Docket No. 85444–Agenda 9–May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								JOSE DIAZ, Appellee.

Opinion filed August 10, 2000.

	JUSTICE McMORROW delivered the opinion of the court:

	At issue in this appeal is whether a defendant must withdraw

his guilty plea prior to challenging his sentence where, in exchange

for pleading guilty, the State dismissed charges against defendant,

agreed that defendant’s sentences would be served concurrently,

and agreed not to seek extended -term sentences. A majority of the

appellate court applied this court’s decision in People v. Evans, 174 Ill. 2d 320, 332 (1996), and held that because the State did not

agree to recommend a specific sentence to the trial court as part of

the plea bargain, defendant was not required to file a motion to

vacate his guilty plea prior to challenging his sentence. Nos.

2–96–0848, 2–96–0849, 2–96–0850 cons. (unpublished order

under Supreme Court Rule 23). The appellate court majority

proceeded to reach the merits of defendant’s appeal, and, after

determining that the circuit court erred in allowing certain evidence

to be introduced during defendant’s sentencing hearing, vacated

the circuit court’s judgment and remanded the cause for further

proceedings. The State appealed to this court. 177 Ill. 2d R. 315.

We now vacate the judgment of the appellate court and remand

this cause to the circuit court with directions.

BACKGROUND

	Defendant, Jose Diaz, was charged by indictment with seven

counts of aggravated criminal sexual assault (720 ILCS

5/12–14(b)(1) (West 1994)), a Class X felony, and 10 counts of

aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1) (West

1994)), a Class 2 felony. These charges related to incidents

occurring in Kane County between 1982 and 1995, and involved

four minor victims in three separate cases.

	On January 18, 1996, defendant pled guilty to one count of

aggravated criminal sexual assault, and three counts of aggravated

criminal sexual abuse, with each count relating to a different minor victim. In exchange for defendant’s guilty pleas to these four

counts, the State agreed to dismiss the remaining 13 charges. In

addition, the State agreed that it would not object to any sentences

imposed upon defendant to run concurrently, rather than

consecutively. Finally, the State agreed that it would not seek

extended-term sentences against defendant. However, there was no

agreement between defendant and the State that a specific sentence

would be recommended to the circuit court.

	During defendant’s guilty plea hearing, the circuit court

informed defendant that, in the absence of the plea agreement

between defendant and the State, defendant was eligible to receive

consecutive sentences because three separate cases were involved.

In addition, the circuit court informed defendant that, absent the

plea agreement, defendant was eligible for extended-term sentences

for each conviction. In explaining the plea agreement to defendant,

the circuit court summarized the sentencing aspects of the

agreement as follows: “the attorneys are requesting and agreeing

and asking me to agree not to sentence you to a consecutive or

extended term, meaning that I won’t sentence you to more than 30

years.” The defendant thereafter indicated that he understood these

aspects of the plea agreement.

	The State then provided the factual basis for the charges

against defendant. Following the statement of the factual basis for

the plea, defendant entered a plea of guilty to the four charges

enumerated above. The trial court accepted the guilty plea, finding

that the plea was voluntary and that there was a factual basis for

the plea.

	Defendant’s sentencing hearing was held on March 28, 1996.

The sole witness called by the State in aggravation was Elgin

police officer David Berg, who testified that after the indictments

were returned against defendant, two additional incidents of sexual

abuse involving defendant were brought to Berg’s attention.

Officer Berg testified that he had interviewed J.B., a 15-year-old

boy, who stated that he had been sexually assaulted by defendant

when he was 14 years old. Officer Berg further testified that the

Elgin police department had received a report from the Department

of Children and Family Services (DCFS) indicating that defendant

had had sexual contact with a nine-year-old boy identified as L.E. Officer Berg stated that he had never spoken with L.E., and his

knowledge of these incidents was based solely upon the report

prepared by DCFS. At the conclusion of Officer Berg’s direct

examination, the prosecutor stated that, pursuant to the plea

agreement between the State and defendant, no charges would be

filed against defendant in connection with the alleged incidents

involving J.B. and L.E. Instead, the State agreed to use the

allegations only in aggravation at sentencing.

	In mitigation, defendant called Timothy Brown, a clinical

psychologist and director of the Kane County Diagnostic Center.

