NOTICE 2023 IL App (4th) 220492-U FILED This Order was filed under February 15, 2023 Supreme Court Rule 23 and is NO. 4-22-0492 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL IN THE APPELLATE COURT under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Fulton County ERICK PRATT, ) No. 19CF286 Defendant-Appellant. ) ) Honorable ) Thomas B. Ewing, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Doherty concurred in the judgment.
ORDER
¶1 Held: Defendant’s sentencing claims are procedurally forfeited.
¶2 Defendant, Erick Pratt, entered a partially negotiated plea of guilty to aggravated
driving under the influence (DUI) of alcohol resulting in a fatality (625 ILCS 5/11-501(d)(1)(F)
(West 2018)). The trial court sentenced defendant to 10 years in prison. Defendant appeals,
arguing his sentence is excessive. We disagree and dismiss the appeal.
¶3 I. BACKGROUND
¶4 In July 2021, defendant pleaded guilty to aggravated DUI resulting in a fatality. Id.
The State presented a factual basis that defendant was driving on Highway 136 in Fulton County
when he drifted from his lane and entered the lane of a vehicle driven by Timothy Smith. Defendant
struck Smith’s vehicle, which resulted in the death of Alice Jones. Defendant tested positive for topiramate, a prescription medication which comes with a warning to not operate machinery.
Defendant did not have a prescription for topiramate.
¶5 The parties agreed, in exchange for defendant’s guilty plea, the State would not
request a sentence of more than four years in the Illinois Department of Corrections (DOC). The
trial court confirmed the cap was not a limitation on the court. The court then asked defendant if
the agreement was accurate, and defendant responded affirmatively. The court accepted
defendant’s guilty plea and proceeded directly to sentencing. The State recommended a sentence
of four years in DOC. Defense counsel requested a period of probation.
¶6 The trial court considered “the factual basis and Presentence Investigation Report,
the history and character, attitude of defendant, the evidence, arguments, [defendant’s] statement
of allocution, [and] considered the statutory matters in aggravation and mitigation.” The court
highlighted as aggravating factors the harm defendant caused, defendant’s history of DUIs, the
need for deterrence, and the age of the victim. As mitigating factors, the court found defendant did
not contemplate his actions would cause harm, he planned to compensate the victim’s family, and
defendant served as a caregiver for his stepmother. The court noted the State’s agreement to not
recommend more than 4 years and sentenced defendant to 10 years in DOC.
¶7 Defendant filed a motion to reconsider sentence, arguing the 10-year sentence was
excessive. At the hearing on the motion, the trial court reiterated it based the sentence “upon the
history of defendant, the offense, and the sentence that was prescribed by the legislature in this
matter, and also, after listening to the family members.” The court denied the motion to reconsider
sentence.
¶8 Defendant appealed, and the Third District Appellate Court entered an agreed order
for summary remand for compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
-2- ¶9 Defense counsel filed a new motion to reconsider, which again argued defendant’s
sentence was excessive. Counsel also filed a certificate pursuant to Rule 604(d). The trial court
denied the new motion to reconsider.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 Defendant argues that his sentence was excessive where the trial court improperly
considered factors inherent in the offense and placed undue weight on aggravating factors.
Defendant requests we reduce his sentence to the four years recommended by the State in
conjunction with his plea agreement. In response, the State maintains that, based on People v.
Johnson, 2019 IL 122956, ¶ 57, the appeal should be dismissed because defendant failed to file a
motion to withdraw his plea. In the alternative, the State argues that the trial court did not
consider improper factors and defendant’s sentence was not an abuse of discretion.
¶ 13 We first consider whether the appeal should be dismissed. Rule 604(d) provides:
“No appeal shall be taken upon a negotiated plea of guilty challenging the
sentence as excessive unless the defendant, within 30 days of the imposition of
sentence, files a motion to withdraw the plea of guilty and vacate the judgment.”
Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
In People v. Evans, 174 Ill. 2d 320, 327 (1996), the supreme court held that, when a defendant
pleads guilty to certain charges in exchange for the State’s agreement to recommend a specific
sentence, the defendant may not seek reconsideration of that sentence without moving to
withdraw his plea. The court later extended this rule to include plea agreements involving
sentencing caps. People v. Linder, 186 Ill. 2d 67, 74 (1999). Rule 604(d) was amended to reflect
these decisions. See Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000). Further, Rule 604(d) specifically
-3- states a negotiated plea of guilty includes “one in which the prosecution has bound itself to
recommend a specific sentence.” Ill. S. Ct. R. 604(d) (eff July 1, 2017).
¶ 14 Defendant argues this court may consider his sentencing claim because the court
sentenced him to a term above the State’s recommended sentencing cap. In doing so, defendant
contends we should find this court’s decision in People v. Robinson, 2021 IL App (4th) 200515,
was wrongly decided. Defendant points to Linder, Johnson, and People v. Heider, 231 Ill. 2d 1
(2008), for his contention that Robinson was wrongly decided and a defendant may challenge a
sentence as excessive if the imposed sentence exceeds the State’s agreed recommendation.
¶ 15 In Linder, the supreme court found a defendant who was sentenced within the
range of an agreed cap was, “in effect, agreeing not to challenge any sentence imposed below
that cap on the grounds that it is excessive.” Linder, 186 Ill. 2d at 74. Defendant’s logic is,
therefore, that he agreed to not challenge a sentence imposed below the cap but did not agree to
not challenge a sentence imposed above the cap. However, at the time Linder was decided, Rule
604(d) did not yet include the language pertaining to challenging negotiated plea agreements.
Compare Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992) with Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000).
The Linder court did not consider a sentence imposed above the agreed recommendation and did
not have the benefit of Rule 604(d)’s relevant language to serve as guidance. Linder is, therefore,
inapposite to our reading of Rule 604(d)’s requirements.
¶ 16 In Heider, the court considered a defendant’s claim the trial court relied on an
improper factor in sentencing. Heider, 231 Ill. 2d at 18-19. The defendant was sentenced
pursuant to a negotiated guilty plea where the State agreed to recommend a sentence of no more
than six years, and the trial court sentenced defendant to 10 years. Id. at 4. However, our
supreme court has already determined Heider is inapposite to cases involving Rule 604(d),
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE 2023 IL App (4th) 220492-U FILED This Order was filed under February 15, 2023 Supreme Court Rule 23 and is NO. 4-22-0492 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed Court, IL IN THE APPELLATE COURT under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Fulton County ERICK PRATT, ) No. 19CF286 Defendant-Appellant. ) ) Honorable ) Thomas B. Ewing, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Doherty concurred in the judgment.
ORDER
¶1 Held: Defendant’s sentencing claims are procedurally forfeited.
¶2 Defendant, Erick Pratt, entered a partially negotiated plea of guilty to aggravated
driving under the influence (DUI) of alcohol resulting in a fatality (625 ILCS 5/11-501(d)(1)(F)
(West 2018)). The trial court sentenced defendant to 10 years in prison. Defendant appeals,
arguing his sentence is excessive. We disagree and dismiss the appeal.
¶3 I. BACKGROUND
¶4 In July 2021, defendant pleaded guilty to aggravated DUI resulting in a fatality. Id.
The State presented a factual basis that defendant was driving on Highway 136 in Fulton County
when he drifted from his lane and entered the lane of a vehicle driven by Timothy Smith. Defendant
struck Smith’s vehicle, which resulted in the death of Alice Jones. Defendant tested positive for topiramate, a prescription medication which comes with a warning to not operate machinery.
Defendant did not have a prescription for topiramate.
¶5 The parties agreed, in exchange for defendant’s guilty plea, the State would not
request a sentence of more than four years in the Illinois Department of Corrections (DOC). The
trial court confirmed the cap was not a limitation on the court. The court then asked defendant if
the agreement was accurate, and defendant responded affirmatively. The court accepted
defendant’s guilty plea and proceeded directly to sentencing. The State recommended a sentence
of four years in DOC. Defense counsel requested a period of probation.
