People v. Allen

• Decision Date: 11 August 2004
• Docket Number: No. 4-02-0950.,4-02-0950.
• Citation: 287 Ill.Dec. 23,351 Ill. App.3d 599,815 N.E.2d 426
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie A. ALLEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

815 N.E.2d 426

351 Ill. App.3d 599

287 Ill.Dec. 23

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie A. ALLEN, Defendant-Appellant.

No. 4-02-0950.

Appellate Court of Illinois, Fourth District.

August 11, 2004.

Rehearing Denied September 7, 2004.

Michael J. Pelletier, Deputy Defender (Court-appointed), Rebecca I. Levy, Assistant Defender, Office of State Appellate Defender, Chicago, for Jackie A. Allen. John C. Piland, Champaign County State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Denise M. Ambrose Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice APPLETON delivered the opinion of the court:

In March 2002, a grand jury charged defendant, Jackie A. Allen, with burglary (720 ILCS 5/19-1(a) (West 2000) (text of section effective June 1, 2001)). The day of his September 2002 trial, he sought to plead guilty to a lesser charge under a proposed plea agreement with the State. Upon ascertaining that the State had not yet drafted the charge, the trial court refused to consider the plea agreement. The trial proceeded, and the jury found defendant guilty as charged. At a joint October 2002 hearing, the court denied defendant's posttrial motion and sentenced him to 15 years' imprisonment.

Defendant appeals, contending (1) the court abused its discretion by refusing to consider the plea agreement, (2) the State committed reversible error by misstating the evidence in its closing argument, and (3) the court's 15-year sentence is excessive. Because we agree with the first contention, we reverse and remand.

I. BACKGROUND

The grand jury's indictment alleged that on December 18, 2001, defendant committed burglary in that he, "or one for whose conduct he was legally responsible, knowingly and without authority, entered a building of Eagle Head Enterprises [(Eagle Head)], * * * at 130 E. Main, Tolono, Illinois, with the intent to commit therein a theft."

On September 11, 2002, the scheduled day of trial, the court asked defense counsel, before voir dire, if defendant "still persist[ed] in his plea of not guilty" to the burglary charge. Defense counsel replied: "[T]here has been an offer made by the State's Attorney. [Defendant has] decided to accept that offer if the [j]udge will entertain it." The court then asked defense counsel:

"THE COURT: Is that to the charge that I've just read to him?

[DEFENSE COUNSEL]: Yes, it is — well, no, Your Honor, it would be to a lesser charge.

THE COURT: We have jurors here at this time ready to proceed. I don't have any lesser charges here.

What is the situation at this time as far as the People are concerned, [prosecutor]?

[PROSECUTOR]: Judge, I can say that the State is ready for trial. We are prepared to proceed today.

I have previously tendered an offer to [defense counsel]. I know that she's been speaking with the [d]efendant on numerous occasions.

I don't think that the offer or the potential plea is necessarily inconsistent with the ends of justice or a bad plea or however one wants to say that.

So, [defense counsel] just asked me if he could still accept that, and I would be prepared to still offer that if the [c]ourt would accept that, butI — obviously, it's in the discretion of the [c]ourt at this point.

THE COURT: Well, what type of situation are you talking about? What is the plea? There are no other charges here, so the only charge I have is to the burglary. Has anything else been filed?

[PROSECUTOR]: [Nothing else has] been filed, [j]udge. It was believed that another charge would be filed if he would accept the plea.

THE COURT: Do you have those papers?

[PROSECUTOR]: I do not have those prepared now.

THE COURT: Then, no, we have people waiting. I am not going to wait for the State and have the jurors sit and wait for the State to prepare paperwork.

[DEFENSE COUNSEL]: Your Honor, I would just like the record to reflect that my client was in the Department of Corrections. We had several conversations through letter only. I was unable to talk to him about his case or about the plea agreement until last night. Yesterday afternoon after court. He was not brought until Monday, approximately 1 o'clock. And because of trial call, I was unable to make it to the jail. So, I wasn't able to converse with him in person except for yesterday."