Brown testified that he met with defendant on two occasions,

during which defendant revealed that, between the ages of 12 and

18, he had been sexually abused by a police officer while living in

Puerto Rico. Brown stated that defendant expressed a willingness

to undergo long-term sexual-offender counseling, that defendant

feared that without counseling “he could harm children,” and that

he believed that defendant would benefit from such counseling.

During cross-examination, Brown admitted that he was aware that

defendant had been previously convicted in Cook County of

aggravated criminal sexual abuse and that defendant had received

court-ordered sex offender treatment at that time. Brown also

acknowledged that, despite such counseling, defendant had again

engaged in similar conduct.

	Also testifying on defendant’s behalf was Kimberly Diaz,

defendant’s wife of two years. She testified that she had one child

with defendant, and that defendant adopted another one of her

children. She stated that defendant was a “very warm person,” that

he was “good hearted,” and that he had provided the family with

financial support for the first year of their marriage. However, soon

after their first anniversary the couple separated and, before he was

taken into custody, defendant was neither living with her nor

supporting her. During cross-examination, she acknowledged that

defendant had brought the minor male victims to the family home

and that defendant committed the alleged sexual acts on the

premises. She also testified that defendant had told her that the

minor male victims were related to him, specifically, that the boys

were his “nephews.”

	During the sentencing hearing, the circuit court also reviewed

a presentence report regarding defendant, prepared by the Kane

County department of adult court services. The report revealed

that defendant had a 1990 Cook County conviction for aggravated

criminal sexual abuse, which was subsequently reduced and

amended to a misdemeanor charge of criminal sexual abuse. An

addendum to the presentence report contained a letter from

defendant’s GED instructor and included his GED scores.

Defendant also made a statement in allocution. In his statement,

defendant asked for forgiveness, acknowledged his wrongdoing,

took full responsibility for his actions, and expressed remorse.

	The circuit court then made the following findings. In

aggravation, the court found that defendant’s prior 1990 Cook

County charge for aggravated criminal sexual abuse “carrie[d] a lot

of weight,” because it was “similar to the charges here. ” In

addition, the circuit court found that defendant’s commission of

these crimes, despite his prior sex-offender counseling, “mean[t] a

lot” in terms of aggravation, and that defendant stood in a position

of trust in respect to his minor victims. The circuit court also

considered the deterrence of others from committing the same

crime, as well as the protection of the public. In mitigation, the

circuit court considered that by pleading guilty, defendant

prevented the minors from having to testify during a trial. The

court also found defendant’s statement in allocution and his

admission of wrongdoing to be mitigating factors.

	Taking all the above factors into consideration, the circuit

court sentenced defendant to a 20-year term of imprisonment on

the aggravated criminal sexual assault conviction, and to

concurrent three-year terms for the three aggravated criminal

sexual abuse convictions. After sentencing, the court informed

defendant that he could appeal the decision. The circuit court judge

instructed defendant as follows: “you have to file within this court

within 30 days a motion to withdraw your guilty plea or reconsider

the sentence.”

	On April 24, 1996, defense counsel filed a motion requesting

the circuit court to “reconsider and reduce [defendant’s] sentence

in light of his age, his minimal criminal history, the lack of injury to

the complainants, and his expression of remorse and candor at the sentencing hearing.” Attached to this motion was a certificate filed

pursuant to Supreme Court Rule 604(d), wherein defendant’s trial

counsel stated that he “consulted in person with [defendant] to

ascertain his contentions of error in the sentence or entry of the

plea of guilty and has determined that [defendant] seeks to

challenge the sentence imposed for the reasons stated in the

motion, but does not desire to withdraw his plea of guilty.” A

hearing on this motion was held on July 12, 1996, wherein defense

counsel again requested the court to reduce defendant’s sentence.

In denying defendant’s motion, the circuit court found that the

sentence was appropriate under the circumstances.

