                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Snyder, 2011 IL 111382




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Cross-
Court:                     Appellee, v. DEANDRA SNYDER, Appellee and Cross-Appellant.



Docket No.                 111382
Filed                      December 1, 2011


Held                       Where a negotiated plea of guilty to criminal damage to property did not
(Note: This syllabus       encompass sentencing and a restitution order was entered even absent the
constitutes no part of     required advice that this was a possibility, the defendant was not entitled
the opinion of the court   to vacation of that order where plea withdrawal had never been sought
but has been prepared      and was not wanted.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Third District; heard in that
Review                     court on appeal from the Circuit Court of Peoria County, the Hon. Stuart
                           P. Borden, Judge, presiding.


Judgment                   Appellate court judgment affirmed in part and reversed in part; circuit
                           court judgment affirmed as modified.
Counsel on                Lisa Madigan, Attorney General, of Springfield, and Kevin W. Lyons,
Appeal                    State’s Attorney, of Peoria (Michael A. Scodro, Solicitor General, and
                          Michael M. Glick and Erica Seyburn, Assistant Attorneys General, of
                          Chicago, and Patrick Delfino, Terry A. Mertel and Dawn Duffy, of the
                          Office of the State’s Attorneys Appellate Prosecutor, of Ottawa, of
                          counsel), for the People.

                          Samuel L. Snyder, of East Peoria, for appellee.


Justices                  JUSTICE KARMEIER delivered the judgment of the court, with opinion.
                          Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke,
                          and Theis concurred in the judgment and opinion.



                                            OPINION

¶1         Pursuant to a partially negotiated plea, defendant, Deandra Snyder, pled guilty to
      intimidation (720 ILCS 5/12-6(a)(1) (West 2008)) and criminal damage to property (720
      ILCS 5/21-1(1)(a) (West 2008)) and was sentenced to concurrent extended terms of
      imprisonment of 10 and 6 years, respectively, followed by one year of mandatory supervised
      release (MSR). Her sentences were to be served concurrently with each other but
      consecutively to any punishment she received for violating MSR in an unrelated case. She
      was also ordered to pay restitution.
¶2         On appeal, defendant argued that (1) the circuit court of Peoria County erred in imposing
      extended-term sentences on both convictions; (2) her sentence was excessive; (3) the court
      should not have ordered her sentences to be served consecutively to any punishment she
      received for violating MSR in an unrelated case; and (4) the court failed to admonish her
      about the possibility that she would be ordered to pay restitution. The appellate court vacated
      the extended-term portion of her criminal damage to property sentence, reducing the sentence
      for that offense to three years; found that, other than the extended-term sentencing issue, the
      trial court did not abuse its discretion in sentencing her; held that the trial court did not err
      in ordering her sentences to be served consecutively to any punishment she received for
      violating MSR in an unrelated case; and vacated the restitution order because the trial court
      failed to admonish her about the possibility that she would be ordered to pay restitution. 403
      Ill. App. 3d 637.
¶3         We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
      Defendant also seeks cross-relief, arguing that the trial court abused its discretion in
      imposing the maximum 10-year extended-term sentence for intimidation. For the following
      reasons, we reverse that portion of the appellate court’s judgment vacating the restitution
      order and affirm the appellate court’s judgment in all other respects.