The parties selected the jury, and trial on the burglary charge began. A safe was stolen from Eagle Head on December 18, 2001. Suzan and Christina Lambert testified to seeing defendant's nephew, Timothy Burnett, pulling on the door of Eagle Head the evening of the burglary. A police officer, Everett Harper, testified to having a telephone conversation with defendant, in which defendant admitted helping Burnett plan the crime. Defendant even told Harper where he could find the safe, and Harper later found it half-submerged in a pond, just where defendant said it would be. In a voluntary interview at the police station, defendant told Harper he and Burnett had driven to Tolono, loaded up the safe, and taken it to his home in Urbana to cut it open. Defendant also told Harper the safe contained only documents and no money (something he could have known, of course, only if he had looked inside the safe). In his own case in chief, defendant presented alibi witnesses and then took the stand and denied making the incriminating statements to Harper or helping with the crime. The jury found defendant guilty of burglary.

In his posttrial motion, defendant alleged:

"The [c]ourt erred in not allowing the [d]efendant to accept a negotiated plea to a lesser felony charge on the date of trial because the new charge had not been filed, the paperwork was not available in court[,] and a jury was waiting. The State was willing to proceed with the negotiated plea. The negotiated plea would have been to a[t]heft with a prior, Class 4 felony, for four years in the Illinois Department of Corrections. Later[,] after jury selection[,] the [c]ourt asserted that it would accept a plea to the charge of [b]urglary only."

In the October 2002 hearing on the motion and sentencing, the court stated:

"As to [the] request that the [d]efendant plead to lesser charges, one, there were no lesser charges. The jury was here. The matter was ready to proceed for trial. If there are no lesser charges on file, the [d]efendant cannot plead to them. He was charged with the burglary.

And after the jury was picked, the [c]ourt did advise that there was no sense in wasting anybody's time in anything aside from the burglary at that point, because that's the only charge we had. That's what we were dealing with. And that's what the jury was there for.

[The] State wasn't dismissing the burglary. Since [it] didn't dismiss, that was the only charge there for him to be tried on.

So, there was no reason, no showing, or anything that there was any lesser charge, and the [c]ourt wasn't going to give a continuance at that point, so I don't see any error there."

The court then denied defendant's posttrial motion and, after a sentencing hearing, sentenced him to 15 years' imprisonment.

This appeal followed.

II. ANALYSIS

Defendant argues the trial court erred by refusing to consider the negotiated plea agreement. The court's rationale for refusing to do so was twofold: (1) it was impossible for defendant to plead guilty to a charge the State had not yet filed; and (2) granting a continuance long enough for the State to draft the charge would have been unfair to the people who had arrived for jury duty and who were, at that very moment, waiting outside the courtroom for voir dire to begin.

Supreme Court Rule 402(d)(2) provides:

"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." 177 Ill.2d R. 402(d)(2).

The prosecutor told the court he had "tendered an offer to [defense counsel]," the approval of which was "in the discretion of the [c]ourt at this point." Defense counsel told the court defendant had "decided to accept that offer if the [court] would entertain it." Thus, according to both parties' unequivocal representations to the court, a viable plea agreement was on the table.

This case is distinguishable from People v. Henderson, 211 Ill.2d 90, 95, 284 Ill.Dec. 278, 809 N.E.2d 1224, 1227 (2004), in which the defendant rejected the State's offer and made a counteroffer, which the State never accepted. "The State did not offer to negotiate further, it did not ask the court for the opportunity to do so or protest the deprivation of such an opportunity, and it did not indicate that an offer was pending." Henderson, 211 Ill.2d at 97, 284 Ill.Dec. 278, 809 N.E.2d at 1228. The supreme court concluded "there was no negotiated plea agreement presented by the parties for the court's consideration." Henderson, 211 Ill.2d at 106, 284 Ill.Dec. 278, 809 N.E.2d at 1233.

In the present case, by contrast, the parties told the court they had a meeting of the minds, a plea agreement. The State argues "the parties left the [trial] court in the dark respecting the terms of the agreement." On the contrary, the court left itself "in the dark." Evidently, the parties were fully prepared to disclose the terms of the proposed plea agreement. The court had to decide whether it would...