NOTICE

This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0013 May 29, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ERIC K. NOBLE, ) No. 16CF728 Defendant-Appellant. ) ) Honorable ) Robert K. Adrian, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Steigmann and Justice Turner concurred in the judgment.

ORDER ¶1 Held: The appellate court dismissed the appeal because defendant did not withdraw his guilty plea before attempting to challenge his sentence as excessive, as required by Illinois Supreme Court Rule 604(d).

¶2 Defendant, Eric K. Noble, entered a negotiated plea of guilty to the offense of

aggravated domestic battery in exchange for, in relevant part, the State’s promise to cap its

sentencing recommendation at nine years’ imprisonment. At sentencing, the State recommended

a nine-year sentence, which the trial court ultimately imposed. Defendant appeals, arguing his

federal due process rights were violated by the court’s reliance on an improper aggravating

factor. Pursuant to our supreme court’s recent holding in People v. Johnson,

,

¶¶ 1, 57,

, we must dismiss defendant’s appeal, as he has failed to comply with

the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). ¶3 I. BACKGROUND

¶4 A. Charges

¶5 The State charged defendant by information with aggravated domestic battery

(count I) (720 ILCS 5/12-3.3(a-5) (West 2014)), aggravated battery (count II) (id. § 12-

3.05(d)(2)), and attempt (first degree murder) (count III) (id. § 8-4(a)). All three counts alleged

“that [defendant] choked [the victim] by placing his hands around her neck, knowing [the victim]

to be pregnant ***.”

¶6 B. Negotiated Plea Agreement

¶7 Defendant pleaded guilty to count I—aggravated domestic battery—in exchange

for the State’s promise to, among other things, dismiss the remaining charges and cap its

sentencing recommendation at nine years’ imprisonment. Prior to accepting defendant’s plea, the

trial court admonished him that count I carried with it a statutory sentencing range from 3 to 14

years in prison.

¶8 C. Postplea Proceedings

¶9 Defendant timely filed a motion to withdraw his guilty plea. He alleged his plea

was invalid because the day before he entered it, he had “refused and did not receive his late

evening dose of” a prescribed mood stabilizer. At the hearing on defendant’s motion, the

following exchange occurred between defendant and the trial court:

“THE COURT: The court has considered the evidence and the arguments

of Counsel. The court would deny the [d]efendant’s motion to withdraw his plea.

[Defendant] is obviously lying to the [c]ourt when he gets up here and

testifies that he doesn’t remember. [Defendant] seems to remember whether or not

he took medication on the day when he doesn’t remember whether or not he took

-2- the plea. He—you can go ahead and take him back there. He knows where he’s

going.

DEFENDANT: Yeah, I know. You’re racist. That’s what the f*** you is.

That’s what the f*** it is. You’re a racist.

THE COURT: You can take him out. Your motion is denied.

DEFENDANT: F*** you.

***

THE COURT: Okay. [Defendant] should be advised *** that his

comments in this courtroom today will certainly be considered in the sentencing

hearing. And I’m going to direct the [court] reporter to provide, if she took down,

provide the transcript of what was said as [defendant] was walking out of the

courtroom and provide that to the [d]efendant and put that in the record because

the [c]ourt will certainly make note and will use that as consideration in the

sentencing.”

¶ 10 D. Sentencing Hearing

¶ 11 In imposing a nine-year prison sentence, the trial court stated the following to

defendant at the sentencing hearing:

“THE COURT: ***

The court would note that your record also shows, and although you

apologized to the court today, and the court accepts your apology for that. You

have shown disrespect to this court, and the court would note other courts which,

because the court is aware of your sentencing in the last case, where you showed

disrespect to that court, and also you have at least two violations of order[s] of

-3- protection[], which means there were court orders that you violated. So that shows

disrespect to the court and disrespect to the law.

***

The court notes that you got a negotiation which cut down on the cap for

your sentence in this case. It is a cap of nine years.

***

The court is going to sentence you to nine years in the [D]epartment of

[C]orrections on this case. It is an [85%] sentence by law. It will be followed by

four years of mandatory supervised release.”

¶ 12 E. Postsentencing Proceedings

¶ 13 Defendant filed a motion to reconsider his sentence, raising an excessive-sentence

claim, which the trial court denied. Defendant did not file a motion to withdraw his plea

following his sentencing.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues the trial court violated his federal due process rights

by denying him both the benefit of his plea bargain and a fair sentencing hearing, “when the

court sentenced him to the maximum sentence due to its treating of his behavior in court as an

improper factor in aggravation.” The State responds by asserting the requirements of Rule 604(d)

prevent us from reaching the merits of defendant’s appeal. The proper application of Rule 604(d)

is reviewed de novo. Johnson,

, ¶ 22.

¶ 17 A. Illinois Supreme Court Rule 604(d)

-4- ¶ 18 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), governs the procedure

criminal defendants must follow when challenging a judgment entered upon a plea of guilty. It

provides, in relevant part:

“No appeal shall be taken upon a negotiated plea of guilty

challenging the sentence as excessive unless the defendant, within

30 days of the imposition of sentence, files a motion to withdraw

the plea of guilty and vacate the judgment. For purposes of this

rule, a negotiated plea of guilty is one in which the prosecution has

bound itself to recommend a specific sentence, or a specific range

of sentence, or where the prosecution has made concessions

relating to the sentence to be imposed and not merely to the charge

or charges then pending.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

The timely filing of a Rule 604(d) motion “is a condition precedent to an appeal from a judgment

on a plea of guilty.” People v. Flowers,

,

(2003).

