People v. Collier

NO. 4-06-0981 Filed 11/6/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
NEISHA E. COLLIER, ) No. 05CF386
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Defendant, Neisha E. Collier, pleaded guilty to ob-

structing justice (720 ILCS 5/31-4(a) (West 2006)), a Class 4

felony. The State agreed to recommend no more than two years'

imprisonment. When Collier failed to attend her sentencing

hearing, the trial court sentenced Collier to an extended term of

four years' imprisonment. Collier appeals, arguing that the

trial court did not adequately admonish Collier of the conditions

on its concurrence with the plea agreement. We vacate Collier's

sentence and remand with directions.

I. BACKGROUND

A. Underlying Offense

This case arises out of a minor vehicle collision

involving Collier's boyfriend, Allen Davis, and Nancy Seward.

Because the factual basis was exceptionally brief, we take our

facts concerning the underlying offense from the police report.
 Davis was driving a Lincoln Town Car with the permis-

sion of the owner, Moesha Hilson. Collier was the only passenger

in the Lincoln Town Car. Seward had no passengers. Davis

approached a stop sign. Davis was unable to stop the car due to

snow and ice and collided with Nancy Seward's car. No one was

injured. Davis, who had a suspended license, immediately fled

the scene. Collier then called Moesha Hilson and asked Moesha to

report the Lincoln Town Car stolen.

When the police arrived, Collier lied, telling them

that she did not know the driver, but only knew his nickname to

be "Lil T." Collier stated that "Lil T." had pulled up alongside

her as she was walking to the convenience store and had agreed to

give her a ride. Collier described "Lil T." as a 16-year-old

black youth, when in fact Davis was 21. Collier told the police

she did not know who owned the Lincoln Town Car.

While still at the scene of the accident, the police

learned that Moesha Hilson had reported the Lincoln Town Car

stolen. The police began to doubt Collier's truthfulness and

told Collier that she could be sent to jail for obstructing

justice. Collier continued to tell police she only knew the

driver as "Lil T.," that she did not know Moesha Hilson, and that

she had no reason to lie.

Moesha, however, soon told the police that Collier had

asked Moesha to report the car stolen. The police decided to

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give Collier one more chance to tell the truth, but Collier

continued to deny knowing "Lil T." or Moesha. The police then

arrested and handcuffed Collier. As the police placed Collier in

the squad car, she told them Davis's true name, this time without

prompting. However, Collier continued to deny knowing Moesha.

The information charging Collier stated that Collier,

with the intent to obstruct the prosecution of Davis, knowingly

furnished false information in that she told police that she only

knew Davis as "Lil T." after Davis fled the scene of the accident

on foot, at a time when Davis's driver's license was suspended.

The information did not allege anything concerning the false

stolen-vehicle report.

B. The Plea Hearing

At the April 21, 2006, plea hearing, the trial court

first informed Collier that the charged offense, obstructing

justice, was a Class 4 felony, which typically carried a sentenc-

ing range of one to three years' imprisonment. However, due to

Collier's criminal history, Collier was eligible for an extended

sentence totaling six years' imprisonment. The following ex-

change then took place:

"THE COURT: Is your plea of guilty

today voluntary? Is this of your own free

will?

COLLIER: Yes, it is.

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 THE COURT: The agreements, please.

THE STATE: Judge, this is an open plea

for later sentencing. The only agreement is

the State would cap its recommendation at two

years [in the] Department of Corrections.

THE COURT: [Defense counsel], is this

the agreement?

DEFENSE COUNSEL: That's the agreement,

Judge.

THE COURT: Miss Collier, as I under-

stand the situation, we're going to continue

this matter for a sentencing hearing, and at

that sentencing hearing your penalty range

will be anything from possibly some form of

probation up to a maximum of two years in the

Department of Corrections as opposed to some

form of probation up to six years. Your

penalty range will be confined to probation

up to two years. Is that your understanding

of where we are right now?

COLLIER: Yes, it is." (Emphasis

added.)

After the State read the factual basis for the plea, which

centered solely around Collier's denial of Davis's identity, the

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court accepted Collier's guilty plea:

"THE COURT: Miss Collier, do you now

then plead guilty to that charge of obstruct-

ing justice?

COLLIER: Yes.

THE COURT: Show the defendant pleads

guilty to that charge. That plea of guilty

is accepted by the court. Judgment is en-

tered on the plea."

The trial court then proceeded to take care of some technical

matters, such as ordering a Treatment Alternatives for Safer

Communities (TASC) report and setting a date for the sentencing

hearing, and the following exchange took place:

"THE COURT: All right. We will con-

tinue this matter to Thursday, June 1 at 1:30

back in this courtroom. Court services will

prepare a presentence report ***. [Defense

counsel and State], is part of the plea

agreement that the defendant appears for

sentencing?

