                                         2015 IL App (3d) 130401
                                         Consolidated with 130402

                                Opinion filed August 25, 2015
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                      THIRD JUDICIAL DISTRICT

                                        A.D., 2015
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE             )     Appeal from the Circuit Court
     OF ILLINOIS,                        )     of the 9th Judicial Circuit,
                                         )     Knox County, Illinois,
           Plaintiff-Appellee,           )
                                         )
           v.                            )     Appeal Nos. 3-13-0401 and 3-13-0402
                                         )     Circuit Nos. 12-CF-355 and 13-CM-42
     WILLIAM D. MCCLENDON,               )
                                         )     Honorable James R. Standard,
           Defendant-Appellant.          )     Judge, Presiding.
      ____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Presiding Justice McDade and Justice Holdridge concurred in the judgment and opinion.
     ______________________________________________________________________________

                                                 OPINION

¶1          The State and defendant William D. McClendon entered into a fully-negotiated plea

     agreement. However, within a few days, defendant had a change of heart, hired new counsel,

     and filed a timely motion to withdraw his guilty pleas. Although the State did not have an

     objection to defendant’s timely motions, the trial court refused to allow defendant’s request to set

     aside the plea agreement. Defendant appeals. We reverse and remand.
¶2                                          BACKGROUND

¶3          On August 1, 2012, the State filed an information in case No. 12-CF-355 charging

     defendant with four felony charges, including mob action, arising out of events occurring on

     July 21, 2012. The court issued a $100,000 arrest warrant for defendant on August 2, 2012.

¶4          On January 15, 2013, defendant was arrested on the $100,000 arrest warrant and charged

     with new unrelated offenses, including domestic battery, in case No. 13-CM-42. The State also

     filed separate petitions to revoke probation in case Nos. 10-CF-326 and 10-CF-548, based on the

     new allegations of domestic battery. Defendant was unable to post bail and remained

     incarcerated in the Knox County jail until February 5, 2013. On that date, the parties informed

     the trial court that they had reached a proposed negotiated plea agreement.

¶5          The terms of this proposed negotiated plea agreement required defendant to plead guilty

     to one felony mob action count in case No. 12-CF-355 and one misdemeanor count of domestic

     battery in case No. 13-CM-42. In exchange for defendant’s guilty pleas, the State agreed to

     dismiss all other pending charges against defendant, including the separate petitions to revoke

     probation.

¶6          After proper admonishments by the court, defendant told the court he understood his right

     to a trial in each case, wished to give up the right to a trial, and wanted to plead guilty. The court

     asked defendant whether he spoke with his public defender about the specific terms of this plea

     agreement and whether defendant was satisfied with his attorney’s representation. Defendant

     stated, “Yes, sir.” Further, defendant denied he was subjected to any threats, promises, coercion,

     or force by anyone and wished to plead guilty to these two counts.

¶7          Pursuant to the negotiated plea agreement, the court sentenced defendant to two years’

     probation for the mob action conviction, and also sentenced defendant to pay fines resulting from



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       his domestic battery conviction. The court dismissed the remaining counts in both cases and the

       pending petitions to revoke defendant’s probation pursuant to the agreement. The court

       admonished defendant pursuant to Supreme Court Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. Feb. 6,

       2013)), regarding defendant’s right to file a motion to withdraw his guilty plea.

¶8            On March 7, 2013, defendant’s newly-retained counsel filed identical amended motions

       to withdraw defendant’s guilty pleas (motions to withdraw) supported by affidavits from

       defendant and occurrence witnesses in case Nos. 12-CF-355 and 13-CM-42. In essence, the

       motions to withdraw and supporting affidavits alleged defendant had an actual defense to both

       charges, but defendant entered a guilty plea because his appointed counsel pressured him to do

       so by advising defendant he should “just plead guilty so [he] could just go home and see [his]

       kids,” and “it would be a lot worse for [defendant] if he did not just plead guilty.” The motions

       and affidavits alleged appointed counsel also advised defendant that he “would have to sit there

       in jail for a long time while nothing happened on [his] case,” if he persisted in his assertion that

       he was not guilty of the charged offenses.

¶9            On June 5, 2013, the parties appeared for the hearing on defendant’s motions to withdraw

       before the same judge who accepted defendant’s guilty pleas. Initially, the defense presented the

       testimony of the victim of the domestic battery charge. The victim testified before the court that

       defendant did not batter her on January 14, 2013. Following the victim’s sworn testimony,

       defense counsel advised the court that “the State is not objecting to this motion [to withdraw] and

       is actually agreeing that the motion should be granted.”

¶ 10          Defendant also testified before the court and explained that the first time his attorney

       spoke with defendant about the terms of the plea agreement was on February 5, 2013. Defendant

       testified he repeatedly told the public defender that he was innocent and did not wish to plead



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       guilty. However, the public defender instructed defendant to “[j]ust plead guilty so you

       [defendant] can go home today ‘cause it’s a good deal.’ ” 1 According to defendant, his public

       defender also told him, “[I]f you don’t plead guilty, then you’re just going to be sitting in jail

       while nothing happens in your case.” Defendant testified his entire conversation with his

       attorney about the plea agreement lasted for “about three minutes” and took place immediately

       before the court called his case on February 5, 2013.

