People v. Meza , 376 Ill. App. 3d 787 ( 2007 )

No. 3--06--0164
_________________________________________________________________
Filed October 26, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 04--CF--1508
)
APOLINAR MEZA, ) Honorable
) Robert P. Livas,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
Justice Carter delivered the opinion of the court:
_________________________________________________________________
Defendant Apolinar Meza was charged with two counts of
attempted first degree murder for the stabbing of his ex-wife,
Ana Meza. 720 ILCS 5/8--4, 9--1 (West 2004). The defendant pled
guilty and was sentenced to 22 years in prison. On appeal, the
defendant argues that the trial judge violated Supreme Court Rule
402(d)(2) (177 Ill. 2d R. 402(d)(2)) when he failed to give the
defendant the opportunity to withdraw his guilty plea after the
judge withdrew his offer to sentence the defendant to 15 years in
prison. We affirm.
FACTS
The State and the defendant engaged in plea negotiations but
failed to reach agreement on the exact number of years the
defendant would serve in prison. Subsequent to these failures,
the defendant moved for and the State agreed to a Rule 402
conference to determine what sentence the judge would impose on
the defendant in exchange for a guilty plea. The conference was
held off-the-record. At the end of the conference, the judge
stated on the record that he "extended an offer" to the defendant
and continued the case so that the defendant could consider the
offer. The judge conditionally offered a 15-year term of
incarceration so long as nothing new in the way of aggravation or
mitigation arose at sentencing.
The defendant informed the judge that he would enter a
guilty plea pursuant to the Rule 402 conference. The parties
agreed that the plea would be a "blind plea." The defendant
acknowledged at the time that he understood this to mean that
there was no plea agreement between the State and himself. The
judge admonished the defendant regarding the nature of the
charges, his trial rights, and his right to persist in a not
guilty plea. The judge informed the defendant that he faced the
possibility of between 6 and 30 years in prison for pleading
guilty. The defendant acknowledged that he understood the
judge’s admonitions and that he was not entering a guilty plea
because someone was making promises or threats to him. The judge
accepted the defendant’s guilty plea, and the case was continued
for a sentencing hearing.
At the sentencing hearing, the State presented Ana Meza’s
victim impact statement. The State also produced evidence that
the defendant sent a letter to Ana, asking her to sign an
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affidavit. The affidavit stated that she lied about the
defendant’s attempt to kill her and that she had tried to kill
herself. The judge acknowledged his offer of a 15-year sentence
but stated that he did not feel bound by it in light of the
evidence of the letter and affidavit. The judge then sentenced
the defendant to 22 years in prison.
The defendant made a motion to withdraw his guilty plea,
which the trial judge denied. The defendant appealed.
ANALYSIS
On appeal, we are asked to consider whether the trial judge
violated Supreme Court Rule 402(d)(2) (177 Ill. 2d R. 402(d)(2))
when he failed to give the defendant the opportunity to withdraw
his guilty plea after the judge withdrew his offer to sentence
the defendant to 15 years in prison. The defendant seeks to have
his conviction and sentence vacated and the case remanded for
compliance with the rule.
When reviewing whether a supreme court rule has been
violated, a question of law is presented and the standard of
review is de novo. People v. Lozada, 323 Ill. App. 3d 1015, 753
N.E.2d 383 (2001).
Supreme Court Rule 402, governing guilty pleas, requires
that such pleas be accompanied by admonitions, are voluntary, and
have a factual basis. At issue here is Rule 402(d)(2), which
states the procedures to be followed when a trial judge concurs
or conditionally concurs in a plea agreement. It provides:
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"(d) Plea Discussions and Agreements. When there
is a plea discussion or plea agreement, the following
provisions, in addition to the preceding paragraphs of
this rule, shall apply:
***
(2) If a tentative plea agreement has been reached
by the parties which contemplates entry of a plea of
guilty in the expectation that a specified sentence
will be imposed or that other charges before the court
will be dismissed, the trial judge may permit, upon
request of the parties, the disclosure to him of the
tentative agreement and the reasons therefor in advance
of the tender of the plea. At the same time he may
also receive, with the consent of the defendant,
evidence in aggravation or mitigation. The judge may
then indicate to the parties whether he will concur in
the proposed disposition; and if he has not yet
received evidence in aggravation or mitigation, he may
indicate that his concurrence is conditional on that
evidence being consistent with the representations made
to him. If he has indicated his concurrence or
conditional concurrence, he shall so state in open
court at the time the agreement is stated as required
by paragraph (b) of this rule. If the defendant
thereupon pleads guilty, but the trial judge later
withdraws his concurrence or conditional concurrence,
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he shall so advise the parties and then call upon the
defendant either to affirm or to withdraw his plea of
guilty. If the defendant thereupon withdraws his plea,
the trial judge shall recuse himself." 177 Ill. 2d R.
