People v. Canterbury

Case Date: 06/05/2000
Court: 2nd District Appellate
Docket No: 2-99-0318, 0319, 0320 cons.

5 June 2000

Nos. 2--99--0318, 2--99--0319, 2--99--0320 cons.
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE
OF ILLINOIS,

         Plaintiff-Appellee,

v.

RICHARD L. CANTERBURY,

         Defendant-Appellant.
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Appeal from the Circuit Court
of Lake County.

Nos. 96--CF--1567,
         96--CF--1944,
         97--CF--685

Honorable
Raymond J. McKoski,
Judge, Presiding.



JUSTICE GALASSO delivered the opinion of the court:

Defendant, Richard Canterbury, pleaded guilty to two counts offorgery (720 ILCS 5/17--3(a)(2) (West 1998)) and one count ofunlawful possession of a stolen motor vehicle (unlawful possession)(625 ILCS 5/4--103(a)(1) (West 1998)). Pursuant to an agreementwith the State, the court sentenced him to seven years'imprisonment for unlawful possession and concurrent three-yearterms for forgery. The court denied defendant's motion to withdrawhis guilty plea. He appeals, contending that the pleas were notvoluntary where his vision problems prevented him fromunderstanding the agreement and the plea proceedings.

Defendant was charged with numerous offenses in three separatecases. The State originally approached defendant with a plea offerinvolving an extended-term sentence but defendant rejected it.Later, the parties did enter into a plea agreement. The prosecutorinformed the court, in defendant's presence, that defendant would plead guilty to two counts of forgery and one count of unlawfulpossession. In exchange, the State would dismiss the remainingcharges and recommend concurrent prison terms of seven years forunlawful possession and three years for each forgery count.

The trial court informed defendant of the possible penaltiesfor forgery and unlawful possession. Defendant said he understood.The court advised defendant that he had a right to a trial by ajudge or a jury in which he would have to be proved guilty beyonda reasonable doubt. The court told defendant that if he pleadedguilty there would never be a trial of any kind in these cases.Furthermore, the court admonished defendant that if he chose atrial, he would have the right to be present, to confront witnessesagainst him, to have the assistance of counsel, to call witnessesin his defense, to subpoena witnesses if necessary, and to testifyor not testify. Defendant said that he understood these rights.

Defendant also stated that no one had promised him anythingdifferent from what had been discussed, no one had threatened himin any way, and he had talked to his lawyer about the negotiations.Defendant admitted to the factual basis for the charges and thecourt imposed the agreed-upon sentence. In response to the court'squery, defendant said that he did not have any questions.

Defendant filed pro se motions to withdraw his guilty pleasalong with motions for the appointment of counsel other than thepublic defender and notices of appeal in each case. The courtappointed counsel who filed a supplemental motion to withdraw thepleas. The motion alleged that trial counsel had advised defendantthat the negotiation was for a four-year term and it was not untildefendant appeared in court that he learned that he was actually toreceive a seven-year sentence. The motion also alleged that visionproblems prevented defendant from reviewing the discovery todetermine if the guilty pleas were in his best interests. In aletter attached to the motion, defendant said he signed a "pleaagreement" believing it reflected a four-year deal, but that he wasunable to read it for himself because of his vision problems.

At the hearing on the motion, defendant testified that histrial attorney told him the State would agree to a four-yearsentence in exchange for his plea, and he agreed to this offer. Hewas "shocked" when the court imposed a seven-year sentence. Hesaid that during the hearing he tried to get his lawyer's attentionto ask what was going on, but she waved him off and would notrespond. Defendant said he was unable to read at that time becauseof vision problems in both eyes. On cross-examination, defendantadmitted that he understood the court's admonishments. He heardthe prosecutor tell the court that the agreement was for a seven-year term. He did not object at that time because he "had alreadysigned the plea agreement so what good would it do?"

The trial court denied the motions and defendant filed noticesof appeal in each case. This court consolidated the appeals.

Initially, we must determine our jurisdiction over thisappeal. Citing People v. Bounds, 182 Ill. 2d 1 (1998), the Statecontends that we lack jurisdiction because this court'sjurisdiction attached immediately when defendant filed his pro senotices of appeal. Therefore, the trial court lacked jurisdictionto rule on defendant's motion to withdraw the guilty pleas.

Even if the State's argument is correct, this court hasjurisdiction of defendant's appeals because he filed notices ofappeal within 30 days of his convictions. However, we would haveto vacate the trial court's subsequent order as having been enteredwithout jurisdiction and affirm defendant's convictions because hedid not properly move to withdraw his pleas before appealing.

