In re W.M.

Case Date: 03/22/2002
Court: 3rd District Appellate
Docket No: 3-00-0908 Rel 

No. 3--00--0908


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002


In re W.M., a Minor ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
(THE PEOPLE OF THE STATE OF ) Kankakee County, Illinois,
ILLINOIS, )
)
          Petitioner-Appellee, )
)
          v. ) No. 00--JD--126
)
W.M., ) Honorable
) Kendall O. Wenzelman,
          Respondent-Appellant).  ) Judge, Presiding.

 


JUSTICE SLATER delivered the opinion of the court:


The State filed a four-count delinquency petition againstthe respondent, W.M., in the circuit court of Kankakee Countyalleging that respondent had committed the offenses of burglary(720 ILCS 5/19--1 (West 2000)) and criminal trespass to vehicles(720 ILCS 5/21--2 (West 2000)). Respondent entered an admissionto two counts of burglary pursuant to a plea agreement and thetrial court adjudicated the respondent a delinquent minor. Respondent was subsequently sentenced to the Department ofCorrections for an indeterminate period. Respondent now appeals,and we remand.

Background

On July 18, 2000, the State filed a four-count delinquencypetition against the 15-year-old respondent, charging him withburglary and criminal trespass to two automobiles. Bothincidents allegedly occurred on July 16, 2000. Three daysearlier, on July 13, 2000, respondent had been placed on fiveyears' probation for residential burglary.

On October 2, 2000, respondent appeared in court with hisappointed counsel, Assistant Public Defender Sherri Carr. Carradvised the court that pursuant to a plea agreement, respondentwould admit to the burglary allegations in exchange for dismissalof the criminal trespass charges, as well as dismissal of anunrelated domestic battery charge. The court admonishedrespondent that an admission waived his right to remain silent,his right to require the State to prove the charges, his right toa hearing, to present evidence and witnesses, and to cross-examine the State's witnesses. The court also informedrespondent that the burglary charges would have been class 2felonies if he had been charged as an adult. After respondentacknowledged that he had not been coerced and was actingvoluntarily, the State presented a factual basis for the pleas. Respondent had been observed entering two vehicles, wasapprehended and gave a statement admitting he had done so. Hewas in possession of several items taken from the automobiles andhis fingerprints were found inside the cars. The trial courtentered a finding of delinquency and adjudicated respondent award of the court.

A dispositional hearing was held on November 15, 2000, andthe respondent was committed to the juvenile division of theDepartment of Corrections for an indeterminate period. The courtadvised respondent of his right to appeal and of the need to filea motion to withdraw his plea or a motion to reconsider thesentence within 30 days if he planned to appeal. When respondentstated that he did not understand, the trial court repeated theadmonitions and respondent indicated that he understood. At theconclusion of the hearing, respondent's counsel requested thefiling of a notice of appeal on respondent's behalf andappointment of the appellate defender. The court granted bothrequests and the clerk of the court filed the notice of appeal onNovember 27, 2000.

Analysis

Respondent contends that the adjudication of delinquencymust be vacated because the record fails to show that he wasaware of the consequences of his admission. Specifically,respondent notes the absence of any indication in the record thathe was informed of the potential dispositions he could receive asa result of being adjudicated a delinquent minor. See In reS.K., 137 Ill. App. 3d 1065, 485 N.E.2d 578 (1985) (vacatingadjudication of delinquency where juvenile was not advised thathe could be placed in Department of Corrections as consequence ofhis admission); see also In re Beasley, 66 Ill. 2d 385, 362N.E.2d 1024 (1977) (due process requires that minor is aware ofconsequences of admission).

Respondent recognizes, however, that consideration of thesubstantive issue in this case is dependent upon the resolutionof a procedural one. No post-admission or post-dispositionmotion was filed prior to the filing of the notice of appeal,despite the trial court's admonitions. Supreme Court Rule 604(d)provides in part:

"No appeal from a judgment entered upona plea of guilty shall be taken unless thedefendant, within 30 days of the date onwhich the sentence is imposed, files in thetrial court a motion to reconsider thesentence, if only the sentence is beingchallenged, or, if the plea is beingchallenged, a motion to withdraw the plea ofguilty and vacate the judgment." OfficialReports Advance Sheet No. 23 (November 15,2000), R. 604(d), eff. November 1, 2000.