402(d)(2).
In this case, Rule 402(d)(2) is not applicable because the
trial judge did not concur or conditionally concur to a plea
agreement at the Rule 402 conference. Prior to the conference,
the parties failed to reach a plea agreement because they could
not agree on the number of years in prison the defendant would
serve in exchange for a guilty plea. See 177 Ill. 2d R.
402(d)(2) (stating that a plea agreement means an agreement
between the parties that the defendant will enter a guilty plea
in exchange for a specified sentence or a dismissal of charges).
As such, the parties did not present a plea agreement to the
judge for his concurrence or conditional concurrence, and Rule
402(d)(2) does not apply to cases in which there is no plea
agreement.
Furthermore, it is clear that the parties never reached a
plea agreement at the Rule 402 conference to which the trial
judge was asked to concur or conditionally concur because the
defendant and the trial judge never acknowledged the existence of
one. Following the Rule 402 conference, the defendant entered a
"blind plea" in this case, knowing that a blind plea meant that
he had no plea agreement with the State. The defendant also
stated that he was not entering his plea because someone promised
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him anything in return for it. Similarly, the trial judge did
not indicate his concurrence or conditional concurrence with any
plea agreement in open court, as required by Rule 402(d)(2),
because no plea agreement was stated in open court, as required
by Rule 402(b), or even existed. The trial judge’s offer of a
15-year prison term in exchange for his guilty plea did not
constitute a plea agreement to which Rule 402(d)(2) may apply
because plea agreements, as noted above, are between parties, not
the judge and the defendant. The trial judge’s offer was merely
a statement of the length of sentence the judge would be inclined
to give the defendant if he pleaded guilty, not a plea agreement.
People v. Nutall, 312 Ill. App. 3d 620, 637, 728 N.E.2d 597, 612
(2000) (stating that "discussions occurring in a pretrial 402
conference about a potential sentence do not raise the same
considerations a negotiated plea does," such as the requirements
of Rule 402 and the application of contract law). Thus, without
a plea agreement to which the trial judge concurred or
conditionally concurred, Rule 402(d)(2) does not apply to this
case and the defendant cannot be given the opportunity to
withdraw his plea.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed.
Affirmed.
SCHMIDT, J. concurs.
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JUSTICE McDADE, specially concurring in part, dissenting in
part:
The majority has found that Rule 402(d)(2) does not apply in
this case because the parties never reached a plea agreement to
which the trial judge was asked to concur or conditionally concur
(slip order at 5) and, as a consequence, that defendant cannot be
given the opportunity to withdraw his plea pursuant to the rule.
I agree that the rule does not apply but cannot agree that he
should be denied an opportunity to withdraw his plea.
The rule reads, in part, as follows: "If the defendant thereupon
pleads guilty, but the trial judge later withdraws his concurrence or conditional concurrence, he
shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea
of guilty." 177 Ill. 2d R. 402(d)(2).
Defendant claimed that any argument that Rule 402(d)(2) does not apply in this case is
waived because the State failed to raise the issue in the trial court. I agree with defendant that the
State waived any argument as to whether Rule 402 is applicable in this case. Therefore, the
question of whether the language in Rule 402(d)(2) giving a defendant the alternatives of
affirming the new sentence or withdrawing his plea is applicable in this case is also not properly
raised to this court. However, we cannot simply ignore an issue involving the proper construction
of a Supreme Court Rule, even when that issue is improperly presented. "Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of the
trial court." People v. Piatkowski, 225 Ill. 2d 551, 564, 870 N.E.2d 403, 410 (2007). I find that,
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although Rule 402(d)(2) is not applicable, we may use the principles it establishes to determine
whether defendant must be allowed to withdraw his guilty plea in this case.
I agree that Rule 402(d)(2) does not apply to the extent the parties had not, and
apparently did not understand that they had not, engaged in a "Rule 402 conference" because they
had reached no agreement when the trial judge became involved. However, the trial judge, the
prosecutor, and defense counsel all led defendant to believe that this "402 conference" was a
legitimate plea negotiation proceeding. I would find that, in light of the trial judge’s "offer" of a
15-year prison sentence following what can only be described as negotiations with the judge
himself, defendant was not, in fact, entering a blind plea but a negotiated plea; and, because the
judge did not sentence him to 15 years’ imprisonment as expected, defendant must be allowed to
withdraw his plea.
