                                2016 IL App (1st) 133812
                                      No. 1-13-3812
                                Opinion filed June 17, 2016

                                                          FIFTH DIVISION

                                       IN THE
                             APPELLATE COURT OF ILLINOIS
                                   FIRST DISTRICT


     THE PEOPLE OF THE STATE OF            )       Appeal from the Circuit Court
     ILLINOIS,                             )       of Cook County.
                                           )
          Plaintiff-Appellee,              )
                                           )
          v.                               )       No. 12 CR 5877
                                           )
     ANTONIO WILLIAMS,                     )       The Honorable
                                           )       James B. Linn,
          Defendant-Appellant.             )       Judge, presiding.



                 JUSTICE GORDON delivered the judgment of the court, with opinion.
                 Justices Lampkin and Burke concurred in the judgment and opinion.


                                         OPINION



¶1             After a bench trial, defendant Antonio Williams was found guilty and

       sentenced to concurrent 14-year terms each for armed robbery and aggravated

       vehicular hijacking, and to an additional concurrent 5-year term for aggravated

       unlawful restraint.
     No. 1-13-3812


¶2           On this direct appeal, both defendant and the State ask this court to

       reinstate defendant’s negotiated plea agreement. Prior to defendant’s bench

       trial, the trial court had already accepted defendant’s guilty plea and sentenced

       defendant pursuant to a negotiated plea agreement between defendant and the

       State. Without first vacating the guilty plea, the trial court directed the parties to

       proceed to trial. After the bench trial, defendant was convicted of more offenses

       and received a higher sentence. For the following reasons, we reinstate the plea

       agreement and correct the mittimus to reflect the negotiated sentence.

¶3                                    BACKGROUND

¶4           An indictment charged defendant with two counts of armed robbery, two

       counts of vehicular hijacking, possession of a stolen motor vehicle, burglary,

       and two counts of aggravated unlawful restraint. The indictment alleged that, on

       January 11, 2012, defendant forcibly took money and a vehicle from James

       Cooper. Separate counts alleged that the offenses were committed with a

       firearm and with a dangerous weapon other than a firearm. Defendant who was

       born on March 13, 1993, was 18 years old at the time of these offenses.

¶5           On March 5, 2013, defendant requested a Rule 402 conference which

       was held and then continued to March 20, 2013. Ill. S. Ct. R. 402 (eff. July 1,

       1997) (governing plea negotiations and guilty pleas). On March 20, 2013,
                                               2
     No. 1-13-3812


       defendant pled guilty to counts II and IV, which were for armed robbery and

       aggravated vehicular hijacking.

¶6            Count II of the indictment charged defendant with armed robbery with a

       dangerous weapon other than a firearm, “to wit: a bludgeon,” in violation of

       section 18-2(a)(1) of the Criminal Code of 1961 (720 ILCS 5/18-2(a)(1) (West

       2010)).1 Concerning the sentence for this offense, the statute states: “Armed

       robbery in violation of subsection (a)(1) is a Class X felony.” 720 ILCS 5/18-

       2(b) (West 2010).2 For a Class X felony, “[t]he sentence of imprisonment shall

       be a determinate sentence of not less than 6 years and not more than 30 years.”

       730 ILCS 5/5-4.5-25(a) (West 2010).3

¶7            For count IV, defendant was charged with aggravated vehicular hijacking

       with a dangerous weapon, other than a firearm, “to wit: a bludgeon,” in

       violation of section 5/18-4(a)(3) of the Criminal Code of 1961. 720 ILCS 5/18-


          1
           The Criminal Code of 2012 did not take effect until January 1, 2013, which
       was almost a year after the alleged offense was committed. However, this
       particular statutory section has been in effect, unchanged, since January 1,
       2000.

          2
          This statutory language has also been in effect, unchanged, since January 1,
       2000.

          3
           This quote is the same as in the current statute which took effect on June
       22, 2012. 730 ILCS 5-4.5-25(a) (West 2014).
                                            3
     No. 1-13-3812


       4(a)(3) (West 2010). 4 Concerning the sentence, the statute provides:

       “Aggravated vehicular hijacking in violation of subsection (a)(3) is a Class X

       felony for which a term of imprisonment of not less than 7 years shall be

       imposed.” 720 ILCS 5/18-4(b) (West 2010).

¶8            During the plea hearing, the State presented a factual basis for the two

       offenses, and the trial court found defendant guilty on those two counts, stating:

       “I find there’s a factual basis for the plea. I find him guilty on Counts 2 and 4.