Compliance with Rule 604(d) is a condition precedent totaking an appeal from a guilty plea in a criminal case. Peoplev. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218 (1988). Furthermore, itis clear that Rule 604(d) is applicable to juvenile proceedings. See In re A.G., 195 Ill. 2d 313, 320, 746 N.E.2d 732, 737 (2001)(holding that attorney certificate requirement of Rule 604(d)applies to juvenile proceedings and stating that "all of theprovisions of Rule 604(d) would be useful and applicable tojuvenile proceedings") (emphasis added). What is not clear,however, is whether the failure to file a post-disposition motionrequires this court to dismiss respondent's appeal. See In reA.G., 195 Ill. 2d 313, 746 N.E.2d 732 (expressly declining todecide whether filing of 604(d) motion is a prerequisite totaking a delinquency appeal).

The State argues that respondent's failure to comply withRule 604(d) deprives this court of jurisdiction and requiresdismissal of the appeal. We disagree. As explained in People v.McKay, 282 Ill. App. 3d 108, 668 N.E.2d 580 (1996), a 604(d)motion is not jurisdictional in the same sense as a notice ofappeal is essential to vest the appellate court withjurisdiction. Jurisdiction refers to the power and authority ofa court to hear and determine a judicial proceeding. Black's LawDictionary 853 (6th ed. 1990). If Rule 604(d) affectedjurisdiction, noncompliance would mandate dismissal of an appealregardless of the circumstances. Yet our supreme court hasrecognized an exception to 604(d) where the trial court fails toadmonish the defendant in accordance with Rule 605(b) (145 Ill.2d R. 605(b)). See People v. Foster, 171 Ill. 2d 469, 665 N.E.2d823 (1996) (recognizing "admonition exception" to Rule 604(d)). As noted in McKay, "Wilk and its progeny, therefore, withdrawfrom an appellate court not jurisdiction, but rather the decisionwhether waiver should bar the appeal of a defendant who has notfiled a Rule 604(d) motion." McKay, 282 Ill. App. 3d at 111, 668N.E.2d at 583.

Since the issue is one of waiver rather than jurisdiction,the question is not whether we can consider respondent's appealbut whether we should. Of course if this were a criminal caseWilk would dictate dismissal, leaving the respondent to hisremedy under the Post-Conviction Hearing Act (Act) (725 ILCS5/122--1 et seq. (West 2000)). See Wilk, 124 Ill. 2d 93, 529N.E.2d 218. However, this court has expressly held that the Actdoes not apply to juvenile proceedings. In re A.W.H., 95 Ill.App. 3d 1106, 420 N.E.2d 1041 (1981); In re R.R., 75 Ill. App. 3d494, 394 N.E.2d 75 (1979); see also In re Thomas, 77 Ill. App. 3d299, 396 N.E.2d 31 (1979); In re Buchanan, 62 Ill. App. 3d 463,379 N.E.2d 122 (1978). Thus, if we were to apply the waiverdoctrine and dismiss respondent's appeal, review of his claimswould be foreclosed. His assertion that he was denied dueprocess by the trial court's failure to inform him of theconsequences of his admission, a claim with constitutionalimplications (see Beasley, 66 Ill. 2d 385, 362 N.E.2d 1024),would escape scrutiny. Likewise, respondent's argument that histrial counsel was ineffective for failing to comply with Rule604(d) would fall on deaf ears, despite the fact that "anattorney who stands with his client in a criminal proceeding,hears the admonishments of the court required by Rule 605(b), andfails to adhere to Rule 604(d) by moving to withdraw the pleaprior to filing a motion of appeal has fallen short of providingcompetent representation." Wilk, 124 Ill. 2d at 105-06, 529N.E.2d at 222.

Accordingly, we hold that respondent's failure to file apost-disposition motion in accordance with Supreme Court Rule604(d) does not require dismissal of his appeal. We recognizethat our decision is in direct conflict with In re A.W., 185 Ill.App. 3d 473, 541 N.E.2d 789 (1989), which relied on Wilk indismissing a juvenile's appeal for failing to comply with Rule604(d). See also Thomas, 77 Ill. App. 3d 494, 396 N.E.2d 31(pre-Wilk). Nevertheless, because a juvenile, unlike an adultoffender, has no alternative means of presenting his claims, webelieve it is appropriate to invoke Supreme Court Rule 615(a): "Plain errors or defects affecting substantial rights may benoticed although they were not brought to the attention of thetrial court." 134 Ill. 2d R. 615(a). We do not, however,consider the merits of respondent's appeal but instead remandthis cause to the circuit court for further proceedings incompliance with Rule 604(d). See Foster, 171 Ill. 2d at 474, 665N.E.2d at 826 ("Where the appellate court may consider an appealdespite a defendant's noncompliance with Rule 604(d), theappellate court has no discretion and must remand for strictcompliance therewith.")

Remanded.

LYTTON, P.J., and McDADE, J., concur.