Prosecutors say a 22-year-old Aurora man should head to trial after an appellate court threw out his guilty plea and prison sentence for the 2005 murder of a substance abuse counselor.
Garang Deng was 14 when prosecutors say he fatally shot Marilyn Bethell, of Aurora, on Halloween 2005.
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Deng, whose case was moved from juvenile to adult court in 2007, eventually pleaded guilty in exchange for a 35-year prison term.
Deng unsuccessfully tried to undo his guilty plea, saying he didn't know he would have to serve 100 percent of the sentence.
A judge denied that request, but an appellate court last summer threw out the guilty plea because the 35-year sentence was less than the 45-year minimum prison term in Illinois for committing a murder with a gun.
"The appellate court held the defendant's sentence and plea agreement are void and remanded this case 'to allow defendant to withdraw his guilty plea and proceed to trial if he chooses to do so.' The appellate court did not send this case back for resentencing," wrote Kane County First Assistant State's Attorney Jody Gleason in a recently filed court motion.
"There is simply no question that in the case of a negotiated plea, when one part of the plea fails, the entire plea fails," the motion continued. "This is why the appellate court held that where the agreed sentence did not conform to the law, the defendant would be permitted to do as he requested -- withdraw his guilty plea."
Kane County Public Defender Kelli Childress has argued that prosecutors failed to follow a procedure for juveniles younger than 15 who plead guilty in adult court. Childress says the case should be transferred back to juvenile court.
Judge Karen Simpson will hear oral arguments from attorneys Oct. 14.
It is unclear whether she will make a decision then, but if Deng's case is moved back to juvenile court he could be set free.
In juvenile court, defendants can only be imprisoned until they turn 21.
Deng is being held at the Kane County jail on $5 million bail, meaning he must post $500,000 to be released while the charges are pending.