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Docket No. 85444-Agenda 9-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
JOSE DIAZ, Appellee.

Opinion filed August 10, 2000.

JUSTICE McMORROW delivered the opinion of the court:

At issue in this appeal is whether a defendant must withdrawhis guilty plea prior to challenging his sentence where, inexchange for pleading guilty, the State dismissed charges againstdefendant, agreed that defendant's sentences would be servedconcurrently, and agreed not to seek extended-term sentences. Amajority of the appellate court applied this court's decision inPeople v. Evans, 174 Ill. 2d 320, 332 (1996), and held that becausethe State did not agree to recommend a specific sentence to thetrial court as part of the plea bargain, defendant was not requiredto file a motion to vacate his guilty plea prior to challenging hissentence. Nos. 2-96-0848, 2-96-0849, 2-96-0850 cons.(unpublished order under Supreme Court Rule 23). The appellatecourt majority proceeded to reach the merits of defendant's appeal,and, after determining that the circuit court erred in allowingcertain evidence to be introduced during defendant's sentencinghearing, vacated the circuit court's judgment and remanded thecause for further proceedings. The State appealed to this court. 177Ill. 2d R. 315. We now vacate the judgment of the appellate courtand remand this cause to the circuit court with directions.

BACKGROUND

Defendant, Jose Diaz, was charged by indictment with sevencounts of aggravated criminal sexual assault (720 ILCS5/12-14(b)(1) (West 1994)), a Class X felony, and 10 counts ofaggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West1994)), a Class 2 felony. These charges related to incidentsoccurring in Kane County between 1982 and 1995, and involvedfour minor victims in three separate cases.

On January 18, 1996, defendant pled guilty to one count ofaggravated criminal sexual assault, and three counts of aggravatedcriminal sexual abuse, with each count relating to a differentminor victim. In exchange for defendant's guilty pleas to thesefour counts, the State agreed to dismiss the remaining 13 charges.In addition, the State agreed that it would not object to anysentences imposed upon defendant to run concurrently, rather thanconsecutively. Finally, the State agreed that it would not seekextended-term sentences against defendant. However, there was noagreement between defendant and the State that a specific sentencewould be recommended to the circuit court.

During defendant's guilty plea hearing, the circuit courtinformed defendant that, in the absence of the plea agreementbetween defendant and the State, defendant was eligible to receiveconsecutive sentences because three separate cases were involved.In addition, the circuit court informed defendant that, absent theplea agreement, defendant was eligible for extended-termsentences for each conviction. In explaining the plea agreement todefendant, the circuit court summarized the sentencing aspects ofthe agreement as follows: "the attorneys are requesting andagreeing and asking me to agree not to sentence you to aconsecutive or extended term, meaning that I won't sentence youto more than 30 years." The defendant thereafter indicated that heunderstood these aspects of the plea agreement.

The State then provided the factual basis for the chargesagainst defendant. Following the statement of the factual basis forthe plea, defendant entered a plea of guilty to the four chargesenumerated above. The trial court accepted the guilty plea, findingthat the plea was voluntary and that there was a factual basis forthe plea.

Defendant's sentencing hearing was held on March 28, 1996.The sole witness called by the State in aggravation was Elginpolice officer David Berg, who testified that after the indictmentswere returned against defendant, two additional incidents of sexualabuse involving defendant were brought to Berg's attention.Officer Berg testified that he had interviewed J.B., a 15-year-oldboy, who stated that he had been sexually assaulted by defendantwhen he was 14 years old. Officer Berg further testified that theElgin police department had received a report from theDepartment of Children and Family Services (DCFS) indicatingthat defendant had had sexual contact with a nine-year-old boyidentified as L.E. Officer Berg stated that he had never spokenwith L.E., and his knowledge of these incidents was based solelyupon the report prepared by DCFS. At the conclusion of OfficerBerg's direct examination, the prosecutor stated that, pursuant tothe plea agreement between the State and defendant, no chargeswould be filed against defendant in connection with the allegedincidents involving J.B. and L.E. Instead, the State agreed to usethe allegations only in aggravation at sentencing.

