concurring in part and dissenting in part:
I concur in the majority opinion with the exception of the restitution issue. With all due respect, the majority’s analysis is seriously flawed for reasons I will discuss below.
Supreme Court Rule 402 requires that the circuit court give certain admonishments to a defendant before accepting a guilty plea, including “the minimum and maximum sentence prescribed by law.” 177 Ill. 2d R. 402(a)(2). The purpose of Rule 402 admonishments is to ensure that a defendant’s guilty plea is intelligently and voluntarily made. 177 Ill. 2d R. 402, Committee Comments. If the improper admonishments prejudice a defendant or deny her real justice, the appropriate remedy is to vacate her guilty plea and allow her to replead. People v. Harris, 359 Ill. App. 3d 931, 835 N.E.2d 902 (2005).
Defendant and the majority rely heavily on People v. Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953 (1986), in support of their positions. In Jenkins, the Fourth District held that, generally, the proper remedy for a court’s failure to properly admonish a defendant about the possibility of restitution is to vacate the restitution order. Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953. The line of cases behind the Jenkins decision treated a court’s guilty plea admonitions as implied promises between the court and a defendant. People v. Seyferlich, 398 Ill. App. 3d 989, 924 N.E.2d 1212 (2010). However, since Jenkins was decided, the Fourth District has not repeated the Jenkins holding based on the implied promise theory. Seyferlich, 398 Ill. App. 3d 989, 924 N.E.2d 1212 (recognizing that the Fourth District’s decision in Harris called into doubt the continued viability of Jenkins). I would not follow Jenkins but instead turn to the more persuasive approach adopted by the Second District in Seyferlich. But first, the majority opinion.
The majority’s train derails when it asserts, “The Jenkins approach has been adopted by our supreme court. The court has held that when a defendant pleads guilty and receives a sentence in excess of the trial court’s admonishments, there are two possible remedies: (1) either the promise must be fulfilled, or (2) defendant must be given the opportunity to withdraw his guilty plea. [Citations.] Courts of appeal will modify and reduce a defendant’s sentence that does not comport with a trial court’s admonishments. See Whitfield, 217 Ill. 2d at 205, 840 N.E.2d at 675 (reducing defendant’s sentence of imprisonment by three years because the defendant was not admonished regarding the three-year term of mandatory supervised release that would follow his prison sentence); [citations].” 403 Ill. App. 3d at 642. The majority analysis here is flawed on several levels.
First of all, the supreme court has neither explicitly nor implicitly adopted the Jenkins approach. One can read Whitfield and find no reference to the Jenkins decision. Likewise, a reading of Whitfield and Morris should make it plain to anyone that Whitfield involved entirely different facts and, therefore, a different issue than that before us and the Jenkins court. In Whitfield, the defendant contended that his constitutional right to due process and fundamental fairness was violated because he pled guilty in exchange for a specific (25 years) sentence, but received a different, more onerous (25 years plus 3 years’ MSR) sentence than the one to which he agreed. Relying on the line of reasoning set forth in Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the Illinois Supreme Court held that when one pleads guilty in exchange for a specific sentence and the trial judge sentences the defendant to the specific term agreed to in addition to a term of MSR, about which defendant was never admonished, the defendant is denied the benefit of his bargain with the State. In these circumstances, addition of the MSR term to the agreed-upon sentence violates due process because the sentence imposed is more onerous than the one defendant agreed to at the time of the plea hearing. The court concluded that the appropriate remedy was to modify defendant’s sentence to a term of 22 years of imprisonment to be followed by the mandatory 3-year term of MSR. Whitfield, 217 Ill. 2d at 205. The key in Whitfield was that defendant pled guilty in exchange for a promise of a specific term of imprisonment. If there is any doubt in one’s mind as to the rule in Whitfield, one need only turn to People v. Morris, 236 Ill. 2d 345, 925 N.E.2d 1069 (2010). In Morris, the supreme court was called to determine whether Whitfield created a new rule of criminal procedure. Morris, 236 Ill. 2d at 355. It did. Morris, 236 Ill. 2d at 361. The supreme court stated in Morris, “we declared that a defendant has a due process ‘contract’ right to enforce the terms of a plea agreement, and the unilateral modification of the agreement to include a term of MSR not previously bargained for amounted to a breach of the plea agreement and violated principles of fundamental fairness.” Morris, 236 Ill. 2d at 357. Later in Morris, the court once again paraphrased the rule of Whitfield, acknowledging that Whitfield “marked the first time this court held that a faulty MSR admonishment deprived a defendant of his right to due process by denying him the benefit of his bargain with the State.” Morris, 236 Ill. 2d at 361. The Whitfield rule applies to circumstances where a defendant pleads guilty in exchange for a specific sentence. Such was not the case here. Whitfield and Morris are inapposite. Whitfield even distinguished itself from cases where a defendant’s guilty plea is not in exchange for a specific sentence and, therefore, the faulty admonitions did not deny defendant the benefit of some bargain he made with the State. The court uses People v. McCoy, 74 Ill. 2d 398 (1979), as an example. Whitfield, 217 Ill. 2d at 191.
