FILED

May 19, 2021 Carla Bender NO. 4-20-0515 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County JACOB D. ROBINSON, ) No. 18CF361 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justices Holder White and Steigmann concurred in the judgment and opinion.

OPINION ¶1 In December 2018, the State charged defendant, Jacob D. Robinson, with two

counts of aggravated driving under the influence of alcohol (DUI), one count of driving while his

driver’s license was revoked, and other petty traffic offenses. In October 2019, defendant pleaded

guilty to all counts, and the State agreed to cap its sentencing recommendation at 18 years in the

Illinois Department of Corrections (DOC). In December 2019, the trial court sentenced defendant

to 20 years in DOC on count I of the aggravated DUI charge, merging count II with count I and

entering convictions on the other traffic offenses.

¶2 On appeal, defendant argues (1) the trial court’s 20-year sentence was excessive

and (2) the trial court erred in sentencing by relying on improper factors before sentencing

defendant. For the reasons set forth below, we dismiss this appeal. ¶3 I. BACKGROUND

¶4 In December 2018, the State charged defendant by information with two counts of

aggravated DUI (625 ILCS 5/11-501(d)(1)(A) (West 2018)). Both counts were charged as Class 2

felonies based on defendant’s prior DUI convictions (625 ILCS 5/11-501(d)(2)(C) (West 2018)),

and defendant was subject to Class X sentencing on these counts due to his prior criminal record

(730 ILCS 5/5-4.5-95(b) (West 2018)). Defendant was also charged with driving while license

revoked, a Class A misdemeanor (625 ILCS 5/6-303(a) (West 2018)), and other petty traffic

tickets.

¶5 In October 2019, defendant pleaded guilty to all of the counts in exchange for the

State’s agreement to recommend a sentence no greater than 18 years in DOC. By the time of the

plea, defendant was aware he was otherwise subject to mandatory Class X sentencing. After

hearing the terms of the plea, the following colloquy occurred during the trial court’s Rule 402

admonishments (Ill. S. Ct. R. 402 (eff. July 1, 2012)):

“THE COURT: Now, you have a very limited agreement

with the State. It sounds like their agreement is that they would cap

their recommendation to 18 years. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you are aware that the Court is not bound

by that cap or that recommendation. So it is possible in this case

since you are mandatory Class X sentencing on Counts 1 and 2 that

you could be sentenced to up to 30 years in the Illinois [DOC].

Do you understand that?

THE DEFENDANT: Yes, Your Honor.

-2- THE COURT: And it is a minimum six years so you could

get more than 18 years. You can get less than 18 years, but it’s going

to be somewhere between six and 30.

THE DEFENDANT: Yes, Your Honor.”

¶6 At the sentencing hearing in December 2019, neither the State nor defendant

offered any evidence, electing instead to rely on the contents of the presentence investigation

report. The State argued for a sentence of 18 years in accordance with the plea agreement, pointing

to defendant’s “severe risk” to the community. Defendant, pointing to his mental and medical

health issues, alcoholism, and sense of remorse, recommended the minimum sentence of six years.

The trial court sentenced defendant to 20 years on count I, merged count I with count II, and

entered a conviction on the other traffic offenses. The trial court’s appeal rights admonishment

included the following:

“[p]rior to taking an appeal, you must file in this court within 30

days of today’s date a written motion asking to have the trial court

reconsider the sentence or to have the judgment vacated and for

leave to withdraw your plea of guilty setting forth your grounds for

the motion.”

Although this admonishment does not comport with Illinois Supreme Court Rule 605(c) (eff. Oct.

1, 2001) (setting forth admonitions a defendant must substantially receive upon a negotiated plea

of guilty), it is not raised as an issue on appeal, and the deficiencies contained therein do not affect

the outcome of this case. Further, at the later motion to reconsider his sentence, defendant’s

counsel, in response to an inquiry by the trial court, confirmed, incorrectly, that proper Rule 605(c)

admonishments had been given.

