NO. 4-96-0230
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
WILLIAM M. BUTCHER, ) No. 94CF569
Defendant-Appellant. )
) Honorable
) Thomas R. Appleton,
) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
This case concerns the admonitions a circuit court must
give a defendant before accepting an admission by the defendant
that the allegations of a petition seeking to revoke the probation
previously granted that defendant are true. We are also concerned
with defendants raising the issue of error in that regard for the
first time on appeal. We recognize that the admonitions need not
be as extensive as those required under Supreme Court Rule 402(a)
(134 Ill. 2d R. 402(a)) upon acceptance of a plea of guilty. See
People v. Beard, 59 Ill. 2d 220, 226-27, 319 N.E.2d 745, 748
(1974). However, under the circumstances shown by the record here,
we conclude that the admonitions were insufficient to provide due
process, and the issue was properly raised for the first time on
appeal.
On February 10, 1995, defendant, William Butcher, entered
a plea of guilty in the circuit court of Sangamon County to the
offense of felony theft (720 ILCS 5/16-1(a)(2) (West 1994)). On
April 7, 1995, that court sentenced defendant to 30 months'
probation. After one petition to revoke probation was withdrawn,
a second petition to revoke was filed on January 31, 1996. After
a hearing on March 8, 1996, where defendant admitted the
allegations of the second petition, the circuit court revoked the
probation and on March 22, 1996, sentenced defendant to four years'
imprisonment with credit for time served. Defendant has appealed.
We reverse and remand with directions to permit defendant to
withdraw his admission of grounds to revoke.
The problem presented here arises from the proceedings on
March 8, 1996. At that time, defense counsel informed the circuit
court that defendant was going to admit the allegations of the
second petition and "we have an agreement as far as the sentence to
propose to the Court." The court responded, "[w]hat is that?"
Defense counsel then explained that defendant would be sentenced to
two years' imprisonment with credit for time served. The court
then proceeded as follows:
"THE COURT: All right. The Court will
accept -- Well, before I do that, Mr. Butcher,
do you understand you have a right to a
hearing on the issue of whether or not you
violated your probation?
A. [Defendant]: Yes, sir.
THE COURT: And you understand that the
People would have the burden of proving by a
preponderance of the evidence that you in fact
violated your probation?
A. Yes, sir.
THE COURT: You are willing to waive that
right?
A. Yes, I am."
The court then stated it would "accept that admission"
but would "not accept the proposed negotiation of the parties" and
set the matter for sentencing. The court likely concluded the
agreement between the State and the defendant was that upon
defendant's admission of the probation violation, the State would
recommend to the trial court the sentence be two years. However,
the language used was ambiguous as to whether defendant was being
promised a two-year sentence if he admitted the probation
violation. We hold that under these circumstances the trial court
was under a duty to inquire as to what was the nature of the
promise by the State.
Both the Supreme Court of Illinois and this court have
protected defendants subject to petitions to revoke probation from
promises the State made to obtain admissions of conduct that are
grounds for revocation. In People v. Pier, 51 Ill. 2d 96, 99-100,
281 N.E.2d 289, 291 (1972), the court held that if such a defendant
admits a violation of probation "in reliance upon an unfulfilled
promise by the State's Attorney," such an admission is "not
voluntary." In Beard (59 Ill. 2d at 223-25, 319 N.E.2d at 746-47),
that court receded from the broad language of Pier and indicated
Pier should not be considered beyond the factual situation it
presented. However, in upholding an order revoking a probation,
the Beard court pointed out that no contention was made that such
a prosecution promise to the defendant had not been fulfilled. The
Beard court also recognized that due process requires some
admonition before admission of probation violations can be
considered.
In People v. Followell, 165 Ill. App. 3d 28, 31, 518
N.E.2d 706, 707-08 (1987), this court reversed an order revoking a
defendant's probation after the defendant had admitted the
allegations of the petition to revoke. Our ruling was based upon
the failure of the trial court to properly admonish the defendant.