	In an unpublished order filed pursuant to Supreme Court Rule

23 (166 Ill. 2d R. 23), a majority of the appellate court vacated the

judgment of the circuit court and remanded this cause for further

proceedings. Before the appellate court, defendant argued, for the

first time, that he was entitled to a new sentencing hearing because

the trial court improperly allowed certain evidence to be introduced

during the sentencing proceedings. The majority rejected the

argument advanced by the State that, pursuant to this court’s then-

recent decision in People v. Evans, 174 Ill. 2d 320, 332 (1996), defendant’s appeal should have been dismissed because of his

failure to file a motion to withdraw his guilty plea prior to

challenging his sentence. The majority concluded that, because the

State did not agree to recommend a specific sentence to the trial

court in exchange for defendant’s plea of guilty, Evans did not apply. Therefore, the majority concluded, defendant was not

obligated to file a motion to withdraw his guilty plea prior to

challenging his sentence. The majority then reached the merits of

defendant’s appeal, and determined that defendant was entitled to

a new sentencing hearing as a result of evidentiary errors

committed by the circuit court. In dissent, Justice Rathje concluded

that Evans required defendant to move to withdraw his guilty plea prior to appealing his sentence.

ANALYSIS

	The State contends that the appellate court erroneously

reached the merits of defendant’s sentencing challenge, because

defendant has waived issues relating to his sentencing by failing to first file with the circuit court a motion to withdraw his guilty plea,

as required pursuant to this court’s decision in People v. Evans, 174 Ill. 2d 320 (1996). We agree. Under the rationale of Evans and its progeny, defendant was required to file a motion to withdraw

his plea of guilty before challenging his sentence.

	There are at least four types of distinct plea scenarios which

can arise when a defendant chooses to enter a plea of guilty. See People v. Lumzy, 191 Ill. 2d 182, 185 (2000). First, a defendant may enter an “open” or “blind” plea, wherein the defendant pleads

guilty “without receiving any promises from the State in return.”

Evans, 174 Ill. 2d at 332. Under these circumstances, both the State and the defendant may argue for any sentence permitted by

statute, and the trial court exercises its full discretion in

determining the sentence to be imposed. Lumzy, 191 Ill. 2d at 185. Supreme Court Rule 604(d) governs the appeal of a conviction or

sentence imposed upon a defendant who enters an open guilty plea

(Lumzy, 191 Ill. 2d at 185; Evans, 174 Ill. 2d at 332), and provides in pertinent part:

			“No appeal from a judgment entered upon a plea of

guilty shall be taken unless the defendant, within 30 days

of the date on which sentence is imposed, files in the trial

court a motion to reconsider the sentence, if only the

sentence is being challenged, or, if the plea is being

challenged, a motion to withdraw his plea of guilty and

vacate the judgment.” 145 Ill. 2d R. 604(d).

	In contrast to an open guilty plea where no agreement has

been reached between the defendant and the prosecution, a

defendant may “negotiate” a plea of guilty with the State.

However, “ ‘not all “negotiated” pleas are the same.’ ”Lumzy, 191 Ill. 2d at 185, quoting People v. Linder, 186 Ill. 2d 67, 77 (1999) (Freeman, C.J., specially concurring). We have previously

discerned three types of “negotiated” pleas.

	A defendant may enter into a “fully” negotiated plea of guilty,

in which he agrees to plead guilty in exchange for the State’s

dismissal of charges and a specific sentencing recommendation by

the State. See Lumzy, 191 Ill. 2d at 185. In People v. Evans, 174 Ill. 2d 320 (1996), we examined the provisions of Rule 604(d) as

they relate to a defendant’s appeal from a judgment entered in the circuit court upon a fully negotiated plea of guilty. In Evans, the defendants and the State had entered into plea agreements in which

the defendants pleaded guilty to certain charges. In return, the

State agreed to dismiss other charges and to recommend specific

terms of imprisonment. After being sentenced to the recommended

terms, both defendants appealed their sentences without first

moving to withdraw their guilty pleas and vacating the judgments

of the circuit court. The defendants argued that because they were

challenging only the sentences they received, Rule 604(d) required

only that they move to reconsider their sentences.

	We held in Evans that the motion-to-reconsider-sentence clause of Rule 604(d) applies only to “open” guilty pleas, and held

that a defendant seeking to challenge his sentence after entering a

guilty plea which was negotiated with the State as to charging and

sentencing must first move to withdraw that plea and vacate the

judgment against him. Evans, 174 Ill. 2d at 332. We explained in Evans that this result was dictated both by the nature of plea agreements and the application of contract law principles. We

reasoned that to allow a defendant who had negotiated his plea

agreement with the State to challenge his sentence without first

requiring him to move to withdraw his plea would be

fundamentally unfair to the State, as, under these circumstances,

“the guilty plea and the sentence ‘go hand in hand’ as material

elements of the plea bargain.” Evans, 174 Ill. 2d at 332. We noted that under a contrary result, “[t]he accused could negotiate with

