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Docket No. 95043-September 2003-Agenda 14.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MELVIN HENDERSON, Appellee.

Opinion filed March 18, 2004.

JUSTICE RARICK delivered the opinion of the court:

In this appeal, we are asked to address an issue of first impression,ostensibly ripe for review. The issue, as framed by the parties, is whetherthe circuit court abused its discretion in refusing to consider the merits ofa "negotiated plea agreement" the parties purportedly presented after theexpiration of the court's plea cutoff deadline. However, having carefullyreviewed the record on appeal, we find nothing therein which wouldindicate that the parties before the circuit court had actually reached anagreement or that they ever attempted to present such an agreement to thecircuit court. Therefore, whether or not we believe that a court abuses, orabdicates, its discretion when it refuses to consider a negotiated pleaagreement presented by the parties beyond a deadline set by the court, wehave no occasion in this case to address the issue. Consequently, withoutreaching the issue the parties would have us address, we reverse thejudgment of the appellate court (334 Ill. App. 3d 290) and affirm that ofthe circuit court of Rock Island County.

BACKGROUND

On November 26, 1999, defendant, Melvin Henderson, wascharged by information with one count of unlawful possession of acontrolled substance with the intent to deliver, in violation of section401(c)(2) of the Illinois Controlled Substances Act (720 ILCS570/401(c)(2) (West 2000)). Specifically, the information stated that"defendant knowingly possessed, with the intent to deliver to another, oneor more grams but less than fifteen grams of a substance containingcocaine, a controlled substance." A violation of section 401(c)(2) is aClass 1 felony.

On January 18, 2000, defendant appeared in court and pled notguilty to this charge. In a written order entered on January 18, the circuitcourt set March 3, 2000, as the date for a pretrial conference, and March20, 2000, as the date for defendant's trial. In this order, the court also setMarch 16, 2000, as the "final day for presenting a negotiated plea."

During the March 3 pretrial conference, defendant informed the courtthat he wished to discharge his attorney and retain new defense counsel.Defendant's new counsel appeared on defendant's behalf during thishearing. He reported that he had just been retained by defendant and hadreviewed some of the discovery in the case. Defense counsel informed thecourt that, during his examination of the case file, he had come across an"offer letter" from the prosecutor, wherein the terms of a negotiated pleaof guilty were set forth. Defense counsel stated he was "not prepared toaccept the offer" because he was still investigating the case. The circuitcourt then ruled that it would retain March 16 as the "final" plea date, butwould entertain a motion for continuance if defense counsel was not readyfor trial. On March 7, 2000, defendant's original attorney formallywithdrew from this case, and defendant's new counsel was substituted.

The parties returned to court on March 16, 2000. The record reflectsthat the circuit court stated, "this matter comes on today for a plea." Inopen court, defendant stated that he did not wish to enter a plea anddemanded a trial by jury. During this hearing, defense counsel alsopresented a motion for continuance, to which the State had no objection.The circuit court granted the continuance, and set defendant's trial date forApril 17, 2000. The circuit court also set March 31, 2000, for a pretrialhearing, and April 13, 2000, as the "final" date for consideration of anegotiated plea.

On April 13, the case was called for pretrial hearing; however,defendant failed to appear. Defense counsel informed the court that theparties had engaged in further plea negotiations and the prosecutor hadmade a "viable" offer which defense counsel wanted to discuss withdefendant. The court adjourned the hearing until the afternoon.

The hearing resumed in the afternoon with defendant present.Defendant informed the court that he was dissatisfied with his attorney andwanted to replace him with yet another attorney. Despite defendant'scontinuing suggestions that he might retain a different attorney, heultimately proceeded through trial and sentencing without a change ofcounsel.

During the pretrial hearing, defense counsel informed the court thathe had been told by the prosecutor that the State intended to file anamended information, reducing the charge against defendant from a Class1 felony to a Class 4 felony. Counsel further informed the court thatnegotiations were ongoing between the parties:

"DEFENSE COUNSEL: Mr. Cooley [the prosecutor] andI have done some talking, and we're working on negotiations,also. The State at this time was going to file an amended chargeon this particular matter from a Class 1 to a Class 4.