We agreed that under Beard not all Rule 402(a) admonitions were
required but held that a required admonition was to inquire whether
the admission of the misconduct charged was based upon a promise.
In People v. Foehrer, 197 Ill. App. 3d 754, 757-58, 555 N.E.2d 58,
60 (1990), this court upheld a revocation of probation based upon
the defendant's admission, even though the trial court's
admonitions did not include inquiring as to whether any promises
had been made to the defendant. Nevertheless, we noted there that
no contention was made of any promises having been made to the
defendant. Here, the likelihood of a misunderstanding as to
whether the defendant was being promised a two-year sentence was
patent on the face of the record. Proper admonishment could easily
have avoided any misunderstanding.
Further confusion occurred at sentencing. Nothing was
said there about any agreement that defendant would receive only a
two-year sentence, but the prosecutor did state that the
prosecution was "still" asking that the sentence be for only two
years. After the court imposed sentence, it explained to the
defendant that he had a right to appeal that would require him to
move to vacate his admission, and if that motion was denied, he
would then have 30 days to appeal the order denying that motion.
The court then asked defendant if he understood his right to appeal
and defendant responded "[n]ot really." We are unaware of any case
requiring a defendant who has admitted violating his probation to
file a motion to vacate or withdraw his admission before he can
appeal the order revoking the probation.
The court then asked defendant if he wanted to appeal,
and defense counsel questioned whether the court was sentencing
defendant to four years' imprisonment despite the agreement the
defendant had with the prosecution in regard to two years. The
court stated that was so. Defense counsel stated they did want to
appeal and the court ordered the filing of a notice of appeal,
despite the admonition given that the filing of a motion to
withdraw the admission of a probation violation and obtaining a
ruling on that request would be a condition of a valid appeal.
The State does not request that the appeal be dismissed
because of the lack of an appealable order due to the failure of
the defendant to move to withdraw his admission. Rather, the State
calls attention to People v. Gazelle, 165 Ill. 2d 93, 649 N.E.2d
381 (1995), where the Supreme Court of Illinois upheld the
revocation of a defendant's probation based on the defendant's
admission of the grounds, even though in accepting the admission
the circuit court had given an inaccurate admonition as to whether
the defendant was subject to consecutive sentences. The supreme
court reasoned that violation of that defendant's probation was
shown by the record of the commission of other offenses and sending
the matter back to allow withdrawal of the admission of violation
would be a waste of time because the violation could be proved and
the sentence would be the same. Gazelle, 165 Ill. 2d at 95, 649
N.E.2d at 382.
Here, as no evidence was presented, we cannot say that
the violation of the probation was proved as a matter of record and
that defendant would receive the same sentence on remand although
that may be the case. We are concerned with the fact that the
issue of improper admonition was never raised in the circuit court.
Defense counsel could have moved to withdraw the admission in the
trial court and put on evidence to show that defendant was misled
by the discussion of an agreement and thought he would receive only
two years' imprisonment if he admitted the allegations of the
petition to revoke probation. However, neither in Beard,
Followell, nor Foehrer was any mention made of the defendant having
raised the issue of improper admonishment in the trial court.
Moreover, in cases where pleas of guilty have been set aside
because of inadequate admonishments, failure to raise the issue in
the trial court has not waived the issue for appeal. People v.
Davis, 145 Ill. 2d 240, 250, 582 N.E.2d 714, 719 (1991); see also
People v. Sutherland, 128 Ill. App. 3d 415, 417-18, 470 N.E.2d
1210, 1213 (1984).
Accordingly, we conclude that (1) the issue of inadequate
admonishment is properly before us, and (2) the circuit judge could
have and should have explained to the defendant that he had no
assurance in receiving only a two-year sentence and that failure
was reversible error. As indicated, we reverse the order revoking
probation and remand with directions to the circuit court of
Sangamon County for a rehearing on the petition to revoke
probation.
