*1 ment, Myron apartment, told him to and that was addition, joint to smoke a and listen to some K.A. there music. Myron’s apart- at testified that he relative lived ment. tending only apartment control of the factors show K.A.’s in light
are too weak when viewed of the overall circumstances. For though example, present police K.A. was when the executed the (see (defendant Valdez, pres search warrant 3d at 981 during warrant)), presence ent execution of alone is insuf search (see prove Minkin, premises ficient to control over 2d at 551). addition, $140, possession K.A. was in but his mother testi gave fied him money. Finally, although K.A. fled from scene, flight may only along be considered with other factors tending guilt; flight by to establish itself is not sufficient establish guilt. People Campbell, 146 Ill. 2d sum, the record shows that proved that K.A. drug
was in a police house where the drugs and that apartment. K.A. fled the overall circumstances of this case, the State failed prove beyond a reasonable doubt that K.A. apartment. Therefore, exercised control over the the State failed to prove possession K.A.’s of the beyond narcotics a reasonable doubt. ruling
As a result of our we need not consider the other conten- tions raised K.A. The Winnebago circuit court of County is reversed.
Reversed. RATHJE, JJ.,
THOMAS and concur. ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE OF v. LEROY RICE, Defendant-Appellant. through
Second District Nos. 2—95—0307 2—95—0309 cons. Opinion August 13, filed *2 HUTCHINSON, J., dissenting. Carmody, Appellate of State Joseph and Patrick M. both
G. Weller Office, Elgin, appellant. of for Defender’s (Martin Attorney, Waukegan Waller, P. Moltz and of Michael J. State’s Office, Bernhard, Attorneys Appellate Prosecutor’s
David A. both State’s counsel), People. for the REMAND SUPPLEMENTAL OPINION ON supplemental opinion on JUSTICE RATHJE delivered remand: 16, 1996, opinion court filed its in the above- September
On petition rehearing for was denied entitled case. Defendant’s initially that de opinion, court on October said that, exchange plea negotiation to a cap six-year terms on the defendant’s guilty, with the sentences to run pleaded counts which arguments why concurrently. made three this cause Defendant hearing on his motion to reconsider be remanded for new that counsel’s fail initially Defendant asserted defense his sentence. prior hearing on the sentencing transcript ure ground for remand. We reconsider his sentence was motion to citing argument, opinion this court’s rejected defendant’s Heinz, argued that the Ill. Defendant next transcript sentenc provide him with trial court’s failure to effectively with ability to communicate ing hearing denied him the and their factual bases. nature of claims counsel supreme pertinent argument, finding that the disagreed with this sentencing hear- transcript provide rules did ing required hearing for a use at a is defendant’s reconsider the sentence.
Finally, Supreme defendant contended Court (145 604(d)), certify 2d R. counsel must that he or defense postsentencing has made amendments to the motion that are necessary adequately. claims Defendant any defense counsel’s certificate omitted reference "necessary portion amendment” of the rule. We noted that the evi unnecessary dence indicated that defense counsel it make any amendments to the motion to reconsider defendant’s sentence. circumstance, such defense counsel’s failure to make amendments the motion to reconsider the sentence was consequence. Accordingly, we affirmed the trial court’s petitioned supreme Defendant our appeal. court for leave to appeal. court denied defendant leave it entered a supervisory which stated:
"In the exercise supervisory authority, of this Court’s this cause is Court, District, Appellate remanded to the consideration in Second for further (September 19, 1996), v. Evans Nos. & 80158 80159cons.”
In People the supreme court ad Supreme dressed issue of how Court Rule applies to ated Both defendants in language Evans asserted that plain *3 604(d) of Rule authorized them to file a motion for sentence reconsideration, negotiated despite pleas. their The State the provisions motion-to-reconsider-sentence applied of Rule open guilty pleas, negotiated guilty pleas. not to court Wilk, The Evans reviewed the in People decision v. 124 Ill. (1988), 2d 93 previous had broken with allowing de challenge only his by filing sentence reconsider. subsequently The Evans court wrote: agree
"We
with
position.
the State’s
Our review Wilk and
Wallace,
[People
(1991),]
pleas
v.
12 Wilk, however, reasoning by does not utilized court agreements. plea the negotiated guilty with
apply circumstances, guilty plea and the these the plea elements of the hand in hand’ material challenge his bargain. permit a sentence without To defendant to moving guilty plea in these instances would viti to withdraw with ate the he entered into that, following judgment on a entry hold therefore challenge only guilty ated sentence, wants if defendant guilty plea he must move to withdraw vacate the granted, parties judgment so in the event the motion is quo. Consequently, [Citations.] are returned to the status provisions apply only motion-to-reconsider-sentence to added.)Evans, openguilty pleas.” (Emphasis 174 Ill. 2d supervisory we read- Pursuant court’s now parties negotiated appeal at bar in of Evans. dress move to withdraw his guilty plea, and defendant failed to judgment. appeal events of the plea and to vacate the Evans, long publication which clarified at bar occurred before the challenges requirements related to procedural the law fairness, imposed following negotiated pleas. In sentences in Evans. permitted the actions set out Accordingly, trial and remand reverse the court’s chooses, defendant, if he so permit this cause to the court to withdraw his and to vacate move to and remanded. Reversed
GEIGER, P.J., concurs. HUTCHINSON, dissenting: JUSTICE majority’s from resolution of respectfully must dissent case. (1997), 3d App. v. 288 Ill. 308 previously People
As (1996), did v. 2d People this court concluded negotiated plea presented before specifically type address analyzed This also presented Wilson, to the same conclu We came in each of those cases.
sion *4 agreed case, which the State and the defendant the Evans to, dismissed, charges plead would charges defendant would be a On the years to sentence. specific a number of recommend and Smith, some of hand, agreed to dismiss and State other Wilson charges, agreed plead guilty and the defendants remain- ing charges. Smith, Wilson and the State did not to recom- years a specific mend as a number of court. Instead, agreed recommend sentences not to exceed a years. agreed certain number the State to dismiss charges, agreed charges, plead the defendant to other and sentencing recommendation was made
According case, agreed to the facts the State to dismiss charges, plead some of and the defendant to the Furthermore, remaining charges. not State did recommend specific court; sentence to the trial to recommend no years Therefore, remaining more than six those counts. believe this case negotiated plea should not be considered analogous plea bargained Evans. as in and Wilson Smith, the obligation trial court had the findings concerning to make aggravation mitigation and and then determine an appropriate course, years. exceed six Of the trial court also option retained reject entirety. in its The Evans court identified open pleas as the only two types pleas presented case, ato trial Smith case, case, Johnson clearly Wilson case identify other Smith, of negotiated dispositions. this court observed each permitting "[i]n a defendant’s sentence following requiring a motion to withdraw the the common denominator of law seems to when sentence, trial court exercises in imposing discretion should be allowed to that sentence to determine whether court abused its discretion.” Ill. App. foregoing,
Based upon the I believe that defendant here should be allowed properly presented motion to have his sentence reconsidered.