In mitigation, defendant called Timothy Brown, a clinicalpsychologist and director of the Kane County Diagnostic Center.Brown testified that he met with defendant on two occasions,during which defendant revealed that, between the ages of 12 and18, he had been sexually abused by a police officer while living inPuerto Rico. Brown stated that defendant expressed a willingnessto undergo long-term sexual-offender counseling, that defendantfeared that without counseling "he could harm children," and thathe believed that defendant would benefit from such counseling.During cross-examination, Brown admitted that he was aware thatdefendant had been previously convicted in Cook County ofaggravated criminal sexual abuse and that defendant had receivedcourt-ordered sex offender treatment at that time. Brown alsoacknowledged that, despite such counseling, defendant had againengaged in similar conduct.

Also testifying on defendant's behalf was Kimberly Diaz,defendant's wife of two years. She testified that she had one childwith defendant, and that defendant adopted another one of herchildren. She stated that defendant was a "very warm person," thathe was "good hearted," and that he had provided the family withfinancial support for the first year of their marriage. However,soon after their first anniversary the couple separated and, beforehe was taken into custody, defendant was neither living with hernor supporting her. During cross-examination, she acknowledgedthat defendant had brought the minor male victims to the familyhome and that defendant committed the alleged sexual acts on thepremises. She also testified that defendant had told her that theminor male victims were related to him, specifically, that the boyswere his "nephews."

During the sentencing hearing, the circuit court also revieweda presentence report regarding defendant, prepared by the KaneCounty department of adult court services. The report revealed thatdefendant had a 1990 Cook County conviction for aggravatedcriminal sexual abuse, which was subsequently reduced andamended to a misdemeanor charge of criminal sexual abuse. Anaddendum to the presentence report contained a letter fromdefendant's GED instructor and included his GED scores.Defendant also made a statement in allocution. In his statement,defendant asked for forgiveness, acknowledged his wrongdoing,took full responsibility for his actions, and expressed remorse.

The circuit court then made the following findings. Inaggravation, the court found that defendant's prior 1990 CookCounty charge for aggravated criminal sexual abuse "carrie[d] alot of weight," because it was "similar to the charges here. " Inaddition, the circuit court found that defendant's commission ofthese crimes, despite his prior sex-offender counseling, "mean[t]a lot" in terms of aggravation, and that defendant stood in aposition of trust in respect to his minor victims. The circuit courtalso considered the deterrence of others from committing the samecrime, as well as the protection of the public. In mitigation, thecircuit court considered that by pleading guilty, defendantprevented the minors from having to testify during a trial. Thecourt also found defendant's statement in allocution and hisadmission of wrongdoing to be mitigating factors.

Taking all the above factors into consideration, the circuitcourt sentenced defendant to a 20-year term of imprisonment onthe aggravated criminal sexual assault conviction, and toconcurrent three-year terms for the three aggravated criminalsexual abuse convictions. After sentencing, the court informeddefendant that he could appeal the decision. The circuit courtjudge instructed defendant as follows: "you have to file within thiscourt within 30 days a motion to withdraw your guilty plea orreconsider the sentence."

On April 24, 1996, defense counsel filed a motion requestingthe circuit court to "reconsider and reduce [defendant's] sentencein light of his age, his minimal criminal history, the lack of injuryto the complainants, and his expression of remorse and candor atthe sentencing hearing." Attached to this motion was a certificatefiled pursuant to Supreme Court Rule 604(d), wherein defendant'strial counsel stated that he "consulted in person with [defendant]to ascertain his contentions of error in the sentence or entry of theplea of guilty and has determined that [defendant] seeks tochallenge the sentence imposed for the reasons stated in themotion, but does not desire to withdraw his plea of guilty." Ahearing on this motion was held on July 12, 1996, wherein defensecounsel again requested the court to reduce defendant's sentence.In denying defendant's motion, the circuit court found that thesentence was appropriate under the circumstances.

