THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONNIE J. ZARKA-NEVLING, Defendant-Appellant.
No. 4-98-0867
Fourth District
November 8, 1999
308 Ill. App. 3d 516
Here, however, a sworn police officer‘s experience provides him with training that is at least equivalent to that obtained by a registered employee of a licensed private detective. Further, this experience may be obtained without working in the private detective field. Thus, an applicant may gain the necessary experience requirements by two separate means.
The private detective industry does not have the monopolistic power to control who will obtain a private detective‘s license. One can obtain the requisite work experience by working in the private detective business or via equivalent experience as a law enforcement officer. Therefore, I would uphold the constitutionality of the statute and affirm the circuit court and the Department.
John C. Piland, State‘s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Defendant, Connie J. Zarka-Nevling, pleaded guilty to a Class 4 felony of driving under the influence of alcohol (DUI) (
Defendant appeals, arguing that (1) the trial court‘s post-guilty-plea admonitions were deficient; (2) defense counsel provided ineffective assistance of counsel because he failed to file the proper post-guilty-plea motion; and (3) the court abused its discretion by imposing an excessive prison sentence of 2 1/2 years. We disagree and affirm the trial court.
I. BACKGROUND
Both parties presented evidence in support of their respective recommendations at defendant‘s sentencing hearing. The State explained that defendant had four prior convictions for DUI from three separate jurisdictions, a conviction for aggravated battery, and prior terms of court supervision and probation that had been revoked. Testimony also revealed that defendant resisted the arresting officer‘s attempts to help at the scene of her accident. Based on defendant‘s criminal history, the presentence report, and an alcohol and drug report summary, the State recommended a three-year prison term.
Defense counsel argued, however, that defendant suffered from serious mental health problems that went unaddressed by the court system until recently. Defendant also presented testimony of friends and family members who asserted that defendant had been attending
Based on the evidence presented, the trial court sentenced defendant to 2 1/2 years in prison and, in accordance with
In September 1998, defendant timely filed a motion to reconsider sentence, in which she contended that her sentence was excessive and inappropriate. In October 1998, the trial court denied that motion. Defendant never moved to withdraw her guilty plea. This appeal followed.
II. ANALYSIS
The parties’ briefs present two issues on appeal: (1) whether the trial court violated defendant‘s right to procedural due process by failing to admonish defendant that she must file a motion to withdraw her guilty plea to challenge her sentence, and (2) whether the trial court abused its discretion by sentencing defendant to 2 1/2 years in prison.
A. Defendant Need Not Withdraw Guilty Plea To Contest Only Her Sentence on Appeal When Pleading Guilty Solely in Exchange for the State‘s Dismissal of Additional Charges
1. Supreme Court Rules 604(d), 605(b), and Evans
“(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** The motion shall be heard promptly, and if allowed, the trial court shall modify the sentence or vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (Emphasis added.) 145 Ill. 2d R. 604(d) (emphasized language added April 1, 1992, eff. August 1, 1992).
The supreme court similarly amended
“(b) On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that he has a right to appeal;
(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence[,] and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
***
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to reconsider the sentence or to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” (Emphasis added.) 145 Ill. 2d R. 605(b) (emphasized language added April 1, 1992, eff. August 1, 1992).
Uncertainty still existed, however, regarding how
In Evans, two defendants entered into negotiated plea agreements in which each pleaded guilty to certain charges in exchange for the State‘s agreement to dismiss other charges and recommend a
The reasoning behind Evans, however, is of particular interest to the case at hand. Relying on contract principles, the court reasoned that defendants should not be able to unilaterally seek to reduce their agreed-upon sentences, yet still hold the State to its part of the bargain. Evans, 174 Ill. 2d at 327, 673 N.E.2d at 247-48. In addition, the Evans court agreed with the State‘s argument that ”
The supreme court defined an “open” plea, however, as a plea of “guilty without receiving any promises from the State in return.” Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. This definition unfortunately failed to acknowledge that the trial court also exercises full discretion in determining the sentence to be imposed when a defendant pleads guilty solely in exchange for the State‘s promise to dismiss additional charges. The question remained unanswered as to whether a defendant who pleads guilty solely in exchange for the State‘s promise to dismiss additional charges, who does not want to withdraw his guilty plea but only wants to challenge his sentence, still needs to file a motion to vacate his guilty plea (as opposed to filing only a motion to reconsider sentence) to preserve the sentencing issue for appeal.