Our supreme court has recognized that "there are at least four distinct plea scenarios
which can occur when a defendant decides to enter a plea of guilty." People v. Lumzy, 191 Ill. 2d
182, 185, 730 N.E.2d 20, 21-22 (2000). The first is what is commonly referred to as a "blind," or
"open," plea, which leaves both the defendant and the State free to argue for any sentence
permitted by law. The trial judge retains full discretion to sentence defendant to any term within
the range provided by the relevant statute. A second scenario involves some bargaining on what
would be charged but merely caps the sentence within a retained range. As a third situation, the
parties negotiate the charges but make no agreement on defendant’s sentence. Fourth, and finally,
a fully negotiated plea can be entered in which the defendant agrees to plead guilty in exchange
for a specific sentencing recommendation. Lumzy, 191 Ill. 2d at 185, 730 N.E.2d at 21-22.
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The most salient feature in all of these scenarios is that any negotiating involves the defendant and
the State. Such is not the case here, however. Unable to reach an agreement amongst
themselves, the parties enlisted the aid of the trial judge, who himself "‘extended an offer’" to
defendant. Slip order at 2. It is for that reason that I agree with the majority that Rule 402(d)
does not apply in this case. Despite Rule 402's concession, to foster plea negotiations between
the defendant and the State, that the court can indicate whether it will concur or conditionally
concur in the proposed disposition, the trial court is prohibited from initiating plea discussions
(177 Ill. 2d R. 402(d)(1)) and remains free to withdraw its concurrence or conditional
concurrence (177 Ill. 2d R. 402(d)(2)). The reason the rule bars the court from initiating plea
discussions and maintains the court’s ability to reject the recommended sentence, even after the
court has indicated it would follow the recommendation, is the recognition that while the parties
may bargain for how the law will be applied in a particular case, the role of the court is to be, and
more importantly, to remain, a neutral arbiter of the law and facts presented to it. See People v.
Lambrechts, 69 Ill. 2d 544, 556, 372 N.E.2d 641, 647 (1977) ("The judge was, of course, under
no obligation to concur" in recommended sentence).
The court’s role as disinterested arbiter of the law is compromised when it becomes
involved in the actual bargaining for a disposition or when it binds itself to a sentencing
determination reached, not from its neutral and discretionary application of law to fact, but from
negotiations with interested parties. In People v. Heddins, 66 Ill. 2d 404, 411, 362 N.E.2d 1260,
1263 (1977), Justice Dooley, specially concurring, wrote as follows:
"So also judicial impartiality may be impaired when the judge
participates in the pre-plea bargaining negotiations and the case is
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tried before him after efforts on an agreed sentence have failed.
*** More than that, however, the judge has become the adversary
of the litigant in the pre-plea bargaining position-a situation in
which no judge should ever place himself. So also the participating
judge loses his neutral position so requisite to a judicial officer. His
image, regardless of personal efforts, will be that of an advocate for
the terms he embraces. Again, consider the position of the
participating judge when he imposes sentence. The accused can
well be justified in believing that the sentencing judge lacks
objectivity and that the sentence imposed embraces the terms
offered for a plea, but rejected."
For that same reason, because the trial judge "extended an offer" to defendant before
defendant chose to plead guilty and later refused to honor the terms he himself offered, I believe
that defendant must be allowed to withdraw his plea.
"Leave to withdraw a plea of guilty is not granted as a matter of
right, but as required to correct a manifest injustice under the facts
involved. [Citation.] *** A defendant may seek to withdraw his
or her guilty plea on the grounds that the plea was entered based on
a misapprehension of fact or of the law ***. [Citation.] ‘In the
absence of substantial objective proof showing that a defendant's
mistaken impressions were reasonably justified, subjective
impressions alone are not sufficient grounds on which to vacate a
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guilty plea.’ [Citation.] The defendant bears the burden of proving
that his or her mistaken impression was objectively reasonable
under the circumstances existing at the time of the plea.
[Citation.]" People v. Spriggle, 358 Ill. App. 3d 447, 451, 831
N.E.2d 696, 700 (2005).