In an unpublished order filed pursuant to Supreme Court Rule23 (166 Ill. 2d R. 23), a majority of the appellate court vacated thejudgment of the circuit court and remanded this cause for furtherproceedings. Before the appellate court, defendant argued, for thefirst time, that he was entitled to a new sentencing hearing becausethe trial court improperly allowed certain evidence to beintroduced during the sentencing proceedings. The majorityrejected the argument advanced by the State that, pursuant to thiscourt's then-recent decision in People v. Evans, 174 Ill. 2d 320,332 (1996), defendant's appeal should have been dismissedbecause of his failure to file a motion to withdraw his guilty pleaprior to challenging his sentence. The majority concluded that,because the State did not agree to recommend a specific sentenceto the trial court in exchange for defendant's plea of guilty, Evansdid not apply. Therefore, the majority concluded, defendant wasnot obligated to file a motion to withdraw his guilty plea prior tochallenging his sentence. The majority then reached the merits ofdefendant's appeal, and determined that defendant was entitled toa new sentencing hearing as a result of evidentiary errorscommitted by the circuit court. In dissent, Justice Rathjeconcluded that Evans required defendant to move to withdraw hisguilty plea prior to appealing his sentence.

ANALYSIS

The State contends that the appellate court erroneouslyreached the merits of defendant's sentencing challenge, becausedefendant has waived issues relating to his sentencing by failingto first file with the circuit court a motion to withdraw his guiltyplea, as required pursuant to this court's decision in People v.Evans, 174 Ill. 2d 320 (1996). We agree. Under the rationale ofEvans and its progeny, defendant was required to file a motion towithdraw his plea of guilty before challenging his sentence.

There are at least four types of distinct plea scenarios whichcan arise when a defendant chooses to enter a plea of guilty. SeePeople v. Lumzy, 191 Ill. 2d 182, 185 (2000). First, a defendantmay enter an "open" or "blind" plea, wherein the defendant pleadsguilty "without receiving any promises from the State in return."Evans, 174 Ill. 2d at 332. Under these circumstances, both theState and the defendant may argue for any sentence permitted bystatute, and the trial court exercises its full discretion indetermining the sentence to be imposed. Lumzy, 191 Ill. 2d at 185.Supreme Court Rule 604(d) governs the appeal of a conviction orsentence imposed upon a defendant who enters an open guilty plea(Lumzy, 191 Ill. 2d at 185; Evans, 174 Ill. 2d at 332), and providesin pertinent part:

"No appeal from a judgment entered upon a plea ofguilty shall be taken unless the defendant, within 30 daysof the date on which sentence is imposed, files in the trialcourt a motion to reconsider the sentence, if only thesentence is being challenged, or, if the plea is beingchallenged, a motion to withdraw his plea of guilty andvacate the judgment." 145 Ill. 2d R. 604(d).

In contrast to an open guilty plea where no agreement hasbeen reached between the defendant and the prosecution, adefendant may "negotiate" a plea of guilty with the State.However, " 'not all "negotiated" pleas are the same.' "Lumzy, 191Ill. 2d at 185, quoting People v. Linder, 186 Ill. 2d 67, 77 (1999)(Freeman, C.J., specially concurring). We have previouslydiscerned three types of "negotiated" pleas.

A defendant may enter into a "fully" negotiated plea of guilty,in which he agrees to plead guilty in exchange for the State'sdismissal of charges and a specific sentencing recommendation bythe State. See Lumzy, 191 Ill. 2d at 185. In People v. Evans, 174Ill. 2d 320 (1996), we examined the provisions of Rule 604(d) asthey relate to a defendant's appeal from a judgment entered in thecircuit court upon a fully negotiated plea of guilty. In Evans, thedefendants and the State had entered into plea agreements inwhich the defendants pleaded guilty to certain charges. In return,the State agreed to dismiss other charges and to recommendspecific terms of imprisonment. After being sentenced to therecommended terms, both defendants appealed their sentenceswithout first moving to withdraw their guilty pleas and vacatingthe judgments of the circuit court. The defendants argued thatbecause they were challenging only the sentences they received,Rule 604(d) required only that they move to reconsider theirsentences.