* * *

As far as the negotiations go, Mr. Cooley and I havediscussed relationship to the Class 4, be allowed a-Mr.Henderson was mentioning was of the negotiation, that Mr.Henderson has not accepted such negotiation. Gave me acounteroffer I which [sic] presented to Mr. Cooley. Mr.Cooley's offer that we talked about this morning-

THE COURT: Mr. Henderson's not accepting that offer?

DEFENSE COUNSEL: As of-Before we walked in thecourtroom, no."

The court then advised defendant that he had until the next day tothink about the State's offer. Apparently under the impression that thereduction of the charge was part of the negotiations, the court tolddefendant, "They're offering to reduce this to a Class 4 felony instead ofa Class 1." When defendant inquired whether he had to plead guilty inorder for the State to reduce the charge, the prosecutor intervened andclarified the State's position: "I think regardless of what happens, himgetting another lawyer, whether he pleads or not, State intends [to] file thismotion to amend ***." When defendant stated that he had thought thecharge reduction was part of a negotiated plea, defense counsel stated,"No, it wasn't." The court reset the matter for the following day, April 14.

The next day, the parties again appeared and the State was grantedleave to formally amend the charge against defendant to simplepossession. The court advised defendant of the charge and the possiblepenalties upon conviction. The court then asked if there was a negotiatedplea. Defense counsel responded, "There is an offer on the table, but it isnot-has not been accepted by Mr. Henderson." The court inquired as tothe nature of the offer. The prosecutor in attendance advised the court,"Mr. Cooley offered a cap of four or two years DOC." The court askeddefendant, "And you don't want to consider that?" Defendant responded,"No sir. No sir. Huh-uh." Defense counsel explained, "The counterofferwas made, but Mr. Cooley did not accept that." The court then stated,"Well, it's set for jury trial Monday. Will the State be ready next week?"The prosecutor responded affirmatively.

On April 19, defendant's jury trial commenced. Voir dire wasconducted and a jury was selected. Prior to the delivery of openingstatements, defendant expressed confusion with respect to his eligibility foran extended-term sentence and asked the circuit judge in open court (butoutside the presence of the jury) to explain why he could be sentenced upto six years. Immediately thereafter, the following colloquy occurred:

"THE COURT: Well, you know, probably wasting our timetalking because I'm not going to accept any negotiated pleas. So,even if you wanted to plead guilty I'm not going to accept it,because we picked the jury, and you had until last Friday toenter a negotiated plea. So, if you plead guilty you have to do it,and its an open plea, and I can give you up to six years. I'm notsaying I'm going to do it. But, you have a right to plead guilty,but I'm not going to negotiate it. It's not going to be for two orthree years. All right.

DEFENSE COUNSEL: You understand what's the Judge'stelling you?

THE DEFENDANT: You want me to take an open plea ofsix. If you do decide to plead it have to be an open plea of six.

THE COURT: Right, and it's an open plea.

THE PROSECUTOR: Not to six years.

THE COURT: Then I could give you, if you plead guilty rightnow I would order a pre-sentence report *** [a]nd then wewould set it for sentencing.

* * *

THE DEFENDANT: And that's the only way you would bewilling to accept anything if I take an open? Nothing other thanthat?

THE COURT: No. It's too late. That's the policy I have.

THE DEFENDANT: I know you said Friday. I thought whenyou said Friday, not trying to change the word around, Imisunderstood. I understand you said Friday, that [the plea offer]was two years I think Friday.

THE COURT: I don't know what it was.

DEFENSE COUNSEL: That was Thursday.

PROSECUTOR: I'm sure that was the offer on Thursday. Idon't recall what the offer was on Friday.

DEFENSE COUNSEL: Friday was the same thing.

* * *

THE COURT: You talk to [defense counsel]. If you want toplead open with no cap then I'll take it. If you don't then we'regoing to trial.

