                                                                                 FILED
                                                                               October 31, 2017
                                                                                 Carla Bender
                                   2017 IL App (4th) 160920                  4th District Appellate
                                                                                   Court, IL
                                        NO. 4-16-0920

                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                      )      Appeal from
            Plaintiff-Appellee,                            )      Circuit Court of
            v.                                             )      McLean County
 OCTAVIUS LORENZO JOHNSON,                                 )      No. 13CF1447
            Defendant-Appellant.                           )
                                                           )      Honorable
                                                           )      Scott D. Drazewski,
                                                           )      Judge Presiding.


              JUSTICE KNECHT delivered the judgment of the court, with opinion.
              Justices Steigmann and Appleton concurred in the judgment and opinion.

                                           OPINION

¶1            Defendant, Octavius Lorenzo Johnson, appeals the denial of his motion to

withdraw his guilty plea, arguing for the first time on appeal the trial court relied on improper

sentencing factors at his sentencing hearing. Defendant concedes he forfeited his improper-factor

argument but argues the error constitutes second-prong plain error. Defendant also asserts, and

the State concedes, he is entitled to one additional day of sentence and per diem credit. We

reverse defendant’s sentence, remand to the trial court for a new sentencing hearing, and direct

defendant be awarded one additional day of sentence credit and an additional $5 in per diem

credit.

¶2                                    I. BACKGROUND
¶3              In November 2014, defendant pleaded guilty to two counts of unlawful delivery

of a controlled substance within 1000 feet of a church, a Class 1 felony (720 ILCS 570/407(b)(2)

(West 2012)) punishable by a prison term of 4 to 15 years (730 ILCS 5/5-4.5-30(a) (West 2012)).

In exchange for defendant’s guilty plea, the State agreed to dismiss seven other charges and

recommend a total sentence cap at 13 years’ imprisonment. The trial court concurred in the

partially negotiated plea agreement and accepted defendant’s guilty plea.

¶4             At the January 2015 sentencing hearing, the State recommended a 13-year prison

sentence in accordance with the negotiated plea agreement, while defense counsel recommended

a 6-year prison sentence. The court sentenced defendant to 11 years’ imprisonment. To fashion

this sentence, the trial court enumerated several mitigating and aggravating factors, reasoning:

               “There is, from looking at the factors in mitigation, the only two factors—and to

               me, they somewhat meld with one another—but it’s under the concept that your

               attorney was talking about, either rehabilitation, which is, what is the likelihood,

               in essence of your committing additional crimes based upon your current

               character, your current attitudes and whether or not you’ve made amends or made

               changes in your life and lifestyle in order to prevent yourself from committing

               other crimes.”

The court commended defendant for seeking help with his addiction issues and working toward

rehabilitation since being in custody. The court went on, stating:

               “The factors in aggravation, unfortunately from your perspective, well exceed the

               factors in mitigation, as I already indicated. I think the conduct threatened serious

               harm. You did receive compensation, that being for committing the offense, that

                                               -2-
               being of selling drugs. You have a history of prior delinquency or criminal

               activity, and the best way to summarize that is by referring to the last page of the

               Pre-Sentence Investigation Report. *** [T]here is a necessity to deter others from

               committing the same types of crimes, so I’m balancing, in essence, the factors in

               aggravation and mitigation.

                       And while I can see the justification for the 13 years by the State, I’m not

               going to impose that. I’m going to impose a term of 11 years. And so I’m giving

               you two years’ credit off the maximum. The reason I’m doing so is I think you

               have utilized, in essence, what resources are available to you while you’ve been in

               custody in order to try to better yourself and you’ll need to continue to use those

               resources and put your actions behind your words.”

The trial court then admonished defendant of his appellate rights and explained defendant must

file a motion to withdraw his guilty plea to preserve his right to appeal.

¶5             In February 2015, defendant filed a timely pro se postplea motion. In the motion,

defendant requested a sentence reduction, arguing his sentence was excessive in light of the

progress he had made toward rehabilitation. The trial court set the cause for a hearing and

appointed counsel for defendant. At the hearing, the court explained it could not reconsider

defendant’s sentence because the sentence was imposed pursuant to a negotiated plea agreement.

The court then told defendant he must move to withdraw his plea if he wished to challenge his

sentence, which, if granted, would take the parties “back to square one.” Defendant indicated he

wished to move forward with a motion to withdraw his guilty plea.



                                                -3-
¶6             Defendant’s appointed counsel was granted leave to amend his pro se motion for

a sentence reduction, and counsel changed the motion into a motion to withdraw defendant’s

guilty plea. The motion alleged defendant’s “plea was not knowing and voluntary.” At an August

2015 hearing, the trial court denied defendant’s motion to withdraw his guilty plea, finding

defendant entered into the plea agreement knowingly and voluntarily. Though the court had

taken the position throughout the proceedings it was unable to hear defendant’s pro se motion for

a sentence reduction because the sentence was imposed pursuant to a negotiated plea agreement,

in denying defendant’s motion to withdraw his guilty plea, the court stated:

                      “With respect to reconsideration of the sentence itself, the Court felt at

               that time, as I do now, that an 11-year sentence was and is appropriate,

               notwithstanding the defendant’s disappointment. As it relates to then the motion

               to withdraw guilty pleas, as well as the motion to reconsider sentence, each of

               those motions are denied.”

