                                  Illinois Official Reports

                                          Appellate Court



                             People v. Gooch, 2014 IL App (5th) 120161



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption                      v. KIP GOOCH, Defendant-Appellant.


District & No.               Fifth District
                             Docket No. 5-12-0161


Filed                        September 3, 2014


Held                         The 12-year sentence imposed on defendant for the criminal sexual
(Note: This syllabus         assault of his daughter was upheld over his contention that the
constitutes no part of the   sentence was excessive in view of his cooperation with the State,
opinion of the court but     including his voluntary guilty plea, since his guilty plea to criminal
has been prepared by the     sexual assault was in exchange for the dismissal of two counts of
Reporter of Decisions        predatory criminal sexual assault, the parties agreed that the plea was
for the convenience of       an open plea and that the trial court would impose the sentence after a
the reader.)                 sentencing hearing, there was no agreement or negotiations as to his
                             sentence, defendant was not required to withdraw his guilty plea and
                             vacate the judgment before he could seek reconsideration of his
                             sentence, and in view of the facts that the sentence was within the
                             statutory limits and that defendant would have had to serve
                             consecutive terms for the two counts of predatory criminal sexual
                             assault, if he had been convicted on those counts, the sentence was not
                             an abuse of discretion.



Decision Under               Appeal from the Circuit Court of Williamson County, No. 09-CF-484;
Review                       the Hon. John Speroni, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Bryan A. Drew, Jason D. Drew, and Katie M. Oehmke, all of Drew &
     Appeal                   Drew, P.C., of Benton, for appellant.

                              Charles Garnati, State’s Attorney, of Marion (Patrick Delfino,
                              Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                    JUSTICE GOLDENHERSH delivered the judgment of the court, with
                              opinion.
                              Justices Chapman and Cates concurred in the judgment and opinion.


                                               OPINION

¶1         Defendant, Kip D. Gooch, was charged by the circuit court with criminal sexual assault
       after he knowingly committed acts of sexual penetration with his daughter, a minor.
       Defendant’s criminal sexual assaults of his daughter stretched over a period of eight years,
       and defendant’s daughter was a minor at the time of each attack. Criminal sexual assault is a
       Class 1 felony that carries a sentence of 4 to 15 years’ incarceration. 720 ILCS 5/12-13 (West
       2010). The circuit court sentenced defendant to 12 years in the Illinois Department of
       Corrections. After his sentencing, defendant filed a motion to reconsider the sentence, which
       the circuit court denied. Defendant filed a timely notice of appeal.
¶2         On appeal, defendant raises the issue as to whether the circuit court abused its discretion
       when it sentenced defendant to 12 years in the Illinois Department of Corrections, alleging
       that 12 years was an excessive sentence after defendant had cooperated with law enforcement
       and entered a voluntary plea of guilty. The State asserts that the sentence was not an abuse of
       the circuit court’s discretion. The State also alleges that defendant entered into a partially
       negotiated guilty plea rather than an open plea, and, therefore, defendant was required to file
       a motion to withdraw his guilty plea before appealing his sentence. We affirm defendant’s
       sentence and reject the State’s position arguing a partially negotiated guilty plea.

¶3                                          BACKGROUND
¶4         On December 14, 2009, defendant was charged by information with several criminal
       offenses, the relevant charges here being two counts of predatory criminal sexual assault of a
       child (720 ILCS 5/11-1.40 (West 2010)) and one count of criminal sexual assault (720 ILCS
       5/12-13 (West 2010)). The victim was defendant’s daughter, a minor who was first sexually
       abused by defendant at the age of five in 2001. The assaults continued over an eight-year
       period from 2001 to 2009. The charges alleged specific physical acts. The first count of
       predatory criminal sexual assault of a child alleged that defendant inserted a vibrator into the
       victim’s vagina. The second count of predatory criminal sexual assault of a child alleged that
       defendant inserted his finger into the victim’s vagina. The third count of criminal sexual
       assault alleged that defendant put his tongue in the victim’s vagina.


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¶5       Defendant reached a plea agreement with the State in which he agreed to plead guilty to
     the single count of criminal sexual assault in exchange for the dismissal of the two counts of
     predatory criminal sexual assault. Defendant was sentenced to 12 years in the Illinois
     Department of Corrections. Criminal sexual assault has a range of punishment from 4 to 15
     years in the Illinois Department of Corrections. After his sentencing, defendant filed a pro se
     motion to reconsider his sentence under Illinois Supreme Court Rule 604(d) (eff. July 1,
     2006), which the circuit court denied. Defendant now appeals the circuit court’s 12-year
     sentence, arguing that the sentence was excessive and an abuse of the circuit court’s
     discretion. Also on appeal, the State argues that the agreement defendant entered into was a
     partially negotiated guilty plea rather than an open plea, and therefore defendant was required
     to withdraw his guilty plea and vacate the judgment entered before he could file a motion to
     reconsider his sentence.

