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THIRD DIVISION 

FILED: June 6, 2001

PRESIDING JUSTICE HALL delivered the opinion of the court:

The defendant, Marcus Bates, appeals from the dismissal of hispetition for relief pursuant to the Post-Conviction Hearing Act(the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The circuitcourt of Cook County found that there was no merit to thedefendant's allegations. The defendant appeals. We reverse theorder of the circuit court and remand for further proceedings.

On July 19, 1991, the defendant, then 15 years old, wascharged as an adult with two counts of first degree murder, felonymurder, conspiracy to commit first degree murder, conspiracy tocommit armed robbery and attempted armed robbery. On February 14,1992, the State dismissed the conspiracy-to-commit-first-degree-murder charge. On February 19, 1992, the defendant pleaded guiltyto the three murder counts and the attempted-armed-robbery countand was sentenced to terms of 50 years for murder and 15 years forattempted armed robbery. The sentences were to be servedconcurrently. On March 4, 1992, after pronouncing sentence, thetrial court admonished the defendant as follows:

"I will advise you that you have a right of appeal. Beforeyou may perfect that appeal, Mr. Bates, you or someone on yourbehalf must file within 30 days from today a paper, and thatpaper service is called a motion. In that motion, you mustdemonstrate why I should give you leave or permission towithdraw your plea of guilty. If I grant your motion, you mayagain be prosecuted for first degree murder, conspiracy tocommit murder and attempt armed robbery once again ***."

The defendant did not file any postplea motions, nor did hefile an appeal from his convictions and sentences. However, onSeptember 29, 1998, he filed a postconviction petition in which healleged that the sentences imposed were excessive and that thetrial court did not consider his rehabilitative potential. He alsofiled a motion for leave to file a late petition. As set forth inthe petition and the motion, the defendant maintained that his latefiling should be excused because there are no provisions forjuveniles under the Act and because he was originally confined toa juvenile facility and lacked legal assistance and access to a lawlibrary. The trial court denied the petition solely on the basisthat it lacked merit.

At the outset, the State contends that the defendant'spetition was not filed in accordance with the limitation periodsset forth in the Act, and since the defendant failed to demonstratethat his failure to timely file his petition was not due to hisculpable negligence, the trial court properly could have dismissedthe petition on that basis as well.

Since the defendant did not file an appeal in this case, hewas required to file his postconviction petition no later thanthree years from the date of his conviction, or March 4, 1995. See725 ILCS 5/122-1(c) (West 1998). Since the defendant did not filehis petition until over three years after March 4, 1995, the Stateconcludes that his petition is untimely and that its dismissalshould be affirmed.

The State may not raise the issue of timeliness of thepetition for the first time on appeal. People v. Wright, 189 Ill.2d 1, 11, 723 N.E.2d 230, 236 (1999). Our supreme court explainedthat allowing the State to raise the issue for the first time onappeal prevents a petitioner from having the opportunity to amendhis petition to include facts showing that his failure to timelyfile his petition was not due to his culpable negligence. Wright,189 Ill. 2d at 11, 723 N.E.2d at 236. Therefore, the issue of theuntimeliness of the defendant's petition is not properly before us. Likewise, the issue of whether the State has waived the issue as tothe untimeliness of the defendant's petition for purposes offurther proceedings is not properly before us.

We turn now to the merits of the defendant's petition.

The Illinois Post-Conviction Hearing Act provides a mechanismby which those under criminal sentence in this state can assertthat their convictions were the result of a substantial denial oftheir rights under the United States Constitution or the IllinoisConstitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79,701 N.E.2d 1063,1070-71 (1998); see 725 ILCS 5/122-1 (West 1998). The general requirement that a postconviction petitioner set forththe gist of a meritorious claim means that he must allegesufficient facts from which the circuit court could find a validclaim of deprivation of a constitutional right. People v. Arias,309 Ill. App. 3d 595, 597, 722 N.E.2d 1160, 1162 (1999). Theappropriate standard of review is plenary. Coleman, 183 Ill. 2d at389, 701 N.E.2d at 1075.

In his postconviction petition, the defendant alleged that hisconstitutional rights had been violated in that the sentence hereceived was excessive and that the trial court failed to considerhis rehabilitative potential. The State responds that anallegation that a sentence, although within statutory grounds, isexcessive is not cognizable under the Act. See People v.Ballinger, 53 Ill. 2d 388, 390, 292 N.E.2d 400, 401 (1973).