This court has followed the rule that a timely filed posttrialmotion that attacks the judgment or requests a modification effectsan implied dismissal of any simultaneous or previously filed noticeof appeal. People v. Rowe, 291 Ill. App. 3d 1018, 1020-21 (1997);People v. Hook, 248 Ill. App. 3d 16, 18 (1993). In Bounds, thesupreme court held that defendant's notice of appeal, filed thesame day as a motion to reconsider, deprived the trial court ofjurisdiction and immediately vested jurisdiction in the supremecourt. Bounds, 182 Ill. 2d at 3.

Bounds involved the dismissal of a postconviction petition.Since then, one district of the appellate court has held thatBounds applies only to postconviction petitions and not to directappeals from convictions. People v. Everage, 303 Ill. App. 3d1082, 1085 (1999). Contra People v. Jenkins, 303 Ill. App. 3d 854,857-60 (1999). The rationale for this distinction is that, in apostconviction proceeding, unlike in a direct appeal, a defendantis not required to file a posttrial motion to preserve issues forappeal. Everage, 303 Ill. App. 3d at 1085.

We continue to follow those cases holding that the filing ofa timely posttrial motion directed against the judgmentsimultaneously with or subsequent to a notice of appeal effectivelyabandons the appeal and vests the trial court with jurisdiction toadjudicate the posttrial motion. In this case, defendant, actingpro se, filed a motion to withdraw his guilty pleas and notices ofappeal at the same time. We will not indulge the fiction thatdefendant intended to secure the trial court's ruling on his motionto withdraw his guilty pleas, a prerequisite to an appeal (see 145Ill. 2d R. 604(d)), and, at the same time, deprive the court ofjurisdiction to make that ruling. The more logical and equitableapproach is to disregard the initial notices of appeal. The trialcourt therefore had jurisdiction to adjudicate defendant's motionto withdraw his guilty pleas.

Turning to the merits, we agree with the State that the trialcourt did not abuse its discretion in denying defendant's motion towithdraw the pleas. A defendant has no absolute right to withdrawa guilty plea (People v. Thurmond, 262 Ill. App. 3d 200, 202(1994)) and bears the burden of showing the necessity forwithdrawal (People v. Artale, 244 Ill. App. 3d 469, 475 (1993)). It is within the trial court's discretion whether to permit aguilty plea to be withdrawn, and its decision will not be disturbedabsent an abuse of that discretion. People v. Davis, 145 Ill. 2d240, 244 (1991); People v. Staple, 233 Ill. App. 3d 8, 10 (1992).

A court should allow a defendant to withdraw his plea wherethe plea was entered based on a misapprehension of the facts or thelaw or because of misrepresentations by counsel, where there isdoubt of defendant's guilt, where he has a defense worthy ofconsideration, or where the ends of justice will be better servedby submitting the case to a jury. Davis, 145 Ill. 2d at 244;Artale, 244 Ill. App. 3d at 475. Subjective impressions alone arenot sufficient grounds to vacate a guilty plea absent someobjective proof that the subjective impressions were justified.People v. Wilson, 295 Ill. App. 3d 228, 236 (1998); People v.Christensen, 197 Ill. App. 3d 807, 812 (1990).

Here, there is no objective basis for defendant's belief thathe would receive a four-year sentence. Defendant testified thathis trial lawyer told him the plea bargain called for a four-yearterm. This statement is uncorroborated, and we note thatdefendant's attorney did not testify. However, had his lawyer madesuch a statement, defendant's mistaken impression should have beencleared up in court. Both the prosecutor and the trial courtreferred to a seven-year sentence. At the guilty plea hearing,defendant said that he understood the terms of the agreement, thatno other promises or threats had been made, and that he had noquestions. At the hearing on the motion to withdraw, defendantconceded that he understood the prosecutor's and court's statementsabout the sentence but did not object.

The voluntariness of defendant's pleas was not affected by hisocular disabilities. Defendant claims that he signed a document,which he could not read, that he thought embodied the pleaagreement. In his appellant's brief, he concedes that no writtenstatement of the plea agreement exists and that the document hesigned was probably a routine jury waiver. He argues that thisdocument is nevertheless relevant because it explains his failureto object to the terms of the agreement stated at the plea hearing.We disagree. The court asked defendant at the hearing whether anyother promises had been made or whether he had any questions.Defendant never mentioned the document he allegedly signed. Rather, he said that there were no other promises and he had noquestions. Defendant's signing of the document does not explainhis negative answers to the court's specific questions. Defendantmust have been aware that he had the opportunity to object to theagreement or to ask questions at that time, but he failed to do so.This demonstrates that defendant correctly understood theagreement.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

McLAREN and RAPP, JJ., concur.