¶6                                             ANALYSIS
¶7        The issue defendant raises on appeal is that his 12-year sentence was excessive and an
     abuse of the circuit court’s discretion. We disagree. Defendant pled guilty to one count of
     criminal sexual assault. Criminal sexual assault is a Class 1 felony that carries a sentence of 4
     to 15 years in the Illinois Department of Corrections. 720 ILCS 5/12-13 (West 2010).
¶8        The State points out that the circuit court has broad discretion when imposing a sentence
     and that its judgment is entitled to great deference. People v. O’Neal, 125 Ill. 2d 291, 297,
     531 N.E.2d 366, 368 (1988). However, the discretion of the circuit court’s sentencing does
     have limits (People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000)), as the
     court’s sentence must be fair-minded and equitable. People v. Blumstengel, 61 Ill. App. 3d
     1016, 1021, 378 N.E.2d 401, 404 (1978). It has been held that:
              “where it is claimed that the punishment imposed is excessive, although within the
              limitations prescribed by the legislature, that sentence should not be disturbed unless
              it is greatly at variance with the purpose and spirit of the law or manifestly in excess
              of the proscriptions of section 11 of article II of the Illinois constitution which
              requires that all penalties should be proportioned to the nature of the offense. The trial
              court is normally in a superior position during the trial and the hearing in aggravation
              and mitigation to make a sound determination as to the punishment to be imposed
              than are courts of review.” People v. Fox, 48 Ill. 2d 239, 251-52, 269 N.E.2d 720, 728
              (1971).
     If the circuit court’s sentence is within the statutory limits, there is a rebuttable presumption
     that the sentence is appropriate. People v. Chambers, 258 Ill. App. 3d 73, 92, 629 N.E.2d
     606, 620 (1994).
¶9        In this case, defendant was sentenced to three years less than the maximum for the crime
     of criminal sexual assault, a sentence that was within the statutory limits. Furthermore, the
     two counts of predatory criminal sexual assault of a child were dismissed in return for his
     agreement to plead guilty to the single count of criminal sexual assault. If defendant had pled
     to the two counts of predatory criminal sexual assault of a child, in addition to the single
     count of criminal sexual assault, defendant would have been required to serve each count
     consecutively to each other, which would have added 12 to 120 years to his existing 12-year
     sentence. 720 ILCS 5/11-1.40(b)(2) (West 2010). Considering that defendant was sentenced
     within statutory limits and that defendant’s plea agreement with the State dropped the two

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       additional charges that would have been required consecutive sentencing, the circuit court’s
       sentence was appropriate.
¶ 10       In his argument asserting that the circuit court’s sentence was excessive and an abuse of
       discretion, defendant points to a number of mitigating factors that he alleges the circuit court
       should have considered before determining his sentence. For example, defendant indicates
       that, before this incident, he had not committed a crime since 1995. Defendant also points out
       that the criminal sexual assault of his daughter was a single crime that involved a single
       victim. What defendant fails to consider, however, is that he repeatedly committed this
       heinous crime for approximately eight years going back to 2001, continuously sexually
       assaulting his daughter until she revealed to her mother what had been taking place. At no
       time during this eight-year period did defendant cease assaulting his daughter.
¶ 11       A sentence that the circuit court imposes is entitled to great deference and will not be
       reversed without a finding of an abuse of discretion. Stacey, 193 Ill. 2d at 209, 737 N.E.2d at
       629. Accordingly, a reviewing court may not reweigh aggravating and mitigating factors in
       reviewing a defendant’s challenge to a sentence, and it may not substitute its judgment for
       the trial court’s merely because it could or would have weighed the factors differently.
       People v. Jones, 376 Ill. App. 3d 372, 394, 876 N.E.2d 15, 34 (2007).
¶ 12       Considering that defendant’s 12-year sentence was within statutory limits and that the
       circuit court is in a superior position to make an appropriate determination as to the length of
       punishment, the circuit court’s 12-year sentence was not an abuse of discretion.
¶ 13       The second issue raised on appeal is the nature of the plea that defendant entered into
       with the State. The State argues defendant entered into a partially negotiated guilty plea
       rather than an open plea, and because defendant entered into a partially negotiated plea that
       involved a sentence concession by the State, defendant should have been required to move to
       withdraw his guilty plea before filing a motion for sentence reconsideration under Supreme
       Court Rule 604(d). We disagree.
¶ 14       During the proceedings that took place on August 29, 2011, both the State and defendant
       stated that the terms negotiated between them were an open plea. The court asked the State
       and defendant what the terms of the negotiation were. The State replied by saying, “[I]t’s an
       open plea.” Defendant also replied by saying open plea. The court then declared that it “has
       been advised that it is not, in fact, a negotiated plea *** it’s an open plea.” The court
       subsequently asked the following question of defendant with the State present: “It’s your
       clear understanding there is no negotiation in this case, that there will be a sentencing
       hearing, and the court will impose the sentence?” Defendant replied, “Yes.” The court then
       asked defendant, “[A]nyone forced or threatened you or made any promises to you to get you
       to plead guilty?” Defendant replied, “No.”
¶ 15       The State contends that the type of plea defendant entered in this case resembles a
       partially negotiated plea. A negotiated plea is different from an open plea. In an open plea,
       both the defendant and the State are free to argue for any sentence permitted by statute, and
       the circuit court exercises its full discretion in determining the sentence to be imposed.
       People v. Lumzy, 191 Ill. 2d 182, 185, 730 N.E.2d 20, 21-22 (2000). Conversely, as the State
       points out, when a defendant enters into a partially negotiated plea, the defendant pleads
       guilty in exchange for a dismissal of pending charges and the State makes sentencing
       concessions. Lumzy, 191 Ill. 2d at 185-86, 730 N.E.2d at 22.


