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filed:  January 23, 2002

No. 3--00--0483
(Consolidated with No. 3--00--0484)

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

The defendant was charged with unlawful possession of acontrolled substance and domestic battery (720 ILCS 5/12--3.2(a)(2) (West 1998)) based on events alleged to have occurredon February 6, 1999. He was arraigned via closed circuit television on February 24, 1999, and released on bond on March 18,1999. While out on bond, he was charged with unlawful possessionof a controlled substance as the result of an incident on September 2, 1999. He was arraigned on this offense via closed circuittelevision on September 17, 1999.

On January 18, 2000, the attorneys informed the court that aplea agreement had been reached. The defendant agreed to pleadguilty to both charges of unlawful possession of a controlledsubstance. In return, the State agreed to dismiss the domesticbattery charge. The State and the defendant also agreed to sentences of two years' imprisonment on each charge, with thesentences to be served consecutively.

Defense counsel then told the court that they had alsoagreed that the defendant's sentencing would be delayed one week,so that he could get his affairs in order. The court acknowledged the agreement. He then told the defendant and counsel thathe would leave his "options open" as to punishment in case thedefendant did not appear for his court date or he "picked up"another case while out on bond. He asked both counsel if thatcreated "a problem for anyone." Both counsel stated that it didnot. The judge admonished the defendant in accordance withSupreme Court Rule 402 (177 Ill. 2d R. 402) and found the defendant guilty. After accepting the plea, the judge told thedefendant, "you are looking at two plus two on each of these ifyou can control your behavior and come back here in a week. You're looking at as much as six plus six on 'em if you can't. Okay?" The defendant acknowledged the judge's statement.

On January 26, 2000, the defendant returned to court. Hisattorney asked for an additional seven-day continuance, becausethe defendant was scheduled for knee surgery. The judge grantedthe continuance and told the defendant, "you pick up anothercase, you got problems." The next hearing was set for 9:30 a.m.on February 7, 2000.

The defendant did not appear at the next hearing. Defensecounsel stated he did not know why his client had failed toappear, but he felt confident he could get him into court. Thematter was continued to the following morning at 9:30 a.m. Thejudge told defense counsel that if his client was not in court,he would issue a bench warrant.

The next morning the defendant did not appear. Defensecounsel stated that the defendant had come to the courthouse theprevious afternoon. The defendant was told to contact hisattorney, but counsel had not heard from the defendant. Thejudge issued a bench warrant. The defendant arrived in thejudge's courtroom later that afternoon, at which time the judgehad him arrested.

At the sentencing hearing on March 16, 2000, the prosecutorargued that the defendant should be sentenced to an extended termon each charge. Defense counsel, while admitting that his clienthad "technically" violated the plea agreement, argued that thedefendant should still get the benefit of his plea bargainbecause he had come back to the courthouse, even though not in atimely fashion. He argued that the defendant should receive atwo-year sentence on each charge.

The judge sentenced the defendant to three years' imprisonment on the first charge and four years' imprisonment on thesecond charge. The sentences were ordered to run consecutivelybecause the defendant was out on bond for the first offense whenhe committed the second. After his posttrial motion to withdrawhis guilty plea was denied, the defendant appealed.

The defendant asserts that his arraignment via closedcircuit television violated his due process right to be presentduring trial. He acknowledges that he is bringing this error tothe court's attention for the first time on appeal. He urgesthis court to apply a plain error analysis.

In People v. Lindsey, 309 Ill. App. 3d 1031, 723 N.E.2d 841(2000) appeal allowed, 189 Ill. 2d 670 (2000), the defendant didnot object to his arraignment via closed circuit television, butdid raise the issue on appeal. This court held that sinceLindsey did not show that his appearance via closed circuittelevision prejudiced his case or violated his due processrights, there was no plain error. The defendant in this case issimilarly situated to the defendant in Lindsey. Therefore, wedecline to apply a plain error analysis and hold that the closedcircuit arraignment proceedings were proper.

The defendant also argues that he should be allowed towithdraw his guilty plea because the trial judge withdrew hisconditional concurrence in the plea without allowing the defendant the opportunity to withdraw the plea.