¶7             This appeal followed.

¶8                                       II. ANALYSIS

¶9             This case presents an intricate procedural question: whether a defendant, who

entered into a partially negotiated plea agreement, may challenge his sentence on the basis the

trial court relied on improper sentencing factors without withdrawing his guilty plea. The Illinois

Appellate Court districts are split on this question. See People v. Palmer-Smith, 2015 IL App

(4th) 130451, ¶ 28, 29 N.E.3d 95 (holding a defendant need not withdraw his plea in order to

challenge the sentence based upon the trial court’s reliance on improper sentencing factors);

People v. Martell, 2015 IL App (2d) 141202, ¶ 10, 46 N.E.3d 253 (“[E]ven when the plea is

                                               -4-
negotiated, a defendant may move only to reconsider his sentence and may appeal from that

judgment—as long as the motion and the appeal are based on something other than a contention

that the sentence is merely excessive.”); People v. Rademacher, 2016 IL App (3d) 130881,

¶¶ 57-61, 59 N.E.3d 12 (disagreeing with Palmer-Smith and Martell and holding such defendants

must withdraw their guilty plea if they wish to challenge with their sentence); People v. Dunn,

342 Ill. App. 3d 872, 881, 795 N.E.2d 799, 806-07 (2003) (First District, indicating a defendant

must withdraw his guilty plea to challenge his sentence imposed pursuant to a negotiated plea

agreement); People v. Richard, 2012 IL App (5th) 100302, ¶ 24, 970 N.E.2d 35 (concluding “a

sentence entered pursuant to a negotiated guilty plea cannot be directly challenged as excessive;

instead, a motion to withdraw must first be filed” (emphasis added)).

¶ 10           Defendant asserts this court may consider his improper-factors argument because

he is not arguing his sentence was excessive and this case is properly before this court on the

denial of his motion to withdraw his guilty plea, citing Palmer-Smith, 2015 IL App (4th) 130451,

¶ 28, 29 N.E.3d 95. The State argues our Palmer-Smith decision was based upon an erroneous

interpretation of Evans, Linder, and the subsequently amended language of Illinois Supreme

Court Rule 604(d) (eff. Dec. 11, 2014), and it urges us to adopt the reasoning of the Third

District in Rademacher. In support, the State argues Illinois Supreme Court Rules 605(b) and (c)

(eff. Oct. 1, 2001), when construed in pari materia with Rule 604(d), confirm the motion-to-

reconsider-sentence provisions do not apply when the plea was negotiated.

¶ 11           Defendant concedes he forfeited his improper-factor argument by failing to

include it in his pro se motion for a sentence reduction or his amended motion to withdraw his

guilty plea. Defendant requests plain-error review, asserting the trial court’s reliance on improper

                                               -5-
sentencing factors constitutes second-prong plain error. Alternatively, defendant requests the

rules of forfeiture be relaxed because (1) the filing of a proper motion to reconsider his sentence

by appointed counsel would have fallen on “deaf ears” (see People v. Thompson, 238 Ill. 2d 598,

612, 939 N.E.2d 403, 412 (2010)), given the trial court’s admonishments, or (2) his appointed

counsel was ineffective for failing to properly amend his pro se motion for a sentence reduction

and assert his improper-factor argument. The State does not respond to defendant’s forfeiture

arguments or refute defendant’s argument the trial court relied on improper sentencing factors.

¶ 12           Finally, defendant asserts, and the State concedes, he is entitled to one additional

day of sentence and per diem credit.

¶ 13               A. Defendant’s Argument That the Trial Court Relied Upon
                                 Improper Sentencing Factors

¶ 14           Because we must resolve a Rule 604(d) procedural question, we will begin our

analysis with a discussion of Rule 604(d) and the relevant case law shaping the application of the

rule.

¶ 15                                        1. Rule 604(d)

¶ 16                               a. Supreme Court Precedent

¶ 17           Prior to the supreme court’s decision in People v. Evans, 174 Ill. 2d 320, 673

N.E.2d 244 (1996), Rule 604(d) did not distinguish between open and negotiated plea

agreements. At the time, the rule stated:

               “No appeal from a judgment entered upon a plea of guilty shall be taken unless

               the defendant, within 30 days of the date on which sentence is imposed, files in

               the trial court a motion to reconsider the sentence, if only the sentence is being


                                                -6-
               challenged, or, if the plea is being challenged, a motion to withdraw his plea of

               guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992).

¶ 18           In Evans, the supreme court considered a case in which the defendant entered into

a fully negotiated plea agreement with the State and subsequently challenged his sentence as

excessive, despite the fact he was sentenced to the State’s recommendation per the agreement.

Evans, 174 Ill. 2d at 322-23, 673 N.E.2d at 245. Applying contract principles, the supreme court

reasoned “[t]o permit a defendant to challenge his sentence without moving to withdraw the

guilty plea *** would vitiate the negotiated plea agreement he entered into with the State.” Id. at

332, 673 N.E.2d at 250. Consequently, the court concluded the motion-to-reconsider provisions

of Rule 604(d) do not apply to fully negotiated plea agreements, and to challenge a sentence as

excessive following a fully negotiated plea, the plea must first be withdrawn. Id. In so holding,

the supreme court espoused the following policy considerations it relied on:

                      “Were we to hold otherwise would be to encourage gamesmanship of a

               most offensive nature. [Citation.] The accused could negotiate with the State to

               obtain the best deal possible in modifying or dismissing the most serious charges

               and obtain a lighter sentence than he would have received had he gone to trial or

               entered an open guilty plea, and then attempt to get that sentence reduced even

               further by reneging on the agreement. This would be nothing more than a heads-I-

               win-tails-you-lose gamble. [Citations.] Prosecutors would be discouraged from

               entering into negotiated plea agreements were such an unfair strategy allowed to

               succeed. That result certainly would not advance our policy of encouraging



                                               -7-
                  properly administered plea bargains.” (Internal quotation marks omitted.) Id. at

                  327-28, 673 N.E.2d at 248.

