                            No. 3--06--0164

_________________________________________________________________
Filed October 26, 2007.
                              IN THE

                       APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 2007

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 04--CF--1508
                                )
APOLINAR MEZA,                  ) Honorable
                                ) Robert P. Livas,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

     Justice Carter delivered the opinion of the court:

_________________________________________________________________

     Defendant Apolinar Meza was charged with two counts of

attempted first degree murder for the stabbing of his ex-wife,

Ana Meza.   720 ILCS 5/8--4, 9--1 (West 2004).       The defendant pled

guilty and was sentenced to 22 years in prison.       On appeal, the

defendant argues that the trial judge violated Supreme Court Rule

402(d)(2) (177 Ill. 2d R. 402(d)(2)) when he failed to give the

defendant the opportunity to withdraw his guilty plea after the

judge withdrew his offer to sentence the defendant to 15 years in

prison.   We affirm.

                                  FACTS

     The State and the defendant engaged in plea negotiations but

failed to reach agreement on the exact number of years the

defendant would serve in prison.     Subsequent to these failures,
the defendant moved for and the State agreed to a Rule 402

conference to determine what sentence the judge would impose on

the defendant in exchange for a guilty plea.    The conference was

held off-the-record.    At the end of the conference, the judge

stated on the record that he "extended an offer" to the defendant

and continued the case so that the defendant could consider the

offer.    The judge conditionally offered a 15-year term of

incarceration so long as nothing new in the way of aggravation or

mitigation arose at sentencing.

     The defendant informed the judge that he would enter a

guilty plea pursuant to the Rule 402 conference.    The parties

agreed that the plea would be a "blind plea."    The defendant

acknowledged at the time that he understood this to mean that

there was no plea agreement between the State and himself.    The

judge admonished the defendant regarding the nature of the

charges, his trial rights, and his right to persist in a not

guilty plea.    The judge informed the defendant that he faced the

possibility of between 6 and 30 years in prison for pleading

guilty.   The defendant acknowledged that he understood the

judge’s admonitions and that he was not entering a guilty plea

because someone was making promises or threats to him.    The judge

accepted the defendant’s guilty plea, and the case was continued

for a sentencing hearing.

     At the sentencing hearing, the State presented Ana Meza’s

victim impact statement.    The State also produced evidence that

the defendant sent a letter to Ana, asking her to sign an


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affidavit.   The affidavit stated that she lied about the

defendant’s attempt to kill her and that she had tried to kill

herself.   The judge acknowledged his offer of a 15-year sentence

but stated that he did not feel bound by it in light of the

evidence of the letter and affidavit.   The judge then sentenced

the defendant to 22 years in prison.

     The defendant made a motion to withdraw his guilty plea,

which the trial judge denied.   The defendant appealed.

                             ANALYSIS

     On appeal, we are asked to consider whether the trial judge

violated Supreme Court Rule 402(d)(2) (177 Ill. 2d R. 402(d)(2))

when he failed to give the defendant the opportunity to withdraw

his guilty plea after the judge withdrew his offer to sentence

the defendant to 15 years in prison.    The defendant seeks to have

his conviction and sentence vacated and the case remanded for

compliance with the rule.

     When reviewing whether a supreme court rule has been

violated, a question of law is presented and the standard of

review is de novo.   People v. Lozada, 323 Ill. App. 3d 1015, 753

N.E.2d 383 (2001).

     Supreme Court Rule 402, governing guilty pleas, requires

that such pleas be accompanied by admonitions, are voluntary, and

have a factual basis.   At issue here is Rule 402(d)(2), which

states the procedures to be followed when a trial judge concurs

or conditionally concurs in a plea agreement.   It provides:




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     "(d) Plea Discussions and Agreements.    When there

is a plea discussion or plea agreement, the following

provisions, in addition to the preceding paragraphs of

this rule, shall apply:

     ***

     (2) 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.    If he has indicated his concurrence or

conditional concurrence, he shall so state in open

court at the time the agreement is stated as required

by paragraph (b) of this rule.    If the defendant

thereupon pleads guilty, but the trial judge later

withdraws his concurrence or conditional concurrence,


                             4
       he shall so advise the parties and then call upon the

       defendant either to affirm or to withdraw his plea of

       guilty.   If the defendant thereupon withdraws his plea,

       the trial judge shall recuse himself."   177 Ill. 2d R.

       402(d)(2).

