People v. Franks
State: Illinois
Court: 3rd District Appellate
Docket No: 3-97-0137
Case Date: 10/10/1997
x No. 3--97--0137
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--653
)
VINCENT D. FRANKS, ) Honorable
) John D. O'Shea,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
_______________________________________________________________
Defendant Vincent D. Franks entered a partially negotiated
guilty plea to attempted armed robbery. 720 ILCS 5/8--4, 18--2
(West 1996). In exchange for the plea, the State agreed to a
sentence cap of 10 years' imprisonment and dismissed a charge of
aggravated battery. The trial court accepted the plea and
imposed a seven-year prison term. On appeal, defendant argues
that his sentence was an abuse of the trial court's discretion.
We affirm.
FACTS AND PROCEDURAL CONTEXT
The factual basis presented at defendant's guilty plea
hearing established that on August 7, 1996, defendant and three
other young men executed a scheme to rob a motorist. They parked
along the roadway pretending that their car's radiator was
inoperative. Motorist Anna Jones stopped and agreed to get water
for them. When she returned, defendant took the water, and one
of the co-defendants struck her on the head with a hammer. She
fell to the ground. The men demanded money, but Jones said she
had none. The men then panicked, piled into defendant's car and
defendant sped off. They were later apprehended, and defendant
admitted his participation in the offense. Based on these facts,
the court accepted defendant's plea of guilty to the charge of
attempted armed robbery and set the cause for sentencing.
At the sentencing hearing, the court heard the parties'
evidence and reviewed the circumstances of the offense, the
presentence investigation report and a substance abuse
evaluation. Defendant exercised his right of allocution to
express his remorse. The State recommended a four-year prison
sentence, and the defense argued for probation. The court found
that probation would be inconsistent with the ends of justice and
would not adequately protect the public. Accordingly, the court
imposed a seven-year prison sentence.
Defendant subsequently filed a pro se motion to withdraw his
plea. After counsel was appointed, defendant's motion was
restyled as a request to either withdraw his plea or to
reconsider sentence. The post-plea motion was heard and denied,
and defendant appeals.
STATE'S WAIVER ARGUMENT
Before reaching the merits of defendant's argument, we
address the State's argument that defendant has waived any error
in his sentence by failing to persist in his motion to withdraw
his plea. The State argues that a defendant should not be
allowed to retain a benefit of his bargain with the prosecutor--
i.e., the dismissal of the aggravated battery charge--while
asking this court for relief from a sentence within the range he
bargained for. Rather, the State contends, to obtain relief on
review, the defendant must first establish the parties' status
quo ante by showing that the trial court abused its discretion in
denying the defendant's motion to withdraw his plea. See People
v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996); People v.
Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d 86 (3rd Dist. 1997).
The State's position derives from decisions applying contract
principles to appeals from sentences entered upon negotiated
guilty pleas. See Evans, 174 Ill. 2d 320, 673 N.E.2d 244; see
also Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d 86; People v.
Catron, 285 Ill. App. 3d 36, 674 N.E.2d 141 (4th Dist. 1996).
However, other decisions distinguish Evans in partially
negotiated guilty plea cases. See, e.g., People v. Wilson, 286
Ill. App. 3d 169, 675 N.E.2d 292 (2nd Dist. 1997); People v.
Johnson, 286 Ill. App. 3d 597, 676 N.E.2d 1040 (2nd Dist. 1997);
People v. Smith, No. 2--95--1483 (Ill. App. May 22, 1997); see
also Sanders, 286 Ill. App. 3d at 1044-45, 678 N.E.2d at 88-89
(Holdridge, J., specially concurring). Applying basic principles
of due process, these decisions allow a defendant to appeal his
sentence without withdrawing his plea whenever the trial court
exercised discretion in setting the sentence. Our supreme court
has not resolved whether a defendant whose guilty plea was
partially negotiated may challenge only his sentence on review.
Nevertheless, we find that the latter decisions present a
compelling case for reviewing a defendant's excessive sentencing
issue; therefore, we now retract from our earlier adherence to
Evans and Catron (see Sanders, 286 Ill. App. 3d 1042, 678 N.E.2d
86) and will consider defendant's argument on its merits.
SENTENCING
Defendant claims that the trial court failed to properly
weigh and consider the State's recommendation of four years and
numerous factors in mitigation. He argues that his sentence
should be reduced because of his youth and rehabilitative
potential; his remorse and willingness to testify against a co-
defendant; his lack of a criminal record; and his family support.
We disagree.
It is well settled that the trial court is in a better
position than this court to fashion an appropriate sentence.
People v. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882 (1977).
Moreover, a sentencing judge is not limited by a prosecutor's
recommendation; and he is presumed to have considered all
relevant factors, including any mitigating evidence, absent a
contrary showing in the record. People v. Back, 239 Ill. App. 3d
44, 605 N.E.2d 689 (1992). On review, this court will not
substitute its judgment for that of a sentencing judge simply
because we might have balanced the factors differently. People
v. Pittman, 93 Ill. 2d 169, 442 N.E.2d 836 (1982). The trial
court's determination will not be reversed absent an abuse of
discretion. People v. Streit, 142 Ill. 2d 13, 566 N.E.2d 1351
(1991). A sentence which falls within the statutory range is not
an abuse of discretion unless it is manifestly disproportionate
to the nature of the offense. People v. Nussbaum, 251 Ill. App.
3d 779, 623 N.E.2d 755 (1993).
We find that the trial court in this case did not abuse its
discretion in sentencing defendant to a seven-year prison term.
The record shows that the court considered all of the evidence
offered in mitigation and found that it did not justify more than
a 3-year reduction from the 10-year sentencing cap defendant
agreed to accept when he entered his guilty plea.
The court expressed outrage at the mean-spirited nature of
the offense. The victim, a "good Samaritan," was lured into a
planned robbery attempt by defendant and his friends. While
defendant distracted the victim with the water she offered them,
a co-defendant crept up from behind and smashed her head with a
hammer. Then, when they learned that she had no money to steal,
they drove off. Based on the senseless violence of the offense,
the court properly concluded that probation was not an
appropriate sentence. The court further observed that, although
defendant had a relatively clean police record, he admitted using
illegal drugs. In addition, defendant's spotty employment and
education history did not demonstrate strong rehabilitative
potential.
The sentence imposed by the trial court fell well within the
statutory range for the Class 1 felony (720 ILCS 5/8--4(c)(2),
18--2(b); 730 ILCS 5/5--8--1(a)(4) (West 1996)) and did not
exceed the sentence defendant agreed to accept in exchange for
the prosecutor's dismissal of the aggravated battery charge. The
sentence is not manifestly disproportionate to the nature of the
offense. Accordingly, it need not be reduced.
CONCLUSION
For the reasons stated, we affirm the judgment of the
circuit court of Rock Island County.
Affirmed.
HOLDRIDGE and McCUSKEY, J.J., concur.
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