the State to obtain the best deal possible in modifying or dismissing

the most serious charges and obtain a lighter sentence than he

would have received had he gone to trial or entered an open guilty

plea, and then attempt to get that sentence reduced even further by

reneging on the agreement.” Evans, 174 Ill. 2d at 327-28. Thus, we concluded that in order for a defendant to challenge his

sentence following the entry of a guilty plea which was negotiated

as to charging and sentencing, “he must move to withdraw the

guilty plea and vacate the judgment so that, in the event the motion

is granted, the parties are returned to the status quo.” Evans, 174 Ill. 2d at 332.

	A second type of “negotiated” plea occurs where a defendant

enters a plea of guilty as a result of an agreement between defendant and the State solely as to charging. See Lumzy, 191 Ill. 2d at 187. Under such circumstances, a defendant may plead guilty

in exchange for the State’s agreement to dismiss certain charges or

reduce the original charge to a lesser offense. However, the plea

negotiations do not include any agreement between the State and

the defendant with regard to sentencing.

	This type of plea agreement was recently addressed by this

court in People v. Lumzy, 191 Ill. 2d 182 (2000). In Lumzy, the State agreed to drop a charge against the defendant in exchange for

the defendant pleading guilty to another charge. However, the plea

agreement was “utterly silent” as to the sentence that defendant

would receive. Therefore, both the State and the defendant were

free to argue for any sentence available pursuant to the Code of

Corrections, and the trial court would exercise its full discretion in

imposing any sentence permitted by law. We held that “where the

record is clear that absolutely no agreement existed between the parties as to defendant’s sentence,” a defendant is not required to

withdraw his guilty plea as a prerequisite to challenging his

sentence. (Emphasis in original.) Lumzy, 191 Ill. 2d at 187. We determined that, under these circumstances, allowing the defendant

to challenge his sentence without first requiring him to move to

withdraw his guilty plea did not violate the contract principles

which animated the Evans decision. In Lumzy, unlike in Evans, “the sentence did not go ‘hand in hand’ with the plea,” because the

“State did not make any facet of sentencing an element of its

bargain with defendant.” Lumzy, 191 Ill. 2d at 189 (Freeman, J., specially concurring). Thus, “[w]hen the State does not provide

any sentencing inducement for a defendant in its plea bargain, such

a ‘negotiated’ plea, at least for purposes of the sentencing hearing,

more closely resembles an ‘open’ plea in that the trial court retains

all of its discretion at sentencing.” Lumzy, 191 Ill. 2d at 189 (Freeman, J., specially concurring).

	A third type of “negotiated” guilty plea occurs where a

defendant pleads guilty in exchange for the State’s agreement to

dismiss other pending charges and make sentencing concessions.

See Lumzy, 191 Ill. 2d at 185-86. Under this circumstance, the State’s ability to argue for the full range of penalties provided for

in the Code of Corrections is constrained by the parameters of its agreement with the defendant. We addressed this type of plea

agreement in People v. Linder, 186 Ill. 2d 67 (1999), where we considered whether Evans applied in instances where the defendants agreed to plead guilty to certain charges in exchange for

the State’s dismissal of other charges and recommendations of a

sentence “cap.” We held in Linder that the contract-law principles employed in Evans applied with equal force where a defendant agrees to plead guilty in exchange for a recommended sentencing

cap. Under these circumstances, “allowing the defendant to seek

reconsideration of his sentence without also moving to withdraw

his guilty plea unfairly binds the State to the terms of the plea

agreement while giving the defendant the opportunity to avoid or

modify those terms. That is precisely the situation the Evans rule was designed to prevent.” Linder, 186 Ill. 2d at 74.

	In the matter at bar, the State contends that the plea agreement

negotiated between itself and defendant is analogous to the type of

plea agreement addressed in Linder, and, therefore, defendant was required to file a motion to withdraw his plea of guilty in the circuit

court before challenging his sentence on appeal. In response,

defendant contends that the plea agreement related only to the

dismissal of charges, and that “because there was no agreement as

to the length of [defendant’s] sentence, the sentence was not a part

of the plea bargain.” According to defendant, it therefore follows

that the plea he entered is more akin to an “open” plea in which the

sentence may be challenged without impairing his agreement with

the State. We reject defendant’s argument.

