People v. Economy
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0003
Case Date: 07/24/1997
NOS. 4-97-0003, 4-97-0027 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
JAMES C. ECONOMY, ) Nos. 96CF14
Defendant-Appellant. ) 92CF833
)
) Honorable
) Frank W. Lincoln,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In September 1996, defendant James C. Economy entered a
negotiated guilty plea in Macon County case No. 96-CF-14 to
charges of unlawful possession of a controlled substance (720
ILCS 570/402(c) (West Supp. 1995)), battery (720 ILCS 5/12-3
(West 1994)), criminal property damage under $300 (720 ILCS 5/21-
1(1)(a) (West Supp. 1995)), and violation of a condition of pro-
bation imposed in Macon County case No. 92-CF-833 after an earli-
er conviction of unlawful possession of a controlled substance
(720 ILCS 570/402(c) (West 1992)). After a sentencing hearing in
both cases in October 1996, the trial court denied defendant's
request for probation conditioned on treatment through the Treat-
ment Alternatives for Safer Communities (TASC) program. Defen-
dant was sentenced to concurrent two-year prison terms for the
unlawful possession charges in case Nos. 92-CF-833 and 96-CF-14.
Defendant appeals his sentences, docketed here as Nos. 4-97-0027
and 4-97-0003, respectively, and the appeals have been consoli-dated. He argues the trial court acted in an arbitrary manner or
abused its discretion in denying probation under the supervision
of a designated program for treatment pursuant to section 40-10
of the Alcoholism and Other Drug Abuse and Dependency Act (20
ILCS 301/40-10 (West 1994)) in the following findings: (1) he
was unlikely to be rehabilitated through treatment; (2) there was
no significant relationship between his addiction and the crime
committed; and (3) his imprisonment is necessary for the protec-
tion of the public. We affirm.
I. BACKGROUND
On Friday, October 9, 1992, defendant was arrested
carrying about 1.5 grams of crack cocaine. Defendant admitted
using cocaine for about a year. On January 19, 1993, he was con-
victed in case No. 92-CF-833 of unlawful possession of a con-
trolled substance. 720 ILCS 570/402(c) (West 1992). On June 7,
1993, defendant was sentenced to 24 months of probation with
conditions including submission of a drug evaluation and comple-
tion of any recommended drug treatment program.
In December 1993, defendant entered an outpatient drug
treatment program at St. Mary's Hospital (St. Mary's) in Decatur,
Illinois. Treatment specialists there recommended he be admitted
to a more intensive program at the Rush Behavioral Center (Rush
Center) in Chicago, but defendant refused because he wanted to
stay in the Decatur area in order to continue his law practice.
Defendant was discharged from the program in August 1994. Defen-
dant submitted to random drug testing from August 1994 to March
1995 and passed a total of 23 drug screens without any indication
of drug use.
On June 22, 1995, defendant pleaded guilty to a charge
of domestic battery in case No. 95-CM-1124. This conduct also
violated defendant's probation conditions in No. 92-CF-833. He
admitted the allegations of a petition to revoke based thereon
and was fined $288, plus costs, and his probation was extended
for 12 months under the same conditions as before.
The facts underlying case No. 96-CF-14 are as follows.
On December 27, 1995, police were called to a Decatur residence
rented by defendant. One of the windows to the house was broken,
and the officers could hear someone inside calling for help. Po-
lice entered and found defendant sitting on the stairs. He had
cuts over several parts of his body and blood was dripping from
the area near his crotch. There were blood splatters on the wall
and the premises were in disarray.
The officers attempted to speak with defendant, but he
was incoherent. When they attempted to get defendant to sit in a
chair, he attacked one of the officers. Defendant was thrown to
the couch but got up again and jumped on top of the two officers.
He was subdued and handcuffed. Defendant was taken to St.
Mary's, and then to the Rush Center, where he remained in con-
tinuous treatment until his sentencing hearing on October 16,
1996.
As a result of the December 1995 incident, defendant
was charged with aggravated battery (720 ILCS 5/12-4(b)(6) (West
1994)), a Class 3 felony carrying a nonextended prison term of 2
to 5 years (730 ILCS 5/5-8-1(a)(6) (West Supp. 1995)) and an ex-
tended term of 5 to 10 years (730 ILCS 5/5-8-2 (West 1994)); un-
lawful possession of a controlled substance and criminal property
damage in excess of $300, Class 4 felonies (720 ILCS 570/402(c),
720 ILCS 5/21-1(1)(a) (West Supp. 1995)), carrying a nonextended
prison term of one to three years (730 ILCS 5/5-8-1(a)(7) (West
Supp. 1995)) and an extended term of three to six years (730 ILCS
5/5-8-2(a)(6) (West 1994)); and battery and criminal property
damage under $300, Class A misdemeanors (720 ILCS 5/12-3(b) (West
1994); 720 ILCS 5/21-1(2) (West Supp. 1995)), permitting a term
of up to one year's incarceration (730 ILCS 5/5-8-3(a)(1) (West
1994)).