We held in Evans that the motion-to-reconsider-sentenceclause of Rule 604(d) applies only to "open" guilty pleas, and heldthat a defendant seeking to challenge his sentence after entering aguilty plea which was negotiated with the State as to charging andsentencing must first move to withdraw that plea and vacate thejudgment against him. Evans, 174 Ill. 2d at 332. We explained inEvans that this result was dictated both by the nature of pleaagreements and the application of contract law principles. Wereasoned that to allow a defendant who had negotiated his pleaagreement with the State to challenge his sentence without firstrequiring him to move to withdraw his plea would befundamentally unfair to the State, as, under these circumstances,"the guilty plea and the sentence 'go hand in hand' as materialelements of the plea bargain." Evans, 174 Ill. 2d at 332. We notedthat under a contrary result, "[t]he accused could negotiate withthe State to obtain the best deal possible in modifying ordismissing the most serious charges and obtain a lighter sentencethan he would have received had he gone to trial or entered anopen guilty plea, and then attempt to get that sentence reducedeven further by reneging on the agreement." Evans, 174 Ill. 2d at327-28. Thus, we concluded that in order for a defendant tochallenge his sentence following the entry of a guilty plea whichwas negotiated as to charging and sentencing, "he must move towithdraw the guilty plea and vacate the judgment so that, in theevent the motion is granted, the parties are returned to the statusquo." Evans, 174 Ill. 2d at 332.

A second type of "negotiated" plea occurs where a defendantenters a plea of guilty as a result of an agreement betweendefendant and the State solely as to charging. See Lumzy, 191 Ill.2d at 187. Under such circumstances, a defendant may plead guiltyin exchange for the State's agreement to dismiss certain chargesor reduce the original charge to a lesser offense. However, the pleanegotiations do not include any agreement between the State andthe defendant with regard to sentencing.

This type of plea agreement was recently addressed by thiscourt in People v. Lumzy, 191 Ill. 2d 182 (2000). In Lumzy, theState agreed to drop a charge against the defendant in exchange forthe defendant pleading guilty to another charge. However, the pleaagreement was "utterly silent" as to the sentence that defendantwould receive. Therefore, both the State and the defendant werefree to argue for any sentence available pursuant to the Code ofCorrections, and the trial court would exercise its full discretion inimposing any sentence permitted by law. We held that "where therecord is clear that absolutely no agreement existed between theparties as to defendant's sentence," a defendant is not required towithdraw his guilty plea as a prerequisite to challenging hissentence. (Emphasis in original.) Lumzy, 191 Ill. 2d at 187. Wedetermined that, under these circumstances, allowing thedefendant to challenge his sentence without first requiring him tomove to withdraw his guilty plea did not violate the contractprinciples which animated the Evans decision. In Lumzy, unlike inEvans, "the sentence did not go 'hand in hand' with the plea,"because the "State did not make any facet of sentencing anelement of its bargain with defendant." Lumzy, 191 Ill. 2d at 189(Freeman, J., specially concurring). Thus, "[w]hen the State doesnot provide any sentencing inducement for a defendant in its pleabargain, such a 'negotiated' plea, at least for purposes of thesentencing hearing, more closely resembles an 'open' plea in thatthe trial court retains all of its discretion at sentencing." Lumzy,191 Ill. 2d at 189 (Freeman, J., specially concurring).

A third type of "negotiated" guilty plea occurs where adefendant pleads guilty in exchange for the State's agreement todismiss other pending charges and make sentencing concessions.See Lumzy, 191 Ill. 2d at 185-86. Under this circumstance, theState's ability to argue for the full range of penalties provided forin the Code of Corrections is constrained by the parameters of itsagreement with the defendant. We addressed this type of pleaagreement in People v. Linder, 186 Ill. 2d 67 (1999), where weconsidered whether Evans applied in instances where thedefendants agreed to plead guilty to certain charges in exchangefor the State's dismissal of other charges and recommendations ofa sentence "cap." We held in Linder that the contract-lawprinciples employed in Evans applied with equal force where adefendant agrees to plead guilty in exchange for a recommendedsentencing cap. Under these circumstances, "allowing thedefendant to seek reconsideration of his sentence without alsomoving to withdraw his guilty plea unfairly binds the State to theterms of the plea agreement while giving the defendant theopportunity to avoid or modify those terms. That is precisely thesituation the Evans rule was designed to prevent." Linder, 186 Ill.2d at 74.

In the matter at bar, the State contends that the plea agreementnegotiated between itself and defendant is analogous to the type ofplea agreement addressed in Linder, and, therefore, defendant wasrequired to file a motion to withdraw his plea of guilty in thecircuit court before challenging his sentence on appeal. Inresponse, defendant contends that the plea agreement related onlyto the dismissal of charges, and that "because there was noagreement as to the length of [defendant's] sentence, the sentencewas not a part of the plea bargain." According to defendant, ittherefore follows that the plea he entered is more akin to an"open" plea in which the sentence may be challenged withoutimpairing his agreement with the State. We reject defendant'sargument.