Failure to comply with the rule does not deprive this court of jurisdiction, but it does preclude us

from considering the appeal on the merits, which requires dismissal.

¶ 19 The rationale underlying the Rule 604(d) filing requirement is premised on “the

nature of the plea agreement” and “the application of contract law principles.” Johnson,

, ¶ 27. When a plea agreement includes sentencing concessions by the State, “the guilty

plea and the sentence ‘go hand in hand’ as material elements of the plea bargain.” People v.

Evans,

,

(1996). As such, our supreme court has held

that it would violate principles of contract law to allow a defendant to attempt to unilaterally

modify the bargained-for sentence, while simultaneously holding the State to its end of the

-5- bargain. People v. Linder,

,

(1999). In other words,

“[b]y agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in

effect, agreeing not to challenge any sentence imposed below that cap on the grounds it is

excessive.”

¶ 20 B. Our Supreme Court’s Holding in Johnson

¶ 21 Recently, our supreme court resolved a split in authority in the appellate court

over the issue of “whether a defendant who enters into a negotiated plea agreement may

challenge a sentence that conforms to the plea agreement, on the ground that the trial court relied

on improper aggravating factors, without withdrawing his guilty plea under [Rule 604(d)].”

Johnson,

. Answering this question in the negative, the supreme court

rejected the defendant’s attempt to distinguish his claim from an excessive-sentence claim, on

the basis that “his challenge is one of constitutional dimension that implicates due process and

fundamental fairness.” Id. ¶ 36. The court found the argument “to be a distinction without a

difference for purposes of Rule 604(d)” (id. ¶ 41):

“[W]hen a defendant contends the court improperly

considered a statutory aggravating factor that was implicit in the

offense, the defendant is asserting that the court imposed a harsher

sentence than might otherwise have been imposed had the court

not considered the improper statutory factor. [Citation.]

Thus, defendant’s argument is essentially that, had the trial

court not erred in its application of the statute and had it not

erroneously considered those statutory factors, he would have

gotten a lower sentence than the 11-year sentence that was

-6- imposed. Stated another way, defendant contends the court

imposed an excessive sentence.” (Internal quotation marks

omitted.) Id. ¶¶ 38-39.

To hold otherwise, the court reasoned, “would result in making Rule 604(d)’s requirements

superfluous” by “allow[ing] almost every sentencing challenge in a criminal case to be restated

in a constitutional due process framework as a way to avoid the rule.” Id. ¶ 41. The court further

found that, where “the defendant entered into a negotiated plea agreement to a sentence that was

authorized by statute and was within the terms of the agreement[,]” it “does not undermine

judicial integrity” to hold that the “defendant’s recourse is to seek to withdraw the plea and

return the parties to the status quo ***.” Id. ¶ 53.

¶ 22 The Johnson court concluded by stating “we hold that a defendant who enters into

a negotiated plea agreement may not challenge his sentence on the basis that the court relied on

improper statutory sentencing factors. This type of sentencing challenge is an excessive sentence

challenge. Under Rule 604(d), a defendant’s recourse is to seek to withdraw the guilty plea and

return the parties to the status quo before the plea.” Id. ¶ 57.

¶ 23 C. Rule 604(d) Precludes Consideration of the Merits of Defendant’s Appeal

¶ 24 The instant case closely resembles Johnson. Here, defendant moved to withdraw

his guilty plea but was unsuccessful. On appeal, defendant has abandoned any argument that his

request to withdraw his guilty plea was erroneously denied. Instead, he argues the trial court

“sentenced him to the maximum sentence [under the negotiated plea] due to its treating of his

behavior in court as an improper factor in aggravation.” According to Johnson, this is essentially

an excessive sentence challenge which is not allowed under the circumstances.

-7- ¶ 25 Defendant attempts to skirt the holding in Johnson by arguing “[t]he trial court

altered the terms of [his] plea agreement by considering an improper factor at sentencing, which

denied [him] the benefit of his bargain where he did not waive his constitutional rights to a fair

sentencing hearing and violated his federal due process rights.” Defendant goes on to claim

“[t]he term of the plea agreement altered by the trial court was [defendant’s] understanding that

he would be sentenced based on proper sentencing factors.”

¶ 26 We find defendant’s argument to be without merit. Indeed, according to

defendant’s theory, in any case involving a negotiated guilty plea, if a trial court were to err in its

consideration of a factor in aggravation, it would constitute an error of constitutional magnitude

as it would have “altered the terms of [the defendant’s] plea agreement”—because “he did not

waive his constitutional rights to a fair sentencing hearing”—thus, denying the defendant the

benefit of his bargain. Defendant has not cited to any authority supporting his theory that a

court’s error in sentencing as described is tantamount to an alteration of the terms of a plea

agreement. We decline to so find.

¶ 27 Here, where defendant was sentenced according to a negotiated plea agreement,

his only recourse was to move to withdraw his guilty plea pursuant to Rule 604(d). He was

unsuccessful in doing so and has abandoned any claim of error in that regard. The claim he

makes on appeal is an excessive sentence claim which is not allowed according to Johnson.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we dismiss the appeal.

¶ 30 Appeal dismissed.

-8-