                          NO. 4-08-0037          Filed 1/22/10

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
SHAWNA M. TURNER,                      )    No. 06CF1984
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Thomas J. Difanis,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In September 2007, defendant, Shawna M. Turner, pleaded

guilty pursuant to a partially negotiated plea agreement to the

offense of aggravated battery to a police officer.   After

accepting defendant's plea and entering judgment on the same, the

trial court asked, during the same hearing, if part of the plea

agreement was defendant's presence at the sentencing hearing.

Defense counsel stated this was part of the plea agreement.    The

court then advised defendant if she was not present at the

sentencing hearing there would be no agreement and the court

could sentence her to up to seven years in the Illinois

Department of Corrections (IDOC).   Defendant stated she

understood.   When defendant failed to appear at the sentencing

hearing, the trial court imposed the maximum seven-year sentence.

Defendant appeals, arguing the trial court erred in adding a

condition to its concurrence in the plea agreement after it had
already accepted the plea.         We affirm.



                               I. BACKGROUND

            In December 2006, the State charged defendant by

information with aggravated fleeing or attempting to elude a

police officer (625 ILCS 5/11-204.1(a)(4) (West 2004)) and

aggravated battery (720 ILCS 5/12-4(b)(18), (e)(2) (West 2006)

(as amended by Pub. Act 94-333, §5, eff. July 26, 2005)).       The

incident leading to the charges occurred on December 4, 2006.         In

September 2007, defendant agreed to plead guilty to aggravated

battery in exchange for the State agreeing to cap its sentencing

recommendation at six years and dismiss five other pending cases

against defendant.      At the plea hearing, the following exchange

occurred.

                    "[TRIAL COURT]:    Is your plea of guilty

            today voluntary, is this of your own free

            will?

                    [DEFENDANT]:    Yes, your Honor.

                    [THE STATE]:    Your Honor, in exchange

            for the defendant's plea of guilty to the

            offense of aggravated battery, a Class [2]

            felony, in the manner and form set forth in

            [c]ount I of the information filed December

            5, 2007, the People have agreed to cap a


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sentencing recommendation of six years in

[IDOC].    We also agreed to dismiss [case

Nos.] 07 CF 1400, 06 CF 1668, 07 CM 843, 07

CM 905[,] and 06 CM 603.

     [TRIAL COURT]:     Is that the agreement,

[defense counsel]?

     [DEFENSE COUNSEL]:       Yes, your Honor.

     [TRIAL COURT]:     Ms. Turner, as I

understand the situation, we're going to

continue this matter for a sentencing

hearing.    And at this sentencing hearing all

those other cases are going to be dismissed,

and your penalty range on this case will be

somewhere between probation and six years, as

opposed to between probation and seven years.

Is that your understanding of where we are

right now?

     [DEFENDANT]:     Yes, sir.

                      * * *

     [TRIAL COURT]:     Ms. Turner, do you now

then plead guilty to that charge of

aggravated battery?

     [DEFENDANT]:     Yes, sir.

     [TRIAL COURT]:     Show the defendant


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pleads guilty to that charge, that plea of

guilty is accepted by the court.      Judgment is

entered on the plea.    [Defense counsel],

besides a standard presentence report, what

other reports would you like?

     [DEFENSE COUNSEL]:     Your Honor, I would

ask for the TASC and Drug Court evaluations.

I believe we might have had those done, but

it would have been back in January or

February, so I think it's time for new

evaluations, if possible.

     [TRIAL COURT]:    All right.   Counsel, can

we use the morning of Thursday, November 8th?

     [DEFENSE COUNSEL]:     That should be fine.

     [TRIAL COURT]:    Ten o'clock.

     *** [P]art of the plea agreement is that

the defendant will appear for her sentencing

hearing; is that correct?

     [DEFENSE COUNSEL]:     Yes, your Honor.

     [TRIAL COURT]:    Ms. Turner, what this

means is, if you're not here on the date I

have set for sentencing, I will have that

hearing without you, and I could sentence you

up to seven years in [IDOC].    There would be


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          no agreement if you don't show up, so it's

          very important that you report to Court

          Services as soon as you leave the courtroom,

          and keep the appointments they make for you,

          and be back here for your sentencing hearing.

               [DEFENDANT]:   Yes, sir.

               [TRIAL COURT]:   Thank you.   I'll

          continue the other case, 1668, to that same

          date and time."

          Defendant did not appear for her sentencing hearing.

At the hearing, the trial court stated:

               "This defendant was told that part of

          her plea agreement was that she appear for

          her sentencing hearing.   The [S]tate capped

          [its] recommendation at six years in [IDOC].

          The defendant is not here, and she has

          therefore basically forfeited the plea

          agreement that she had with the State.    The

          fact that she didn't appear at this

          sentencing hearing, the fact that she has

          done this before, failed to appear at

          sentencing hearings, really speaks volumes

          about her rehabilitative potential, much more

          so quite frankly than the TASC report and the


                                - 5 -
presentence report.    She is a dangerous

individual; she is basically out of control.