¶ 19              The supreme court later extended this reasoning to cases where “the defendant

agrees to plead guilty in exchange for the State’s dismissal of certain charges and

recommendation of a cap on his sentence,” i.e., a partially negotiated plea agreement. People v.

Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172 (1999). The court specifically stated, “By

agreeing to plead guilty in exchange for a recommended sentencing cap, a defendant is, in effect,

agreeing not to challenge any sentence imposed below that cap on the grounds that it is

excessive.” Id.

¶ 20              Following Evans and Linder, the supreme court amended Rule 604(d) to include

the following language, which remains in the current version of Rule 604(d):

                  “No appeal shall be taken upon a negotiated plea of guilty challenging the

                  sentence as excessive unless the defendant, within 30 days of the imposition of

                  sentence, files a motion to withdraw the plea of guilty and vacate the judgment.

                  For purposes of this rule, a negotiated plea of guilty is one in which the

                  prosecution has bound itself to recommend a specific sentence, or a specific

                  range of sentence, or where the prosecution has made concessions relating to the

                  sentence to be imposed and not merely to the charge or charges then pending.”

                  (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000).

While the rule is clear on cases involving excessive-sentence arguments, this iteration of the

rule—particularly the emphasized language—leaves open the question of whether an improper-

sentence argument is similarly foreclosed by the failure to withdraw the negotiated guilty plea.

                                                 -8-
Supreme court precedent, while addressing the application of Rule 604(d) to different types of

plea agreements, does not squarely resolve this question. See Linder, 186 Ill. 2d at 74, 708

N.E.2d at 1172 (extending the Evans reasoning to partially negotiated plea agreements in which

the State agrees to a sentencing cap); People v. Lumzy, 191 Ill. 2d 182, 187, 730 N.E.2d 20, 23

(2000) (holding Evans is inapplicable to partially negotiated plea agreements where sentencing

recommendations or concessions were not part of the plea agreement, thereby allowing such

arguments to be made in a postplea motion to reconsider the sentence).

¶ 21          To resolve this issue, we find instructive the supreme court’s decisions in People

v. Williams, 179 Ill. 2d 331, 333, 688 N.E.2d 1153, 1154 (1997), and People v. Wilson, 181 Ill.

2d 409, 413, 692 N.E.2d 1107, 1108 (1998). In Williams, the defendant agreed to plead guilty to

one charge in exchange for which the State dropped another change and recommended a

sentence cap. Williams, 179 Ill. 2d at 332, 688 N.E.2d at 1153. The defendant appealed,

challenging his sentence as void without withdrawing his guilty plea. Id. The supreme court held

as follows:

                      “Initially, the State raises a procedural issue, arguing that defendant was

              required to withdraw his guilty plea before he could challenge the sentence he

              received pursuant to the plea agreement. As the defendant failed to move to

              withdraw his guilty plea, the State contends that he should be barred from

              protesting his sentence now. In [Evans] we held that a defendant who pleads

              guilty in exchange for a specific sentence must move to withdraw his guilty plea

              before challenging his sentence. In Evans, however, the sentences were within

              statutory limits and the defendants only asserted that their sentences were

                                              -9-
               excessive. In the instant case, the defendant does not contend that his sentence

               was excessive; rather, he argues that the court imposed a sentence which, under

               the statute, it had no authority to impose. Thus, Evans is inapplicable and cannot

               bar defendant’s claim that his sentence was void because it does not conform with

               the statute.” Id. at 332-33, 688 N.E.2d at 1154.

¶ 22           Similarly, in Wilson, the defendant challenged his sentence, which was within the

sentencing cap pursuant to his negotiated plea agreement, arguing his sentence was not

statutorily authorized. Wilson, 181 Ill. 2d at 413-14, 692 N.E.2d at 1108-09. The State again

argued Evans barred the defendant’s claim because he did not withdraw his guilty plea. Id. at

412, 692 N.E.2d at 1108. The supreme court reiterated its Williams holding, stating:

               “[W]e find that Evans is inapplicable to this case and cannot bar defendant’s

               challenge to his sentences. As we pointed out in Williams, the sentences in Evans

               conformed to statutory requirements and the defendants only claimed that their

               sentences were excessive. [Citation.] In contrast, in the instant case, [the

               defendant] argues that the trial court imposed sentences which violated statutory

               requirements. According to our reasoning in Williams, [the defendant’s] claim of

               improper sentencing by the trial court is not barred and can be considered

               regardless of whether [the defendant] complied with the requirements of Evans.