	Defendant was indicted for seven counts of aggravated

criminal sexual assault, a Class X felony (see 720 ILCS

5/12–14(b)(1) (West 1994)), and 10 counts of aggravated criminal

sexual abuse, a Class 2 felony (see 720 ILCS 5/12–16(c)(1) (West

1994)). During the guilty plea hearing on January 18, 1996, the

circuit court advised defendant of the charges against him and that

he faced possible prison sentences of 6 to 30 years for the

aggravated criminal sexual assault charges, and 3 to 7 years for the

aggravated criminal sexual abuse charges. The circuit court further

advised defendant that, in the absence of his plea agreement with

the State, defendant was eligible to receive extended prison terms

of 30 to 60 years for the aggravated criminal sexual assault charges, and from 7 to 14 years for the aggravated criminal sexual

abuse charges. In addition, the circuit court informed defendant

that, in the absence of his plea agreement, defendant was eligible

to serve those sentences consecutively.

	We find that defendant negotiated a plea agreement with the

State in regard to both the charging and sentencing aspects of his

case. Therefore, this cause is factually analogous to Evans and Linder. First, the record is clear that in exchange for defendant’s plea of guilty to one count of aggravated criminal sexual assault

and three counts of aggravated criminal sexual abuse, the State

agreed to dismiss the 13 remaining charges against defendant, 6 of

which were Class X felonies. Next, the record is also clear that the

State not only agreed that extended-term sentences would not be

imposed, but also agreed that it would not seek consecutive

sentences. In sharp contrast to the plea bargain in Lumzy, where the agreement between the defendant and the State was “utterly

silent” as to sentencing, the plea agreement in this case entails

significant sentencing concessions on the part of the State as part

of its bargain with defendant. See Linder, 186 Ill. 2d at 79 (Freeman, C.J., specially concurring). Indeed, by virtue of its

agreement with defendant, the State “limited its ability to argue at

sentencing from the full panoply of penalties contained in the Code

of Corrections” (Linder, 186 Ill. 2d at 79 (Freeman, C.J., specially concurring)), as it was foreclosed from urging the circuit court to

impose extended and/or consecutive sentences upon defendant.

The result of the agreement between defendant and the State was

that defendant would not receive a sentence in excess of 30 years.

In the absence of the plea agreement, defendant faced a maximum

extended-term sentence of 60 years for the Class X crime of

aggravated criminal sexual assault, as well as the possibility that

this sentence could have been served consecutively with the

sentences imposed upon him for the aggravated criminal sexual

abuse convictions, which carry an extended-term maximum of 14

years’ imprisonment. Therefore, it is clear that the State made

sentencing concessions in entering into the plea agreement with

defendant, and that defendant reaped a sentencing benefit from this

plea bargain. Under the circumstances presented, defendant’s guilty

plea and sentence “go hand in hand” as material elements of the plea bargain (Evans, 174 Ill. 2d at 332), and that it “flies in the face of contract law principles” (Evans, 174 Ill. 2d at 327) to allow defendant to unilaterally modify his agreement under these

circumstances while holding the State to its end of the bargain.

Therefore, we hold that defendant was required to file a motion to

withdraw his plea of guilty in the circuit court, prior to challenging

his sentence on appeal.

	Accordingly, the appellate court majority erred in this case

when it determined that Evans did not apply because the State did not recommend a specific sentence as part of its agreement with

defendant. We note, however, that the appellate court rendered its

decision in this matter shortly after our opinion in Evans was filed, and before our subsequent decisions in Linder and Lumzy. Therefore, the appellate court did not have the benefit of the

analysis in Linder and Lumzy, wherein we considered whether the rationale of Evans applied to different plea bargain scenarios.