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¶4                                       I. BACKGROUND
¶5         On August 20, 2008, defendant, who had been dating Corey Simmons and was seven
       months pregnant with his child, drove to his apartment complex. When she arrived, she saw
       a parked car belonging to Jessica King, who had also been dating Simmons. She got a knife
       from her vehicle and slashed the convertible top and all four tires of King’s car, causing
       $2,891 in damage. When King and Simmons confronted her, she began yelling and swinging
       the knife at them. Eventually, she got in her vehicle and left.
¶6         Defendant was charged with armed violence (720 ILCS 5/33A-2(a) (West 2008)), two
       counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1 (West 2008)), unlawful
       possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), intimidation (720
       ILCS 5/12-6(a)(1) (West 2008)), and criminal damage to property (720 ILCS 5/21-1(1)(a)
       (West 2008)). She agreed to plead guilty to intimidation and criminal damage to property in
       exchange for dismissal of the remaining charges. There was no agreement as to sentencing.
¶7         Before accepting defendant’s guilty plea, the trial court admonished her that she faced
       a minimum of probation and a maximum of extended prison terms of 10 years for
       intimidation and 6 years for criminal damage to property, followed by one year of MSR. The
       court failed to admonish her as to the possibility that she would be ordered to pay restitution
       or fines.
¶8         Defendant’s presentence investigation report indicates that, in June 2007, she pled guilty
       to arson and obstruction of justice, stemming from an incident in which she set fire to King’s
       vehicle. She was sentenced to three years in prison for arson and directed to have no contact
       with King or Simmons. For obstruction, she was sentenced to 30 months of probation and
       ordered to take anger management classes. In January 2008, she was released from prison
       and began serving MSR on the arson conviction. At the time of the present offenses, she was
       in violation of the court’s order prohibiting her from having contact with King or Simmons,
       was on probation for arson, was on MSR for obstruction of justice, and had not yet begun her
       anger management classes. She also had 2005 misdemeanor convictions for theft and
       criminal damage to property and was on probation for those offenses when she committed
       the 2007 arson.
¶9         At the sentencing hearing, the trial court stated that, in imposing sentence, it had
       considered aggravating and mitigating factors. The aggravating factors included defendant’s
       prior criminal history and the fact that she was on probation and MSR when she committed
       the present offenses. The court also emphasized the need to deter others. In mitigation, the
       court noted that defendant had a newborn child and that there was some culpability by King
       and Simmons, who were involved in a “love triangle” with defendant. The court found that
       defendant was a very dangerous person with serious mental and anger management issues
       that needed to be addressed.
¶ 10       After considering the presentence investigation report, counsel’s arguments, evidence in
       aggravation and mitigation, and defendant’s statement in allocution, the court sentenced her
       to concurrent extended terms of imprisonment of 10 years for intimidation and 6 years for
       criminal damage to property, followed by one year of MSR. The sentences were to be served
       consecutively to any punishment she received for violating MSR in the unrelated arson case.


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       She was also ordered to pay $2,891 in restitution. She filed a motion to reconsider sentence
       but did not seek leave to withdraw her guilty plea. Her motion to reconsider sentence was
       denied. She filed a timely notice of appeal.
¶ 11        On appeal, defendant first argued, and the State conceded, that the trial court erred in
       imposing extended-term sentences on both of her convictions. 403 Ill. App. 3d at 639. The
       appellate court agreed and vacated the extended-term portion of her criminal damage to
       property sentence, reducing the sentence on that offense from six to three years. Id. at 640.
¶ 12        Defendant next argued that her sentence was excessive. The appellate court disagreed,
       finding that, other than the extended-term sentencing issue, which was corrected, the trial
       court did not abuse its discretion in sentencing defendant. Id. at 641. The appellate court
       noted that, in determining her sentence, the trial court had properly considered the
       presentence investigation report, defendant’s statement in allocution, counsel’s arguments,
       and the aggravating and mitigating factors. Id. at 640. The appellate court found that prison
       sentences of 10 years for intimidation and 3 years for criminal damage to property were not
       excessive given the significant aggravating factors in the case. Id. at 641.
¶ 13        Defendant next argued that the trial court erred in ordering her sentences to be served
       consecutively to any punishment she received for violating MSR in the unrelated arson case.
       The appellate court disagreed.
¶ 14        Finally, defendant argued that the trial court erred in failing to admonish her as to the
       possibility that she would be ordered to pay restitution. The appellate majority agreed,
       finding that the trial court’s failure to admonish her as to the possibility that she would be
       ordered to pay restitution violated Illinois Supreme Court Rule 402(a)(2) (eff. July 1, 1997).
       Id. at 641. Following the Fourth District’s opinion in People v. Jenkins, 141 Ill. App. 3d 602
       (1986), the appellate majority held that the appropriate remedy for such an error was to
       vacate the restitution order. 403 Ill. App. 3d at 642. The majority reasoned that this court had
       adopted Jenkins’ approach in People v. Whitfield, 217 Ill. 2d 177 (2005).
¶ 15        Justice Schmidt dissented as to the vacatur of the restitution order, noting that the Fourth
       District had impliedly repudiated Jenkins’ holding that a court’s admonishments constituted
       an implied promise; that Whitfield neither referred to nor relied on Jenkins; that Whitfield
       was based on a negotiated plea for a specific sentence, not an open plea; and that, here,
       defendant was not denied the benefit of any bargain with the State because there was no
       agreement as to sentencing. 403 Ill. App. 3d at 642-44 (Schmidt, J., concurring in part and
       dissenting in part). Justice Schmidt would have followed the Second District’s approach in
       People v. Seyferlich, 398 Ill. App. 3d 989 (2010), reasoning that it was not the court’s role
       to bargain with defendant and that if she regretted her plea as a result of the restitution order,
       the proper remedy was to allow her to withdraw her plea. 403 Ill. App. 3d at 645 (Schmidt,
       J., concurring in part and dissenting in part). Justice Schmidt opined that there was no
       indication that defendant was prejudiced or denied real justice as a result of the faulty
       admonition and that vacating the restitution order defeated the legislative purpose of trying
       to make victims whole.
¶ 16        This court allowed the State’s petition for leave to appeal.