Defendant was indicted for seven counts of aggravatedcriminal sexual assault, a Class X felony (see 720 ILCS5/12-14(b)(1) (West 1994)), and 10 counts of aggravated criminalsexual abuse, a Class 2 felony (see 720 ILCS 5/12-16(c)(1) (West1994)). During the guilty plea hearing on January 18, 1996, thecircuit court advised defendant of the charges against him and thathe faced possible prison sentences of 6 to 30 years for theaggravated criminal sexual assault charges, and 3 to 7 years for theaggravated criminal sexual abuse charges. The circuit court furtheradvised defendant that, in the absence of his plea agreement withthe State, defendant was eligible to receive extended prison termsof 30 to 60 years for the aggravated criminal sexual assaultcharges, and from 7 to 14 years for the aggravated criminal sexualabuse charges. In addition, the circuit court informed defendantthat, in the absence of his plea agreement, defendant was eligibleto serve those sentences consecutively.

We find that defendant negotiated a plea agreement with theState in regard to both the charging and sentencing aspects of hiscase. Therefore, this cause is factually analogous to Evans andLinder. First, the record is clear that in exchange for defendant'splea of guilty to one count of aggravated criminal sexual assaultand three counts of aggravated criminal sexual abuse, the Stateagreed to dismiss the 13 remaining charges against defendant, 6 ofwhich were Class X felonies. Next, the record is also clear that theState not only agreed that extended-term sentences would not beimposed, but also agreed that it would not seek consecutivesentences. In sharp contrast to the plea bargain in Lumzy, wherethe agreement between the defendant and the State was "utterlysilent" as to sentencing, the plea agreement in this case entailssignificant sentencing concessions on the part of the State as partof its bargain with defendant. See Linder, 186 Ill. 2d at 79(Freeman, C.J., specially concurring). Indeed, by virtue of itsagreement with defendant, the State "limited its ability to argue atsentencing from the full panoply of penalties contained in theCode of Corrections" (Linder, 186 Ill. 2d at 79 (Freeman, C.J.,specially concurring)), as it was foreclosed from urging the circuitcourt to impose extended and/or consecutive sentences upondefendant. The result of the agreement between defendant and theState was that defendant would not receive a sentence in excess of30 years. In the absence of the plea agreement, defendant faced amaximum extended-term sentence of 60 years for the Class Xcrime of aggravated criminal sexual assault, as well as thepossibility that this sentence could have been served consecutivelywith the sentences imposed upon him for the aggravated criminalsexual abuse convictions, which carry an extended-term maximumof 14 years' imprisonment. Therefore, it is clear that the Statemade sentencing concessions in entering into the plea agreementwith defendant, and that defendant reaped a sentencing benefitfrom this plea bargain. Under the circumstances presented,defendant's guilty plea and sentence "go hand in hand" as materialelements of the plea bargain (Evans, 174 Ill. 2d at 332), and thatit "flies in the face of contract law principles" (Evans, 174 Ill. 2dat 327) to allow defendant to unilaterally modify his agreementunder these circumstances while holding the State to its end of thebargain. Therefore, we hold that defendant was required to file amotion to withdraw his plea of guilty in the circuit court, prior tochallenging his sentence on appeal.

Accordingly, the appellate court majority erred in this casewhen it determined that Evans did not apply because the State didnot recommend a specific sentence as part of its agreement withdefendant. We note, however, that the appellate court rendered itsdecision in this matter shortly after our opinion in Evans was filed,and before our subsequent decisions in Linder and Lumzy.Therefore, the appellate court did not have the benefit of theanalysis in Linder and Lumzy, wherein we considered whether therationale of Evans applied to different plea bargain scenarios.