       Judgment’s [sic] entered on the findings.” The State then nol-prossed the

       remaining counts. When discussing factors in mitigation and aggravation, the

       assistant State’s Attorney (ASA) observed that defendant had no adult criminal

       history but that he had three juvenile delinquency adjudications for battery. 5

¶9            After listening to factors in aggravation and mitigation, the trial court

       stated:

                 “THE COURT: The government has agreed to dismiss the charges

              involving the firearms–there was an understanding that the defense–



          4
          For a discussion of amendments to section 18-4, which is “Aggravated
       Vehicular Hijacking,” please see footnote 8.

          5
           The presentence report indicated only two adjudications of delinquency, but
       that one of the adjudications was based on two counts.
                                             4
       No. 1-13-3812


               based on a plea of guilty, Counts 2 and 4 will be 12 years in the

               penitentiary.

                  DEFENSE COUNSEL: That’s correct, [Y]our Honor.

                  THE COURT: I will follow that agreement between the parties. I

                  find it within the realm of reason. Credit for 425 days served.

               Statutory DNA ordered. Over the defense objection, costs will be

               satisfied by the time served.”

¶ 10           After stating to the defendant that “you’ve plead guilty and been

         sentenced,” the trial court then admonished defendant concerning his appeal

         rights, including the requirement to file a written motion if he wanted to

         withdraw his plea. The trial court then asked defendant if he had “any questions

         at all,” and defendant responded:

                  “DEFENDANT: I’d like to say something.

                  THE COURT: Sure.

                  DEFENDANT: People who rape little girls get lesser time than I’m

               getting. I’m getting sentenced for time that people get for trying to kill

               people. A man can shoot a man in the leg, and his case will be a 4 to 15.




                                                5
No. 1-13-3812


               THE COURT: This is very simple. If you don’t want to do this, I’ll

           withdraw–let you withdraw the plea right now. And I’ll set you down for

           trial.

               DEFENDANT: Just give me the time though. It’s already been done.

               THE COURT: You can undo this. Just relax. It’s not personal. I don’t

           know you. They tell me–you’re pleading guilty to jacking cars from

           people.

               DEFENDANT: I’m just saying–at 85 percent off my adult case

           though. It’s plenty of kids running around here right now my age caught

           on attempt murder and comped (sic)[6] out and got 13 at 85, 12 at 85. I’m

           getting the same amount of the time I can get for shooting somebody,

           Joe.[7]

               I didn’t kill nobody and shoot nobody. I didn’t hit this man.

               THE COURT: Did you do the car jacking? You don’t have to resolve

           this. If you think this is too much and unfair, we’ll have a trial. It doesn’t

           matter to me.



     6
         The “(sic)” is present in the original transcript.

     7
         “Joe” is also in the original transcript.
                                             6
No. 1-13-3812


           DEFENDANT: They got they [sic] time without a trial though. Why

        should I have to go through a trial to get something lowered.

           THE COURT: If you don’t think–

           DEFENDANT: Why.

           THE COURT: –they can prove you guilty beyond a reasonable doubt–

           DEFENDANT: Maybe if I would have touched a little girl and got

           lesser time than this.

           THE COURT: Do you want to withdraw your plea? It’s okay with

        me. I see you’re upset. You’re not happy with the agreement. You don’t

        have to agree.

           DEFENDANT: I’m not, definitely not man.

           THE COURT: Well, you can have a trial–would you rather–you want

        to think about it? *** This is what we’re going to do. I’m going to bring

        you back here in a couple days. Let you think this through. If you want to

        withdraw your plea, I will let you withdraw your plea. I will absolutely

        do that. *** So I’m going to accept the plea. I’m going to vacate the

        sentence now. And we’ll go to sentencing in a couple days or we’re

        going to withdraw this plea and start fresh.”


                                        7
       No. 1-13-3812


¶ 11           As the lawyers started discussing a date for the continuance, defendant

         interjected and the following exchange occurred:

                  “DEFENDANT: I’ll take the time. Judge, if I want to see the day of

               light again, I want to be out before my great grandmother pass because

               she real old right now. Just because of that. I’ll take that time.

                  THE COURT: Okay. Put this over till Friday.

                  DEFENSE COUNSEL: Thank you.

                  THE COURT: I’m going to bring you back Friday. And I want you to

               think about this because you’re emotional and you’re [a] young guy. And

               I want you to have a chance to think about this and think about exactly

               what you are doing.”

