Appeal from the Circuit Court of Stephenson County. No. 06--CF--142 Honorable Michael P. Bald, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the opinion of the court: Defendant, James A. Brexton, was convicted of burglary (720 ILCS 5/19--1(a) (West 2006)) and sentenced to seven years' imprisonment after withdrawing a guilty plea to felony retail theft for which he was sentenced to five years' imprisonment. Defendant argues that his burglary conviction should be vacated because: (1) the State's act of charging him with burglary after he withdrew his guilty plea constituted prosecutorial vindictiveness; (2) he relied upon the admonishments of Supreme Court Rules 605(b)(3) and (b)(4) (210 Ill. 2d Rs. 605(b)(3), (b)(4)), which did not warn him of the State's filing of new charges; and (3) his right to a speedy trial was violated. We agree that the State acted with vindictiveness, and we vacate and remand for further proceedings consistent with this opinion.
On April 27, 2006, defendant was charged by complaint with two counts of retail theft (720 ILCS 5/16A--3(a) (West 2006)). The complaint alleged that defendant knowingly took possession of 70 cigars from a BP Super Pantry in Freeport, which cigars had a total value exceeding $150, with the intention of permanently depriving the merchant of the merchandise. The complaint also alleged that defendant had previously been convicted of retail theft on April 20, 2004. Under section 16A--10(2) of the Criminal Code of 1961 (720 ILCS 5/16A--10(2) (West 2006)), count I, which alleged retail theft with a prior conviction, constituted a Class 4 felony. Under section 16A--10(3), count II, which alleged that the stolen property was valued over $150, constituted a Class 3 felony.
On July 24, 2006, the parties discussed a plea agreement in court. The State agreed that if defendant pleaded guilty to count II, it would dismiss count I. The court considered this a blind plea because the State was not really conceding much as defendant could be guilty of only one of the charged counts under the one-act, one-crime doctrine. Thus, if defendant pleaded guilty to the Class 3, the Class 4 would merge. Defendant was admonished of the potential sentence for a Class 3 felony, which was 2 to 10 years' imprisonment (depending upon prior offenses) and 1 year of mandatory supervised release. No agreement had been made regarding defendant's sentence. The State provided the factual basis of the offense. Police were called to the BP Super Pantry due to a shoplifting incident. Police arrived, recognized defendant, and asked him to stop because they saw something with a flat surface in his pants below the knees. Defendant denied taking anything. He then tried to run away. Police took him to the ground and handcuffed him. Numerous cigars were recovered from defendant, and the value was calculated by the store to be $167. Defendant had black sweat pants underneath his jeans. The cigars were inside the sweat pants, which had elastic at the ankles. The State recommended five years' imprisonment. After considering defendant's lengthy record, the court sentenced defendant to five years' imprisonment and one year of mandatory supervised release. Defendant immediately objected and moved to withdraw his guilty plea. The trial court denied defendant's motion to withdraw after a hearing.
On July 2, 2007, upon defendant's motion for summary reversal and remand, this court vacated the trial court's postplea ruling and remanded the cause because the trial court failed to properly admonish defendant pursuant to Rule 605(b) (210 Ill. 2d R. 605(b)). On November 2, 2007, upon remand and with the assistance of counsel, Mark Zaleski, defendant moved to withdraw his guilty plea. After a hearing, the trial court granted defendant's motion to withdraw his guilty plea, vacated his conviction, and placed the case on the trial docket.
On January 4, 2008, the State filed an amended information, adding one burglary count (720 ILCS 5/19--1(a) (West 2006)), alleging the same facts--that defendant entered the Super Pantry in Freeport with the intent to commit a theft. The trial court advised defendant on January 4 that the burglary charge was a Class 2 felony with an imprisonment range of 3 to 14 years and 2 years of mandatory supervised release. Defendant, although represented by counsel, objected pro se to the State's filing of the burglary count when the only charges pending prior to his plea were the two retail theft charges. The court advised him, "that's something that if you wish to argue that, that can be argued at another time." The court advised that the additional count could be the subject of a motion of some sort. No motion pertaining to this additional count was filed. Other pretrial motions were filed on defendant's behalf. At a hearing on February 28, 2008, defense counsel confirmed that defendant wanted to proceed with the scheduled trial date and that, if his pretrial motions could not be heard by then, counsel would withdraw, as defendant wanted to be tried within 120 days.
The matter went to trial on March 4, 2008. The jury returned guilty verdicts on all three counts. Defendant moved for a new trial, arguing in part that the State acted with prosecutorial vindictiveness in filing the additional burglary charge after defendant's guilty plea was withdrawn. On June 3, 2008, the trial court heard the motion. Defendant testified as follows. He was originally charged with retail theft and represented by attorney Doug Clymer, and he entered a blind guilty plea. The trial court sentenced him to five years' imprisonment. After the sentencing, defendant moved to withdraw his plea. Attorney Zaleski was appointed to represent defendant on appeal. Defendant was told by Zaleski that the State was going to pursue a burglary charge when he filed his motion to withdraw his plea upon remand from the appellate court. Zaleski questioned defendant as follows:
"Q. Okay, so I told you that--when we were negotiating the motion to withdraw guilty plea I told you that the State was informing me they would file a burglary charge, correct?
Q. And at this point it is your position that you feel that the State had retaliated against you as being vindictive based on the fact that you were allowed to withdraw your guilty plea and that's what you wanted to do, correct?
A. Yes, sir. I was exercising my right to an appeal upon the fact that I was coerced into a plea agreement that was an improper sentence."
On cross-examination, defendant acknowledged that, prior to the hearing on his motion to withdraw, he was orally advised by Zaleski that the State intended to pursue a burglary charge. Defendant denied that he was aware prior to his initial plea that the State intended to pursue a burglary charge.
Assistant State's Attorney (ASA) Joseph Lentz testified that he agreed to dismiss a retail theft charge that was pending against defendant involving a Family Dollar store in exchange for defendant's blind guilty plea to the Class 3 felony charge. If the case did not settle, Lentz contemplated pursuing a burglary charge against defendant. Lentz identified a letter he wrote, dated November 7, 2007, and addressed to Zaleski, in which he advised Zaleski that if defendant were allowed to withdraw his guilty plea, Lentz would consider filing a burglary charge ...