Appellate Court of Illinois,Second District. May 22, G. Smith, appeals the order of the circuit court of Lake County denying his motion to reconsider his sentence.
On appeal, defendant argues 1 that the trial court abused its discretion when it sentenced defendant, and 2 that the mittimus should be corrected to conform to the trial court's oral pronouncement of defendant's conviction. On August 17, , defendant admitted to violating his probation and entered negotiated pleas of guilty to one of the three counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse.
In return for the plea, the State agreed to 1 dismiss the remaining three counts of aggravated criminal sexual assault, and 2 recommend a sentence cap of 25 years' imprisonment. Prior to the sentencing hearing, the trial court ordered an updated presentence investigation report. The presentence report indicated that defendant was originally sentenced to three years' probation in July for aggravated criminal sexual abuse. In August defendant was resentenced to two years' probation for violating his probation sentence by failing to cooperate with treatment for sexual offenders.
In January defendant was held in contempt of court for violating the terms of his probation and ordered to complete the remainder of his sentence in the Lake County jail.
The report also contained information about defendant's employment record, family background, and his participation in counseling programs. Defendant was ordered to attend counseling at the Community Youth Network as a condition of his previous sentence of probation for aggravated criminal sexual abuse. He was refused treatment in April because of his failure to pay for the services; in May defendant committed the offenses at issue in the present case. Defendant gave a voluntary statement to the Waukegan police department in May in which he described in detail his version of the events of the sexual assault on the victim.
Marx' report states in part: Marx observed recurring themes based on defendant's comments: Marx went on to state: Marx diagnosed defendant with pedophilia, mild mental retardation, and personality disorder. He opined that defendant is a high risk for reoffending and too high of a risk for outpatient treatment. The trial court sentenced defendant to a term of 20 years' imprisonment. Following two earlier remands of this case, defendant now appeals the length of his sentence as well as the correctness of the mittimus.
As a preliminary matter, we must dispense with defendant's motion to strike a portion of the State's argument in its surreply brief. Defendant contends that, because the State did not request argument on defendant's second issue, the State exceeded its scope by providing argument on the second issue.
Defendant has moved to strike this portion of the State's surreply brief. Supreme Court Rule Ill. See also In re M. Adherence to supreme court rules governing briefs is not an inconsequential matter. We have reviewed our order granting the State's motion to file a surreply brief and the State's surreply brief.
We note that this court's order did not limit the contents or scope of the State's surreply brief. We, therefore, deny defendant's motion to strike. Before addressing the merits of defendant's appeal, the State contends that defendant is not entitled to challenge his sentence, based on the recent decision of our supreme court in People v. The State argues that, because his sentence was entered as part of a negotiated guilty plea, defendant was bound to file a motion to withdraw the negotiated guilty plea.
Because defendant did not do so, the State maintains, he is precluded from challenging his sentence on appeal. Evans is a consolidation of two cases, People v.
In Meeks, the defendant and the State negotiated a plea agreement whereby Meeks would plead guilty to one charge; in exchange, the State would move to dismiss two other charges, several other pending charges, and recommend a determinate sentence of 10 years' imprisonment. The defendant in Evans negotiated a plea agreement with the State whereby Evans would plead guilty to two charges; in exchange, the State would move to dismiss a third charge and recommend concurrent sentences of 11 and 5 years' imprisonment, to serve concurrently with other sentences previously imposed in another county.
The trial courts accepted the negotiated plea agreements and sentenced the defendants to the recommended prison terms. Following the entry of the trial court's judgment, each defendant then sought to reduce his sentence by filing a motion to reconsider the sentence under Supreme Court Rule d Ill. Our supreme court analyzed the application of Supreme Court Rule d to negotiated guilty pleas, as opposed to open guilty pleas.
The Evans court applied contract law principles to the consolidated cases because the defendant and the State agreed that the defendant would plead guilty to certain charges, and the State would 1 dismiss other charges, and 2 recommend a specific sentence.
To hold otherwise, the court stated, would render meaningless the negotiated plea agreement entered into between the parties. The Evans court seems to suggest that only two types of guilty pleas exist: As a result of this implication, the State argues, defendants wishing to challenge their sentence pursuant to anything other than an open plea must first move to withdraw their guilty plea and vacate the judgment entered thereon.
The State's position is overly simplistic. The criminal justice system is blessed with a panoply of negotiated guilty pleas. See generally 2 W. Negotiated guilty pleas are generally the result of an agreement between the defendant and the State. The two parties usually agree upon two major areas, taken singularly or in combination: One form of negotiated plea consists of an arrangement whereby the defendant and the State agree that the defendant will plead guilty to a lesser offense than the actual crime, perhaps to limit the trial court's sentencing discretion or to avoid a record of conviction on the more serious charge.
Other forms of negotiated pleas exist whereby the parties agree that the defendant will plead guilty to the original charge in exchange for a specific disposition, such as a certain sentence or a promise of leniency or a request for probation.
Yet another form consists of the defendant pleading guilty to a charge in exchange for the State's promise to drop or not file additional charges. Combining the charging issues and sentencing issues may lead to a negotiated plea with the defendant pleading guilty to a charge or charges in exchange for the State's dismissal of other charges and a period-specific sentence. See Evans, Ill. Another combination may occur when the defendant pleads guilty and the State agrees to drop other charges and recommend a minimum and maximum sentencing range.