2. Case Law Since Evans
Since Evans, this court has moved toward the proposition that Evans has created a bright-line rule that distinguishes between open pleas and all variations of negotiated pleas. For example, in People v. Catron, 285 Ill. App. 3d 36, 37, 674 N.E.2d 141, 142 (1996), defendant pleaded guilty to six counts of residential burglary in return for the State‘s agreement to recommend between 4 and 15 years’ imprison-
In People v. Economy, 291 Ill. App. 3d 212, 215, 683 N.E.2d 919, 922 (1997), defendant pleaded guilty in exchange for the State‘s promise to drop some charges and not seek extended-term sentencing. Once again relying on the contract principles espoused in Evans, this court reaffirmed its holding in Catron and asserted that the plain language of Evans treats all negotiated pleas the same. Economy, 291 Ill. App. 3d at 218, 683 N.E.2d at 924. Notably, this court also went to great lengths to distinguish its approach and policy rationales from those of the Second District Appellate Court, asserting that the “primary concern of the Evans court was not the logical basis for reviewing the trial court, but a concern for preserving the bargain reached between the defendant and the State.” Economy, 291 Ill. App. 3d at 217, 683 N.E.2d at 923. This court ultimately concluded, however, that the bargain is the same whether a defendant pleads guilty in exchange for a specific term or pleads to a lesser charge: to reduce the possible punishment. Economy, 291 Ill. App. 3d at 219, 683 N.E.2d at 924; see also People v. Payne, 294 Ill. App. 3d 254, 258, 689 N.E.2d 631, 633 (1998) (holding that when a defendant agrees to a potential range of sentences, defendant implicitly concedes that a sentence imposed within the range cannot be excessive and that defendant is entitled to complain only if the agreement has been broken).
Finally, in People v. Gill, 293 Ill. App. 3d 326, 327, 687 N.E.2d 1186, 1186 (1997), a defendant pleaded guilty to one count of first degree murder and one count of aggravated battery, in exchange for the State‘s dismissal of nine remaining charges of murder. This court held, without employing the contract analysis used in Evans, that “the rule announced in Evans applies to cases in which the guilty plea is negotiated, even though it is not entered in exchange for a recommendation by the State for a specific prison term, because by pleading guilty defendant concedes that a sentence imposed within the statutorily prescribed sentencing range is not excessive.” Gill, 293 Ill. App. 3d at 328, 687 N.E.2d at 1187. In short, Gill summarily concluded that Evans, Economy, and Catron applied to the facts at hand. Gill, 293 Ill. App. 3d at 328, 687 N.E.2d at 1187.
3. The Linder Decision
In People v. Linder, 186 Ill. 2d 67, 68-71, 708 N.E.2d 1169, 1170-71 (1999), the supreme court once again addressed an appellate court inconsistency regarding whether the Evans rule applied when a defendant pleads guilty in return for the State‘s promise to recommend a sentencing cap, instead of a particular term of years. Citing this court‘s decision in Catron favorably, the supreme court held that when a defendant pleads guilty in exchange for a cap on the length of sentence, the defendant cannot file a motion to reconsider sentence without first moving to withdraw his guilty plea. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73. The supreme court reasoned:
“Where the sentence imposed is within the agreed-upon cap, as the sentences here were, allowing the defendant to seek reconsideration of his sentence without also moving to withdraw his guilty plea unfairly binds the State to the terms of the plea agreement while giving the defendant the opportunity to avoid or modify those terms. That is precisely the situation the Evans rule was designed to prevent.” Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73.
However, as the specially concurring opinion of Chief Justice Freeman indicates, the supreme court‘s decision in Linder did not conclusively address all of the circumstances in which a defendant and the State can negotiate for the defendant to enter a guilty plea. Linder, 186 Ill. 2d at 75-80, 708 N.E.2d at 1173-76 (Freeman, C.J., specially concurring). The Linder majority addressed a plea scenario that Chief Justice Freeman defined as “(c) [t]he ‘negotiated as to charge and/or sentence’ plea,” whereas this case presents another plea scenario, referred to by the Chief Justice as “(b) [t]he ‘negotiated as to charge’ plea.” Linder, 186 Ill. 2d at 77, 708 N.E.2d at 1174 (Freeman, C.J., specially concurring). Chief Justice Freeman noted that the majority
We agree with Chief Justice Freeman‘s analysis with respect to this undecided area of law. The negotiated plea rule in Evans focused on returning the parties to their status quo. Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. The Evans court found that it “flies in the face of contract law principles” (Evans, 174 Ill. 2d at 327, 673 N.E.2d at 248) to allow defendants to unilaterally modify their agreements, while holding the State to its end of the bargain. Evans, 174 Ill. 2d at 327, 673 N.E.2d at 247-48. However, when a defendant pleads guilty solely in return for the State‘s promise to dismiss additional charges, the State and defendant receive exactly what they bargained for—a guilty plea in exchange for dismissing charges. There simply is no agreement as to sentence. The court alone decides the sentence. Therefore, a defendant should be able to file a motion for reconsideration of his sentence without also having to file a motion to withdraw his guilty plea.
