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7 August 2000

JUSTICE GALASSO delivered the opinion of the court:

Defendant, Bobby D. Hare, entered a fully negotiated plea of guilty to residential burglary(720 ILCS 5/19--3(a) (West 1996)). The trial court accepted the plea and imposed the requestedsentence but later vacated the judgment because the agreed sentence was less than the statutoryminimum. Defendant moved for "specific performance" of the plea agreement. The trial courtdenied the motion. After a stipulated bench trial, defendant was convicted and sentenced as a ClassX offender to 20 years' imprisonment. The trial court denied defendant's motion to reconsider hissentence, and he appeals. Defendant argues that the trial court erred in refusing to order "specific performance" of the original plea agreement. We affirm.

Defendant was charged with residential burglary, a Class 1 felony (720 ILCS 5/19--3(b)(West 1996)) normally carrying a sentence of 4 to 15 years' imprisonment (see 730 ILCS 5/5--8--1(a)(4) (West 1996)). Defendant pleaded not guilty. At a bond hearing in March of 1997, the trialjudge at the time recognized that, because defendant had at least two convictions of Class 2 orgreater offenses, section 5--5--3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5--5--3(c)(8)(West 1996)) would require that he be sentenced as though he had committed a Class X offense. Eventually, defendant and the State reached a plea agreement. On July 2, 1998, defendant'scounsel told the court that defendant would "plead guilty to the offense of residential burglary in 97--CF--249. He would be sentenced to a term in the Department of Corrections of four years receivingday for day good time consistent with the statute ***." As part of the agreement, the State woulddismiss two cases involving residential burglary charges and some pending traffic charges. Inpresenting a factual basis for the plea, the State observed that defendant had four prior convictionsof residential burglary. Judge Peterson accepted defendant's plea and sentenced him to four years'imprisonment.

On July 8, 1998, Judge Peterson, on his own motion, vacated the judgment. His order statedthat defendant's guilty plea was void because, under section 5--5--3(c)(8) of the Unified Code ofCorrections, defendant's prior convictions of residential burglary required that he be sentenced as aClass X offender. Thus, as the minimum prison term for a Class X felony was six years'imprisonment, defendant's four-year sentence was illegal. See 730 ILCS 5/5--8--1(a)(3) (West1996). The order allowed defendant to choose among negotiating a new agreement that conformedto section 5--5--3(c)(8) of the Unified Code of Corrections, entering an open guilty plea, andwithdrawing his guilty plea.

Defendant moved to reconsider the order, asserting that the four-year sentence was legal. Thetrial court denied this motion. Judge Peterson recused himself and Judge Morrison was assigned tothis case. Defendant then filed his motion for "specific performance" of the plea agreement. Themotion asserted that, in agreeing to recommend a four-year sentence, the State was fully aware ofdefendant's prior convictions. Defendant's motion reasoned that, as the State had agreed torecommend four years' imprisonment, the minimum sentence for a Class 1 felony, the State was nowobligated to offer defendant a six-year prison term, the minimum Class X sentence.

At the hearing on the motion, the State argued that "specific performance" of the agreementwas impossible because Judge Peterson had declared the agreement void, placing the parties at"ground zero." The State also claimed that, when it entered into the agreement, it was not aware ofall of defendant's prior offenses. Judge Morrison observed that Judge Peterson had already decidedthat the plea agreement was unenforceable because it called for an illegal sentence. The situationmight have been different had the parties agreed to the "minimum sentence," but in fact they hadagreed to "four years." Thus, the judge reasoned, although the parties may have assumed that theirbargain was one for the applicable minimum sentence, they actually agreed to less than the statutoryminimum, and Judge Peterson had correctly invalidated the plea agreement. The court entered awritten order stating that the motion for "specific performance" was denied, Judge Peterson havingalready declared that the agreement was void.