       In this case, Rule 402(d)(2) is not applicable because the

trial judge did not concur or conditionally concur to a plea

agreement at the Rule 402 conference.     Prior to the conference,

the parties failed to reach a plea agreement because they could

not agree on the number of years in prison the defendant would

serve in exchange for a guilty plea.     See 177 Ill. 2d R.

402(d)(2) (stating that a plea agreement means an agreement

between the parties that the defendant will enter a guilty plea

in exchange for a specified sentence or a dismissal of charges).

As such, the parties did not present a plea agreement to the

judge for his concurrence or conditional concurrence, and Rule

402(d)(2) does not apply to cases in which there is no plea

agreement.

       Furthermore, it is clear that the parties never reached a

plea agreement at the Rule 402 conference to which the trial

judge was asked to concur or conditionally concur because the

defendant and the trial judge never acknowledged the existence of

one.    Following the Rule 402 conference, the defendant entered a

"blind plea" in this case, knowing that a blind plea meant that

he had no plea agreement with the State.     The defendant also

stated that he was not entering his plea because someone promised


                                   5
him anything in return for it.    Similarly, the trial judge did

not indicate his concurrence or conditional concurrence with any

plea agreement in open court, as required by Rule 402(d)(2),

because no plea agreement was stated in open court, as required

by Rule 402(b), or even existed.       The trial judge’s offer of a

15-year prison term in exchange for his guilty plea did not

constitute a plea agreement to which Rule 402(d)(2) may apply

because plea agreements, as noted above, are between parties, not

the judge and the defendant.    The trial judge’s offer was merely

a statement of the length of sentence the judge would be inclined

to give the defendant if he pleaded guilty, not a plea agreement.

People v. Nutall, 312 Ill. App. 3d 620, 637, 728 N.E.2d 597, 612

(2000) (stating that "discussions occurring in a pretrial 402

conference about a potential sentence do not raise the same

considerations a negotiated plea does," such as the requirements

of Rule 402 and the application of contract law).       Thus, without

a plea agreement to which the trial judge concurred or

conditionally concurred, Rule 402(d)(2) does not apply to this

case and the defendant cannot be given the opportunity to

withdraw his plea.

                              CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Will County is affirmed.

     Affirmed.

     SCHMIDT, J. concurs.




                                   6
       JUSTICE McDADE, specially concurring in part, dissenting in

part:

       The majority has found that Rule 402(d)(2) does not apply in

this case because the parties never reached a plea agreement to

which the trial judge was asked to concur or conditionally concur

(slip order at 5) and, as a consequence, that defendant cannot be

given the opportunity to withdraw his plea pursuant to the rule.

I agree that the rule does not apply but cannot agree that he

should be denied an opportunity to withdraw his plea.

       The rule reads, in part, as follows:                        "If the defendant thereupon

pleads guilty, but the trial judge later withdraws his concurrence or conditional concurrence, he

shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea

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

       Defendant claimed that any argument that Rule 402(d)(2) does not apply in this case is

waived because the State failed to raise the issue in the trial court. I agree with defendant that the

State waived any argument as to whether Rule 402 is applicable in this case. Therefore, the

question of whether the language in Rule 402(d)(2) giving a defendant the alternatives of

affirming the new sentence or withdrawing his plea is applicable in this case is also not properly

raised to this court. However, we cannot simply ignore an issue involving the proper construction

of a Supreme Court Rule, even when that issue is improperly presented. "Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

trial court." People v. Piatkowski, 225 Ill. 2d 551, 564, 870 N.E.2d 403, 410 (2007). I find that,




                                                  7
although Rule 402(d)(2) is not applicable, we may use the principles it establishes to determine

whether defendant must be allowed to withdraw his guilty plea in this case.

       I agree that Rule 402(d)(2) does not apply to the extent the parties had not, and

apparently did not understand that they had not, engaged in a "Rule 402 conference" because they

had reached no agreement when the trial judge became involved. However, the trial judge, the

prosecutor, and defense counsel all led defendant to believe that this "402 conference" was a

legitimate plea negotiation proceeding. I would find that, in light of the trial judge’s "offer" of a

15-year prison sentence following what can only be described as negotiations with the judge

himself, defendant was not, in fact, entering a blind plea but a negotiated plea; and, because the

judge did not sentence him to 15 years’ imprisonment as expected, defendant must be allowed to

withdraw his plea.