Defendant entered a partially negotiated plea agree-
ment. The State agreed to dismiss the charge of aggravated bat-
tery and the felony criminal property damage charge. The State
also agreed to recommend any prison terms be served concurrently
and no extended terms be imposed. In exchange, defendant agreed
to plead guilty to the remaining charges and forego any defense
of intoxication.
At the joint sentencing hearing in the cases, defendant
requested to be sentenced to probation with treatment under the
TASC program. Several witnesses testified on his behalf. The
State presented no witnesses. Defendant filed a written report
by a TASC drug evaluator indicating he was eligible and accept-
able for the TASC program. The State requested defendant be
sentenced to a prison term.
The trial court sentenced defendant to prison. In case
No. 92-CF-833, on revocation of his probation, defendant received
two years in prison on the 1992 unlawful possession conviction,
with credit for time served, and one year of mandatory supervised
release. In case No. 96-CF-14, defendant received a concurrent
two-year term for the December 1995 unlawful possession charge,
and was fined $250 and costs for the misdemeanor battery and
property damage charges.
The court denied defendant's request for probation with
treatment in the TASC program. The trial court believed the
imprisonment of defendant was necessary for the protection of the
public, considering the harm to the victims of his battery, do-
mestic battery, and criminal property damage. The court also
noted there was no significant relationship between his drug use
and the domestic battery. Finally, the court noted one of
defendant's witnesses testified the TASC program has a success
rate of only 35%. Given this statistic, and defendant's relapse
and commission of several offenses after receiving drug treat-
ment, the court concluded defendant was unlikely to be rehabili-
tated by treatment. On December 4, 1996, defendant filed his
first-amended motion to reconsider sentence in each case. On De-
cember 6, 1996, this motion was denied. Defendant never filed a
motion to withdraw his guilty plea.
II. ANALYSIS
As a threshold matter, the State argues defendant
waived this appeal because he failed to file a motion to withdraw
his negotiated guilty plea and vacate the judgment. We agree
defendant has waived several of his arguments. Generally, in
order to perfect an appeal of a sentence, a defendant must file a
motion to reconsider the sentence. 145 Ill. 2d R. 604(d). De-
fendant did so here. However, when a defendant appeals a sen-
tence imposed pursuant to a negotiated plea agreement, the defen-
dant must instead (1) move to withdraw the guilty plea and vacate
the judgment and (2) show granting the judgment is necessary to
correct a manifest injustice. People v. Evans, 174 Ill. 2d 320,
332, 673 N.E.2d 244, 250 (1996).
Defendant seeks to distinguish Evans because the plea
agreements there provided for the State to recommend specific
prison terms. Evans, 174 Ill. 2d at 327, 673 N.E.2d at 247.
Here, by contrast, the State agreed to dismiss some charges and,
if defendant were to be imprisoned, seek concurrent rather than
consecutive prison terms and no extended term. Defendant con-
tends Evans does not apply to such partially negotiated guilty
pleas.
Defendant notes the second district has not followed
the rule from Evans in cases where the plea agreement does not
include a recommendation of a specific prison term. See People
v. Wilson, 286 Ill. App. 3d 169, 172, 675 N.E.2d 292, 294 (1997);
People v. Johnson, 286 Ill. App. 3d 597, 600, 676 N.E.2d 1040,
1042 (1997) (refusing to require a withdrawal of guilty plea
where State dropped charges pursuant to plea agreement but did
not limit sentencing discretion of trial court with regard to
charges not dropped).
Both cases rely on the following language from Evans
(174 Ill. 2d at 332, 673 N.E.2d at 250):
"Our review of [People v.]Wilk[, 124 Ill. 2d
93, 529 N.E.2d 218 (1988),] and [People v.]
Wallace[, 143 Ill. 2d 59, 570 N.E.2d 334
(1991),] reveals that the pleas involved in
those cases were open guilty pleas. In other
words, the defendants pled guilty without
receiving any promises from the State in
return. Following a defendant's open guilty
plea, the trial court exercises its discre-
tion and determines the sentence to be im-
posed. Both good public policy and common
sense dictate that defendants who enter open
guilty pleas be allowed to challenge only
their sentences without being required to
withdraw their guilty pleas. See Wilk, 124
Ill. 2d 93[, 529 N.E.2d 218]; Wallace, 143
Ill. 2d 59[, 570 N.E.2d 334]."
See Johnson, 286 Ill. App. 3d at 600, 676 N.E.2d at 1042; Wilson,
286 Ill. App. 3d at 172, 675 N.E.2d at 294, quoting Evans, 174
Ill. 2d at 332, 673 N.E.2d at 250.
