*1 integrity of the court protect the truth and to designed promote shifting litigants deliberately positions from system by preventing Lewis, exigencies of the moment. Bidani v. suit identity It does not turn on 675 N.E.2d positions. This is taking rather on the of inconsistent of claims but compensation initially exactly happened what here. Claimant sought February 7 as sworn to in injuries incurred on for her husband’s fatal interrogatories in the uninsured motorist arbitration her answers to injuries fatal occur compensation for his proceeding, and now seeks claim. Claimant’s 25 as stated in her second ring on November estopped death. I believe that claimant is husband suffered one that, therefore, her second contrary positions and asserting from such claim is barred.
HOLDRIDGE, J., joins special concurrence. ILLINOIS, Plaintiff-Appellee, v. GARYL. THE THE PEOPLE OF STATE OF BAILEY,Defendant-Appellant. 2—98—0211,— 0212 cons. Second District Nos. 2—98 Opinion September filed HUTCHINSON, J., specially concurring. *2 Hildebrand, Joseph Appellate Weller State
G. and Jack both of Defender’s Office, Elgin, appellant. for of (Martin Logli, Attorney, A.
Paul State’s of Rockford P Moltz and Richard London, counsel), Attorneys Office, Appellate S. both of State’s Prosecutor’s of People. for the opinion
JUSTICE COLWELL delivered the the court: Defendant, Gary Bailey, pleaded guilty L. to one count each 14.1(a)(1) (720 predatory criminal sexual assault of a child ILCS 5/12 — (West 1996)) (720 and aggravated criminal sexual assault ILCS 5/12— (West 14(b)(1) 1994)). exchange guilty plea, for defendant’s agreed that, to charges dismiss other if would made proved, have defendant for mandatory consecutive sentences. The trial accepted plea imposed 10-year prison consecutive terms in its discretion. appeal,
On defendant entitled that he is to a remand his because counsel failed to file a certificate as required |rial (145 604(d)). 604(d) Supreme Court Rule also R. Defendant that improperly contends the trial court him in sentenced under the (730 6—3(a)(2)(ii) (West truth-in-sentencing validated law ILCS 5/3 — 1995)). Supp. responds The State that we must dismiss defendant’s guilty because he failed move to his plea withdraw challenging his sentences. Because we conclude defendant’s claims waived, are modify we defendant’s mittimus to reflect that he is eligible for day-for-day good-conduct imprisoned. alsoWe remand the cause trial for the court to admonish defendant of his to move to his vacate his withdraw sentence consequences doing so. pleaded guilty
Defendant in two unrelated cases. The basis factual child predatory sexual of a criminal assault reveals 22, 1997, on August defendant committed an of sexual penetration act eight-year-old baby-sitting. sup- niece while he was The facts that be- criminal sexual assault reveal porting aggravated acts of sexual May August tween 1995 defendant committed years was six old at the time. penetration with another niece who initially charged predatory with two counts of crim Defendant was eight-year-old a child for encounter with the inal sexual assault of additionally charged aggravated niece. He was with two counts of six-year-old niece. against criminal sexual assault for the offense agreed plead guilty Defendant for the State’s dismissal aggravated of a child and one predatory of one sexual assault charge. agreed to dismiss the so that sexual assault The State mandatory defendant would not be 8—4(a) Unified Code of Corrections pursuant to section 5 — (Code) (730 8—4(a) (West 1994)). parties ILCS The did not 5/5 — specific cap agreed to a sentence or sentence but that the according to sec could consecutive sentences its discretion (West 8—4(b) (730 8—4(b) 1994)). tion of the Code 5— 5/5 — him guilty plea The trial court defendant’s and sentenced accepted terms. The court ordered defendant to prison to consecutive truth-in- pursuant of his sentence to the serve 85% 1995)). (730 6—3(a)(2)(h) (West sentencing Supp. statute ILCS 5/3 — days court told defendant that he had 30 either to file motion The reconsider requesting withdraw his or a motion the court to his sentence. without first
Defendant filed a motion to reconsider
Moreover,
failed
moving
guilty plea.
to withdraw his
defense counsel
*3
604(d). The trial court denied
to file a certificate under Rule
reconsider,
appeal
defendant’s motion to
and this
followed.
him
improperly
that the trial court
ordered
Defendant first
the invalidated truth-in-
to serve 85% of his
sentence under
The
should be
sentencing
responds
statute.
guilty plea
withdraw his
dismissed because defendant failed to
defendant,
modify his
and we
challenging
his sentence. We
good-conduct
day-for-day
reflect that he is
for
mittimus to
imprisoned.
