People v. Leach

No. 2--95--0321
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 93--CF--1039
v. )
)
JESSE T. LEACH, ) Honorable
) Ronald L. Pirrello,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Jesse T. Leach, appeals the trial court's order
dismissing his petition for post-conviction relief (725 ILCS 5/122-
-1 (West 1994)). The issue on appeal is whether we must remand
this cause to the trial court because the record does not
demonstrate that defense counsel complied with Supreme Court Rule
651(c) (134 Ill. 2d R. 651(c)). We affirm.
Defendant was charged by indictment with escape (720 ILCS
5/31--6(a) (West 1994)). Defendant entered into a negotiated
guilty plea in exchange for a sentence of two years' imprisonment
to be served consecutive to a sentence of six years' imprisonment
imposed for a separate conviction.
On October 17, 1994, defendant filed a pro se petition for
post-conviction relief. The petition alleged that the sentences
should have been concurrent instead of consecutive. On December
14, 1994, the trial court appointed counsel for defendant for his
petition. On February 3, 1995, the trial court granted the State's
motion to dismiss the petition. Defendant filed a timely notice of
appeal.
On appeal, defendant argues that his counsel was ineffective
for failing to comply with the requirements of Supreme Court Rule
651(c) and that we must remand the cause, pursuant to People v.
Alexander, 197 Ill. App. 3d 571, 573-74 (1990), to the trial court
for full compliance with the rule. However, our supreme court
recently held that, for a defendant to prevail in a challenge to a
sentence entered pursuant to a negotiated plea agreement, defendant
must (1) move to withdraw the guilty plea and vacate the judgment,
and (2) show that the granting of the motion is necessary to
correct a manifest injustice. People v. Evans, Nos. 80158, 80159
cons. (Ill. September 19, 1996). In Evans, the court considered
the motion-to-reconsider-sentence provisions of Rule 604(d) (145
Ill. 2d R. 604(d)) and held that they only apply to open guilty
pleas. Evans, slip op. at 10.
Although Evans involved the defense attorney's failure to
comply with Rule 604(d), we conclude that the reasoning used in
Evans applies equally to a motion to reconsider the sentence in the
form of a post-conviction petition and counsel's failure to comply
with Rule 651(c). Like Rule 604(d), Rule 651(c) requires counsel
to file a certificate or make a showing on the record that he has
consulted with defendant to ascertain his contentions of error, has
examined the record of the trial court proceedings, and has made
any amendments to the petition filed pro se that are necessary for
an adequate presentation of defendant's contentions.
Evans thus stands for the proposition that a defendant cannot
challenge a sentence imposed pursuant to a negotiated plea
agreement without first moving to withdraw his guilty plea and
vacate the judgment. The reason for this is that, in a negotiated
guilty plea, as opposed to an open guilty plea, the State has
agreed to a specific sentence and in some cases has dropped other
charges in exchange for a defendant's guilty plea. If a defendant
is to challenge his sentence, he must also withdraw his plea in
order to put the State back in its original bargaining position.
In the present case, defendant and the State entered into a
negotiated plea agreement. Under its terms, defendant pleaded
guilty to the charge of escape and, in exchange, the State agreed
to the minimum sentence to run consecutively to a sentence imposed
for a separate conviction. The trial court accepted the plea
agreement and entered judgment in accordance with its terms.
Subsequently, defendant filed a petition for post-conviction relief
alleging that the sentence should not have been consecutive to his
other sentence. The trial court declined to modify his sentence to
run concurrently with his other sentence.
We conclude that the provisions of Rule 651(c), like the
motion-to-reconsider-sentence provisions of Rule 604(d), only apply
to open guilty pleas. See Evans, slip op. at 10. Accordingly,
defendant was not entitled to a reduction of his negotiated
sentence because it had been bargained for in his plea agreement.
Defendant could obtain relief only by requesting the trial court,
in his post-conviction petition, to withdraw his guilty plea and
vacate the judgment. He would also have to show that the granting
of the motion is necessary to correct a manifest injustice. He did
neither. Consequently, defendant is not entitled to a reduction of
his negotiated sentence.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
GEIGER and RATHJE, JJ., concur.