The second district reasoned there is no logical basis
for challenging a trial court's discretion when imposing a "fully
negotiated" plea because the trial court did not, in fact, exer-
cise any discretion. Johnson, 286 Ill. App. 3d at 600, 676
N.E.2d at 1042. However, when a partially negotiated plea leaves
room for the trial court to weigh the facts and exercise its own
discretion, there is a logical basis for appealing the trial
court's judgment. See Wilson, 286 Ill. App. 3d at 172, 675
N.E.2d at 294. This is consistent with the second district's
approach prior to Evans. See People v. Soles, 226 Ill. App. 3d
944, 947, 590 N.E.2d 104, 105 (1992) (by entering partially nego-
tiated plea agreement defendant agrees to accept sentence within
statutory range only if trial court properly exercised discretion
in imposing it).
Contrary to the second district's approach, the primary
concern of the Evans court was not the logical basis for review-
ing the trial court, but a concern for preserving the bargain
reached between the defendant and the State. Immediately after
the language quoted by Johnson and Wilson, the Evans opinion
stated the following:
"The reasoning utilized by this court in
Wilk *** does not apply to negotiated guilty
plea agreements. We agree with the State
that, under these circumstances, the guilty
plea and the sentence 'go hand in hand' as
material elements of the plea bargain. To
permit a defendant to challenge his sentence
without moving to withdraw the guilty plea in
these instances would vitiate the negotiated
plea agreement he entered into with the
State." Evans, 174 Ill. 2d at 332, 673
N.E.2d at 250.
Earlier in the Evans opinion, the court made it clear it was
trying to prevent a defendant from obtaining the benefit of his
plea agreement with the State by limiting the trial court's sen-
tencing discretion and then obtaining a further benefit by reneg-
ing on the agreement and challenging the trial court's exercise
of discretion on appeal. See Evans, 174 Ill. 2d at 327, 673
N.E.2d at 247-48.
In People v. Catron, 285 Ill. App. 3d 36, 37, 674
N.E.2d 141, 142 (1996), this district held it would compromise
this policy if defendant were allowed to appeal a sentence en-
tered after a partially negotiated plea without filing a motion
to withdraw his plea. The Catron opinion reasoned when a defen-
dant agrees to a potential range of sentences in a plea agree-
ment, he implicitly concedes any sentence imposed within the
range cannot be excessive. Catron, 285 Ill. App. 3d at 37, 674
N.E.2d at 142. Recently, the third district also adopted this
approach. See People v. Sanders, 286 Ill. App. 3d 1042, 1044,
678 N.E.2d 86, 88 (1997).
The analysis from Catron applies with particular force
here. In exchange for defendant's guilty plea, the State agreed
not to seek consecutive or extended prison terms. This part of
the plea agreement would be meaningless if, as defendant now
argues, any prison term would be reversible as an abuse of dis-
cretion. The risk of a prison term and the guilty plea went
"hand in hand" as material elements of the plea bargain.
The approach in Catron has faced criticism. In People
v. Smith, 288 Ill. App. 3d 308, 312-13, ____ N.E.2d ____, ____
(1997), the second district reasoned it is overly simplistic to
draw a distinction that treats all negotiated pleas the same. It
noted negotiated pleas can involve both sentencing and charging
matters (Smith, 288 Ill. App. 3d at 313, ___ N.E.2d at ___), and
it repeated the argument from Johnson and Wilson that the Evans
opinion was not intended to extend to matters where the trial
court retains some discretion (Smith, 288 Ill. App. 3d at 315,
____ N.E.2d at ____).
This criticism is flawed. First, the plain language of
Evans treats all negotiated pleas the same. Evans clearly de-
fines an "open guilty plea" agreement to mean an agreement where
"defendants pled guilty without receiving any promises from the
State in return." (Emphasis added.) Evans, 174 Ill. 2d at 332,
673 N.E.2d at 250. It also clearly holds "the motion-to-recon-
sider-sentence provisions of Rule 604(d) apply only to open guil-
ty pleas" (emphasis added) (Evans, 174 Ill. 2d at 332, 673 N.E.2d
at 250), thereby imposing the motion-to-withdraw-plea provision
in Rule 604(d) on all negotiated pleas, including this one.
Second, whether a defendant pleads guilty in exchange
for a specific term or a lesser charge, his interest in the bar-
gain is the same: to reduce the possible punishment for his of-
fense. The bargain between the defendant and the State is no
less damaged by defendant's appeal just because the agreement is
less specific, i.e., not all aspects of the case(s) are disposed
by the plea negotiated.