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¶ 17                                         II. ANALYSIS
¶ 18                                      A. The State’s Appeal
¶ 19        Rule 402 requires that the trial court give a defendant certain admonishments before
       accepting a guilty plea, including “the minimum and maximum sentence prescribed by law.”
       Ill. S. Ct. R. 402 (eff. July 1, 1997).
¶ 20        In the present case, it is undisputed that the trial court failed to substantially comply with
       Rule 402(a)(2) in that it failed to admonish defendant as to the possibility that she would be
       ordered to pay restitution. The issue on appeal is whether the proper remedy for failing to
       admonish defendant, who entered a partially negotiated guilty plea, as to the possibility that
       she would be ordered to pay restitution is to vacate the restitution order or give her the
       opportunity to withdraw her plea. Here, defendant did not move to withdraw her guilty plea,
       and, at oral argument before this court, defense counsel made it clear that defendant does not
       want to withdraw her plea.
¶ 21        Because this issue concerns the interpretation of a supreme court rule, a question of law,
       our review is de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).
¶ 22        In vacating the restitution order in the present case, the appellate majority relied heavily
       on Jenkins, 141 Ill. App. 3d 602. In Jenkins, the defendant entered an open guilty plea. Id.
       at 604. The trial court admonished him pursuant to Rule 402 before he entered his plea but
       did not mention restitution. The trial court ordered him to pay restitution as part of his
       sentences. On appeal, he argued that his guilty plea must be vacated because he was not
       admonished that his sentences might include restitution. Id. at 608. The Fourth District
       concluded that “the restitution order exceeded the ‘maximum sentence’ of which the
       defendant had been admonished upon entry of his guilty plea.” Id. at 609. Although the
       defendant sought to vacate his plea, the Jenkins court concluded that the appropriate remedy
       was to vacate the restitution order, noting that as long as the restitution order was vacated,
       the sentences imposed were within the limits stated to the defendant before he entered his
       plea.
¶ 23        In his dissent from the appellate majority’s vacatur of the restitution order in the present
       case, Justice Schmidt relied on Seyferlich, 398 Ill. App. 3d 989. In Seyferlich, the defendant,
       who entered an open plea, was admonished that her sentence could include a fine of up to
       $25,000 but not that she could be ordered to pay restitution. Id. at 990. She was ordered to
       pay $46,311 in restitution. On appeal, she argued that the trial court erred in failing to
       admonish her of the possibility of restitution. Citing Jenkins, she argued that the amount of
       restitution must be reduced to $25,000–the maximum financial penalty she was told she
       faced as a result of her guilty plea.
¶ 24        In rejecting her argument, the Second District in Seyferlich explained that the Fourth
       District’s remedy in Jenkins–vacatur of the restitution order–was inappropriate. Id. at 991.
       The Seyferlich court noted that the cases upon which the Jenkins court relied characterized
       the trial court’s admonishments as “implied promises” and viewed the admonishments as
       part of a bargaining process between the court and the defendant. The Seyferlich court
       rejected this view, noting that the admonishments, which are required by Rule 402, are
       designed to ensure that the defendant’s guilty plea is intelligently and understandingly made,