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¶ 16       The court analyzed how a motion for sentence reconsideration under Supreme Court Rule
       604(d) applies to negotiated pleas as opposed to open pleas in People v. Evans, 174 Ill. 2d
       320, 673 N.E.2d 244 (1996). Evans involved a case in which the defendants were charged
       with residential burglary, armed violence, and aggravated unlawful restraint. The defendants
       and the State subsequently reached a negotiated plea agreement, whereby each defendant
       pled guilty to the armed violence and aggravated unlawful restraint charges, and in exchange
       the State dismissed the residential burglary charge and recommended specific sentences of
       imprisonment for the two charges to which each defendant pled guilty.
¶ 17       Following the court’s sentencing, each defendant filed a motion for sentence
       reconsideration under Supreme Court Rule 604(d). The State then challenged defendants’
       motions, contending that it was unfair for defendants to agree to a negotiated plea agreement,
       receive the benefits of that agreement by way of sentencing concessions, and then separately
       challenge their negotiated sentences. The State argued that problems associated with plea
       bargaining arrangements should be governed by contract law principles, and the guilty plea
       and sentence “ ‘go hand in hand’ ” as material elements of the plea agreement. Evans, 174 Ill.
       2d at 325, 673 N.E.2d at 246. As such, the State alleged the defendants could not challenge
       only the sentence imposed as part of the negotiated plea without first withdrawing their guilty
       plea. Otherwise, the State contended the two parties could not return to the status quo. The
       court agreed with the State, holding that following the entry of judgment on a negotiated
       guilty plea, a defendant must move to withdraw the guilty plea and vacate the judgment
       before challenging his sentence so the parties can be returned to the status quo.
¶ 18       In contrast to how a motion for sentence reconsideration applies to a negotiated guilty
       plea, the court in Evans also discussed how it applies to an open guilty plea. In an open plea,
       the defendant pleads guilty “without receiving any promises from the State in return.” Evans,
       174 Ill. 2d at 332, 673 N.E.2d at 250. Both defendant and the State are free to argue for any
       sentence permitted by statute, and the circuit court exercises its full discretion in determining
       the sentence to be imposed. Lumzy, 191 Ill. 2d at 185, 730 N.E.2d at 21-22. When an open
       guilty plea is involved in a motion for sentence reconsideration, in which sentences are not
       negotiated as part of the plea agreement, a defendant is not required to file a motion to
       withdraw his guilty plea and vacate the judgment because he is not challenging his guilty
       plea. As the court in Evans reasoned, “Both good public policy and common sense dictate
       that defendants who enter open guilty pleas be allowed to challenge only their sentences
       without being required to withdraw their guilty pleas.” Evans, 174 Ill. 2d at 332, 673 N.E.2d
       at 250.
¶ 19       In this case, the State indicates it agreed to defendant’s plea of guilty to a single count of
       criminal sexual assault in exchange for dismissal of the predatory criminal sexual assault
       charges, and in doing so the dismissal of those charges resulted in a significant sentencing
       concession by the State. The State asserts that when a plea involves a sentencing concession
       by the State, a defendant is required to first move to withdraw the guilty plea and vacate the
       judgment before any appeal. People v. Diaz, 192 Ill. 2d 211, 225, 735 N.E.2d 605, 612
       (2000).
¶ 20       Diaz involved a negotiated plea agreement between the defendant and State whereby the
       State agreed to dismiss several charges, agreed not to seek consecutive sentences, and agreed
       that extended-term sentences would not be imposed in exchange for the defendant’s plea of
       guilty to one count of aggravated criminal sexual assault. The court in Diaz concluded that a