Yet another may consist of the defendant pleading guilty to certain charges in exchange for a dismissal of other charges and a sentence not to exceed a certain number of years. With regard to sentencing issues, we are mindful that imposing a sentence upon a defendant is the function of the trial court, not the prosecutor.
It, therefore, follows that, even if the defendant and the State were to agree upon a specific sentence, the trial court possesses the ultimate authority and discretion to impose that specific sentence, decrease the length of the agreed-upon sentence, or increase the defendant's incarceration, subject to the established statutory guidelines. We recognize the difference of opinion on this issue among the districts of the Illinois Appellate Court since Evans was decided.
The trial court accepted the plea agreement; subsequently, the defendant petitioned to have his sentences run concurrently. The Appellate Court, Second District, held that the defendant was not entitled to a reduction of his negotiated sentence because it had been specifically bargained for in his plea agreement, similar to the defendants in Evans. Thus, the Leach court noted relief could only be obtained by moving to withdraw his guilty plea and vacate the judgment, as well as showing that granting the motion was necessary to correct a manifest injustice.
The trial court imposed concurrent year sentences, and the defendant appealed, claiming the sentence was excessive. The Appellate Court, Fourth District, applied contract principles relied upon in Evans and affirmed, stating that the defendant implicitly conceded that a year sentence could not be excessive because he had agreed to a range of sentences.
The Catron court proceeded: One such claim is that which defendant attempts to raise here, namely, that the trial court gave him the maximum sentence based, in part, upon improper consideration of a factor inherent in the crime.
Had defendant raised this issue in the trial court, we do not believe Evans would foreclose a motion to reconsider sentence without vacating the plea. Similar to the present case is People v. In Wilson, the defendant entered a negotiated plea of guilty to various offenses. In exchange, the State agreed to nol-pros one charge and recommend a sentence cap of nine years' imprisonment for the other three charges.
The trial court accepted the plea agreement and imposed concurrent sentences of nine years' imprisonment. The Wilson court distinguished Evans, in that the defendants in Evans agreed to specific sentences in exchange for their guilty pleas and the trial courts exercised no discretion in sentencing the defendants. The Appellate Court, Second District, thus held that, because the trial court had the discretion to determine the appropriate sentence for defendant, the defendant could raise the issue on appeal as to whether the trial court abused its discretion when it sentenced the defendant without defendant moving to withdraw his plea.
No agreement on sentencing was reached. The Appellate Court, Second District, held that the defendant was not precluded from challenging the trial court's sentence only because the imposition of the sentence was left to the discretion of the trial court. Finally, in People v. The trial court imposed a year sentence. The trial court subsequently denied the defendant's motion to withdraw his guilty plea.
Defendant appealed, claiming his sentence was excessive. The Sanders court simply affirmed, determining that the defendant knew that the trial court could impose a year sentence when he entered his negotiated plea.
By agreeing to the plea, the Sanders court stated, the defendant effectively agreed that a year sentence was not manifestly unjust. However, the specially concurring opinion by Justice Holdridge maintains that Catron impermissibly expanded the Evans holding and analogized the plea in Sanders to an open plea. In each of the cases permitting review of a defendant's sentence following a negotiated plea agreement without requiring a motion to withdraw the plea, the common denominator of law seems to be that when a trial court exercises any discretion in imposing a sentence, a defendant should be allowed to challenge that sentence to determine whether the trial court abused its discretion.
In the present case, defendant entered a negotiated plea of guilty to one count of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. In return, the State agreed to dismiss three other counts of aggravated criminal sexual assault and recommend a sentence cap of 25 years' imprisonment. Because the trial court exercised its discretion to impose a sentence of 20 years' imprisonment for defendant, we determine that defendant's subsequent motion to reconsider only his sentence was proper and we, therefore, have jurisdiction to review the trial court's order denying it.
Defendant contends that the trial court erred in refusing to consider certain mitigating factors of defendant, i. Reviewing courts have the power under Supreme Court Rule b 4 Ill. The determination and imposition of a sentence is a matter involving considerable judicial discretion, and our standard of review to be applied is whether the trial court abused its discretion. The trial court has broad discretionary powers in choosing the appropriate sentence a defendant should receive.
The trial court is in a superior position to assess the credibility of the witnesses and to weigh the evidence presented at the sentencing hearing. La Pointe, 88 Ill.
Further, a reviewing court will not substitute its judgment for that of a sentencing judge simply because it might have balanced the sentencing factors differently. After reviewing the record, we find that the trial court did not abuse its discretion in sentencing defendant to 20 years' imprisonment.
Factors specifically mentioned were defendant's use of a vibrator on the victim; defendant's cognizance that he was on probation at the time of the assault; defendant's functioning at the top of the mentally deficient range; and defendant's suffering from a personality disorder.
The trial court also took into account defendant's criminal history and his failure to maintain his probation. The trial court further considered defendant's explanation that he was turned away from counseling approximately two weeks prior to the instant offense occurring.
Nevertheless, weighing the mitigating evidence against the aggravating circumstances, the trial court chose to impose a lengthy term of imprisonment, stating that defendant is a danger to the community and needed to be sentenced for a lengthy term. In light of these observations of the trial court at the sentencing hearing and the hearing to reconsider defendant's sentence, the record fails to demonstrate an abuse of discretion, and we see no reason to disturb the sentence.
Defendant's second issue on appeal is that the mittimus must be corrected to conform to the trial court's oral pronouncement of defendant's conviction.