However, on appeal, the defendant has abandoned his excessive-sentence argument and now contends, for the first time, that thetrial court's failure to properly admonish him as to the proceduresfor taking an appeal following his guilty plea violated hisconstitutional rights. The defendant argues that the trial courtincorrectly admonished him that if he wished to appeal from hisguilty plea, he must first move to vacate his guilty plea, which,if successful, would result in the reinstatement of all chargesagainst him, including the one dismissed by the State, when in factthe defendant could have filed a motion to reconsider only hissentence.

Any claim of substantial denial of constitutional rights notraised in the original or amended petition is waived. People v.Davis, 156 Ill. 2d 149, 158, 619 N.E.2d 750, 755 (1993). Wherefundamental fairness so requires, however, strict adherence to therule of waiver may be avoided. Davis, 156 Ill. 2d at 158, 619N.E.2d at 755.

Supreme Court Rule 604(d) sets forth the procedure a defendantmust follow in order to perfect an appeal from a guilty plea. 188Ill. 2d R. 604(d). Supreme Court Rule 605(b) contains theadmonishments the trial court must give to a defendant to assurethat the defendant is aware of the procedures he must follow inorder to perfect an appeal from a guilty plea. 188 Ill. 2d R.605(b).

The defendant entered his plea of guilty on February 19, 1992,and was sentenced on March 4, 1992. At the time of his plea andsentence, Rule 605(b) provided in pertinent part as follows:

"In all cases in which a judgment is entered upon a pleaof guilty, at the time of imposing sentence, the trial courtshall advise the defendant substantially as follows:

***

(2) that prior to taking an appeal he must file in thetrial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacatedand for leave to withdraw his plea of guilty, setting forthhis grounds for the motion ***." 134 Ill. 2d 605(b).Therefore, the trial court's Rule 605(b) admonitions to thedefendant conformed to Rule 605(b) at the time of the defendant'ssentencing.

However, while the trial court's admonishments conformed toRule 605(b) as it was then written, they were not in accordancewith the supreme court's interpretation of Supreme Court Rule604(d) (134 Ill. 2d R. 604(d)) in People v. Wallace, 143 Ill. 2d59, 570 N.E.2d 334 (1991), and People v. Wilk, 124 Ill. 2d 93,529 N.E.2d 218 (1988). In Wilk, the supreme court held that adefendant wishing only to challenge his sentence on appeal neednot file a motion to withdraw his guilty plea. Wilk, 124 Ill. 2dat 110, 529 N.E.2d at 224. Instead, if a defendant iscomplaining only about his sentence, it is sufficient that hefile a motion attacking only the sentence prior to appeal. Wallace, 143 Ill. 2d at 60-61, 570 N.E.2d at 335. Following thedecisions in Wallace and Wilk, Rule 604(d) (as well as Rule605(b)) was amended to allow the filing of a motion to reconsiderthe sentence where only the sentence is being challenged. Peoplev. Evans, 174 Ill. 2d 320, 331, 673 N.E.2d 244, 249 (1996).

The State points out that failure to advise a defendant ofthe right to an appeal is not a denial of due process or of equalprotection. People v. Cox, 53 Ill. 2d 101, 106, 291 N.E.2d 1, 4(1972) overruled on other grounds by Davis, 156 Ill. 2d 149, 619N.E.2d 750. However, in this case, the trial court went furtherthan failing to advise the defendant of his right to appeal. Thetrial court wrongly advised the defendant that in order toexercise his right to an appeal, he would have to risk thereinstatement of the dismissed charges, when, in fact, he couldhave moved for reconsideration of his sentence without adetrimental impact on his guilty plea.

Although not in the context of a postconviction proceeding,other districts have found that "misinformation" from thesentencing judge, even though the admonitions were in compliancewith Rule 605(b), would be violative of a defendant's rights todue process if the result would be the dismissal of thedefendant's appeal. See People v. Wright, 311 Ill. App. 3d 1042,725 N.E.2d 811 (5th Dist 2000); People v. Foster, 308 Ill. App.3d 286, 719 N.E.2d 1163 (3rd Dist. 1999); People v. Doguet, 307Ill. App. 3d 1, 716 N.E.2d 818 (2nd Dist. 1999).