DEFENDANT: I don't want a trial. I don't because I'malready guilty. I can see already. I'm trying to get around a trial.I'll be willing to cop out, but I'm saying, I mean I don't want atrial. I do not want a trial. I do not want a trial I know I'm goingto lose.

DEFENSE COUNSEL: Then you have to plead guilty to theopen charge, and then be separately sentenced where you facepotential up to six years. Okay? That's the whole thing right now.

THE COURT: You talk to [defense counsel]. We'll be backin 10 minutes.

DEFENDANT: You won't take two years right now?

DEFENSE COUNSEL: Judge will not take it."

After a brief recess, defense counsel informed the court that he hadagain explained defendant's options to him. Defendant then commencedan extended dialogue with the court, alternately asserting that he had beenconfused about his situation, while trying to bargain with the court as towhat the court might accept as an appropriate sentence if defendant wereto plead guilty. During this dialogue, the prosecutor was silent. The Statedid not offer to negotiate further, it did not ask the court for theopportunity to do so or protest the deprivation of such an opportunity, andit did not indicate that an offer was pending. Indeed, the State'sindifference is evident from the prosecutor's prior statement: "I don't recallwhat the offer was on Friday." While the prosecutor stood by and saidnothing, defendant tried to negotiate with the trial judge, as the followingexcerpts amply demonstrate:

"THE COURT: And, did you tell [defense counsel] youwanted to take two-

THE DEFENDANT: I said I wanted to take year and a half.

THE COURT: That's not two years.

THE DEFENDANT: I'm saying he was supposed to askthem, and they never said nothing to me about nothing else.

DEFENSE COUNSEL: That was an offer turned down byMr. Cooley Thursday.

THE DEFENDANT: I seen him Tuesday. I asked him to geta year and a day. That's what I talked to him about Tuesday,and I asked him if he would ask the State's Attorney if they giveme a year and a day, and I never heard nothing else after that,because I know what they offered me already cap of four and ahalf, and they offered me two. I believe, Your Honor-

THE COURT: It's too late right now. I mean the jury is sittingthere and I want to get started with the case.

THE DEFENDANT: I'm willing. I'll take two today.

THE COURT: No. That's not agreeable. It's too late to taketwo.

* * *

THE DEFENDANT: Take a cap of three.

THE COURT: No.

THE DEFENDANT: You won't take two years?

THE COURT: We're done negotiating. I don't know howmany times I can tell you.

THE DEFENDANT: You won't give me time to think? It'sjust like no offer. I know it's a cap of six now. I'm saying thetwo they offered me it wasn't even an offer then.

DEFENSE COUNSEL: You rejected it by giving a counteroffer.

THE DEFENDANT: I never said I didn't want the two. Youheard me I didn't want to accept, nothing.* * *

THE DEFENDANT: I said I'm willing to cop out if you'regoing to be fair.

THE COURT: What do you mean I'm going to be fair? I'mnot going to say I'm going to give you probation or two or threeyears. I may give you six years.

* * *

THE DEFENDANT: Not to no cap of six. Not for a cap ofsix. That's too many.

THE COURT: Okay. Bring the jury in."

Thereafter, the jury trial proceeded and defendant was ultimatelyconvicted of unlawful possession of a controlled substance. The circuitcourt set defendant's sentencing hearing for May 24, 2000.

On May 17, 2000, defendant filed a posttrial motion, asserting twogrounds for error: (1) that the evidence failed to prove his guilt beyond areasonable doubt; and (2) that the circuit court erred in not granting apretrial suppression motion filed by defendant. The circuit court set ahearing for this posttrial motion on May 24, 2000, the same date set forsentencing.

When the parties returned to court on May 24, the circuit court firstheard and denied defendant's posttrial motion. Thereafter, the circuit courtconducted a sentencing hearing. After listening to testimony in aggravationand mitigation, the circuit court sentenced defendant to an extended termof five years' incarceration in the Illinois Department of Corrections andone year of mandatory supervised release. Defendant was also assesseda statutory fine of $500. The sentencing order was entered on June 6,2000.

