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 Richard P. Goldenhersh, P.J.
Honorable Philip J. Rarick, J.
The opinion of the court was delivered by: Justice Kuehn
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The defendant is unhappy with the five-year prison term that Judge Tungate imposed upon his plea of guilty to the offense of criminal sexual assault. He feels that the sentence was too harsh and seeks its review on appeal.
His guilty plea was entered in return for a promise from the State that it would ask the judge for no more than a five-year term. At sentencing, the State was true to its word. It advised the judge that, in its opinion, imprisonment for five years would be a fit and proper sentence to impose. Of course, the defendant argued that less punishment was justified. The judge agreed with the State.
The sentence no doubt displeases the defendant. However, he received the bargain for which he negotiated. He knew when he entered his guilty plea that his exposure to more punishment than five years in prison was lessened. The judge was unlikely to impose more than the recommended punishment. He also knew that a distinct possibility existed that the judge would follow the recommendation and impose a five-year prison sentence. Notwithstanding, the defendant balked at the punishment imposed--punishment that should have been anticipated under the plea bargain. He asked the judge to reconsider her sentence. After she denied his written motion to reconsider, he appealed to us.
Clearly, we are not empowered to review the sentence. In order to perfect an appeal from the judgment entered, the defendant had to first file a motion to withdraw his guilty plea and to vacate the judgment. See People v. Evans, 174 Ill. 2d 320, 332, 673 N.E.2d 244, 250 (1996); People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1173 (1999). The motion-to-reconsider-sentence provisions of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) do not apply to negotiated pleas. See Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. 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 relief sought is necessary to correct a manifest injustice. See Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. The rule announced in Evans applies in cases where a defendant pleads guilty in exchange for a sentence cap. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73. By agreeing to plead guilty in return for a recommended sentencing cap, the defendant agrees to abide any sentence that falls within the recommendation. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172. If the sentence imposed is within the agreed-upon cap, the defendant must seek to withdraw his plea and to vacate judgment. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73.
The defendant acknowledges the jurisdictional defect. However, he insists that his right to appeal should not lay forfeit. He asks us to remand the matter to the trial court for proper advice on how to perfect an appeal from a negotiated guilty plea.
The defendant thought that his written motion to reconsider sentence was a necessary step to appellate review of his sentence. He had good reason to think so. The judge told him that before he could file a notice of appeal, he had to file either a written motion asking her to reconsider sentence or a motion asking her to allow a guilty plea withdrawal. The admonition tracked the warnings called for by Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)) (Rule 605(b)), a rule designed to "ensure, inter alia, that a defendant knows of Rule 604(d)'s requirements regarding appeals from sentences imposed upon a plea of guilty." People v. Foster, 171 Ill. 2d 469, 473, 665 N.E.2d 823, 825 (1996).
We observe the problem. The judge complied with Rule 605(b) and issued the advice that it calls upon a judge to give after an imposition of sentence upon a guilty plea. However, when the rule is followed and its admonition is given after a sentence is imposed upon a negotiated guilty plea, a defendant is provided with seriously flawed advice on how to perfect a desired appeal. If the defendant follows the admonition and moves to reconsider a negotiated sentence rather than to withdraw the negotiated plea, the misinformation proves fatal to his intention. He fails to invoke appellate jurisdiction. That is what happened here.
It is a circumstance that mounts a question we now decide. Does the law provide any remedy to a defendant whose appeal fails because he followed faulty information conveyed to him by a judge, even though that judge was mandated by supreme court rule to provide such information? The defendant's right to appeal rests in the balance. If no remedy exists, the defendant will not be afforded appellate review.
It is the State's position that those who negotiate a plea and subsequently fall prey to the misdirection of a Rule 605(b) admonition are simply out of luck. Their efforts fall short of what is required to invoke our powers of review. The State maintains that a failure to modify the rule's admonition with decisional case law beyond the rule is no excuse for a defendant's failure to file a proper postplea motion.
The State finds support for its position in an analogous situation that occurred after our supreme court decided People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218 (1988), and People v. Wallace, 143 Ill. 2d 59, 570 N.E.2d 334 (1991). Those cases held that the jurisdictional requirements of Supreme Court Rule 604(d) could be satisfied by filing a motion to reconsider sentence in lieu of a motion to vacate guilty plea and that the former was a prerequisite to an appeal if the defendant wished to challenge his sentence. See Wilk, 124 Ill. 2d at 102-05, 529 N.E.2d at 221-22; Wallace, 143 Ill. 2d at 60, 529 N.E.2d at 335.
For a period of time, Rule 605(b) did not conform with these decisions. It did not provide defendants with an admonishment that a motion to reconsider sentence was a jurisdictional requirement for an appeal of a guilty plea sentence. Until a change was made to the rule, judges did not advise defendants on what needed to be done if they wanted to appeal their sentences. Judges ...