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People v. Diaz

August 10, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. JOSE DIAZ, APPELLEE.


The opinion of the court was delivered by: Justice McMORROW

Agenda 9-May 2000.

At issue in this appeal is whether a defendant must withdraw his guilty plea prior to challenging his sentence where, in exchange for pleading guilty, the State dismissed charges against defendant, agreed that defendant's sentences would be served concurrently, and agreed not to seek extended-term sentences. A majority of the appellate court applied this court's decision in People v. Evans, 174 Ill. 2d 320, 332 (1996), and held that because the State did not agree to recommend a specific sentence to the trial court as part of the plea bargain, defendant was not required to file a motion to vacate his guilty plea prior to challenging his sentence. Nos. 2-96-0848, 2-96-0849, 2-96-0850 cons. (unpublished order under Supreme Court Rule 23). The appellate court majority proceeded to reach the merits of defendant's appeal, and, after determining that the circuit court erred in allowing certain evidence to be introduced during defendant's sentencing hearing, vacated the circuit court's judgment and remanded the cause for further proceedings. The State appealed to this court. 177 Ill. 2d R. 315. We now vacate the judgment of the appellate court and remand this cause to the circuit court with directions.

BACKGROUND

Defendant, Jose Diaz, was charged by indictment with seven counts of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1994)), a Class X felony, and 10 counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 1994)), a Class 2 felony. These charges related to incidents occurring in Kane County between 1982 and 1995, and involved four minor victims in three separate cases.

On January 18, 1996, defendant pled guilty to one count of aggravated criminal sexual assault, and three counts of aggravated criminal sexual abuse, with each count relating to a different minor victim. In exchange for defendant's guilty pleas to these four counts, the State agreed to dismiss the remaining 13 charges. In addition, the State agreed that it would not object to any sentences imposed upon defendant to run concurrently, rather than consecutively. Finally, the State agreed that it would not seek extended-term sentences against defendant. However, there was no agreement between defendant and the State that a specific sentence would be recommended to the circuit court.

During defendant's guilty plea hearing, the circuit court informed defendant that, in the absence of the plea agreement between defendant and the State, defendant was eligible to receive consecutive sentences because three separate cases were involved. In addition, the circuit court informed defendant that, absent the plea agreement, defendant was eligible for extended-term sentences for each conviction. In explaining the plea agreement to defendant, the circuit court summarized the sentencing aspects of the agreement as follows: "the attorneys are requesting and agreeing and asking me to agree not to sentence you to a consecutive or extended term, meaning that I won't sentence you to more than 30 years." The defendant thereafter indicated that he understood these aspects of the plea agreement.

The State then provided the factual basis for the charges against defendant. Following the statement of the factual basis for the plea, defendant entered a plea of guilty to the four charges enumerated above. The trial court accepted the guilty plea, finding that the plea was voluntary and that there was a factual basis for the plea.

Defendant's sentencing hearing was held on March 28, 1996. The sole witness called by the State in aggravation was Elgin police officer David Berg, who testified that after the indictments were returned against defendant, two additional incidents of sexual abuse involving defendant were brought to Berg's attention. Officer Berg testified that he had interviewed J.B., a 15-year-old boy, who stated that he had been sexually assaulted by defendant when he was 14 years old. Officer Berg further testified that the Elgin police department had received a report from the Department of Children and Family Services (DCFS) indicating that defendant had had sexual contact with a nine-year-old boy identified as L.E. Officer Berg stated that he had never spoken with L.E., and his knowledge of these incidents was based solely upon the report prepared by DCFS. At the conclusion of Officer Berg's direct examination, the prosecutor stated that, pursuant to the plea agreement between the State and defendant, no charges would be filed against defendant in connection with the alleged incidents involving J.B. and L.E. Instead, the State agreed to use the allegations only in aggravation at sentencing.

In mitigation, defendant called Timothy Brown, a clinical psychologist and director of the Kane County Diagnostic Center. Brown testified that he met with defendant on two occasions, during which defendant revealed that, between the ages of 12 and 18, he had been sexually abused by a police officer while living in Puerto Rico. Brown stated that defendant expressed a willingness to undergo long-term sexual-offender counseling, that defendant feared that without counseling "he could harm children," and that he believed that defendant would benefit from such counseling. During cross-examination, Brown admitted that he was aware that defendant had been previously convicted in Cook County of aggravated criminal sexual abuse and that defendant had received court-ordered sex offender treatment at that time. Brown also acknowledged that, despite such counseling, defendant had again engaged in similar conduct.

