Appeal from the Circuit Court of Winnebago County. Nos. 97--CF--2078 97--CF--2079 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell:
Defendant, Gary L. Bailey, pleaded guilty to one count each of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)) and aggravated criminal sexual assault (720 ILCS 5/12-- 14(b)(1) (West 1994)). In exchange for defendant's guilty plea, the State agreed to dismiss other charges that, if proved, would have made defendant eligible for mandatory consecutive sentences. The trial court accepted the plea and imposed 2 consecutive 10-year prison terms in its discretion.
On appeal, defendant argues that he is entitled to a remand because his trial counsel failed to file a certificate as required by Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). Defendant also contends that the trial court improperly sentenced him under the invalidated truth-in- sentencing law (730 ILCS 5/3--6--3(a)(2)(ii) (West Supp. 1995)). The State responds that we must dismiss defendant's appeal because he failed to move to withdraw his guilty plea before challenging his sentences. Because we conclude that defendant's claims are not waived, we modify defendant's mittimus to reflect that he is eligible for day-for-day good-conduct credit while imprisoned. We also remand the cause for the trial court to admonish defendant of his right to move to withdraw his guilty plea and vacate his sentence and the consequences of doing so.
Defendant pleaded guilty in two unrelated cases. The factual basis for the plea to predatory criminal sexual assault of a child reveals that on August 22, 1997, defendant committed an act of sexual penetration with his eight-year-old niece while he was baby-sitting. The facts supporting the aggravated criminal sexual assault plea reveal that between May and August 1995 defendant committed acts of sexual penetration with another niece who was six years old at the time.
Defendant was initially charged with two counts of predatory criminal sexual assault of a child for his encounter with the eight- year-old niece. He was additionally charged with two counts of aggravated criminal sexual assault for the offense against his six-year- old niece. Defendant agreed to plead guilty in exchange for the State's dismissal of one predatory sexual assault of a child charge and one aggravated sexual assault charge. The State agreed to dismiss the charges so that defendant would not be eligible for mandatory consecutive sentences pursuant to section 5--8--4(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5--8--4(a) (West 1994)). The parties did not agree to a specific sentence or sentence cap but agreed that the trial court could impose consecutive sentences in its discretion according to section 5--8--4(b) of the Code (730 ILCS 5/5--8--4(b) (West 1994)).
The trial court accepted defendant's guilty plea and sentenced him to 2 consecutive 10-year prison terms. The court ordered defendant to serve 85% of his aggregate sentence pursuant to the truth-in-sentencing statute (730 ILCS 5/3--6--3(a)(2)(ii) (West Supp. 1995)). The court told defendant that he had 30 days either to file a motion to withdraw his guilty plea or a motion requesting the court to reconsider his sentence.
Defendant filed a motion to reconsider his sentence without first moving to withdraw his guilty plea. Moreover, defense counsel failed to file a certificate under Rule 604(d). The trial court denied defendant's motion to reconsider, and this appeal followed.
Defendant first argues that the trial court improperly ordered him to serve 85% of his aggregate sentence under the invalidated truth-in- sentencing statute. The State responds that this appeal should be dismissed because defendant failed to withdraw his guilty plea before challenging his sentence. We agree with defendant, and we modify his mittimus to reflect that he is eligible for day-for-day good-conduct credit while imprisoned.
In People v. Evans, 174 Ill. 2d 320 (1996), the supreme court held that when a defendant pleads guilty to certain charges in exchange for the State's agreement to dismiss other charges and recommend a specific sentence, the defendant may not seek reconsideration of that sentence unless he also moves to withdraw his plea. Evans, 174 Ill. 2d at 327. The court later extended this rule to include plea agreements involving sentencing caps. People v. Linder, 186 Ill. 2d 67, 74 (1999). If a defendant fails to move to withdraw his negotiated guilty plea and challenges the sentence as merely excessive, we will dismiss the appeal. See Linder, 186 Ill. 2d at 74.
In his special concurrence in Linder, Chief Justice Freeman described four plea scenarios that may occur when a defendant decides to forego the right to a trial: (1) the "open" guilty plea, (2) the "negotiated as to charge" plea, (3) the "negotiated as to charge and/or sentence" plea, and (4) the "fully negotiated" plea. Linder, 186 Ill. 2d at 77-78 (Freeman, C.J., specially Concurring). Here, the State dismissed certain charges so that defendant would be ineligible for mandatory consecutive sentences. Because this sentencing concession induced defendant to plead guilty, we conclude that his plea was "negotiated as to charge and sentence" as described by Chief Justice Freeman. See Linder, 186 Ill. 2d at 77-78 (Freeman, C.J., specially Concurring). When a defendant fails to move to withdraw such a guilty plea, his claim that the sentences were merely excessive may be waived. People v. Payne, 294 Ill. App. 3d 254, 258 (1998); People v. Catron, 285 Ill. App. 3d 36, 38 (1996).
However, in People v. Williams, 179 Ill. 2d 331 (1997), the supreme court held that a defendant need not move to withdraw his guilty plea before challenging his sentence if the sentence "does not conform with the statute." Williams, 179 Ill. 2d at 333. In Williams, the defendant pleaded guilty to retail theft (720 ILCS 5/16A--3(a) (West 1994)) after the State agreed to dismiss a burglary charge (720 ILCS 5/19--1(a) (West 1994)) and recommend a seven-year sentence cap. The trial court imposed consecutive sentences of 3 years' imprisonment and 30 months' probation for the theft. The defendant did not challenge his sentences as excessive but argued that the trial court had no statutory authority to impose consecutive prison and probation terms for a single offense. The supreme court agreed and concluded that Evans did not bar the defendant's claim that his sentences were void for nonconformity with the statute. Williams, 179 Ill. 2d at 333.
The supreme court has since reaffirmed this position, holding that "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." (Emphasis added.) People v. Wilson, 181 Ill. 2d 409, 413 (1998). The court concluded that, under those circumstances, a court may review a challenge to an improper sentence. Wilson, 181 Ill. 2d at 413.
Recently this court has also resolved the Evans issue as one of waiver. In People v. Didier, No. 2--97--0613 (August 5, 1999), the defendant pleaded guilty to 15 counts of burglary (720 ILCS 5/19--(a) (West 1996)) after the State agreed to dismiss 7 other counts and request a 14-year sentence cap. Although the defendant was eligible for only 3- to 7-year sentences, the trial court imposed concurrent 10-year sentences. The defendant failed to move to withdraw his plea and to vacate the sentence.
Relying on Williams and Wilson, this court held that Evans did not bar the defendant's claim that his sentences exceeded the statutory maximum. Didier, slip op. at 4. Because the trial court imposed a void sentence, this court ...