¶6 The trial court considered “the factual basis and Presentence Investigation Report,
the history and character, attitude of defendant, the evidence, arguments, [defendant’s] statement
of allocution, [and] considered the statutory matters in aggravation and mitigation.” The court
highlighted as aggravating factors the harm defendant caused, defendant’s history of DUIs, the
need for deterrence, and the age of the victim. As mitigating factors, the court found defendant did
not contemplate his actions would cause harm, he planned to compensate the victim’s family, and
defendant served as a caregiver for his stepmother. The court noted the State’s agreement to not
recommend more than 4 years and sentenced defendant to 10 years in DOC.
¶7 Defendant filed a motion to reconsider sentence, arguing the 10-year sentence was
excessive. At the hearing on the motion, the trial court reiterated it based the sentence “upon the
history of defendant, the offense, and the sentence that was prescribed by the legislature in this
matter, and also, after listening to the family members.” The court denied the motion to reconsider
sentence.
¶8 Defendant appealed, and the Third District Appellate Court entered an agreed order
for summary remand for compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
-2- ¶9 Defense counsel filed a new motion to reconsider, which again argued defendant’s
sentence was excessive. Counsel also filed a certificate pursuant to Rule 604(d). The trial court
denied the new motion to reconsider.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 Defendant argues that his sentence was excessive where the trial court improperly
considered factors inherent in the offense and placed undue weight on aggravating factors.
Defendant requests we reduce his sentence to the four years recommended by the State in
conjunction with his plea agreement. In response, the State maintains that, based on People v.
Johnson, 2019 IL 122956, ¶ 57, the appeal should be dismissed because defendant failed to file a
motion to withdraw his plea. In the alternative, the State argues that the trial court did not
consider improper factors and defendant’s sentence was not an abuse of discretion.
¶ 13 We first consider whether the appeal should be dismissed. Rule 604(d) provides:
“No appeal shall be taken upon a negotiated plea of guilty challenging the
sentence as excessive unless the defendant, within 30 days of the imposition of
sentence, files a motion to withdraw the plea of guilty and vacate the judgment.”
Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
In People v. Evans, 174 Ill. 2d 320, 327 (1996), the supreme court held that, when a defendant
pleads guilty to certain charges in exchange for the State’s agreement to recommend a specific
sentence, the defendant may not seek reconsideration of that sentence without moving to
withdraw his plea. The court later extended this rule to include plea agreements involving
sentencing caps. People v. Linder, 186 Ill. 2d 67, 74 (1999). Rule 604(d) was amended to reflect
these decisions. See Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000). Further, Rule 604(d) specifically
-3- states a negotiated plea of guilty includes “one in which the prosecution has bound itself to
recommend a specific sentence.” Ill. S. Ct. R. 604(d) (eff July 1, 2017).
¶ 14 Defendant argues this court may consider his sentencing claim because the court
sentenced him to a term above the State’s recommended sentencing cap. In doing so, defendant
contends we should find this court’s decision in People v. Robinson, 2021 IL App (4th) 200515,
was wrongly decided. Defendant points to Linder, Johnson, and People v. Heider, 231 Ill. 2d 1
(2008), for his contention that Robinson was wrongly decided and a defendant may challenge a
sentence as excessive if the imposed sentence exceeds the State’s agreed recommendation.
¶ 15 In Linder, the supreme court found a defendant who was sentenced within the
range of an agreed cap was, “in effect, agreeing not to challenge any sentence imposed below
that cap on the grounds that it is excessive.” Linder, 186 Ill. 2d at 74. Defendant’s logic is,
therefore, that he agreed to not challenge a sentence imposed below the cap but did not agree to
not challenge a sentence imposed above the cap. However, at the time Linder was decided, Rule
604(d) did not yet include the language pertaining to challenging negotiated plea agreements.
