Illinois Official Reports
Appellate Court
People v. Gooch, 2014 IL App (5th) 120161
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption v. KIP GOOCH, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0161
Filed September 3, 2014
Held The 12-year sentence imposed on defendant for the criminal sexual
(Note: This syllabus assault of his daughter was upheld over his contention that the
constitutes no part of the sentence was excessive in view of his cooperation with the State,
opinion of the court but including his voluntary guilty plea, since his guilty plea to criminal
has been prepared by the sexual assault was in exchange for the dismissal of two counts of
Reporter of Decisions predatory criminal sexual assault, the parties agreed that the plea was
for the convenience of an open plea and that the trial court would impose the sentence after a
the reader.) sentencing hearing, there was no agreement or negotiations as to his
sentence, defendant was not required to withdraw his guilty plea and
vacate the judgment before he could seek reconsideration of his
sentence, and in view of the facts that the sentence was within the
statutory limits and that defendant would have had to serve
consecutive terms for the two counts of predatory criminal sexual
assault, if he had been convicted on those counts, the sentence was not
an abuse of discretion.
Decision Under Appeal from the Circuit Court of Williamson County, No. 09-CF-484;
Review the Hon. John Speroni, Judge, presiding.
Judgment Affirmed.
Counsel on Bryan A. Drew, Jason D. Drew, and Katie M. Oehmke, all of Drew &
Appeal Drew, P.C., of Benton, for appellant.
Charles Garnati, State’s Attorney, of Marion (Patrick Delfino,
Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Chapman and Cates concurred in the judgment and opinion.
OPINION
¶1 Defendant, Kip D. Gooch, was charged by the circuit court with criminal sexual assault
after he knowingly committed acts of sexual penetration with his daughter, a minor.
Defendant’s criminal sexual assaults of his daughter stretched over a period of eight years,
and defendant’s daughter was a minor at the time of each attack. Criminal sexual assault is a
Class 1 felony that carries a sentence of 4 to 15 years’ incarceration. 720 ILCS 5/12-13 (West
2010). The circuit court sentenced defendant to 12 years in the Illinois Department of
Corrections. After his sentencing, defendant filed a motion to reconsider the sentence, which
the circuit court denied. Defendant filed a timely notice of appeal.
¶2 On appeal, defendant raises the issue as to whether the circuit court abused its discretion
when it sentenced defendant to 12 years in the Illinois Department of Corrections, alleging
that 12 years was an excessive sentence after defendant had cooperated with law enforcement
and entered a voluntary plea of guilty. The State asserts that the sentence was not an abuse of
the circuit court’s discretion. The State also alleges that defendant entered into a partially
negotiated guilty plea rather than an open plea, and, therefore, defendant was required to file
a motion to withdraw his guilty plea before appealing his sentence. We affirm defendant’s
sentence and reject the State’s position arguing a partially negotiated guilty plea.
¶3 BACKGROUND
¶4 On December 14, 2009, defendant was charged by information with several criminal
offenses, the relevant charges here being two counts of predatory criminal sexual assault of a
child (720 ILCS 5/11-1.40 (West 2010)) and one count of criminal sexual assault (720 ILCS
5/12-13 (West 2010)). The victim was defendant’s daughter, a minor who was first sexually
abused by defendant at the age of five in 2001. The assaults continued over an eight-year
period from 2001 to 2009. The charges alleged specific physical acts. The first count of
predatory criminal sexual assault of a child alleged that defendant inserted a vibrator into the
victim’s vagina. The second count of predatory criminal sexual assault of a child alleged that
defendant inserted his finger into the victim’s vagina. The third count of criminal sexual
assault alleged that defendant put his tongue in the victim’s vagina.
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¶5 Defendant reached a plea agreement with the State in which he agreed to plead guilty to
the single count of criminal sexual assault in exchange for the dismissal of the two counts of
predatory criminal sexual assault. Defendant was sentenced to 12 years in the Illinois
Department of Corrections. Criminal sexual assault has a range of punishment from 4 to 15
years in the Illinois Department of Corrections. After his sentencing, defendant filed a pro se
motion to reconsider his sentence under Illinois Supreme Court Rule 604(d) (eff. July 1,
2006), which the circuit court denied. Defendant now appeals the circuit court’s 12-year
sentence, arguing that the sentence was excessive and an abuse of the circuit court’s
discretion. Also on appeal, the State argues that the agreement defendant entered into was a
partially negotiated guilty plea rather than an open plea, and therefore defendant was required
to withdraw his guilty plea and vacate the judgment entered before he could file a motion to
reconsider his sentence.