In Wright, the defendant received the admonishments as setforth in Rule 605(b) but, as the court noted, for a period of time,Rule 605(b) did not conform with the decisions of our supremecourt. Wright, 311 Ill. App. 3d at 1045, 725 N.E.2d at 813. Whileacknowledging the holding in Cox, the court noted that in a morerecent case, the supreme court had taken another look at therelationship between Rule 605(b) and Rule 604(d). Wright, 311 Ill.App. 3d at 1046, 725 N.E.2d at 814-15. The Wright court observedthat, in People v. Foster, 171 Ill. 2d 469, 665 N.E.2d 823 (1996),our supreme court held that the rules that govern appeals fromguilty pleas are tied to procedural due process. The Wright courtstated as follows:

"Foster teaches that when a guilty plea defendant is not toldof the Rule 604(d) prerequisites to an appeal, the appellatecourt cannot dismiss for lack of jurisdiction but must insteadremand for proceedings consistent with Rule 604(d). Thesupreme court's reasoning is instructive:

'Since a defendant's failure to comply with the written-motion requirements of Rule 604(d) can result in the lossof the right to direct appeal, this court adopted Rule605(b) as a necessary corollary to Rule 604(d).[Citation.] Rule 605(b) mandates that trial judgesadmonish defendants regarding the requirements of Rule604(d), thus ensuring that the ramifications ofnoncompliance comport with due process. [Citation.]Having been instructed regarding Rule 604(d)'s mandates,a defendant cannot then argue procedural unfairness whenhe suffers the ramifications of his noncompliance.' (Emphasis added.) [Citation.]" Wright, 311 Ill. App. 3d at 1047, 725 N.E.2d at 815.

That the failure to give Rule 605(b) admonishments is an issueof constitutional magnitude has been reinforced by the recentactions taken by our supreme court with regard to People v. Jogi,308 Ill. App. 3d 302, 719 N.E.2d 798 (1999). Some judicial historyis necessary.

Jogi sought postconviction relief on the basis that he wasdenied procedural due process by the trial court's failure toincorporate its Rule 605(b) admonitions with the principlesannounced in by the supreme court in Evans. See Evans, 174 Ill. 2dat 332, 673 N.E.2d at 250 (motion-to-reconsider-sentence clause ofRule 604(d) applies only to "open" guilty pleas, not negotiatedagreements). Jogi had entered into a partially negotiated pleapursuant to which the State agreed to request a particularsentencing range. The trial court imposed a sentence fallingwithin the recommended range. Jogi failed to move to withdraw hisguilty plea but, instead, filed a motion to reconsider hissentence. The reconsideration motion was denied, and Jogichallenged the propriety of his sentence on review. Relying onEvans, the Fourth District did not reach the merits of Jogi'sappeal because he had not moved to withdraw his plea of guiltyprior to filing an appeal. Jogi, 308 Ill. App. 3d at 303, 719N.E.2d at 800 (Jogi I).

Jogi thereafter sought relief under the Act claiming that hewas denied due process by the trial court's failure to include theruling of Evans in its Rule 605(b) admonishments. Like thedefendant in the present case, Jogi argued that due processrequired the trial court to incorporate its mandated admonitionswith supreme court case law modifying the procedure mandated byRule 604(d). Following an evidentiary hearing, the petition wasdenied.

On appeal from the denial of his petition, the Fourth Districtrejected Jogi's due process claim. Noting that although strictcompliance with Rule 605(b) is mandatory, the court cited priorsupreme court decisions holding that the failure to give Rule605(b) admonitions did not rise to the level of constitutionalerror. Jogi I, 308 Ill. App. 3d at 305, 719 N.E.2d at 801, citingCox, 53 Ill. 2d at 106, 291 N.E.2d at 4. On this basis, the courtconcluded:

"[e]ven if Evans modifies Rule 604(d), the failure to give anadmonition consistent with Evans is not constitutional errorand did not violate [Jogi's] rights to due process and appeal. As a corollary matter, the failure to give an admonition notrequired by Rule 605(b) is also not a violation of [Jogi's]right to due process and to appeal. [Citation.]." Jogi I, 308Ill. App. 3d at 305, 719 N.E.2d at 802.

Since the trial court's failure to admonish Jogi in accordance withEvans did not rise to the level of constitutional error, the courtaffirmed the denial of Jogi's request for constitutional relief. Jogi I, 308 Ill. App. 3d at 305, 719 N.E.2d at 802.

Upon Jogi's petition for leave to appeal, our supreme courtvacated the Fourth District's decision and directed the court toreconsider its decision in light of People v. Diaz, 192 Ill. 2d211, 735 N.E.2d 605 (2000). People v. Jogi, 191 Ill. 2d 547, 738N.E.2d 906 (2000). Diaz pleaded guilty in exchange for thedismissal of certain charges and certain sentencing considerations. The trial court admonished him that he had to file either a motionto withdraw his guilty plea or a motion to reconsider sentenceprior to taking an appeal. Diaz filed a motion to reconsider hissentence but did not move to withdraw his guilty plea. His motionto reconsider was denied, and he appealed.