We note that defendant's brief asserts that Judge Morrison refused to rule on the motion for"specific performance" because he mistakenly believed that Judge Peterson had already ruled on it.However, the record shows that Judge Morrison refused to grant the motion for "specificperformance" of the agreement because Judge Peterson had already ruled that the agreement itselfwas void. In any event, the correctness of the trial court's ruling, and not the correctness of itsreasoning, is the crucial issue on review. People v. Nash, 173 Ill. 2d 423, 432 (1996).

Eventually, the parties agreed to a stipulated bench trial and a sentencing cap of 25 years'imprisonment. The trial court found defendant guilty and sentenced him to 20 years' imprisonment.Defendant moved to reconsider the sentence, arguing in part that the original plea agreement entitledhim to a six-year sentence. The trial court denied the motion, and defendant timely appealed.

On appeal, defendant again argues that the trial court erred in denying his motion for"specific performance" of the plea agreement. Defendant reasons that the agreement demonstratesthat the parties intended that the State would recommend the minimum sentence, even though bothparties erroneously assumed that this minimum was four years' imprisonment rather than six years'imprisonment. Thus, defendant urges, although the trial court could not enforce an agreement foronly four years' imprisonment, it should not have allowed the State to escape its contractualobligation to recommend the minimum sentence. For the reasons that follow, we disagree.

Plea agreements are governed to some extent by principles of contract law, subject toconsiderations of constitutional due process. People v. Evans, 174 Ill. 2d 320, 326-27 (1996). Theparties could not bind the court to impose a sentence that was unauthorized by law. See People v.Wilson, 181 Ill. 2d 409, 412-13 (1998); People v. Williams, 179 Ill. 2d 331, 333 (1997). Thus, asdefendant admits, the court correctly vacated the original sentence. See People v. Wade, 116 Ill. 2d1, 5-7 (1987). However, defendant maintains that the trial court erred in invalidating the entire pleaagreement and should have held the State to its promise to recommend the minimum sentence.

We cannot accept defendant's argument that the invalid plea agreement survived in part. Webelieve that, because the plea agreement was fatally defective, it did not bind the State. In construingthe parties' oral contract, the trial court specifically found that defendant and the State did not agreeto the minimum authorized sentence, whatever that might be. Rather, the court found, the Stateagreed to recommend a sentence of four years' imprisonment. This finding is not against the weightof the evidence, as the record of the guilty plea hearing bears it out. Because adhering to the parties'contract would have violated the sentencing statute, the trial court could not hold defendant to hisnegotiated plea. However, it is equally true that the court could not require the State to performaccording to an agreement that was void or according to one it did not make.

Although no Illinois case is precisely on point, language in Wade appears to control. There,the trial court vacated a negotiated sentence of probation because it was less than the statutoryminimum. Later, the defendant was tried, convicted, and sentenced. Before the supreme court, thedefendant argued in part that the trial judge who vacated defendant's sentence should have recusedhimself at the defendant's trial. The defendant relied on Supreme Court Rule 402(d)(2) (87 Ill. 2dR. 402(d)(2)), which requires a trial judge to recuse himself if, after the defendant entered anegotiated guilty plea, the judge withdrew his concurrence in the plea agreement and the defendantthereupon withdrew the plea.

In rejecting the defendant's argument, the Wade court reasoned in part that the trial judge hadnot concurred in the terms of the plea agreement. The court explained:

"[T]he agreement was no longer effective after the probation term was vacated. [Citations.] The judge permitted Wade to plead not guilty after the probation term was vacated becauseit was clear there was no longer an agreement between the parties on the plea. With no pleaagreement before the court, Rule 402(d)(2) did not apply ***." Wade, 116 Ill. 2d at 9.

We read this language to mean that, when a trial court vacates an illegal sentence that it entered inaccordance with a plea agreement, the illegality voids the entire agreement and not merely thesentence. This is consistent with the general rule of contract law that, without proper considerationfrom both parties, a purported contract is illusory and cannot be enforced in either law or equity. Moehling v. W.E. O'Neil Construction Co., 20 Ill. 2d 255, 265 (1960). An agreement is notenforceable in part if the unenforceable aspect is an essential part of the agreed exchange.Restatement (Second) of Contracts