People v. Davis , 204 Ill. App. 3d 836 ( 1990 )

JUSTICE LUND

delivered the opinion of the court:

On September 19, 1989, in the circuit court of Champaign County, defendant David L. Davis entered a guilty plea to the offense of burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1.) He subsequently received an extended-term 10-year prison sentence. On December 1, 1989, defendant filed a motion seeking to withdraw his guilty plea, which the court denied. Defendant now appeals this denial.

Defendant was originally charged with the offenses of residential burglary and burglary. On September 19, 1989, he pleaded guilty to the burglary offense and the other charge was dismissed. There was no agreement as to the sentence to be imposed. Defendant was admonished pursuant to the requirements of Supreme Court Rule 402 (107 Ill. 2d R. 402). He was also advised, pursuant to the request of the State, of the possibility of an extended-term sentence. At the conelusion of the plea, defendant requested, and the court so ordered, that an evaluation of defendant’s acceptability into its program be prepared by the Treatment Alternatives to Street Crimes (TASC) organization.

At the sentencing hearing, defense counsel' moved for continuance. He explained that prior to the guilty plea a TASC representative informed him that if defendant received a conviction for burglary rather than residential burglary, he would be eligible for the program. However, just recently the representative called back and informed him that defendant, due to his prior criminal record, was in fact not eligible for the program. Counsel sought an extension of time to discuss this change of circumstances with the State. The court denied the motion and the 10-year sentence was. imposed.

Defendant then filed a motion to withdraw his guilty plea based on this misunderstanding. At the hearing on the motion, defense counsel recounted the circumstances and supplied the letter from TASC initially indicating defendant was approved for the program. He then explained the reason behind the plea to the less serious charge was that this would allow the defendant to ask the court to place him with the TASC program. The State acknowledged that the counsel’s explanation as to what happened was accurate. Defendant contended that since the purpose of his plea, to ask for placement with TASC, had been frustrated through no fault of his, he should be allowed to withdraw his guilty plea. The court denied the motion, and this appeal followed.

The general rule is that it is within the sound discretion of the trial court to determine whether a guilty plea may be withdrawn and, on appeal, this decision will not be disturbed unless the decision is an abuse of that discretion. (People v. Benedetto (1981), 102 Ill. App. 3d 10, 16, 428 N.E.2d 1169, 1175; People v. Tarbill (1977), 47 Ill. App. 3d 286, 287, 361 N.E.2d 1178, 1179.)

“Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.” (People v. Morreale (1952), 412 Ill. 528, 531-32, 107 N.E.2d 721, 723.)

In the case of a defendant’s mistaken subjective impressions, it is established that these mistaken impressions, in the absence of substantial objective proof showing they were reasonably justified, do not provide sufficient grounds on which to vacate a guilty plea. (People v. Hale (1980), 82 Ill. 2d 172, 176, 411 N.E.2d 867, 868.) The burden is on the defendant to establish that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impression. Hale, 82 Ill. 2d at 176, 411 N.E.2d at 868.

In the case at bar, we conclude defendant has met his burden. While the court was not informed of it at the time of the plea, it is now acknowledged by all parties that the purpose of the plea arrangement was to let the defendant plead guilty to the lesser offense, allowing him to ask for placement with TASC while the State could seek an extended-term prison sentence. It is equally clear that defendant was initially advised by counsel and TASC that he was eligible for the program; and it was not until after consummation of the plea that he found out otherwise.

It is also evident defendant’s misapprehension at the time of the plea prejudiced him. He pleaded guilty to burglary, which is a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(b)) and, due to his prior 1982 armed robbery convictions, had become a nonprobational offense requiring imprisonment. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3(c)(2)(F).) Thus, at the time of the plea, it appeared defendant was facing two alternatives: (1) prison, or (2) alternative placement with TASC pursuant to the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. lll1^, pars. 6351 — 1 through 6362 — 3). Once this latter alternative was removed by TASC, the only option was imprisonment. This is not the arrangement defendant had bargained for.

We recognize, as stated in the dissent, that the trial court’s admonishments were accurate, complete, and well beyond that which was required. We also recognize that defendant stated no promises had been made to him. Admittedly, there was no guarantee at the time of the plea that defendant would be placed with TASC. Even if he were eligible, the court could have, and very well may have, still sentenced defendant to prison. Most likely defendant had this uncertainty in mind when he said no promises had been made and at that time did not think of the representation concerning his eligibility. However, defendant had realistically anticipated that he would be able to request this relief when he entered his plea. We conclude that under the circumstances of this case the ends of justice would be better served by allowing defendant to withdraw his guilty plea.

In reaching this conclusion, we are also mindful of an apparent defect in the guilty plea admonitions. At the time of the plea, the court advised defendant that the possible dispositions on his burglary conviction would range from probation to an extended-term sentence. Normally, this is correct. However, as noted earlier, due to defendant’s prior criminal record, he could not receive probation. The only exception would be placement with TASC. (See People v. Pearson (1989), 183 Ill. App. 3d 72, 538 N.E.2d 1202; People v. Tucker (1989), 183 Ill. App. 3d 333, 539 N.E.2d 243.) The court, being unaware of defendant’s prior criminal record and the understanding that defendant would seek placement with TASC, did not explain the mandatory prison sentence and the limited probation available through TASC. Thus, there seems to be a question if defendant properly understood the possible penalties at the time of the plea.

Accordingly, we conclude that defendant has established he was operating under a misapprehension of fact at the time he entered the plea and the court erred by refusing to allow him to withdraw it.

Reversed and remanded.

GREEN, J., concurs.