-3- ¶7 In late December 2019, defendant filed a motion to reconsider his sentence, arguing

the trial court’s sentence was excessive because it failed to consider certain statutory factors in

mitigation. In January 2020, defendant, represented by different counsel, filed another motion to

reconsider the sentence, claiming the “sentence imposed was excessive,” along with a “Motion to

Withdraw Plea and Vacate Judgment,” claiming (1) defendant “did not enter the guilty plea

voluntarily and knowingly, (2) [d]efendant was denied effective assistance of counsel, and

(3) [a]ny and all other error that appears on the record.” In July 2020, the trial court denied

defendant’s amended motion to reconsider sentence. In October 2020, the court heard defendant’s

motion to withdraw his guilty plea. At the hearing, defendant’s counsel, another new attorney,

stated he discussed with defendant the fact that Illinois Supreme Court Rule 604(d) (eff. July 1,

2017) required the filing of a motion to withdraw the plea prior to perfecting an appeal, and they

agreed to stand on the motion filed by prior counsel with no further argument. The State had no

argument, and the trial court denied the motion.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 On appeal, defendant argues the trial court improperly denied his motion for

reconsideration and the trial court’s 20-year sentence is excessive. Defendant also contends the

court considered improper factors at sentencing. Defendant does not challenge the trial court’s

denial of his motion to withdraw his guilty plea. The State raises a threshold issue, claiming

defendant cannot challenge the sentence imposed pursuant to a negotiated plea and asks us to

dismiss this appeal, citing People v. Johnson,

,

. Alternatively,

the State contends the trial court did not abuse its discretion in sentencing defendant to 20 years in

-4- DOC. We agree with the State’s first argument and, therefore, need not reach the merits of the

second.

¶ 11 The timely filing of a motion to withdraw a plea pursuant to Illinois Supreme Court

Rule 604(d) (eff. July 1, 2017) “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 us of jurisdiction, but it does preclude

us from considering the appeal on the merits, requiring dismissal instead. Flowers,

. Whether Rule 604(d) was properly applied is reviewed de novo. Johnson,

,

¶ 22. Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) states, in part:

“[n]o 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.”

¶ 12 There is a rationale underlying the Rule 604(d) restriction on challenges to

excessive sentences without first seeking to withdraw from a negotiated plea. It is premised on

“the nature of the plea agreement” and “the application of contract law principles,” as most recently

explained by our supreme court in Johnson,

. In Johnson, the court discussed

-5- the evolution of Rule 604(d) and its application to various forms of guilty pleas, which proves

helpful in this case.

¶ 13 The court began by discussing its earlier decision in People v. Evans,

,

(1996), which held that a defendant may not seek to reduce his sentence by

filing a motion for sentence reconsideration after he pleaded to certain charges in exchange for an

agreement to dismiss other charges and to recommend a specific sentence—a plea arrangement

characterized as “negotiated.” Evans,

; see Johnson,

. That

logic is sound enough. A defendant seeking to reduce an agreed-upon sentence is trying to hold

the State to its part of the bargain, while unilaterally seeking a sentence reduction.

¶ 14 Evans was a consolidation of two cases where both defendants entered pleas

involving the dismissal or reduction of charges in return for recommended specific sentences. In

each instance, defendants were taking advantage of agreements limiting their sentencing exposure,

then seeking to attack those same sentences as excessive. The Evans court, finding plea agreements

to be governed to some extent by constitutionally based contract law principles, held that under

the terms of a negotiated plea agreement (what Rule 604(d) characterizes as concessions by the

State relating to the sentence to be imposed) “the guilty plea and the sentence ‘go hand in hand’

as material elements of the plea bargain.” Evans,

. It held:

“[F]ollowing the entry of judgment on a negotiated guilty plea, even

if a defendant wants to challenge only his sentence, he must move

to withdraw the guilty plea and vacate the judgment so that, in the

event the motion is granted, the parties are returned to the status

quo.” Evans,

.

The supreme court’s rationale was not only contractually sound but just made sense.

