NOTICE

This order was filed under Supreme FILED NO. 4-18-0828 December 7, 2020 Court Rule 23 and may not be cited 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. ) Livingston County DUSTIN SULLIVAN, ) No. 18CF10 Defendant-Appellant. ) ) Honorable ) Jennifer Hartmann ) Bauknecht, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Knecht and Cavanagh concurred in the judgment.

ORDER ¶1 Held: The appellate court dismissed the appeal because defendant did not move to withdraw his guilty plea before attempting to challenge his sentence as excessive, as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶2 Defendant, Dustin Sullivan, entered a negotiated plea of guilty to the offense of

aggravated battery in exchange for the State’s promise to cap its sentencing recommendation at

20 years’ imprisonment. At sentencing, the State recommended a 20-year sentence, which the

trial court ultimately imposed.

¶3 Defendant appeals, arguing his federal due process rights were violated by the

court’s reliance on an improper aggravating factor and failure to consider a mitigating factor.

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

, ¶¶ 1, 57,

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

requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶4 I. BACKGROUND

¶5 A. Charges

¶6 In January 2018, the State charged defendant by information with two counts of

aggravated battery (720 ILCS 5/12-3.05(b)(1) (West 2016)), alleging defendant knowingly

caused great bodily harm to B.A.K., a child under 13 years of age, in that he “struck B.A.K.

about the head causing a skull fracture and subdural and subarachnoid hemorrhages,” and

“constricted the body of B.A.K. so as to cause fractures to [her] ribs.”

¶7 B. Negotiated Plea Agreement

¶8 In July 2018, defendant pleaded guilty to both counts in exchange for the State’s

promise to cap its sentencing recommendation at 20 years’ imprisonment. Prior to accepting

defendant’s plea, the trial court admonished him that the charges carried a statutory sentencing

range from 6 to 30 years in prison.

¶9 C. Sentencing Hearing

¶ 10 On November 5, 2018, at defendant’s sentencing hearing, the trial court stated the

following, in relevant part:

“And so when I consider the aggravating factors in this case, one of them

is the seriousness of the offense and also the harm that was caused. And here it’s

about *** as serious as it can get. It’s about as bad as it can get. We do see

aggravated batteries that are unfortunate of people getting stabbed or shot ***.

But when you can’t recover and when you are just a young, little baby doing what

-2- babies do, *** it just doesn’t get a whole lot worse than that in terms of an

aggravated battery, which is the charge that you’re being sentenced on today.

***

And I think deterrence is very, very strong. And of course you were in a

position of trust, which is a factor in aggravation.

I don’t think the age is a factor I can consider in aggravation as it’s a part

of the offense so I’m not considering [B.A.K.’s] age. But I do believe that she,

that you held obviously a position of trust when you have just a helpless little—I

think she was two months at the time, somewhere around there—baby, helpless

really. So there are strong aggravating factors in this case.

I’m looking at the mitigating factors; and I understand what [defense

counsel] has argued ***. But in this particular case, I just don’t see any mitigating

factors that stand out. I don’t think the most important thing in this case is

rehabilitation. I think that that is, of course, something that the Court must

consider. But I don’t think it’s the number one consideration under the very

unfortunate and unique circumstances of this case.

So when I look at everything here, I really believe, and I do look at every

case on its own merits; and I think the State’s recommendation is reasonable in

this case.”

¶ 11 The trial court sentenced defendant to 20 years’ imprisonment. The court also

admonished defendant, explaining that, in order to appeal, he “must file in this court within 30

days of today’s date a written motion asking to have the Court reconsider the sentence or to have

-3- the judgment vacated and for leave to withdraw [his] plea of guilty setting forth [his] grounds for

the motion.”

¶ 12 D. Postsentencing Proceedings

¶ 13 On November 29, 2018, 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 guilty plea following his sentence.

¶ 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 improperly considered a factor inherent in the offense, and failed to consider any statutory

mitigating factors.” Specifically, defendant contends “[t]he court erred by considering the extent

of harm *** because great bodily harm is one of the elements required for the State to convict

him of aggravated battery of a child.” The State responds by asserting defendant’s failure to

satisfy the requirements of Rule 604(d) prevents 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)

¶ 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

-4- 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).

A defendant’s 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

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

-5- ¶ 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

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

-6- 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 Here, defendant attempts to skirt the holding in Johnson by arguing “the trial

court altered the terms of his plea agreement by denying [him] the benefit of his bargain where

he did not agree to waive his constitutional right to a fair sentencing hearing, and thus violated

his federal due process rights.” Defendant goes on to claim that he “was not sentenced in

accordance with the terms of the plea agreement when the trial court sentenced him based on

improper sentencing factors.”

¶ 25 However, like the defendant in Johnson, defendant in the instant case entered into

a negotiated guilty plea, the trial court sentenced him within the range contemplated by the plea

agreement, and defendant now maintains on appeal that the trial court relied on an improper

sentencing factor. As discussed above, our supreme court has rejected this argument where a

defendant enters into a negotiated plea agreement and later attempts to challenge his sentence

based on the trial court’s allegedly improper consideration of sentencing factors. See id. Further,

-7- the supreme court in Johnson stated that “[u]nder 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.; see also

Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 26 Accordingly, where defendant was sentenced pursuant to a negotiated plea

agreement, his only recourse was to move to withdraw his guilty plea, as required under Rule

604(d). He failed to do so, and pursuant to Johnson, we may not consider on appeal defendant’s

claim that the trial court relied on an improper sentencing factor when it sentenced him. The

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

Johnson.

¶ 27 III. CONCLUSION

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

¶ 29 Appeal dismissed.

-8-