2020 IL App (4th) 180828-U 

NO. 4-18-0828 

IN THE APPELLATE COURT

 

OF ILLINOIS

FOURTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

v. 

DUSTIN SULLIVAN, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Livingston County 

No. 18CF10

Honorable 

Jennifer Hartmann 

Bauknecht, 

Judge Presiding. 

 

 JUSTICE HARRIS delivered the judgment of the court.

 Justices Knecht and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The appellate court dismissed the appeal because defendant did not move to 

withdraw his guilty plea before attempting to challenge his sentence as excessive, 

as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). 

¶ 2 Defendant, Dustin Sullivan, entered a negotiated plea of guilty to the offense of 

aggravated battery in exchange for the State’s promise to cap its sentencing recommendation at 

20 years’ imprisonment. At sentencing, the State recommended a 20-year sentence, which the 

trial court ultimately imposed. 

¶ 3 Defendant appeals, arguing his federal due process rights were violated by the 

court’s reliance on an improper aggravating factor and failure to consider a mitigating factor. 

Pursuant to our supreme court’s recent holding in People v. Johnson, 2019 IL 122956, ¶¶ 1, 57, 

NOTICE

This order was filed under Supreme 

Court Rule 23 and may not be cited 

as precedent by any party except in 

the limited circumstances allowed 

under Rule 23(e)(1). 

FILED

December 7, 2020

Carla Bender

4th District Appellate

Court, IL
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129 N.E.3d 1239, we must dismiss defendant’s appeal, as he failed to comply with the 

requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶ 4 I. BACKGROUND

¶ 5 A. Charges 

¶ 6 In January 2018, the State charged defendant by information with two counts of 

aggravated battery (720 ILCS 5/12-3.05(b)(1) (West 2016)), alleging defendant knowingly 

caused great bodily harm to B.A.K., a child under 13 years of age, in that he “struck B.A.K. 

about the head causing a skull fracture and subdural and subarachnoid hemorrhages,” and 

“constricted the body of B.A.K. so as to cause fractures to [her] ribs.” 

¶ 7 B. Negotiated Plea Agreement

¶ 8 In July 2018, defendant pleaded guilty to both counts in exchange for the State’s 

promise to cap its sentencing recommendation at 20 years’ imprisonment. Prior to accepting 

defendant’s plea, the trial court admonished him that the charges carried a statutory sentencing 

range from 6 to 30 years in prison. 

¶ 9 C. Sentencing Hearing

¶ 10 On November 5, 2018, at defendant’s sentencing hearing, the trial court stated the 

following, in relevant part: 

 “And so when I consider the aggravating factors in this case, one of them 

is the seriousness of the offense and also the harm that was caused. And here it’s 

about *** as serious as it can get. It’s about as bad as it can get. We do see 

aggravated batteries that are unfortunate of people getting stabbed or shot ***. 

But when you can’t recover and when you are just a young, little baby doing what 
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babies do, *** it just doesn’t get a whole lot worse than that in terms of an 

aggravated battery, which is the charge that you’re being sentenced on today. 

* * * 

 And I think deterrence is very, very strong. And of course you were in a 

position of trust, which is a factor in aggravation. 

I don’t think the age is a factor I can consider in aggravation as it’s a part 

of the offense so I’m not considering [B.A.K.’s] age. But I do believe that she, 

that you held obviously a position of trust when you have just a helpless little—I 

think she was two months at the time, somewhere around there—baby, helpless 

really. So there are strong aggravating factors in this case.

I’m looking at the mitigating factors; and I understand what [defense 

counsel] has argued ***. But in this particular case, I just don’t see any mitigating 

factors that stand out. I don’t think the most important thing in this case is 

rehabilitation. I think that that is, of course, something that the Court must 

consider. But I don’t think it’s the number one consideration under the very 

unfortunate and unique circumstances of this case. 

 So when I look at everything here, I really believe, and I do look at every 

case on its own merits; and I think the State’s recommendation is reasonable in 

this case.” 

¶ 11 The trial court sentenced defendant to 20 years’ imprisonment. The court also 

admonished defendant, explaining that, in order to appeal, he “must file in this court within 30 

days of today’s date a written motion asking to have the Court reconsider the sentence or to have 
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the judgment vacated and for leave to withdraw [his] plea of guilty setting forth [his] grounds for 

the motion.” 

¶ 12 D. Postsentencing Proceedings 

¶ 13 On November 29, 2018, defendant filed a motion to reconsider his sentence, 

raising an excessive-sentence claim, which the trial court denied. Defendant did not file a motion 

to withdraw his guilty plea following his sentence. 

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues the trial court violated his federal due process rights 

by denying him both the benefit of his plea bargain and a fair sentencing hearing, “when the 

court improperly considered a factor inherent in the offense, and failed to consider any statutory 

mitigating factors.” Specifically, defendant contends “[t]he court erred by considering the extent 

of harm *** because great bodily harm is one of the elements required for the State to convict 

him of aggravated battery of a child.” The State responds by asserting defendant’s failure to 

satisfy the requirements of Rule 604(d) prevents us from reaching the merits of defendant’s 

appeal. The proper application of Rule 604(d) is reviewed de novo. Johnson, 2019 IL 122956, 

¶ 22. 

¶ 17 A. Illinois Supreme Court Rule 604(d)

¶ 18 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) governs the procedure 

criminal defendants must follow when challenging a judgment entered upon a plea of guilty. It 

provides, in relevant part:

“No appeal shall be taken upon a negotiated plea of guilty 

challenging the sentence as excessive unless the defendant, within 
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30 days of the imposition of sentence, files a motion to withdraw 

the plea of guilty and vacate the judgment. For purposes of this 

rule, a negotiated plea of guilty is one in which the prosecution has 

bound itself to recommend a specific sentence, or a specific range 

of sentence, or where the prosecution has made concessions 

relating to the sentence to be imposed and not merely to the charge 

or charges then pending.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). 