On July 5, 2000, defense counsel filed a motion for reconsideration.The motion alleged that the sentencing of defendant to a five-year term ofincarceration was excessive in light of the fact that he possessed less thanone-tenth of one gram of cocaine, which had been stipulated at thesentencing hearing to have a street value of $20. No action was taken onthis motion.

On November 13, 2000, defendant filed a pro se petition forpostconviction relief. In that petition, defendant alleged that his trialcounsel had been ineffective for failing to file a motion for reconsideration,thereby forfeiting defendant's appellate rights. Defendant also alleged thathis five-year, extended-term sentence was void under the United StatesSupreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). In an affidavit attached tothe petition, defendant asserted that he had been offered a two-yearsentence, but the circuit court had found he had "forfeited the opportunityto enter that plea due to *** indecisiveness." Defendant's affidavit states:"I tried to accept that plea right before my trial was to start, but the trialcourt expressed that the plea would not be accepted and that I could onlyplead at that point to conditions set up by the trial court, which was asentencing cap. I did not really understand the offer from the court, whichI recall as [sic] 'a cap of one to three years, extendable to six.' I did notunderstand that, so I did not enter a plea of guilty at that time."

On January 11, 2001, the same judge who presided overdefendant's trial summarily dismissed defendant's petition forpostconviction relief. As part of the dismissal order, the judge noted thata motion for reconsideration had been filed but had not been heard. Aspart of the dismissal order, the judge directed that the motion forreconsideration be set for a status hearing so that it could be heard anddecided. The judge also found that defendant's Apprendi claim lackedmerit. Following the dismissal of defendant's petition for postconvictionrelief, a notice of appeal was filed on February 13, 2001.

On September 13, 2001, the circuit court held a hearing ondefendant's motion to reconsider. At that hearing, appointed counselrepresented defendant. The record reflects that the motion had notpreviously been heard because defendant's trial counsel had beensuspended from the practice of law. The circuit court ultimately denied themotion to reconsider. On September 14, 2001, defendant filed a noticeof appeal. On motion of defense counsel, the cases were consolidated onappeal.

With one justice dissenting, the appellate court reversed the judgmentof the circuit court and remanded this cause for further proceedings. 334Ill. App. 3d 290. The appellate court held that the refusal of the circuitcourt to consider defendant's "negotiated plea" based on timeliness alonewas an abuse of discretion. The court stated, "It does not appear from therecord that the State had ever withdrawn the plea offer and no objectionwas made to defendant's attempt to plead following jury selection." 334Ill. App. 3d at 292. We find it significant that the appellate court neveridentified the terms of the "negotiated plea" purportedly presented to thecircuit court; nor did it explain how the State's failure to participate in, orobject to, defendant's dialogue with the circuit court after jury selectionequates to an agreement.

In any event, the majority proceeded to address the issue of firstimpression in Illinois. The majority observed that in decisions from otherjurisdictions which have addressed this issue, two lines of authority haveemerged. One line is represented by the Iowa Supreme Court's decisionin State v. Hager, 630 N.W.2d 828 (Iowa 2001). In Hager, the courtreasoned that inflexible plea deadlines themselves eliminate the court'sexercise of discretion. The other line of authority is represented by Peoplev. Jasper, 17 P.3d 807 (Colo. 2001). There, the Colorado SupremeCourt reasoned that plea deadlines are an integral part of the court's casemanagement authority and may be enforced where the parties have actualnotice of the court's practice and where exceptions to the deadline arepermitted for good cause.

After considering the reasoning of both lines of authority, theappellate majority found the Hager decision to be more persuasive. Themajority held that "rejecting a guilty plea solely because it was nottendered before the court-imposed deadline does not seem to be in thebest interests of justice or of public policy concerning resolution of cases."334 Ill. App. 3d at 294. The appellate majority determined that strictenforcement of court-imposed plea deadlines would defeat these interests.334 Ill. App. 3d at 295.