It is apparent from the majority’s language that it has made the leap in logic to equate a trial court’s admonishment with a promise from the State. The majority writes, “The court has held that when a defendant pleads guilty and receives a sentence in excess of the trial court’s admonishments, there are two possible remedies: (1) either the promise must be fulfilled, or (2) defendant must be given the opportunity to withdraw his guilty plea.” (Emphasis added.) 403 Ill. App. 3d at 642. In the case before us, one should reasonably ask: What promise? Since the majority does not refer to what promise must be fulfilled, it must be referring to the trial court’s admonishments. When the supreme court in Whitfield and Morris referred to the promise, it was clearly referring to the promise between defendant and the State for a specific sentence in exchange for a guilty plea. In the case before us, defendant agreed to enter an open plea of guilty in exchange for the State dropping some additional charges. The State dropped the additional charges. Defendant does not argue that she was denied the benefit of a bargain with the State, only that she was not admonished about restitution. The majority makes an argument for defendant that defendant has not made. This is simply not a Whitfield case. That being said, let us return to the Second District’s recent opinion in Seyferlich.
As the Seyferlich court noted, the court’s role is not to bargain with the defendant to secure a guilty plea: “[t]he objective of ensuring that guilty pleas are entered voluntarily and intelligently is not advanced by a rule that affords defendants a sentencing windfall by treating misstatements by the trial court as promises. If defendant would not have pleaded guilty but for the incomplete admonition, her remedy was to seek leave to withdraw her plea.” Seyferlich, 398 Ill. App. 3d 989, 992, 924 N.E.2d 1212, 1215 (2010). Seyferlich relied heavily upon the Fourth District post -Jenkins decision in People v. Harris, 359 Ill. App. 3d 931, 835 N.E.2d 902.
Like the defendant in Harris, defendant in this case asks for the incorrect remedy — she does not ask this court to vacate her guilty plea and allow her to replead. See Harris, 359 Ill. App. 3d 931, 835 N.E.2d 902.
Additionally, there is no indication that defendant was denied real justice or was prejudiced by the circuit court’s failure to inform her of the possibility of restitution. Defendant agreed to plead guilty to intimidation and criminal damage to property in exchange for the State’s promise to drop the armed violence charge and two attempted first degree murder charges. There was no agreement on sentencing; in fact, it was understood that all sentencing options were open to the court.
The remedy fashioned by the majority here is wrong on yet another level. It defeats the legislative purpose of trying to make victims whole. The majority seems satisfied to add a footnote telling the victim to sue the defendant in civil court. 403 Ill. App. 3d at 642 n.1. No doubt the victim is grateful for this legal advice (assuming she reads appellate opinions). The legislature created restitution awards as another remedy for crime victims and we ought not be quick to defeat that remedy.
For reasons set forth above, I dissent from the decision to vacate the restitution order.