Plea agreements are governed to some extent by contract lawprinciples. People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244(1996). Once counsel informs the judge of the provisions of aplea agreement, the judge may conditionally concur in the agreement by informing the parties what actions of the defendant herequires before he will abide by the agreement. 177 Ill. 2d R.402(d)(2). In some instances, the conditions stated by the judgebecome a part of the pretrial agreement. See People v. Hayes,159 Ill. App. 3d 1048, 513 N.E.2d 68 (1987). If, at the time ofsentencing, the judge chooses to withdraw his conditional concurrence, he must advise the defendant of this and allow the defendant the opportunity to withdraw his guilty plea. People v.Rossman, 309 Ill. App. 3d 662, 722 N.E.2d 1216 (2000); 177 Ill.2d R. 402(d)(2). If the defendant chooses to withdraw his guiltyplea, the case is then transferred to a new judge. 177 Ill. 2dR. 402(d)(2).

The State argues that Hayes is dispositive of the case atbar. In Hayes, the defendant pled guilty pursuant to a negotiated plea. During the course of the guilty plea hearing, theState asked the judge to admonish the defendant that if he failedto appear at his sentencing hearing he was eligible for a moresevere sentence. Defense counsel told the court that he hadexplained to the defendant the repercussions on his sentence ifthe defendant failed to appear at sentencing. The judge admonished the defendant that if he failed to appear at the sentencinghearing he could receive a longer sentence. The appellate courtheld that the imposition of a more severe sentence if the defendant failed to appear was an integral part of the plea agreement. The court further held that this condition of the plea had beenclearly communicated to and understood by the defendant at thetime of the entry of the plea. Hayes, 159 Ill. App. 3d 1048, 513N.E.2d 68. Therefore, the court affirmed the imposition of alonger sentence than the parties had originally agreed to.

Here, there was no such clear communication of a change tothe plea agreement. Defense counsel informed the trial judgethat the parties had agreed to a seven-day delay in sentencing. The judge said that was acceptable, but he would defer a sentencing decision to keep his "options open" in case the defendant didnot appear or was charged with a new crime. The judge then askedboth counsel if that caused anyone any "problems," to which bothcounsel responded it did not. After his guilty plea was accepted, the judge told the defendant if he did not appear atsentencing he could be sentenced to six years' imprisonment oneach charge. The defendant acknowledged the judge's statement. None of these statements show unequivocally that the defendantwas advised that appearing at the sentencing hearing was part ofhis plea agreement. Additionally, the judge stated that hewanted to keep his "options open" in sentencing if the defendantdid not appear. This statement is further evidence that theoption was the judge's and was not part of the plea agreement. Thus, Hayes does not apply.

When the defendant did not appear at his sentencing hearing,the judge exercised his authority to withdraw his concurrence inthe plea agreement. However, before doing so, he was required tonotify the defendant that he was going to withdraw his concurrence and allow the defendant an opportunity to decide whether topersist in or withdraw his guilty plea. Since the judge did notallow the defendant this opportunity, the defendant is entitledto a new hearing in compliance with Supreme Court Rule 402(d)(3). 177 Ill. 2d R. 402(d)(3).

As our decision on the previous issue is dispositive, weneed not address the defendant's contention that the prosecutorbreached the plea agreement by arguing for a greater sentencethan the one agreed to.

However, we will address the defendant's Apprendi complaintbecause it may apply should he be sentenced on remand. Thedefendant was sentenced to consecutive terms of imprisonmentbased on the fact that one of his charged offenses was committedwhile he was out on bond on the other. 730 ILCS 5/5--8--4(h)(West 1998). The defendant asserts that this consecutive sentencing provision of the Unified Code of Corrections violates theSupreme Court holding in Apprendi.

Under Apprendi, any factor, other than a prior conviction,must be proven beyond a reasonable doubt before a defendant canbe sentenced to a term greater than the statutory maximum. Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. Thedefendant argues that the findings on which the circuit courtbased its imposition of consecutive sentences were not provenbeyond a reasonable doubt, and therefore his consecutive sentences violate Apprendi. However, the Illinois Supreme Courtheld in People v. Carney, 196 Ill. 2d 518, 752 N.E.2d 1137 (2001)that the consecutive sentencing statute does not implicateApprendi because it applies to how a sentence is served, not thelength of a defendant's sentence for a particular crime. Therefore, we hold that the defendant's consecutive sentences do notviolate Apprendi.

For the foregoing reasons, the judgment of the circuit courtof Will County is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

LYTTON, P.J., and HOMER, J., concur.