	Summarizing, we take this opportunity to reiterate that where

a plea agreement reached between a defendant and the State is

silent as to sentencing, a defendant is not required to move to

withdraw his guilty plea as a prerequisite to challenging his

sentence. Lumzy, 191 Ill. 2d at 187. A plea bargain which is silent as to sentencing is analogous to an “open” plea, and the motion-to-

reconsider-sentence clause of Rule 604(d) applies. Evans, 174 Ill. 2d at 332. However, where a plea agreement between a defendant

and the State concerns both the charging and sentencing aspects of

the defendant’s case, the contract principles animating the Evans decision apply, because, under these circumstances, the sentence

is premised upon the plea. See Evans, 174 Ill. 2d at 327. The existence of a sentencing concession by the State activates the

application of the Evans rule, as the sentence is thereby made a part of the bargain between the parties. Therefore, if a plea

agreement limits or forecloses the State from arguing for a

sentence from the full range of penalties available under law, in

order to challenge his sentence, a defendant must first move to

withdraw his plea in the trial court. If the court grants the motion,

both parties are then returned to the status quo as it existed prior

to the acceptance of the plea.

	In an attempt to preclude the application of the rationale of

Evans to the instant matter, defendant attempts to draw an analogy between the cause at bar and our prior decisions in People v. Williams, 179 Ill. 2d 331 (1997), and People v. Wilson, 181 Ill. 2d 409 (1998), wherein we held that defendants are not required to

withdraw their guilty pleas prior to a sentence challenge if the

sentence is “void” because it “does not conform with the statute.”

Williams, 179 Ill. 2d at 333; Wilson, 181 Ill. 2d at 413. We find that both Williams and Wilson are factually inapposite to the matter at bar.

	In Williams, the defendant pled guilty to retail theft after the State agreed to dismiss another charge and recommend a seven-

year sentencing cap. The circuit court imposed consecutive

sentences of 3 years’ imprisonment, followed by 30 months’

probation for the theft. Defendant appealed, arguing that the circuit

court lacked statutory authority to impose consecutive prison and

probation terms for a single offense. We agreed, and held that

Evans does not bar a sentence challenge where a defendant claims that his sentence is void because it does not conform with the

sentencing provisions of the Unified Code of Corrections.

Williams, 179 Ill. 2d at 333. We have since reaffirmed this holding in Wilson, stating that a “challenge to a trial court’s statutory authority to impose a particular sentence is not waived when a

defendant fails to withdraw his guilty plea and vacate the

judgment.” Wilson, 181 Ill. 2d at 413. We concluded in Wilson that, under the specific circumstances where the circuit court

imposed sentences which violated the statutory requirements found

in the Unified Code of Corrections, a court may review a challenge

to a statutorily improper sentence without requiring the defendant

to first move to withdraw his guilty plea. We find defendant’s

reliance upon Williams and Wilson to be misplaced, as no allegation has been made in this case that defendant’s sentence is

statutorily void.

	Finally, in his brief to this court, defendant contends that, if we

determine under these circumstances that he was required to move

to withdraw his guilty plea prior to challenging his sentence, we

should also remand this cause to the circuit court, where defendant

may be properly admonished and, if he so chooses, file a motion to withdraw his guilty plea and vacate the circuit court’s judgment.

We agree.

	The case at bar presents factual circumstances which we find

to be analogous to those present in People v. Clark, 183 Ill. 2d 261 (1998). In Clark, we remanded the defendant’s cause to the circuit court to allow the defendant an opportunity to file a motion to

withdraw his guilty plea and vacate judgment. We determined that

the disposition was appropriate because the proceedings in the

circuit court “took place some two years prior to our decision in

Evans so that neither defense counsel nor the circuit court had the benefit of its analysis as to the proper post-plea motion to be filed

after a guilty plea is entered pursuant to a negotiated agreement.”

Clark, 183 Ill. 2d at 270. In the instant matter, defendant entered his guilty plea on January 18, 1996, and was sentenced on March

28, 1996. The record reflects that, after defendant was sentenced,

the trial court instructed defendant as follows concerning an

appeal: “Now, you still have the right to appeal what we’re doing

and if you wish to appeal what we’re doing, you have to file within

this court within 30 days a motion to withdraw your guilty plea or

reconsider the sentence. *** If I deny *** the request for

reconsideration, you have 30 days after that date to file a notice of

appeal.” Defense counsel filed a motion to reconsider sentence on

April 24, 1996, and the circuit court denied the motion for

reconsideration on July 12, 1996. All of these events occurred well

before our decision in Evans. As in Clark, neither defense counsel nor the circuit court had the benefit of our Evans ruling with regard to the proper post-plea proceedings. Under these specific

circumstances, fundamental fairness dictates that we remand this

cause to the circuit court with instructions to vacate its order

denying defendant’s reconsideration motion. We further instruct

the circuit court to properly admonish defendant and allow

defendant the opportunity to move to withdraw his guilty plea and

vacate the judgment, if he so chooses. See Clark, 183 Ill. 2d at 271.