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       as required by Boykin v. Alabama, 395 U.S. 238 (1969). The Seyferlich court noted that it is
       not the trial court’s role to bargain with a defendant to obtain his or her guilty plea.
¶ 25        The Seyferlich court also recognized that the Fourth District’s opinion in People v.
       Harris, 359 Ill. App. 3d 931 (2005), called into doubt the continued viability of its prior
       opinion in Jenkins. Seyferlich, 398 Ill. App. 3d at 991-92. In Harris, the court held that if the
       trial court’s failure to properly admonish a defendant results in the denial of “real justice” or
       in prejudice to the defendant, the reviewing court should vacate the guilty plea. Harris, 359
       Ill. App. 3d at 936. The Harris court noted that the defendant did not seek to vacate his guilty
       plea but, instead, sought the wrong remedy–to amend the sentencing order. Id. at 937.
¶ 26        The Seyferlich court concluded that “[i]f defendant would not have pleaded guilty but for
       the incomplete admonition, her remedy was to seek leave to withdraw her plea.” Seyferlich,
       398 Ill. App. 3d at 992. The court found that Whitfield, 217 Ill. 2d 177, did not dictate a
       different result. Seyferlich, 398 Ill. App. 3d at 992. We agree.
¶ 27        In Whitfield, the defendant entered a negotiated plea to first degree murder in exchange
       for a 25-year prison term. Whitfield, 217 Ill. 2d at 179. The court failed to admonish him that
       he would have to serve three years of MSR in addition to the negotiated prison term. Id. at
       180. He argued that the MSR was not part of the negotiated sentence and that he was entitled
       to enforce his bargain with the State. Id. at 186-87. Recognizing that the MSR could not
       legally be stricken, he argued that, to best approximate his bargain with the State, his prison
       term should be reduced by three years. Id. at 187.
¶ 28        As we noted in Whitfield, the “benefit of the bargain” theory espoused by defendant was
       rooted in Santobello v. New York, 404 U.S. 257 (1971). Whitfield, 217 Ill. 2d at 184-85. In
       Santobello, the Court held that “when a plea rests in any significant degree on a promise or
       agreement of the prosecutor, so that it can be said to be part of the inducement or
       consideration, such promise must be fulfilled.” Santobello, 404 U.S. at 262. In Whitfield, we
       restated that holding as follows: “if a defendant shows that his plea of guilty was entered in
       reliance on a plea agreement, he may have a due process right to enforce the terms of the
       agreement.” Whitfield, 217 Ill. 2d at 189. In Whitfield, we agreed with the defendant’s
       argument that “his constitutional right to due process and fundamental fairness was violated
       because he pled guilty in exchange for a specific sentence, but received a different, more
       onerous sentence.” Id. at 188-89. In granting his request to reduce his prison term, we
       concluded that “adding the statutorily required three-year MSR term to defendant’s
       negotiated 25-year sentence amounts to a unilateral modification and breach of the plea
       agreement by the State, inconsistent with constitutional concerns of fundamental fairness.”
       Id. at 190.
¶ 29        In vacating the restitution order in the present case, the appellate majority, citing
       Whitfield, stated that “[t]he Jenkins approach has been adopted by our supreme court.” 403
       Ill. App. 3d at 642. Despite the appellate majority’s statement to the contrary, we did not rely
       on or adopt Jenkins’ reasoning in Whitfield. Instead, our holding in Whitfield was premised
       on the “benefit of the bargain” analysis, which was appropriate because of Whitfield’s fully
       negotiated plea.
¶ 30        The significant difference between Whitfield and the present case is that Whitfield fully