       Our supreme court has recognized that "there are at least four distinct plea scenarios

which can occur when a defendant decides to enter a plea of guilty." People v. Lumzy, 191 Ill. 2d

182, 185, 730 N.E.2d 20, 21-22 (2000). The first is what is commonly referred to as a "blind," or

"open," plea, which leaves both the defendant and the State free to argue for any sentence

permitted by law. The trial judge retains full discretion to sentence defendant to any term within

the range provided by the relevant statute. A second scenario involves some bargaining on what

would be charged but merely caps the sentence within a retained range. As a third situation, the

parties negotiate the charges but make no agreement on defendant’s sentence. Fourth, and finally,

a fully negotiated plea can be entered in which the defendant agrees to plead guilty in exchange

for a specific sentencing recommendation. Lumzy, 191 Ill. 2d at 185, 730 N.E.2d at 21-22.




                                                  8
The most salient feature in all of these scenarios is that any negotiating involves the defendant and

the State. Such is not the case here, however. Unable to reach an agreement amongst

themselves, the parties enlisted the aid of the trial judge, who himself "‘extended an offer’" to

defendant. Slip order at 2. It is for that reason that I agree with the majority that Rule 402(d)

does not apply in this case. Despite Rule 402's concession, to foster plea negotiations between

the defendant and the State, that the court can indicate whether it will concur or conditionally

concur in the proposed disposition, the trial court is prohibited from initiating plea discussions

(177 Ill. 2d R. 402(d)(1)) and remains free to withdraw its concurrence or conditional

concurrence (177 Ill. 2d R. 402(d)(2)). The reason the rule bars the court from initiating plea

discussions and maintains the court’s ability to reject the recommended sentence, even after the

court has indicated it would follow the recommendation, is the recognition that while the parties

may bargain for how the law will be applied in a particular case, the role of the court is to be, and

more importantly, to remain, a neutral arbiter of the law and facts presented to it. See People v.

Lambrechts, 69 Ill. 2d 544, 556, 372 N.E.2d 641, 647 (1977) ("The judge was, of course, under

no obligation to concur" in recommended sentence).

       The court’s role as disinterested arbiter of the law is compromised when it becomes

involved in the actual bargaining for a disposition or when it binds itself to a sentencing

determination reached, not from its neutral and discretionary application of law to fact, but from

negotiations with interested parties. In People v. Heddins, 66 Ill. 2d 404, 411, 362 N.E.2d 1260,

1263 (1977), Justice Dooley, specially concurring, wrote as follows:

               "So also judicial impartiality may be impaired when the judge

               participates in the pre-plea bargaining negotiations and the case is


                                                  9
               tried before him after efforts on an agreed sentence have failed.

               *** More than that, however, the judge has become the adversary

               of the litigant in the pre-plea bargaining position-a situation in

               which no judge should ever place himself. So also the participating

               judge loses his neutral position so requisite to a judicial officer. His

               image, regardless of personal efforts, will be that of an advocate for

               the terms he embraces. Again, consider the position of the

               participating judge when he imposes sentence. The accused can

               well be justified in believing that the sentencing judge lacks

               objectivity and that the sentence imposed embraces the terms

               offered for a plea, but rejected."

       For that same reason, because the trial judge "extended an offer" to defendant before

defendant chose to plead guilty and later refused to honor the terms he himself offered, I believe

that defendant must be allowed to withdraw his plea.

               "Leave to withdraw a plea of guilty is not granted as a matter of

               right, but as required to correct a manifest injustice under the facts

               involved. [Citation.] *** A defendant may seek to withdraw his

               or her guilty plea on the grounds that the plea was entered based on

               a misapprehension of fact or of the law ***. [Citation.] ‘In the

               absence of substantial objective proof showing that a defendant's

               mistaken impressions were reasonably justified, subjective

               impressions alone are not sufficient grounds on which to vacate a


                                                    10
                guilty plea.’ [Citation.] The defendant bears the burden of proving

                that his or her mistaken impression was objectively reasonable

                under the circumstances existing at the time of the plea.

                [Citation.]" People v. Spriggle, 358 Ill. App. 3d 447, 451, 831

                N.E.2d 696, 700 (2005).

        Here, defendant based his plea on a misapprehension of the facts. Defendant could

reasonably believe that when the court extended him an offer it would stand by it. That belief is

objectively reasonable. Defendant had attempted to negotiate a sentence with the State. Those

negotiations did not result in an agreement with the State. The trial judge then became involved,

and defendant succeeded in reaching an agreement with him as evidenced by defendant’s

newfound willingness to plead guilty.

