw his guilty plea and vacate the judgment the appellate court must dismiss the appeal, leaving the Post-Conviction Hearing Act (725 ILCS 5/122--et seq. (West 1996) as the defendant's only recourse. Linder, 186 Ill. 2d at 74.
We find that the instant case is distinguishable from Evans, Clark, and Linder, and therefore follow the decisions in Williams and Wilson. In Evans, Clark, and Linder, the sentences imposed did not exceed the statutory limits. In Williams and Wilson, however, the sentences imposed violated statutory requirements and were thus void. In this case, defendant argues that the trial court imposed terms that violated statutory requirements. We find that under Williams and Wilson, defendant's challenge to the trial court's statutory authority to impose a particular term was not waived by his failure to withdraw his guilty plea and vacate the judgment.
Therefore, we will address the merits of defendant's claims of improper sentencing in these eight burglary convictions. Burglary is a Class 2 felony (720 ILCS 5/19--1(b) (West 1996)) carrying a sentencing range of three to seven years' incarceration (see 730 ILCS 5/5--8--1(a)(5) (West 1996)). In this case, the State has admitted, and the record is clear, that defendant was not eligible for extended-term sentencing. At no time did the trial Judge indicate that he was applying the extended term under these sentences. Thus, the maximum term that could be imposed was seven years on each of the burglary convictions.
In this case, defendant was sentenced in two of the burglary convictions to 3- and 7-year consecutive prison terms, and 10-year terms were imposed on the remaining eight burglary convictions and ordered to run concurrently with the 3- and 7-year terms. We find that the trial court erred in imposing 10-year terms on the eight remaining burglary convictions. We hold that the 10-year terms on the remaining eight burglary convictions are void because they exceed the statutory maximum. Pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we remand the cause with directions for the trial court to reduce the terms on the ...