DEFENSE COUNSEL: Yes, Your Honor, it

is.

THE STATE: Yes.

THE COURT: Miss Collier, what that

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 means is, you have to appear at your sentenc-

ing hearing on June 1. *** If you don't show

up here June 1, then I will have that sen-

tencing hearing without you, and we could go

over the two[-]year cap. There is no agree-

ment if you don't show up, so it is very,

very important that you show up for your

sentencing hearing. Again, if you don't show

up, there is no agreement, and a sentencing

hearing will be held without you."

Collier did not respond to the trial court's admonishment.

Nothing further of substance was said by anyone and the plea

hearing concluded.

C. The Sentencing Hearing

Collier initially arrived to the courtroom for sentenc-

ing. However, before the trial judge entered the courtroom,

Collier left. When the judge entered the courtroom, he immedi-

ately asked where Collier was. Collier's attorney answered that

Collier had been present but left the courtroom about three

minutes prior to meet a family member who she believed would be

testifying on her behalf. The judge stated that he had warned

Collier that she needed to be present and began the hearing

without her. According to Collier's subsequent explanation of

the incident, before the judge entered the courtroom, Collier

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learned that her father provided the State with aggravating

evidence against her. Collier burst into tears and fled the

courthouse. An hour and a half later, Collier called the police

and told them she felt suicidal. Collier was hospitalized for

the next 12 hours.

Back at the sentencing hearing, the State called police

officer Rusty Wike. Wike testified that he investigated an

incident wherein Collier stole a lawnmower from her father and

sold it to a neighbor for $20. The State then called police

officer Gregory Manzana. Manzana investigated a domestic inci-

dent involving Collier and Collier's 13-year-old daughter, A.C.

A.C. told Manzana that Collier arrived at A.C.'s grandparents'

home to steal some shoes. A.C. told Collier to leave. According

to A.C., Collier then grabbed a telephone and attempted to hit

A.C. on the head with it. Collier smothered A.C. with her body

and injured A.C.'s arm in the struggle. Collier denied this.

The police did not believe they had probable cause to arrest

Collier for this incident because A.C. showed no sign of physical

injury.

The State then requested a minimum of two years'

imprisonment. The State noted that Collier's involvement with

the criminal justice system went back 18 years and that Collier

was not cooperative in the preparation of the presentence report,

missing several appointments with the Court Services Department.

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In turn, the defense counsel requested a more lenient, 18-month

term.

The trial court acknowledged that a prison sentence was

not necessary to protect the public and that Collier did not

appear to be dangerous. However, the court felt that a lengthy

sentence was necessary to further the ends of justice. Collier

had 10 criminal convictions over the last 18 years. The court

mentioned Collier's long-standing struggle with drug addiction

and stated that Collier's convictions were in line with what a

person might expect from a "junkie": property crimes, unlawful

use of a weapon, aggravated battery (1989), resisting a peace

officer, and possession with intent to deliver. The trial court

then stated:

"The court admonished the defendant that

should she fail to appear for her sentencing

hearing, the court would not concur with the

State's cap, the court could sentence her to

more than two years ***. I'm not sentencing

her to any specific number of years in the

Department of Corrections because she didn't

show up; however, she sure did blow a good

deal by not showing up." (Emphasis added.)

The trial court then sentenced Collier to four years' imprison-

ment. The trial court denied Collier's motion to reconsider.

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This appeal followed.

II. ANALYSIS

Collier argues that the trial court improperly added a

condition to its concurrence with the plea agreement after it

accepted the plea. We agree.

Plea agreements are to some extent governed by

contract-law principles. People v. Evans, 174 Ill. 2d 320, 326,

673 N.E.2d 244, 247 (1996). Once counsel informs the trial court

of the terms of the plea agreement and before the trial court

accepts the plea, the court must (1) state its (a) concurrence

with the plea agreement or (b) conditional concurrence with the

plea agreement or (2) admonish the defendant that it is not bound

by the terms of the plea agreement and that if the defendant

persists in her plea, the disposition may be different from that

contemplated by the plea agreement. 177 Ill. 2d Rs. 402(d)(2),

(d)(3); see also People v. Rossman, 309 Ill. App. 3d 662, 668,

722 N.E.2d 1216, 1222 (2000) (regarding trial court's role in

concurring or conditionally concurring); People v. Butcher, 288

Ill. App. 3d 120, 124, 679 N.E.2d 1260, 1263 (1997) (regarding

trial court's role in admonishing the defendant that it is not

bound by the terms of the plea agreement). If the trial court

opts to conditionally concur with the terms of the plea agreement

and reserves unto itself various sentencing options, the court

must specifically state on the record those options that it

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intends to reserve and ascertain on the record that the defendant

understands the limits of the concurrence, and every sentencing

option thereby reserved, prior to the entry of the guilty plea.