        The trial judge was the procuring cause of defendant’s guilty plea. By acting in that role,

the court violated Rule 402. Rule 402(d)(1) prohibits the trial judge from initiating plea

discussions. Although the parties went to the court and requested the conference, I would define

"initiating plea discussions" as actions which result in procuring a plea. In this case, the court’s

extension of an offer was clearly the procuring cause of defendant’s plea as evidenced by

defendant’s refusal to plead guilty until the court made its offer. More importantly, by becoming

the procuring cause of a plea of guilty, the court abdicated its constitutionally defined role as

neutral arbiter of the law.

        I recognize that defendant "acknowledged at that the time that he understood *** there

was no plea agreement between the State and himself." Slip order at 2. I would find, however,

that the acknowledgment by defendant is irrelevant in this case. Defendant knew there was "no


                                                  11
plea agreement between the State and himself" because those negotiations failed to bear fruit.

Defendant could reasonably believe, however, that there was a plea agreement between the court

and himself in light of the fact that he pled guilty only after the trial judge "extended him an offer."

        Defendant also acknowledged that he "faced the possibility of between 6 and 30 years in

prison for pleading guilty." Slip order at 2. However, those admonishments apply to negotiations

between defendant and the State, not defendant and the court. Despite the "possibility" of 6 to 30

years’ imprisonment that defendant faced when negotiating with the State, the final outcome is

determined by the trial judge. Defendant could reasonably believe that after negotiating directly

with the court, any "possibilities" that remained in his sentencing had been resolved.

        Rule 402(d) evinces a right, found in the language quoted above, that when a defendant

pleads guilty with an expectation of a certain sentence, but then does not receive it, he has a right

to withdraw the plea. See also Lambrechts, 69 Ill. 2d at 556, 372 N.E.2d at 647 ("[I]f he did

concur and subsequently changed his mind, defendant would have been entitled under Rule

402(d)(2) to withdraw his plea if he chose to do so and be tried before a different judge").

Here, defendant had a reasonable expectation of a certain

sentence.        In this case, after the flawed procedures followed by
the parties and the court--the result being no 402 conference

ever actually occurred--we are left with a defendant in essence

entering a fully negotiated plea of guilty--negotiated with the

court and not the State in violation of Rule 402, with the

expectation of a sentence he did not receive.                              Defendant was

objectively reasonable in holding that expectation and must be

allowed to withdraw his plea.


                                                  12
     Moreover, to deny defendant that right has further

repercussions.   By allowing defendant’s plea to stand, this court

would be giving the parties involved--with the notable exception

of the defendant, for whose protection the system allegedly

exists--a free pass for their mistakes.   I believe that it paints

the entire judicial system in a bad light where the court and the

officers of the court failed to recognize that they followed

improper procedure yet to allow them to take full advantage of

those procedures and maintain a flawed guilty plea.    Moreover, it

reflects poorly on the State when it persists in following, or

attempting to follow, Rule 402 procedures until defendant seeks

the protections of the Rule and asks to withdraw his plea.      Nor

does it bear favorably on the entire judicial system when that

request is denied because the rule, which the parties thought

they were following and which provides defendant important

protections in entering a guilty plea, allegedly does not apply.

The protections afforded by the rule include the right to

withdraw the plea if the defendant does not receive the expected

sentence and that his actual sentence will result from a

disinterested application of the facts to the law.    Neither

happened in this case.

     Finally, I fear the precedent the majority’s decision

establishes.   Rule 402 provides for specific procedures and gives

the defendant specific protections.   The majority’s ruling

essentially renders those procedures irrelevant and opens the

door for abuse of plea negotiations by the State.    Following the


                                13
majority’s order, the door is open for the State to invoke the

dominance of the court to convince a defendant to plead guilty

and withhold evidence in aggravation during negotiations, only to

be sprung at the sentencing hearing in hopes of securing a longer

sentence.   I do not suggest that is what happened here, but the

protections of Rule 402--in the form of those rights given

directly to the defendant and the recognition of the court’s

proper role in the procedures--are threatened when the

opportunity for such abuse exists, and the majority decision

creates that opportunity.

     For the foregoing reasons, I would reverse and direct the

trial court to enter an order allowing defendant’s motion to

withdraw his guilty plea.   Accordingly, I dissent.




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