The People Of The State Of Ill. v. Seyferlich, 2-08-0436.

• Decision Date: 04 March 2010
• Docket Number: No. 2-08-0436.,2-08-0436.
• Citation: 924 N.E.2d 1212,338 Ill.Dec. 686,398 Ill.App.3d 989
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Patricia M. SEYFERLICH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 989

924 N.E.2d 1212

338 Ill.Dec. 686

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Patricia M. SEYFERLICH, Defendant-Appellant.

No. 2-08-0436.

Appellate Court of Illinois Second District.

March 4, 2010.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Kim M. DeWitt, Office of State Appellate Defender, Elgin, IL, for Appellant.

Joseph E. Birkett, DuPage County State's Atty., Wheaton, IL, Robert J. Biderman, State's Attorneys Appellate Prosecutor, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor, Springfield, IL, for Appellee.

Justice SCHOSTOKdelivered the opinion of the court:

Defendant, Patricia M. Seyferlich, entered a nonnegotiated plea of guilty to a single count of theft (720 ILCS 5/16-1(a)(1)(A)(West 2002)).According to the factual basis of the plea, from 2003 to 2006, defendant, who was an employee of a medical practice, stole insurance copayments totaling $46,311.09.Prior to accepting defendant's plea, the trial court admonished her that she could be sentenced to a prison term of no less than three years and no more than seven years, which would be followed by a two-year term of mandatory supervised release.The trial court further admonished defendant that her sentence could include a fine of up to $25,000.However, the trial court neglected to inform defendant that she could be ordered to make restitution.Following a sentencing hearing, the trial court imposed a four-year prison term and ordered defendant to pay $46,311 in restitution.Defendant unsuccessfully moved for reconsideration of her sentence and this appeal followed.We affirm.

Defendant argues that the trial court erred by failing to admonish her of the possibility of restitution.Citing the Fourth District's decision in People v. Jenkins,141 Ill.App.3d 602, 95 Ill.Dec. 861, 490 N.E.2d 953(1986), defendant argues that the amount of restitution must be reduced to $25, 000, which, defendant notes, “is the maximum financial penalty [defendant] was told she would face as a result of pleading guilty.”In Jenkins,the defendant pleaded guilty to charges of residential burglary and home invasion.As part of his sentences for those offenses, he was ordered to pay restitution.He sought to vacate his guilty plea because he had not been made aware that his sentence might include restitution.The Jenkins court concluded that “the restitution order exceeded the ‘maximum sentence’ of which the defendant had been admonished upon entry of his guilty plea.”Jenkins,141 Ill.App.3d at 609, 95 Ill.Dec. 861, 490 N.E.2d 953.Although the defendant sought to vacate his guilty plea, the Jenkins court concluded that the appropriate remedy was simply to eliminate the restitution order, noting that “[a]s long as the restitution ordered is vacated, the sentences imposed were within the limits stated to [defendant] prior to entry of the plea.”Jenkins,141 Ill.App.3d at 609, 95 Ill.Dec. 861, 490 N.E.2d 953.

Here, defendant was advised that she might face a fine of up to $25,000.She acknowledges that, because she received no fine, in practical terms a restitution order of up to $25,000 would be within the range of sentences that she was told could be imposed.SeePeople v. Petero,384 Ill.App.3d 594, 323 Ill.Dec. 94, 892 N.E.2d 1086(2008);People v. Thompson,375 Ill.App.3d 488, 314 Ill.Dec. 476, 874 N.E.2d 572(2007).However, she insists that, consonant with Jenkins, the restitution award cannot exceed that amount.

In our view, the remedy given in Jenkins-vacatur of the restitution order-was inappropriate.In formulating that remedy, the Jenkins court cited an earlier Fourth District decisionPeople v. Culp,127 Ill.App.3d 916, 925, 82 Ill.Dec. 548, 468 N.E.2d 1328(1984), for the proposition that “by entry of a guilty plea a defendant is exposed to sentences within the range stated by the trial court in admonishments preceding entry of the plea.”Culp,127 Ill.App.3d at 924-25, 82 Ill.Dec. 548, 468 N.E.2d 1328, in turn relied onPeople v. Wenger,42 Ill.App.3d 608, 1 Ill.Dec. 306, 356 N.E.2d 432(1976), which quoted the First District's decision in People v. Jackson,13 Ill.App.3d 232, 300 N.E.2d 557(1973), for the proposition that “ ‘[j]ustice and fairness demand that if a guilty plea rests on an inaccurate representation as to the maximum penalty the promise implied in the representation should be fulfilled.’ ”(Emphasis omitted.)Wenger,42 Ill.App.3d at 611, 1 Ill.Dec. 306, 356 N.E.2d 432, quotingJackson,13 Ill.App.3d at 236, 300 N.E.2d 557.By characterizing the trial court's admonitions concerning the range of sentences for an offense as “implied promises,”the Jackson court seemingly viewed the admonitions as part of a bargaining process between the court and the defendant.We do not share this view.The necessary admonitions-which are mandated by Supreme Court Rule 402(a)(2)(177 Ill.2d R. 402(a)(2))-are designed “to insure that [the defendant's] guilty plea is intelligently and understandingly made, as required by Boykin[ v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969) ].”177 Ill.2d R. 402, Committee Comments.It is not the court's role to bargain with a defendant to secure his or her guilty plea.

