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24 July 2000

No.  3--98--0806

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1999

JUSTICE KOEHLER delivered the opinion of the court:

The defendant, Andrew E. Haley, was charged with armedviolence and two counts of aggravated battery with a firearm (720ILCS 5/33A--2, 12--4.2 (West 1994)). He agreed to plead guiltyto both counts of aggravated battery with a firearm in exchangefor the State's dismissal of the armed violence count andrecommendation of a maximum sentence of 24 years' imprisonment. The Peoria County circuit court accepted the defendant's plea andsentenced him to 2 concurrent prison terms of 24 years each.

Defense counsel subsequently filed a timely motion to vacatethe defendant's guilty pleas and reconsider sentence. Additionally, the defendant filed pro se post-plea motionsalleging, inter alia, ineffective assistance of trial counsel. At the hearing on the consolidated motions, the defendantwithdrew his motion to vacate his pleas and asked the court toconsider only the motions to reconsider and reduce sentence. Thecircuit court denied the motions, and the defendant appealed. Onreview, this court remanded the cause for consideration of thedefendant's claim of ineffective assistance of counsel. Peoplev. Haley, No. 4--97--0344 (3rd Dist. 1998) (unpublished orderunder Supreme Court Rule 23).

Following another hearing, the circuit court denied theineffective assistance of counsel claim, as well as thedefendant's renewed motion to withdraw his guilty pleas. Defendant appeals again, contending only that his sentence isexcessive.⁽¹⁾

On appeal we must decide whether a defendant may appeal froma sentence imposed pursuant to a plea agreement afterunsuccessfully moving to withdraw his guilty plea? We concludethat he may not; therefore, we dismiss the appeal. In People v.Evans, 174 Ill. 2d 320, 324, 673 N.E.2d 244, 246 (1996), oursupreme court considered whether a defendant who enters anegotiated guilty plea may challenge the severity of his sentencewithout first withdrawing his guilty plea and vacating judgmentpursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). In both of the cases before the court in Evans, the defendantshad moved for a reduction of sentence following the entry of afully negotiated plea of guilty. In affirming the circuitcourts' rulings denying relief, the supreme court adopted theState's position that a defendant who enters a negotiated guiltyplea should not be allowed to hold the State to its part of theplea bargain while unilaterally obtaining reconsideration of thenegotiated sentence. Evans, 174 Ill. 2d at 327, 673 N.E.2d at247-48.

The significance of the plea bargaining process was animportant aspect of the Evans court's rationale and warrantsrepeating for purposes of the instant appeal:

"Entering a guilty plea is *** accurately described as'a grave and solemn act.' [Citation.] It is not a'temporary and meaningless formality reversible at thedefendant's whim.' [Citations.] Consequently, leaveto withdraw a plea of guilty is not granted as a matterof right, but as required to correct a manifestinjustice." (Emphasis in original.) Evans, 174 Ill.2d at 326, 673 N.E.2d at 247, quoting Brady v. UnitedStates, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S.Ct. 1463, 1468 (1970), and United States v. Barker, 514F.2d 208, 221 (D.C. Cir. 1975).

The rule of Evans was subsequently extended to partiallynegotiated agreements with sentencing caps. People v. Linder,186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172-73 (1999). The twodefendants before the court in Linder, as in Evans, failed tomove to withdraw their guilty pleas before seekingreconsideration of their sentences. The Linder court held thatthe defendants' appeals should have been dismissed. Linder, 186Ill. 2d at 74, 708 N.E.2d at 1173. The court reasoned that, byagreeing to a sentencing cap, the defendant effectively agreesnot to challenge as excessive any sentence imposed within thecapped range. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172. Therefore, once the court imposes a sentence within the cappedrange, the defendant must move to withdraw his plea, if hebelieves the sentence is excessive, and vacate judgment so as toplace the parties in the status quo ante. See Evans, 174 Ill. 2dat 332, 673 N.E.2d at 250.

The defendant in this case, unlike those considered inLinder, filed a proper Rule 604(d) motion to withdraw his pleas. He argues, and the State agrees, that he has therefore satisfiedthe Evans-Linder requirement and may now proceed to challenge theseverity of his sentence on appeal. We disagree.

The position assumed by the parties would do nothing toencourage plea bargaining and is steeped in potential for abuse. Clearly, if the mere pro forma act of filing a motion to withdrawwere all it took to repudiate a plea agreement and obtain reviewof the severity of a negotiated sentence, the supreme court wouldhave accomplished very little in deterring the kind of "heads-I-win-tails-you-lose" gamesmanship decried by the court in Evans. See Evans, 174 Ill. 2d at 327-28, 673 N.E.2d at 248.

In our opinion, Evans requires that a defendant dissatisfiedwith his negotiated or capped sentence must not only (1) file amotion to withdraw his guilty plea, but (2) convince the trialcourt that the motion should be granted to correct a manifestinjustice. If his motion is unsuccessful, the defendant mayappeal from the court's denial of the motion; however, he may notchallenge the severity of his sentence. If he is successful andjudgment is vacated, the parties are returned to the status quoante, and the defendant may renegotiate with the State, or not,without demeaning the plea bargaining process.

The defendant in this case pleaded guilty to two charges inexchange for the dismissal of one charge and a prison sentencenot to exceed 24 years. The State lived up to its end of thebargain, and the court imposed a 24-year sentence. The defendantthereafter failed to convince the circuit court that withdrawinghis guilty pleas and vacating judgment was necessary to correct amanifest injustice.

On appeal, the defendant does not contest the trial court'sruling on his motion to withdraw, although he was given anopportunity to do so. Instead, he persists in challenging onlythe severity of his sentence. Pursuant to Evans and Linder, thedefendant is not entitled to a review of his sentence.

Conclusion

In sum, where the defendant filed a proper 604(d) motion towithdraw his pleas but failed to show that the granting of themotion is necessary to correct a manifest injustice, thedefendant is not entitled to a review of his negotiatedsentences.

Accordingly, we dismiss the appeal.

Appeal dismissed.

HOMER, J., concurs.

JUSTICE HOLDRIDGE, dissenting:

I respectfully dissent. I would find that the presentmentto the circuit court of a motion to withdraw defendant's guiltyplea is sufficient under People v. Evans, 174 Ill.2d 320 (1996)and People v. Linder, 186 Ill.2d 67 (1999) to allow this court toreview defendant's sentence. I see nothing in either caserequiring that the motion must have been granted by the circuitcourt. I would not dismiss the appeal and I therefore dissent.

1. ¹After defendant filed his appellant's brief, our supremecourt handed down its decision in People v. Linder, 186 Ill. 2d67, 74, 708 N.E.2d 1169, 1172-73 (1999), holding that a defendantwho enters a partially negotiated guilty plea may not challengethe severity of a capped sentence unless he first moves towithdraw his plea. This court sua sponte granted both parties anopportunity to re-brief their arguments in light of Linder.