¶ 12           Defendant never filed a motion to withdraw his plea. However, on March

         22, 2013, which was the next court date, defense counsel requested a fitness

         examination and the trial court entered the following two orders.

¶ 13           The first order was entitled a “Consolidated Referral Order,” and it

         directed the “Forensic Clinical Services of the Circuit Court” to evaluate

         defendant for his fitness to stand trial, his sanity and his ability to understand

         his Miranda rights.

¶ 14           The second order stated:
                                                8
       No. 1-13-3812


                  “This cause before the Court, the Court fully advised it is hereby

               ordered:

                  (1) Defendant is incarcerated in Juvenile IDOC custody. Defendant

               has previously been diagnosed with Bi-polar disorder, ADHD and anger

                  issues since the age of seven (7) and hospitalized for the same.

                  (2) Juvenile IDOC shall evaluate and prescribe medications, if

               medically entered.

                  It is so ordered.”

¶ 15           On June 10, 2013, a psychologist filed a letter with the trial court stating

         that he had examined defendant and concluded that defendant was fit to stand

         trial. In a subsequent letter, dated July 24, 2013, the same psychologist

         concluded that defendant was “legally sane at the time of the alleged offense”

         and “was able to understand the Miranda warnings at the time of his arrest.”

¶ 16           After the resolution of the fitness issue, the parties appeared in court on

         July 24, 2013, and the following exchange occurred:

                  “THE COURT: Bench or jury?

                  DEFENDANT: I am taking my time.




                                               9
No. 1-13-3812


           DEFENSE COUNSEL: I don’t understand. Do you want to plead

        guilty?

           DEFENDANT: Yeah, I will plead guilty.

           DEFENSE COUNSEL: As the Court is aware, we previously

        attempted–

           THE COURT: We conferenced this?

           DEFENSE COUNSEL: Yes, we did. We were in the middle of a plea.

           THE COURT: Does this require a reducer or an amendment from the

        Government?

           ASA: Give me one moment.

           DEFENSE COUNSEL: Why don’t we pass on it?

           THE COURT: We can do it.

           DEFENSE COUNSEL: Judge, I believe it was on Count–

           THE COURT: Was it Count 2?

           ASA: Judge, I show it was for Count 2 and Count 4.

           THE COURT: Are you still willing to conference and–

           ASA: Yes, Judge.

           THE COURT: –move forward on those two counts?

                                     10
       No. 1-13-3812


                   ASA: Yes, Judge.”

¶ 17            The case was then passed and recalled. Although the ASA had indicated

         before the break that the State was willing to “move forward” on the two counts

         of the plea agreement, when the parties returned the ASA stated that the State

         no longer wished to adjust the charges:

                   “THE COURT: There had previously been a 402 conference. The

                Government had been willing to adjust some of the charges. A plea did

                not go down on the last court date.

                   ASA: It’s not going down at all.

                   THE COURT: The Government does not wish to adjust the charges

                anymore. That is their right.

                   DEFENSE COUNSEL: There’s an amendment to aggravated

                vehicular hijacking with a firearm.[8] That was to be removed. That




            8
              It is unclear what amendment defense counsel is referring to. Defendant
         committed the offense on January 11, 2012. There were no amendments to the
         aggravated vehicular hijacking statute (720 ILCS 5/18-4 (West 2014)) between
         January 1, 2000, and January 1, 2013. Effective January 1, 2013, the statute was
         amended only to make grammatical changes. Thus, for example, instead of
         stating “[a]ggravated vehicular hijacking in violation of subsection (a)(3),” the
         statute was edited down to read simply “a violation of subsection (a)(3).”
         Compare 720 ILCS 5/18-4 (West 2010) (eff. Jan. 1, 2000), with 720 ILCS 5/18-
                                              11
       No. 1-13-3812


               provision has since gone out, meaning that it would be prohibited to

               assign a 12 year sentence in exchange for the plea to armed robbery and

               agg. [sic] vehicular hijacking. The minimum would consequently now

               [be,] if the defendant were interested in pleading, which he is not, 21

               [years].”

¶ 18           During the above-quoted exchange, the trial court stated: “A plea did not

         go down on the last court date.” However, defendant’s guilty plea was, in fact,

         taken and accepted by the trial court and never vacated. Also, the other counts

         were nol-prossed by the State on the prior date.