Reversed and remanded with directions.
KNECHT, J., concurs.
STEIGMANN, P.J., specially concurs.
PRESIDING JUSTICE STEIGMANN, specially concurring:
Although I concur fully in the result reached and the
reasoning underlying it, I specially concur because the circum-
stances of this case demonstrate the need for a fundamental--but
simple--change in Illinois law: when a defendant has pleaded
guilty (or, as in this case, admitted to allegations contained in
a petition to revoke his probation) pursuant to a plea agreement
that a specific sentence will be imposed and the trial court
chooses not to impose that sentence, then the court must give the
defendant an absolute right upon his request to withdraw his guilty
plea or admission.
The present case shows the need for this new rule. At
the March 8, 1996, hearing, defendant's lawyer informed the trial
court that he had reached a plea agreement with the State and
defendant would be admitting to the allegations of the petition to
revoke his probation. In response to the court's question as to
what the agreement was, counsel explained that defendant would be
sentenced to two years in prison with credit for time served.
Shortly thereafter, after asking defendant a few questions, the
court stated that it would accept his admission but would not
accept the agreement the parties had reached regarding sentencing.
I emphasize that the trial court committed no error in
rejecting the plea agreement. Sentencing remains a judicial
function, and courts are not required to accept plea agreements.
(Although I hasten to add that--in my judgment--trial courts should
reject very few plea agreements. Courts should be aware that they
do not possess the information available to the prosecutor and
defense counsel regarding either the respective strengths of their
cases or the credibility of their witnesses.) However, once the
court determined that it was not going to accept the plea agree-
ment, then Illinois law should have required it to state the
following to defendant:
"Mr. [defendant], I am now informing you
that the agreement your attorney reached with
the prosecutor regarding a sentence to be
imposed in this case is an agreement I am not
willing to go along with. Therefore, I am
going to let you withdraw your [(guilty plea)
(admission to the petition to revoke your
probation)] and I will place you in exactly
the same position you were in before you came
into court today and [(pleaded guilty) (ad-
mitted to the petition to revoke your proba-
tion)]. If you do not withdraw your [(guilty
plea) (admission)] at this time, then I will
accept it and proceed to sentence you to any
sentence I believe appropriate under the law."
The court should then offer defendant the opportunity to consult
with his counsel before defendant decides what action to take in
view of the court's remarks.
Handling guilty pleas in this fashion provides several
advantages not only to the parties, but also to the criminal
justice system as a whole. First, the process of plea bargaining--
which disposes of at least 80% of all criminal charges--is
strengthened by giving it increased certainty. Courts have finally
realized that plea bargaining is really no different than negotia-
tions leading up to any other contract. People v. Evans, 174 Ill.
2d 320, 326, 673 N.E.2d 244, 247 (1996) ("Although plea agreements
exist in the criminal justice structure, they are governed to some
extent by contract law principles"); People v. Wendt, 283 Ill. App.
3d 947, 952, 670 N.E.2d 1230, 1234 (1996) ("a negotiated guilty
plea is really a *** contract[] between the defendant and the
State," and "[p]lea bargains are in many ways subject to contract
principles"). Just as any business lawyer wants to avoid uncer-
tainties or contingencies in a contract he drafted for his client,
so too should the criminal defense attorney and prosecutor want to
avoid uncertainties and contingencies.
Clearly, the biggest uncertainty is whether the judge
will go along with the plea agreement--the ultimate contract--that
the parties reach. The procedure I propose gives the parties
absolute certainty regarding the outcome of the agreement they
reach--namely, that one of two things will happen: (1) the trial
court will accept it fully, or (2) the court will state its
unwillingness to accept it and give the defendant the opportunity
to withdraw his guilty plea, which defendant may do without having
lost anything in the process.
Second, this proposed procedure empowers defendants.