               [Citation.] We find that under Williams, a challenge to a trial court’s statutory

               authority to impose a particular sentence is not waived when a defendant fails to

               withdraw his guilty plea and vacate the judgment.” (Emphasis added.) Id. at 413,

               692 N.E.2d at 1108.

                                              - 10 -
Notably, both Williams and Wilson limited the application of Evans to cases involving excessive-

sentence arguments and allowed improper-sentence arguments to be raised without first

withdrawing the negotiated guilty plea.

¶ 23                                      b. District Split

¶ 24          Following Evans, this court has consistently held the reasoning of Evans and its

progeny do not foreclose an improper-sentence argument absent a withdrawal of a defendant’s

guilty plea. The same year Evans was decided, this court considered a case in which the

defendant challenged his sentence pursuant to a partially negotiated plea agreement on the basis

the trial court considered improper sentencing factors when imposing the maximum sentence

allowed under the agreement. People v. Catron, 285 Ill. App. 3d 36, 37, 674 N.E.2d 141, 142

(1996). In considering the supreme court’s then-recent decision in Evans, we remarked:

                      “We recognize that Evans did not consider the situation where the alleged

              sentencing was allowed to be something more than a mere claim that the sentence

              is excessive. One such claim is that which defendant attempts to raise here,

              namely, that the trial court gave him the maximum sentence based, in part, upon

              improper consideration of a factor inherent in the crime. Had defendant raised this

              issue in the trial court, we do not believe Evans would foreclose a motion to

              reconsider sentence without vacating the plea.” Id. at 37-38, 674 N.E.2d at 142.

See also People v. Economy, 291 Ill. App. 3d 212, 218-19, 683 N.E.2d 919, 924 (1997)

(reaffirming Catron and addressing criticisms of the decision by other districts); People v.

Payne, 294 Ill. App. 3d 254, 258, 689 N.E.2d 631, 634 (1998) (“However, where a defendant



                                               - 11 -
asserts in the trial court more than a general claim that his sentence is excessive, he is allowed to

raise that issue by a motion to reconsider sentence.”).

¶ 25           We recently revisited the question of whether a defendant must withdraw his

guilty plea to challenge his sentence on the basis the trial court relied on improper sentencing

factors. Palmer-Smith, 2015 IL App (4th) 130451, ¶¶ 23-28, 29 N.E.3d 95. Resolving this

question in the negative, we noted the defendant “argued the court engaged in improper

sentencing as opposed to excessive sentencing.” Id. ¶ 28. We held, when considering Evans,

Linder, Lumzy, Catron, and Economy in concert, Rule 604(d) does not bar such a claim. Id.

Notably, our conclusion is also consistent with Wilson, 181 Ill. 2d at 413, 692 N.E.2d at 1108

(“According to our reasoning in Williams, [the defendant’s] claim of improper sentencing by the

trial court is not barred and can be considered regardless of whether [the defendant] complied

with the requirements of Evans.”).

¶ 26           The Second District reached a similar conclusion in People v. Dover, 312 Ill.

App. 3d 790, 797, 728 N.E.2d 90, 96 (2000) (“Based upon our review of supreme court

precedent, we conclude that, when a defendant challenges only the duration of the sentence

imposed by a trial court, the Evans-Linder doctrine applies ***.”). The Second District reiterated

this conclusion in People v. Martell, 2015 IL App (2d) 141202, ¶ 10, 46 N.E.3d 253

(“Nonetheless, even when the plea is negotiated, a defendant may move only to reconsider his

sentence and may appeal from that judgment—as long as the motion and the appeal are based on

something other than a contention that the sentence is merely excessive.”).

¶ 27           The Third District disagreed with our decision in Palmer-Smith, concluding

regardless of whether a defendant challenges his sentence as excessive or improper, he must

                                               - 12 -
withdraw his plea. Rademacher, 2016 IL App (3d) 130881, ¶¶ 56-61, 59 N.E.3d 12. The Third

District opined, “Any distinction between excessive sentencing and improper sentencing is one

without any practical difference.” Id. ¶ 58. According to the Third District,

                 “Any improper sentencing argument is, by its very nature, an implicit argument

                 that the sentence imposed was excessive. In other words, as the trial court in the

                 present case aptly noted, any distinction between improper and excessive is

                 merely a play on words—any sentence which is unfair or the result of bias is[,] by

                 definition, excessive.” (Internal quotation marks omitted.) Id.

The Third District was concerned with drawing a distinction between excessive sentencing and

improper sentencing, asserting such a distinction would “completely swallow the withdrawal

requirement of Rule 604(d), reducing that requirement to nothingness in the context of partially

negotiated pleas.” Id. ¶ 60. The Third District thus concluded a defendant must withdraw his

guilty plea to challenge any aspect of his sentence imposed pursuant to a partially negotiated plea

agreement. Id.

¶ 28             The First and Fifth Districts appear to have reached similar conclusions to the

Third District. In Dunn, the First District considered whether the trial court erred by failing to

admonish the defendant about the right to file a postplea motion to reconsider his sentence

following a negotiated plea. Dunn, 342 Ill. App. 3d at 881, 795 N.E.2d at 806-07. The First

District, applying a similar logic used in the State’s in pari materia argument sub judice,

reasoned:

                        “The right to file a motion to reduce sentence is a required admonition

                 under Rule 605(b), which governs nonnegotiated pleas, but is not, however, a

                                                - 13 -
              required admonition under Rule 605(c), which governs negotiated pleas, as is the

              case here. A defendant who enters a negotiated plea of guilty cannot file a motion

              to reconsider sentence, but can file a written motion to have the judgment vacated

              and to withdraw the plea of guilty.” Id.