In addition, we must acknowledge the fact that the State cannot always prove all of the charges that it files. Dismissing weaker charges is part of the traditional negotiation process used to secure a guilty plea, without incurring the additional work or expense of proving charges in a trial. It is inequitable to assume, therefore, that the State does not receive the benefit of its bargain when, in exchange for a guilty plea, the State dismisses a charge that was weak or possibly unprovable. To hold otherwise would encourage the State to overcharge because it would derive a benefit from doing so, thereby reviving the gamesmanship sought to be eliminated by Evans. See Evans, 174 Ill. 2d at 327-28, 673 N.E.2d at 248.
Although we acknowledge that the State has conceded the opportunity to prove that a defendant is guilty of the dismissed charge,
In conclusion, we note that both parties in this appeal assumed that defendant was required to withdraw her guilty plea to challenge only her sentence on appeal. As our colleague‘s dissent explains, a sound basis exists in law for this presumption. However, a number of appellate decisions on this issue since Linder demonstrate the apparent inequities in such a position and suggest that further guidance from the supreme court is necessary. See People v. Knowles, 304 Ill. App. 3d 472, 475, 710 N.E.2d 1238, 1240 (1999) (holding that, although defendant was required to withdraw his guilty plea because he pleaded guilty in return for the State‘s promise to reduce the original charge, fundamental fairness required that the case be remanded so that defendant could be more adequately admonished regarding postplea relief), appeal denied, 189 Ill. 2d 670 (2000); People v. Wyatt, 305 Ill. App. 3d 291, 293-94, 712 N.E.2d 343, 345-46 (1999) (holding that defendant who pleaded guilty to burglary and escape charges in return for State‘s promise to dismiss a theft charge and to forego prosecution of further charges was not required to withdraw his guilty plea because the plea agreement included no agreement as to the sentence), appeal denied, 189 Ill. 2d 680 (2000); People v. Didier, 306 Ill. App. 3d 803, 805-09, 715 N.E.2d 321, 323-25 (1999) (holding inapplicable the rule that defendant was required to withdraw his guilty plea because he pleaded guilty in return for the State‘s promise to recommend a sentencing cap and dismiss additional charges, where defendant argued trial court imposed sentences that violated statutory terms, but also remanding because fundamental fairness required that defendant be more adequately admonished regarding postplea relief), appeal denied, 189 Ill. 2d 575 (1999); People v. Mast, 305 Ill. App. 3d 727, 732-33, 713 N.E.2d 242, 245-46 (1999) (holding that a defendant who pleads guilty to one count of reckless homicide in exchange for the State‘s promise to dismiss the remaining indictments can challenge his sentence on appeal without also having to file a motion to withdraw his guilty plea), appeal denied, 189 Ill. 2d 671 (2000); People v. Doguet, 307 Ill. App. 3d 1, 6-7, 716 N.E.2d 818, 822 (1999) (holding that defendant‘s failure to move to withdraw plea, in connection with which State had agreed not to seek an extended-term sentence, resulted in waiver of right to challenge sentence of 20 years or less as excessive,
The Supreme Court of Illinois has stated that ” ‘plea bargaining, when properly administered, is to be encouraged.’ ” Evans, 174 Ill. 2d at 325, 673 N.E.2d at 247, quoting People v. Boyt, 109 Ill. 2d 403, 416, 488 N.E.2d 264, 271 (1985). Therefore, we should avoid a bright-line rule that places meaningless procedural obstacles in the path of an appeal. Accordingly, we hold that (1) the trial court‘s post-guilty-plea admonitions were sufficient because defendant was not required to withdraw her guilty plea to contest only her sentence on appeal, and (2) defense counsel was not ineffective because he filed the proper post-guilty-plea motion. To the extent that Gill contradicts this opinion, it is expressly overruled. We reaffirm our decisions in Catron, Economy, and Payne, however, because those cases specifically involved sentencing concessions on the part of the State, i.e., all were “negotiated as to charge and/or sentence” pleas.
B. The Trial Court Did Not Abuse Its Discretion
A trial court‘s sentencing decisions are entitled to great deference and weight and will not be overturned on appeal absent an abuse of discretion. People v. Streit, 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351, 1353 (1991). Defendant asserts that the trial court abused its discretion by giving too much weight to aggravating factors and too little weight to mitigating factors, and by failing to sentence defendant with the constitutional objective of restoring the offender to useful citizenship. We disagree.
Sentencing involves dual considerations, and a defendant‘s rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People v. Coleman, 166 Ill. 2d 247, 261, 652 N.E.2d 322, 329 (1995). In addition, when mitigating factors are presented to the court, we presume that the trial court considered them, absent some contrary evidence. Payne, 294 Ill. App. 3d at 260, 689 N.E.2d at 635. We presume, therefore, that the trial court adequately weighed defendant‘s history of mental illness and family support.