Under current law, a defendant pleading guilty receives no
guarantee that the trial court will go along with the plea
agreement. Instead, such a defendant, frequently distrustful of
"the system" to begin with, is encouraged by his lawyer to plead
guilty, sometimes with the assurance that the trial court in 90% to
95% of the cases will follow the plea agreement. Such assurances
are frequently greeted with skepticism and--regrettably (as
explained below)--appropriately so. Under the procedure I propose,
defendants will no longer have to rely upon such assurances at
their peril.
Third, this procedure would strengthen the criminal
justice system by eliminating the obvious injustice done to a
defendant who pleads guilty pursuant to a plea agreement and then
receives a sentence greater than he bargained for. Such events,
even if rare, damage the standing of the courts not only with
criminal defendants, but also in the eyes of any fair-minded
person.
Further, this new procedure would eliminate the need for
Supreme Court Rule 402(d)(3) (134 Ill. 2d R. 402(d)(3)), which
provides that when the trial court has not given its concurrence or
conditional concurrence to a plea agreement being stated in open
court at the time a defendant pleads guilty, the court shall inform
defendant that it is not bound by the agreement and that if the
defendant persists in his plea, the court may sentence him
differently from that contemplated by the plea agreement. The time
currently taken to so advise a defendant pleading guilty would be
eliminated because no possibility would exist that the trial court
would not go along with the plea agreement without giving the
defendant the opportunity to withdraw the guilty plea. Given the
thousands of guilty pleas that can occur in just one year in a busy
criminal courtroom in this State, this savings of time should not
be discounted.
Last, but perhaps most important, this new procedure
would strengthen the criminal justice system because counsel for
the parties would no longer need to "conference" the case with the
trial judge under Rule 402(d)(2) (134 Ill. 2d R. 402(d)(2)).
Counsel now feel compelled to do so (with those judges who permit
it) in order to get some indication of whether the judge will go
along with a tentative plea agreement the parties have reached.
Although trial courts are always admonished--and
appropriately so--to avoid the appearance of impropriety, "co-
nferencing" guilty pleas violates that admonition and looks just
plain awful to those outside the criminal justice system. It also
wastes a lot of time. Further, conferencing provides trial courts
so disposed an opportunity to abuse the plea bargaining process by
becoming active participants in it (and even initiating it, despite
the prohibition contained in Supreme Court Rule 402(d)(1) (134 Ill.
2d R. 402(d)(1))), including making none-too-veiled threats to both
parties regarding the consequences of rejecting the court's view of
an appropriate plea agreement. None of this could happen under the
proposed procedure because the trial court would not have any role
in the plea bargaining process.
The system proposed here is not revolutionary. Its
utilization currently lies within the discretion of any trial judge
in this state, and it is a system which I personally employed while
serving 12½ years as a trial judge.
In closing, I refer to People v. Lambrechts, 69 Ill. 2d
544, 372 N.E.2d 641 (1977), where the defendant pleaded guilty to
burglary pursuant to a plea agreement that he would be sentenced to
18 to 54 months in prison. The trial court had earlier declined to
"conference" the case "but indicated defense counsel should
continue his discussion with the State's Attorney, and that in 90-
95% of the cases the judge followed the recommended dispositions."
Lambrechts, 69 Ill. 2d at 547, 372 N.E.2d at 643. When the
defendant pleaded guilty, the court discussed the plea agreement
the parties had reached and then said the following: "'[D]o you
realize that I, the judge, have not been a party to that agreement,
and I might decide to give you a different sentence; that I'm not
bound by the agreement you have made with your lawyer and the
State's Attorney? Do you understand that?'" Lambrechts, 69 Ill.