The Fifth District has likewise concluded the trial court does not have “the authority to

reconsider a defendant’s negotiated-cap sentence when the guilty plea has not been successfully

withdrawn.” Richard, 2012 IL App (5th) 100302, ¶ 18, 970 N.E.2d 35. However, the Fifth

District’s conclusion appears to limit this holding to cases involving an excessive-sentence

argument as opposed to an improper-sentence argument. Id. ¶ 24 (“[A] sentence entered pursuant

to a negotiated guilty plea cannot be directly challenged as excessive; instead, a motion to

withdraw must first be filed.” (Emphasis added.)).

¶ 29                               2. The Parties’ Arguments

¶ 30           For the reasons that follow, we respectfully disagree with the First, Third, and

Fifth Districts to the extent they hold an improper-sentence argument may not be raised absent

withdrawal of a partially negotiated guilty plea, and we decline the State’s invitation to depart

from our decisions in Catron, Economy, and Palmer-Smith.

¶ 31          The Third District asserts “[a]ny distinction between excessive sentencing and

improper sentencing is one without any practical difference.” Rademacher, 2016 IL App (3d)

130881, ¶ 58, 59 N.E.3d 12. To the contrary, we believe there is an important practical

difference. When a defendant challenges his sentence based upon the trial court’s reliance on an

improper sentencing factor, he is asserting his constitutional right to a fair sentencing hearing

was violated. The mere fact a defendant agrees to a negotiated plea does not mean he has agreed

                                             - 14 -
to give up his right to be fairly sentenced in accordance with the laws of the State of Illinois. To

say excessive-sentence and improper-sentence challenges are the same is to diminish the

statutory and constitutional protections in place to ensure defendants are fairly and justly

sentenced. For these reasons and the following, we respectfully disagree with the Third District’s

decision in Rademacher.

¶ 32            Our decisions holding improper-sentencing arguments may be raised without

withdrawing a partially negotiated plea are consistent with the supreme court’s decisions in

Evans, Linder, Williams, and Wilson as well as with the plain language of Rule 604(d). Rule

604(d) states: “No appeal shall be taken upon a negotiated plea of guilty challenging the

sentence as excessive unless the defendant *** files a motion to withdraw the plea of guilty and

vacate the judgment.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000). The express

language of Rule 604(d) limits its application to excessive-sentence challenges and says nothing

of improper-sentence challenges. The plain language of Rule 604(d) therefore supports our

interpretation of the rule. See People v. Salem, 2016 IL 118693, ¶ 11, 47 N.E.3d 997 (“With

rules, as with statutes, our goal is to ascertain and give effect to the drafters’ intention. [Citation.]

The most reliable indicator of intent is the language used, which must be given its plain and

ordinary meaning.” (Internal quotation marks omitted.)).

¶ 33            Contrary to the State’s argument, this interpretation is also supported by the

supreme court’s holding in Linder: “By agreeing to plead guilty in exchange for a recommended

sentencing cap, a defendant is, in effect, agreeing not to challenge any sentence imposed below

that cap on the grounds that it is excessive.” (Emphasis added.) Linder, 186 Ill. 2d at 74, 708

N.E.2d at 1172. Allowing a defendant to challenge his sentence as improper without

                                                 - 15 -
withdrawing his negotiated guilty plea thus does not offend the supreme court’s holding in

Linder. See also Palmer-Smith, 2015 IL App (4th) 130451, ¶¶ 26, 28, 29 N.E.3d 95; Catron, 285

Ill. App. 3d at 37-38, 674 N.E.2d at 142.

¶ 34           Additionally, the Evans-Linder rule applies contract principles to negotiated plea

agreements to ensure the State is not unfairly bound “to the terms of the plea agreement while

giving the defendant the opportunity to avoid or modify those terms.” Linder, 186 Ill. 2d at 74,

708 N.E.2d at 1173. Allowing a defendant to challenge his sentence as improper—rather than

excessive—does not offend this principle.

¶ 35           The quid pro quo for a defendant’s partially negotiated guilty plea is the State’s

recommendation. People v. Whitfield, 217 Ill. 2d 177, 191, 840 N.E.2d 658, 667 (2005) (citing

People v. McCoy, 74 Ill. 2d 398, 403, 385 N.E.2d 696, 699 (1979)). However, after the State and

the defendant have performed their duties under the agreement, the trial court still must fashion

an appropriate sentence based upon counsels’ recommendations and the statutory sentencing

factors. Indeed, it could be said the plea agreement relies on the basic assumption the trial court

will conduct a proper sentencing hearing and consider only proper sentencing factors.

¶ 36           According to the frustration of purpose doctrine:

               “Where, after a contract is made, a party’s principal purpose is substantially

               frustrated without his fault by the occurrence of an event the non-occurrence of

               which was a basic assumption on which the contract was made, his remaining

               duties to render performance are discharged, unless the language or the

               circumstances indicate the contrary.” Restatement (Second) of Contracts § 265

               (1981).