People v. Culp, 127 Ill. App. 3d 916, 926-27, 468 N.E.2d 1328,

1335 (1984); Rossman, 309 Ill. App. 3d at 669, 722 N.E.2d at

1222. If the defendant enters a plea of guilty following the

trial court's concurrence or conditional concurrence, and the

trial court subsequently withdraws its concurrence or conditional

concurrence, it must advise the defendant of this and allow the

defendant the opportunity to withdraw her guilty plea. 177 Ill.

2d R. 402(d)(2); Rossman, 309 Ill. App. 3d at 668, 722 N.E.2d at

1222. If the defendant chooses to withdraw her guilty plea, the

case is then transferred to a new judge. 177 Ill. 2d R.

402(d)(2); People v. Bouie, 327 Ill. App. 3d 243, 247, 763 N.E.2d

858, 861 (2002).

The requirement that Collier appear for sentencing did

not constitute a properly communicated condition on the trial

court's concurrence with the plea agreement. As stated above,

the court must specifically state the terms of its conditional

concurrence and the sentencing options that it intends to reserve

for itself, and ascertain on the record that the defendant

understands the limits of the concurrence and every sentencing

option thereby reserved, prior to the entry of the guilty plea.

Culp, 127 Ill. App. 3d at 926-27, 468 N.E.2d at 1335; Rossman,

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309 Ill. App. 3d at 669, 722 N.E.2d at 1222. Here, the trial

court concurred with the terms of the plea agreement when, upon

hearing the terms of the plea agreement, it told Collier: "Your

penalty will be confined to probation up to two years." The

trial court then ascertained that Collier understood these to be

the terms of the agreement and accepted her guilty plea. The

trial court did not tell Collier that its concurrence with the

State's recommended two-year cap depended on Collier's attendance

at the sentencing hearing until after it had already accepted her

plea. Further, the court did not ascertain whether Collier

understood the conditions of the court's concurrence.

We note that the trial court in the instant case had

every right to withdraw its concurrence when Collier did not

appear for sentencing. However, under Rule 402(d)(2), the trial

court was obligated to notify Collier that it was going to

withdraw its concurrence and allow Collier the opportunity to

withdraw her guilty plea. 177 Ill. 2d R. 402(d)(2); Rossman, 309

Ill. App. 3d at 668, 722 N.E.2d at 1222; see also Bouie, 327 Ill.

App. 3d at 247, 763 N.E.2d at 861. Hence, when Collier did not

appear at sentencing, the trial court could either have sentenced

Collier to a term within the range contemplated by the plea

agreement or it could have continued the hearing to allow Collier

to affirm or withdraw her guilty plea. Rossman, 309 Ill. App. 3d

at 668, 722 N.E.2d at 1222. Though the trial court was not

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authorized to sentence Collier to a lengthier sentence than that

contemplated by the plea agreement with which it had concurred,

the trial court was not without additional recourse. As we

stated in Rossman, the trial court could order Collier's plea

vacated, sending the parties back to the drawing board; order a

bail-bond violation (720 ILCS 5/32-10(a) (West 2006)); and/or

order Collier to be in contempt of court (720 ILCS 5/1-3 (West

2006)). Rossman, 309 Ill. App. 3d at 668, 722 N.E.2d at 1222.

Though our ruling on the conditional-concurrence issue is

dispositive, we nevertheless consider two of the State's remain-

ing arguments.

The State argues that we should not have considered

whether the trial court adequately communicated its conditional

concurrence because the requirement that Collier attend her

sentencing hearing was not a condition on the trial court's

concurrence at all, but rather the requirement was part of the

plea agreement itself. The State's argument is without merit. A

plea agreement is between the State and the defendant. People v.

Hayes, 159 Ill. App. 3d 1048, 1053, 513 N.E.2d 68, 71 (1987),

citing People v. Robinson, 66 Ill. App. 3d 601, 604, 384 N.E.2d

420, 423 (1978). The trial court is not a party to the plea

agreement; its only role is to indicate, at the time the agree-

ment is stated, whether it will concur or conditionally concur

with the plea agreement. 177 Ill. 2d R. 402(d); Rossman, 309

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Ill. App. 3d at 668, 722 N.E.2d at 1222. In some instances, the

conditions stated by the trial court may become part of the plea

agreement, but that is not the case here. See Bouie, 327 Ill.