2d at 548, 372 N.E.2d at 643. The court then ordered a presentence
investigation conducted, and after considering the presentence
report, sentenced defendant to 6 to 20 years in prison. Defense
counsel stated that his "'distinct impression was that by entering
a plea[,] there would be almost no question that the 18 to 54
[months sentence would be imposed].'" Lambrechts, 69 Ill. 2d at
551, 372 N.E.2d at 645. Counsel also stated that the court's
admonitions were the standard ones he had "'heard in hundreds of
cases, and I personally have never seen a variance from those.'"
Lambrechts, 69 Ill. 2d at 551, 372 N.E.2d at 645. When counsel
pointed out to the court that it had indicated in chambers that it
follows sentencing recommendations of the parties in "'90 [to] 95
percent of the cases,'" the court's response was, "'[c]orrect.'"
Lambrechts, 69 Ill. 2d at 551, 372 N.E.2d at 645. Nonetheless, the
court denied defendant's subsequent motions to withdraw his guilty
plea or reconsider the sentence.
When the defendant's appeal reached the supreme court, he
argued that "due process considerations of basic fairness and
decency required the trial court to allow [him] to withdraw his
guilty plea after the court decided that the State's recommended
sentence was unacceptably lenient." Lambrechts, 69 Ill. 2d at 553,
372 N.E.2d at 646. However, after analyzing Rule 402, the supreme
court concluded that no error occurred. In so holding, the supreme
court noted that the record before it disclosed no request by
defendant for a Rule 402(d)(2) "conference," whereby the trial
court might have indicated its concurrence, as permitted by that
rule, after the plea agreement was reached. The supreme court held
that defendant had "waived the procedure whereby the acceptability
to the judge of the plea agreement could have been determined
before entering his plea." Lambrechts, 69 Ill. 2d at 556, 372
N.E.2d at 647. (Note, however, that even if defendant had so
requested, the trial court was not obligated to "conference" the
case.) The supreme court concluded as follows: "We understand the
disappointment felt by a defendant who receives a sentence as
severe as this after pleading guilty. Undoubtedly it was not
expected. But that fact does not entitle him to withdraw his
guilty plea." Lambrechts, 69 Ill. 2d at 558-59, 372 N.E.2d at 649.
Justices Ward and Dooley dissented. Justice Ward wrote:
"[i]n their context the [trial court's] re-
marks well might have lulled the defendant
into an unfounded sense of security that a
plea agreement, which the court appeared to be
encouraging, would be acceptable. The court's
statement in this matter of grave importance
to the accused was indiscreet. I do not
believe its suggestive effect was erased by
the formal admonition." Lambrechts, 69 Ill.
2d at 561, 372 N.E.2d at 650 (Ward, C.J.,
dissenting).
Justice Dooley wrote the following:
"This is another incident in the long
list of injustices resulting from improper
judicial interference in the plea-bargaining
process.
***
An agreement to serve 18 to 54 months was
reached between the People and defendant's
counsel in consideration for defendant's
waiver of substantial rights. True, the
court, prior to sentencing, went through the
ritual of admonition required by law. [It is
obvious that] the defendant regarded this as a
mere formality ***.
***
There exists a great gulf between the
relative position of the court and the defen-
dant entering a plea of guilty. This in
itself is a compelling reason why the court's
conduct must be above reproach. Certainly,
defendant and his counsel had a right to as-
sume the judge was a gentlemen of his word.
No doubt, his representation induced the plea
of guilty." Lambrechts, 69 Ill. 2d at 561-62,
372 N.E.2d at 650 (Dooley, J., dissenting).
For the reasons eloquently stated by Justice Dooley, I
have always believed that Lambrechts constituted an injustice to
the defendant in that case. The very fact that the provisions of
Rule 402 (134 Ill. 2d R. 402) permit injustices like this to occur
graphically demonstrates that rule must be changed. The very case
on appeal now before us reveals that the problem in Lambrechts
continues unabated and will do so until the supreme court requires
trial courts who decline to go along with plea agreements to tender
to defendants the opportunity to withdraw their guilty pleas.
Simple justice demands no less.