CONCLUSION

	For the foregoing reasons, we vacate the judgment of the

appellate court, and remand this cause to the circuit court with instructions that it vacate its order denying defendant’s motion to

reconsider, that it properly admonish defendant, and that it allow

defendant the opportunity to move to withdraw his guilty plea and

vacate judgment.

Appellate court judgment vacated;

cause remanded with directions.

	JUSTICE RATHJE took no part in the consideration or

decision of this case.

	JUSTICE BILANDIC, specially concurring:

	I agree that People v. Evans, 174 Ill. 2d 320 (1996), applies to the plea agreement in this case. I write separately, however, to

set forth my continued adherence to the views expressed in my

dissenting opinion in People v. Lumzy, 191 Ill. 2d 182, 190 (2000) (Bilandic, J., dissenting).

	In Evans, we held that the motion-for-sentence- reconsideration provisions of Rule 604(d) (145 Ill. 2d R. 604(d))

apply only to “open,” as opposed to “negotiated,” guilty pleas.

Evans, 174 Ill. 2d at 331-32. We defined an open guilty plea as one in which a defendant pleads guilty “without receiving any promises from the State in return.” (Emphasis added.) Evans, 174 Ill. 2d at 332. The defendants in Evans agreed to plead guilty and, in exchange, the State promised to dismiss other charges and

recommend a specific sentence. The trial court accepted the plea

agreements in both cases and entered judgments in accordance with

the terms of the agreements. The defendants later sought to reduce their sentences to which they agreed without first moving to vacate

their guilty pleas. We held that the defendants could not do this.

Evans, 174 Ill. 2d at 333-34. To hold otherwise would violate basic contract law principles by allowing the defendants to hold the

State to its part of the bargain while unilaterally reneging on or

modifying the terms that they had previously agreed to accept.

Evans, 174 Ill. 2d at 327-28.

	In Lumzy, the defendant was charged with robbery, a Class 2 felony (see 720 ILCS 5/18–1 (West 1998)), and aggravated

battery, a Class 3 felony (see 720 ILCS 5/12–4 (West 1998)). At

a hearing, the trial court advised defendant of the charges against

him and that he faced possible prison sentences of three to seven

years for the robbery, and two to five years for the aggravated

battery. The trial court further advised defendant that he could

receive extended prison terms and therefore be sentenced to prison

terms of 14 and 10 years, respectively. The defendant and the State, however, ultimately reached a plea agreement. The

defendant agreed to plead guilty to robbery in exchange for the

State’s promise to dismiss the aggravated battery charge. The trial

court accepted the plea agreement and, following the defendant’s

guilty plea to robbery, sentenced the defendant to seven years in

prison. See Lumzy, 191 Ill. 2d at 192 (Bilandic, J., dissenting).

	A majority of this court in Lumzy held that the principles enunciated in Evans did not apply to the plea scenario at issue, and that the defendant could therefore challenge the length of his

sentence without first filing a motion to withdraw his guilty plea.

The majority reasoned that the defendant “never agreed, impliedly

or otherwise, to accept whatever sentence the trial court might

have imposed.” Thus, according to the majority, the contract

principles that guided this court’s decision in Evans did not prevent the defendant in Lumzy from appealing only the length of his sentence. See Lumzy, 191 Ill. 2d at 187.

	I dissented in Lumzy on the basis that the defendant’s plea agreement was negotiated within the meaning of Evans. The plea agreement that the parties in Lumzy negotiated provided the defendant with the valuable benefit of a less severe sentence than

he could have received had he been convicted of both robbery and

aggravated battery. Lumzy, 191 Ill. 2d at 192-93 (Bilandic, J., dissenting). Moreover, by pleading guilty to robbery in exchange

for the State’s promise to dismiss the aggravated battery charge,

the defendant in effect agreed that a sentence within the statutory

range for robbery was appropriate. The defendant was in fact

sentenced to seven years in prison for the robbery–a sentence

within the statutory range. Lumzy, 191 Ill. 2d at 193 (Bilandic, J., dissenting). Allowing the defendant to challenge the length of his sentence without also requiring him to move to withdraw his guilty

plea unfairly binds the State to its part of the plea bargain, i.e., the dismissal of the aggravated battery charge, while allowing the

defendant the opportunity to renege on or modify the terms to

which he had previously agreed. Lumzy, 191 Ill. 2d at 193 (Bilandic, J., dissenting). Such a result is not proper under this

court’s holding in Evans.

