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No. 3--99--0284

16 November 2000

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Defendant Daniel B. Waller appeals from his eight-year,extended-term sentence imposed for aggravated criminal sexualabuse (720 ILCS 5/12--16(d) (West 1998)). We remand withdirections.

The record shows that defendant committed the instantoffense while on probation for a prior conviction of criminalsexual assault (720 ILCS 5/12--13 (West 1998)). Pursuant to pre-trial negotiations, defendant pleaded guilty in exchange for theState's promise to forego filing a petition to revoke probation,and to recommend an 11-year sentencing cap. At the guilty plea proceedings, defendant was admonished that he was eligible forextended-term sentencing of up to 14 years because of his priorconviction. The State presented a factual basis, and the courtdetermined that his plea was voluntary.

Following a sentencing hearing, the court imposed an eight-year, extended-term sentence of imprisonment. The court thenadmonished defendant that if he wished to appeal, he would firsthave to file a written motion to reconsider sentence or towithdraw his guilty plea. On February 8, 1998, defendant movedfor reconsideration of his sentence. He also filed an affidavitof defense counsel stating that counsel had consulted withdefendant, examined the court file and report of proceedings andmade necessary amendments to defendant's post-plea motion. Thetrial court heard and denied defendant's motion, and he appeals.

Defendant argues that: (1) he was not required to withdrawhis guilty plea in order to appeal from the court's order denyinghis motion to reconsider sentence; (2) the court abused itssentencing discretion; and (3) in the alternative, the causeshould be remanded to allow defendant to withdraw his guiltyplea.

The issues before us have been resolved by several recentdecisions of the Illinois Supreme Court. In People v. Evans, 174Ill. 2d 320, 673 N.E.2d 244 (1996), the court ruled that adefendant pleading guilty pursuant to a negotiated guilty pleaagreement must file a motion to withdraw his plea and vacate hisconviction pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R.604(d)) before he may appeal from his sentence. A motion toreconsider sentence alone is insufficient. Evans, 174 Ill. 2d at332, 673 N.E.2d at 250. This rule was extended to partiallynegotiated guilty pleas involving a sentencing cap agreement inPeople v. Linder, 186 Ill. 2d 67, 708 N.E.2d 1169 (1999).

Although the defendants in Evans and Linder were not allowedan opportunity to return to the circuit court to file therequired motion (see Evans, 174 Ill. 2d at 334, 673 N.E.2d at251; Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173), the courtsubsequently granted such relief in People v. Diaz, 192 Ill. 2d211, 735 N.E.2d 605 (2000).

In Diaz, the defendant entered into a partially negotiatedguilty plea and moved to reconsider his sentence in 1996, beforeEvans was decided. The court there noted that the trial courthad admonished defendant pursuant to Supreme Court Rule 605(b)(145 Ill. 2d R. 605(b)) that he had to file a motion to withdrawhis guilty plea or reconsider sentence before he could appealfrom his sentence. The admonishment was misleading since amotion to reconsider sentence was insufficient to perfect anappeal from a negotiated guilty plea after Evans. Therefore,fundamental fairness dictated that the court remand the cause tothe circuit court with instructions to (1) vacate the orderdenying the defendant's motion, (2) properly admonish thedefendant, and (3) allow him to file a motion to withdraw andvacate judgment, if he so chose. Diaz, 192 Ill. 2d at 227-28,735 N.E.2d at 613.

Clearly, defendant's partially negotiated plea in this casefalls within the rule of Linder. Pursuant to Linder, this appealmay not proceed because defendant has not moved to withdraw hisguilty plea and vacate judgment. However, as in Diaz, defendantreceived Rule 605(b) admonishments concerning his right to appealwhich were rendered legally inaccurate by Evans and Linder.

On analogous facts, this court has remanded to allow thedefendant an opportunity to file the required Rule 604(d) motion. People v. Didier, 306 Ill. App. 3d 803, 715 N.E.2d 321 (1999);accord People v. Foster, 308 Ill. App. 3d 286, 719 N.E.2d 1163(1999). Pursuant to Diaz, a defendant under these circumstancesis entitled to proper admonishments of his appeal rights and anopportunity to withdraw his guilty plea and vacate judgment if hechooses to do so. Supreme Court Rule 605 has been amended andcurrently provides accurate admonishments of a defendant's appealrights following a negotiated plea of guilty. R. 605(c), M.R.3140 (Nov. 1, 2000).

Therefore, we remand the cause to the circuit court withdirections to vacate judgment denying defendant's motion toreconsider sentence, to properly admonish defendant pursuant toSupreme Court Rule 605(c) and to allow him to file a new post-plea motion if he so chooses.

Cause remanded with directions.

HOMER and KOEHLER, J.J., concur.