No. 2--95--1108
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 93--CF--819
v. )
)
CHRISTOPHER JOHNSON, ) Honorable
) Barry E. Puklin,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Christopher Johnson, appeals the trial court's
order denying his motion to reconsider sentence. The court
conducted a new hearing on the motion after this court reversed the
trial court's previous order because defense counsel failed to
comply with Supreme Court Rule 604(d). Defendant contends that (1)
the court erred in refusing to consider evidence of his good
behavior in prison while the prior appeal was pending and (2) he is
entitled to 421 days' credit against each of his four consecutive
sentences.
Defendant was charged by indictment with 10 counts of armed
robbery (720 ILCS 5/18--2 (West 1994)), 14 counts of robbery (720
ILCS 5/18--1 (West 1994)), and one count of attempted robbery.
However, one count of armed robbery and one count or robbery were
deleted from the indictment.
On May 2, 1994, defendant pleaded guilty to one count of armed
robbery in exchange for the State striking the words "with a gun"
from the indictment. Two additional counts were dismissed as
lesser included offenses.
On July 13, 1994, the State agreed to dismiss 13 charges which
were subject to a pending appeal in exchange for defendant's
agreement to plead guilty to 5 counts of armed robbery, 1 count of
robbery and 1 count of attempted robbery. There was no agreement
concerning the sentence.
The court sentenced defendant to four consecutive six-year
terms of imprisonment for four robberies in which a gun was used.
The court ordered these sentences to be served concurrently with
two concurrent six-year terms for armed robbery, one three-year
term for robbery, and one two-year term for attempted robbery.
Defendant filed a motion to reconsider the sentences. The
court denied the motion and defendant appealed.
This court reversed, finding that defense counsel had failed
to file the certificate required by Supreme Court Rule 604(d) (145
Ill. 2d R. 604(d)). People v. Johnson, No. 2--94--1079 (June 13,
1995) (unpublished order under Supreme Court Rule 23). This court
remanded the cause to the trial court to conduct a new hearing on
the motion to reconsider sentence.
Following remand, defense counsel filed the required
certificate and the court conducted a new hearing. Defense counsel
asked the court to consider evidence of defendant's "positive
accomplishments" in prison while the first appeal was pending. The
court refused to allow such evidence. The court denied the motion
to reconsider and defendant filed this appeal.
Defendant contends that the trial court erred in refusing to
consider evidence of his accomplishments in prison during the
pendency of the first appeal. The State initially responds that we
lack jurisdiction to hear this appeal because a defendant may not
move to reconsider a sentence imposed pursuant to a partially
negotiated guilty plea. Alternatively, the State contends that, at
a hearing on a motion to reconsider sentence, the court should
consider only evidence which was available at the time of the
original sentencing hearing. Because defendant's proffered
evidence related to events occurring after his sentencing hearing,
the court properly refused it.
Noting that it agreed to dismiss several charges in exchange
for defendant's guilty plea to the remaining counts, the State
argues that defendant was thereby precluded from filing a motion to
reconsider his sentence. The State relies on People v. Evans, 174
Ill. 2d 320 (1996), in which the supreme court held that "following
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." Evans, 174 Ill.
2d at 332.
The State reads Evans too broadly. The quoted statement must
be read in the context of the holding of that case. In both
consolidated cases comprising the Evans decision, defendants agreed
to specific sentences in exchange for their guilty pleas. The
supreme court held that under the circumstances "the guilty plea
and the sentence 'go hand in hand' as material elements of the plea
bargain." Evans, 174 Ill. 2d at 332. It would be unfair, the
court said, to allow defendants to challenge only their sentences
because doing so would deprive the State of the benefit of its
bargain. Evans, 174 Ill. 2d at 332.
The court noted that a different rule applies to "open" guilty
pleas, those in which defendants plead guilty without receiving any
promises from the State. In those cases:
"[T]he trial court exercises its discretion and determines the
sentence to be imposed. 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, citing People v. Wilk, 124 Ill. 2d 93, 110 (1988);
People v. Wallace, 143 Ill. 2d 59, 60 (1991).
The plea in this case was partially negotiated. The State
agreed to drop certain charges in exchange for defendant's plea,
but the parties reached no agreement on sentencing. The sentence
to be imposed was left to the court's discretion. Thus, the same
policy reasons applicable to "open" pleas also apply here. There
is no logical basis to allow a defendant who has no agreement with
the State to challenge the court's discretion in imposing sentence,
while denying such a right to a defendant who agrees with the State
on issues not related to the sentence, leaving the sentence to the
court's discretion.
In People v. Wendt, 283 Ill. App. 3d 947 (1996), an opinion
issued six days after Evans, this court reached a similar result
and held that a defendant is precluded from challenging his
sentence only if the trial court effectively exercised no
discretion in imposing it. Wendt, 283 Ill. App. 3d at 952. This
holding is consistent with the policy expressed in Evans that a
defendant may move to reconsider his sentence where the court
exercised discretion in sentencing rather than imposing an agreed-
upon sentence. Thus, defendant's motion to reconsider his sentence
was proper and we have jurisdiction to review the court's order
denying it.
We agree with the State, however, that the trial court
properly refused to consider evidence of defendant's
"accomplishments" in prison during the prior appeal. We recently
rejected the same argument. In People v. Vernon, No. 2--95--0166
(2d Dist. December 12, 1996), we held that the purpose of a motion
to reconsider a sentence is not to obtain a new sentencing hearing.
Rather, such a motion allows the trial court to review the
appropriateness of the sentence already imposed. Vernon, slip op.
at 4. Accordingly, evidence of events occurring after the original
sentence was imposed is improper. We stated:
"When ruling on a motion to reconsider a sentence, the trial
court should limit itself to determining whether the initial
sentence was correct; it should not be placed in the
position of essentially conducting a completely new
sentencing hearing based on evidence that did not exist when
defendant was originally sentenced." Vernon, slip op. at 5.
For the same reasons, the trial court here properly refused to
consider evidence of defendant's conduct after the original
sentencing hearing.
Defendant next contends that he is entitled to credit for 421
days spent in custody before trial and that the credit should apply
to each of his consecutive sentences. The trial court granted him
the credit only against the first sentence. The State responds
that the four consecutive sentences are more properly considered as
a single aggregate sentence to which only one credit should apply.
Section 5--8--7(b) of the Unified Code of Corrections states:
"The offender shall be given credit on the determinate
sentence *** for time spent in custody as a result of the
offense for which the sentence was imposed ***." 730 ILCS
5/5--8--7(b) (West 1994).
In People v. Robinson, 172 Ill. 2d 452 (1996), the supreme
court held that the plain language of section 5--8--7(b) requires
that a defendant receive credit against each sentence imposed for
an offense for which he was in custody where he was simultaneously
in custody on more than one offense. Robinson, 172 Ill. 2d at 462-
63. Here, there is no indication in the record that defendant was
not simultaneously in custody for each of the four offenses for
which he received consecutive sentences. Therefore, under
Robinson, he is entitled to a separate credit against each of those
four sentences.
We reject the State's contention that Robinson is
distinguishable because it was based on an "aberrant situation."
Robinson's holding clearly applies to this situation. Therefore,
we modify defendant's sentence to provide for 421 days' credit
against each of the four consecutive sentences.
The judgment of the circuit court of Kane County is affirmed
as modified.
Affirmed as modified.
INGLIS and RATHJE, JJ., concur.