-6- ¶ 15 The defendant in Johnson entered a slightly different negotiated plea, where the

State agreed to dismiss the more serious charges and cap any sentence exposure at 13 years. His

was a negotiated plea with a “recommended sentencing cap” or upper limit on the sentence he

could receive. Johnson,

. The defendant ultimately appealed his 11-year

sentence, abandoning any claim of error in the denial of his motion to withdraw plea and instead

seeking plain error review for what he claimed was an improper reliance on aggravating factors

in the trial court’s sentence. Johnson,

, ¶ 16. Our supreme court noted it had

already applied the same contract principles from Evans to a “recommended sentencing cap” in

People v. Linder,

,

(1999). Johnson,

, ¶ 28. The

question in Linder was “whether a defendant who pleads guilty in exchange for a cap on the

length of his sentence may challenge a sentence that is imposed within the range of the cap

without first moving to withdraw his guilty plea.” (Emphasis added.) Linder,

.

The answer, of course, was no. Once again, a defendant was seeking to receive the benefit of a

known upper limit to his sentence and a dismissal of other charges, and then take a shot at a

sentence reduction. Receiving the benefit of the bargain and then unilaterally seeking to sweeten

it could not be permitted. We said as much in People v. Catron,

,

(1996), three years earlier, when we held, “[b]y agreeing to a potential range of

sentences, a defendant implicitly concedes that a sentence imposed within the range cannot be

excessive.”

¶ 16 The Johnson court’s discussion of case law applying Rule 604(d) highlighted the

difference between those cases where no aspect of sentencing is part of the agreement, as in People

v. Lumzy,

,

(2000), and those where negotiations concern

both the charging and sentencing aspects of a case like that found in People v. Diaz, 192 Ill. 2d

-7- 211, 225,

(2000). In Lumzy, the State agreed to drop certain charges in return

for the defendant’s plea, with no agreement as to sentence. That, the court said, equated to a

circumstance where “absolutely no agreement existed between the parties as to [the] defendant’s

sentence.” (Emphasis in original.) Lumzy,

. As a result, the defendant in Lumzy

was not required to move to withdraw his plea as a condition precedent to challenging his sentence.

In Diaz, by contrast, the State dropped a number of Class X felonies and agreed to refrain from

seeking either extended-term or consecutive sentencing, for which the defendant was otherwise

eligible. Diaz,

. The supreme court found this was a negotiated plea as to both the

charging and sentencing aspects of the case, analogous to Evans and Linder, concluding with what

might be considered an unfortunate use of words: “if a plea agreement limits or forecloses the State

from arguing for a sentence from the full range of penalties available under law, in order to

challenge his sentence, a defendant must first move to withdraw his plea in the trial court.”

(Emphasis added.) Diaz,

. The wording was unfortunate because that language

appears to have served as the template for the 2000 amendment to Rule 604(d):

“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.” (Emphasis added.) Ill. S. Ct.

R. 604(d) (eff. Nov. 1, 2000).

¶ 17 But what about the situation before us in this case? Johnson’s discussion of relevant

case law provides no direct comparison for these facts. Here, defendant entered a “negotiated plea”

to the extent that the State agreed they would not “recommend” a sentence greater than 18 years;

-8- however, defendant was otherwise entering an open plea to all charges, which included Class X

felonies carrying a mandatory minimum of 6 years and a statutory maximum of 30 years. Unlike

Evans, this was not a plea to an agreed sentence. And unlike Linder or Johnson, it was not a plea

to an agreed cap or an agreed recommendation that limited his upward exposure. In essence, the

State gave up nothing but the opportunity to argue for a greater sentence and defendant received

nothing more than the hope the trial judge would feel constrained by the State’s recommendation.