App. 3d at 246, 763 N.E.2d at 860, citing Hayes, 159 Ill. App. 3d

at 1053, 513 N.E.2d at 72.

For example, in Hayes, prior to the trial court's

acceptance of the defendant's guilty plea, the State requested

that the court admonish the defendant that if he failed to appear

at his sentencing hearing, he would be eligible for a more severe

sentence. Defense counsel then told the court that he had

informed the defendant of the consequences should the defendant

fail to appear at sentencing. The court then admonished the

defendant in open court that if he failed to appear at sentencing

he could be sentenced in excess of the sentence contemplated by

the plea agreement. The court asked the defendant if he under-

stood these terms, and the defendant answered, "Yes, I do." The

court then accepted the defendant's guilty plea and set the date

for the sentencing hearing. Hayes, 159 Ill. 2d at 1050, 513

N.E.2d at 70. The appellate court held that the requirement that

the defendant attend his sentencing hearing became an integral

part of the plea agreement where the requirement was clearly

communicated to and understood by the defendant at the time of

the plea and came about by agreement of the attorneys. Hayes,

159 Ill. App. 3d at 1054, 513 N.E.2d at 72.

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 Here, unlike in Hayes, there was no clear communication

to the defendant regarding the change in the plea agreement. As

stated above, the trial court concurred with the plea agreement

when it told Collier that her sentence would not exceed two

years. Collier entered her guilty plea based on the assurance of

receiving a sentence under that cap. After the trial court

accepted Collier's plea, it asked the parties whether it was

"part of" the plea agreement that Collier appear for sentencing.

Counsel for both parties answered "yes." However, merely label-

ing a requirement part of the plea agreement does not make it so.

The requirement was not brought about by the attorneys, but

rather by the trial court. Most critically, the court first

brought the requirement to the parties' attention after the court

had already accepted Collier's guilty plea and the court never

ascertained whether Collier understood the requirement.

The instant case is similar to Bouie, where the appel-

late court also rejected the State's argument that the require-

ment that the defendant appear at his sentencing hearing was

"part of" the plea agreement. Bouie, 327 Ill. App. 3d at 247,

763 N.E.2d at 861. In Bouie, after the trial court acknowledged

the parties' plea agreement, the court stated that it would leave

its "options open" as to punishment in the event that the defen-

dant did not appear at his sentencing hearing. The trial court

then asked if that created "a problem for anyone." Both the

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State and defense counsel answered that it did not. The defen-

dant did not comment. The court then accepted the defendant's

guilty plea. After accepting the plea, the court admonished the

defendant that if he did not appear for sentencing, the court

would sentence the defendant in excess of the sentence contem-

plated by the plea agreement. The defendant acknowledged the

requirement. Bouie, 327 Ill. App. 3d at 245, 763 N.E.2d at 859.

The appellate court held that nothing in the series of communica-

tions exchanged at the plea hearing "show[ed] unequivocally that

the defendant was advised that appearing at the sentencing

hearing was part of his plea agreement." Bouie, 327 Ill. App. 3d

at 247, 763 N.E.2d at 861.

Here, the argument against the State on appeal is even

stronger than in Bouie because the trial court in the instant

case made no mention of the requirement that Collier appear at

sentencing before it accepted the guilty plea. Also, unlike the

defendant in Bouie, Collier never personally acknowledged the

trial court's admonishment of the requirement, even after the

guilty plea was accepted.

Finally, the State argues that we should not have

reached the merits of Collier's claim because the trial court was

never bound by the State's recommended two-year cap, thus nulli-

fying the issue of whether the court improperly added a condition

to its concurrence with the plea agreement. This argument is not

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persuasive. If a trial court chooses not to concur with a plea

agreement, it must admonish the defendant in open court that it

is not bound by the terms of the plea agreement and it must tell

the defendant that if she persists in her plea, she may be

sentenced in excess of the sentence contemplated by the plea

agreement. 177 Ill. 2d R. 402(d)(3). Here, the trial court made

no such admonishment. To the contrary, upon hearing the terms of

the plea agreement, the court expressly told Collier: "Your

penalty will be confined to probation up to two years."

Accordingly, we vacate Collier's sentence and remand

this case to the trial court to either impose a sentence contem-

plated by the plea agreement or to proceed in keeping with the

requirements of Rule 402(d)(2).

III. CONCLUSION

For the aforementioned reasons, we vacate Collier's

sentence and remand with directions consistent with this opinion.

Vacated and remanded with directions.

APPLETON and KNECHT, JJ., concur.

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