(1996),
supreme
the
court held
In
v.
229 special Linder, concurrence in Chief Justice Freeman described four may scenarios that awhen defendant decides occur (1) (2) forego to a “open” guilty trial: plea, “negoti (3) ated charge” plea, as to “negotiated charge as to and/or (4) sentence” plea, Linder, the “fully negotiated” plea. 186 Ill. 2d (Freeman, at C.J., 77-78 specially concurring). Here, the State dismissed certain charges so that defendant ineligible would be mandatory consecutive sentencing sentences. Because this concession induced plead defendant guilty, we conclude that was “negotiated charge as to sentence” as described Chief Justice Linder, Freeman. See (Freeman, C.J., 186 Ill. 77-78 concurring). When a defendant fails to move to withdraw such a plea, his claim that were merely may excessive be waived. People Payne, (1998); v. 294 Ill. App. 3d People v. Ca (1996). tron,
However, in People Williams,
(1997),
179 Ill. 2d
supreme
court held that a defendant need not move to withdraw
before challenging his sentence if the sentence “does not conform with
Williams,
the statute.”
Williams,
The
court has since
position, holding
reaffirmed this
“a challenge to a trial
statutory authority
court’s
impose particu
lar sentence is not waived when a defendant fails to withdraw his
added.)
guilty plea and vacate
judgment.”
(Emphasis
Wilson,
that,
The court concluded
under
circumstances,
those
a court may review a challenge
improper
to an
Wilson,
sentence.
Recently this court has also resolved the Evans issue as one of waiver. In People 3d the defendant (720 1(a) (West pleaded guilty to 15 burglary counts of ILCS 5/19 — 1996)) after agreed the State to dismiss 7 other request counts and cap. Although the defendant was 3- *4 7-year to sentences, the trial court imposed concurrent sen tences. The defendant failed to move to withdraw his to vacate the sentence. Wilson, held that Evans did this court
Relying on Williams exceeded the statu the defendant’s claim that his sentences bar Didier, trial court tory App. maximum. 306 Ill. 3d at 806. Because the sentence, a remanded the cause for resentenc imposed void this court Didier, ing. App. 306 Ill. 807. in court’s decisions Wilson Wil
Consistent Court, Didier, Fourth Appellate liams and this court’s decision in District, resolved the Evans issue as one of waiver. has also McCaskill, (1998), 3d 260 the trial court ordered App. community in for the services perform defendant to service The defendant failed to move to withdraw his public defender. challenging portion of his sentence. that the order was void because appeal, On the court concluded appointed authorizing the statute reimbursement for the services of reimbursement. The court provide type counsel did not inappropriate the waiver rule was because application held that the when it fashioned the the trial court failed to adhere to the statute McCaskill, App. order. 298 Ill. 3d at 265. reimbursement Furthermore, Economy, in District, Court, that the defendant waived Appellate Fourth held he failed to properly the issue of whether he was sentenced because Economy, 3d at 216. guilty plea. move to withdraw his jurisdic appeal the defendant’s for lack of The court did not dismiss tion. Evans, contract law
Finally, applied in that case. The court principles negotiated plea agreement to the might “negotiate the defendant was concerned that modifying dismissing or the most seri possible obtain the best deal he would have received lighter ous and obtain a sentence than attempt open guilty plea, and then gone had he or entered by reneging agree further on the get that sentence reduced even Evans, ment.” Ill. 2d at 327-28. the State to its may
The court ruled that a defendant not hold to which bargain unilaterally modifying while part of imposi Ill. 2d at agreed. he had earlier part of this sentence was never tion of an unconstitutional Therefore, challenge to the bargain. we do not view his defendant’s unilaterally modify plea agreement. attempt sentence as an McCaskill, Wilson, Economy suggest a defendant’s claim reviewing jurisdiction to review has would though even the defendant’s improper sentencing, that Evans does not by Evans. we hold otherwise be barred error may plain and we review as jurisdiction, limit this court’s *5 defendant’s claim that the trial imposed court an unconstitutional (Nickels, J., sentence. See Ill. 2d at specially 179 338 concur ring). waived,
Because defendant’s claim was not we address whether the trial imposed improper sentence. Defendant committed the aggravated 1995, criminal sexual assault andMay August between and he predatory committed the criminal sexual assault of a child on August 22, 1997. aggravated