¶ 19           The trial court then inquired whether discovery was complete, and the

         ASA stated that it was. The trial court then asked “[b]ench or jury?” and

         defense counsel responded “[b]ench.” The trial court and the attorneys then set

         the case for trial on September 9, 2013. However, on September 9, 2013, the

         State failed to bring defendant, who was in custody, to the courthouse, so the

         trial was continued by agreement to October 2, 2013.

¶ 20           On October 2, 2013, defendant signed a written waiver waiving his right

         to a jury, and a bench trial began. At the conclusion of the State’s case on


         4 (West 2014) (eff. Jan. 1, 2013). In any event, defendant pled guilty after the
         amendment was made which implemented these grammatical changes.
                                              12
       No. 1-13-3812


         October 17, 2013, defendant moved for a direct finding and the trial court

         granted his motion with respect to counts I, III and VII, which all alleged the

         use of a firearm. After hearing argument, the trial court found defendant guilty

         of: count II, armed robbery with a dangerous weapon other than a firearm;

         count IV, aggravated vehicular hijacking with a dangerous weapon other than a

         firearm; count V, possession of a stolen motor vehicle; count VI, burglary; and

         count VIII, aggravated unlawful restraint with a dangerous weapon other than a

         firearm. The trial court then stated that “Counts 5 and 6 will merge into Count

         4,” and that “Count 8 will merge into counts 2 and 4.”

¶ 21           On November 18, 2013, defense counsel filed a posttrial motion which

         claimed, among other things, that count VIII, for unlawful restraint, should not

         have resulted in a separate conviction. The trial court had announced at the end

         of the bench trial that the count would merge with counts II and IV.

¶ 22           After denying this posttrial motion, the trial court sentenced defendant on

         November 18, 2013, to concurrent 14-year terms each for count II, armed

         robbery, and count IV, aggravated vehicular hijacking, and to an additional

         concurrent 5-year term for count VIII, aggravated unlawful restraint. The trial

         court stressed that “[a]ll sentences will run concurrently.” As the trial court had

         previously stated on October 17, 2013, the trial court repeated that it merged
                                               13
       No. 1-13-3812


         count V, for possession of a stolen motor vehicle, and count VI, for burglary,

         into count IV, which was for aggravated vehicular hijacking.9

¶ 23            However, the trial court’s pronouncement on November 18, conflicts

         with its pronouncement on October 17, because on October 17, it stated that

         count VIII would merge into two other counts, while on November 18, it issued

         a sentence for count VIII. Defense counsel asked for leave to file a motion to

         reconsider the sentence, and the trial court replied: “That’s timely filed,

         respectfully denied.” As a result, no written motion was filed.

¶ 24            Defendant filed a notice of appeal on November 18, 2013, and this appeal

         followed.

¶ 25                                     ANALYSIS

¶ 26            On appeal, both the State and the defense ask this court to reinstate the

         negotiated plea agreement. In support, defendant argues: (1) that the trial

         court’s decision to ignore the plea violated his rights under the double jeopardy

         clause; and (2) in the alternative, that the trial court abused its discretion,

         because it disregarded defendant’s wish to keep his plea and because the

         vacatur of judgment lacked any substantive or procedural basis.


            9
             Counts I, III and VII were all previously dismissed after defendant moved
         for a directed finding at the close of the State's case on October 17, 2013.
                                                 14
       No. 1-13-3812


¶ 27           If this court does not reinstate the plea agreement, defendant also argues

         in the alternative: (1) that his convictions for armed robbery and aggravated

         vehicular hijacking should be reduced to simple armed robbery and vehicular

         hijacking; and (2) that his conviction for aggravated unlawful restraint should

         be vacated under the one act, one crime rule, because it arises from the same

         physical act as his convictions for armed robbery and aggravated vehicular

         hijacking.

¶ 28           In response, the State’s appellate brief contains only one point heading,

         which states: “The People agree that defendant’s negotiated guilty plea was

         improperly vacated by the trial court, and the original plea and sentence should

         be reinstated.” In its brief, the State agrees with defendant that double jeopardy

         attached to defendant’s guilty plea and thus barred defendant’s subsequent

         bench trial. The State does not address defendant’s alternative basis for

         restoring the plea agreement, which was that the trial court simply abused its

         discretion. The State also does not address defendant’s arguments in the

         alternative that his convictions should be reduced and that his conviction for

         aggravated unlawful restraint should be vacated.

