THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY RANDLE, Defendant-Appellant.
NO. 4-16-0899
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
July 9, 2019
2019 IL App (4th) 160899-U
Honorable Robert L. Freitag, Judge Presiding.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). FILED July 9, 2019 Carla Bender, 4th District Appellate Court, IL.
Justices Steigmann and Turner concurred in the judgment.
ORDER
¶ 1 Held: Defendant’s appeal presents no meritorious issues for review. We grant OSAD’s motion to withdraw and affirm the trial court’s judgment.
¶ 2 Defendant, Troy Randle, pleaded guilty to unlawful possession of a controlled substance with intent to deliver (
¶ 4 I. BACKGROUND
¶ 5 In September 2015, the State charged defendant with five counts of delivery of a controlled substance (
¶ 6 On May 20, 2016, defendant pleaded guilty to one count of unlawful possession of a controlled substance with intent to deliver (
¶ 7 On July 8, 2016, the trial court sentenced defendant to 15 years in prison. The court noted that, because defendant had a prior Class X felony conviction within the last ten years, without the plea agreement in the instant case defendant could have been sentenced to an extended prison term of 6 to 60 years. See
¶ 8 On August 1, 2016, defendant pro se filed a letter that the trial court construed as a motion to reconsider his sentence. The letter stated he was “writing regarding a reconsideration in sentence” and asked the court to consider defendant’s family as well as his “regret [in] ever getting involved with drugs.”
¶ 9 On October 11, 2016, defense counsel filed a supplemental motion to reconsider the sentence. In the motion, he argued the sentence was excessive and the trial court failed to adequately consider defendant’s history, character, and rehabilitative potential.
¶ 10 On October 12, 2016, defense counsel filed an untimely motion to withdraw the guilty plea.
¶ 11 On November 17, 2016, defense counsel filed a “first amended supplemental motion to reconsider sentence.” He again argued the sentence was excessive.
¶ 12 On November 28, 2016, at the hearing on defendant’s motions, defense counsel stated as follows: “[Defendant] does not wish to pursue the motion to withdraw his guilty plea. I’d ask that Your Honor confirm that with [defendant] ***.” The court then reviewed the procedural history of the case and explained that, in order to appeal, defendant must have “filed and have heard a motion to withdraw [the] plea of guilty because this was a negotiated plea.” The court explained that, “if [this] Court denies [the] motion to reduce the sentence[,] *** [he]
¶ 13 This appeal followed. OSAD was appointed to represent defendant on appeal and filed a motion to withdraw, alleging there are no meritorious issues for review. OSAD has attached a memorandum of law in support of that motion. The record shows service on defendant. He has not filed a response.
II. ANALYSIS
¶ 15 On appeal, OSAD argues no colorable argument can be made that the trial court erred in denying his motion to reconsider his sentence as excessive. Counsel contends that, pursuant to Rule 604(d), defendant cannot challenge his sentence as excessive on appeal because he failed to first file a motion to withdraw his partially negotiated guilty plea and vacate the judgment of the court.
¶ 16 Rule 604(d) states, in pertinent part, that “[n]o appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment.”
¶ 17 In People v. Johnson, 2019 IL 122956, ¶ 57, __ N.E.3d __, our supreme court held that “a defendant who enters into a negotiated plea agreement may not challenge his sentence on the basis that the court relied on improper statutory sentencing factors.” In that circumstance, pursuant to Rule 604(d), defendant’s recourse is to seek to withdraw the plea and return the parties to the status quo instead of “abandon[ing] any argument on appeal with respect to the withdrawal of his [or her] plea.” Id. ¶ 47. The defendant cannot seek to “retain the State’s [sentencing] concession while freely challenging his sentence.” Id. ¶ 46 (citing People v. Diaz, 192 Ill. 2d 211, 735 N.E.2d 605 (2000)).
¶ 18 Here, defendant entered into a partially negotiated guilty plea where the parties agreed to a specific sentencing range and the State agreed to dismiss five remaining counts against him. On July 8, 2016, defendant was sentenced within the agreed upon sentencing range. Although defendant filed a timely motion to reconsider his sentence, he failed to timely file a motion to withdraw his guilty plea within 30 days after sentencing. See id.; see also
¶ 19 We find that defendant failed to move to withdraw his guilty plea as required under Rule 604(d) and, pursuant to our supreme court’s directive in Johnson, we may not consider on appeal the claim that his sentence was excessive. See Johnson, 2019 IL 122956, ¶ 57 (finding that “a defendant who enters into a negotiated plea agreement may not challenge his
III. CONCLUSION
¶ 21 For the reasons stated, we affirm the trial court’s judgment.
¶ 22 Affirmed.