Summarizing, we take this opportunity to reiterate that wherea plea agreement reached between a defendant and the State issilent as to sentencing, a defendant is not required to move towithdraw his guilty plea as a prerequisite to challenging hissentence. Lumzy, 191 Ill. 2d at 187. A plea bargain which is silentas to sentencing is analogous to an "open" plea, and the motion-to-reconsider-sentence clause of Rule 604(d) applies. Evans, 174 Ill.2d at 332. However, where a plea agreement between a defendantand the State concerns both the charging and sentencing aspects ofthe defendant's case, the contract principles animating the Evansdecision apply, because, under these circumstances, the sentenceis premised upon the plea. See Evans, 174 Ill. 2d at 327. Theexistence of a sentencing concession by the State activates theapplication of the Evans rule, as the sentence is thereby made apart of the bargain between the parties. Therefore, if a pleaagreement limits or forecloses the State from arguing for asentence from the full range of penalties available under law, inorder to challenge his sentence, a defendant must first move towithdraw his plea in the trial court. If the court grants the motion,both parties are then returned to the status quo as it existed priorto the acceptance of the plea.

In an attempt to preclude the application of the rationale ofEvans to the instant matter, defendant attempts to draw an analogybetween the cause at bar and our prior decisions in People v.Williams, 179 Ill. 2d 331 (1997), and People v. Wilson, 181 Ill. 2d409 (1998), wherein we held that defendants are not required towithdraw their guilty pleas prior to a sentence challenge if thesentence is "void" because it "does not conform with the statute."Williams, 179 Ill. 2d at 333; Wilson, 181 Ill. 2d at 413. We findthat both Williams and Wilson are factually inapposite to thematter at bar.

In Williams, the defendant pled guilty to retail theft after theState agreed to dismiss another charge and recommend a seven-year sentencing cap. The circuit court imposed consecutivesentences of 3 years' imprisonment, followed by 30 months'probation for the theft. Defendant appealed, arguing that the circuitcourt lacked statutory authority to impose consecutive prison andprobation terms for a single offense. We agreed, and held thatEvans does not bar a sentence challenge where a defendant claimsthat his sentence is void because it does not conform with thesentencing provisions of the Unified Code of Corrections.Williams, 179 Ill. 2d at 333. We have since reaffirmed this holdingin Wilson, stating that a "challenge to a trial court's statutoryauthority to impose a particular sentence is not waived when adefendant fails to withdraw his guilty plea and vacate thejudgment." Wilson, 181 Ill. 2d at 413. We concluded in Wilsonthat, under the specific circumstances where the circuit courtimposed sentences which violated the statutory requirementsfound in the Unified Code of Corrections, a court may review achallenge to a statutorily improper sentence without requiring thedefendant to first move to withdraw his guilty plea. We finddefendant's reliance upon Williams and Wilson to be misplaced,as no allegation has been made in this case that defendant'ssentence is statutorily void.

Finally, in his brief to this court, defendant contends that, ifwe determine under these circumstances that he was required tomove to withdraw his guilty plea prior to challenging his sentence,we should also remand this cause to the circuit court, wheredefendant may be properly admonished and, if he so chooses, filea motion to withdraw his guilty plea and vacate the circuit court'sjudgment. We agree.

The case at bar presents factual circumstances which we findto be analogous to those present in People v. Clark, 183 Ill. 2d 261(1998). In Clark, we remanded the defendant's cause to the circuitcourt to allow the defendant an opportunity to file a motion towithdraw his guilty plea and vacate judgment. We determined thatthe disposition was appropriate because the proceedings in thecircuit court "took place some two years prior to our decision inEvans so that neither defense counsel nor the circuit court had thebenefit of its analysis as to the proper post-plea motion to be filedafter a guilty plea is entered pursuant to a negotiated agreement."Clark, 183 Ill. 2d at 270. In the instant matter, defendant enteredhis guilty plea on January 18, 1996, and was sentenced on March28, 1996. The record reflects that, after defendant was sentenced,the trial court instructed defendant as follows concerning anappeal: "Now, you still have the right to appeal what we're doingand if you wish to appeal what we're doing, you have to file withinthis court within 30 days a motion to withdraw your guilty plea orreconsider the sentence. *** If I deny *** the request forreconsideration, you have 30 days after that date to file a notice ofappeal." Defense counsel filed a motion to reconsider sentence onApril 24, 1996, and the circuit court denied the motion forreconsideration on July 12, 1996. All of these events occurred wellbefore our decision in Evans. As in Clark, neither defense counselnor the circuit court had the benefit of our Evans ruling withregard to the proper post-plea proceedings. Under these specificcircumstances, fundamental fairness dictates that we remand thiscause to the circuit court with instructions to vacate its orderdenying defendant's reconsideration motion. We further instructthe circuit court to properly admonish defendant and allowdefendant the opportunity to move to withdraw his guilty plea andvacate the judgment, if he so chooses. See Clark, 183 Ill. 2d at271.