¶6 ANALYSIS
¶7 The issue defendant raises on appeal is that his 12-year sentence was excessive and an
abuse of the circuit court’s discretion. We disagree. Defendant pled guilty to one count of
criminal sexual assault. Criminal sexual assault is a Class 1 felony that carries a sentence of 4
to 15 years in the Illinois Department of Corrections. 720 ILCS 5/12-13 (West 2010).
¶8 The State points out that the circuit court has broad discretion when imposing a sentence
and that its judgment is entitled to great deference. People v. O’Neal, 125 Ill. 2d 291, 297,
531 N.E.2d 366, 368 (1988). However, the discretion of the circuit court’s sentencing does
have limits (People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000)), as the
court’s sentence must be fair-minded and equitable. People v. Blumstengel, 61 Ill. App. 3d
1016, 1021, 378 N.E.2d 401, 404 (1978). It has been held that:
“where it is claimed that the punishment imposed is excessive, although within the
limitations prescribed by the legislature, that sentence should not be disturbed unless
it is greatly at variance with the purpose and spirit of the law or manifestly in excess
of the proscriptions of section 11 of article II of the Illinois constitution which
requires that all penalties should be proportioned to the nature of the offense. The trial
court is normally in a superior position during the trial and the hearing in aggravation
and mitigation to make a sound determination as to the punishment to be imposed
than are courts of review.” People v. Fox, 48 Ill. 2d 239, 251-52, 269 N.E.2d 720, 728
(1971).
If the circuit court’s sentence is within the statutory limits, there is a rebuttable presumption
that the sentence is appropriate. People v. Chambers, 258 Ill. App. 3d 73, 92, 629 N.E.2d
606, 620 (1994).
¶9 In this case, defendant was sentenced to three years less than the maximum for the crime
of criminal sexual assault, a sentence that was within the statutory limits. Furthermore, the
two counts of predatory criminal sexual assault of a child were dismissed in return for his
agreement to plead guilty to the single count of criminal sexual assault. If defendant had pled
to the two counts of predatory criminal sexual assault of a child, in addition to the single
count of criminal sexual assault, defendant would have been required to serve each count
consecutively to each other, which would have added 12 to 120 years to his existing 12-year
sentence. 720 ILCS 5/11-1.40(b)(2) (West 2010). Considering that defendant was sentenced
within statutory limits and that defendant’s plea agreement with the State dropped the two
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additional charges that would have been required consecutive sentencing, the circuit court’s
sentence was appropriate.
¶ 10 In his argument asserting that the circuit court’s sentence was excessive and an abuse of
discretion, defendant points to a number of mitigating factors that he alleges the circuit court
should have considered before determining his sentence. For example, defendant indicates
that, before this incident, he had not committed a crime since 1995. Defendant also points out
that the criminal sexual assault of his daughter was a single crime that involved a single
victim. What defendant fails to consider, however, is that he repeatedly committed this
heinous crime for approximately eight years going back to 2001, continuously sexually
assaulting his daughter until she revealed to her mother what had been taking place. At no
time during this eight-year period did defendant cease assaulting his daughter.
¶ 11 A sentence that the circuit court imposes is entitled to great deference and will not be
reversed without a finding of an abuse of discretion. Stacey, 193 Ill. 2d at 209, 737 N.E.2d at
629. Accordingly, a reviewing court may not reweigh aggravating and mitigating factors in
reviewing a defendant’s challenge to a sentence, and it may not substitute its judgment for
the trial court’s merely because it could or would have weighed the factors differently.
People v. Jones, 376 Ill. App. 3d 372, 394, 876 N.E.2d 15, 34 (2007).
¶ 12 Considering that defendant’s 12-year sentence was within statutory limits and that the
circuit court is in a superior position to make an appropriate determination as to the length of
punishment, the circuit court’s 12-year sentence was not an abuse of discretion.
¶ 13 The second issue raised on appeal is the nature of the plea that defendant entered into
with the State. The State argues defendant entered into a partially negotiated guilty plea
rather than an open plea, and because defendant entered into a partially negotiated plea that
involved a sentence concession by the State, defendant should have been required to move to
withdraw his guilty plea before filing a motion for sentence reconsideration under Supreme
Court Rule 604(d). We disagree.