Compare Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992) with Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000).
The Linder court did not consider a sentence imposed above the agreed recommendation and did
not have the benefit of Rule 604(d)’s relevant language to serve as guidance. Linder is, therefore,
inapposite to our reading of Rule 604(d)’s requirements.
¶ 16 In Heider, the court considered a defendant’s claim the trial court relied on an
improper factor in sentencing. Heider, 231 Ill. 2d at 18-19. The defendant was sentenced
pursuant to a negotiated guilty plea where the State agreed to recommend a sentence of no more
than six years, and the trial court sentenced defendant to 10 years. Id. at 4. However, our
supreme court has already determined Heider is inapposite to cases involving Rule 604(d),
-4- noting “the court in Heider was neither asked to consider nor addressed the application of Rule
604(d) to the defendant’s sentencing challenge.” Johnson, 2019 IL 122956, ¶ 51. “Accordingly,
Heider cannot be interpreted to express any view by this court as to the implications of Rule
604(d)” to the circumstances of the case at bar. Id.
¶ 17 Finally, in Johnson, the defendant entered a plea where the State dismissed more
serious charges and agreed to cap its sentencing recommendation at 13 years. Id. ¶ 4. The
defendant appealed his 11-year sentence, abandoning all claims related to the denial of his
motion to withdraw his guilty plea and instead arguing for plain-error review where the trial
court relied on allegedly improper aggravating factors. Id. ¶¶ 16, 36. Although our supreme court
noted the defendant’s sentence was “within the terms of the bargain” (id. ¶ 45), it did not make
any statement implying a term outside the bargain would be open to challenge. We therefore do
not find any language this court failed to consider in Robinson and reject defendant’s request to
find Robinson was wrongly decided.
¶ 18 The supreme court in Johnson unequivocally confirmed a nonbinding sentencing
recommendation was sufficient to fall under the purview of Rule 604(d)’s limitation on
negotiated pleas of guilty. Id. ¶ 46. This court in Robinson further discussed the court’s language
in Johnson and found, “[u]nless and until we receive further clarification from our supreme
court, a nonbinding ‘recommended sentencing cap’ must be treated the same as a ‘binding
recommended sentence cap,’ even though they are substantially different in application.”
Robinson, 2021 IL App (4th) 200515, ¶ 20.
¶ 19 Johnson additionally foreclosed any attempt to “skirt Rule 604(d)’s requirements
by [a defendant] claiming he was not challenging his sentence as excessive,” but instead raising a
constitutional due process claim by arguing “the trial court improperly relied on certain statutory
-5- factors in aggravation.” People v. Millsap, 2022 IL App (4th) 210192, ¶ 21 (citing Johnson, 2019
IL 122956, ¶ 36). Our supreme court in Johnson found this was a “distinction without a
difference.” Johnson, 2019 IL 122956, ¶ 41. “[A] defendant, after entering into a negotiated plea
agreement, may not challenge his sentence by claiming the trial court relied on improper
statutory sentencing factors.” Millsap, 2022 IL App (4th) 210192, ¶ 21 (citing Johnson, 2019 IL
122956, ¶ 57).
¶ 20 In this case, defendant pleaded guilty in exchange for the State’s nonbinding
recommended sentencing cap. Defendant’s plea was therefore a negotiated plea under the
language of Rule 604(d). See Ill. S. Ct. R. 604(d) (eff. July 1, 2017); People v. Millsap, 2022 IL
App (4th) 210192, ¶ 19. “Accordingly, where defendant was sentenced pursuant to a negotiated
plea, his recourse was to file a motion to withdraw his guilty plea and argue on appeal how the
trial court erred in denying his motion.” Robinson, 2021 IL App (4th) 200515, ¶ 24. Defendant
did not move to withdraw his guilty plea. Consequentially, we may not now consider his
excessive-sentence or improper-factors claims on appeal.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we dismiss the appeal.
¶ 23 Appeal dismissed.
-6-