¶ 29           For the following reasons, we agree with the parties that the plea

         agreement should be restored and we correct the mittimus, entered on
                                               15
       No. 1-13-3812


         November 18, 2013, to reflect convictions for only counts II and IV with

         concurrent sentences of only 12 years each.

¶ 30           First, we vacate the conviction and sentence on count VIII which

         conflicted, not only with the first sentence entered by the trial court on March

         20, 2013, but also with the trial court’s oral pronouncement after the bench trial

         on October 17, 2013, and with the fact that the State had already nol-prossed

         this same count on March 20, 2013. A nolle prosequi by the State “leaves the

         matter in the same condition as before the prosecution commenced.” People v.

         Hughes, 2012 IL 112817, ¶ 23. In order to reinstate a nol-prossed charge, the

         State must either commence a new proceeding or move to vacate the nolle

         prosequi order and reinstate the original charges, prior to a final judgment and

         in the absence of any applicable constitutional or statutory limitations. Hughes,

         2012 IL 112817, ¶¶ 24-25. In the case at bar, the State did neither. Thus, after

         the State nol-prossed count VIII on March 20, 2013, this count was no longer

         pending before the trial court. As a result, we vacate the conviction and

         sentence on count VIII.

¶ 31           As for counts II and IV, defendant does not seek to challenge his

         convictions for them, so long as he receives his agreed-upon sentence. All he

         and the State are seeking on this appeal, with respect to these two counts, is a
                                               16
       No. 1-13-3812


         two-year reduction in his sentence. Ill. S. Ct. R. 615(b) (“On appeal the

         reviewing court may *** reduce the punishment imposed by the trial court

         ***.”). See also People v. Sanderson, 2016 IL App (1st) 141381, ¶ 15 (remand

         is unnecessary, because the appellate court has the authority to direct the clerk

         of the circuit court to correct the mittimus); In re N.H., 2016 IL App (1st)

         152504, ¶ 3; People v. Thompson, 2016 IL App (1st) 133648, ¶ 54 (“This court

         has the authority to order the clerk to correct the mittimus without remand.”);

         People v. Green, 2016 IL App (1st) 134011, ¶ 40 (ordering the mittimus

         corrected to reflect the fact that the trial court had previously merged one count

         into another).

¶ 32           For the following reasons, we decline to decide this sentencing issue on

         double jeopardy grounds, as both parties request. Our supreme court has

         repeatedly instructed its appellate courts to reach constitutional issues only as a

         last resort. In In re E.H., 224 Ill. 2d 172, 178 (2006), for example, our supreme

         court cautioned:

                   “We have repeatedly stated that cases should be decided on

               nonconstitutional grounds whenever possible, reaching constitutional

               issues only as a last resort. [Citations.] Yet our admonitions on this topic

               seem to fall not infrequently on deaf ears. The situation has become so
                                               17
       No. 1-13-3812


               untenable that we have recently taken the somewhat extraordinary step of

               adding to our rules a requirement that before deciding a case on

               constitutional grounds, the court must state, in writing, that its decision

               cannot rest upon an alternate ground. [Citation.] We have also spelled out

               that we may ‘summarily vacate and remand’ any circuit court judgment

               which fails to comply with this or any other provision of our new Rule

               18.”

¶ 33           Illinois Supreme Court Rule 18 provides, in relevant part, that a court

         must state “that the finding of unconstitutionality is necessary to the decision or

         judgment rendered, and that such decision or judgment cannot rest upon an

         alternate ground.” Ill. S. Ct. R. 18(c)(3) (eff. Sept. 1, 2006).

¶ 34           Nonetheless, both parties in the case at bar plunge first and foremost into

         constitutional waters. We will not make the same mistake.

¶ 35           In the case at bar, defendant stated to the trial court that he thought his

         negotiated sentence was excessive, although he also stated repeatedly that he

         wanted to take this “time.” Illinois Supreme Court Rule 604 governs what a

         defendant, who thinks his sentence is excessive, must do to challenge his

         sentence:



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       No. 1-13-3812


                 “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. The motion shall be in writing and

                 shall state the grounds therefor.” (Emphasis added.) Ill. S. Ct. R. 604(d)

                 (eff. Feb. 6, 2013).10

¶ 36             Illinois Supreme Court Rule 604 then specifies what his or her defense

         counsel must do:

                 “The defendant’s attorney shall file with the trial court a certificate

                 stating that the attorney has consulted with the defendant *** to ascertain

                 defendant’s contentions of error in the sentence or the entry of the plea of

                 guilty, has examined the trial court file and report of the proceedings of



            10
              This quoted portion of the rule is still the same as when defendant pled
         guilty on March 20, 2013. Compare Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016),
         with Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).
                                                  19
       No. 1-13-3812


                 the plea of guilty, and has made any amendments to the motion necessary

                 for adequate presentation of any defects in those proceedings.”

