In Illinois, everyone charged with a criminal offense has a right to have their case set for a trail, either in front of a judge, referred to as a bench trail, or a jury. At a jury trial, it is twelve persons from the community that decide the question of guilt or innocence, whereas at a bench trail, it is a judge sitting alone that makes that determination. Only the Defendant who is charged can decide which type of trial they will receive. The prosecutor, the judge, and even the Defendant’s own attorney cannot force the Defendant to accept a bench trial over a jury trial, or vice-versa.
At a trial, the Defendant does not have to prove anything and the State must prove each element of the offense beyond a reasonable doubt. If the state falls short of their burden of proof, even on a single element, then the trier of fact is required by law to return a verdict of not guilty. With such a high burden on the State to prove their case, it would stand to reason that every person charged with a crime would ask to have their case set for trial. However, the majority of cases in Illinois, upwards of 90 percent, never go to trial and are resolved through a negotiated plea with the State’s Attorney’s Office.
If you are charged with a criminal offense, there is a lot to consider before deciding to set your case for a trial. Some understanding of the legal system and how sentencing works can aid in that decision.
PLEA AGREEMENT
A plea agreement is an agreement reached between the Defendant and the Prosecution on some or all of the terms about a particular sentence. This agreement is presented to the court and the Judge is required to either accept the agreement or reject it. The Judge is not allowed to substitute her own sentence in place of the agreed terms. Should the plea agreement be accepted, that would become the order of the court and the Defendant would be immediately subject to the terms of the order. Should the agreement be rejected, the parties could either present a modified agreement to the court or set the case for trial.
The advantage of entering into a plea agreement is the Defendant will know all the terms of the sentence prior to a sentencing hearing, should the court accept the agreement. This can remove uncertainty from the process. Additionally, negotiated pleas usually involve the dismissal of companion charges which can remove mandatory minimum sentencing, mandatory consecutive sentencing, or collateral consequences associated with being found guilty of certain charges. Whereas if the Defendant decides to take his case to trial and is found guilty, it would be up to a judge to sentence the Defendant on all charges for which he was found guilty. The Judge is allowed to impose any sentence that is within the sentencing range for the offense. Even on misdemeanor offenses, this could involve jail time up to a year, a term of probation up to two years, fines, public service work, treatment, etc. For felony offenses, a Defendant may be sentenced to the Department of Corrections or placed on a term or probation or conditional discharge.
MANDATORY CONSECUTIVE SENTENCING
The majority of cases in Illinois are subject to concurrent sentencing, which means the sentences may be served at the same time. However, there are certain situations where a Defendant will be required to serve his sentences consecutively instead of concurrently. Some of these offenses include: aggravated criminal sexual assault, predatory criminal sexual assault, possession of child pornography, and any felony offense that was committed while the defendant was out on bond for a separate felony offense.
For example, when a defendant is charged with possession of child pornography, each image will be considered a separate count. If the Defendant sets his case for a trial and is found guilty on 5 counts, then the judge would sentence the Defendant on each of the counts, and because of consecutive sentencing, the sentence for the second count would not begin until the sentence for the first count has been served. For instance, if each count is a class 1 felony, the sentencing range will be between 4-15 years for each count. So the minimum sentence will be 20 years in the Department of Corrections and the maximum would be 75 years.
REJECTING A PLEA MAY LEAD TO ENHANCED CHARGES
When a prosecutor conveys an offer, the Defendant may accept the offer, make a counteroffer, or reject the offer and set the case for trial. Should the Defendant reject the offer, it is often the policy of most State’s Attorney’s Offices to revoke all offers and refuse to negotiate from that point forward. Additionally, it may be within the power of the State’s Attorney to bring additional charges or even enhance a current charge to a felony, should the Defendant refuse to accept a plea deal.
For example, if a defendant is charged with DUI and driving while uninsured, the prosecutor may offer court supervision on both charges with a fine and alcohol treatment. Should the Defendant reject the offer, the prosecutor could then enhance the charge to a felony because committing a DUI while uninsured in Illinois, even on a first offense, is considered a class 4 felony. Should the charge get enhanced, and the Defendant were to lose at trial, the Defendant would receive a felony conviction and have his driver’s license revoked.
In this example, the prosecutor may enhance the case to a felony because there was a driving while uninsured charge associated with the DUI. Had that not been the case, the prosecutor would not have been able to enhance the charge to a felony, but they could have still revoked their offer and refused to negotiate. This could eventually lead to a conviction for the misdemeanor DUI and a revocation of driving privileges. However, had this hypothetical Defendant accepted the offer of court supervision, there would be no conviction, assuming successful completion of the sentence, and no revocation of the Defendant’s driving privileges.
TRIAL TAX
Should a case go to trial and a verdict of guilty is returned, the case would proceed to a sentencing hearing, whereby the trial judge would determine the defendant’s sentence. At a sentencing hearing, both the prosecution and the defendant may present evidence and make recommendations to the court about what they deem to be an appropriate sentence, but none of these recommendations are binding on the court. The judge may sentence a defendant to a harsher sentence than what the prosecution is asking for, or the judge may go along with the defendant’s request to impose the minimum sentence. When considering sentencing, the court will look at the evidence presented at trail and the sentencing hearing, consider the Defendant’s statement in allocution, and apply the statutory factors in aggravation and mitigation as codified in 730 ILCS 5/5-5-3.
Depending on the evidence presented at trial, the sentencing judge may consider the defendant’s unwillingness to take a plea as them not wanting to take responsibility for their actions. This can lead the sentencing judge to impose a harsher sentence than what the prosecution originally offered. Lawyers commonly refer to this as a “Trial Tax”.
Before rejecting a plea and setting a case for trial, its important to get advice from a lawyer who is knowledgeable about the courtroom, the judge, the prosecutor, and whether the current pending charges may be enhanced.
SOME DISPOSITIONS AREN’T AVAILABLE AFTER TRAIL
While the sentencing ranges for criminal charges do not change after a defendant is found guilty at trial, there are certain programs that may only be available to a defendant prior to their case going to trail. Some of these programs are listed below:
Diversion programs – These are programs that are unique to the county that is prosecuting the case and are not available in all counties in Illinois. These programs usually involve the Defendant admitting guilt up front and performing treatment or public service work prior to entering a plea of guilty with the court. The benefit of these programs is that upon successful completion, the criminal charges will be dismissed by the state and the case would be immediately eligible to be expunged.
Specialty Courts – Should there be a significant nexus between the criminal behavior alleged and an addiction to drugs or alcohol, an underlying mental health condition, or PTSD suffered during the course military service, the defendant may be eligible for a specialty court. These types of courts are usually reserved for more serious felony charges that have the potential for very long terms in the Department of Corrections. These are intensive programs that often involve reporting to court every couple of weeks for several years, but upon successful completion, there is usually a substantial reduction in the sentence. The availability of specialty courts varies by county and are usually only available with the consent of the State’s Attorney.
Second chance probation – This is a special probation available for certain enumerated felony cases. With this probation, the defendant would enter a plea of guilty with the court, however, a judgment of conviction would not enter on the defendant’s record and the case would be continued for 2 years. If the Defendant successfully completes all the terms of the probation, the charge would be dismissed. This type of probation is only available with the consent of the State’s Attorney.
Written by Attorney Jonathan James
Rockford Criminal Defense Attorney