It appears that the Fourth District(wisely, we believe) has stepped back from the idea expressed in Jackson that incorrect admonitions regarding sentencing options function as promises by the trial court to the defendant.In People v. Harris,359 Ill.App.3d 931, 296 Ill.Dec. 549, 835 N.E.2d 902(2005), the defendant pleaded guilty to one count of armed robbery.In exchange for his plea, other charges were dismissed, but there was no agreement concerning sentencing.The trial court sentenced the defendant to 22 years' imprisonment and ordered the sentence to be served consecutively to an 18-month prison term in an unrelated case.The trial court had accepted the defendant's plea without first informing him that he faced the possibility of consecutive sentences.The Harris court observed that “[i]f the court's failure to properly admonish a defendant results in the denial of ‘real justice’ or [in] prejudice to the defendant, the reviewing court should vacate the defendant's guilty plea and allow the defendant to plead anew.”Harris,359 Ill.App.3d at 936, 296 Ill.Dec. 549, 835 N.E.2d 902.However, the Harris court concluded that it was not necessary to determine whether the improper admonition in that case required that the defendant's guilty plea be vacated.The court observed:

“[D]efendant does not seek that remedy.Instead, he asks this court for the wrong remedy-namely, that this court amend his sentencing order to reflect that his 22-year prison sentence is to be served concurrently with his 18-month sentence * * *.”(Emphasis added.)Harris,359 Ill.App.3d at 937, 296 Ill.Dec. 549, 835 N.E.2d 902.

In light of Harris, it is doubtful whether Jenkins can still be considered good law.The Fourth District has not expressly abrogated Jenkins, choosing on one occasion to distinguish it.SeeThompson,375 Ill.App.3d at 492-94, 314 Ill.Dec. 476, 874 N.E.2d 572.However, there are no published decisions after Jenkins in which the Fourth District vacated or reduced an award of restitution on the basis that an incorrect admonition amounted to an “implied promise.”

We note that the Harris court distinguished People v. Wills,251 Ill.App.3d 640, 190 Ill.Dec. 954, 622 N.E.2d 1271(1993), a decision that relied, in part, on Jackson.In Wills,the defendant pleaded guilty to multiple theft charges and agreed to cooperate with the State in the prosecution of his coconspirators in the theft schemes.The trial court accepted his guilty plea without informing him that he might face consecutive sentencing.Holding that consecutive sentences were improper, the Wills court reasoned that the defendant“relied to his detriment on the trial court's admonishments and made statements against his interest implicating himself in the schemes.”Wills,251 Ill.App.3d at 645, 190 Ill.Dec. 954, 622 N.E.2d 1271.The Harris court noted that, “[u]nlike in Wills, no unusual circumstances exist here that require this court to amend defendant's sentencing order.”Harris,359 Ill.App.3d at 937, 296 Ill.Dec. 549, 835 N.E.2d 902.The same is true in this case.The objective of ensuring that guilty pleas are entered voluntarily and intelligently is not advanced by a rule that affords defendants a sentencing windfall by treating misstatements by the trial court as promises.If defendant would not have pleaded guilty but for the incomplete admonition, her remedy was to seek leave to withdraw her plea.Unlike the defendant in Wills, had defendant here been permitted to withdraw her plea, she would have been no better or worse off than before she entered it.However, defendant failed to seek such relief in the trial court and may not now challenge the plea.See210 Ill.2d R. 604(d).

People v. Whitfield,217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658(2005), does not require a different result.In that case, the defendant entered a negotiated guilty plea to first degree murder.He had agreed to serve a 25-year prison term.He claimed, however, that he had not agreed to serve the additional three-year term of mandatory supervised release (MSR)...