             NOTICE
                                           2014 IL App (5th) 120161
 Decision     filed 09/03/14,
 corrected 9/11/14. The text of                 NO. 5-12-0161
 this decision may be changed
 or corrected prior to the filing of
 a Petition for Rehearing or the                   IN THE
 disposition of the same.

                                       APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     Williamson County.
                                            )
v.                                          )     No. 09-CF-484
                                            )
KIP GOOCH,                                  )     Honorable
                                            )     John Speroni,
      Defendant-Appellant.                  )     Judge, presiding.
________________________________________________________________________

            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

                                                        1
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 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


                                              2
tongue in the victim's vagina.

¶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


                                             3
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


                                               4
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 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 merely because it could or would have weighed
                                              5
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."


                                              6
¶ 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.

¶ 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
                                           7
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.
                                             8
¶ 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 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
                                         9
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
                                          10
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 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.
                                           11
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.




                                              12
                              2014 IL App (5th) 1210161

                                    NO. 5-12-0161

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,          )     Appeal from the
                                              )     Circuit Court of
      Plaintiff-Appellee,                     )     Williamson County.
                                              )
v.                                            )     No. 09-CF-484
                                              )
KIP GOOCH,                                    )     Honorable
                                              )     John Speroni,
      Defendant-Appellant.                    )     Judge, presiding.
________________________________________________________________________

Opinion Filed:         September 3, 2014
________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                 Honorable Melissa A. Chapman, J., and
                 Honorable Judy L. Cates, J.,
                 Concur
________________________________________________________________________

Attorneys        Bryan A. Drew, Jason D. Drew, Katie M. Oehmke, Drew & Drew,
for              P.C., 905 West Washington, Benton, IL 62812
Appellant
________________________________________________________________________

Attorneys        Hon. Charles Garnati, State's Attorney, Williamson County
For              Courthouse, 200 West Jefferson, Marion, IL 62959, Patrick Delfino,
Appellee         Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff
                 Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
                 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
                 62864
________________________________________________________________________