Defendant’s plea exposed him to the entire range of sentences possible for all of the offenses

charged, and the trial court so informed him. The State, in our case, has not “bound itself to

recommend a specific sentence”; it agreed to recommend “no more than 18 years.” But Rule

604(d), as it currently reads, also defines a “negotiated plea” as one where the prosecution has

bound itself to recommend a “specific range of sentence.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

Unlike the fact patterns of Evans, Johnson, or Linder, the term “recommended sentencing cap”

had no binding effect on defendant’s possible sentence here. The trial court was not bound to a

specific range of sentences because the State’s “recommendation” did not limit defendant’s

exposure, as evidenced by the trial court’s Rule 402 admonishments. Again, unlike those cases

from which the Rule 604(d) language arose, defendant here was still subject to the entire range of

sentences possible under the statute. This is a negotiated plea in name only. In reality, defendant

pleaded “blind,” entering an open plea to all charges with no agreement as to sentence. Although

the State may have bound itself to recommend a range of sentence, it did so knowing the court was

not so bound. The State, in actuality, made no concessions relating to the sentence to be imposed,

but merely to the sentence to be recommended. More importantly, the court was still free to, and

did, impose a sentence in excess of the 18-year recommendation of the State. This is not a sentence

concession on the part of the State.

-9- ¶ 18 According to Diaz, “[t]he existence of a sentencing concession by the State

activates the application of the Evans rule,” which precludes unilateral attacks on negotiated

sentences, as the sentence is thereby made a part of the bargain between the parties. Diaz,

. This may be true in those instances where a State’s agreement to recommend “no more

than” amounts to a cap or ceiling on the defendant’s actual sentence exposure. However, the plea

agreement in this case only “limit[ed] or foreclose[ed] the State from arguing for a sentence from

the full range of penalties available under law.” (Emphasis added.) See Diaz,

. It

did not foreclose defendant’s exposure to the full range of sentences up to the 30-year statutory

maximum, and the trial court so advised defendant. However, Rule 604(d) and the cases applying

it make no distinction between “negotiated pleas,” where the State’s recommended sentencing cap

is an actual cap on a defendant’s sentencing exposure and those where it is not. The confusion is

even more evident when we see how this language from Linder (the reference to a recommended

sentencing cap) is often relied upon in other cases without distinction as well. This is so because,

in most instances, the State’s recommended cap is binding, and the sentence falls within the range

of agreed sentences. By way of factual example only, we list the following cases for which we

could access trial records: See People v. Sullivan,

(no dismissal or

reduction of charges, nonbinding recommended cap, court referred to it as an open plea at

sentencing and sentenced defendant to cap); People v. Noble,

(dismissal of charges and another case, State’s binding recommended cap was sentence defendant

received); People v. Millsap,

(plea to all counts, nonbinding

recommended cap, defendant sentenced above the cap); People v. DeRosa,

,

(2009) (dismissal of charges, no agreement as to sentences other than to be served

concurrently); People v. Brown,

(dismissal of other charges and

- 10 - binding recommended cap, defendant sentenced within the cap); People v. Knade,

(plea to all charges, binding recommended cap, sentenced within the cap); People

v. Sellner,

(plea to all charges, binding recommended cap, sentenced

within the cap); People v. Marks,

(dismissal of charges, binding

recommended cap, sentenced to cap); People v. Randle,

(dismissal

of charges, binding recommended cap was defendant’s sentence).

¶ 19 In People v. Gooch,

,

, for example, the

Fifth District, à la Lumzy, said a defendant did not have to move to withdraw his plea where the

State agreed to dismiss certain counts that exposed defendant to greater sentences, but there was

no agreement or negotiation as to his sentence. Examining Evans, Diaz, and Lumzy, the court

concluded, “[w]here the record is clear that no agreement existed between the parties as to

defendant’s sentence, a defendant is not required to withdraw his guilty plea before challenging

his sentence.” (Emphasis added.) Gooch,

(citing Diaz,

). In that instance, a “ ‘defendant manifestly cannot be breaching such a nonexistent

agreement by arguing that the sentence which the court imposed was excessive.’ ” Gooch,

(quoting Lumzy,

). The court in Johnson had also

observed, “under Rule 604(d) a defendant is not required to move to withdraw his guilty plea in

order to challenge his sentence where the plea bargain is silent as to sentencing.” (Emphasis

added.) Johnson,

.

¶ 20 It is arguable, under the facts before us, the plea bargain in this case was silent as

to sentencing, since the State’s nonbinding recommendation did not limit defendant’s sentence

exposure. It falls, however, under the unfortunate language of Rule 604(d), as a “negotiated plea

of guilty” where the prosecution has “bound itself to recommend *** a specific range of sentence.”