CONCLUSION

For the foregoing reasons, we vacate the judgment of theappellate court, and remand this cause to the circuit court withinstructions that it vacate its order denying defendant's motion toreconsider, that it properly admonish defendant, and that it allowdefendant the opportunity to move to withdraw his guilty plea andvacate judgment.

Appellate court judgment vacated;

cause remanded with directions.

JUSTICE RATHJE took no part in the consideration ordecision of this case.

JUSTICE BILANDIC, specially concurring:

I agree that People v. Evans, 174 Ill. 2d 320 (1996), applies tothe plea agreement in this case. I write separately, however, to setforth my continued adherence to the views expressed in mydissenting opinion in People v. Lumzy, 191 Ill. 2d 182, 190 (2000)(Bilandic, J., dissenting).

In Evans, we held that the motion-for-sentence-reconsideration provisions of Rule 604(d) (145 Ill. 2d R. 604(d))apply only to "open," as opposed to "negotiated," guilty pleas.Evans, 174 Ill. 2d at 331-32. We defined an open guilty plea asone in which a defendant pleads guilty "without receiving anypromises from the State in return." (Emphasis added.) Evans, 174Ill. 2d at 332. The defendants in Evans agreed to plead guilty and,in exchange, the State promised to dismiss other charges andrecommend a specific sentence. The trial court accepted the pleaagreements in both cases and entered judgments in accordancewith the terms of the agreements. The defendants later sought toreduce their sentences to which they agreed without first movingto vacate their guilty pleas. We held that the defendants could notdo this. Evans, 174 Ill. 2d at 333-34. To hold otherwise wouldviolate basic contract law principles by allowing the defendants tohold the State to its part of the bargain while unilaterally renegingon or modifying the terms that they had previously agreed toaccept. Evans, 174 Ill. 2d at 327-28.

In Lumzy, the defendant was charged with robbery, a Class 2felony (see 720 ILCS 5/18-1 (West 1998)), and aggravatedbattery, a Class 3 felony (see 720 ILCS 5/12-4 (West 1998)). Ata hearing, the trial court advised defendant of the charges againsthim and that he faced possible prison sentences of three to sevenyears for the robbery, and two to five years for the aggravatedbattery. The trial court further advised defendant that he couldreceive extended prison terms and therefore be sentenced to prisonterms of 14 and 10 years, respectively. The defendant and theState, however, ultimately reached a plea agreement. Thedefendant agreed to plead guilty to robbery in exchange for theState's promise to dismiss the aggravated battery charge. The trialcourt accepted the plea agreement and, following the defendant'sguilty plea to robbery, sentenced the defendant to seven years inprison. See Lumzy, 191 Ill. 2d at 192 (Bilandic, J., dissenting).

A majority of this court in Lumzy held that the principlesenunciated in Evans did not apply to the plea scenario at issue, andthat the defendant could therefore challenge the length of hissentence without first filing a motion to withdraw his guilty plea.The majority reasoned that the defendant "never agreed, impliedlyor otherwise, to accept whatever sentence the trial court mighthave imposed." Thus, according to the majority, the contractprinciples that guided this court's decision in Evans did notprevent the defendant in Lumzy from appealing only the length ofhis sentence. See Lumzy, 191 Ill. 2d at 187.

I dissented in Lumzy on the basis that the defendant's pleaagreement was negotiated within the meaning of Evans. The pleaagreement that the parties in Lumzy negotiated provided thedefendant with the valuable benefit of a less severe sentence thanhe could have received had he been convicted of both robbery andaggravated battery. Lumzy, 191 Ill. 2d at 192-93 (Bilandic, J.,dissenting). Moreover, by pleading guilty to robbery in exchangefor the State's promise to dismiss the aggravated battery charge,the defendant in effect agreed that a sentence within the statutoryrange for robbery was appropriate. The defendant was in factsentenced to seven years in prison for the robbery-a sentencewithin the statutory range. Lumzy, 191 Ill. 2d at 193 (Bilandic, J.,dissenting). Allowing the defendant to challenge the length of hissentence without also requiring him to move to withdraw hisguilty plea unfairly binds the State to its part of the plea bargain,i.e., the dismissal of the aggravated battery charge, while allowingthe defendant the opportunity to renege on or modify the terms towhich he had previously agreed. Lumzy, 191 Ill. 2d at 193(Bilandic, J., dissenting). Such a result is not proper under thiscourt's holding in Evans.