She has an extensive criminal history, and

therefore the State is going to--the State

had recommended a cap of six years, and to

Mr. Jackson's credit, he stayed with that

agreement.   But given everything that has

been presented, I believe an appropriate

sentence is one of incarceration in [IDOC].

It will be for the maximum term of seven

years.   She'll get credit for 61 days

heretofore served in the Champaign County

Correctional Center.    I'm going to direct

that a warrant is to issue.    There will be no

bond on that warrant.

     Mr. Jackson, I have other files for Ms.

Turner, starting with [case No.] 06-CF-1668.

That is a--is this a petition to revoke or is

this a--where are we with this?    This was a

criminal charge.    Your wishes on the matters

that we have, Mr. Jackson, [Nos.] 06-CF-1668,

07-CF-1400, 06-CM-603, 07-CM-843, 07-CM-905?

     [THE STATE]:     Your Honor, it would be

our motion to dismiss.


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                [TRIAL COURT]:    We will show on our

          motion, these matters are withdrawn and

          dismissed."

          In December 2007, defendant filed a motion for a new

sentencing hearing, arguing the trial court did not adequately

admonish defendant of the conditions of its concurrence with the

plea agreement, and, therefore, the court was bound by the six-

year cap, even though defendant failed to appear at the

sentencing hearing.    That same month, the trial court denied

defendant's motion.

          This appeal followed.



                            II. ANALYSIS

          Defendant argues this court should vacate defendant's

seven-year sentence and remand this case to the trial court for

further proceedings.    Defendant relies on this court's decision

in People v. Collier, 376 Ill. App. 3d 1107, 879 N.E.2d 982

(2007).   In Collier, the defendant pleaded guilty in exchange for

the State capping its sentencing recommendation at two years.

Collier, 376 Ill. App. 3d at 1109, 879 N.E.2d at 985.     The trial

court stated terms of the agreement on the record and then

accepted the defendant's plea.     After accepting the plea, the

court dealt with some technical matters, including setting a date

for the sentencing hearing.      Collier, 376 Ill. App. 3d at 1109,


                                 - 7 -
879 N.E.2d at 985.    The court then asked the defense counsel and

the State whether as part of the plea agreement the defendant had

to appear for sentencing.     Collier, 376 Ill. App. 3d at 1109, 879

N.E.2d at 985.   The attorneys for the defendant and the State

both acknowledged this was part of the plea agreement.     Collier,

376 Ill. App. 3d at 1109-10, 879 N.E.2d at 985.    The court told

the defendant this meant if she did not show up for the

sentencing hearing the court could sentence her to more than two

years in prison.     Collier, 376 Ill. App. 3d at 1110, 879 N.E.2d

at 985.   The defendant did not respond to this admonishment by

the court, and no one said anything further of substance before

the plea hearing concluded.     Collier, 376 Ill. App. 3d at 1110,

879 N.E.2d at 985.

           On the day of the sentencing hearing, the defendant was

present at the trial court but then left before the hearing

began.    The court noted it informed the defendant if she did not

appear at the sentencing hearing, "'the court would not concur

with the State's cap'" and "'the court could sentence her to more

than two years.'" (Emphasis in original.)     Collier, 376 Ill. App.

3d at 1111, 879 N.E.2d at 986.    The court sentenced the defendant

to four years in prison and denied her motion to reconsider.

Collier, 376 Ill. App. 3d at 1111, 879 N.E.2d at 986.

           This court agreed with the defendant in Collier the

trial court improperly added a condition to its concurrence with


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the plea agreement after it had accepted the plea.   Collier, 376

Ill. App. 3d at 1111, 879 N.E.2d at 986.   After counsel informs

the trial court of the terms of a plea agreement and before the

court accepts the defendant's plea, the court must either inform

the defendant the court is not bound by the terms of the plea

agreement or state its concurrence or conditional concurrence

with the plea agreement.   Collier, 376 Ill. App. 3d at 1111, 879

N.E.2d at 986.

          This court stated the requirement the defendant appear

for sentencing did not constitute a properly communicated

condition on the trial court's concurrence with the plea.

However, in Collier, it does not appear the defendant's

appearance at the sentencing hearing was a condition added by the

trial court.   It was a condition of the plea agreement between

the State and the defendant as reflected by the answers of the

attorneys for the State and the defendant.   See Collier, 376 Ill.

App. 3d at 1109-10, 879 N.E.2d at 985.

          This court found its ruling on the "conditional-

concurrence" issue, which we find was inaccurately labeled by the

trial judge at the sentencing hearing, was dispositive.     Collier,

376 Ill. App. 3d at 1113, 879 N.E.2d at 988.   However, this court

stated it would address the State's argument the requirement to

attend the sentencing hearing was part of the plea agreement

itself.   Collier, 376 Ill. App. 3d at 1113, 879 N.E.2d at 988.


                               - 9 -
This court found this argument without merit because it found the

requirement was a condition added by the trial court.      Collier,

376 Ill. App. 3d at 1113, 879 N.E.2d at 988.     As previously

stated, the facts as recited in Collier do not indicate this was

a condition added by the trial court but was part of the plea

agreement between the State and defendant.