                 (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).11

¶ 37             Generally, the decision whether to allow a defendant to withdraw a guilty

         plea pursuant to Illinois Supreme Court Rule 604(d) is left to the sound

         discretion of the trial court; and we will not reverse this decision on appeal

         absent an abuse of that discretion. People v. Maxey, 2015 IL App (1st) 140036,

         ¶ 42 (citing People v. Hughes, 2012 IL 112817, ¶ 32). “An abuse of discretion

         occurs only when the trial court’s decision is arbitrary, fanciful, or unreasonable

         or where no reasonable person would take the view adopted by the trial court.”

         Seymour v. Collins, 2015 IL 118432, ¶ 41. However, this deferential standard of

         review is premised on the assumption that defendant has, in fact, moved the

         trial court to withdraw his or her guilty plea in accord with Rule 604(d).

¶ 38             In the case at bar, there was no written motion by defendant and no

         certificate filed by defense counsel, as Rule 604(d) requires. There was not even


            11
              This quoted portion of the rule is still substantially the same as when
         defendant pled guilty. However, today the rule permits a defense counsel to
         consult with his or her client “either by phone, mail, electronic means or in
         person,” whereas in 2013 it stated that he or she must consult “either by mail or
         in person.” Compare Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016), with Ill. S. Ct. R.
         604(d) (eff. Feb. 6, 2013).
                                              20
       No. 1-13-3812


         a formal decision by the trial court to vacate the earlier plea. The parties and the

         trial court proceeded upon the mistaken recollection that the guilty plea had not

         been taken when, in fact, it had been.

¶ 39           On March 20, 2013, during the plea hearing, the State presented a factual

         basis for the two offenses, and the trial court found defendant guilty on those

         two counts, stating: “I find there’s a factual basis for the plea. I find him guilty

         on Counts 2 and 4. Judgment’s [sic] entered on the findings.” The trial court

         then sentenced defendant pursuant to the agreement and stated to defendant that

         “you’ve plead guilty and been sentenced.” Even after defendant complained

         that his sentence was excessive, the trial court still ruled: “I’m going to accept

         the plea.” Nonetheless, on July 24, 2013, the trial court stated: “A plea did not

         go down on the last court date.” However, defendant’s prior guilty plea had

         been taken and accepted by the trial court and was never formally vacated. The

         trial court’s simple disregard of the prior plea was an abuse of discretion.

         “When a court is required by law to exercise its discretion, the failure to do so

         may itself constitute an abuse of discretion, precluding deferential consideration

         on appeal.” Seymour, 2015 IL 118432, ¶ 50 (where “no discretion was

         exercised,” no deferential review is warranted).



                                                  21
       No. 1-13-3812


¶ 40             A trial court may set aside or withdraw a guilty plea on its own motion,

         and without defendant’s consent, when the court has good reason to doubt the

         truth of the plea. People v. Cabrera, 402 Ill. App. 3d 440, 451 (2010) (citing

         People v. Hancasky, 410 Ill. 148, 154-55 (1951)). However, no one on this

         appeal–neither the State nor the defense–has called into question the truth of the

         plea. Defendant did not even protest his innocence before the trial court. Thus, this

         exception is not applicable to this appeal and does not alter our conclusion that an abuse of

         discretion, or a failure to exercise discretion, occurred in this case.

¶ 41                                          CONCLUSION

¶ 42             In sum, we correct the mittimus, entered by the trial court on November

         18, 2013, to reflect convictions for only counts II and IV and to reflect

         concurrent sentences for these two counts of only 12 years each.

¶ 43             First, we vacate the conviction and sentence on count VIII which

         conflicted: (1) with the first sentence entered by the trial court on March 20,

         2013; (2) with the trial court’s oral pronouncement after the bench trial on

         October 17, 2013; and (3) with the fact that the State had already nol-prossed

         this same count on March 20, 2013.

¶ 44             Second, we affirm defendant’s convictions on counts II and IV, but



                                                       22
       No. 1-13-3812


         reduce his concurrent sentences for these two counts from 14 years to 12 years.

¶ 45           Affirmed in part; reversed in part; mittimus corrected.




                                              23