A reviewing court‘s function is not to reweigh the factors involved in sentencing. Coleman, 166 Ill. 2d at 262, 652 N.E.2d at 329. Aggravated DUI for a third or subsequent offense is a Class 4 felony and punishable by a term of imprisonment from one to three years. Defendant‘s sentence was within that range. Accordingly, we hold that the trial court did not abuse its discretion by sentencing defendant to 2 1/2 years in prison.
For the reasons stated, we affirm the trial court.
Affirmed.
COOK, J., concurs.
JUSTICE STEIGMANN, dissenting:
The question this case presents is whether a defendant must move to withdraw her guilty plea before appealing her sentence in a case like this, in which the State dismissed a pending charge against defendant in exchange for her guilty plea to another charge, but in which the parties reached no agreement regarding sentencing.
Following the supreme court‘s teachings in Evans, Clark, and Linder, and consistent with our holding in Catron, we should hold that the Evans rule does apply here—that is, that a negotiated plea agreement occurred in this case, requiring defendant to move to withdraw her guilty plea, not just move to reconsider sentence, before she can appeal her sentence. Accordingly, we should dismiss the appeal. Because the majority opinion addresses defendant‘s appeal on the merits, I respectfully dissent.
The crux of the majority‘s holding is its rejection of the idea that the State gives something up when it agrees to dismiss a charge in exchange for a defendant‘s guilty plea without an agreement regarding either (1) the sentence the trial court will impose or (2) a cap on that sentence. The supreme court has never so held, and I disagree with the majority‘s holding for the following reasons.
The majority states that it “must acknowledge the fact that the State cannot always prove all of the charges that it files.” 308 Ill. App. 3d at 524. The trouble with this assessment is that it presumes the opposite is true—that is, that the State routinely files charges it cannot prove and that any charge it agrees to dismiss is meritless. In reality, the trial court does not know—and cannot know—which charges the State could prove and which charges it could not prove if a trial were held. Although, in a given case, the State cannot prove all of the charges originally filed, surely the State has given something of benefit to the defendant when it dismisses charges that it could have proved. Yet, a rule governing trial court admonitions to be given after a defendant has pleaded guilty cannot be premised on whether the State dismissed “good” charges or questionable ones. Because neither the trial court, this court, nor even (in most cases) the defendant can know the answer to that question, the rule must apply across the board. And that rule should be one that presumes all charges are filed
Contrary to the majority‘s assertion that, under such a rule, “one must assume a defendant‘s guilt to argue that the State has actually conceded something of value” (308 Ill. App. 3d at 525), all one must assume is that the State may have conceded something of value. Under the majority‘s holding, an irrebuttable presumption exists that, in all cases, the State has conceded nothing of value—a position that is demonstrably false.
When a defendant appeals a guilty plea in violation of the Evans rule, the appellate court must dismiss that appeal. The supreme court in Linder was clear on this point:
“Where a defendant fails to comply with the motion requirements of
Rule 604(d) , as these defendants did, the appellate court must dismiss the appeal (People v. Jamison, 181 Ill. 2d 24, 28-29[, 690 N.E.2d 995, 997] (1998)), leaving the Post-Conviction Hearing Act [(725 ILCS 5/122-1 et seq. (West 1996))] as the defendant‘s only recourse (People v. Foster, 171 Ill. 2d 469, 471[, 665 N.E.2d 823, 824] (1996)).” Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.
Although defendant concedes that the rule from Evans and Linder applies to the negotiated guilty plea she entered, she nonetheless contends that the trial court‘s post-guilty-plea admonitions were deficient. Specifically, defendant claims the court was duty-bound to inform her that, in order to challenge her sentence on appeal, she needed to first move to withdraw the guilty plea and vacate the judgment, not just file a motion to reconsider. The problem with this argument is that the trial court, in its post-guilty-plea admonitions, complied fully with
Thus, I disagree with the Second District‘s opinion in Knowles, 304 Ill. App. 3d at 475, 710 N.E.2d at 1240, where that court, after concluding that the defendant should have filed a motion to withdraw his guilty plea and not just a motion to reconsider sentence before taking his appeal, wrote the following:
“Since the trial court advised defendant that he could file either a motion to withdraw his guilty plea or a motion to reconsider his sentence, fundamental fairness requires that we remand the cause with directions for the trial court to admonish defendant of his
right to file a motion to withdraw his guilty plea and the consequences thereof, pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)).”
Although the Second District‘s concerns are understandable, the remedy used in Knowles does not comport with the directions of the supreme court in Linder, particularly when the trial court‘s admonitions fully comply with the requirements of
As some have suggested,