Find Legal Information

FOURTH DIVISION
March 11, 2004

JUSTICE GREIMAN delivered the opinion of the court:

Following a guilty plea, defendant Tanesha Gougisha wasconvicted of aggravated battery of a child and sentenced to 12years in prison. On appeal, defendant contends that she enteredinto an open rather than negotiated guilty plea, and thus, hercase must be remanded to the trial court because it failed toproperly admonish her regarding her right to file a motion forreconsideration of her sentence in accordance with Supreme CourtRule 605(b) (188 Ill. 2d R. 605(b)). Defendant also contendsthat her mittimus should be amended to reflect full credit forthe number of days she spent in custody prior to sentencing.

Defendant and codefendant Heywood Moses⁽¹⁾ were each chargedwith attempted first degree murder, aggravated battery of a childand two counts of aggravated battery based upon their three-daybeating of defendant's 18-month-old daughter. In response to aninquiry by the court at the January 11, 2002, joint hearing,defendant and codefendant acknowledged that they knew what theoffers were upon a plea of guilty. Codefendant's counsel thenstated "[f]or the record, Judge, there was a 402 conference. Theoffer was 12" years for a guilty plea. Both parties thenscheduled a status hearing for January 28, 2002.

At the status hearing, defense counsel stated "I believe asa result of the 402 conference on the last Court date, thedefendant will be entering a plea of guilty to count 2,aggravated battery of a child in exchange for your Honor's offerof 12 years Illinois Department of Corrections." Defendantpleaded guilty and the trial court admonished her of her rightsto plead not guilty and to have a jury trial, and ensured thather plea was voluntary. The court informed defendant that shecould receive up to 30 years in prison, then stated "[m]y offerto you was 12 years." The parties stipulated to the factualbasis for the plea and defendant swore to its veracity. Thereafter, the trial court found defendant guilty of aggravatedbattery of a child, granted the State's motion for a nolleprosequi for the remaining charges, and sentenced defendant to 12years in prison.

The court informed defendant that the only reason she wasnot sentenced to 30 years in prison was due to her lack of acriminal background, and if she had not pleaded guilty, she wouldhave faced an extended prison term. The trial court thenadmonished defendant as follows:

"You have 30 days to vacate your plea oryou forever waive that right. That motionmust be made in writing stating forth thereasons why. If you don't have money for alawyer, one will be provided free of chargeto assist you, and [a] transcript will beprovided free of charge."

Defendant did not file a written motion to withdraw herguilty plea as required by Supreme Court Rule 604(d). 188 Ill.2d R. 604(d). This court, however, allowed defendant to file alate notice of appeal in which she asserted that her tardinesswas not due to her culpable negligence because she was unaware ofher right to appeal as no one had advised her of that right.

On appeal, defendant contends that her case must be remandedto the trial court for proper admonishments because her guiltyplea was not negotiated, and the trial court failed to admonishher of her right to file a motion to reconsider her sentence inaccordance with Rule 605(b). The State argues that the plea wasnegotiated and defendant was properly admonished pursuant to Rule605(c); however, it asserts that this court must dismiss theappeal because defendant waived her appeal rights when she failedto file a postplea motion under Rule 604(d).

Rule 604(d) dictates that when a defendant wishes to appealfrom a judgment entered on a guilty plea, whether negotiated oropen, she must first file a written postplea motion with thetrial court as a condition precedent to her appeal. People v.Dunn, 342 Ill. App. 3d 872, 876 (2003). The Illinois SupremeCourt requires strict compliance with Rule 604(d) (In re WilliamM., 206 Ill. 2d 595, 605 (2003)); however, defendant's failure tofile a Rule 604(d) motion does not deprive the court ofjurisdiction, but may result in waiver of her right to appeal(Dunn, 342 Ill. App. 3d at 877). Under the "admonitionexception" to the motion requirement, an appellate court mayconsider an appeal despite defendant's noncompliance with Rule604(d) in cases where the trial court failed to give sufficientRule 605 admonitions. William M., 206 Ill. 2d at 602. Since adefendant who enters a negotiated guilty plea is admonishedpursuant to Rule 605(c), and a defendant who enters an openguilty plea is advised under Rule 605(b), we must first determinewhether defendant entered a negotiated or an open guilty plea. Dunn, 342 Ill. App. 3d at 878.

Rules 604(d) and 605(b) and (c) all state that a negotiatedplea "is one in which the prosecution has bound itself torecommend a specific sentence, or a specific range of sentence,or where the prosecution has made concessions relating to thesentence to be imposed and not merely to the charge or chargesthen pending." 188 Ill. 2d Rs. 604(d), 605(b), (c). A pleaagreement that precludes the State from arguing for a sentencefrom the full range of available penalties is a negotiated, notan open, plea. Dunn, 342 Ill. App. 3d at 880.