Defendant’s sentence for criminal sexual assault must 6—3(a)(2) (730 conform with the 1994 version of section 3 — 6—3(a)(2) (West 1994)), because it inwas effect at the time he 5/3 — Pitts, committed the offense. See v. Ill. App. 295 3d 190 (1998). Next, defendant’s predatory sentence for criminal sexual as sault of a child also must conform with the 1994 version of section 6—3(a)(2)because the truth-in-sentencing law that in effect was at 3 — the time defendant committed that offense has since been invalidated. (1999). See People Reedy, Ill. 2d The trial court could not properly order this defendant to serve 85% of sentence because he committed each offense 19, 1998, before June legislature when the cured the invalidated truth- (curative in-sentencing Reedy, law. See 186 Ill. 2d legislation at 17 val idating truth-in-sentencing law applies prospectively); see also People (1999). Dean, App. Therefore, we conclude that defendant is day-for-day good-conduct credit serving while 2his prison terms. modify We also the mittimus without a remand to correct the error in defendant’s sentence. See Reedy, 186 16-17; Ill. 2d at Bashaw, see also People v. 304 Ill. App. 3d 257, 259
The trial court incorrectly advised defendant that he could file either a motion to withdraw his guilty plea or a motion to reconsider his sentence. fundamental requires fairness that we remand the cause and direct the trial court to admonish defendant of his to move to withdraw and vacate his sentence pursuant 604(d). to Rule Didier, See 3d at 809. If defendant moves to withdraw plea, the trial court may allow him to do so if it finds that is required to correct a injustice. manifest See 174 Ill. 2d at
Defendant that he is entitled to a remand filing for the of a new motion to reconsider because counsel failed to file a cer 604(d). pursuant tificate Janes, to Rule See (1994). Because we are remanding the cause for new admonishments 604(d), under Rule we need not address defendant’s contention that the cause must be remanded to allow him to file a new motion to remand, on we
reconsider. 809-10. strictly complies direct the trial court to ensure defense counsel 604(d) grants hearing. with Rule the court reasons, For these defendant’s sentence is modified to reflect that incarcerated, day-for-day good-conduct he is Winnebago County and the cause remanded to the circuit is with directions. modified;
Affirmed as cause remanded with directions.
THOMAS, J., concurs. HUTCHINSON, concurring: JUSTICE case, majority’s While I conclusion in this I have using categorization justify serious reservations about broad-brush the resolution.
A careful clearly review the record indicates that when the de- *6 plea arrangement, fendant and the State discussed this defendant was cognizant mandatory of and concerned about consecutive sentences. charges when the State dismissed certain and defendant indicated, entered the trial not pleas to the as court was Rather, required impose mandatory consecutive sentences. the trial any caps sentenced defendant without indicia of sentence or agreement By pleading guilty other between the State and defendant. case, only indicated in defendant not received a concession as this acknowledged open from the State but also that concession in court as part plea of the The trial ultimate decision to discussions. court’s bargain impose change consecutive sentences did not between State and defendant. represents I do case majority “negotiated by as to and sentence” as described Chief specially concurring opinion
Justice Freeman in his
in Linder. See
(1999)
Linder,
(Freeman, C.J.,
People
77-78
Rather,
Mast,
recently joined
majority
I
in
concurring).
do not believe
“[w]e
3d 727
wherein this court said
agreement
an
contemplated
that the decision in Evans or Linder
by
charges against
or
a defendant
the State to reduce
dismiss
remaining charges,
or
for the defendant’s
to the reduced
number
reducing
sentencing range
which
the effect of
or the
has
face,
implicit agreement
of
a defendant could
constituted
Mast,
at 732.
as to sentence.”
spoken concerning
has
acknowledge
I
that our
“fully” negoti-
and a
cap” negotiated plea
of a “sentence
implications
Linder,
plea.
76;
ated
See
2d at
Accordingly, agree majority I this case because the charges and the sentence clearly part considerations were negotiation defendant, between the State and and those facts were identified the record. ROCKFORD, SUSKI,
THE CITY OF Plaintiff-Appellee, v. HAROLD Contemner-Appellant.
Defendant and 2—98—0893, Second District Nos. — 0894 cons. 2—98 Opinion September filed Rehearing denied October 1999.