- 11 - Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Further, the State’s nonbinding recommendation in this

case would constitute the sort of sentencing concession referenced in Diaz and confirmed in

Johnson as sufficient to activate application of the Evans rule:

“if a plea agreement limits or forecloses the State from arguing for

a sentence from the full range of penalties available under law, in

order to challenge his sentence, a defendant must first move to

withdraw his plea in the trial court. If the court grants the motion,

both parties are then returned to the status quo as it existed prior to

the acceptance of the plea.” Diaz,

.

Unless and until we receive further clarification from our supreme court, a nonbinding

“recommended sentencing cap” must be treated the same as a “binding recommended sentence

cap,” even though they are substantively different in application. It would seem that when a

defendant’s “negotiated plea” has the same effect as an open plea the presence of a nonbinding

recommendation should not preclude an attack on the sentence as excessive without withdrawing

his plea.

¶ 21 We are obligated to follow Rule 604(d), as well as our supreme court’s directive in

Johnson, regarding the definitions currently given “negotiated pleas.” See Mekertichian v.

Mercedes-Benz U.S.A., L.L.C.,

,

(2004) (“After

our supreme court has declared the law with respect to an issue, this court must follow that law, as

only the supreme court has authority to overrule or modify its own decisions.”). Consequently,

under Rule 604(d), defendant was required to move to withdraw his guilty plea and vacate the

judgment, which he did. On appeal, however, he does not attack the trial court’s denial of his

motion to withdraw his guilty plea at all. Instead, he seeks either remand for a new sentencing

- 12 - hearing or resentencing to a lesser term of imprisonment pursuant to Illinois Supreme Court Rule

615(b) (eff. Jan. 1, 1967). Defendant attempts to get around both Rule 604(d) and the application

of Johnson by claiming that the trial court considered improper factors at sentencing. But this is,

in essence, the same as an excessive sentence claim. See, e.g., People v. Saldivar,

,

(1986); People v. Reed,

,

; Johnson,

.

¶ 22 In Johnson, the defendant did essentially the same thing. Instead of arguing the trial

court erred in denying his motion to withdraw, the defendant presented a new argument claiming

that the court improperly relied on aggravating factors at sentencing, creating an error sufficient to

implicate due process and fundamental fairness. Johnson,

. The Johnson

court rejected the defendant’s claim, finding defendant’s request to reconsider the sentence in his

appellate brief sought “to retain the State’s concession while freely challenging his sentence.”

Johnson,

. Our supreme court in Johnson held:

“[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.” Johnson,

.

¶ 23 Here, like in Johnson, defendant’s appeal presents an excessive sentence challenge

from a “negotiated plea,” which is improper. Johnson,

. In reversing the

appellate court’s decision, our supreme court in Johnson confirmed the proper procedure to pursue

when challenging a negotiated sentence is a motion to withdraw the guilty plea. Johnson, 2019 IL

- 13 - 122956, ¶ 57. Defendant’s abandonment of any argument regarding the trial court’s denial of his

motion to withdraw his plea does not permit him to argue his sentence was excessive.

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

recourse was to file a motion to withdraw his guilty plea and argue on appeal how the trial court

erred in denying his motion. He failed to do so. Pursuant to Johnson, we may not now consider

defendant’s claim that the trial court relied on improper sentencing factors, since this constitutes

an excessive sentence claim, which is not allowed.

¶ 25 III. CONCLUSION

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

¶ 27 Appeal dismissed.

- 14 - No. 4-20-0515

Cite as: People v. Robinson,

Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 18-CF- 361; the Hon. Jennifer H. Bauknecht, Judge, presiding.

Attorneys Mark D. Johnson, Johnson Law Group LLC, of Bloomington, for for appellant. Appellant:

Attorneys Randy Yedinak, State’s Attorney, of Pontiac (Patrick for Delfino, David J. Robinson, and David E. Mannchen, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

- 15 -