Today, the majority cites Lumzy and states that the pleaagreement in Lumzy is distinguishable from the plea agreement inthis case. Slip op. at 10. The majority reasons that, in contrast tothe plea agreement in Lumzy, where there was no agreement as tosentencing, the plea agreement in this case entails an agreementbetween the parties regarding the defendant's sentence and,therefore, Evans applies. Slip op. at 10. Although I agree that theprinciples set forth in Evans apply to the plea agreement in thiscase, I adhere to my view that these principles likewise apply tothe plea agreement in Lumzy.

With the foregoing understanding, I concur in the majority'sdecision.

JUSTICE HEIPLE, dissenting:

I agree with the majority that the facts of this case areanalogous to those in People v. Linder, 186 Ill. 2d 67 (1999).However, for the same reasons that led me to dissent in Linder, Ibelieve that defendant in this case did not have to move towithdraw his guilty plea before challenging the length of hissentence on appeal.

Defendant in this case pled guilty to one count of aggravatedcriminal sexual assault and three counts of aggravated criminalsexual abuse. In exchange for this guilty plea, the State agreed todismiss several other charges against defendant. The agreementdid not specify the sentence defendant would receive; however, theState did agree not to seek extended-term sentences againstdefendant.

After a hearing, the trial court sentenced defendant to a termof 20 years in prison on the aggravated criminal sexual assaultcharge, and concurrent three-year terms on each of the aggravatedcriminal sexual abuse charges. Defendant then filed a motion toreconsider sentence, which the trial court denied. Defendantappealed.

The majority today holds that defendant should not bepermitted to appeal the length of his sentence without first movingto withdraw his guilty plea. According to the majority, by enteringinto the plea deal with the State, defendant impliedly agreed not tochallenge any non-extended-term sentence which the trial courtmight impose. The majority relies upon the reasoning of thiscourt's opinion in People v. Linder, 186 Ill. 2d 67 (1999), in whicha majority of this court held that a defendant entering into a pleaagreement which includes a sentencing cap impliedly agrees notto challenge any sentence falling underneath that cap.

I dissented in Linder. In that case, I noted that:

"Presumably, if the State and the defendants had beenable to agree on an appropriate sentence, they would havedecided to recommend that specific sentence to the trialcourt. In the absence of such agreement, neither party wasentitled to expect the entry of any particular sentencewithin the recommended range. In other words, at thetime a plea agreement involving a sentencing cap isaccepted by the trial court, the appropriate sentence, as faras the two parties are concerned, has yet to be determined.A defendant thus does not violate any term of such anagreement by seeking reconsideration of the sentenceimposed by the trial court. This situation is no differentthan that where a defendant enters an open or blind plea,thus exposing himself to the maximum statutory sentence.In such a case, the maximum sentence is the cap. In thatsituation, the defendant may challenge the length of hissentence without moving to withdraw his plea of guilty.[Citation.]" Linder, 186 Ill. 2d at 82 (Heiple, J.,dissenting).

So too, in the instant case, defendant and the State were unable toagree as to the appropriate sentence for defendant's crimes.Accordingly, at the time the parties entered into the pleaagreement, the appropriate sentence was yet to be determined.

The parties in this case surely could have expressly agreedthat defendant would not challenge any non-extended-termsentence. Indeed, if the parties had so agreed, it would obviouslyhave been in the interest of the State to memorialize thatunderstanding. The fact that the record in this case does not reflectsuch a meeting of the minds, however, strongly indicates that theState and defendant did not reach that agreement. Under thesecircumstances, there is no reason why this court should feelcompelled to award the State concessions which it was unable towin at the bargaining table.

For the foregoing reasons, I would hold that defendant did notviolate any term of his agreement by challenging the length of thesentence imposed by the trial court. Accordingly, defendant shouldhave been permitted to appeal the length of his sentence withoutfirst moving to withdraw his guilty plea.

I therefore dissent.