Here, defendant based his plea on a misapprehension of the facts. Defendant could
reasonably believe that when the court extended him an offer it would stand by it. That belief is
objectively reasonable. Defendant had attempted to negotiate a sentence with the State. Those
negotiations did not result in an agreement with the State. The trial judge then became involved,
and defendant succeeded in reaching an agreement with him as evidenced by defendant’s
newfound willingness to plead guilty.
The trial judge was the procuring cause of defendant’s guilty plea. By acting in that role,
the court violated Rule 402. Rule 402(d)(1) prohibits the trial judge from initiating plea
discussions. Although the parties went to the court and requested the conference, I would define
"initiating plea discussions" as actions which result in procuring a plea. In this case, the court’s
extension of an offer was clearly the procuring cause of defendant’s plea as evidenced by
defendant’s refusal to plead guilty until the court made its offer. More importantly, by becoming
the procuring cause of a plea of guilty, the court abdicated its constitutionally defined role as
neutral arbiter of the law.
I recognize that defendant "acknowledged at that the time that he understood *** there
was no plea agreement between the State and himself." Slip order at 2. I would find, however,
that the acknowledgment by defendant is irrelevant in this case. Defendant knew there was "no
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plea agreement between the State and himself" because those negotiations failed to bear fruit.
Defendant could reasonably believe, however, that there was a plea agreement between the court
and himself in light of the fact that he pled guilty only after the trial judge "extended him an offer."
Defendant also acknowledged that he "faced the possibility of between 6 and 30 years in
prison for pleading guilty." Slip order at 2. However, those admonishments apply to negotiations
between defendant and the State, not defendant and the court. Despite the "possibility" of 6 to 30
years’ imprisonment that defendant faced when negotiating with the State, the final outcome is
determined by the trial judge. Defendant could reasonably believe that after negotiating directly
with the court, any "possibilities" that remained in his sentencing had been resolved.
Rule 402(d) evinces a right, found in the language quoted above, that when a defendant
pleads guilty with an expectation of a certain sentence, but then does not receive it, he has a right
to withdraw the plea. See also Lambrechts, 69 Ill. 2d at 556, 372 N.E.2d at 647 ("[I]f he did
concur and subsequently changed his mind, defendant would have been entitled under Rule
402(d)(2) to withdraw his plea if he chose to do so and be tried before a different judge").
Here, defendant had a reasonable expectation of a certain
sentence. In this case, after the flawed procedures followed by
the parties and the court--the result being no 402 conference
ever actually occurred--we are left with a defendant in essence
entering a fully negotiated plea of guilty--negotiated with the
court and not the State in violation of Rule 402, with the
expectation of a sentence he did not receive. Defendant was
objectively reasonable in holding that expectation and must be
allowed to withdraw his plea.
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Moreover, to deny defendant that right has further
repercussions. By allowing defendant’s plea to stand, this court
would be giving the parties involved--with the notable exception
of the defendant, for whose protection the system allegedly
exists--a free pass for their mistakes. I believe that it paints
the entire judicial system in a bad light where the court and the
officers of the court failed to recognize that they followed
improper procedure yet to allow them to take full advantage of
those procedures and maintain a flawed guilty plea. Moreover, it
reflects poorly on the State when it persists in following, or
attempting to follow, Rule 402 procedures until defendant seeks
the protections of the Rule and asks to withdraw his plea. Nor
does it bear favorably on the entire judicial system when that
request is denied because the rule, which the parties thought
they were following and which provides defendant important
protections in entering a guilty plea, allegedly does not apply.
The protections afforded by the rule include the right to
withdraw the plea if the defendant does not receive the expected
sentence and that his actual sentence will result from a
disinterested application of the facts to the law. Neither
happened in this case.
Finally, I fear the precedent the majority’s decision
establishes. Rule 402 provides for specific procedures and gives
the defendant specific protections. The majority’s ruling
essentially renders those procedures irrelevant and opens the
door for abuse of plea negotiations by the State. Following the
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majority’s order, the door is open for the State to invoke the
dominance of the court to convince a defendant to plead guilty
and withhold evidence in aggravation during negotiations, only to
be sprung at the sentencing hearing in hopes of securing a longer
sentence. I do not suggest that is what happened here, but the
protections of Rule 402--in the form of those rights given
directly to the defendant and the recognition of the court’s
proper role in the procedures--are threatened when the
opportunity for such abuse exists, and the majority decision
creates that opportunity.
For the foregoing reasons, I would reverse and direct the
trial court to enter an order allowing defendant’s motion to
withdraw his guilty plea. Accordingly, I dissent.
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