On appeal, a majority of the appellate court held that Evansdid not require a defendant to move to vacate his guilty plea wherethe State did not agree to recommend a specific sentence as part ofthe plea agreement and reversed and remanded the case based uponthe merits of sentencing issues Diaz raised. Diaz, 192 Ill. 2d at212-13, 735 N.E.2d at 606.

On appeal by the State, the supreme court disagreed andvacated the appellate court's decision. However, the court furtherdetermined that since neither the trial court nor Diaz had had thebenefit of its ruling in Evans at the time of the trial court'sadmonitions, "fundamental fairness" required a remand withinstructions that the trial court properly admonish Diaz in lightof Evans and allow him the chance to withdraw his plea. Diaz, 192Ill. 2d at 227-28, 735 N.E.2d at 613.

Returning to the Jogi saga, the Fourth District wasunpersuaded by Diaz, noting that, unlike the situation in Diaz, in Jogi's case, the decision in Evans had been announced at a timewhen Jogi could have filed a motion to withdraw his plea of guilty. The court further noted that Diaz did not hold that the trialcourt's giving of admonitions in conformance with Rule 605(b)amounted to a violation in light of Evans and its progeny. Peoplev. Jogi, 317 Ill. App. 3d 532, 537-38, 740 N.E.2d 88, 92 (2000)(Jogi II).

However, in a supervisory order issued April 4, 2001, thesupreme court vacated the Fourth District's decision in Jogi IIand, without further explanation, remanded the cause to the trialcourt "with directions to enter an order allowing [Jogi] anopportunity to file a motion to withdraw [his] guilty plea." People v. Jogi, No. 90764 (April 4, 2001).

The supreme court's opinions in Foster and Diaz, as well asits handling of the Fourth District's decisions in Jogi I and JogiII, lead us to conclude that the defendant's claim forpostconviction relief in the instant matter possessesconstitutional merit. Foster clearly indicates that a criminaldefendant's due process rights are implicated when Rule 605(b)admonitions are given. What can be gleaned from the supremecourt's opinion in Diaz and its handling of the Jogi decisions isthat fundamental fairness further requires that a criminaldefendant be given admonitions that completely and accuratelyconvey the procedural mandates outlined by Rule 604(d), which inturn requires the trial judge not only to substantially comply withRule 605(b) as written but to incorporate, when necessary, supremecourt case law that effectively modifies Rule 604(d)'s operation. Procedural unfairness results where the trial court, whilesubstantially conveying the strictures of Rule 605(b), neglects toincorporate pertinent case law rulings and, as a result, thedefendant does not follow the proper procedure in seeking reviewfrom his guilty plea.⁽¹⁾

Rule 605(b) exists to inform criminal defendants of thenecessary procedural requirements outlined in Rule 604(d). Oursupreme court has clearly placed an obligation on trial judges toinstruct defendants, independent of any information provided bytheir attorneys, as to the procedure for appealing from pleas ofguilty. Unfortunately, the version of Rule 605(b) at issue herewas no longer capable of fulfilling its intended purpose in lightof the rulings in Wilk and Wallace. We believe that fundamentalfairness commands that the information related by the trial courtbe legally accurate and not misleading to defendants.

We conclude that the defendant has stated the gist of ameritorious claim of deprivation of a constitutional right and thatthe trial court erred in dismissing his petition as meritless.

The judgment of the circuit court dismissing the defendant'spetition for postconviction relief is reversed, and the cause isremanded for proceedings consistent with the views set forth inthis opinion.

Reversed and remanded with directions.

CERDA and BURKE, JJ., concur.

1. While we are cognizant that the supreme court's orders inJogi lack precedential value (see Scheidler v. Cook CountyOfficers Electoral Board, 276 Ill. App. 3d 297, 657 N.E.2d 1089(1995)) and are not dispositive of the issue presented by thedefendant's appeal, the supreme court's approach in that case isinstructive and cannot be ignored. Undoubtedly, the supremecourt did not agree with the Fourth District's disposition of thedue process issue raised by Jogi's postconviction claim, whichsubstantially mirrors the claim asserted by the defendant here,and was not persuaded by the court's efforts to distinguish Diaz,a case the court certainly believed supported Jogi's position.