Catron has also been criticized because it leaves room
open for trial court abuses in sentencing. In a special concur-
rence in Sanders, Justice Holdridge argued:
"Where a defendant pleads guilty in exchange
for a sentencing cap, the trial court will
choose from a range of potential sentences.
As with an open plea, there is always the
danger that the court will not properly exer-
cise its discretion. To prohibit such a
defendant from appealing an excessive sen-
tence simply because he 'bargained for' that
range is, in my opinion, fundamentally un-
fair." Sanders, 286 Ill. App. 3d at 1045,
678 N.E.2d at 88-89 (Holdridge, J., specially
concurring).
We also reject this argument. First, it is unclear why
it is unfair to give a defendant that for which he bargained. If
a defendant does not wish to be subject to the full range of sen-
tences, he should try to bargain with the prosecutor for a more
limited range. Second, Rule 604(d) does not bar a defendant from
appealing an excessive sentence, but instead requires him to
withdraw his guilty plea and establish the sentence correction is
necessary to correct a manifest injustice. Evans, 174 Ill. 2d at
332, 673 N.E.2d at 250.
Finally, even without a motion to withdraw, Catron will
not bar every claim of error. A defendant can still proceed on a
motion to reconsider where the defendant appeals because the
trial court misapplied the law by considering improper sentencing
factors, and not merely because the sentence was excessive
(Catron, 285 Ill. App. 3d at 37-38, 674 N.E.2d at 142), so long
as that issue was included in his motion to reconsider sentence
(145 Ill. 2d R. 604(d)).
One of defendant's arguments falls within this excep-
tion. Defendant committed the offense of domestic violence after
he started receiving treatment and there was no evidence defen-
dant was under the influence of drugs at the time of the offense.
A defendant will not be sentenced to probation with TASC supervi-
sion if the trial court finds no significant relationship between
the defendant's drug use and the crime committed. 20 ILCS
301/40-10(b) (West 1994).
Defendant argues the trial court misapplied TASC guide-
lines when it relied on his domestic battery conviction as a rea-
son to find no significant relationship exists between the addic-
tion of the defendant and the crime committed, because domestic
violence was not one of the crimes for which he was being sen-
tenced. The court specifically stated defendant's other crimes
were significantly related to his drug use and no party contests
this finding on appeal. Defendant preserved this argument for
review by raising it in his motion to reconsider sentence. 145
Ill. 2d R. 604(d).
The appellate record clearly supports the trial court's
decision. First, because the trial court could properly consider
the domestic violence conviction for an alternative purpose,
defendant was not likely to be prejudiced by the trial court's
alleged error. The trial court may deny defendant enrollment in
the TASC program if it determines imprisonment is necessary to
protect the public. 20 ILCS 301/40-10(b) (West 1994). A trial
court is not to consider just the circumstances of the offense
being sentenced in determining whether he poses a threat to the
public, but also the history, character and condition of the
individual. 20 ILCS 301/40-10(b) (West 1994). Even though
defendant's drug use was significantly related to the crimes for
which he was being sentenced, the trial court was not bound to
ignore the underlying potential for violence reflected in these
crimes. While defendant's domestic violence offense was not one
of the crimes for which defendant was being sentenced, that con-
viction could properly be considered to determine how much vio-
lence potential remained when defendant was sober. Cf. People v.
Whitehead, 171 Ill. App. 3d 900, 907, 525 N.E.2d 1084, 1088
(1988) (despite general rule against admitting evidence of
defendant's prior bad acts to establish criminal propensity and
likelihood defendant committed crime, defendant's prior threats
were admissible to demonstrate defendant's violent act was not
the product of temporary insanity or intoxication).
Regardless of whether the trial court also considered
the domestic violence conviction in determining whether
defendant's addiction was significantly related to his crimes,
the findings regarding the need to protect the public from defen-
dant and the low likelihood of rehabilitation provide sufficient
grounds for its decision. See People v. Gernant, 242 Ill. App.
3d 833, 835, 610 N.E.2d 722, 724 (1993). Defendant was a repeat
offender who had already been given the opportunity to rehabili-
tate himself. He was given a second chance on probation after he
committed domestic battery. He failed probation a second time.
Several of his offenses had victims and demonstrated a propensity
for violence. The trial court did not err in rejecting proba-
tion. Defendant has waived his appeal as to these alternative
grounds and moreover, upon reviewing the record we find adequate
support for the trial court's findings regarding them. Accord-
ingly, we affirm. See Leonardi v. Loyola University, 168 Ill. 2d
83, 97, 658 N.E.2d 450, 457 (1995) (a reviewing court may sustain
a decision on any grounds called for by the record, regardless of
the original basis for the decision and regardless of the accura-
cy of the reasoning).
III. CONCLUSION
We affirm the sentence imposed by the trial court.
Affirmed.
GARMAN and GREEN, JJ., concur.
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