                                              - 16 -
Justice Theis recently examined this doctrine in the context of negotiated plea agreements in her

dissent in People v. Shinaul, 2017 IL 120162, ¶¶ 35-38 (Theis, J., dissenting). Citing United

States v. Bunner, 134 F.3d 1000, 1005 (10th Cir. 1998), Justice Theis explained, “once the

underlying purpose of the agreement was frustrated and the basis of the *** bargain destroyed,

the *** remedy was to either (1) perform according to the letter of the plea agreement or (2) seek

discharge of its duties and return the parties to the positions they occupied before defendant

entered his negotiated guilty plea.” (Internal quotation marks omitted.) Shinaul, 2017 IL 120162,

¶ 38 (Theis, J., dissenting.).

¶ 37            In the interest of judicial economy, the first remedy would be preferable in the

context of an unfair sentencing following a partially negotiated plea agreement, which would

take the form of simply filing a motion to reconsider the sentence in light of the trial court’s

errors during the sentencing hearing. This is the remedy supported by this court’s decisions in

Catron, Economy, and Palmer-Smith. Alternatively, the defendant could seek withdrawal of his

guilty plea, thereby taking advantage of the second remedy, which is the remedy the State

supports as well as the Third District in Rademacher and, seemingly, the First District in Dunn

and the Fifth District in Richard. However, where, as here, the defendant merely seeks a fair

sentencing, requiring the plea to be withdrawn and the parties returned to the status quo would

be an unnecessary waste of time and resources, given neither party seeks to change the terms of

the plea agreement.

¶ 38            Application of the first remedy in such a situation is also supported by the logic

employed by the supreme court in Williams and Wilson, which stands for the proposition that

where a sentence is void or otherwise not statutorily authorized, a defendant need not withdraw

                                              - 17 -
his negotiated guilty plea to challenge his sentence. Williams, 179 Ill. 2d at 332-33, 688 N.E.2d

at 1154; Wilson, 181 Ill. 2d at 413, 692 N.E.2d at 1108.

¶ 39           In the context of partially negotiated plea agreements, the effect of the trial court’s

act of imposing a void sentence or a sentence not authorized by statute is similar to the act of

fashioning a sentence based on improper sentencing factors in that the court has imposed a

sentence which does not comply with the law. In considering the policy of ensuring each party is

held to their end of the plea bargain, the trial court’s errors do not alter the State’s or the

defendant’s adherence to the agreement, but it does unilaterally alter the terms of the agreement

without the assent of either the State or the defendant. Thus, in this context, we see no difference

between the effect of the trial court’s imposition of a void sentence and the trial court’s

imposition of a sentence in reliance on improper sentencing factors. It would then logically

follow a defendant need not withdraw his guilty plea to raise an unfair-sentence challenge when

his sentence has been crafted in reliance on improper sentencing factors, as is the case when the

court imposes a void sentence (Williams, 179 Ill. 2d at 332-33, 688 N.E.2d at 1154).

¶ 40           It is also good policy to allow a defendant to raise an unfair-sentence argument in

a motion to reconsider the sentence without requiring him to withdraw the negotiated guilty plea.

To hold otherwise places the onus of the trial court’s sentencing error—not to mention the

burden of proof accompanying a motion to withdraw a guilty plea—on the defendant. Given the

fact “[a] defendant does not have an absolute right to withdraw [her] guilty plea” (People v.

Manning, 227 Ill. 2d 403, 412, 883 N.E.2d 492, 498 (2008)), there is the possibility for the

untenable situation where the defendant may be unfairly bound to an agreement containing a

term to which he did not agree, i.e., the surrender of his constitutional right to a fair sentencing

                                               - 18 -
hearing. Just as we would not unfairly bind the State to a negotiated plea agreement, we likewise

should not unfairly bind a defendant to such an agreement.

¶ 41           We concede there is merit in the State’s in pari materia argument, which the First

District appears to have likewise employed in its decision in Dunn. Rule 605(c) outlines the

admonishments a trial court is to give to a defendant upon a negotiated guilty plea and omits

reference to a motion to reconsider the sentence, instead indicating the defendant must file a

motion to withdraw his guilty plea in order to preserve his right to appeal. Ill. S. Ct. R. 605(c)

(eff. Oct. 1, 2001). The fact Rule 605(c) does not provide an admonition relating to a motion to

reconsider the sentence supports the State’s argument Rule 604(d) does not allow a defendant to

file a motion to reconsider his sentence pursuant to a negotiated plea agreement. See also Dunn,

342 Ill. App. 3d at 881, 795 N.E.2d at 806. This omission also creates the anomalous situation

where a trial court, which strictly complies with Rule 605(c), does not admonish a defendant

with respect to his right to file a motion to reconsider his sentence in a case where he does not

seek to challenge his sentence as merely excessive.

¶ 42           However, we do not find this single argument conclusive in light of our previous

discussion and application of contract principles. We thus decline to depart from our decisions in

Catron, Economy, and Palmer-Smith and continue to hold a defendant need not withdraw his

guilty plea to raise an improper-sentence argument despite entering into a partially negotiated

plea agreement. We therefore turn to the merits of defendant’s argument, which the State does

not address.

¶ 43                                     3. Plain Error



                                              - 19 -
¶ 44           Defendant concedes he forfeited his improper-sentence argument by failing to

include the argument in his pro se motion for a sentence reduction or his amended motion to

withdraw his guilty plea. See Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016) (“Upon appeal any issue not

raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty

and vacate the judgment shall be deemed waived.”). He thus requests plain-error review,

asserting the consideration of improper sentencing factors constitutes second-prong plain error.