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       negotiated for a specific prison term, whereas, here, defendant pled guilty with no promise
       as to sentencing. She pled guilty in exchange for the State’s agreement to drop the remaining
       charges against her, which the State has done. Therefore, she has received the full “benefit”
       of her bargain. The remedy in Whitfield was fashioned to give Whitfield the “benefit of the
       bargain” he made with the State. In Whitfield, we concluded that we should give weight to
       Whitfield’s preference, rather than simply giving him an opportunity to withdraw his plea.
       Whitfield, 217 Ill. 2d at 202-03, 205. However, nothing in Whitfield indicates that this
       specific enforcement remedy is available where, as here, a defendant enters a partially
       negotiated plea. Contrary to the appellate court’s holding, Whitfield’s remedy–based on a
       “benefit of the bargain” analysis–is inapplicable to defendant’s partially negotiated plea
       because she received the benefit of the bargain she made with the State.
¶ 31        We agree with and adopt the Second District’s reasoning and conclusion in Seyferlich
       and hold that the appropriate remedy for the trial court’s failure to admonish defendant, who
       entered a partially negotiated guilty plea, as to the possibility that she would be ordered to
       pay restitution is to allow her the opportunity to withdraw her plea. In so holding, we
       expressly overrule the Fourth District’s holding in Jenkins–that the appropriate remedy for
       failing to admonish a defendant who entered a partially negotiated plea as to the possibility
       of restitution is to vacate the restitution order instead of allowing him the opportunity to
       withdraw his plea.
¶ 32        Therefore, as in Seyferlich, if defendant in this case would not have pleaded guilty but
       for the incomplete admonishment, she should have sought leave to withdraw her guilty plea.
       See Seyferlich, 398 Ill. App. 3d at 992. Allowing a defendant a fresh opportunity to decide
       whether to plead guilty, with full knowledge of the possible consequences, adequately
       protects her rights and avoids awarding a windfall due to the trial court’s error. It also
       provides both the parties and the trial court an incentive to ensure adequate admonishments,
       while taking into consideration victims’ rights to obtain restitution.
¶ 33        However, in the present case, we need not determine whether the incomplete
       admonishment requires vacatur of defendant’s guilty plea because, at oral argument, defense
       counsel made it clear that defendant does not want to withdraw her plea. Instead, she seeks
       a remedy to which she is not entitled–vacatur of the restitution order. Accordingly, we
       reverse that portion of the appellate court’s judgment vacating the restitution order.

¶ 34                         B. Defendant’s Request for Cross-Relief
¶ 35       In her request for cross-relief, defendant argues that the trial court abused its discretion
       in imposing the maximum 10-year extended-term sentence for intimidation. We disagree.
¶ 36       A reviewing court gives substantial deference to the trial court’s sentencing decision
       because the trial judge, having observed the defendant and the proceedings, is in a much
       better position to consider factors such as the defendant’s credibility, demeanor, moral
       character, mentality, environment, habits, and age. People v. Alexander, 239 Ill. 2d 205, 212-
       13 (2010). Therefore, a reviewing court may not modify a defendant’s sentence absent an
       abuse of discretion. Id. at 212. An abuse of discretion will be found where “the sentence is
       ‘greatly at variance with the spirit and purpose of the law[ ] or manifestly disproportionate

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       to the nature of the offense.’ ” Id. (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)).
¶ 37       After reviewing the record, we conclude that the trial court did not abuse its discretion
       in sentencing defendant to the maximum 10-year extended-term sentence for intimidation.
       The record demonstrates that the court properly considered the presentence investigation
       report, defendant’s statement in allocution, counsel’s arguments, and the aggravating and
       mitigating factors. The aggravating factors included defendant’s prior criminal history and
       the fact that she was on probation and MSR when she committed the present offenses. The
       court also emphasized the need to deter others. In mitigation, the court noted that defendant
       had a newborn child and that there was some culpability by King and Simmons. The court
       further found that defendant was a very dangerous person with serious mental and anger
       management issues that needed to be addressed. Given the significant aggravating factors in
       this case, we cannot say that the sentence of 10 years’ imprisonment for intimidation “is
       ‘greatly at variance with the spirit and purpose of the law[ ] or manifestly disproportionate
       to the nature of the offense.’ ” See Alexander, 239 Ill. 2d at 212.

¶ 38                                      CONCLUSION
¶ 39      For the foregoing reasons, we reverse that portion of the appellate court’s judgment
       vacating the restitution order and affirm the appellate court’s judgment in all other respects.

¶ 40      Appellate court judgment affirmed in part and reversed in part;
¶ 41      circuit court judgment affirmed as modified.




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