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       sentencing concession by the State causes the sentence imposed on defendant to be part of
       the plea agreement reached between defendant and the State. The court in Diaz found where
       a plea agreement limits the State from arguing for a sentence from the full range of penalties
       available under statute, a defendant must first move to withdraw his plea in the circuit court
       before challenging the sentence imposed.
¶ 21       In this case, the State asserts that it lost the ability to obtain consecutive sentences against
       defendant in its plea by dismissing three charges in exchange for defendant’s plea of guilty to
       a single charge. Because this plea deal limits the State from arguing for a sentence from the
       full range of penalties under statute, the State contends, defendant must move to withdraw his
       plea before challenging his sentence as in Diaz. However, the State losing the ability to
       obtain consecutive sentences from a plea cannot be viewed the same as the State’s
       specifically including in a plea agreement that it will not pursue consecutive or
       extended-term sentences. Whereas the plea in Diaz involved specific sentencing
       recommendation language, the case at issue did not. In Diaz, the State agreed not to seek
       extended-term sentences and consecutive sentences. No such language is present in the plea
       agreement in this case. Where the record is clear that no agreement existed between the
       parties as to defendant’s sentence, a defendant is not required to withdraw his guilty plea
       before challenging his sentence. Diaz, 192 Ill. 2d at 221, 735 N.E.2d at 610. When an
       agreement is silent as to defendant’s sentence, the sentence does not go hand in hand with the
       plea because the State has failed to include any aspect of sentencing as an element of the plea
       agreement.
¶ 22       Accordingly, where a plea agreement reached between a defendant and the State is silent
       as to sentencing, a defendant is not required to move to withdraw his guilty plea before
       challenging his sentence. Lumzy, 191 Ill. 2d at 187, 730 N.E.2d at 23. A plea bargain that is
       silent as to sentencing is equivalent to an open plea, and the motion-to-reconsider-sentence
       clause of Rule 604(d) applies, permitting a defendant to file a motion to reconsider sentence
       where only the sentence is challenged.
¶ 23       Moreover, by agreeing to drop a charge the State only makes a concession of
       relinquishing its right to prove defendant’s guilt of that charge. As Justice Freeman stated in
       his special concurrence in Lumzy: “To imply a sentencing concession on the part of the State
       in this circumstance would require this court to presume that defendant was, in fact, guilty of
       the charge. Such a presumption would, of course, fly in the face of the presumption of
       innocence that exists in our criminal justice system.” Lumzy, 191 Ill. 2d at 189-90, 730
       N.E.2d at 24 (Freeman, J., specially concurring). He continued in his special concurrence by
       emphasizing courts should avoid a bright-line rule that places meaningless procedural
       obstacles in the path of an appeal. We agree with Justice Freeman’s special concurrence, as a
       sentence concession by the State in a plea agreement should not be perceived as a
       presumption of defendant’s guilt as to those charges, and does not equate to language that
       recommends a specific sentence. A concession of charges against defendant in a plea
       agreement should not be characterized as negotiated, as it does not directly speak to the
       sentence imposed.
¶ 24       In this case, the number of years of defendant’s sentence was never agreed upon, nor
       were promises made to defendant regarding any sentencing constraints on the single count of
       criminal sexual assault to which defendant pled guilty. Where it is absolutely clear that no
       agreement existed between the parties as to defendant’s sentence, “defendant manifestly

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       cannot be breaching such a nonexistent agreement by arguing that the sentence which the
       court imposed was excessive.” Lumzy, 191 Ill. 2d at 187, 730 N.E.2d at 23. As such,
       defendant cannot be prevented from appealing the length of his sentence under the facts
       presented.
¶ 25       When a defendant pleads guilty in return for a dismissal of charges, the State and
       defendant each receive what they agreed to, that being a guilty plea in exchange for a
       dismissal of charges. In this case, the State and defendant did not agree to the length of
       defendant’s sentence. The plea agreement was completely silent as to sentencing.
       Accordingly, the length of defendant’s sentence was left to the circuit court’s discretion. This
       was an open plea case, as both the State and defendant acknowledged below. As such,
       defendant was not required to file a motion to withdraw the plea and vacate the judgment
       prior to challenging his sentence.

¶ 26                                       CONCLUSION
¶ 27      For the reasons stated herein, we affirm the judgment of the circuit court of Williamson
       County.

¶ 28      Affirmed.




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