          According to this court in Collier, the trial court did

not clearly communicate to the defendant the change in the plea

agreement.   Collier, 376 Ill. App. 3d at 1113-14, 879 N.E.2d at

988.   According to Collier:

          "[T]he trial court concurred with the plea

          agreement when it told Collier that her

          sentence would not exceed two years. Collier

          entered her guilty plea based on the

          assurance of receiving a sentence under that

          cap.   After the trial court accepted

          Collier's plea, it asked the parties whether

          it was 'part of' the plea agreement that

          Collier appear for sentencing.   Counsel for

          both parties answered 'yes.'   However, merely

          labeling a requirement part of the plea

          agreement does not make it so.   The

          requirement was not brought about by the

          attorneys, but rather by the trial court."


                               - 10 -
            Collier, 376 Ill. App. 3d at 1114, 879 N.E.2d

            at 988.

We agree merely labeling a requirement part of the plea agreement

does not make it so.   However, once again, the facts as recited

in Collier indicate this requirement was part of the original

plea agreement.

            This court in Collier then said that case was similar

to People v. Bouie, 327 Ill. App. 3d 243, 763 N.E.2d 858 (2002).

Collier, 376 Ill. App. 3d at 1114, 879 N.E.2d at 988.     We

disagree.    In Bouie, the requirement that the defendant appear

for the sentencing hearing was not part of the plea agreement

between the State and the defendant.      Bouie, 327 Ill. App. 3d at

247, 763 N.E.2d at 861.   After acknowledging the plea agreement

between the parties, the trial court in Bouie stated it would

leave its "'options open'" as to punishment in the event that the

defendant did not appear at his sentencing hearing.      Bouie, 327

Ill. App. 3d at 245, 763 N.E.2d at 859.     The trial court then

asked if that created "'a problem for anyone,'" and the attorneys

for the State and defendant stated it did not.      Bouie, 327 Ill.

App. 3d at 245, 763 N.E.2d at 859.      The situation in Bouie is

clearly distinguishable from the fact situation in Collier.

            Even though we find this court's decision in Collier

was based on an incorrect interpretation of the facts recited in

that opinion, we decline to disavow the opinion for the following


                               - 11 -
reason.   While the trial court in Collier did not add a condition

to the plea agreement between the defendant and the State, it did

fail to ensure the defendant understood the plea agreement

allowed the trial court to sentence defendant to a longer term if

the defendant failed to appear at her sentencing hearing.    This

is evidenced by the fact that the defendant gave no response to

the trial court's question of whether she understood this was

part of the plea agreement.    Collier, 376 Ill. App. 3d at 1110,

879 N.E.2d at 985.    This factor combined with the trial court's

previous statement to the defendant that her penalty range would

be "'confined to probation up to two years'" was enough to bring

into doubt whether the defendant was fully aware of the terms of

the plea agreement.   (Emphasis omitted.)   Collier, 376 Ill. App.

3d at 1109, 879 N.E.2d at 985.

           However, in the instant case, such a situation does not

exist.    Like in Collier, the attorney for defendant in the case

sub judice stated attendance at the sentencing hearing was part

of the plea agreement.   In addition, defendant told the trial

court she understood the court could sentence her up to seven

years in prison if she failed to present herself for the

sentencing hearing.

           While it certainly would have been better for the

attorneys for the State and defendant to have stated attendance

at the sentencing hearing was part of the plea agreement before


                               - 12 -
the trial court accepted defendant's guilty plea, this fact alone

does not affect the validity of defendant's plea.    Very shortly

after accepting defendant's plea, the court inquired whether

defendant's attendance at the sentencing hearing was part of the

plea agreement, defense counsel acknowledged this was part of the

plea, and defendant stated she understood this was part of the

plea.   Moreover, defendant stated she understood if she failed to

appear, the court could sentence her to seven years in prison.

She failed to appear at her own peril.

            We conclude no reason exists to vacate defendant's

seven-year prison sentence because (1) the trial court did not

add a condition to the plea agreement between defendant and the

State and (2) defendant understood the terms of her plea

agreement.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its $50

statutory assessment against defendant as costs of this appeal.

            Affirmed.

            KNECHT, J., concurs.

            APPLETON, J., dissents.




                               - 13 -
            JUSTICE APPLETON, dissenting:

            I respectfully dissent from the majority's decision.    I

find the circumstances of the trial court's postplea addition,

requiring defendant's attendance at sentencing, indistinguishable

from the circumstances presented to us in Collier.

            Of greater import, a plea and its attendant terms are

agreed to by a defendant, not the attorneys.    Here, the plea was

taken fully with all of the requisites of Supreme Court Rules

402(a) through (c) (177 Ill. 2d Rs. 402(a) through (c)).    At the

point defendant entered her plea, the plea was accomplished.    If

the trial court later sought to add an additional term to the

plea agreement, defendant, and not her attorney, needed to agree

to it.   Defendant's answer "yes, sir," following the trial

court's unilateral modification of the plea agreement, does not,

in context, indicate that defendant agreed to a modification of

her plea.




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