Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 99-CF-191, 99-CF-1174 Honorable Stephen D. White, Gerald Kinney Judges, Presiding
The opinion of the court was delivered by: Justice Holdridge
The defendant, Alphonso Bouie, was convicted, pursuant to his guilty plea, of two charges of unlawful possession of a controlled substance. 720 ILCS 570/402(c) (West 1998). He was sentenced to three years' imprisonment on one charge and four years' imprisonment on the other, with the sentences to be served consecutively. The defendant now appeals his conviction and sentence, alleging that (1) the trial court erred in arraigning him via closed circuit television; (2) the judge erred by withdrawing his conditional concurrence in the plea agreement and sentencing the defendant without allowing him the opportunity to withdraw his plea; (3) the prosecutor violated the defendant's plea agreement by arguing for a longer sentence than had been agreed to; and (4) the defendant's consecutive sentences violated the Supreme Court holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm in part, reverse in part, and remand for further proceedings.
The defendant was charged with unlawful possession of a controlled substance and domestic battery (720 ILCS 5/12--3.2(a)(2) (West 1998)) based on events alleged to have occurred on February 6, 1999. He was arraigned via closed circuit television on February 24, 1999, and released on bond on March 18, 1999. While out on bond, he was charged with unlawful possession of a controlled substance as the result of an incident on September 2, 1999. He was arraigned on this offense via closed circuit television on September 17, 1999.
On January 18, 2000, the attorneys informed the court that a plea agreement had been reached. The defendant agreed to plead guilty to both charges of unlawful possession of a controlled substance. In return, the State agreed to dismiss the domestic battery charge. The State and the defendant also agreed to sentences of two years' imprisonment on each charge, with the sentences to be served consecutively.
Defense counsel then told the court that they had also agreed that the defendant's sentencing would be delayed one week, so that he could get his affairs in order. The court acknowledged the agreement. He then told the defendant and counsel that he would leave his "options open" as to punishment in case the defendant did not appear for his court date or he "picked up" another case while out on bond. He asked both counsel if that created "a problem for anyone." Both counsel stated that it did not. The judge admonished the defendant in accordance with Supreme Court Rule 402 (177 Ill. 2d R. 402) and found the defendant guilty. After accepting the plea, the judge told the defendant, "you are looking at two plus two on each of these if you can control your behavior and come back here in a week. You're looking at as much as six plus six on 'em if you can't. Okay?" The defendant acknowledged the judge's statement.
On January 26, 2000, the defendant returned to court. His attorney asked for an additional seven-day continuance, because the defendant was scheduled for knee surgery. The judge granted the continuance and told the defendant, "you pick up another case, you got problems." The next hearing was set for 9:30 a.m. on February 7, 2000.
The defendant did not appear at the next hearing. Defense counsel stated he did not know why his client had failed to appear, but he felt confident he could get him into court. The matter was continued to the following morning at 9:30 a.m. The judge told defense counsel that if his client was not in court, he would issue a bench warrant.
The next morning the defendant did not appear. Defense counsel stated that the defendant had come to the courthouse the previous afternoon. The defendant was told to contact his attorney, but counsel had not heard from the defendant. The judge issued a bench warrant. The defendant arrived in the judge's courtroom later that afternoon, at which time the judge had him arrested.
At the sentencing hearing on March 16, 2000, the prosecutor argued that the defendant should be sentenced to an extended term on each charge. Defense counsel, while admitting that his client had "technically" violated the plea agreement, argued that the defendant should still get the benefit of his plea bargain because he had come back to the courthouse, even though not in a timely fashion. He argued that the defendant should receive a two-year sentence on each charge.
The judge sentenced the defendant to three years' imprisonment on the first charge and four years' imprisonment on the second charge. The sentences were ordered to run consecutively because the defendant was out on bond for the first offense when he committed the second. After his posttrial motion to withdraw his guilty plea was denied, the defendant appealed.
The defendant asserts that his arraignment via closed circuit television violated his due process right to be present during trial. He acknowledges that he is bringing this error to the court's attention for the first time on appeal. He urges this court to apply a plain error analysis.
In People v. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841 (2000) appeal allowed, 189 Ill. 2d 670 (2000), the defendant did not object to his arraignment via closed circuit television, but did raise the issue on appeal. This court held that since Lindsey did not show that his appearance via closed circuit television prejudiced his case or violated his due process rights, there was no plain error. The defendant in this case is similarly situated to the defendant in Lindsey. Therefore, we decline to apply a plain error analysis and hold that the closed circuit arraignment proceedings were proper.
The defendant also argues that he should be allowed to withdraw his guilty plea because the trial judge withdrew his conditional concurrence in the plea without allowing the ...