People v. Polk

Case Date: 06/30/2004
Court: 1st District Appellate
Docket No: 1-03-1679 Rel

SIXTH DIVISION
June 30, 2004



No. 1-03-1679

 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
  ) Circuit Court of
                              Plaintiff-Appellee, ) Cook County
  )  
          v. )  
  )  
LARRY POLK, ) Honorable
  ) Henry R. Simmons,
                             Defendant-Appellant. )  

 

Judge Presiding. PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Larry Polk was found guilty of the Class X felony ofarmed robbery and the Class 2 felony of burglary. The trial court found that the burglary chargemerged into the armed robbery conviction, and sentenced defendant to a prison term of nine yearsfor armed robbery. 720 ILCS 5/18-2(a)(1), 18-2(b), 19-1 (West 2002); 730 ILCS 5/5-8-1(a)(3) (West2002). On appeal, defendant contends that he was not properly admonished pursuant to revisedIllinois Supreme Court Rule 605(a). Official Reports Advance Sheet No. 21 (October 17, 2001), R.605(a), effective October 1, 2001. Defendant argues that the trial court failed to admonish him that,inter alia, he had a right to file a motion to reconsider his sentence and that sentencing errors wouldbe waived if they were not raised in a written motion to reconsider the sentence within 30 days ofsentencing.

Carl Griffin, Jr., testified that he was the loss prevention supervisor for Jewel-Osco at 1220South Ashland Avenue. At approximately 7:15 a.m. on May 9, 2002, Griffin saw defendant enterthe store. Griffin had seen defendant during the previous month and recognized him. Griffinfollowed defendant and saw him take three hair clippers off the shelf and put them into a leather bagthat was strapped around his shoulders. Griffin confronted defendant after he had passed the lastregister. When Griffin identified himself, defendant pulled back, produced a knife, and told Griffinto back up or he would stab him. Griffin then pulled back and allowed defendant to leave the storewith the hair clippers. When police arrived, Griffin provided the officers with a picture of defendant. Police officers subsequently showed an array of five photographs to Griffin, and Griffin identifieddefendant as the offender. On May 10, 2002, Griffin identified defendant in a lineup. A videotapeof the incident was shown in court.

During cross-examination, Griffin testified that defendant previously had been caughtstealing and that the knife was not visible on the videotape.

Chicago police officer James Hall testified that the photograph of defendant that Griffinprovided bore the name "Pork" instead of "Polk," and a photographic array was used as a "safetymeasure." When Hall arrested defendant on May 10, 2002, he recovered a knife, a jacket, and ablack leather bag, all of which Griffin subsequently identified as the items used by defendant. AfterHall administered Miranda warnings to defendant and informed defendant that he was under arrestfor robbery, defendant told Hall that it was not a robbery, it was a theft. When Hall informeddefendant that the use of the knife made the crime an armed robbery, defendant replied that it wasnot an armed robbery, it was a forcible theft.

The parties stipulated that defendant was identified in a lineup, and that defendant orally toldAssistant State's Attorney Yoon and Detective Fujaro that he had a knife in his bag, that he tookthree hair clippers, that he did not take the knife out of the bag, that he pushed the security guard outof the way, that he sold two of the hair clippers, and that the third was stolen.

During the sentencing hearing, the assistant State's Attorney emphasized defendant's criminalhistory in aggravation. The trial court observed that it was looking at pages 3 and 4 of thepresentence investigative report, which listed defendant's prior convictions. In mitigation, theassistant public defender argued that defendant maintained he had committed a theft, that the guardwas never touched even though he was threatened, that no knife was visible on the videotape, thatthe case did not involve injuries or a firearm, that clippers were taken, that defendant was a highschool graduate with no gang affiliations, that he worked when he was not incarcerated, that he hadno history of substance abuse, and that he was involved in sports and athletics. During allocution,defendant apologized and stated that he did not intend to hurt anyone.

The trial court stated that it had considered all of the facts, defendant's age (33), thepresentence investigative report, the matters in aggravation and in mitigation, the arguments of theattorneys, defendant's statement, and his rehabilitative potential. The trial court then imposed a nine-year prison sentence for armed robbery.