The timely filing of a Rule 604(d) motion “is a condition precedent to an appeal from a judgment 

on a plea of guilty.” People v. Flowers, 208 Ill. 2d 291, 300-01, 802 N.E.2d 1174, 1180 (2003). 

A defendant’s failure to comply with the rule does not deprive this court of jurisdiction, but it 

does preclude us from considering the appeal on the merits, which requires dismissal. Id.

¶ 19 The rationale underlying the Rule 604(d) filing requirement is premised on “the 

nature of the plea agreement” and “the application of contract law principles.” Johnson, 2019 IL 

122956, ¶ 27. When a plea agreement includes sentencing concessions by the State, “the guilty 

plea and the sentence ‘go hand in hand’ as material elements of the plea bargain.” People v. 

Evans, 174 Ill. 2d 320, 332, 673 N.E.2d 244, 250 (1996). As such, our supreme court has held 

that it would violate principles of contract law to allow a defendant to attempt to unilaterally 

modify the bargained-for sentence, while simultaneously holding the State to its end of the 

bargain. People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172-73 (1999). In other words, 

“[b]y agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in 

effect, agreeing not to challenge any sentence imposed below that cap on the grounds it is 

excessive.” Id.

¶ 20 B. Our Supreme Court’s Holding in Johnson
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¶ 21 Recently, our supreme court resolved a split in authority in the appellate court 

over the issue of “whether a defendant who enters into a negotiated plea agreement may

challenge a sentence that conforms to the plea agreement, on the ground that the trial court relied 

on improper aggravating factors, without withdrawing his guilty plea under [Rule 604(d)].” 

Johnson, 2019 IL 122956, ¶ 1. Answering this question in the negative, the supreme court 

rejected the defendant’s attempt to distinguish his claim from an excessive sentence claim on the 

basis that “his challenge is one of constitutional dimension that implicates due process and 

fundamental fairness.” Id. ¶ 36. The court found the argument “to be a distinction without a 

difference for purposes of Rule 604(d).” Id. ¶ 41. 

“[W]hen a defendant contends the court improperly considered a 

statutory aggravating factor that was implicit in the offense, the 

defendant is asserting that the court imposed a harsher sentence 

than might otherwise have been imposed had the court not 

considered the improper statutory factor. [Citation.]

Thus, defendant’s argument is essentially that, had the trial 

court not erred in its application of the statute and had it not 

erroneously considered those statutory factors, he would have 

gotten a lower sentence than the 11-year sentence that was 

imposed. Stated another way, defendant contends the court 

imposed an excessive sentence.” (Internal quotation marks 

omitted.) Id. ¶¶ 38-39. 

To hold otherwise, the court reasoned, “would result in making Rule 604(d)’s requirements 

superfluous” by “allow[ing] almost every sentencing challenge in a criminal case to be restated 
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in a constitutional due process framework as a way to avoid the rule.” Id. ¶ 41. The court further 

found that, where “the defendant entered into a negotiated plea agreement to a sentence that was 

authorized by statute and was within the terms of the agreement[,]” it “does not undermine 

judicial integrity” to hold that the “defendant’s recourse is to seek to withdraw the plea and 

return the parties to the status quo ***.” Id. ¶ 53. 

¶ 22 The Johnson court concluded by stating, “we hold that a defendant who enters 

into a negotiated plea agreement may not challenge his sentence on the basis that the court relied 

on improper statutory sentencing factors. This type of sentencing challenge is an excessive 

sentence challenge. Under Rule 604(d), a defendant’s recourse is to seek to withdraw the guilty 

plea and return the parties to the status quo before the plea.” Id. ¶ 57. 

¶ 23 C. Rule 604(d) Precludes Consideration of the Merits of Defendant’s Appeal 

¶ 24 Here, defendant attempts to skirt the holding in Johnson by arguing “the trial 

court altered the terms of his plea agreement by denying [him] the benefit of his bargain where 

he did not agree to waive his constitutional right to a fair sentencing hearing, and thus violated 

his federal due process rights.” Defendant goes on to claim that he “was not sentenced in 

accordance with the terms of the plea agreement when the trial court sentenced him based on 

improper sentencing factors.”

¶ 25 However, like the defendant in Johnson, defendant in the instant case entered into 

a negotiated guilty plea, the trial court sentenced him within the range contemplated by the plea 

agreement, and defendant now maintains on appeal that the trial court relied on an improper 

sentencing factor. As discussed above, our supreme court has rejected this argument where a 

defendant enters into a negotiated plea agreement and later attempts to challenge his sentence 

based on the trial court’s allegedly improper consideration of sentencing factors. See id. Further, 
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the supreme court in Johnson stated that “[u]nder Rule 604(d), a defendant’s recourse is to seek 

to withdraw the guilty plea and return the parties to the status quo before the plea.” Id.; see also 

Ill. S. Ct. R. 604(d) (eff. July 1, 2017). 

¶ 26 Accordingly, where defendant was sentenced pursuant to a negotiated plea 

agreement, his only recourse was to move to withdraw his guilty plea, as required under Rule 

604(d). He failed to do so, and pursuant to Johnson, we may not consider on appeal defendant’s 

claim that the trial court relied on an improper sentencing factor when it sentenced him. The 

claim he makes on appeal is an excessive sentence claim which is not allowed according to 

Johnson. 

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we dismiss the appeal. 

¶ 29 Appeal dismissed.