	Today, the majority cites Lumzy and states that the plea agreement in Lumzy is distinguishable from the plea agreement in this case. Slip op. at 10. The majority reasons that, in contrast to

the plea agreement in Lumzy, where there was no agreement as to sentencing, the plea agreement in this case entails an agreement

between the parties regarding the defendant’s sentence and,

therefore, Evans applies. Slip op. at 10. Although I agree that the principles set forth in Evans apply to the plea agreement in this case, I adhere to my view that these principles likewise apply to the

plea agreement in Lumzy.

	With the foregoing understanding, I concur in the majority’s

decision.

	JUSTICE HEIPLE, dissenting:

	I agree with the majority that the facts of this case are

analogous to those in People v. Linder, 186 Ill. 2d 67 (1999). However, for the same reasons that led me to dissent in Linder, I believe that defendant in this case did not have to move to

withdraw his guilty plea before challenging the length of his

sentence on appeal. 

	Defendant in this case pled guilty to one count of aggravated

criminal sexual assault and three counts of aggravated criminal

sexual abuse. In exchange for this guilty plea, the State agreed to

dismiss several other charges against defendant. The agreement did

not specify the sentence defendant would receive; however, the

State did agree not to seek extended-term sentences against

defendant.

	After a hearing, the trial court sentenced defendant to a term

of 20 years in prison on the aggravated criminal sexual assault

charge, and concurrent three-year terms on each of the aggravated criminal sexual abuse charges. Defendant then filed a motion to

reconsider sentence, which the trial court denied. Defendant

appealed.

	The majority today holds that defendant should not be

permitted to appeal the length of his sentence without first moving

to withdraw his guilty plea. According to the majority, by entering

into the plea deal with the State, defendant impliedly agreed not to

challenge any non-extended-term sentence which the trial court

might impose. The majority relies upon the reasoning of this

court’s opinion in People v. Linder, 186 Ill. 2d 67 (1999), in which a majority of this court held that a defendant entering into a plea

agreement which includes a sentencing cap impliedly agrees not to challenge any sentence falling underneath that cap.

	I dissented in Linder. In that case, I noted that:

		“Presumably, if the State and the defendants had been able

to agree on an appropriate sentence, they would have

decided to recommend that specific sentence to the trial

court. In the absence of such agreement, neither party was

entitled to expect the entry of any particular sentence

within the recommended range. In other words, at the time

a plea agreement involving a sentencing cap is accepted by

the trial court, the appropriate sentence, as far as the two

parties are concerned, has yet to be determined. A

defendant thus does not violate any term of such an

agreement by seeking reconsideration of the sentence

imposed by the trial court. This situation is no different

than that where a defendant enters an open or blind plea,

thus exposing himself to the maximum statutory sentence.

In such a case, the maximum sentence is the cap. In that

situation, the defendant may challenge the length of his

sentence without moving to withdraw his plea of guilty.

[Citation.]” Linder, 186 Ill. 2d at 82 (Heiple, J., dissenting).

So too, in the instant case, defendant and the State were unable to

agree as to the appropriate sentence for defendant’s crimes.

Accordingly, at the time the parties entered into the plea

agreement, the appropriate sentence was yet to be determined. 

	The parties in this case surely could have expressly agreed that defendant would not challenge any non-extended-term sentence.

Indeed, if the parties had so agreed, it would obviously have been in the interest of the State to memorialize that understanding. The

fact that the record in this case does not reflect such a meeting of

the minds, however, strongly indicates that the State and defendant

did not reach that agreement. Under these circumstances, there is

no reason why this court should feel compelled to award the State

concessions which it was unable to win at the bargaining table. 

	For the foregoing reasons, I would hold that defendant did not

violate any term of his agreement by challenging the length of the

sentence imposed by the trial court. Accordingly, defendant should

have been permitted to appeal the length of his sentence without

first moving to withdraw his guilty plea.

	I therefore dissent.