Under the circumstances of this case, the majority concluded thatdefendant's "plea agreement" should have been considered on its merits.The majority states: "We cannot discern, and the State has not presented,any difference in added costs or taxing of resources that would justifyaddressing an open plea and refusing to even consider one that has beenfully negotiated." 334 Ill. App. 3d at 295. Therefore, the majoritydetermined, the circuit court abused its discretion in refusing to "evenconsider the negotiated plea solely on timeliness grounds." 334 Ill. App.3d at 293.

In a special concurrence, Justice Lytton stated that, because thecircuit court refused to entertain the plea, it did not exercise discretion, andtherefore no deference is owed to the circuit court on this issue. JusticeLytton stated that "[w]hen a judge draws a strict time line after which hewill not accept a guilty plea, it is an arbitrary, not a discretionary, act." 334Ill. App. 3d at 296 (Lytton, P.J., specially concurring).

In dissent, Justice Holdridge disagreed with the majority. In his view,docket management "is a legitimate concern resting within a trial judge'ssound discretion." 334 Ill. App. 3d at 296-97 (Holdridge, J., dissenting).Accordingly, the dissent concluded that the circuit court properlyexercised discretion in refusing to consider defendant's untimely plea.

We granted the State's petition for leave to appeal. 177 Ill. 2d R.315(a).

ANALYSIS

There is no question that "[t]he disposition of criminal charges byagreement between the prosecutor and the accused, sometimes looselycalled 'plea bargaining,' is an essential component of the administration ofjustice." Santobello v. New York, 404 U.S. 257, 260, 30 L. Ed. 2d 427,432, 92 S. Ct. 495, 498 (1971). Like the United States Supreme Court,this court has a firmly rooted view that the plea-bargaining process, andthe negotiated plea agreements that result from that process, are "vital toand highly desirable for our criminal justice system." People v. Evans,174 Ill. 2d 320, 325 (1996). Although it is well settled in our jurisprudence that plea bargaining is to be encouraged,it is equally well established that a defendant does not have an absoluteright to have a guilty plea accepted by the circuit court. Santobello, 404U.S. at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 498; People v. Peterson,311 Ill. App. 3d 38, 45 (1999). A circuit court may reject a plea in theexercise of sound judicial discretion. Santobello, 404 U.S. at 262, 30 L.Ed. 2d at 433, 92 S. Ct. at 498; Peterson, 311 Ill. App. 3d at 45; seealso 134 Ill. 2d R. 402(d) (it is within the discretion of the circuit court toapprove or reject a defendant's guilty plea)). A decision of the circuitcourt with respect to the acceptance or rejection of a negotiated plea isreviewed for an abuse of discretion, and the judgment of the reviewingcourt will not be substituted for that of the trial court. Peterson, 311 Ill.App. 3d at 45.

However, before we consider whether a court has abused itsdiscretion in refusing to accept a negotiated plea agreement, there mustactually be an agreement that the parties have tendered to the court. Inthis case, the parties never tendered an agreement for the trial court'sconsideration.

Although the application of contract law principles to plea agreementsmay require "tempering in some instances" in order to satisfy concerns fordue process, plea agreements are nonetheless subject to traditionalprinciples of contract law absent such concerns. See Evans, 174 Ill. 2dat 326-27; People v. Bouie, 327 Ill. App. 3d 243, 246 (2002); Colemanv. United States, 318 F.3d 754, 759 n.1 (7th Cir. 2003); United Statesv. Muzika, 986 F.2d 1050, 1054 (7th Cir. 1993) (the existence of a pleaagreement is determined by ordinary contract principles of offer andacceptance). Pursuant to traditional principles of contract, the legal effectof a counteroffer is the rejection of a standing offer. Sharp ElectronicsCorp. v. Deutsche Financial Services Corp., 216 F.3d 388, 395-96(4th Cir. 2000), citing Restatement (Second) of Contracts