¶ 14 During the proceedings that took place on August 29, 2011, both the State and defendant
stated that the terms negotiated between them were an open plea. The court asked the State
and defendant what the terms of the negotiation were. The State replied by saying, “[I]t’s an
open plea.” Defendant also replied by saying open plea. The court then declared that it “has
been advised that it is not, in fact, a negotiated plea *** it’s an open plea.” The court
subsequently asked the following question of defendant with the State present: “It’s your
clear understanding there is no negotiation in this case, that there will be a sentencing
hearing, and the court will impose the sentence?” Defendant replied, “Yes.” The court then
asked defendant, “[A]nyone forced or threatened you or made any promises to you to get you
to plead guilty?” Defendant replied, “No.”
¶ 15 The State contends that the type of plea defendant entered in this case resembles a
partially negotiated plea. A negotiated plea is different from an open plea. In an open plea,
both the defendant and the State are free to argue for any sentence permitted by statute, and
the circuit court exercises its full discretion in determining the sentence to be imposed.
People v. Lumzy, 191 Ill. 2d 182, 185, 730 N.E.2d 20, 21-22 (2000). Conversely, as the State
points out, when a defendant enters into a partially negotiated plea, the defendant pleads
guilty in exchange for a dismissal of pending charges and the State makes sentencing
concessions. Lumzy, 191 Ill. 2d at 185-86, 730 N.E.2d at 22.
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¶ 16 The court analyzed how a motion for sentence reconsideration under Supreme Court Rule
604(d) applies to negotiated pleas as opposed to open pleas in People v. Evans, 174 Ill. 2d
320, 673 N.E.2d 244 (1996). Evans involved a case in which the defendants were charged
with residential burglary, armed violence, and aggravated unlawful restraint. The defendants
and the State subsequently reached a negotiated plea agreement, whereby each defendant
pled guilty to the armed violence and aggravated unlawful restraint charges, and in exchange
the State dismissed the residential burglary charge and recommended specific sentences of
imprisonment for the two charges to which each defendant pled guilty.
¶ 17 Following the court’s sentencing, each defendant filed a motion for sentence
reconsideration under Supreme Court Rule 604(d). The State then challenged defendants’
motions, contending that it was unfair for defendants to agree to a negotiated plea agreement,
receive the benefits of that agreement by way of sentencing concessions, and then separately
challenge their negotiated sentences. The State argued that problems associated with plea
bargaining arrangements should be governed by contract law principles, and the guilty plea
and sentence “ ‘go hand in hand’ ” as material elements of the plea agreement. Evans, 174 Ill.
2d at 325, 673 N.E.2d at 246. As such, the State alleged the defendants could not challenge
only the sentence imposed as part of the negotiated plea without first withdrawing their guilty
plea. Otherwise, the State contended the two parties could not return to the status quo. The
court agreed with the State, holding that following the entry of judgment on a negotiated
guilty plea, a defendant must move to withdraw the guilty plea and vacate the judgment
before challenging his sentence so the parties can be returned to the status quo.
¶ 18 In contrast to how a motion for sentence reconsideration applies to a negotiated guilty
plea, the court in Evans also discussed how it applies to an open guilty plea. In an open plea,
the defendant pleads guilty “without receiving any promises from the State in return.” Evans,
174 Ill. 2d at 332, 673 N.E.2d at 250. Both defendant and the State are free to argue for any
sentence permitted by statute, and the circuit court exercises its full discretion in determining
the sentence to be imposed. Lumzy, 191 Ill. 2d at 185, 730 N.E.2d at 21-22. When an open
guilty plea is involved in a motion for sentence reconsideration, in which sentences are not
negotiated as part of the plea agreement, a defendant is not required to file a motion to
withdraw his guilty plea and vacate the judgment because he is not challenging his guilty
plea. As the court in Evans reasoned, “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.” Evans, 174 Ill. 2d at 332, 673 N.E.2d
at 250.
¶ 19 In this case, the State indicates it agreed to defendant’s plea of guilty to a single count of
criminal sexual assault in exchange for dismissal of the predatory criminal sexual assault
charges, and in doing so the dismissal of those charges resulted in a significant sentencing
concession by the State. The State asserts that when a plea involves a sentencing concession
by the State, a defendant is required to first move to withdraw the guilty plea and vacate the
judgment before any appeal. People v. Diaz, 192 Ill. 2d 211, 225, 735 N.E.2d 605, 612
(2000).