The State does not respond to these arguments.

¶ 45           “The plain-error doctrine permits a reviewing court to by-pass normal rules of

forfeiture and consider ‘[p]lain errors or defects affecting substantial rights *** although they

were not brought to the attention of the trial court.’ ” People v. Eppinger, 2013 IL 114121, ¶ 18,

984 N.E.2d 475 (quoting Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)).

               “Plain-error   review    is   appropriate   under      either   of   two

               circumstances: (1) when ‘a clear or obvious error occurred and the

               evidence is so closely balanced that the error alone threatened to

               tip the scales of justice against the defendant, regardless of the

               seriousness of the error’; or (2) when ‘a clear or obvious error

               occurred and that error is so serious that it affected the fairness of

               the defendant’s trial and challenged the integrity of the judicial

               process, regardless of the closeness of the evidence.’ ” Id. (quoting

               People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11

               (2007)).



                                               - 20 -
To establish second-prong plain error, “the defendant must prove *** the error was so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process.” People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 479-80 (2005). As a matter of

convention, we first ascertain whether an error occurred at all. People v. Shaw, 2016 IL App

(4th) 150444, ¶ 69, 52 N.E.3d. 728.

¶ 46           It is well established that the trial court shall not consider a factor inherent in the

offense as an aggravating factor at sentencing. Palmer-Smith, 2015 IL App (4th) 130451, ¶ 29,

29 N.E.3d 95 (citing People v. Saldivar, 113 Ill. 2d 256, 272, 497 N.E.2d 1138, 1144 (1986)).

Defendant argues the trial court considered two factors inherent in the offense in aggravation at

his sentencing: compensation and harm to society.

¶ 47           “[C]ompensation is an implicit factor in most drug transactions” and generally

may not be considered as an aggravating factor. People v. McCain, 248 Ill. App. 3d 844, 851,

617 N.E.2d 1294, 1299 (1993); see also People v. Smith, 198 Ill. App. 3d 695, 698, 556 N.E.2d

307, 309 (1990). Here, the trial court erroneously considered compensation as an aggravating

factor when it listed the factors in aggravation at the sentencing hearing.

¶ 48           The trial court also stated, “I think the conduct threatened serious harm” when

listing the factors in aggravation at sentencing. “If a trial court intends to consider the societal

harm defendant’s conduct threatened to cause as an aggravating factor, the record must

demonstrate that the conduct of the defendant had a greater propensity to cause harm than that

which is merely inherent in the offense itself.” McCain, 248 Ill. App. 3d at 852, 617 N.E.2d at

1300. The record does not reflect any such particular propensity to cause harm beyond the harm



                                               - 21 -
inherent in the sale or delivery of controlled substances. We thus conclude consideration of this

factor in aggravation was likewise erroneous.

¶ 49           Generally, where “a trial court considers an improper factor in aggravation, the

case must be remanded unless it appears from the record that the weight placed upon the

improper factor was so insignificant that it did not lead to a greater sentence.” People v.

Abdelhadi, 2012 IL App (2d) 111053, ¶ 18, 973 N.E.2d 459; cf. People v. Bourke, 96 Ill. 2d 327,

332, 449 N.E.2d 1338, 1340 (1983) (“However, where it can be determined from the record that

the weight placed on the improperly considered aggravating factor was so insignificant that it did

not lead to a greater sentence, remandment is not required.”). The following considerations have

been used to make this determination: “(1) whether the trial court made any dismissive or

emphatic comments in reciting its consideration of the improper factor[ ] and (2) whether the

sentence received was substantially less than the maximum sentence permissible by statute.”

Abdelhadi, 2012 IL App (2d) 111053, ¶ 18, 973 N.E.2d 459.

¶ 50           The trial court here did not make any dismissive or emphatic comments when

discussing the improper factors. Rather, the court listed the factors in mitigation and then turned

to the factors in aggravation, during which the court listed the above-referenced improper

factors. The court did not specifically elaborate on compensation or threat of harm, instead

simply enumerating them among other aggravating factors.

¶ 51           Turning to the sentence imposed, the State and defendant agreed to a sentence cap

of 13 years’ imprisonment, whereas the maximum sentence for defendant’s conviction was 15

years in prison. The court sentenced defendant to 11 years’ imprisonment, highlighting

defendant’s work toward rehabilitation while in custody as its reason for not imposing the 13-

                                                - 22 -
year sentence recommended by the State. The record is unclear whether or how much weight

was afforded to the improper aggravating factors, which would generally require remandment for

a new sentencing hearing. See id. ¶ 19; People v. Sanders, 2016 IL App (3d) 130511, ¶ 17, 58

N.E.3d 661.