Similar to Dunn, defendant here argues that she entered anopen guilty plea because her agreement was with the trial court,not the State. We find that her contention is belied by therecord. At the January 11, 2002, hearing, defendant told thecourt that she knew what the offer was if she pled guilty, andcodefendant's counsel stated that a Rule 402 conference had beenheld and that defendants were offered 12 years in prison fortheir guilty pleas. At the next status hearing, defense counselinformed the court that "as a result of the 402 conference"defendant was pleading guilty to the one charge of aggravatedbattery of a child in exchange for the court's offer of 12 yearsin prison. Rule 402 states that plea agreements are reached bythe parties and cannot be initiated by the trial court. 177 Ill.2d R. 402(d). The statements of counsel illustrate that theparties agreed to the 12-year prison term in exchange fordefendant's guilty plea, and the court concurred with the termsof the agreement. See Dunn, 342 Ill. App. 3d at 880.

Furthermore, after the trial court found defendant guilty ofaggravated battery of a child, it granted the State's motion fora nolle prosequi for the remaining charges against defendant. The court then informed defendant that she did not receive a 30-year sentence due to her lack of a criminal background, and thatif she had not pled guilty, she would have received an extendedterm in prison. These statements further demonstrate that theState was precluded from arguing for a sentence from the fullrange of available penalties. We therefore conclude thatdefendant entered into a negotiated, not an open, guilty plea.

Having so concluded, we next examine the trial court'sadmonishments following acceptance of defendant's guilty plea anddetermine whether they complied with the requirements of Rule605(c). Our review of the trial court's compliance with thesupreme court rules is de novo. People v. Lloyd, 338 Ill. App.3d 379, 384 (2003). Trial courts are held to strict compliancewith the admonition requirements of Rule 605(c) and mustsubstantially advise defendant of each subsection (Lloyd, 338Ill. App. 3d at 384), but they are not required to use the exactlanguage of the rule (Dunn, 342 Ill. App. 3d at 881).

Rule 605(c) provides that when the trial court imposes asentence pursuant to a negotiated guilty plea, it shall advisethe defendant:

"(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant mustfile in the trial court, within 30 days of the date on whichsentence is imposed, a written motion asking to have thejudgment vacated and for leave to withdraw the plea ofguilty, setting forth the grounds for the motion;

(3) that if the motion is allowed, the plea of guilty,sentence and judgment will be vacated and a trial date willbe set on the charges to which the plea of guilty was made;

(4) that upon the request of the State any chargesthat may have been dismissed as a part of a plea agreementwill be reinstated and will also be set for trial;

(5) that if the defendant is indigent, a copy of thetranscript of the proceedings at the time of the defendant'splea of guilty and sentence will be provided without cost tothe defendant and counsel will be appointed to assist thedefendant with the preparation of the motions; and

(6) that in any appeal taken from the judgment on theplea of guilty any issue or claim of error not raised in themotion to vacate the judgment and to withdraw the plea ofguilty shall be deemed waived." 188 Ill. 2d R. 605(c).

Here, we find that the trial court failed to substantiallyadmonish defendant in accordance with Rule 605(c). Mostsignificantly, the trial court completely failed to advisedefendant that she had a right to appeal. Although the trialcourt advised defendant that she had 30 days to file a writtenmotion to vacate her plea, and that counsel and a transcriptwould be provided, the court did not tell defendant that hermotion had to be filed prior to filing an appeal. In addition,the court made no mention of the admonitions contained insubsections (3), (4) and (6) of Rule 605(c) concerning thepotential consequences of withdrawing her plea. See Lloyd, 338Ill. App. 3d at 385. Based upon the trial court's failure tosubstantially admonish defendant pursuant to Rule 605(c), we findthat defendant's failure to file a Rule 604(d) motion is excused,and this court must remand the cause to the trial court forstrict compliance with Rule 605(c). William M., 206 Ill. 2d at602; Lloyd, 338 Ill. App. 3d at 385.

Defendant also contends, and the State agrees, that she isentitled to sentencing credit for 885 days served, rather than881, and that the mittimus should be amended to reflect thecorrect number. We direct the trial court to make thiscorrection on remand.

In sum, we remand the cause to the circuit court of CookCounty to properly admonish defendant is accordance with Rule605(c) within 30 days of the date our mandate is filed in thetrial court so that defendant may have an opportunity to file amotion to withdraw her guilty plea pursuant to Rule 604(d) if sheso desires. If defendant is found to be indigent, the trialcourt shall appoint counsel to assist her. If defendant files apostplea motion and it is denied by the trial court, she may thenappeal the denial of that motion. In addition, the trial courtis further directed to correct defendant's mittimus on remand.

Remanded with directions.

QUINN, P.J., and THEIS, J., concur.

1. Codefendant is not a party to this appeal.