¶ 20 Diaz involved a negotiated plea agreement between the defendant and State whereby the
State agreed to dismiss several charges, agreed not to seek consecutive sentences, and agreed
that extended-term sentences would not be imposed in exchange for the defendant’s plea of
guilty to one count of aggravated criminal sexual assault. The court in Diaz concluded that a
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sentencing concession by the State causes the sentence imposed on defendant to be part of
the plea agreement reached between defendant and the State. The court in Diaz found where
a plea agreement limits the State from arguing for a sentence from the full range of penalties
available under statute, a defendant must first move to withdraw his plea in the circuit court
before challenging the sentence imposed.
¶ 21 In this case, the State asserts that it lost the ability to obtain consecutive sentences against
defendant in its plea by dismissing three charges in exchange for defendant’s plea of guilty to
a single charge. Because this plea deal limits the State from arguing for a sentence from the
full range of penalties under statute, the State contends, defendant must move to withdraw his
plea before challenging his sentence as in Diaz. However, the State losing the ability to
obtain consecutive sentences from a plea cannot be viewed the same as the State’s
specifically including in a plea agreement that it will not pursue consecutive or
extended-term sentences. Whereas the plea in Diaz involved specific sentencing
recommendation language, the case at issue did not. In Diaz, the State agreed not to seek
extended-term sentences and consecutive sentences. No such language is present in the plea
agreement in this case. Where 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. Diaz, 192 Ill. 2d at 221, 735 N.E.2d at 610. When an
agreement is silent as to defendant’s sentence, the sentence does not go hand in hand with the
plea because the State has failed to include any aspect of sentencing as an element of the plea
agreement.
¶ 22 Accordingly, where a plea agreement reached between a defendant and the State is silent
as to sentencing, a defendant is not required to move to withdraw his guilty plea before
challenging his sentence. Lumzy, 191 Ill. 2d at 187, 730 N.E.2d at 23. A plea bargain that is
silent as to sentencing is equivalent to an open plea, and the motion-to-reconsider-sentence
clause of Rule 604(d) applies, permitting a defendant to file a motion to reconsider sentence
where only the sentence is challenged.
¶ 23 Moreover, by agreeing to drop a charge the State only makes a concession of
relinquishing its right to prove defendant’s guilt of that charge. As Justice Freeman stated in
his special concurrence in Lumzy: “To imply a sentencing concession on the part of the State
in this circumstance would require this court to presume that defendant was, in fact, guilty of
the charge. Such a presumption would, of course, fly in the face of the presumption of
innocence that exists in our criminal justice system.” Lumzy, 191 Ill. 2d at 189-90, 730
N.E.2d at 24 (Freeman, J., specially concurring). He continued in his special concurrence by
emphasizing courts should avoid a bright-line rule that places meaningless procedural
obstacles in the path of an appeal. We agree with Justice Freeman’s special concurrence, as a
sentence concession by the State in a plea agreement should not be perceived as a
presumption of defendant’s guilt as to those charges, and does not equate to language that
recommends a specific sentence. A concession of charges against defendant in a plea
agreement should not be characterized as negotiated, as it does not directly speak to the
sentence imposed.
¶ 24 In this case, the number of years of defendant’s sentence was never agreed upon, nor
were promises made to defendant regarding any sentencing constraints on the single count of
criminal sexual assault to which defendant pled guilty. Where it is absolutely clear that no
agreement existed between the parties as to defendant’s sentence, “defendant manifestly
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cannot be breaching such a nonexistent agreement by arguing that the sentence which the
court imposed was excessive.” Lumzy, 191 Ill. 2d at 187, 730 N.E.2d at 23. As such,
defendant cannot be prevented from appealing the length of his sentence under the facts
presented.
¶ 25 When a defendant pleads guilty in return for a dismissal of charges, the State and
defendant each receive what they agreed to, that being a guilty plea in exchange for a
dismissal of charges. In this case, the State and defendant did not agree to the length of
defendant’s sentence. The plea agreement was completely silent as to sentencing.
Accordingly, the length of defendant’s sentence was left to the circuit court’s discretion. This
was an open plea case, as both the State and defendant acknowledged below. As such,
defendant was not required to file a motion to withdraw the plea and vacate the judgment
prior to challenging his sentence.
¶ 26 CONCLUSION
¶ 27 For the reasons stated herein, we affirm the judgment of the circuit court of Williamson
County.
¶ 28 Affirmed.
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