¶ 11          During closing arguments on the motions to withdraw, the State confirmed defense

       counsel did not spend much time with defendant on the date the court accepted the plea

       agreement. Specifically, the prosecutor told the court, “I would just [submit] to the Court that I

       remember the day of the plea, and [defendant’s] representations as to the amount of time

       [defense counsel] spent with him explaining things are accurate.” After recognizing the court

       properly admonished defendant, the State advised the court, “[T]he State is not objecting to the

       presentation and the granting of this motion [to withdraw].”

¶ 12          However, the court denied defendant’s motions to withdraw his guilty pleas. The court

       found that the court’s admonishments were not defective and defendant’s responses indicated

       defendant fully understood the nature and consequences of his plea agreement.

¶ 13          Defendant filed a timely notice of appeal.

¶ 14                                               ANALYSIS

¶ 15          On appeal, both parties agree defendant filed timely motions to withdraw the guilty pleas,

       which were originally presented to the trial judge as part of a fully-negotiated plea agreement. In

       addition, both parties agree that the State and defense counsel advised the trial court that the

       State was not opposing defendant’s timely motions to withdraw. On appeal, defendant asserts
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               Defendant’s appellate counsel argues on page 10 of his appellate brief that defendant
       was in custody when he entered his guilty plea and he “secured his release after the trial court
       accepted his guilty plea.”
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       the trial court’s decision to deny defendant’s unopposed and timely motions to withdraw his

       guilty pleas should now be reversed in the interest of justice.

¶ 16          We recognize that the court’s decision to deny a motion to withdraw a guilty plea should

       not be disturbed on review absent an abuse of discretion. People v. Pullen, 192 Ill. 2d 36, 40

       (2000). Our research has not revealed any other published decision where the trial court denied a

       timely defense motion to withdraw guilty pleas that the State did not oppose. Consequently, it

       appears that the case at bar raises an issue of first impression.

¶ 17          We begin our analysis by reviewing the general law governing plea agreements.

       Applying the principles of contract law to the plea agreement, the case law recognizes that

       ordinarily the terms of a plea agreement are enforceable against both parties and, therefore,

       neither party can unilaterally renege or modify the agreement. People v. Evans, 174 Ill. 2d 320,

       326-27 (1996). However, this case does not involve a situation where one party seeks to rescind

       the plea agreement over the other party's objection. Here, the State Attorney's Office elected not

       to oppose this defendant’s timely request to rescind the plea agreement by requesting to

       withdraw his recent guilty pleas.

¶ 18          By statute, the State’s Attorney has the exclusive duty and discretion to commence and

       prosecute all criminal actions. 55 ILCS 5/3-9005(a)(1) (West 2012). In addition, the State’s

       Attorney is a part of the executive branch of government vested with the discretionary powers of

       an executive officer and “ ‘[t]he sanctity of prosecutorial discretion should not be cavalierly

       discarded.’ ” People ex rel. Thompson v. Anderson, 119 Ill. App. 3d 932, 939 (1983) (quoting

       People v. Thompson, 88 Ill. App. 3d 375, 379 (1980)). It was well within the State's Attorney's

       discretion to decide whether or not to oppose a defendant's request to withdraw his guilty pleas.




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¶ 19          While the prosecutor did not recite the reasoning supporting the prosecutor’s executive

       decision not to contest the defendant’s motions to withdraw, the prosecutor’s good faith is

       evident of record. We note the prosecutor first waited for the victim of the domestic battery to

       provide her sworn testimony to the court, on the record, before advising the court that the State

       would not oppose the defense’s motions to withdraw. Moreover, in her sworn testimony, the

       victim denied a domestic battery occurred, although we recognize there were other independent

       occurrence witnesses.

¶ 20          Based on this unique record, we conclude the court acted unreasonably by refusing to

       allow the timely and unopposed motions to withdraw the guilty pleas. Respectfully, judicial

       discretion should not be exercised to override prosecutorial discretion in the absence of

       compelling reasons for the trial court to do so. After careful review, we cannot discern any

       compelling reasons for the trial judge’s decision in this case.

¶ 21          We conclude the court’s ruling constituted an abuse of discretion and reverse that

       decision. We remand with directions for the trial court to allow the motions to withdraw the

       guilty pleas, vacate defendant’s convictions subject to this appeal, reinstate all dismissed

       charges, and return the parties to the status quo prior to the court’s decision approving the fully-

       negotiated plea agreement.

¶ 22                                             CONCLUSION

¶ 23          For the foregoing reasons, we reverse the trial court’s denial of defendant’s motions to

       withdraw his guilty pleas, vacate the judgment, and remand for further proceedings consistent

       with this order.

¶ 24          Reversed and remanded.




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