dissenting:
In this case the circuit court found that a valid plea agreement existed between the State and the defendant and it ordered specific enforcement of that agreement. The appellate court held that the circuit court’s finding that a valid plea agreement existed was not against the manifest weight of the evidence. A majority of this court now affirms the appellate court but holds that even if an agreement existed, which it states it “need not determine” (109 Ill. 2d at 417), the agreement is not enforceable because defendant Boyt never entered a guilty plea and therefore “was not prejudiced by the State’s refusal to consummate the agreement” (109 Ill. 2d at 415). I cannot agree with this reasoning.
I do not believe the defendant’s reliance on People v. Starks (1985), 106 Ill. 2d 441, is misplaced as the majority states. In Starks, we held that the defendant, by submitting to a polygraph examination, surrendered his fifth amendment privilege against self-incrimination, giving adequate consideration for the State’s promise to dismiss the charges against him. This court stated:
“When a prosecutor enters into an agreement of this kind he has doubts about a defendant’s guilt. If the defendant fails the polygraph examination, such doubts may be removed and a faltering investigation can be revitalized. A prosecutor is less likely to agree to concessions after a defendant’s failure of a polygraph examination. He also knows that if the defendant fails the polygraph examination and then takes the stand at trial the defendant may wilt under the pressure of intense cross-examination. Additionally, there is no way of assuring that the test results will not come to the judge’s attention; therefore, a defendant may be compelled, as a practical matter, to elect a jury trial. The test results may also strengthen a judgment of conviction resulting in imposition of a longer sentence or delay in parole.” 106 Ill. 2d 441, 451-52.
I believe our decision in Starks supports an opposite result in the instant case, as the defendant contends. In the instant case it is stated:
“The State’s refusal to abide by the agreement did not deprive defendant ‘of liberty or any other constitutionally protected interest’ [citation omitted], since she did not plead guilty to any charge in reliance on the agreement.” 109 Ill. 2d at 415.
The majority further states:
“The defendant, although understandably disappointed, was not prejudiced by the State’s refusal to consummate the agreement. She did not provide the State with any new information, confess guilt, testify or otherwise incriminate herself in reliance on the State’s promise.” 109 111. 2d at 415.
I cannot agree with this assessment of the facts in this case. I believe defendant Boyt’s promise to testify can be analogized to the defendant’s submission to a polygraph examination in Starks. It is evident that the defendant’s promise alone was valuable to the State, since the State was able to use it to compel codefendant Banks to plead guilty. Although defendant Boyt did not give the State any “new information” per se, her willingness to testify was the new information needed to breathe new life into the case. Also, in agreeing to testify, the defendant did incriminate herself. Although she may not have been confessing guilt, she was at least confessing her presence and knowledge of the crime. Like in Starks, the defendant herein surrendered her fifth amendment privilege against self-incrimination, which I believe was adequate consideration entitling her to specific enforcement of the plea agreement.
It is essential that people participate in plea bargaining because, as the majority states, “|p]lea bargaining plays an important role in our criminal justice system” (109 Ill. 2d at 416). Because plea bargaining does play such an important role, it is essential that people believe these agreements are entered into with sincerity. Therefore, it is unjust to allow the State to renege on its agreement with this defendant after taking the “benefit of the bargain.” Fundamental fairness requires that the State uphold its end of the bargain. Therefore, I respectfully dissent.
GOLDENHERSH and SIMON, JJ., join in this dissent.