Also testifying on defendant's behalf was Kimberly Diaz, defendant's wife of two years. She testified that she had one child with defendant, and that defendant adopted another one of her children. She stated that defendant was a "very warm person," that he was "good hearted," and that he had provided the family with financial support for the first year of their marriage. However, soon after their first anniversary the couple separated and, before he was taken into custody, defendant was neither living with her nor supporting her. During cross-examination, she acknowledged that defendant had brought the minor male victims to the family home and that defendant committed the alleged sexual acts on the premises. She also testified that defendant had told her that the minor male victims were related to him, specifically, that the boys were his "nephews."

During the sentencing hearing, the circuit court also reviewed a presentence report regarding defendant, prepared by the Kane County department of adult court services. The report revealed that defendant had a 1990 Cook County conviction for aggravated criminal sexual abuse, which was subsequently reduced and amended to a misdemeanor charge of criminal sexual abuse. An addendum to the presentence report contained a letter from defendant's GED instructor and included his GED scores. Defendant also made a statement in allocution. In his statement, defendant asked for forgiveness, acknowledged his wrongdoing, took full responsibility for his actions, and expressed remorse.

The circuit court then made the following findings. In aggravation, the court found that defendant's prior 1990 Cook County charge for aggravated criminal sexual abuse "carrie[d] a lot of weight," because it was "similar to the charges here. " In addition, the circuit court found that defendant's commission of these crimes, despite his prior sex-offender counseling, "mean[t] a lot" in terms of aggravation, and that defendant stood in a position of trust in respect to his minor victims. The circuit court also considered the deterrence of others from committing the same crime, as well as the protection of the public. In mitigation, the circuit court considered that by pleading guilty, defendant prevented the minors from having to testify during a trial. The court also found defendant's statement in allocution and his admission of wrongdoing to be mitigating factors.

Taking all the above factors into consideration, the circuit court sentenced defendant to a 20-year term of imprisonment on the aggravated criminal sexual assault conviction, and to concurrent three-year terms for the three aggravated criminal sexual abuse convictions. After sentencing, the court informed defendant that he could appeal the decision. The circuit court judge instructed defendant as follows: "you have to file within this court within 30 days a motion to withdraw your guilty plea or reconsider the sentence."

On April 24, 1996, defense counsel filed a motion requesting the circuit court to "reconsider and reduce [defendant's] sentence in light of his age, his minimal criminal history, the lack of injury to the complainants, and his expression of remorse and candor at the sentencing hearing." Attached to this motion was a certificate filed pursuant to Supreme Court Rule 604(d), wherein defendant's trial counsel stated that he "consulted in person with [defendant] to ascertain his contentions of error in the sentence or entry of the plea of guilty and has determined that [defendant] seeks to challenge the sentence imposed for the reasons stated in the motion, but does not desire to withdraw his plea of guilty." A hearing on this motion was held on July 12, 1996, wherein defense counsel again requested the court to reduce defendant's sentence. In denying defendant's motion, the circuit court found that the sentence was appropriate under the circumstances.

In an unpublished order filed pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23), a majority of the appellate court vacated the judgment of the circuit court and remanded this cause for further proceedings. Before the appellate court, defendant argued, for the first time, that he was entitled to a new sentencing hearing because the trial court improperly allowed certain evidence to be introduced during the sentencing proceedings. The majority rejected the argument advanced by the State that, pursuant to this court's then-recent decision in People v. Evans, 174 Ill. 2d 320, 332 (1996), defendant's appeal should have been dismissed because of his failure to file a motion to withdraw his guilty plea prior to challenging his sentence. The majority concluded that, because the State did not agree to recommend a specific sentence to the trial court in exchange for defendant's plea of guilty, Evans did not apply. Therefore, the majority concluded, defendant was not obligated to file a motion to withdraw his guilty plea prior to challenging his sentence. The majority then reached the merits of defendant's appeal, and determined that defendant was entitled to a new sentencing hearing as a result of evidentiary errors committed by the circuit court. In dissent, Justice Rathje concluded that Evans required defendant to move to withdraw his guilty plea prior to appealing his sentence.

ANALYSIS

The State contends that the appellate court erroneously reached the merits of defendant's sentencing challenge, because defendant has waived issues relating to his sentencing by failing to first file with the circuit court a motion to withdraw his guilty plea, as required pursuant to this court's decision in People v. Evans, 174 Ill. 2d 320 (1996). We agree. Under the rationale of Evans and its progeny, ...


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