¶ 52           Having determined the trial court committed reversible error by considering two

factors inherent in the crime in aggravation at sentencing, we must now determine whether these

errors rise to the level of plain error. Defendant cites Abdelhadi for the proposition “when a trial

court considers erroneous aggravating factors in determining the appropriate sentence of

imprisonment, the defendant’s fundamental right to liberty is unjustly affected, which is seen as a

serious error.” (Internal quotation marks omitted.) Abdelhadi, 2012 IL App (2d) 111053, ¶ 7, 973

N.E.2d 459; see also, Sanders, 2016 IL App (3d) 130511, ¶¶ 15-17, 58 N.E.3d 661 (“[T]he trial

court’s express finding that the defendant’s conduct caused or threatened serious harm, a factor

inherent in the offense[,] *** impinged on the defendant’s right not to be sentenced based on an

improper factor and affected his fundamental right to liberty.”); but see People v. Rathbone, 345

Ill. App. 3d 305, 311, 802 N.E.2d 333, 338 (2003) (holding “[I]t is not a sufficient argument for

plain[-]error review to simply state that because sentencing affects the defendant’s fundamental

right to liberty, any error committed at that stage is reviewable as plain error. Because all

sentencing errors arguably affect the defendant’s fundamental right to liberty, determining

whether an error is reviewable as plain error requires more in-depth analysis.”).

¶ 53           Aside from quoting Abdelhadi, defendant does not explain how, under these

circumstances, the trial court’s consideration of improper sentencing factors constitutes second-

prong plain error. At oral argument, defendant indicated the trial court’s action constitutes plain

                                               - 23 -
error for the same reason it constitutes reversible error. Alternatively, defendant requests in his

brief we relax the rules of forfeiture because, even if his improper-sentence argument had been

properly preserved in a motion to reconsider his sentence, the argument would have fallen on

“deaf ears” because the court indicated it could not entertain a motion to reconsider defendant’s

sentence. See Thompson, 238 Ill. 2d at 612, 939 N.E.2d at 412.

¶ 54           Plain-error analysis is separate from reversible-error analysis. This court as well

as the supreme court have “consistently emphasized the limited nature of the plain[-]error

exception.” (Internal quotation marks omitted.) People v. Hanson, 2014 IL App (4th) 130330,

¶ 27, 25 N.E.3d 1; see also People v. Easley, 148 Ill. 2d 281, 337, 592 N.E.2d 1036, 1061 (1992).

“The plain-error doctrine is not a general saving clause preserving for review all errors affecting

substantial rights whether or not they have been brought to the attention of the trial court.

[Citation.] Instead, it is a narrow and limited exception to the general rule of forfeiture, whose

purpose is to protect the rights of the defendant and the integrity and reputation of the judicial

process. [Citation.]” (Internal quotation marks omitted.) Hanson, 2014 IL App (4th) 130330,

¶ 27, 25 N.E.3d 1. Since Rathbone, “we have declined to automatically apply the plain-error

doctrine to forfeited claims regarding sentencing.” Id. ¶ 29. Instead, defendant bears the burden

of proving the reversible error “was sufficiently grave that it deprived the defendant of a fair

sentencing hearing.” Id. ¶ 26.

¶ 55           Despite defendant’s failure to fully develop his plain-error argument, we are

persuaded the rules of forfeiture should be relaxed in this particular situation, especially in light

of the lack of clarity with respect to defendant’s Rule 604(d) rights and obligations. The trial

court here enumerated four aggravating factors, two of which were factors inherent in the

                                               - 24 -
offense. The consideration of multiple improper factors raises the seriousness of the court’s

error. It appears from the record these improper factors impacted the court’s sentencing decision,

which, in turn, affected the fairness of defendant’s sentencing hearing, as the court’s

consideration of these factors was unlawful. Compare People v. Maggio, 2017 IL App (4th)

150287, ¶ 50 (concluding the trial court’s reliance on an improper sentencing factor was second-

prong plain error), with Rathbone, 345 Ill. App. 3d at 312, 802 N.E.2d at 339 (concluding the

alleged sentencing error was not plain error because the “claim addresse[d] the trial court’s

exercise of its discretion, not the fairness of the proceedings or the integrity of the judicial

process”).

¶ 56           We thus reverse defendant’s sentence under the second prong of the plain error

analysis and remand the cause for resentencing. We stress, however, this opinion should not be

read to stand for the proposition every case involving a trial court’s consideration of an improper

sentencing factor automatically constitutes plain error sufficient to overcome forfeiture. See

Hanson, 2014 IL App (4th) 130330, ¶¶ 27-29, 25 N.E.3d 1.

¶ 57                            B. Sentence and Per Diem Credit

¶ 58           Defendant argues he is entitled to one additional day of sentence and per diem

credit, citing People v. Hutchcraft, 215 Ill. App. 3d 533, 534, 574 N.E.2d 1337, 1337-38 (1991)

(“[I]f a defendant is held in custody for any part of a day, he is entitled to credit against his

sentence for that day; i.e., in counting days for purposes of sentence credit *** both the first and

last days are counted.”). See also 725 ILCS 5/110-14 (West 2016) (authorizing credit of $5 per

day spent in custody on a bailable offense to be assessed against fines imposed). He asserts the

trial court awarded him 450 days of credit for the period of October 23, 2013, to January 15,

                                               - 25 -
2015, but he was not awarded credit for the day he was arrested: October 22, 2013. The State

concedes defendant is entitled to one additional day of sentence credit and an additional $5 in

per diem credit for October 22, 2013. We accept the State’s concession and remand to the trial

court to add one additional day of sentence credit and an additional $5 in per diem credit.

¶ 59                                   III. CONCLUSION

¶ 60           We reverse defendant’s sentence, remand to the trial court for a new sentencing

hearing, and direct defendant be awarded one additional day of sentence credit and an additional

$5 in per diem credit.

¶ 61           Reversed; cause remanded with instructions.




                                              - 26 -