At the conclusion of the sentencing hearing, the trial court admonished defendant as follows:

"And do you [sic] have the right to appeal the fact that youwere found guilty.

You have a right to file a notice of [a]ppeal within 30 days. It must be in writing; free lawyer will be provided, free trialtranscript, as well.

You understand you have a right to appeal the fact that I foundyou guilty and in fact that I have just sentenced you?"

On appeal, defendant argues that the trial court's admonishments were inadequate becausethe trial court did not tell him that he had a right to file a motion to reconsider the sentence and thata motion to reconsider the sentence was required to preserve sentencing errors for appeal. Defendantstates that his sentence was greater than the minimum sentence despite significant mitigatingevidence that he never touched or injured anyone during this crime, that his prior convictions werefor nonviolent crimes, that he expressed remorse and said he never intended to hurt anyone, that hewas a high school graduate, that he had a history of employment, and that he had never been in agang. Defendant argues that if he had been given the opportunity to file a motion to reconsider thesentence, he would have highlighted the mitigating factors and could have convinced the trial courtthat the sentence was excessive. Defendant maintains that the inadequate admonishments deprivedhim of the opportunity to have his sentence reconsidered. Defendant maintains that the cause shouldbe remanded to the trial court to issue proper admonishments pursuant to Rule 605(a), and to affordhim an opportunity to file a motion to reconsider the sentence.

The State acknowledges that the trial court's admonishment did not strictly comply with Rule605(a), but the State contends that there is no need for remandment. According to the State,defendant did not allege a sentencing error on appeal, and defendant was not prejudiced or deprivedof real justice by the lack of strict compliance with Rule 605(a). The State maintains that the trialcourt did not compromise or limit defendant's ability to raise a sentencing issue on appeal. The Stateargues that the trial court heard about defendant's background, including three prior convictions forpossession of a controlled substance with intent to deliver, one prior conviction for possession of acontrolled substance, two prior convictions for theft, and one prior conviction for burglary. TheState argues further that the trial court also heard the mitigating factors: that defendant admitted hehad committed a theft and had threatened the guard, no one was injured, no firearm was involved,only hair clippers were stolen, defendant was a high school graduate, defendant was not in a gang,defendant worked when he was not incarcerated, defendant does not have a history of substanceabuse, defendant was involved in sports and athletics, and defendant expressed remorse duringallocution. The State argues that the trial court said it had considered the presentence investigativereport, the factors in aggravation and in mitigation, defendant's statement in allocution, anddefendant's rehabilitative potential. The State also argues that the nine-year prison sentence was onlythree years greater than the minimum sentence for a Class X felony. According to the State,remandment would be a waste of judicial resources because prior to imposing the sentence, the trialcourt heard all of the mitigating factors that defendant lists in his brief, and defendant does notchallenge his conviction or claim that the trial court committed a sentencing error.

Both sides correctly state that the standard of review is de novo. People v. Garner, 347 Ill.App. 3d 578, 583 (2004); People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003); People v. Green, 332Ill. App. 3d 481, 483 (2002). However, the case law is conflicting concerning the question whetherthe trial court's admonishments must strictly comply with Rule 605(a).

Revised Rule 605(a)(3) provides in pertinent part:

"(3) At the time of imposing sentence or modifying theconditions of the sentence, the trial court shall also advise thedefendant as follows:

A. that the right to appeal the judgment of conviction,excluding the sentence imposed or modified, will bepreserved only if a notice of appeal is filed in the trial courtwithin thirty (30) days from the date on which sentence isimposed;

B. that prior to taking an appeal, if the defendant seeksto challenge the correctness of the sentence, or any aspect ofthe sentencing hearing, the defendant must file in the trialcourt within 30 days of the date on which sentence is imposeda written motion asking to have the trial court reconsider thesentence imposed, or consider any challenges to thesentencing hearing, setting forth in the motion all issues orclaims of error regarding the sentence imposed or thesentencing hearing;

C. that any issue or claim of error regarding thesentence imposed or any aspect of the sentencing hearing notraised in the written motion shall be deemed waived; and

D. that in order to preserve the right to appealfollowing the disposition of the motion to reconsidersentence, or any challenges regarding the sentencing hearing,the defendant must file a notice of appeal in the trial courtwithin 30 days from the entry of the order disposing of thedefendant's motion to reconsider sentence or order disposingof any challenges to the sentencing hearing."

