dissenting:
I respectfully dissent. As the reviewing court, we have the responsibility to review the trial court’s decision with respect to the acceptance or rejection of a negotiated plea for an abuse of discretion and not to substitute our judgment for that of the trial court. See Henderson, 211 Ill. 2d at 103, 809 N.E.2d at 1231.
In my view, the majority’s criticism of the trial court is unjustified. First, I question whether the trial court even concluded the parties had reached a negotiated plea agreement. The existence of such an agreement is not as clear-cut as the majority suggests. Here, the court questioned the parties as to what “the situation” was, and the exchange between the court and the parties indicates the parties had not reached an agreement before the court asked defendant if he still wished to plead guilty. Additionally, the State had not even drafted the other charge, and thus it was uncertain whether defendant would plead guilty to that charge.
Further, the State did have to draft the other charge since it was not a lesser-included offense of the charged offense. The alleged offense to which defendant was to plead guilty was theft with a prior burglary. Section 16 — 1(b)(2) of the Criminal Code of 1961 (720 ILCS 5/16 — 1(b)(2) (West Supp. 2001)) requires the indictment or information to state the prior conviction. The burglary indictment did not mention defendant’s prior burglary conviction, and thus the State did need to draft the lesser charge.
Next, the majority infers the trial court summarily rejected the agreement without pausing to hear what the new charge and proposed sentence would be. This inference ignores that (1) neither attorney disclosed the plea agreement’s terms to the court, (2) the parties never requested a Rule 402 conference, (3) the jury venire was present and the case was ready to proceed, (4) defendant had been granted four continuances, and (5) the prosecutor told the court he had previously tendered the offer and defense counsel had consulted with defendant on numerous occasions. The court’s decision in this case was based on more than timeliness, and the court exercised its discretion in refusing to accept the plea.
Given these circumstances, I see no abuse of discretion on the part of the trial court and would affirm the court’s judgment.
As a final matter, I question the majority’s direction to the trial court to “consider the terms of the plea agreement.” 351 111. App. 3d at 608. This presumes the State is still tendering the plea offer defendant desires to accept. This seems highly unlikely, and because I do not believe this court can compel the State to reinstate its previous offer and prepare the necessary charge, the majority’s mandate is neither practical nor consequential.
Our supreme court has held that “the State’s Attorney, as a member of the executive branch of government, is vested with exclusive discretion in the initiation and management of a criminal prosecution.” People ex rel. Daley v. Moran, 94 Ill. 2d 41, 45, 445 N.E.2d 270, 272 (1983). “That discretion includes the decision whether to prosecute at all, as well as to choose which of several charges shall be brought.” Moran, 94 Ill. 2d at 45-46, 445 N.E.2d at 272. Moreover, our United States Supreme Court has noted that a prosecutor can decline to charge or offer a plea bargain in any particular case. McCleskey v. Kemp, 481 U.S. 279, 312, 95 L. Ed. 2d 262, 291, 107 S. Ct. 1756, 1778 (1987).
In Moran, 94 Ill. 2d at 46, 445 N.E.2d at 272, the trial judge ordered the State to file an information and thereafter proceeded with disposition of that offense over the State’s objection. The supreme court found “such action by a trial judge to be an impermissible exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates.” Moran, 94 Ill. 2d at 46, 445 N.E.2d at 272.
Here, on remand the majority does not appear to give the State any discretion regarding plea negotiations. The State has already successfully prosecuted defendant, and he has received a 15-year prison term. In my view, requiring the State to draft and file a reduced charge in exchange for a four-year prison term exceeds this court’s authority.