Official Reports Advance Sheet No. 21 (October 17, 2001), R.605(a)(3), effective October 1, 2001.

In People v. Williams, 344 Ill. App. 3d 334, 338 (2003), the Third District held that remandis required only when improper Rule 605(a) admonishments prejudice the defendant or deny realjustice. The trial court failed to admonish the defendant that he was required to file a motion toreconsider the sentence in the trial court to preserve sentencing issues for appeal.  The appellate courtheld that the absence of compliance with Rule 605(a) did not require remandment of the case. Theappellate court held that because the defendant had not challenged his sentence on appeal, theincomplete admonishments had not deprived him of real justice, had not prejudiced him, and hadnot compromised or limited his ability to raise a sentencing issue on appeal. Williams, 344 Ill. App.3d at 338-39. The appellate court observed:

"To require remand in the instant matter, so defendant could hear thesteps necessary to challenge an issue that he has no basis to challenge,would elevate form over substance without serving the ends of realjustice. For this exercise in futility, we see no need." Williams, 344Ill. App. 3d at 339.

Relying upon Williams, the First District in Garner, 347 Ill. App. 3d at 586, found that strictcompliance with Rule 605(a) was not required because the defendant had not raised any sentencingissues that he wished to bring but could not because of the improper admonishments. Thus, thedefendant in Garner was neither prejudiced nor deprived of real justice by the incompleteadmonishments, and remandment would have elevated form over substance. Garner, 347 Ill. App.3d at 586.

Contrary to Williams and Garner, the causes were remanded for proper Rule 605(a)admonishments in People v. Bagnell, No. 3-02-0327, slip op. at 6-7 (May 3, 2004), People v. Glenn,345 Ill. App. 3d 974, 984-85 (2nd Dist. 2004), and People v. Taylor, 345 Ill. App. 3d 1064, 1083 (4thDist. 2004). In Bagnell, slip op. at 5-6, the Third District rejected the prejudice analysis it hadadopted in Williams and held instead that Rule 605(a) admonishments are mandatory and mustcomply strictly with Rule 605(a).(1) In Taylor, 345 Ill. App. 3d at 1083, an allegedly excessivesentence was a sentencing error requiring remandment for proper Rule 605(a) admonishments. InGlenn, 345 Ill. App. 3d at 984, the appellate court rejected the prejudice analysis of Williams, heldthat the trial court must comply strictly with Rule 605(a), and indicated that remandment is theremedy, to afford the defendant the proper admonishments as well as an opportunity to file a motionto reconsider his sentence.

Here, the trial court's admonishments did not strictly comply with Rule 605(a), and defendantdid not file a post-sentencing motion. The State's assertions that defendant did not challenge hissentence in this appeal are incorrect. Unlike Garner and Williams, defendant has raised specificissues before this court that he was unable to raise due to the trial court's incomplete admonishments. Specifically, defendant has argued in this appeal that his sentence is excessive in light of the factorshe listed in mitigation, and he has argued that the inadequate admonishments precluded him fromfiling a motion to reconsider the sentence. Therefore, this case is not analogous to Williams orGarner, in which the defendants did not specify any sentencing issues on appeal. Defendant here hasraised one of the same sentencing issues that required remandment for proper admonishments inTaylor, namely, the issue of an allegedly excessive sentence, and we cannot say that defendant wasnot prejudiced or deprived of real justice by the incomplete admonishments. Under thesecircumstances, we believe remand is necessary for proper Rule 605(a) admonishments.

The judgment of the circuit court is affirmed, and the cause is remanded for proper Rule605(a) admonishments and to afford defendant an opportunity to file a motion to reconsider hissentence, limited to his claim that his sentence was excessive in light of the mitigating factors listedin his brief in this appeal.

Affirmed and remanded with directions.

GALLAGHER and FITZGERALD SMITH, JJ., concur.

1. Justice McDade, who wrote the majority opinion in Bagnell, concurred in part anddissented in part in Williams, and stated in Williams that Rule 605(a) required strict compliance. Williams, 344 Ill. App. 3d at 345.